Academic journal article The Hastings Center Report

Escaping from Legalism: Is It Possible?

Academic journal article The Hastings Center Report

Escaping from Legalism: Is It Possible?

Article excerpt

The law is America's greatest strength, but sometimes also its greatest curse, when it gets in the vicinity of ethics. No myth is so hardy as the notion that "you can't legislate morality," which of course we do all the time. But that myth has been well noted. Less appreciated, however, is the conceit that when the law decides to stand aside from moral judgment and to leave matters to personal choice, it has not made a moral judgment Our country properly rejected pro-choice arguments in favor of racial segregation, recognizing the tacit public moral approval they gave to segregation. Yet it seems we still try to persuade ourselves that there is no such official moral approbation in leaving matters of sex, or end-of-life choices, including physician-assisted suicide, up to individuals.

The irony here is that, in a country so devoted to the law, so quick to legislate on everything in sight, a failure to legislate - or a removal of an old prohibition from the books - cannot fail to send a moral message. It was once said of some European countries that if the law remained silent on something, it was probably morally forbidden. It is just the opposite here: if the law remains silent, that means an act is probably morally acceptable. It is hardly any wonder, for example, that in the campaign against smoking the only way to demonstrate moral seriousness is legally to ban it, anywhere and everywhere that is politically feasible. For public purposes, true ethical weight rests on the majesty of the law.

None of this would matter so much if - so I hypothesize - the greatest obstacle to outright and serious public moral debate in this country were not the hovering presence of the law. It is as if the public is presented with a stark choice: if you really believe something is morally important, take it to court or pass a law about it. But if you believe the courts should stay out of it, or that there should not be a law, then shut up and leave the matter to private choice. And when we say "private choice" in this country, we characteristically mean one thing: that we ought not to pass moral judgment on each other's choices, much less issue public moral condemnations of the practices of different groups, a patent offense against pluralism.

It is this dilemma, I suspect, that has made it so hard to have any serious debate about the moral uses of freedom, the difference between responsible and irresponsible moral choices. I have met few serious feminists who would deny in private that there can, and are, some wrong and irresponsible abortion decisions. I have met practically none, however, who are willing to admit that publicly, or to sanction any moral discourse at all for fear of providing ammunition to those who would like to see Roe v. Wade overturned. As much as I deplore elevating expediency over principle, I have to admit it's a smart tactic. The danger in our country of opening moral discussion about private matters is that someone or other is likely to have the idea that "there ought to be a law."

Meanwhile, unfortunately, because we do let the law legislate considerable morality, or use moral arguments to overcome existing bans, a great deal of the work of ethics ends up being done in courtrooms and enshrined in legal decisions. The Ninth Circuit Court of Appeals has recently seen fit to judge what counts as human dignity, as ethical an issue as there can be. I was surprised to learn that, should my life end in the dependent, weak, and messy condition of a baby, I will have lost my dignity. I looked at a newborn baby recently - unable to talk, stinking of feces, not a thought in her head, utterly dependent - and just failed altogether to note the absence of dignity.

It is hard, in fact, to think of a more superficial moral theory of human dignity than the one voiced in the Ninth Circuit's decision. Yet by virtue of its pronouncement in a court decision that theory is likely to have far greater public weight than anything put forward by the field of ethics. …

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