Laws don’t exist merely to do things; they must also stand for the ethical principles that sustain a stable and productive society. Laws create moral codes of conduct as well as a pragmatic ones. It is profoundly puzzling to me that so many regard this as a controversial statement, especially in a country founded by two documents that are steeped in values.
There are laws against stealing to discourage theft, but also because the official voice of society must make it clear what the values of that society are. The laws against stealing state that theft is wrong. The law expresses societal consensus about acceptable and unacceptable conduct; it also reinforces and strengthens that consensus.
The fact that this is a proper function of law doesn’t mean that those who write and pass laws or the public understand any of this. The relationship isn’t taught in schools, and while one might encounter this concept in law school or a good college government or philosophy course, one can be well-educated and never think about this at all. In other words, the officials who make laws often don’t have a clue what they are doing, and neither does anyone else.
Two glaring examples have arisen in my neck of the woods, the District of Columbia, where I work, and Virginia, where I live.
In Virginia, Virginia Senate declined to pass a bill that would have decriminalized adultery in the state. Currently, adultery is a Class 4 misdemeanor. Sen. Scott Surovell (D–Fairfax) introduced a measure that would have reduced adultery from a criminal offense to a civil one, keeping the criminal law’s fine of no more than $250. Thirteen states have repealed similar adultery statutes in recent years, and only about a dozen states still treat the act as a crime. The immediate criticism of the Virginia decision was predictable and focused on “legislating morality,” as if that isn’t a legitimate function of law. What critics, usually from the left, mean when they use this catch phrase is “How dare the government interfere with private conduct that is nobody else’s business?” Well, is spousal abuse and child abuse private, then? Bigamy? The reason adultery is illegal is that it hurts people, wrecks families, traumatizes children, and destabilizes society. It is completely appropriate for society to say “This is bad for everyone, so don’t do it.” The law is how we express such messages. Continue reading