How Conservative Should Think About Banning Vices

Postliberal Republicanism and Rights, Part III

Note: This post is the third in a multi-part series on how postliberal conservatives should think about rights. Posts One and Two are here. This post discusses how postliberals should approach the prohibition of morally wrong actions.

Tim Keller recently critiqued evangelical Christians for not developing a political theology, that is, a systematic theory of how to apply religious beliefs to public policy. He correctly points out that Christians do not want to penalize every sin. Specifically—writing in the context of an impending Supreme Court case about abortion—Keller claims that most evangelicals want to penalize abortion but do not want to penalize idolatry (i.e. worshipping gods other than the God the Bible). “Since we can't simply say, ‘If the Bible says its sin it should be illegal’—how do we choose which morals to politically champion?” Keller aims to prevent Christians from dividing over politics by accepting that the political implications of Christianity are not always clear. Keller’s piece provoked a response from a variety of commentators, including Adam Carrington and Erick Erickson.

Keller’s challenge is well taken—indeed, it applies not only to Christianity but to all ethical and political worldviews. Should an action be illegal simply because it is wrong? If not, then which wrong actions should be illegal? Are there “harmless wrongs” that the state ought not to forbid?

In America, one often hears that the state shouldn’t “legislate morality” or that people have a right to do anything so long as they aren’t “hurting anyone.” This position, which dominates in both Left and Right versions of liberalism, derives from John Stuart Mill’s famous “harm principle,” which holds that “the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection,” i.e. “to prevent harm to others.” “His own good, either physical or moral, is not a sufficient warrant” to compel him to be good (Mill 1859, 12-13). While there are disagreements about how to define and prevent harm, the typical American endorses a vague version of Mill’s harm principle. Live and let live!

I will argue that this popular view is wrong and that, in fact, the law may compel people to perform virtuous actions and to refrain from performing unvirtuous (“vicious”) actions. As we saw in a previous post, postliberal conservatism ought to abandon the idea that the state exists solely to protect individual rights. Individual rights drive from, and must remain rooted in, a framework of moral duties oriented toward natural human goods—both public goods (i.e. the common good) and/or private goods. An essential part of the common good is the cultivation of virtue, both in the public life of the citizenry and in each individual citizen.

Nevertheless, drawing upon natural law theory, I will argue that the state generally ought to refrain for prudential reasons from punishing minor vices. People do not have a “right” to perform vicious actions, but in many cases they ought to be given tacit “permission” to perform them, particularly those that cause no direct harm to others. Sometimes the most appropriate position is to criminalize a vicious action while treating violators leniently.

This type of “political theology” is attractive in that it permits virtue in the public realm while preventing Puritanism or harsh intolerance. It adapts itself to the reality of human sin without excusing or ignoring moral norms. It is idealistic without being unrealistic. And it permits faithful Christians to work with others despite disagreements about the moral law.

The Common Good Involves Virtue

Thomas Aquinas holds that human law ultimately derives from natural law, which originates from God’s creative design and is known through reason. (All page numbers refer to the Cambridge University Press edition of Aquinas’ political writings.) Thomas argues that the natural law encompasses “everything to which a man is inclined according to his nature,” including virtue, since all men have a natural inclination to pursue virtue (Aquinas, 119). Politically, because “the end of law is the common good … human laws should be adapted to the common good” (Aquinas, 138). The common good refers to the collective flourishing of members in a political community, especially natural temporal goods such as peace, friendship, and the education of children. Among the “many things” comprising the common good is human virtue. Thus, even supposedly private actions implicate “the natural common good” to the extent that they promote or hinder human flourishing (Aquinas, 120).

C.S. Lewis provides a good illustration of the need for virtue in a polity. He invokes the image of human society as a convoy of ships travelling through the ocean. There is danger that the ships will either “drift apart from one another, or else collide with one another and do one another damage” (Lewis 2002, 66). In order for this not to happen, the individual ships must be in good shape; a ship with a faulty engine or steering mechanism will fall behind or veer wildly. The only way to keep the convoy safe is to ensure that each individual ship is seaworthy enough to stay in formation. Likewise, individuals without virtue will find it very hard to do not harm to others, much less to help them. So even “private” actions affect the community’s ability to achieve the common good to the extent to which they affect people’s ability to follow the rules and to lend society their aid.

It follows that, if virtue serves the common good, then the promotion of virtue falls within the scope of the state’s powers. Thomas concludes that “there is no virtue whose acts may not [in principle] be prescribed by the law” (2002, 142). “Since assisting individuals in making good individual determinations [about conduct] is inextricably connected to the common good, the law orients to the common good even when it guides individuals in making particular determinations for themselves” (McCall, 302). The same is true of unvirtuous or “vicious” acts, which may be punished if doing so violates the natural law.

The state is also needed to guide and harmonize the actions of the community in pursuit of human happiness or fulfillment. Simply to refrain from hurting one another is not the purpose of political communities. C.S. Lewis makes the point that even a perfectly orderly convoy of ships would be a failure “if it were meant to reach New York and actually arrived at Calcutta” (Lewis 2002, 67). So too, humans must be encouraged to reach a goal or end (or telos in Aristotle’s terminology) which is higher than mere animal preservation.

Thomas’ Argument Against Banning Vices

Nevertheless, Thomas believes there ought to be sharp practical limitations on laws that compel virtue or punish vice. While all vicious acts violate the natural law and thus are morally wrong, not all morally wrong acts ought to be criminalized. This is because “the laws imposed on men should also be in keeping with their condition,” and the condition of many people is so poor that “the same thing is not possible to one who does not have the habit of virtue as is possible to a virtuous man” (Aquinas 2002, 140). Just as children are allowed to do things that would be illegal, or at least shameful, if done by adults, “many things are permissible to men who are not perfect in virtue which would not be tolerable in a virtuous man” (Aquinas, 140).

Moreover, Thomas argues, it is not only counterproductive, but even dangerous, to punish all vices or prescribe all virtues. Aiming at too high a standard of morality will inevitably lead many people to break the law, undermining respect for law and the habit of obedience that ensures the stability of a political community. If the state demands that the citizens “abstain from all evils,” he warns, “imperfect men, being unable to bear such precepts, would break out into still greater evils” (141). The best option is a gradual approach that does not abandon moral norms but rather tailors crimes and punishments to the unique culture and condition of the people. The laws ought to aim as high as possible within any given cultural context, seeking to “lead men to virtue not suddenly, but step by step” (Aquinas, 141).

Two guidelines may orient decision-making about the lawfulness of vices. For Thomas, human laws should (1) focus on punishing serious evils, particularly ones involving inter-personal harm, and (2) be lenient enough that the average person can obey it. “And so human laws do not prohibit all the vices …, but only the more grievous ones, from which it is possible for the greater part of the community to abstain; and especially those which do harm to others, without the prohibition of which human society could not be maintained” (140). “Victimless” crimes may harm the public in a general sense but do not cause a public uproar, whereas crimes that cause strife between people make common life impossible. If the former wrongs go unpunished, the community will fail to realize its full potential, but if the latter go unpunished, the community will destroy itself with reprisals and blood feuds.

It is important to note that Thomas’ position depends not on respect for human freedom in the abstract but rather on a somewhat condescending, paternalistic assessment of the moral capabilities of the average person. Contrary to some commentators, Aquinas is not a proto-libertarian. Law’s ultimate goal is perfect virtue, and governments should always be looking for ways to incrementally increase the moral standard inscribed in their legal system.

Some Applications

It might be helpful to flesh out some examples of these natural law principles in action.

In a surprising passage about whether to tolerate the “rites of unbelievers,” Thomas discusses prostitution. Just as the omnipotent God tolerates some evils, so too in human communities “those who rule rightly tolerate certain evils, lest certain goods be impeded or certain worse evils incurred. For example, Augustine says at De Ordine II, ‘If you banish whores from human affairs, everything will be disrupted by lust’” (Aquinas, 273). Aquinas, following Augustine, seems to be saying that most men are unable to abstain from premarital sex, such that, if there is no outlet for their sexual desires, they will corrupt innocent women, which is worse than prostitution. This argument may or may not hold true today, but it illustrates the remarkable extent to which Thomas thought the requirements of the natural law could be relaxed in the real world.

Perhaps the best illustration is Prohibition in America. In the late nineteenth century, many Americans became concerned with the damage wrought by drunkenness, particularly physical violence and poverty. Heavy drinking by the breadwinning patriarch often drained family budgets, leaving his wife and children starving. Even today, in about half of all sexual assaults, either the victim or the perpetrator have been drinking.

Americans reacted by passing the 18th Amendment. From 1920 to 1933, the sale of intoxicating liquors was illegal. The experiment failed. While indicators of drunkenness declined, many people were unwilling to obey the law. Illegal production and sale of booze spiked, respect for the law plummeted, deception proliferated, and organized crime rose to meet demand that could not be satisfied legally. It was during Prohibition that gangsters like Al Capone decimated cities like Chicago. Despite beefing up enforcement, the federal government could not contain the rise in crime.

Prohibition arguably was not adapted to the moral character of the American people. And, given the eagerness of humans to alter their brain state, a total prohibition of brain-altering substances is probably imprudent at all times. Even if theoretically beneficial, it would face massive and ongoing resistance.

Prohibition somewhat resembles the War on Drugs. Since drug addiction harms both individuals and the community, addictive hard drugs ideally should be illegal. And “the greater part of the community” can “abstain” from hard drugs like heroin and cocaine. Yet the scope of enforcement should depend on conditions on the ground. Has the War on Drugs checked their proliferation? How much of the harm of addiction fall on the addicted, and how much falls on innocents? Some argue that drug addiction would increase if this or that drug were legalized, while others claim that the costs of enforcement are too high. Laws against marijuana are relaxing as people come to believe that the costs of enforcement dwarf the benefits.

What about Tim Keller’s initial challenge: Why should abortion be illegal while idolatry is not? As it turns out, this question is easy to answer, at least if one assumes that a fetus is a living human person. Abortion is serious because it produces great harm to others—i.e. the unborn children—in a way that idolatry, which primarily harms God, does not. Moreover, abortion is certainly something from which most people can abstain. Thus, abortion would seem to be the perfect candidate for criminalization. Still, conservatives must recognize that in our society people plan their lives around the availability of consequence-free sex. Without broader changes in our sexual culture, enforcing anti-abortion laws will be difficult.

Conclusion: Postliberal Principles for Politics and Morality

I will conclude by proposing several general principles for applying morality to politics.

1. Abandon the Goal of Neutrality. Conservatives need to shed any idea that the state should be “neutral” between competing conceptions of morality. Even if it were possible, neutrality would fail to serve the common good which is at the heart of the state’s mandate. While a certain amount of pluralism promotes civil peace, nothing should prevent the community from endorsing moral values or incorporating them into public policy. In the absence of a communal conception of what life is for, an atomistic, hyper-individualistic liberalism emerges by default.

The power of government includes the right to promote religion. As several Christian commentators have recently pointed out, the founders believed that government should promote religious belief and practice. In a future post I will argue that religious liberty is not only compatible with, but required by, natural law theory. Yet protecting liberty on conscience does not require state neutrality about religion or preclude the state from benefitting religion in a variety of ways.

2. No one has a right to commit wrong. The state may not only promote virtue but penalize wrongdoing. This mandate encompasses “morals legislation” such as regulations on gambling, prostitution, and pornography. “Privacy” rights should be limited. Liberalism declares many behaviors—particularly sexual behaviors—to be “off limits” to regulation due to their “private” nature. While sensible procedural limits on governmental intrusion (such as the Fourth Amendment) are permissible, shielding entire categories of behavior from oversight is unjustifiable. And the state must never appear to endorse vice.

3. The government ought to be lenient toward vice. Nevertheless, religious conservatives should refrain from supporting stringent moral restrictions on personal liberty. Laws must be tailored to their social and cultural context. Decades of individualistic hedonism have broken down the institutions necessary for moral formation and self-restraint, such as the family, civil society, and the church. Any attempt to enforce strict rules would provoke a damaging backlash. Social conservatives must recognize the precarity of their position and seek to convince their fellow citizens rather than hector them.

The conservative movement ought to refrain from moralism for a political reason as well. Historically, those on the Right, especially Protestant Christians, have been more “Puritanical” and moralistic than those on the Left. This phenomenon pushed many Americans, who have an instinctive love of liberty and disdain for coercion, to embrace the Left. Recently, however, progressivism has become far more coercive, hectoring, and Puritanical than the Right, as seen in cancel culture, political correctness, and opposition to free speech. Conservatives have an opportunity to appeal to Americans who rightly recoil from the excesses of the “woke” far Left. The imposition of an unrealistically high moral standard would erode this appeal.

Rather than aim for perfection, conservative energy would be better spent rebuilding the foundations of virtue. We need laws that, for instance, encourage marriage, discourage divorce, and promote community with others through friendship and through civil associations. The benefits of rebuilding a healthy society are uncontroversial. Moral regulations must build upon this foundation rather than grate against it. In this way, conservatives can support incremental progress toward traditional morality while avoiding the twin dangers of judgmental moralism and amoral libertarianism.

Bibliography

Abbey, Antonia, Tina Zawacki, Philip O. Buck, A. Monique Clinton, and Pam McAuslan. “Sexual assault and alcohol consumption: what do we know about their relationship and what types of research are still needed?” Aggression and Violent Behavior vol. 9, no. 3 (May 2004): 271-303.

Aquinas, Thomas. Aquinas: Political Writings. Ed. R.W. Dyson. Cambridge: Cambridge University Press, 2002.

Lewis, Clive Staples. The Complete C.S. Signature Classics. San Fransisco: HarperOne, 2002.

McCall, Brian M. The Architecture of Law. Notre Dame: Notre Dame University Press, 2018.