The argument often goes that morality cannot be legislated, that to make and enforce a law based on some moral standard is a terrible violation. Yet, how accurate is this claim? Consider the matter of abortion. Advocates for the cause of life hold that abortion is the snuffing out of innocent life. Conversely, worshipers at the altar of choice take one of two paths: either they are “personally opposed” to abortion, but still affirm a woman’s right to choose – “My body, my choice” – as supreme; or they genuinely do not believe – or claim not to believe – that the unborn child being aborted is in fact a human being. It is important to point out that our moral imagination has always informed our legislation, just as it has and must inform our personal opinions. There is no other foundation upon which the law may reside. Stated another way, if based on anything other than an objective moral understanding, the law loses its gravitas, and falls into irrelevance.
When one man kills another we call it murder. This man is arrested, if guilty he is sentenced, and on the world spins. Imagine how laughable would be his defense if he argued that his actions were justified because it was his choice to kill his neighbor, perhaps because he saw his neighbor as an obstacle to his own happiness. What court would rule in favor of this man? What judge would say that he has the right to kill whomever he chooses, for whatever reason he chooses? No judge would do this. No jury would vote this way. To think otherwise is insanity, and why?
It is insanity because the wanton destruction of innocent life violates the moral imagination. The soul is outraged at such injustice, because buried deep in the soul – deeper in some than in others, certainly – is the unlearned understanding that murder need no law to be a violation of the natural order. If a law is based solely on personal preference, then such a law, lacking deep roots, carries no real weight. It is precisely the moral underpinning that lends power to the law. A law that has no moral foundation, a law that is immoral, is not a law to be tolerated. Why is the penalty for murder so much more severe than the penalty for theft? It is because the value of a human life is infinitely greater than the value of anything made by man. This is not a subjective idea. Human life is of infinite value; it’s taking is a grave violation of the natural order. The law needs moral roots. If morality cannot be legislated, then society must rethink the very basis of the law, for how can one argue for laws if they are to be divorced from the moral imagination? What makes murder, rape, suicide, or abortion wrong if not the inherent violation of the moral imagination?
Perhaps our laws should be based not on morality, but on fairness. But then, from where does one’s sense of fairness come? As C.S. Lewis points out in Mere Christianity, our sense of fairness comes from somewhere deeper and older than personal opinion. We need not be taught offense at having been done wrong. We know in our inner being that wrong has been done, and we protest. Our sense of fairness, which is to say our sense of justice, is ultimately traced back to our moral imagination: some things are right and other things are wrong because there is a universal foundation of right and wrong. Our laws are already based on fairness, and our sense of fairness is based on something universal. A law divorced from justice cannot be tolerated.
If we so desire to live in a just society, we must accept that morality is legislated, and just as easily, immorality as well. This is not to say that morality is created or determined by legislation. As Solzhenitsyn points out when speaking about the West’s spiritual dependency on the law,
“Any conflict is solved according to the letter of the law and this is considered to be the supreme solution. If one is right from a legal point of view, nothing more is required.”
This is indeed our reliance on the law to determine right from wrong. We equate the law with morality, yet legislation should not determine morality, but rather clarify it. Sometimes man will get it wrong. He was wrong in Roe v. Wade, just as he was wrong in Obergefell v. Hodges, just as he was wrong all those years ago when slavery was a legally protected institution – a “right,” if you will.
Let us consider the side of those who fight for the right to choose. After all, both Roe and Obergefell legally enshrined the rights that in all the wide expanse of human history have been considered immoral, yet their great supporters have no problem presenting a moralistic appeal for their legality. The right to choose is beyond question the ethos of our time. All issues, it seems, boil down to one’s right to choose, but is choice a right? From where do rights come? If choice is a right, then why are so many choices legally barred from us?
If one considers our founding documents, then it would seem that our rights are bestowed by God. If true, this means that our rights are in fact morally based and unalterable, making the right to choose a moral issue. This line of argument quickly tears itself apart, though, as it should be clear to see. If God bestows the right to choose, and man chooses an action that violates God’s natural order, then man’s right to choose is not absolute, and his choice is either sinful or virtuous based on its application. If one’s right to choose is not absolute, is it a right at all? Of course it is, but rights imply freedom, and freedom requires responsibility and restraint. Therefore, one’s right to choose is not unlimited. To treat it as unlimited is to introduce chaos into the natural order.
Let’s say for the sake of argument that rights come not from God, but rather are just a part of a nebulous natural order. How, in this scenario, are rights determined – by man, or by “nature”? The idea that rights exist naturally implies a metaphysics that leads inevitably back to God. If rights are man made, then they are transient. They may come and go according to the whims of the era. But if a right is not universal and eternal, then is it a right, or just a desire? It would seem the latter, which begs the question – is a law based only on desire really a law? Can personal desire be legally binding? Your desires may not be mine – in fact, I should hope that they are not – in which case neither of us should be under any obligation to concede to the desires of the other. No, and in fact this notion actually defeats itself as well, as the legislation of desire – what for it – takes away one’s right to choice. If that person’s desires are built on the right to choose, then they must honor my choice to believe otherwise, but so believing creates a dichotomy: why their choice but not mine? Therefore, a right to choose is no basis for legislation.
One always has the right to choose, but what we see today is that we want choice without suffering the consequences that naturally accompany such choices. Consequences imply wrongdoing; wrongdoing brings shame and guilt; guilt makes happiness, understood in modern terms as pleasure, difficult if not impossible; therefore we must eliminate anything that might make us feel guilty or shameful, i.e., consequences for our actions. Returning to Solzhenitsyn we find,
“… a society which is based on the letter of the law and never reaches any higher is taking scare advantage of the high level of human possibilities. The letter of the law is too cold and formal to have a beneficial influence on society. Whenever the tissue of life is woven of legalistic relations, there is an atmosphere of moral mediocrity, paralyzing man’s noblest impulses.”
Modern man believes that legal might makes moral right. He is perfectly wrong, and his materialism will continue to destroy his spirit. Because we have turned our backs on the Spirit and embraced all that is material with such excessive zeal, we find the most heated battles taking place not over matters of war and peace, but over the very essence of human life itself. We are children so concerned determined to have cookies for dinner that we are unaware of the fact that our bike is being stolen from our own garage. Our spiritual life has been suffocated by our having placed too much hope in political and social reforms. Our society is threatened from within, and this path leads to ruin.
Our problems stem from the belief that the law grants peace, happiness, and moral direction. It does not, but rather is meant to reflect what we believe is peaceful, good, and moral. If we submit to the morality that underwrites our laws, rather than changing the laws to reflect our transient understanding of morality, we will find peace, and happiness. Man does not create that which is moral. He may only hope to serve the moral order well.