Morals and Laws

In the palmy year of 1874 the Women’s Christian Temperance Movement (WCTM), which had been founded in Cleveland, Ohio, presented a petition to Congress in Washington calling for the ‘making, selling, importation and exportation of intoxicating liquors’ to be banned. A year later, campaigning for an Amendment to the Constitution that would give effect to this call, the WCTM described drinking as ‘a crime against God.’ Given the appearance of the word Christian in the WCTM’s name, this suggests a surprising ignorance of the miracle, reported in the Gospel of St John, chapter 2, verses 1-11, which occurred during the wedding at Cana in Galilee, in which the Saviour turned water into wine; his very first miracle, according to John, and the one that announced his Messiaship. Very good wine too, the gospel tells us. (It was not much of a miracle, really; water turns into wine all the time at vineyards around the world.) Christ himself, it seems, was not of the same mind as the Christian ladies of Ohio.

The Christian ladies did not at first succeed, but in less than half a century the Prohibition movement had its triumph: the Eighteenth Amendment, adopted in 1919, ushering in the era in US history prompting a massive and violent criminal industry to flourish on the back of it, and making celebrities of Al Capone, Lucky Luciano, Bugs Moran, Legs Diamond, Dutch Schultz, the Purple Gang, and the Thompson submachine gun – employed to iconic effect in the Saint Valentine’s Day Massacre in the garage at 2122 North Clark Street in Chicago’s Lincoln Park neighbourhood.

The Eighteenth Amendment was overturned by the Twenty-First Amendment in 1933, the only time an Amendment has been repealed. Common-sense moves very slowly sometimes - in this instance it took fourteen years. One wonders what the interval will prove to be for the overturning of the betise of Brexit in the hapless UK.

Although the manufacture, import and sale of alcohol was re-legalised in the US by the Twenty-First Amendment, other mind-altering substances that had been mown down by the Prohibitionists’ sickle remained illegal. Before the First World War it was legal and commonplace for opium (particularly in the form of laudanum) and cocaine to be bought and used. Sherlock Holmes snorted cocaine to help solve crimes. One could buy laudanum in Boots the Chemist. It was the go-to remedy for headaches, period pains, malaise, life in general. In the UK these drugs were first outlawed in military settings, chiefly the trenches of Flanders and Picardy; troops were expected to suffer in fully conscious mode. Despite the previous free availability of these substances, economies boomed and empires grew – somehow: a mystery, given the dire effects that the availability of mind-altering substances were believed to have by the WCTM and others of that ilk. Manufacture, sale and consumption of these drugs are still criminalised, keeping criminals still in work and still burdening society with heavy policing costs.

The lesson taught by the Eighteenth Amendment is that using law to enforce morals – given that the morals in question tend to be those of a zealous minority – is rarely a good idea. Some of the issues at stake are as follows.

Controversy over the relationship between morality and law is perennial. An example that illuminates the issue well is the Hart–Devlin debate prompted by proposals to decriminalise homosexuality in the United Kingdom. In 1957 a report, commissioned by the UK government and known as the ‘Wolfenden Report’ after its chairman Sir John Wolfenden, recommended that ‘homosexual behaviour between consenting adults in private should no longer be a criminal offence.’ Two years later a senior and influential judge, Lord Devlin, delivered a lecture to the British Academy, later published as The Enforcement of Morals (1959), arguing against the report’s recommendations. He said that law exists to promote uniformity in society – ‘It is generally accepted that some shared morality [is] an essential element of any society’ – and that this was the basis on which laws had been enacted against homosexuality because there was a ‘strong feeling of disgust in society’ against homosexual behaviour, an indication that ‘the bounds of [tolerance] are being reached … No society can do without intolerance, indignation and disgust; they are the forces behind the moral law.’ He did not reflect on the significance of the fact that laws against homosexuality as such had been enacted only in 1885, at the height of Victorian moralism, and the ‘uniformity’ of society which predated their introduction had not until then been sufficient to give legal force to the disgust of the disgusted - though admittedly anal sex, whether homosexual or heterosexual, was illegal and punishable by hanging (the death penalty for this was rescinded in 1861) by a Henry VIII law of 1533. The proscription against anal, or any ‘unnatural’, sex was ultimately derived from Deuteronomy, chapter 20 (also Leviticus, chapter 20, and Romans, chapter 1). Just ten years after its introduction the 1885 law was applied in the case - the persecution - of Oscar Wilde, most of whose life before the 1885 law had been lived in circumstances where homosexuality was not illegal.

The philosopher H.L.A. Hart responded to Devlin in his book The Concept of Law (1961), arguing that although moral considerations may influence the law, law and morality are different and ‘there must remain a realm of private morality or immorality which is, in brief and crude terms, not the law’s business’. He cited John Stuart Mill’s principle in On Liberty(1859): ‘the only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others’. On empirical grounds one can see, Hart pointed out, that law and morality are distinct; laws about registering motor vehicles and prescribing the conditions under which they can and cannot be operated (e.g. blood alcohol limits in drivers, which side of the road to drive on, etc.), are not matters of morality, while moral disagreements over many issues such as abortion, premarital sex, euthanasia, meat-eating, truth-telling in circumstances where harm could result, the limits of loyalty, the death penalty, exist within a single pluralistic society. ‘Plural moralities in the conditions of modern large scale societies might perfectly well be mutually tolerant … there actually are divergent moralities living in peace’ not only without the force of law but indeed requiring that none of them be given the force of law to the detriment of others. Elsewhere in his discussion of the question, in particular as applied to abortion, Hart repeated his argument that the reverse pressure should be applied; that is, that moral evaluation of laws, not legal enforcement of morals, is the right way round.

As an example of how in practice such questions play out in society, one notes that the decriminalisation of homosexuality in England and Wales occurred in 1967 – a decade after publication of the Wolfenden Report recommending it – and that in the 1980s conservative reaction to this liberalisation took the form of trying to limit its effects, for example by forbidding schools and local authorities to ‘promote’ homosexuality (e.g. by neutral discussion of homosexuality in sex education classes; by making publications on homosexuality available in local libraries). This reaction is an instance of a pattern: when advances are made in progressive causes, there will be a counter-campaign, which might take time to develop, sometimes insidiously; consider how, following the achievements of the civil rights and second wave feminism movements of the 1960s and 1970s, a conservative backlash aimed at ‘political correctness’ emerged in the 1980s and ignited a renewed heightening of conflicts. Today’s ‘wokism’ and the Trump backlash against anti-discrimination campaigns is a further chapter in this story, because of the incompleteness of the gains made by the earlier movements – including real changes in attitudes and practices – and the success of their opponents in maintaining discriminatory structures.

A law–morals conflict essentially identical to the homosexuality debate is that of abortion, manifested in the furore resulting from the Trump-majority Supreme Court in the United States overturning, in its 2022 Dobbs v Jackson Women’s Health Organization ruling, the 1973 Supreme Court ruling in Roe v Wade that abortion is a right under the ‘Due Process’ clause of the Fourteenth Amendment to the US Constitution. In one way Roe’s reliance on this point might appear surprising, given the obvious dangers of ‘back-street abortion’ and the pressures that can compel women to choose to terminate pregnancies – both practical considerations. But arguments in favour of a right to abortion in Roe rested in large part on the right to privacy implied (not specifically protected) in the Constitution, and its 2022 overturning rested on the justices’ claim that the practice of abortion was ‘not deeply rooted in this Nation’s history or tradition’ and was ‘not essential to this Nation’s scheme of ordered liberty’.

As it happens, the majority decision in Roe (written by Justice Harry Blackmun) also cited tradition, stating that proscription of abortion at least before ‘quickening’ did not have roots in the English common-law tradition. But whereas the 2022 decision made crucial use of the ‘tradition’ argument, the 1973 decision did not; in its case a right to privacy was key. The 2022 argument invoked appeal to tradition as the (allegedly) established and assumed common moral outlook of a community, while the 1973 reference was to something quite different: the tradition of legal precedent. The 2022 view implies that the mere antiquity of a (moral) tradition is a justification for deciding legality (which would, if pressed to its conclusion, license e.g. criminalising homosexuals and burning people at the stake if they did not share your religious outlook). The 1973 decision relies on a concept – that of privacy – which has ethical grounds that in Hart’s fashion are a test of the appropriateness of law and, if anything, deserves legal protection, not the reverse – perhaps at most, as with freedom of expression, requiring qualification for special and defined purposes, and for these only.

Here a direct clash of perceptions is at issue. Privacy, as a right enshrined in human rights instruments such as the UN’s 1948 Universal Declaration (Article 12) and by implication in various of the Amendments to the US Constitution, is typically justified by appeal to its importance to individual autonomy, entailing the inviolability of control over one’s own body and possessions, one’s correspondence, personal data, and home and family life (except for ‘lawful’ purposes, a qualification added in the UN’s 1976 International Covenant on Civil and Political Rights, Article 17). But these justifications in turn rest on assumptions about why these things matter. These are ethical assumptions.

Ethics – of which moral considerations are a subset – concern the character of what sort of person one is and how one lives. In order to be and to live in a certain way that is one’s own choice and responsibility, one has to be autonomous in respects relevant to this. If one lives at the behest and under the control of others, with no choice about what to be and do, one is heteronomous and not a responsible agent – indeed, not an ‘agent’ at all. Therefore privacy is a fundamental requirement of life as a self-determining individual within the larger constraints of accepting life among others in society, and as having a sphere of action within those constraints that is securely one’s own. Laws criminalising abortion deny the component of that right which gives a woman the autonomy over her body and life to decide whether to carry a pregnancy to term. Since doing the latter is an entire-life-changing matter, this denial is hugely consequential.

The ‘tradition’ invoked by the 2022 Supreme Court is fundamentally one whose moral tenets ultimately take their content, at least implicitly, from the idea that life is god-given and only the deity has the authority to take it away. This is what ‘the sanctity of life’ means (though it is invoked far less when war and the death penalty are at issue than when foetuses are, the innocence of foetuses contrasting with that of condemned malefactors and enemies in combat). This entails that one’s life is not in fact one’s own, but belongs to another agency – the deity – and that what one can do with one’s life is circumscribed by that fact. For example, religious moralities outlaw choosing to end one’s life since one does not own it; proscriptions against suicide have the same ultimate source as anti-abortion views.

The arguments against having one’s life dominated by the moral predilections of a particular religious sect’s more zealous partisans do not need stating.

The 2022 justices spoke of ‘this Nation’ as if – against all empirical evidence to the contrary – US society is a single homogeneous thing. Hart’s point about moral pluralism is probably more exemplified by the United States than anywhere else on the planet. This fact alone should be a reason for not trying to corral the various and disparate populations constituting US society into one mould in every respect, now that the melting-pot ideal – a worthy one in other respects – has failed of realisation, perhaps indeed has been shown to be unrealistic. In the usual way of convenient inconsistencies, other tranches of US public policy are laissez-faire to a fault, especially in economic affairs; the latitude there granted to – indeed encouraged in – businessmen and financiers in their practices, and the restrictions now reimposed on women in relation to their own bodies, makes a very stark contrast.^[1]

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^[1] I draw for this Substack on my Discriminations (Oneworld 2025) pp 44-50