In this delightful sketch from A Bit of Fry & Laurie, Stephen Fry asks whether the qualities of the English language are a function of the characteristics of the English people, or whether those qualities “come extrinsically, extrinsically, from the language itself? It’s a chicken and egg problem.” So today, we’re talking about the chicken-and-egg problem of law and moral consensus.
Greg writes that “Law can’t be legitimate if it’s not grounded in a moral consensus. All law presupposes a moral framework. You can’t ban public nudity without some implied judgment on the moral status of public nudity.” It seems to me that there are (at least) two disparate claims set forth here: a) that law must be grounded in moral consensus, and b) more subtly, that law implies moral judgment.
But the two don’t entail each other necessarily. The legislature can issue laws that reflect society’s moral consensus without passing judgment on whether that consensus is good, i.e., without making a moral judgment. (Of course, we are then presupposing a moral judgment on whether that particular mode of issuing laws is a good one, but I don’t think that’s what Greg is talking about.) On the flip side, the legislature (or monarch, or tyrant, whatever) can issue laws that do imply a moral judgment – i.e., banning public nudity because public nudity is morally bad – but that don’t reflect anyone’s consensus.
But here comes the chicken-and-egg issue, because the law often serves an educative function as well as its commanding one, i.e., people tend to view as wrong something that the law tells them to perceive as wrong. So moral consensus can follow the law as well as it can precede it.
Still, I think that we’re encountering some confusion in the marriage debates in part because we’ve been operating with two different understandings of how law is made in democracy, but without addressing the difference between them. Law can be made to reflect societal consensus without taking a stand on the metaphysical status of the act forbidden or commanded, or it can be made as a mandate to do that which is good or avoid what is bad as determined by moral judgment. And the difference between these two modes of making law doesn’t become clear in cases of societal moral consensus, such as public nudity. In other words, when there is moral consensus, we don’t really know whether the law exists simply because of the legislator’s moral judgment or because the legislator is reflecting a broad societal moral consensus in issuing laws against public nudity.
Rather, we see the difference between these two ways of making law in cases of dissensus, such as we’re finding today with the definition of marriage. Has the state always favored traditional marriage because of societal moral consensus, or because the state/legislator has reflected a (good, in my opinion) moral judgment that traditional family structure is morally good? The answer could be “both,” in the sense described above, since societal consensus might have come in part from the practice of traditional marriage ensconced in the law. Which might be leading to some of the current confusion: “The state can’t legislate morality!” versus “The state has always legislated morality; why should it stop now?” But if the answer is only ‘societal consensus,’ we’re stuck when societal consensus shifts.
Where does this leave us? Minimally, I think it means that we need to figure out what type of government we really have, and I think conservatives have been ambiguous on this in the past. At times we want “pure democracy” in the sense of simple majoritarian rule, which maps onto the idea of reflecting societal moral consensus: i.e., “legislate what we tell you to legislate and stay out of morality. Traditional marriage is good because it’s what the people want.” At other times we want democracy with a moral standard – something that comes “extrinsically, extrinsically” from society itself. In other words, we want Congress to legislate that which is independently good, meaning either good for society or good by a moral standard higher than humans.
But if all democracy is is a reflection or function of society’s moral consensus, there might not be much left for traditional marriage.