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[Richard Painter, guest-blogging, March 25, 2009 at 11:49am] Trackbacks
Hypocrisy?:

This theme reminds me of a story about the time a Governor of New York was running for President in 1932. The Governor spent most of his time at campaign rallies, in union halls and among the common people he hoped would vote for him in November. Occasionally, however, he kept his ties to prominent families in New York society, whom he hoped would at least tolerate him in office as "one of us."

One of the Donners, I believe it was William H. Donner, invited the Governor to a family wedding. The Governor accepted on one condition, that there would be no liquor served at the wedding. Prohibition was the law, and a candidate for President could not be caught amongst people who were breaking the law. Donner agreed.

The wedding reception that day was a strange sight. Around the bar stood members of the most prominent families in New York, drinking ice tea and lemonade. They appeared unhappy. Their host Mr. Donner was also unhappy.

Finally, the Governor arrived. He got out of his car, looked around and then acted as if he had forgotten something. He instructed his driver to go back into town. The Governor meanwhile greeted the wedding guests and waited. When his driver returned the Governor retreated into Mr. Donner's library.

After a while, Mr. Donner went to the library to tell the Governor it was time for lunch. Governor Roosevelt was sitting in a leather armchair holding up his glass.

"A drink Mr. Donner?"

"You son of a . .. . !"

F.D.R. was elected that November and took office the following March. Prohibition was repealed. I understand Mr. Donner moved to Canada.

Despite the hypocrisy here, I have some sympathy for both Mr. Donner and Governor Roosevelt. As I discuss in chapter 9 of my book, religious and not-so-religious groups have at various points in our history lobbied hard for federal regulation of personal morality. Prohibition was the culmination of a thirty-year campaign, and the issue influenced elections. Proponents finally got what they wanted, and it was of course a failure.

While federal agents were busy busting up bars in the 1920's, Wall Street was intoxicated in a different way. Much of what was going on in the securities business was already illegal under the common law of fraud. Nobody seemed to care.

This is far afield from the specifics of government ethics regulation, but my point is that there is no point having rules that almost everyone ignores. Doing so encourages disrespect of the law, and disrespect for the law may spill over into other areas where law is a lot more important.

F.D.R. was a brilliant politician. He helped put the finishing touches on repeal of Prohibition so liquid assets could flow through the economy more freely. Then he raised taxes. Meanwhile, in 1933 a group of young Harvard Law School graduates led by Tommy Corcoron assembled over bottles of whisky in a room in Washington's Carlton Hotel to draft the 1933 Securities Act. I know they enjoyed the whisky, particularly when they drafted sections 2, 4 and 5.

Allan L. (mail):
Thanks. This gives a whole new perspective on the Donner Party.
3.25.2009 11:55am
Tucker (mail):
"...sections 2, 4 and 5." That's a riot.
3.25.2009 11:56am
Sk (mail):
Much to disagree with in this post.

"...religious and not-so-religious groups have at various points in our history lobbied hard for federal regulation of personal morality."

Of course. That's what laws do. There is this enduring myth that legislation of morality is unsuccessful, or unusual, or unwise. But laws against murder, and theft, and speeding, and a whole host of other acts are 'legislation of morality.' What you mean by 'legislation of morality' is really 'legislation of behavior that I personally would like to continue.' The legislation of morality is the definition of a law. If you don't like a particular law, lobby to change the law. Curious how democracy works.


"Proponents finally got what they wanted, and it was of course a failure.""

Of course? Why of course? Again, an enduring unquestioned myth that prohibition was a 'failure.' Again, its because the historians who wrote that like to drink. How would you define a law as a 'failure' (other than 'I personally don't like it')? If there is flouting of the law? By that definition, every law is a failure (has speeding disappeared? Theft? Arson? etc). If there is widespread flouting? (how do you define 'widespread')? I think we all know: gangs bootlegged liquor in the 20's, and those gangs got lots of press, and they have been romanticized in history. Therefore, the flouting of the law was 'widespread', therefore the law was a failure.

In other words, prohibition was a failure because the people who chose not to obey it were attractive enough to have movies made about them (conversely, laws against speeding aren't a failure because speeders don't make good movies).

"..but my point is that there is no point having rules that almost everyone ignores."

Do you mean, 'almost everyone' or do you mean 'almost everyone that's connected, or wealthy, or who receives coverage from historians'? Do you have any information about how many Americans ignored prohibition (50+%, or just lots of cool people at wealthy estates and at the Cotton Club)? If greater than 50% of Americans at the time obeyed the law (and that includes lots of unconnected people on farms, lots of factory workers, lots of religious folks etc etc), would you consider Prohibition a success?

Furthermore, "..but my point is that there is no point having rules that almost everyone ignores". Even if this is correct (but you need to argue for it), there are two potential solutions: enforce the law more strictly, or abandon the law. Either may be correct.

For instance, most of us would agree that a widely flouted law against murder should be enforced more stringently. Two generations ago, littering was a common habit. By enforcing the law and educating the populace, it no longer is (What? I thought we couldn't legislate morality...). Again, many here would agree that this has been a good thing.

On the other hand, perhaps abandoning the law against alcohol consumption was a good thing (but maybe not: How many lives lost-due to drunk driving, due to alcohol addiction, due to crimes of passion, etc etc would have been saved? Was the tradeoff really worth it?).

Regardless, neither solution was defended. Instead, the second was merely asserted.

In essence, your post packs an enormous number of (undefended, and potentially indefensible) conventional wisdom assumptions into just a few sentences, none of which are genuinely self-evident.

For the record, I like to drink alcohol.

sk
3.25.2009 12:33pm
Soronel Haetir (mail):
You must see different roads than I did before I went blind if you think litter has become a non-problem.
3.25.2009 12:37pm
Harry Schell (mail):
Frivolous law...seat belts, cellphones in cars, gun control that clearly doesn't work (the AWB, for starters)...our political class looks less competent by the month and lawbreakers grow bolder.

The man who killed four police in Oakland..a felon with firearms and no compunction about taking as many lives as possible. That evil man is being touted as a reason I should be disarmed.

Respecting the poltical class gets harder and harder...

But God invented rum for just that problem, it seems.
3.25.2009 12:48pm
Houston Lawyer:
Speaking of securities laws, it's a damn good thing that we adopted the Sarbanes-Oxley Act following the Enron debacle. Otherwise, we might have had a financial systems meltdown. Who was AIG's auditor and what did they charge AIG for their attestation for their review of internal control over financial reporting?
3.25.2009 12:56pm
Dave N (mail):
This is actually a request for Eugene and the other conspirators:

Can Richard Painter become a regular? His writing is very good and his posts are thoughtful--and the commentary has been excellent as well.

I realize that there hasn't been a new "conspirator" since Professor Cassell became one but you all ought to consider giving a similar invitation to Professor Painter. Someone willing to post provocative posts on legal ethics would be a great addition.
3.25.2009 1:04pm
Spartacus (www):
How would you define a law as a 'failure'

When it actually does more to exacerbate the problem(s) it seeks to ameliorate. Prohibition (of alcohol, or drugs) tends to make the thing a more attractive form of rebellion (unlike, say murder, I believe). Also, it discsourages more constructive approacvhes such as treatment. it also allows for the growth of a huge underground industry that commits other crimes (murder, extortion, etc) that would not be possible if the trade of the substance in question was done out in the open, where reasonable contracts, etc. could be enforced, rather than run by the mob.

Etc., etc.

You are correct that it is not a question of laws against morality being bad. Rather, if you choose the wrong set of morals, you will find that the criminal approach is less effective.
3.25.2009 1:05pm
Sk (mail):
"You must see different roads than I did before I went blind if you think litter has become a non-problem."

I didn't claim it was a non-problem.

By the standards of this post, the law against littering has 'failed' and should therefore be ignored by the wealthy classes until it is repealed.

Sk
3.25.2009 1:07pm
A.C.:
Who says speeders don't make good movies? I like a good on-screen car chase. The more insane the driving, the more I enjoy it.

The point about the problem with the "personal morality" argument is good, though. I hear that language most often from people on the left who criticize the right for wanting to limit or ban abortion, although I sometimes hear it in connection with drugs. This comes from the same sort of people who want to ban SUVs because SUV drivers are selfish jerks who are destroying the planet. Somehow this doesn't register as a personal morality argument, though.

I'm not sure there is an issue on the right that gets discussed in those terms. Anyone know of one? Guns and motorcycle helmets could be, but I haven't heard it done.

Is there better language to use? I'd like to come up with a term that refers to personal lifestyle choices that have no victims. It would be useful to have a term like that when discussing the behaviors that well-meaning people would like to regulate in order to save "less enlightened" people from themselves. Eating junk food comes to mind here.

Of course, we'd still have to argue about whether a given behavior truly has no victims. Advocates of Prohibition weren't always concerned about people rotting their own livers, but they were concerned about men getting drunk and smacking their families around. But a term for that class of behavior would at least get us closer to an actual discussion.
3.25.2009 1:09pm
Oren:

How would you define a law as a 'failure' (other than 'I personally don't like it')?

One that strengthens the culture of criminality (organized crime, anyone?) while weakening the culture of law by diminishing its stature.
3.25.2009 1:14pm
Gabriel McCall (mail):
"...religious and not-so-religious groups have at various points in our history lobbied hard for federal regulation of personal morality."

Of course. That's what laws do. There is this enduring myth that legislation of morality is unsuccessful, or unusual, or unwise. But laws against murder, and theft, and speeding, and a whole host of other acts are 'legislation of morality.' What you mean by 'legislation of morality' is really 'legislation of behavior that I personally would like to continue.' The legislation of morality is the definition of a law. If you don't like a particular law, lobby to change the law. Curious how democracy works.



If the right to swing my fist ends at the tip of the other man's nose, then there is an important and useful distinction to be drawn between legislation against punching someone in the face and legislation against swinging my fist around in a room all by myself.

When people argue against legislation of "personal morality" or "private morality", they are arguing against legislation which prohibits activity which does not impact anyone else, or which does not impact anyone else without their consent. Perhaps it's sloppy English, and even more so when abbreviated further to "legislating morality", but that doesn't mean the underlying distinction is invalid.

A law against taking a drink is categorically different from a law against murder or theft. The latter forbids a person to nonconsensually violate a second person's rights. The former has no second person to consider. If you'd like to propose new language for describing that categorical difference, feel free. The currently common English usage, however, is to refer to the former case as "legislation of personal morality". Note that the post to which you are responding referred specifically to personal morality, and not morality in general. You may disagree that this phrasing accurately reflects the speaker's intent according to the literal meaning of the words... but to do so you have to discard idiomatic usage altogether.
3.25.2009 1:18pm
PubliusFL:
Sk: (conversely, laws against speeding aren't a failure because speeders don't make good movies).

The never-ending Fast/Furious series? Oh wait, you said GOOD movies.
3.25.2009 1:20pm
Dilan Esper (mail) (www):
Of course. That's what laws do. There is this enduring myth that legislation of morality is unsuccessful, or unusual, or unwise. But laws against murder, and theft, and speeding, and a whole host of other acts are 'legislation of morality.'

You left out Painter's adjective "personal".

What religious groups lobby for which he was singling out is regulation of PERSONAL conduct, i.e., what people do with themselves on their own time and which isn't really the state's business.

There is this enduring myth among social conservatives that, e.g., prohibiting sodomy or the sale and consumption of alcohol is in the same category as prohibiting murder, theft, or speeding.
3.25.2009 1:22pm
Randy R. (mail):
SK has a point. Prohibition wasn't enacted solely because there were busy-bodies trying to legislate morality (although of course that was an important element).

My grandparents and parents grew up in saloons -- working them, owning them, whatever. My mother often told me that before prohibition, working men would often drink away the months rent and food money. She had stories of children going to taverns on payday to collect the money from their fathers before they drank it all away. If they didn't, they would go hungry, or worse, might face eviction.

Remember -- it takes a lot of work and effort and broad consensus to pass any sort of amendment to the US Constitution. It wouldn't have passed if there wasn't support from the broad middle of America. to think that only a handful of religious fanatics and moralists were able to get prohibition passed is a fiction.

And, like SK, I drink all sorts of alcohol, and I also agree that it had plenty of unintended consequences. The real solution should have been education and informationto reduce the worst abuses of alcohol, not punish everyone for the excesses of a few.
3.25.2009 1:27pm
PubliusFL:
Gabriel McCall: A law against taking a drink is categorically different from a law against murder or theft. The latter forbids a person to nonconsensually violate a second person's rights. The former has no second person to consider.

"... assuming that alcohol use has no negative externalities." Oops! As has been discussed in other threads here, it may be that alcohol use also has positive externalities that outweigh the negative externalities, or that the externalities are better covered through, say, alcohol taxes, but you can't dismiss the idea behind Prohibition that easily.
3.25.2009 1:29pm
PubliusFL:
Dilan Esper: There is this enduring myth among social conservatives that, e.g., prohibiting sodomy or the sale and consumption of alcohol is in the same category as prohibiting murder, theft, or speeding.

How is consumption of alcohol "personal conduct" in a way that speeding is not?
3.25.2009 1:32pm
Curt Fischer:

I realize that there hasn't been a new "conspirator" since Professor Cassell became one but you all ought to consider giving a similar invitation to Professor Painter.


I like Prof. Painter too. But you forgot about David Hyman. He is (I think) the newest conspirator.
3.25.2009 1:33pm
Dilan Esper (mail) (www):
How is consumption of alcohol "personal conduct" in a way that speeding is not?

Well, for one thing, speeding occurs out on a public highway by a licensed driver in a licensed vehicle with other licensed drivers snd vehicles out on the road.

As far as I know, if you own a huge ranch and want to go out on one of its roads and speed, you can do it to your heart's content.

In contrast, many jurisdictions prohibit PUBLIC drunkenness, or drinking on the streets or in cars, and none of that is considered a regulation of personal morality.
3.25.2009 1:35pm
ARCraig (mail):
I think those objecting to the phrase "legislating morality" as a pejorative are being a little obtuse semantically. That there is a "personal morality" dealing with how you voluntarily conduct your own life, as contrasted with the, for lack of a better term, "public morality" that basically boils down to respecting the life, liberty, and property of others, is hardly a new or unheard of distinction. That the latter is a legitimate state function is only denied by anarchists, and it's the former that is being referred to when someone makes a libertarian objection to the futility and counter-productivity of "legislating morality".
3.25.2009 1:54pm
Gabriel McCall (mail):
A law against taking a drink is categorically different from a law against murder or theft. The latter forbids a person to nonconsensually violate a second person's rights. The former has no second person to consider.
As has been discussed in other threads here, it may be that alcohol use also has positive externalities that outweigh the negative externalities, or that the externalities are better covered through, say, alcohol taxes, but you can't dismiss the idea behind Prohibition that easily.


It may be that certain types of alcohol consumption have negative externalities; however, it is self-evident that there are certain types of alcohol consumption have none. While one can argue for laws against public drunkenness, and perhaps even against any health-affecting levels of alcohol consumption (although I certainly wouldn't want to try to defend that stance), the same simply cannot be said of responsible private tippling.

If I take one or two drinks a week in the privacy of my own home, who is the second person? What is the negative externality? How do you justify prohibiting this activity?
3.25.2009 1:58pm
Spartacus (www):
I'd like to come up with a term that refers to personal lifestyle choices that have no victims. It would be useful to have a term like that when discussing the behaviors that well-meaning people would like to regulate in order to save "less enlightened" people from themselves.

Um, libertarian?
3.25.2009 2:08pm
A.C.:
"Personal morality" is idiomatic the way "pro-choice" and "pro-life" are idiomatic. Terms like that are slogans adopted by specific groups for specific purposes.

And what the heck is "personal morality" anyway? The whole point to morality is to have a code of conduct for dealing with others. For religious people, this includes God and doesn't really leave any unoccupied space. For most secular liberals, responsibility to society is sufficiently comprehensive that you can't even take the trash out (or vote for McCain) without venturing onto social-morality territory.

Neither of these groups wants to see people inventing their own personal moral codes, either. Both think they've got codes that apply to everyone, whether or not they want to use the law to force everyone to comply.

Really, only libertarians should use an expression like "personal morality" at all. Conservative libertarians (and old-school, limited government conservatives) mostly don't. And so we are left with libertarians of the left -- the sex and drugs and rock &roll crowd. I'm not unsympathetic to their position. I just want them to argue it better.

And I want a beer.
3.25.2009 2:10pm
ARCraig (mail):


And what the heck is "personal morality" anyway? The whole point to morality is to have a code of conduct for dealing with others.



"Personal morality" would be your own individual sense of right and wrong that governs how you conduct your life, including purely personal decisions that only affect others to their degree of voluntary interaction with you.

I might think it's immoral for a man to divorce his wife for a younger woman. That doesn't mean making it illegal is a good idea, and even more importantly the difference between such a law and the laws against murder is a qualitative one, not merely a matter of degree like you seem to insist.
3.25.2009 2:16pm
Dilan Esper (mail) (www):
And what the heck is "personal morality" anyway? The whole point to morality is to have a code of conduct for dealing with others. For religious people, this includes God and doesn't really leave any unoccupied space.

That's the point, though. When someone says "we should have a prohibition law because there is no lesser restriction that will suitable deal with the secondary effects of personal consumption of alcohol against others", this is an argument I can answer on its merits, by discussing what those secondary effects are and whether prohibition will effectively reduce them without causing other, more serious harms.

When someone says "we should have a prohibition law because an invisible man in the sky whose existence cannot be persuasively established doesn't want us to drink", there's really no response to this other than "you're crazy and I am not bound by your hallucinations".

And when someone makes the first argument but secretly believes the second, fine, I guess, but the problem comes when the first argument is refuted and the person still won't accept that there is no reasonable basis for the state to regulate the conduct, because he actually believes that the invisible man in the sky told him that human beings aren't supposed to drink.

The distinction is between causing a proveable effect on other known persons and causing an unprovable effect on an invisible man in the sky. Religious conservatives don't want to admit that (1) is different than (2), but it clearly is.
3.25.2009 2:17pm
ARCraig (mail):
Dilan Esper-

I'm not at all hostile to your characterization of theism. I agree with it wholeheartedly. But A.C. does have a point in that religion is far from the only source of such moral authoritarianism. I've always held that the defining characteristic of religious thought is not a faith in the supernatural, but rather faith itself, defined as believe in the absence of evidence. That belief doesn't necessarily have to be in anything supernatural- it's the lack of openness to evidence and critical thinking that is the root problem much more than the fact that people have an invisible friend from whom they derive whatever psychic satisfaction they seem to get.
3.25.2009 2:23pm
Dilan Esper (mail) (www):
ARC:

Look, people have the right to believe in God. And they have the right to believe that God imposes certain personal moral requirements on us. They also have the right to believe in some sort of natural law that imposes those same requirements, with or without God.

But what I object to is the move by social conservatives to pretend that these sorts of arguments are exactly the same as evidence-based arguments that support laws against murder, theft, speeding, and the like. They aren't. They are claims about either some sort of supernatural being whose existence is in question (let alone whether She cares about our personal conduct and what rules She would prescribe) or about nature which are, again, hotly contested.

What gets me is that they won't admit that what they are trying to do is any different, when indeed, it is different in a crucial way.
3.25.2009 2:27pm
PubliusFL:
Gabriel McCall: It may be that certain types of alcohol consumption have negative externalities; however, it is self-evident that there are certain types of alcohol consumption have none. While one can argue for laws against public drunkenness, and perhaps even against any health-affecting levels of alcohol consumption (although I certainly wouldn't want to try to defend that stance), the same simply cannot be said of responsible private tippling.

If I take one or two drinks a week in the privacy of my own home, who is the second person? What is the negative externality? How do you justify prohibiting this activity?


Similarly, many cases of speeding have net negative externalities, but it is just as self-evident that there are many cases of speeding that have none. Seems to me that you can justify prohibiting alcohol consumption (at least outside of the home) at least as easily as a lot of speed limit laws. Not that I would support such a prohibition, but the point is that (as Sk argued) there is not a qualitative difference between alcohol prohibition and many less-controversial laws like speeding prohibition.
3.25.2009 2:35pm
ARCraig (mail):


Look, people have the right to believe in God. And they have the right to believe that God imposes certain personal moral requirements on us. They also have the right to believe in some sort of natural law that imposes those same requirements, with or without God.




Of course. I was just commenting on our apparently shared personal distaste for the "invisible man in the sky" idea.



But what I object to is the move by social conservatives to pretend that these sorts of arguments are exactly the same as evidence-based arguments that support laws against murder, theft, speeding, and the like. They aren't. They are claims about either some sort of supernatural being whose existence is in question (let alone whether She cares about our personal conduct and what rules She would prescribe) or about nature which are, again, hotly contested.

What gets me is that they won't admit that what they are trying to do is any different, when indeed, it is different in a crucial way.




That's all true (except perhaps assigning a gender to non-existence ;^p ). All I'm saying is that social conservatives are far from the only advancers of such arguments. For example, those who try to make recycling into a moralistic guilt trip, despite all the evidence that much of what's recycled under such programs is neither economically nor environmentally beneficial, are engaging in much the same kind of blind moralistic argument. "The environment" for them is the same kind of impossible-to-question moral mandate from afar, divorced from any hint of critical thinking or scientific review, that social conservatives make their deity into.
3.25.2009 2:39pm
Gabriel McCall (mail):
Seems to me that you can justify prohibiting alcohol consumption (at least outside of the home) at least as easily as a lot of speed limit laws. Not that I would support such a prohibition, but the point is that (as Sk argued) there is not a qualitative difference between alcohol prohibition and many less-controversial laws like speeding prohibition.

Private speeding on your own racetrack is legal, and there's been no serious contemplation of making it illegal. However, private drinking inside your own home was made illegal during Prohibition, as is privately smoking marijuana today.

Moreover, laws against speeding are not laws against driving. Speeding laws are not proper analogues for total alcohol prohibition; they are analogues for a hypothetical law against drinking too much where that standard is scaled to some value greater than zero.
3.25.2009 2:46pm
Thorley Winston (mail) (www):

And, like SK, I drink all sorts of alcohol, and I also agree that it had plenty of unintended consequences. The real solution should have been education and informationto reduce the worst abuses of alcohol, not punish everyone for the excesses of a few.



I don't disagree that today, education or treatment might be a more viable option to dealing with problems of widespread alcohol abuse (or the concern over illegal drugs) but I'm a little hesitant to insist that it necessarily would be as effective in the 1920s.

Today we have all sorts of mechanisms (television, internet, etc.) to disseminate information that didn't exist 80-90 years ago plus we're generally a more educated society with a more sophisticated health and educational infrastructure. It just might be the methods we take for granted today wouldn't have been as effective back then and a more direct method of prohibition was the best (albeit imperfect) tool available.
3.25.2009 3:01pm
Dilan Esper (mail) (www):
That's all true (except perhaps assigning a gender to non-existence ;^p ). All I'm saying is that social conservatives are far from the only advancers of such arguments. For example, those who try to make recycling into a moralistic guilt trip, despite all the evidence that much of what's recycled under such programs is neither economically nor environmentally beneficial, are engaging in much the same kind of blind moralistic argument. "The environment" for them is the same kind of impossible-to-question moral mandate from afar, divorced from any hint of critical thinking or scientific review, that social conservatives make their deity into.

I see what your saying, but at least that sort of argument is falsifiable. One can point out that recycling programs don't work all that well, consume carbon, produce products of limited utility, only work on the margins, only work in certain instances, etc. Indeed, the move from prohibition to cap-and-trade in many environmental areas was fueled by exactly that sort of empirical analysis. There are many other areas where we have changed or relaxed regulations because of this sort of emperical refinement.

On the other hand, when the premise of moral regulation is what God supposedly wants, it's completely unfalsifiable.
3.25.2009 3:01pm
A.C.:
ARCraig - I think you're arguing with someone other than me. I actually tend towards the side that believes in having personal rules for purely voluntary dealings with others.

I don't call most of them morality, though. Some of them clearly aren't, for example my rule about how well I want other people to wash the dishes if they are going to volunteer to "help" me. There's nothing moral going on there. Some people are happy to eat off plates with grease left over from dinner last night and to use forks with old rice stuck between the tines, but I am not.

Same with codes about when you arrive somewhere in relation to the time stated. Any rule works, as long as everyone knows what it is.

I will take issue with your example, though. Once you get to someone trading in a loyal spouse for a newer model (as opposed to divorcing by mutual consent), I do think you cross into moral territory. If you think it's actually wrong, as opposed to just not your preference, then you've got a case of morality-morality. You may not care enough to ban it, or you may think that the consequences of banning it are higher than the benefits, or you may think that banning it is simply impractical (as many people argue about marijuana). But you clearly think the abandoned spouse has been wronged. That's a moral position. Moral-moral, not personal-moral.

"Personal morality" arguments (which overlap with, but arent't exactly the same as "legislating morality" arguments) are often about which of these categories a given behavior falls into. Take shacking up, as it is called. Is it like arrival times, so that people can set up any set of rules they want? Or is it inherently exploitative, so that one partner gets what (often) he wants while the other partner is denied what (often) she wants? That's actually a pretty serious debate to have, but calling it a question of "personal morality" presupposes the answer before the discussion even starts.
3.25.2009 3:17pm
Dilan Esper (mail) (www):
"Personal morality" arguments (which overlap with, but arent't exactly the same as "legislating morality" arguments) are often about which of these categories a given behavior falls into. Take shacking up, as it is called. Is it like arrival times, so that people can set up any set of rules they want? Or is it inherently exploitative, so that one partner gets what (often) he wants while the other partner is denied what (often) she wants? That's actually a pretty serious debate to have, but calling it a question of "personal morality" presupposes the answer before the discussion even starts.

It shouldn't. Discussions of personal morality are very important. Indeed, to get to the specific example at hand, the question of whether one SHOULD drink is a perfectly valid, debatable question.

The importance of the label "personal morality" is to set aside a bunch of arguments that may be important and useful to have but which shouldn't impact public policy because they are non-falsifiable and/or don't involve harm to others.
3.25.2009 3:21pm
A.C.:
Oh, this is fun!

In response to Dilan -- you've missed my whole argument. You're saying that "personal morality" issues shouldn't impact public policy because no harm to others is involved. I'm saying "says who?" and "how do they know?" (Also, concerning people I agree with, please state your case better!)

That's the discussion I want to have before I'll agree to set something outside ANY public policy consideration. And I think that the thorniest "personal morality" issues out there are the ones where there is substantial disagreement on the harm-to-others question.

That doesn't mean I presume that there is always harm to others. I am completely unpersuaded by any harm-to-others arguments about gay marriage, and I've read 'em all. (That issue also shows that public policy can be about permitting something new, not just about banning things.) I have more reservations about classifying drug use as a personal choice that doesn't harm others, and I have serious reservations about abortion. But what's most interesting to me is to have the argument, not to short-circuit it with a slogan.
3.25.2009 4:27pm
Dilan Esper (mail) (www):
I don't mind having the harm to others arguments on any of those things. But the problem is that in certain instances, the harm to others argument is silly and not particularly defined, and is really just a dishonest cover for what the person really believes. In other words, I know that there's no harm to others, the religious conservative also knows that there's no harm to others, but that's the discussion we end up having because the religious conservative doesn't want to admit that the argument is really about what Invisible Man in the Sky said.

By the way, if I can go a little further, I think in many instances "God" is in fact a further dishonest cover. In other words, not only do people assert that gay marriage will harm people when it won't, but they further assert that their beliefs about gays and lesbians are deserving of special solicitation because they are deeply-held religious beliefs. But is the real reason that they feel the way they do because they believe God told them to, or is it because they are homophobes in the first instance and use religion to justify preexisting prejudice?
3.25.2009 4:51pm
ARCraig (mail):

I don't call most of them morality, though. Some of them clearly aren't, for example my rule about how well I want other people to wash the dishes if they are going to volunteer to "help" me. There's nothing moral going on there. Some people are happy to eat off plates with grease left over from dinner last night and to use forks with old rice stuck between the tines, but I am not.

Same with codes about when you arrive somewhere in relation to the time stated. Any rule works, as long as everyone knows what it is.



Even those actions aren't wholly amoral, in that you're still dealing with things like courtesy and politeness that carry a sort of moralistic tinge to them, albeit such a light one in the examples you cited that we can safely consider them amoral choices for all intents and purposes.


I will take issue with your example, though. Once you get to someone trading in a loyal spouse for a newer model (as opposed to divorcing by mutual consent), I do think you cross into moral territory. If you think it's actually wrong, as opposed to just not your preference, then you've got a case of morality-morality. You may not care enough to ban it, or you may think that the consequences of banning it are higher than the benefits, or you may think that banning it is simply impractical (as many people argue about marijuana). But you clearly think the abandoned spouse has been wronged. That's a moral position. Moral-moral, not personal-moral.



The spouse has been wronged, absolutely. And to a degree that was a poor example since our legal system recognizes and (imperfectly) demands compensation for it. I was thinking more of the managing-your-own-relationships aspect of the hypothetical than all the legal entanglements in a marriage contract that have to be unwound in a divorce. A better example for what I was trying to get across would be a stable long-term unmarried relationship, where the wrong done to the ditched elder girlfriend was purely a matter of mental dissatisfaction at the partner's unwillingness to continue a voluntary relationship. I might say the the philandering boyfriend was wrong, but I still contend that this is just another, albeit much weightier, example of the same kind of private morality that say it is "wrong" to fail to show up for a social engagement without prior notice. I don't like the behavior of people who do these sort of things, but I do not deny that they have the right to do so free from coercive interference as long as their asshattery stays within the realm of the peaceful and voluntary.

I still contend that the difference between a law banning alcohol consumption, or divorce, or being rude is categorically and qualitatively different from laws forbidding crimes against persons or property. I might think that the latter are 'morally' wrong, but they are not on the same level as the moral strictures against violating other human beings, the moral regulation of violence. In fact, I'd contend that laws creating victimless crimes in the name of morality are inherently self-defeating from a moral perspective because they sanction the greater evil of state-sanctioned violence in the name of fighting the lesser evil of voluntary vice.
3.25.2009 5:57pm
Lucius Cornelius:
"God?" C'mon guys, you IT hates it when you use that name.
3.25.2009 7:19pm
Desiderius:
Hear, hear, A.C.!
3.25.2009 9:55pm
Desiderius:
Also, a hymn, in honor of Dilan's unflagging love for the church.
3.26.2009 6:58am

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