From Theology to Morality

Yet even as religion was reduced to a public-order issue, ethics were still enforced by law. Individual habits with no immediate social consequences were privatized as citizens' choices: gluttony, sloth, cupidity, and most sexual behavior other than rape and pedophilia.

The Enlightenment's debates over atheism posed such issues first. Could society function without a commonly accepted sense of sin? Could atheists be moral? Even the philosophes found it hard to shake off the basic assumptions of a fundamentally religious era.⁵¹ Hobbes endowed the Leviathan with a strong state church—not for religion's intrinsic value but to secure order. Though religiously tolerant, Locke banished atheists because—considering that they accepted no higher power—their oaths and promises meant noth- ing.⁵2 If people did not believe in a punitive God, Voltaire feared, society would crumble. That was the gist of his often misunder­stood assertion that bereft of God, we would have to invent him.⁵³ Though a generation younger, Pierre Bayle had already cast off reli­gion's social role. Morality was not necessarily based on religion. An atheistic society would function civilly and morally so long as it punished crimes and honored laudable acts. We have no right, he insisted, to assume that an atheist is less moral than a believer.⁵⁴

That the irreligious could also be moral was discovered only slowly. In the developing world, vast majorities still refuse to accept that one can be both moral and yet not a believer.⁵⁵ Even today, we continue to insist on religiously observant leaders.

Mill crossed pens in the nineteenth century. Punishments voiced society's moral revulsion, Stephen thought, whereas Mill allowed sanction only if citizens directly harmed each other.⁵⁷ These issues arose again in the 1960s in debates fought as Britain reviewed the criminalization of (male) homosexuality. Did society need the glue of a common moral codex to undergird formal statute and avoid ethical anomie? Patrick Devlin famously argued that it mattered less what moral values society held so long as they were widely shared and enforced.⁵⁸ Both sides back then broadly assumed that gay sex was immoral; at issue was whether it should also be illegal.

Should the law enforce morality? Did purely individual transgres­sions even exist—ones with no consequence for others? Conserva­tives insisted that individual acts—divorce, sexual unorthodoxy, blasphemy—weakened society's bonds.⁵⁹ But what level of harm should be punished? Most expansively, not just tangible harm but offense, too, was actionable. Acts that merely offended others, even without damaging them, could be condemned. That risked leav­ing the penal code responsive to society's most delicate souls. They might feel impaired just by the possibility that somewhere some­one was doing something disturbing.⁶⁰ Without a semiobjective cri­terion of harm, the definition of offense would endlessly expand. In 1957, the Wolfenden Committee (Parliamentary Committee on Homosexual Offences and Prostitution) in Britain solved the prob­lem by deft distinction. It simultaneously demarcated a private sphere where actions—in this case male homosexuality—were per­mitted even if offensive to some but advocated more stringent pen­alties for street prostitution, regarded as a public harm.⁶¹

Nevertheless, society still rested on moral and behavioral norms.

Bible's Ten Commandments.⁶² Today, the law is much larger than morality, prohibiting many more actions. Yet it has also narrowed. Large swaths of once illegal conduct are now solely a matter for ethicists or theologians. Purely theological transgressions are rarely legal issues any longer. Many acts once considered immoral are now often legal: adultery, homosexuality, prostitution, abortion, suicide, euthanasia. And not all immorality is illegal: lying, cheat­ing on your spouse, bullying, standing by while someone drowns. Conversely, most crimes are not immoral: jaywalking, driving with a broken tail light, failing to withhold employee Social Security deductions. The distinction between illegality and immorality has become a commonplace.⁶³

As philosophers explored the various moral codes in effect across the globe, their relativity caused lawyers to fear hitching statute too closely to ethics. Montesquieu emphasized the multiplicity of legal and political systems. Locke and Kant sought to separate law from morality, John Austin and Bentham (who considered the idea of natural rights “nonsense on stilts”) to free their utilitarian codex from it entirely. The French Revolution, invoking what the revolu­tionaries insisted were natural laws, scared many, prompting con­servatives such as Edmund Burke and Friedrich Karl von Savigny to draw sharp distinctions between law and morals.⁶⁴ Starting in the late nineteenth century, legal realists, for whom the law was only what the authorities decided, unlinked to anything transcen­dent, made the separation watertight.⁶⁵ The law sought to wall itself off from religion and morality and to remain untainted by what it regarded as outmoded behavioral prescriptions.

Nonetheless, despite the most astringent legal theorists' distaste, the legal and the moral still overlapped. True, the law expanded to include more actions only tangentially related to religion or ethics, but its core remained the fundamental tenets of morality.⁶⁷ Do not kill, lie, assault, cheat, or steal. Blurring the line between law and morality became a problem mainly when statute enforced those aspects of morality that did not involve protecting others from direct harm. Should the law require us to perform acts that benefit others? To avoid acts that cause indirect harm to others or harm to ourselves? To shun acts that offend others or that are regarded by them as immoral?⁶⁸ These were gray areas where law and morality overlapped, where cultures differed in which ethical precepts they enforced legally, and where changing social mores, striving to be recognized in legal reform, first had an effect.

Morality has obviously varied—sometimes dramatically—among and within cultures. Such differences have tended to concern sex and women: homosexuality, pedophilia, adultery, bigamy, divorce, contraception, abortion. The law often limped along, barely keeping abreast of evolving mores.⁶⁹ In the US outmoded detritus still litters state penal codes, technically outlawing a wide range of behaviors: adultery, fornication, sodomy, and (in some state or municipal code somewhere) just about any form of sexual behavior short of the missionary position within marriage and solitary masturbation. In 1948, Boston police arrested 248 adulterers. Massachusetts success­fully prosecuted an adultery case in 1983, and as of 2012 the offense remained on the state's books as a felony.⁷⁰ Nevertheless, a common core arguably united most behaviors considered morally signifi­cant: promise keeping, truth telling, protecting innocents from vio­lent attack.⁷¹ That punishments should be proportionate to offenses approximates a human constant.⁷² The endless debates over natural law at least served to distill plausibly quasi-universal rules.

Even today the law is based more on morality than is often rec­ognized. Hospitality law, how to treat aliens, what the Germans call Gastrecht, has evolved from a moral obligation to a legal duty in international law.⁷⁴ The obviously unethical is usually illegal as well, but morality also informs everyday economic transactions. The law of contract depends on the concept of good faith. The US Uniform Commercial Code defines good faith as “honesty in fact in the con­duct or transaction concerned.”⁷⁵ All commercial systems rest on the (moral) assumption that those engaged in exchange can rely on each other's promises. Such promises may be reinforced in law. The blossoming of contract law in the nineteenth century put some steel in the velvet glove of promises made in the free market by its interacting parties.⁷⁶ But without good faith, systems of exchange would collapse.⁷⁷ More generally, good faith transactions—keeping promises, performing what was agreed upon, and the like—were behaviors enforced at first by custom and religion in self-governing communities. When the law began regulating these actions, they long kept religious forms. The standards of due care in the law of negligence, of fair competition, and of fair conduct of a fiduciary: all involved a concept of fairness and reasonableness that—though applied by courts—ultimately rested on moral intuitions.⁷⁸ In the continental civil codes, contracts were explicitly premised on morality. Those that were immoral could be declared invalid.⁷⁹

Relations of law to morality had long been given voice in two sets of distinctions. Where both morality and law forbade the same actions, they targeted inherent evil, malum in se. Where the law alone prohibited conduct that might not be immoral, it created the malum prohibitum.⁸⁰ Mala in se were fundamentally unethical actions, directed against life, health and bodily security, personal liberty and dignity, property rights, as well as the constitutional order and safety of the state.

Related, though not identical, was the distinction between torts and crimes, emerging after the thirteenth century in common law. Before this point, crimes could be pursued both by private parties and by the king, and the law could impose either compensation or corporeal punishments.⁸⁵ Torts were harms that could be assuaged through compensation alone. Before the state assumed responsibil­ity for justice, most transgressions had been treated as torts—even ones, such as homicide, that later became crimes. They were settled between the disputant parties through an exchange of value. Torts were actions society preferred to regulate, whereas crimes were for­bidden outright. One priced acts; the other prohibited them. Torts were not worth the bother of criminal sanctions. Or, because certain offenses might enrich the offender more than they harmed soci­ety, they were more efficiently dealt with by recouping their social cost through fines. Crimes, in contrast, were acts whose cost society was unwilling to monetize and collect, therefore to be forbidden altogether. Punishing crime aimed not to reimburse victims but to deter others. Sanctions inflicted real suffering. Crimes were actions society sought to eliminate wholly (rape and murder), whereas torts might have some social utility (the economic efficiencies of turning a blind eye to polluting or workplace accidents) and should be dis­couraged and reduced but not wholly forbidden. It sufficed if their cost was internalized, borne by the offender.⁸⁶

The boundary between morality and law has constantly shifted across history. Many behaviors have boiled off the core of immo­rality to become legal: sex between racial groups, drinking, adul­tery, homosexuality, to some extent abortion and prostitution, to some extent the use of inebriants other than alcohol. Incest may be moving toward a crossing of the ethical Rubicon.⁸⁷ Polygamy is ambiguous. Monogamy has historically been the exception. China and India, together composing well more than a third of human­ity, did not forbid polygamy until the mid-1950s.⁸⁸ Outlawed in the West, it remains present throughout the Muslim world, in parts of non­Muslim Africa, surreptitiously among Mormons, as well as in more recent demands by urban hipsters for civil unions of threesomes.⁸⁹ Bestiality has been decriminalized in some nations (although animal rights may end up trumping claims to human erotic self-expression). Euthanasia, once considered murder, is legal in several jurisdictions. Attempted suicide is less commonly punished than earlier and has been decriminalized in some sixty nations, mostly Western.⁹⁰

Tax avoidance may be morally suspect, but tax evasion is illegal, too. Working on the Sabbath was once irreligious, immoral, and illegal, but, overall, Sabbatarian regulation has declined.⁹¹ Yet sur­prising numbers of laws still shape economic activity according to religious fiat. In allegedly secular Sweden, taxis charge even more on Lutheran high holy days than on weekends or nights.⁹² Signs on playgrounds in the Calvinist parts of the Outer Hebrides discour­age children from using them on Sundays.⁹³ Blue laws still regulate liquor sales on Sundays in the US. A popular movement in Cath­olic Bavaria seeks to reverse their few exceptions to Sunday clos­ing laws. Communism sought to upend inherited moral instincts about property (or theft, according to the anarchist Pierre-Joseph Proudhon). The Soviet Union punished theft of state property more harshly than theft of private possessions, often with death and with no chance of amnesty, but the penal codes of most Communist states still prohibited conventional larceny.⁹⁴

The law does not just reflect social value judgments; it helps shape them. Durkheim wrote that the collective consciousness is not offended by an act because it is criminal, but that it is criminal because society abhors it.⁹⁵ This oft-quoted bon mot did not, how­ever, spare him the paradox he thought he was sidestepping. Yes, as he rightly pointed out, the quality of the criminality that society shuns is hard to define, but cleverly turning the tables does nothing to solve the causal problem. Why does the collective consciousness decide that something is abhorrent and therefore criminal? And, having done so for its own inscrutable reasons, how can things ever change? In fact, seen historically, not only has the law changed continuously, but changes in statute have also driven views of what offends. The law has taught us right and wrong, not just mirrored our views thereof.

The realm of the illegal and immoral has not just shrunken but also expanded. Many once legally indifferent behaviors are now out­lawed. Two centuries ago, a man who refused a duel would become a social outcast. Today, one who accepts the challenge risks a charge of attempted homicide.⁹⁶ Honor killings—once an imperative—are no longer permitted or acceptable. Conventional industrial waste disposal—that is, polluting—has become broadly illegal. Tobacco use is increasingly forbidden, almost like other drugs, even as other inebriants have become tolerated. Primogeniture once kept the family intact and men on top. Today, anyone who insists on leav­ing all assets to an eldest son would be regarded as peculiar and in most developed nations denied his or her wish.⁹⁷ Theft of intellec­tual property became a crime starting in the late eighteenth century and expanded massively through the twentieth, though in the digi­tal age it has become something of a misdemeanor and even mor­ally valorized as justified use.⁹⁸

White-collar crime, once treated more leniently than physical offenses, is taken more seriously.⁹⁹ Whereas being tough on crime is often a conservative cause, economic offenses have riled the Left— just as the women's and environmental movements brought their own rosters of new offenses to be prosecuted. In the 1960s, corpo­rate executives from major American businesses, conspiring to fix prices, went to jail for the first time. In the 1970s, the US began prosecuting bribes paid to foreign authorities—once regarded as a cost of doing business. Insider trading has been criminalized, even

though it was earlier considered a normal—if a bit sharp—business practice or at worst a violation of tort or regulatory law.¹⁰⁰ In 1934, insider traders could be required to disgorge only illicitly procured funds. By the 1960s, they could be fined as well; as of the 1980s, they were slapped with treble damage sanctions and jail. Prison sentences have become a regular occurrence in the US business world.¹⁰¹ Wall Street executives, pillars of their Connecticut com­munities, are perp-walked for the news cameras as they are taken to be booked. And as sentencing reform diminished judicial discretion and pegged punishments to the dollar value of the harm, prison stays for crimes such as securities fraud have lengthened to rival those for murder.¹⁰²

Many now illegal acts have also become immoral: slavery, wife beating, marital rape, child labor, child marriage, child abuse, cru­elty to animals. Pedophilia, considered normal (within limits) in ancient Greece, is today regarded as the single most immoral and illegal act, potently stigmatized. Once prized as manly behavior, hunting endangered megafauna has become both illegal and immoral.¹⁰³ Now illegal and on the cusp of also being immoral are actions such as insider trading, price fixing, bribing, and antitrust violations. Driving drunk is illegal and increasingly regarded also as immoral. Some jurisdictions have harnessed popular sentiment to state enforcement by prosecuting hosts who allow guests to depart inebriated. Endangering consumers by knowingly selling deficient products is considered immoral. The days of caveat emptor (buyer beware), when consumers bore most risk in a purchase, are long gone. Sexual harassment is criminal and has recently also become regarded as immoral, not just a lark that women ought to tolerate. Abortion remains morally fraught but also illegal in many places and circumstances. Polluting is not just illegal but has become immoral, too. In surveys, it often ranks as more serious than tra­ditional offenses, even murder.¹⁰⁴ This new view is arguably col­ored by older theological concepts of pollution as a transcendent

violation. Ancient ideas of despoiling the sacred order were broader in their understanding of taint than modern biological and chemi­cal concepts, though today deep ecologists come close to this older view.¹⁰⁵

Law has sometimes directly enforced moral obligations. Certain duties became required of citizens: providing testimony in court, paying taxes, serving on juries and in the military. Perjury became a crime in England in the mid-sixteenth century. The act did not just undermine the court system but was also morally tainted since it violated an oath.¹⁰⁶ The medieval English law of hue and cry obliged all within earshot to join in pursuing a felon.¹⁰⁷ Hit-and-run laws today impose a duty not to leave an accident. Owners have obliga­tions to those they invite onto their property. But, otherwise, there has been little legal requirement to help those in need.¹⁰⁸ Drawing up the Indian penal code in the 1830s, Thomas Babington Macau- ley argued that the law could not specify what bystanders had to endure to help strangers. Should they be required to go one hun­dred yards to caution someone against fording a swollen river, or a mile? The law should only keep people from doing harm, Macauley concluded, leaving morality and religion to encourage the good.¹⁰⁹

But Good Samaritan paragraphs in civil law codes have demanded more.¹¹⁰ The moral obligation to provide aid where there is no risk to the bystander is a legal duty in several European nations.¹¹¹ Israeli law requires aid in traffic accidents.¹¹² Already the German penal code of 1870 required citizens to help the police on request, and the Nazi regime broadened this obligation into a citizen's duty to aid others. In 1954, the German Great Criminal Senate declared the duty a moral obligation and “an imperative command of Christian doctrine.”¹¹³ The equivalent French legislation was initiated in 1941 by the collaborationist Vichy regime to encourage Frenchmen to aid German occupiers wounded by resistance fighters.¹¹⁴ Since then, such statutes have been regularly invoked in Europe. The estate of David Sharp, who perished on Mount Everest in 2006 as forty other climbers passed him by, could have sued in France but not in Britain.¹¹⁵ The English-speaking world became aware of Europe's Good Samaritan laws after Lady Diana's death in Paris in 1997, when the French authorities considered prosecuting the paparazzi who chased her car and then stood by photographing her as she lay dying.¹¹⁶ The law of the sea has also long recognized a duty to help those in distress.¹¹⁷

Is moral evolution eventually reflected in the law? Or do changes in statute help shape ethics? Those remain open questions.¹¹⁸ Author­ities have often struggled to punish what most people do not regard as immoral offenses. Early modern popular opinion commonly refused to consider smuggling, poaching, or gleaning (once it had been revoked as a right) as crimes. They were “social crimes,” more illegal than immoral.¹¹⁹ Smuggling was once widespread across Europe, and the state's concern to prosecute it was too obviously self-serving in the early modern era, when tariffs were a major source of revenue.¹²⁰ It was thus more akin to tax evasion today than to the peccadillo we now—in an era of much freer trade—consider it. Nonetheless, as late as 1964, when Goldfinger became the third hit James Bond movie, its villain still transported gold across borders by smuggling it as the bodywork of his car.

Sometimes the law has been a teacher. Making something illegal has less reflected a moral shift than helped to create it. The authori­ties' vigorous suppression of dueling likely helped change opinion on something once held in favor. In the United States, tax evasion began to move into the realm of immorality when it was made a felony in 1924 and then in 1952 when its prosecution changed from merely a means for the state to recoup the income foregone to a tool of general deterrence.¹²¹ Other fairly technical offenses, such as insider trading, antitrust violations, and bribery, which were scarcely known to the public beforehand, became morally condemnable in the wake of outlawing them.¹²² Conversely, when law did not reflect popular morality, enforcement bogged down.

Juries nullified verdicts, refusing to convict those whose actions, although illegal, did not seem immoral. In so doing, they expressed society's broader sentiments. The growing acceptance of euthana­sia was revealed when it took the US authorities four attempts to convict Jack Kevorkian in 1997 for assisting the terminally ill to die.¹²³ In the 1920s, prohibitionists thought they were bringing law and morality into alignment by forbidding the sale of alcohol, but, in fact, their moral intuitions turned out not to have been widely shared.