On 'Legislating Morality': The Anti-Conservative Fallacy

The recent Terri Schiavo controversy has raised once again the question of whether government ought to be in the business of "legislating morality." Many liberals and libertarians accused conservatives who worked to get Mrs. Schiavo's feeding tube reinserted of trying to enforce compliance with a religious ethic via the power of the state. It was also insinuated that their motivation lay in sentiment rather than reason, and sectarian fervor rather than scientific fact. Such charges reflect a rhetorical ploy frequently made use of by liberals and libertarians, to the effect that conservatives' objections to pornography, say, or to same-sex marriage, stem from their finding these things "personally offensive." They accuse conservatives of wanting to "impose" their "personal opinions" or "personal moral views" on everyone else. This sort of language conveys the idea that it is merely a set of emotional responses or idiosyncratic preferences, no more reflective of objective reality than one's taste in ice cream, that motivate conservatives to take the positions they do.

It is obvious, or ought to be, that one problem with this kind of criticism is that it is simply a question-begging and tendentious way of characterizing conservative positions on the matters in question. Suppose someone accused liberals of favoring affirmative action simply because they found inequality between the races to be "personally offensive," or accused libertarians of wanting to impose their "personal opinions" on everyone else, including socialists, by refusing to allow government to redistribute wealth so that each citizen gets the equal share to which he is (in the view of socialists) entitled. Liberals would object that it isn't merely their subjective personal disgust at inequality that motivates them; rather, it is their commitment to equality as an objective moral ideal that does so. Libertarians would say that the moral principle of upholding private property rights, on which they base their objection to redistribution, is not merely expressive of some personal preference, but reflective of an objective moral order which socialists as well as libertarians ought to respect. Both liberals and libertarians would say that their subjective emotional reactions to inequality and redistribution are not what guide them in their choice of policies. Rather, it is their commitment to rational moral principles that guides them -- and that generates the emotional reactions too, rather than the other way around.

If this is the right way to characterize the manner in which liberals and libertarians defend their policy proposals, though, it is only fair to acknowledge that conservatives can and do defend their own positions in a similar fashion. That a conservative might find pornography or same-sex marriage offensive doesn't mean that his finding them offensive is the reason he opposes them. Rather, he might oppose them on the basis of an objective and rationally defensible moral principle, and his commitment to that principle might itself be what generates the emotional reaction of disapproval, rather than the other way around. In other words, it isn't that conservatives first find that pornography and same-sex marriage generate a negative emotional reaction and then go on to hold that it is morally wrong to indulge in pornography or to advocate same-sex marriage; it is rather that they first judge these things to be morally wrong on rationally defensible grounds, and then form a negative emotional reaction to them on that basis. Liberals and libertarians are, after all, no less prone than conservatives to respond with passionate indignation at violations of their favored moral principles. If they do not regard this passion as undermining the objective validity of those principles, neither can they consistently take conservatives' passion to undermine the objective validity of conservative principles.

This common rhetorical move of characterizing conservative opposition to various liberal or libertarian policies as based on nothing more than subjective personal preference or prejudice seems to have its origin in the following fallacious inference: "Person A opposes the doing and/or legalizing of some outré behavior X and A also happens to find X personally offensive, revolting, disgusting, off-putting, etc.; therefore, A must oppose the doing and/or legalizing of X merely because he finds it personally offensive, revolting, disgusting, off-putting, etc." The reason this inference amounts to a logical fallacy is that it is just a blatant non sequitur. As we've seen, the fact that A finds X personally offensive, revolting, or whatever simply need not be the reason he opposes X. He might have perfectly objective and rational grounds for opposing it; the fact that he also happens to have a negative emotional response to it may be irrelevant. After all, most people find murder, theft, child molestation, rape, and the like to be personally offensive, revolting, off-putting, etc. But it doesn't follow that the fact that a person's emotional response to such crimes is negative must be the only reason he opposes them.

So common is this fallacy that it would be useful to have a label for it: as logicians have understood for centuries, explicitly to name a widespread fallacy is crucial to avoiding it oneself and combating its use by others. When one learns, for example, that it is a logical fallacy to reject a claim merely because the person making it might have a vested interest in it -- that this is, in particular, a species of ad hominem fallacy logicians call "Poisoning the Well" -- one quickly comes to realize that an enormous chunk of what passes these days for serious political argumentation is completely worthless. For instance, the suggestion that we should dismiss those who doubt there are any serious health risks posed by second-hand smoke -- on the grounds that "that's just what the tobacco companies would want us to think" -- is revealed to be as silly as suggesting that we ought to be suspicious of the claim that the earth is round -- because, after all, "that's just what the globe manufacturers would want us to think." Such a Flat Earth Society style of reasoning also underlies arguments to the effect that to support the Iraq war is "just what Dick Cheney's old employer Halliburton would want" -- or, for that matter, that to support the Republican position on the Terri Schiavo controversy "is just what the evangelicals would want." If it is easier to expose these fallacious arguments by applying the "Poisoning the Well" label to them, it will also be easier to expose the fallaciousness of the rhetorical strategy I've been describing if it could be given some pithy name.

So, what label could we give it? "The liberal fallacy" has a certain ring to it, as does "the libertarian fallacy." But we need a name that makes it clear that both liberals and libertarians are prone to it -- and of course, "the liberal and libertarian fallacy" doesn't exactly roll off the tongue. Moreover, liberals and libertarians are not the only ones who commit it -- socialists, feminists, and others hostile to conservatism have a weakness for it too. It does seem to be directed almost exclusively against conservatives, though, and even to be the most popular method of trying to discredit conservative policies: so perhaps "the anti-conservative fallacy" will fit the bill.

Those inclined to commit the anti-conservative fallacy might try to defend themselves by claiming that the average conservative voter does not in fact have any good reasons for opposing the things he does. They may say that whether or not a Thomas Aquinas or Edmund Burke could come up with a fancy justification for being against abortion, same-sex marriage, or whatever, the typical redneck Bible thumper surely cannot. So, the critic of conservatism might infer, it must be the case that his view really is based on nothing more than irrational prejudice after all.

We should keep in mind, however, that even if a person couldn't give a sophisticated defense of his belief that murder, theft, child molestation, and rape are wrong, we would not conclude from this that his disapproval of these things is therefore irrational. Rather, we would acknowledge that many perfectly defensible moral beliefs might require some detailed philosophical argumentation to justify, and that the common man is as reasonable in leaving such justification to professional ethicists and theologians as he is in letting his electrician rewire his house rather than trying to do the job himself. Liberals do not demand that the average union member must master John Rawls' political theory before voting a Democratic ticket, and libertarians do not expect makers of pornographic videos to read Robert Nozick before decrying censorship. But then, by the same token, if the average churchgoer can't do much more than appeal to the Bible to defend his view that abortion or same-sex marriage is immoral, it doesn't follow that his view is irrational. If the ordinary liberal or libertarian can rest on the laurels of a Rawls or Nozick, the ordinary conservative can surely rest on those of an Aquinas or Burke -- or, to update the examples, on those of a Joseph Ratzinger or Roger Scruton.

The appeal to the anti-conservative fallacy is in any event not the only dubious aspect of liberal and libertarian criticism of conservative attempts to "legislate morality." For as we've seen, liberals and libertarians themselves appeal to certain moral principles in defending their favored policies. So how can they consistently criticize conservatives for doing the same? Isn't the liberal trying to "legislate morality" when he advocates redistributing wealth in the name of fairness? Isn't he thereby "imposing his moral views" on the wealthy? Aren't libertarians also "imposing their moral views" on liberals by trying to stop such redistribution? If libertarians who think that redistributive taxation amounts to theft could enact a law forbidding it, wouldn't this too amount to "legislating morality"? And if a liberal or libertarian responded by saying "Well, my moral views are the right ones!" why wouldn't this be just another instance of the same sort of dogmatic intolerance that conservatives are so often accused of?

The claim that "we shouldn't impose our personal moral views on other people" is in fact a very curious one. It seems to convey the idea that all moral views are merely "personal" in the sense of reflecting nothing more than individual tastes or preferences, and thus cannot justifiably be "imposed" on those who do not share those tastes or preferences. Their constant appeal to this idea in criticizing conservative policies is thus probably the main reason liberals and libertarians are often suspected of being moral relativists. But since, as we've noted already, liberals and libertarians can be quite absolutist about their own moral beliefs, and are not at all reluctant to tell others that they ought to abide by them, it is evident that their views are not genuinely relativist at all. Indeed, the idea that "we shouldn't impose our personal moral views on other people" sounds itself like an absolute moral imperative. So what exactly is going on here?

It seems clear that what liberals and libertarians really mean when they criticize conservatives for "imposing their moral views on others" is not that there is anything wrong with letting moral views, even controversial ones, guide public policy. Rather, what they mean is that specifically conservative moral views shouldn't be allowed to guide policy -- either because such views are not, strictly speaking, really views about morality per se in the first place but are rather mere expressions of personal taste, or because they are views about morality, but views that happen to be false. To state their objection to conservative policies more frankly, though, would be less rhetorically effective. If a liberal or libertarian said "My views are genuinely moral ones, and conservative views are mere expressions of personal taste" or "My moral views are correct and conservative views are not," then it would be obvious that he was making what are nothing more than undefended and highly debatable assertions. Far better, then, to say something like "No one should impose his personal moral views on other people." That way, the liberal or libertarian seems to be saying something obviously true (namely that no one should impose idiosyncratic and subjective personal tastes on others) when in fact he is making an extremely controversial claim for which he has offered no justification (namely that liberal or libertarian moral views, but not conservative ones, should be allowed to guide public policy).

Rhetorically effective as this move is, though, it is intellectually dishonest. To be sure, liberals and libertarians who talk this way probably don't consciously realize that they are engaging in a kind of sleight of hand. Most of them are no doubt just muddle-headed, and don't see the inconsistencies and confusions inherent in their view. But the inconsistencies and confusions are there all the same. If you are going to take a controversial position to the effect that all discrimination or wealth redistribution is wrong (as liberals and libertarians, respectively, would say) and therefore ought to be forbidden by law, you can't consistently say that controversial moral views shouldn't be enforced via legislation. If you believe that your own favored moral principles are objectively valid and binding on everyone, you shouldn't speak in a way that conveys the misleading impression that moral judgments in general are as idiosyncratic and subjective as tastes in ice cream. And of course, whatever other objections you might have to conservative policy proposals, it is hardly legitimate to rely on fallacious reasoning in criticizing them -- as those who commit what I've called "the anti-conservative fallacy" do.

Not all moral principles ought to be enforced by the power of government, but almost everything government does is based on some moral principle or other. It is fatuous, then, to hold that "we shouldn't legislate morality," if this means that controversial moral principles shouldn't guide public policy. And almost every moral principle is controversial to a significant extent: even when people agree that murder is wrong, they often disagree about what counts as murder, as the disputes over abortion, euthanasia, and even the killing of animals attest. The question, then, is not whether controversial moral principles ought to inform our laws, but rather which controversial moral principles -- liberal, conservative, libertarian, or whatever -- ought to inform them. As the Schiavo case illustrates, it is inevitably going to be extremely difficult, if not impossible, to settle these matters in a way that is going to satisfy all members of a pluralistic society. But it is no use pretending that the difficulty doesn't exist -- or that it is only conservative moral scruples that give rise to it.

Edward Feser (edwardfeser@hotmail.com) is the author of On Nozick and the forthcoming Philosophy of Mind: A Short Introduction. He is a regular contributor to The Conservative Philosopher and Right Reason.

Interesting article.

My only thoughts are (1) liberalism (or what should be called neoliberalism as it has little in common with classic liberalism) is a flawed political philosophy, filled with contradictions, (2) libertarianism is generally similar to classic liberalism...which recognizes certain natural God-given rights in every person including the right to keep one's property and do with it as one wishes, the right to be left alone to do whatever one wants (including engaging in homosexuality, consume pornography, drugs, etc.) so long as doing so does not infringe on anyone else's freedom and freedom of conscience and the right to worship or not worship as one wishes.

I don't know that this is legislating morality...I think it is legislating to accomplish the only thing that a Lockean political philosopher beleives the state has the moral authority to do...protect man's God-given rights.

anticonservative fallacy

I nominate the term novelty fallacy for the phenomenon in question.
What is actually going on is that the liberal or libertarian is arguing from the presumption that what they advocate is good simply because it is different from what is traditional. That is a fallacy on two grounds:

old ways of doing things work, to a relatively well-know degree, and
most social ideas probably have already been tried; the liberal/libertarian's "new" idea may have been tried in the distant past, and found wanting.
As argument, presumption rightly belongs to retaining tradition rather than abandoning it. Traditions should only be modified when the potential gain outweighs the potential risk.
The "novelty fallacy" is simply the negation of the "look before you leap" caution. Those who argue for change without counting the cost by taking arguments in favor of tradition seriously enough to rebut them on a solid logical basis are simply egoists in love with the first idea that comes into their heads which is different - simply because they think it new and can claim ownership of it. It is really the "not invented here" fallacy. If it's a tradition, they can't claim to have invented it, and don't own it.

We constantly choose as to whose morality will be imposed upon society. That is the purpose of campaigns and elections.

Also, Dems have been losing many elections, so they now complain about us "imposing" our morality on them. They didn't complain about this when they were winning. One other thought, since Dems often don't go to church, they don't see their own set of values or "morality" as really being a "morality." They see their values as just being common sense. They think that the only "morality" that is imposed is from the church-going conservatives. Dems don't see their secular humanism as being just as much a "religious" point of view as regular Christianity. That is why they think of themselves as being "neutral" and "moderate" and "tolerant", while all we Christians are biased and bigoted and religious. The bottom line: Dems reject God-based morality.

Interesting how a group of people (liberals-socialists) could demand absolute obedience to their will on issues such as smoking, guns, and alcohol; yet they insist on freedom of every single thing that will bring destruction to our children on a personal level.

Each law that is passed is a legislation of morality, but if they have their way they will pass laws to legislate immorality.

I don't get the stance that we establish regarding our resoning for what we believe. We either believe in the natural law which proves itself out through time and trial and error; or, we believe in the law of God handed down through the scriptures. Either of these will leave us with a clarity on the purpose and function of the social contract.

The bible gives no such liberty of the government to usurp the function of the individual. The people that go to Romans 12 and claim submission to the govt. is the will of God forget that in that same passage it defines the "ministration" of the will of God as punishing evil and rewarding good. Whenever the government decides to go against that mandate then they are off base and are no longer the "minister of God" any more than the preacher is when he is boffing the secretary.

The purpose of government, according to scripture, is to reward good and punish evil. If they stray from that purpose and begin to punish good and reward evil then they are not the ministry of God for that nation. There is never given to any governing authority in this earth the liberty to demand submission based on the idea that they represent God's desire for order, as if to say order trumps all.

Yes, it is important to have order, but be assured that order for the sake of order is not an idea put forth in the Bible. The order that is promoted and spoken about that demands submission is the order that punishes evil and rewards good, period!

This point must be clearly taught and understood. The natural law also demands order in that the whole world about us is orderly. However, each level of species and order is specific in it's function. So you cannot even draw the idea that order or governance can be absolutely supported and submitted to wihtout examining the purpose of that order and it's effect on those governed by it.

Whenever legislation is established that goes beyond the basic moral law, for instance "thou shalt not kill," or "thou shalt not steal," it mostly is a trampeling of our basic rights as citizens. We must be constantly aware of the problems of letting others decide all the things that we should be deciding about conducting our lives. We don't need any group of governed to tell us what to do to live, and mostly when they want to or attempt to they are intruding in our life.

The only law that should be submitted to is the moral law based on absolute right and wrong as found in the scriptures and the ten commandments. Our system of government is built on that being the moral law, though it does not say that is the only thing we can believe, we do have freedom of religion. The founders put those laws into effect and if we want to change it then we should have to sell it to the majority of the people.

The social contract can at any time be disbanded or disregarded by anyone who feels that it has started to punish good and reward evil, or who just plain doesn't feel like it governs their interest.

The author admits:

Not all moral principles ought to be enforced by the power of government,

Exactly why we've outlined a BOR's in our Constitution, rights which are not to be infringed upon by any level of government in the USA.

but almost everything government does is based on some moral principle or other.

Yes indeed, and that's why we must be ever vigilant against attempts by majorities to 'legislate moralities' that infringe upon individual rights.

It is fatuous, then, to hold that "we shouldn't legislate morality," if this means that controversial moral principles shouldn't guide public policy.

It doesn't mean that, -- as long as the "controversial moral principles" are not infringements on individual rights, or repugnant in any other way to the principles of our Constitution.

And almost every moral principle is controversial to a significant extent.

That's why it's so hard to amend the Constitution. -- Look what happened in our last great bout of "legislating morality" - booze prohibition.. It was a total disaster for liberty & the republic.

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