Why We Must Legislate Morality

In liberal societies, one commonly hears that we cannot or at least should not ‘legislate morality’, especially ‘religious morality’. Generally speaking, this contention is justified with an appeal to concepts of fairness and freedom. The argument, as often presented (and as presented by a student in my college Political Science class recently), takes more or less this form:

‘We cannot legislate based on religious concepts of morality because our society is diverse and pluralistic, and everyone doesn’t follow the same religion. Thus, to legislate based on one religion in particular would be unfair to those who don’t follow that religion [and presumably would interfere with their freedom to practice some other religion, or no religion at all].’

The problem is that this statement is deeply lacking in self-awareness, and additionally, betrays a fundamental misunderstanding of the nature of state and legislation. This will be easiest to understand if we deal with the latter first.

Upon any amount of reflection, it should become self-evident that the nature of law is, fundamentally, to impose some kind of standard upon those who might dissent from it. This is why law is law, and not a book of suggestions. A law you cannot be forcibly punished for breaking is effectively no law at all. Law is always imposed. That is in its nature. Law cannot, ever, apply only to those who agree with it. There would in such a case be no need for law.

Moreover, most laws exist to impose a specific kind of standard, namely: a moral standard. Obviously, there are fairly trivial laws like traffic regulations, which exist to enforce a standard that is not per se moral, but largely practical. (One could argue that even if the concrete prescriptions of the traffic code are not individually and inherently moral, the need for some kind of ordered framework is a moral imperative when you have as many people driving as a modern country does, but that’s outside the scope of this post.) However, weightier laws are all moral in one way or another. Laws against murder, theft, rape, etc. are all made because legislators believe that these things are immoral.

‘But wait!’ the liberal might object. ‘Everyone agrees those things are immoral. It’s not like imposing your religious opinion about homosexuality or abortion or alternative sexual identity.’ But that is where the liberal is wrong. Everyone does not agree with the laws on murder, rape, and theft. At the very least, there are many, many people who would like for there to be an exception to these laws for their particular case. In a more principled way, there are people like ‘Afghan refugee’ Esmatulla Sharifi, who, according to the lawyer who defended him at his multiple-rape trial, ‘was confused about the nature of consent.’ 

Again: if these standards were truly universally accepted, we wouldn’t need laws to enforce them. True, the wrongness of murder and rape is broadly accepted, but the few dissenters must still have the values embodied in the law imposed upon them.

Moreover, all moral standards are rooted in a moral code. And which moral code is correct is the subject of debate and disagreement among philosophers, theologians, and ordinary people around the world and has been for thousands of years. And during those thousands of years, legislators have made laws based on their particular moral beliefs. And liberals, despite their rhetoric, dont want to change that. The classical liberals didn’t want to change it, the modern liberals dont want to change it, and the atavistic throwback liberals known as ‘libertarians’ dont want to change it. Rather, each of these groups simply wants to legislate its own particular moral code.

On its own, this would be in a sense unobjectionable. I do not agree with the liberal moral code, but of course I have to expect that like everyone else, liberals would act based on their beliefs. The problem is that they attempt to sell the idea that their moral code isn’t really a moral code, while yours is, and therefore that their moral code is a priori a superior basis for legislation, which it is not.

Libertarians are especially bad in this regard. ‘The government should not enforce morality,’ they say, ‘just property rights.’ But property rights, as conceived by libertarians, are nothing but a system of morality (even if not a complete one). And that system has no a priori privilege over other systems. The claim that libertarians do not want to impose their morality on you is absurd; of course they are going to impose their property rights, as they perceive them, on others who perceive the issue differently.

In short, it is no less ‘unfair’ to impose a moral code based on an ideology on those that dissent from that ideology than it is to impose a moral code based on a religion on those that dissent from that religion.

The problem here is one of names. Just as progressivism is a religion that brands itself as a non-religion in order to get around objections to an established church, the liberal moral code is a moral code that brands itself as something other than a moral code in order to pre-emptively disqualify its competitors. You cannot win as long as you allow the enemy to set the linguistic frame. ‘Separation of church and state’ is nothing but more progressive verbal witchraft.

Orthodoxy and Catholicism: Hope for Reunion? A Response to Bryce Laliberte (aka @AnarchoPapist)

Some time ago, my (online) friend Bryce Laliberte, now of Anarcho-Papist, wrote an interesting piece on his old blog, Amtheomusings, about the possibility of reunion between the Roman Catholic Church (to which he belongs) and the Eastern Orthodox Church (to which I belong.) Laliberte is, as is typical of Catholics, far more optimistic for such a reunion than am I (or most traditionalist Orthodox.)

I have linked to Laliberte’s post above; if you haven’t read it, please go do so now, as the rest of this response will assume that you have read it and are familiar with it or can at least refer back to it as necessary.

Laliberte’s summary of the problems between his communion and my own is not a bad one, overall and as traditionalist/conservative Roman Catholic interpretations go; he neither dismisses the differences as inconsequential nor resorts to invective against the ‘Greek schismatics’. But he fundamentally misunderstands the Orthodox conception of doctrine and authority, and in doing so he underplays the amount of difference that exists between our churches, by dramatically understating how many doctrines the Eastern Orthodox Church actually has.

Take a look at this sampling of quotes from Laliberte’s article:

‘All doctrines in Orthodoxy Catholicism accepts.’

‘So, all ecumenical councils before the Great Schism the Catholic and Orthodox Churches are agreed on; the difference is that the Orthodox Church doesn’t believe that any ecumenical councils have been held.’

‘The difference then lies in that Catholicism has developed its doctrines for the last 1000 years, whereas the Orthodox has effectively not. The Catholic Church has more doctrines than the Orthodox Church, such as the filioque, papal infallibility, and even counter-intuitively, the canon of Scripture.’

The problem here is that Laliberte identifies Orthodox ‘doctrine’ as existing only in the proclamations of the Ecumenical Councils (we’ll leave aside for now the murky issue of the eighth and ninth Ecumenical Councils, and also the significantly less murky matter of the Quinisext Council or ‘Council in Trullo’, both of which would be problematic for Laliberte’s claim of agreement up to the point of seven ecumenical councils and then no further development on the Orthodox side). This is not really an accurate understanding of where Orthodox doctrine comes from. To claim, for instance, that the Orthodox ‘have no doctrine’ when it comes to the issue of the canon of Scripture, because said canon has not been dogmatised by an Ecumenical Council, is dubious at best.

The Orthodox Church finds Her doctrine in Holy Tradition. However, Holy Tradition is found in the entire life of the Church, in the entire consensus fidelium. We cannot accept the Roman idea that the Tradition ‘grows’ or that doctrine ‘develops’; we do not have any ‘new doctrines’ unknown to the Apostles. The Councils do not establish new doctrines but merely defend against attack the same doctrines we have always held.

His Excellency, Metropolitan +KALLISTOS (Ware) of Diokleia, writes the following on the subject of Holy Tradition:

To an Orthodox Christian, Tradition means the Holy Bible; it means the Creed; it means the decrees of the Ecumenical Councils and the writings of the Fathers; it means the Canons, the Service Books, the Holy Icons, etc. In essence, it means the whole system of doctrine, ecclesiastical government, worship and art which Orthodoxy has articulated over the ages.

Thus, we can see that Laliberte makes an error by limiting Orthodox doctrine to only the proclamations of the Ecumenical Councils, and in so doing dramatically understates the amount of doctrine that we in fact have.

For example: It is simply not correct to say that the Catholic Church has developed the doctrine of the infallibility of the Pope while the Orthodox Church has remained silent, as if the Orthodox Church could tomorrow simply ‘catch up’, ‘develop’ this novel doctrine, and move on without abandoning any doctrines we now hold. This is not the case. Rather, we have advanced, counter to papal supremacist claims, a competing, incompatible ecclesiology that stresses the headship of Christ over the Church and the fundamental equality of all bishops, with what hierarchy exists among them a mutable, human, oikonomic institution. This is an Orthodox doctrine, albeit not one laid out with the force and clarity of an Ecumenical Council.

Similarly, our different understanding of Original Sin, our position in the hesychast controversy, and our understanding of the procession of the Holy Spirit from the Father alone are all doctrines, not merely the lack of some doctrine propounded by Rome.

Ultimately, no reunion can take place without one Church or the other simply admitting it was wrong and being more or less subsumed into the other. I do not believe there can be any way around the claim that exactly one Church is wrong and has been since the schism, except to argue that both Churches are wrong. If a reunion were to take place on these terms, we could not have the Orthodox Church reenter communion with the Catholic Church while the one remained Orthodox and the other Catholic. One or the other Church must surrender Her identity as she has come to understand it. An Orthodox Church that accepted the Papacy simply would not be Orthodox, in the way we use that term now, and a Catholic Church that renounced the filioque would be in much the same position.