Against Traditional Morality
by James Hanley
Guest author: James Hanley.
Tom Van Dyke has written a very thoughtful post about the role of traditional morality in law. There are various points at which we could quibble with his argument, but here I offer a direct rebuttal of his support for traditional morality as a basis of law, arguing that traditional morality is, in its essence, the morality of majority tyranny, an expression of nothing more than fear and intolerance, and as such it is legitimately rejected as a basis for law. In a sense, I want to build an explicit argument in favor of—in Mr. Van Dyke’s world—exiling moral reasoning from public debate.
The Burkean Approach
That is not to say, nor even to imply, that Tom Van Dyke’s argument is based in fear and intolerance. Critical to understanding his concern is a recognition of his essential Burkeanism, the belief that traditional practices often develop and persist for good reason; that often their very resilience over time—their failure to have been rejected long ago—demonstrates their social value; and that this demonstrated value stands in sharp contrast to the unproven value, and unknown risks, of new innovations. This is not a position that opposes all change simply because the traditions are known and comfortable, and much less is it a position that opposes change out of simple intolerance. Edmund Burke himself demonstrated this, rejecting the French Revolution for being too far-reaching, but supporting the American Revolution.
I think I am correct in describing Tom this way (and of course I invite him to correct me if I am wrong), because this is a trait he and I share, and because he made the Burkean argument very clearly in that thread, when he said;
It is rational to support [DOMA] then and now simply out of caution, that we don’t know the effect of … instituting gay marriage and therefore DOMA’s restriction on nationalizing the SSM question is prudent at this time. Let the states experiment, via federalism.
Anyone sharing those Burkean sensibilities cannot simply dismiss out-of-hand his concern for the tradition of using traditional morality as a basis of law (note the distinction between traditional morality and the tradition of using traditional morality; I’ll come back to that). And for those who don’t share our Burkean sensibilities, it is important to note that an argument that simply dismisses caution cannot move him because it does not come within shouting distance of addressing his primary concern.
Nor will my argument here persuade him, but that’s ok. My purpose is not to persuade him, but to lay out an alternative understanding of the role of traditional morality in law, one that a Burkean can, but is not compelled to, accept. I claim that traditional morality, as we are using that term in these debates, has been demonstrated to not have sufficient value to continue to command our respect.
A crucial element for my argument is that the Burkean approach does not itself require acceptance of traditional morality. This is what I mean by the distinction between “traditional morality” and the “tradition of relying on traditional morality.” Burkeanism is a methodological approach, and is itself devoid of social content. A country that lacks an Americanist traditional morality, for example, would be well advised—by a Burkean—to be cautious about adopting our moral traditions. So a Burkean approach does not value traditional morality for the value of its moral content, but only for the value of its tradition.
Critique of Traditional Morality
While traditional morality deserves respectful consideration that does not mean it is immune from critique. And if a critique finds it lacking, then Burkeans can, without contradicting their innate caution, reject it as a guide and accept (with requisite caution) an alternative standard, particularly if that standard has its own substantial track record.
Traditional morality largely consists of the sum of a past majority’s collective values vis a vis a minority. The critical question is what constitutes the basis of the majority’s valuation—if morality serves as a basis for law, what serves as the basis for the morality itself? My claim is that there are two bases for that morality, harm and offense. Harm is the root principle for moral opposition to rape, murder, theft and such similar actions that cause clear identifiable harm to discrete identifiable individuals. Offense is the root principle for moral opposition to things for which the majority has an aesthetic dislike, but that can’t be demonstrated to have a clear identifiable harm to discrete identifiable individuals.
Some comments for clarification. First, harm and offense are not mutually exclusive. In a Venn diagram, the circle of harm would be mostly, if not entirely, within the circle of offense. But the two circles are not coterminous; there is a large section of the offense circle that lies outside the borders of the harm circle. Second, these bases subsume religion, whose stricture are also are based on these two principles. Third, this lack of identifiable harm to identifiable individuals is often obscured by claims of harm to “society,” but society is simply the sum total of individuals and their actions, so if harm to individuals cannot be demonstrated, neither can harm to society.
Harm is an appropriate basis for law; offense is not. Harm protects the real interests of individuals, whereas offense only protects their sensibilities, most often at the expense of the real interests of other individuals. Indeed, offense is nothing more noble than fear and intolerance of those that differ from us. Offense-based moral judgment has always been directed at a minority who cannot in fact be shown to be causing harm to anyone, except, perhaps, themselves.
The great achievement of the enlightenment was the challenge to moral-based thinking. That challenge left harm-based judgments intact, but has consistently demonstrated offense-based moral judgments’ lack of value. Hence we have, one by one, eliminated barriers to individual conscience in religious faith, to women’s participation in politics, to ethnic minorities’ participation in politics, to inter-racial marriage, to mutual satiation of sexual desire, to dressing comfortably in summertime, and so on. Each of these has successively been shown to not cause any identifiable person harm, but to be based merely on dislike for those who have different subjective values.
In keeping with a Burkean approach (although I do not know that he is a Burkean), Burt Likko wrote;
“Assuming arguendo that cultural caution is inherently a legitimate governmental objective, at what point does the accumulation of data mitigate against its pursuit? When Congress passed DOMA, SSM was a new cultural phenomenon in western industrial society; in 2012, we can look north of the 49th parallel and see what its seven years’ worth of its effects have been on Canadian culture, government, or morality (by all available measures, zero). At some point, enough data is generated from laboratories in individual states or other nations that the call to caution and prudence stops being a legitimate objective and starts being a tissue for obstructionism.”
He is correct, but I want to go farther. At what point does the accumulated data against offense-based morality itself justify our rejection of it as a legitimate basis of law? When has offense-based morality ever demonstrated real value? Rather, it seems to me that each time it has been challenged its alleged value has ultimately failed to be substantiated. A long string of case-by-case challenges to it has demonstrated that it serves no purpose other than to promote the fear and intolerance of the majority toward an unusual minority.
While it is not direct evidence of animus, political scientist Barbara Gamble studied direct democracy’s effect on the rights of political minorities and found that voters passed over 75% of initiatives that either repealed civil rights protections or barred new ones from being enacted, while only passing about 33% of other types of intiatives.* It surpasses belief that civil rights protections could be reasonably viewed as so much more harmful than other types of initiatives, and it is hard to escape the conclusion that there is little more going on than expressions of the majority’s hostility toward harmless minorities.
In the first quote linked to above, Tom wrote;
[DOMA] does not require an animus against any person or group of people.
I disagree. All offense-based morality is based on animus toward those who dare to differ from the majority. And offense is an unacceptable basis for law.
Tom also writes that:
my primary concern is that moral reasoning is being abolished in judicial theory as inherently failing “rational basis.”
Tom’s concern is my goal. I think the historical record makes it clear that offense-based moral reasoning does inherently fail the rational basis test. In fact this is effectively the extant tradition, as one offense-based social policy after another has been demonstrated to serve no rational government purpose. Our cultural, political and legal traditions have demonstrated the invalidity of offense-based moral reasoning, and any law that is primarily justified on such a basis should, at a minimum, be viewed with intense skepticism, by Burkeans as well as by any other observers.
*Gamble, Barbara S. 1997. “Putting Civil Rights to a Popular Vote.” American Journal of Political Science 14(1): 245-269.