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In modern Western political and legal thought, the subject of legal enforcement of morality is narrower than the literal coverage of those terms. That is because much legal enforcement of morality is uncontroversial and rarely discussed. Disagreement arises only when the law enforces aspects of morality that do not involve protecting others from fairly direct harms. More precisely, people raise questions about legal requirements (1) to perform acts that benefit others, (2) to refrain from acts that cause indirect harms to others, (3) to refrain from acts that cause harm to themselves, ( 4) to refrain from acts that offend others, and (5) to refrain from acts that others believe are immoral. Answers to some of these questions may be affected by whether the relevant moral judgments are essentially religious. Subsidiary questions concern the appropriateness of taxes adopted to discourage behavior the government should not forbid outright and the appropriateness of prohibitions on others profiting from such behavior (as when someone lives off the earnings of prostitutes).

Since it is rare that one argument for restricting behavior will stand by itself, with no other arguments supporting restriction, a conclusion about a single theoretical issue will not usually yield a decisive answer as to whether any particular behavior should remain free. However, a conclusion that some argument for restraint is unwarranted can significantly affect the overall power of the totality of arguments. For example, if someone concludes that the claimed immorality of homosexual behavior is not a proper basis on which to forbid it, this will substantially affect the overall strength of reasons in favor of prohibition.

A final subtlety concerns two perspectives from which to consider the subject of the legal enforcement of morality. One perspective is that of legislative philosophy: "Should the legislature enforce morality by law?" The second perspective is that of a court in a constitutional regime: "Should enforcement of morality count as a legitimate basis for legislation that is challenged as invalid?" One might think that legislatures should not rely upon certain reasons, but that courts should accept them as adequate if legislatures do rely upon them. In addition, a reason might be acceptable for most legislation, but not, say, for legislation that infringes on liberty of expression. Finally, a reason might be acceptable as a matter of general philosophy of government, but not in a constitutional regime that mandates the separation of church and state.

This Article explains these major questions in turn, but first addresses the self-evident point that legal enforcement of morality is usually appropriate.


Criminology and Criminal Justice | Law | Legal Theory