Law and morality

Within the tradition of natural law thinking which finds its roots in the philosophies of Aristotle and Aquinas, the political community has generally been understood in terms of a fundamental goal: that of fostering the ethical good of citizens. Law, on this conception, should seek to inculcate habits of good conduct, and should support a social environment which will encourage citizens to pursue worthy goals, and to lead valuable lives. Pragmatic considerations may sometimes suggest the wisdom of restraint in the pursuit of these goals, and citizens may therefore, on appropriate occasions, be left free to indulge depraved tastes or otherwise fall short of acceptable standards. Such pragmatic arguments for the freedom to engage in vice, however, do not call into question the legitimacy of the state’s concern with individual morality.

By contrast the liberal tradition has tended to place constraints of principle upon the scope and aims of the law. The most influential such attempt was J.S. Mill’s advocacy of ‘the harm principle’: that the law may forbid only such behaviour as is liable to cause harm to persons other than the agent. Many difficulties surround this and other, more recent, attempts to formulate and defend constraining principles. For instance, should one take into account only the immediate effects of behaviour, or more remote and diffuse effects as well? Thus it is argued that immoral behaviour which in the short term ‘harms nobody’ may, in the long run, lead to a decline in morality in society at large and thereby to diffuse harmful effects.