Legal Moralism in Tension with Justice: Robert George’s Making Men Moral

Liberal and libertarian critics of legal moralism argue that criminal laws designed to uphold personal morality are inherently unjust. A core liberal claim is that the state shouldn’t be in the business of enforcing legislation that reflects controversial conceptions of the good, such as certain natural law theories, that not all people have good reason to endorse. This includes conceptions of morality going beyond protection of basic rights or claims of justice (e.g., laws against murder, assault, and theft). Rather, legal moralism holds that there are some acts and practices that count as personal immoralities subject to the law. While they may not directly harm others or violate their rights, they should still be subject to regulation or prohibition. Opponents of legal moralism contend that enforcement of laws that don’t align with the value commitments of certain people are tantamount to unjust impositions on those people’s ability to live as they see fit, even if others disapprove of those ways of life.

By contrast to these critics, Robert George contends that a central thesis of his book Making Men Moral “is that there is nothing in principle unjust about the legal enforcement of morals or the punishment of those who commit morals offenses” on matters that go beyond violations of rights or justice claims.¹ There may be practical difficulties with implementing such laws, but these concerns alone aren’t enough to mount a philosophically rigorous critique of legal moralism.

This essay will focus on why George fails to defend legal moralism informed by natural law theory. The issue isn’t only that his account is controversial (what account isn’t?), but that it’s also unjustified to many who would be bound by its laws. That is, they have no good reason to regard as intrinsically immoral acts or practices which some natural law theorists claim are intrinsically immoral.

According to George, laws forbidding certain powerfully seductive and corrupting vices can help people to establish and preserve a virtuous character by (1) preventing the (further) self-corruption which follows from acting out a choice to indulge in immoral conduct; (2) preventing the bad example by which others are induced to emulate such behavior; (3) helping to preserve the “moral ecology” in which people make their morally self-constituting choices; and (4) educating about moral right and wrong.

George grants that laws can’t literally make people moral, but they can make it easier for people to improve morally by removing the temptations of the more serious vices. People must still choose to pursue objective human goods, which takes effort, often made more difficult by conflicting feelings. By prohibiting some sources of temptation on which these stray feelings attach, there may be less temptation and hence fewer instances of immoral behavior, even though the ultimate choice to pursue basic goods remains with the person.

Unlike many classically liberal views, where the state is seen (in theory) as an impartial umpire protecting people’s freedoms to do as they wish so long as they don’t harm others, George defends a politics rooted in classical natural law philosophy, influenced by Aristotle, Aquinas, and John Finnis, among others. On this view, a political community exists primarily for the sake of helping its members cooperate toward the pursuit of basic natural human goods (e.g., health and vitality, knowledge, play, aesthetic experience, sociability, practical reasonableness, and religion). These goods provide every human with basic reasons for action; that is, they cannot and need not appeal to even more fundamental reasons. They are self-justifying and comprise the essence of what it is to be a rational goal-directed human in a community. Vices reflect immoral acts or practices that undermine the pursuit of these basic goods as natural human ends.

Freedom of expression, while valuable, isn’t enough for moral development in this sort of polity. Moral arguments can only inform most people of the right thing to do but can’t motivate them to do it when they lack the character to strive for perfection. For Aristotle, most people are motivated more by fear of punishment than by a sense of what is noble. George summarizes Aristotle’s claim thusly: “Once the law is successful in calming his passions and habituating him to doing what is right and avoiding what is wrong, [a person]—unlike a brute animal—may gain some intelligent, reasonable, and reflective control of his passion.”²

People tend to resent prohibitions levied by specific people on certain others, but they won’t tend to resent general prohibitions applicable to everyone by law. This generality of law also improves other institutional sources of moral education: “parents can prohibit a certain act, but their likelihood of success in enforcing the prohibition, and transmitting to their children a genuine grasp of the wrongness of the prohibited act, will be lessened to the extent that others more or less freely perform the act.”³ Preserving morality is a collective human endeavor because we are social beings. Its preservation is imperiled when some members of society free ride on the efforts of those who aim to uphold pursuit of the natural human ends that comprise virtue.

Aristotle’s concerns about widespread immorality motivate George’s defense of legal moralism. So-called “private vices” aren’t limited to harming offenders alone since they also damage the moral ecology: weakening marital and familial bonds, normalizing mindless character-eroding distractions, and steering young people away from pursuit of virtue with a hedonistic fixation on satisfaction-seeking through vices like pornography, prostitution, drug use, and promiscuity. Libertarians may argue that such vices are not crimes, but vices are nonetheless barriers making a moral life more difficult to lead in societies that tolerate or even valorize them. They may only do physical harm to the offenders, but they do moral harm both to offenders and communities.

Unlike Aristotle, George is a pluralist. He contends that there are multiple sources of goodness which individuals may manifest in diverse ways, according to their unique traits and circumstances. “People are fulfilled in part by deliberating and choosing for themselves a pattern of their own. Practical reasoning . . . consists precisely in bringing reason to bear in deliberating and choosing among competing valuable possibilities, commitments, and ways of life.”⁴ Aristotle failed to recognize diversity and equal human dignity, which left his political society hierarchical and authoritarian by modern standards. That said, pluralism about goods doesn’t rule out universal vices that are inconsistent with any type of good life. The law may play a role in prohibiting people from chasing these bad practices.

Though the law may prohibit certain bad practices, George insists that “wise legislators whose goal is to encourage true moral goodness, and not merely the outward behavior that mimics true virtue, will therefore seek to secure and maintain a moral ecology that is inhospitable not only such vices as pornography, prostitution, and drug abuse, but also to the vices of moral infantilism, conformism, servility, mindless obedience to authority, and hypocrisy.”⁵

This is a crucial concession both to the importance of pluralism and the cultivation of adult maturity levels. George does not seek a society where a wise lawgiver merely lords over servile chess pieces outwardly conforming to moral demands. His legal moralism aims to protect each of us precisely insofar as we can choose the right path, while the legal prohibitions are meant to keep our choices from leading us to stray too far from that path. But we must be allowed some room to stray, nonetheless. “Any legislator who understands the human good . . . will recognize that there are many important goods that people ought to realize in their lives whose realization is possible only if people . . . adopt a morally upright option in situations where at least one option that they are rejecting would be to do the morally wrong thing.”⁶

This is another crucial concession, for then one wonders how George would reply to the person who seeks more exposure to a greater number of morally wrong or bad options than George himself acknowledges is necessary for the human good to be freely willed. Perhaps there is a tradeoff, where the optimal number of bad options is less than what this extreme position seeks, just as the “optimal” level of pollution is greater than zero but also below a threshold that produces harm on net. Of course, vices are not exactly analogous to pollution since the harms of the latter are largely unavoidable—one often can’t choose not to be affected by physical contaminants.

However, George acknowledges that any adult can avoid vice willingly, although some occasions are more difficult than others. Natural law may correctly identify objective basic goods; nonetheless, some people may still be committed to making all their morally self-constituting choices free of coercion, even if such a freedom renders it more likely that they will choose some vices and thus self-corrupt. Perhaps they, too, are looking to avoid moral infantilism, conformism, and servility to a higher degree than they can realize in a society governed by some degree of legal moralism.

Here, George may reply: “all require freedom if they are to flourish; but unlimited freedom is the enemy, not the friend, of everyone’s well-being.” While some people may desire unlimited freedom, most with good reason to be moral would rationally welcome some degree of restriction on freedom if that can prevent them from engaging in acts or practices “that are incompatible with any morally good life.”⁷ After all, people must still choose to act morally even if they are legally prohibited from acting in bad ways—preventing the more egregiously bad ways doesn’t itself guarantee pursuit of good ways. Isn’t that the most anyone would want or need with freedom? Freedom to walk on a tightrope with a safety net is considerable, but what is added to freedom by removing the net?

Still, ruling out the freedom to engage in (putatively) personally immoral acts seems to thwart radical Millian or Foucauldian experiments in living by assuming everyone has a rational essence to be unlocked through living morally. Processes of experiencing and learning may not themselves constitute a morally good life, but they may still be paths to such a life some would rather take than be prevented outright by the law. If practices like drug use and prostitution are so bad, they may still serve an educational purpose. Why not let the curious ones experience them in limited doses, if only to learn firsthand and convey just how bad they are?

So far, I have assumed that George is correct that some of his candidate vices aren’t compatible with any morally good life. However, it’s unclear why we can’t extend pluralism to these alleged vices as well. On reflection, it’s far from evident how any of the vices he describes must detract from pursuit of the basic goods and must constitute intrinsically immoral acts or practices that contravene these goods. George operates from a conservative set of values in which heterosexual monogamy among married couples is assumed as the only virtuous form of sexuality, all departures being defective if not morally degenerate. This risks a parochial assumption that these values are appropriate for everyone and departures are inappropriate for anyone. More empirical evidence is needed that the purported vices are really such, and unfortunately George provides none. George seems to suggest that we rationally intuit the intrinsic badness of these vices, and failure to intuit is evidence of a rational shortcoming rather than evidence of absent badness. This fails to be persuasive.

Those who don’t share George’s intuitions may raise some questions. What about successful polyamorous relationships and communities? Will these tend to bring moral decay to their practitioners or bystanders? Would George also condemn kinks and other “unnatural” sexual practices? Why does he deem bondage magazines or brief encounters in bathhouses as “low” (the latter suggesting at least a partial condemnation of homosexuality)?⁸ What makes prostitution and other forms of sex work inherently immoral? Are all forms of pornography degrading to their participants, or only some forms? And how do we define pornography exactly? What about role-playing in sexual activity that may not reflect genuinely disrespectful attitudes? Why couldn’t moderation in drug or pornography use add some harmless pleasure to one’s life, or at least not detract from one’s moral improvement, provided they’re not a matter of addictive and compulsive abuse and don’t lead to further bad effects?

George may be able to provide empirical evidence about the widespread deleterious effects of such practices, but he doesn’t. Nor does he tell us why they are intrinsically immoral, other than we can grasp that they depart from the natural functioning of humans. (More on this later.)

Skeptical responses may emphasize context in addition to the above questions. The extent of harm could depend on the psychology of the user rather than some inherent immorality packed into the acts themselves. Pornography may be an innocuous form of sexual exploration for some consumers but a numbing and joyless addiction for those whose lives already feel empty and lonely. Polyamory may work for those open to exploring multiple relationships but not for those who find more fulfilment in exclusivity. Some people may enjoy casual sex while others need emotional attachment first.

Nobody is inherently right or wrong to believe and feel as they do. So, what evidence is there for why all these purported vices are universally immoral in all contexts? How do they detract from or contradict the cultivation of basic goods? Ironically, the negative stigma and/or prohibition of these practices often drives them underground and makes them take on the uglier characteristics which detractors accuse of being endemic to them.

We can say all of this without endorsing Ronald Dworkin’s claim that legal moralism necessarily violates equal respect for individuals. George is correct to rebut this point: “Where demeaning, degrading, or destructive self-regarding conduct is involved, there certainly need be nothing inegalitarian in legislation aimed at preventing it. Such legislative action certainly (but not arbitrarily) prefers some types of conduct over others; but it just as certainly need reflect no preference of one person (or class of persons) over another.”⁹

George contends that anti-pornography legislation can advance everyone's interests by preserving a cultural structure that emphasizes the dignity and beauty of sexuality. Otherwise, right-minded people may stray from healthy sexual practice because the temptation of pornography looms. But George also contends that such legal moralism does not damage the self-respect of detractors. Those who oppose such legal interference face no threat to their self-respect precisely because they regard anti-pornography statutes as misguided. The law may disagree with the detractors, but in the end, their confidence in their convictions supports their self-respect in ways that no law can touch. A law may restrict their freedom, but it doesn’t follow that it diminishes their self-respect.

This is a curious admission, however: if detractors’ self-respect can survive invasive laws condemning their consumption of pornography, why can’t allegedly healthier sexual attitudes also survive the non-invasive presence of pornography? Those who find pornography offensive and degrading have the strength of their convictions to ignore it. George can’t have it both ways. Is he implying that the average porn consumer is made of tougher stuff than the average virtuous churchgoer?

Asserting that these practices are self-evidently wrong is only convincing to those for whom this is self-evident, but maybe that observation is more a reflection of natural law theory’s metaphysical premises than a universally valid insight. After all, the natural law approach presumes metaphysical views, often (not always) tied to certain theistic commitments, about a goal-directed cosmos and a goal-directed rational human essence. Accepting these premises makes self-evidence clearer, while not accepting them leaves the evidence inconclusive at best. These may have been Aristotle and Aquinas’s views, but why should we all share such views? Evolutionary theory provides ample evidence that species evolve to fit specific conditions in their environment conducive to survival and reproduction. Many believe that this evolution is not guided by some ultimate end of perfectibility, so the notion of unique and universal human functions remains mysterious, especially in non-theistic contexts. By contrast, classical natural law theory holds that individuals, society, and perhaps even the universe have a telos, or overarching goal, whether as designed by God or suffused into the nature of things. While George and other natural law theorists believe certain human ends are natural and require no further non-instrumental justification, this is hardly self-evident to those who have a stronger reason to believe the world is a messier place.

That being said, many of the basic goods George outlines could well operate as basic reasons in many people’s scheme of values—without necessarily reflecting deeper metaphysical commitments such as natural law. But notice that eschewing reference to universal natural human ends may expand the ways these goods instantiate themselves in specific ways of life. Take sociability and play. On this account, perhaps experimenting with alternative romantic and sexual relationships through (say) polyamory or pornography might better express some people’s beliefs and attitudes than would traditional arrangements. Certain alternative forms of play and sociability may also work best for asexual people. It’s an empirical matter whether some approaches are universally better, or whether there is a plurality of approaches better for some but not others. Either way, questions of harm need not be moralistic here. If some practices degrade human sexuality, it’s largely because they reflect disrespectful attitudes that should be avoided in any context, not because certain physical acts are “unnatural.”

George might respond that even if one rejects his specific claims about victimless immorality, that doesn’t rule out legal moralism in principle. This would be a hollow victory, though. If any one piece of legislation on personal morality can be reasonably rejected by some people, doesn’t that render legal moralism an empty set even if some as-yet unforeseen legislation may be possible in theory? More strongly, if a given view about “natural” human biological functioning is contestable, that weakens the case for it justifying legal coercion of those not rationally required to endorse that view.

Forcing people to live in ways they don’t consider valuable is unjust, and so is forcing them not to live in ways they consider valuable.