Why Law Shouldn’t Be Based on Morality

There’s a common argument that law ought to be based on morality, but I disagree. While there is a huge amount of overlap, law and morality operate on slightly different planes. I wrote about this in Rethinking Religion, but I feel like elaborating on it a bit more.

I think law should not be based on opinions of what is right or wrong, but on the objective needs of civil society, local and national. Morality is more about interpersonal relations and how each of us as individuals relate to other living beings and the planet generally. But not everything we might think is immoral needs to be illegal.

Put another way, if there is an evidence-based argument that regulation of X would make an empirically measurable improvement in a community or nation — data that show regulation of X will reduce pollution or crime or enhance property values or something — then by all means, regulate X. But if the only reason for regulating X is that some people think it’s just morally wrong, then I say leave it alone. And I would say that even if I agree that X is morally wrong.

For example, most of us might agree that marital infidelity is morally wrong. But many of us might also agree that enforcing faithfulness is not the government’s business.  However much unfaithfulness might damage a marriage, this is something the people in the marriage need to work out for themselves.  Marital faithfulness cops would be uncomfortably intrusive into our personal lives, I would think.

It also tends to be the case that where infidelity is illegal, somehow only women are prosecuted and punished. Bleep that.

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There are some behaviors that we might agree are morally wrong but which can’t be stopped by banning it. I’m thinking now of abortion.  I’ve been arguing for years that even if there were a broad consensus to create policy to stop or reduce abortion, criminalizing it doesn’t work.

How so? There is all kinds of hard, real-world data showing that abortion law has no impact on abortion rates. Some of the highest abortion rates on the planet are in places where abortion is illegal. Some of the lowest abortion rates are in places where it is legal. I understand that when a country changes its abortion laws, whether to legalize or criminalize, any subsequent change in the rate of abortions is temporary. Eventually the rate settles back to what it had been before the law changed.

People who succeed in criminalizing abortion may congratulate themselves for standing up for morality, but they aren’t saving babies. And where abortion is criminal, it’s also much more dangerous for women. Around the world, the enormous majority of deaths of women from botched abortions occur where abortion is illegal.

I was reminded of this when I found an old blog post written by a former anti-abortion conservative Christian who is now a pro-reproduction rights atheist. “How I Lost Faith in the ‘Pro-Life’ Movement” lays out all the arguments I’ve been making for years, clearly and logically.  The author, Libby Anne, also was shocked to learn that the one thing proven by copious data to reduce abortion rates is use of birth control.

Do read the whole thing. Libby Anne concluded that the tactics of the abortion criminalization movement are utterly illogical if their goal was to reduce abortions and save babies. However, it makes perfect sense if their goal is to punish women for their sexuality. See also “What If Banks, Not Abortion Clinics, Needed Buffer Zones?,” which is a short excerpt from Rethinking Religion.

I’m not happy with the pro-reproductive rights side, either. I have felt for years they should be broadcasting the fact that criminalizing abortion doesn’t stop it as loudly and as broadly as possible, and I am ignored. Arguments purely based on a concept of rights are not persuasive to people who are uncomfortable with women having rights, especially sexual rights. I wrote about morality last week,

Notice that most of our hot-button and never-ending public squabbles about what’s moral and what isn’t touches on the same two issues — sex and death. That’s because these are two issues most of us are really emotional — and often conflicted — about. Lying, stealing and cheating, by contrast, are not nearly so controversial.

But regarding sex, it’s really women and sex that set off everybody’s crazy alarms. There are all kinds of ancient taboos about women and purity and whatnot ground into us that are still jerking us around, whether we admit to it or not. Male sexuality doesn’t trigger anywhere near the same degree of angst.

A few years ago I wrote an article for About.com on Buddhism and Abortion. I still get comments on it sometimes, mostly from people who don’t seem to have read it carefully. Yes, most schools of Buddhism consider “a life” to begin with conception, and terminating a pregnancy is a violation of the First Precept.

However, Buddhism takes a more situationist than absolutist  approach to moral questions. Instead of rigidly applying one-size-fits-all rules, individuals are encouraged to weigh the possible consequences of their actions, taking in all the people affected. We are encouraged to reflect on our own intentions and motivations. And then we consider all that in light of the Buddha’s teaching. That said, I can think of a great many circumstances in which abortion may be a morally justifiable decision.

And, in any event, we have real-world evidence that the many nations with legal abortion are not suffering catastrophes because of it. Even if we agree abortion is immoral, there is no civil purpose to be served by making it broadly illegal.

Not only does criminalizing abortion push women into risking their lives to terminate pregnancies, I understand there are places in Latin America where women avoid getting medical care after a naturally occurring miscarriage because they fear being prosecuted for getting an abortion. Abortion may be immoral, but criminalizing it also leads to a kind of immorality, seems to me.

5 thoughts on “Why Law Shouldn’t Be Based on Morality

  1. Marsel

    Very well written. I’d like to hear your opinion on the discrepancy between male and female sexuality. Hope you read this.

  2. wheninrome

    Hi, i’m 3 years into my law degree, and I feel I have some say in this issue. Though I agree that law sometimes requires a trade-off between practicality and moral values, these values are ultimately based of morality to the extent that the value we put upon practicality is morality. They are inseparable by nature.
    Take your example for abortion. Laws which attempt to preclude abortion tend to be ineffective,so why restrict liberty at its expense?
    However, something to note is the value upon we attach liberty is in and of itself a moral value.
    Take marital infidelity as well. Ultimately you are in favour of minimizing the obstacles to self-determination. A moral virtue.
    There are also other arguments for basing laws other than liberty, such as the harm principle. But again, some forms of harm upon we attach derision towards is by nature derived from our moral values.

    As such:
    Laws are inseparable from morality insofar as law is the application of morality.

    In addition;

    The question shouldn’t be “should laws be based on morality” but more so “which moral ideologies should we base our laws upon?”.

    1. Barbara Post author

      The value we base our laws upon is a civil society in which people can live in secure communities, engage in commerce, and generally do all the things people living in communities like to do. Without law, we’d still be living in caves guarding our flint arrowheads from the people living in other caves. Civilization itself is not possible without law.

      However, we get into trouble when we criminalize things based on some people’s ideas of morality, where there the behavior criminalized is not harming community life in any way.

      There is no evidence whatsoever that decriminalizing abortion causes a breakdown of civilization. In fact, there is no evidence whatsoever that criminalizing abortion stops abortion, or even reduces the rate of abortion. All that criminalizing abortion accomplishes is driving abortion underground. There is copious real-world evidence showing that conservative countries that criminalize abortion have actual higher abortion rates than liberal ones, and a big reason for that is that more liberal countries tend also to make birth control easily available. Here is a new article on this, but there is data going back years.


      So, the argument isn’t just that abortion laws aren’t enforceable; it’s that abortion laws cause more problems than they solve. Back-alley abortions kill tens of thousands of women every year *in countries where abortion is criminal.* In some places in Latin America (where abortion is criminal about everywhere, and which has a considerably higher rate of abortion than the U.S.), women are afraid to seek medical help after a natural miscarriage because they are afraid they will be prosecuted for having abortions. Women who are convicted are separated from their children and thrown into prison, and doctors face jail time also. And for what, considering that abortion rates are about the highest on the planet in Latin America?

      Women who are facing an unwanted pregnancy will risk their own lives to abort, because pregnancy is more than a little inconvenience. It’s literally a life-changing event, under the best of circumstances. Criminalizing abortion basically makes all pregnant women wards of the state. It’s fine to make grand speeches about the life of the fetus, but what about the rights, and the individual moral agency, of an adult woman? Are women just brood animals to you?

      See also:


      Here’s another post on this blog on morality:


      My argument here is that our job, as a society, is to identify those behaviors necessary for maintaining a civil society that need regulation, but to allow people to decide for themselves what to do about the other stuff that doesn’t impact the whole community. People might decide to do stuff you might not like, but that’s what freedom means.

  3. Michael

    I think people forget ; Lawrence v. Texas, 539 U.S. 558, was a landmark decision of the U.S. Supreme Court in which the Court ruled that sanctions of criminal punishment for those who commit sodomy are unconstitutional.
    Which I believe was a law based completely on morals ( the Court ruled that sanctions of criminal punishment for those who commit sodomy are unconstitutional). Thus for myself, identifying as a homosexual transsexual whom is female roled sexually, I was a criminal in the eyes of the Law from age 13 til age 41 and didn’t even know I was breaking the law.


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