Let’s think about what legislating morality is likely to achieve. What are the costs and benefits of, for example, outlawing public indecency or selling chametz on Pesach in Israel? What are the costs and benefits of government non-recognition of same-sex unions or heterodox marriage and divorce?

To repeat a point I’ve already made, I’m entirely unpersuaded by a priori normative arguments against (or for) such legislation. I don’t understand the difference between “public arguments” (good) and “comprehensive theories” (bad). Likewise, I don’t understand why arguments from religion are unacceptable, but arguments from other no-less-rigid ideologies (pick your favorite contemporary –ism) are fine. I don’t see why forbidding the sale of whale blubber on kashrus grounds is illegitimate but forbidding it on ecological grounds is praiseworthy. I also don’t understand how we might distinguish a priori between water pollution as a negative externality and indecency as a negative externality.

Of course, I don’t understand all those things because I belong to a community and community-based ethics and divinity-based ethics are meaningful to me. If I were unaffiliated and understood only autonomy-based ethics, all the above distinctions would be obvious to me.

None of which means that legislating morality is necessarily a good idea, even for those who are affiliated with a community. In this post, I’ll state the perfectly obvious idea that those who wish to strengthen Judaism as a community endeavor might find that the costs of such legislation outweigh the benefits. In the next post, I’ll explain why certain legislation will almost certainly weaken precisely the communities we wish to strengthen.

Suppose we (whoever “we” happens to be) have the power to pass some legislation designed to anchor some moral principle in law, say, forbidding the sale of pork. Of course, the underlying moral principle in this case is meaningful to me but probably completely inaccessible to many other people. What are the benefits to me of such a law? Well, I’m likely to get a public square more to my taste. If the sight and smell of pork makes me ill the same way polluted air makes some people ill, such a law might help me avoid it. If seeing people blithely flouting our common heritage offends my moral sensibilities the same way that the sale of cat or dog meat might offend their sensibilities, such a law might spare me such offense. If I genuinely fear for the souls of sinners, such a law might save them from the fires of hell. Indeed, such a law might even help to strengthen national solidarity by contributing to a core of shared values.

But what is the cost I incur from such a law? Well, obviously it can backfire. It might cause resentment among people who might otherwise have not had any particular interest in pork and result in more commerce in pork than there might otherwise have been. It might also increase divisiveness and weaken solidarity. But I think the main cost has to do with a very real “veil of ignorance”. We might have the power to pass some legislation today that pushes some moral principle that we believe in. But we are quite ignorant about how the chips of power might fall tomorrow or the day after. If we push through a ban on pork today, people with stricter sensibilities and sharper eyes might push through a ban on broccoli tomorrow and some tender souls might ban animal slaughter the day after that. It might be in our interest – indeed it might actually be in everyone’s interest – to call a truce on certain kinds of moral legislation simply to avoid mutual harassment.

Now to be sure, it might not be in our interest to call a truce. Each time we contemplate some such legislation, we need to consider all the following: How important is this legislation for us? How much better is it than the next best alternative? How broad is the support for it and how deep is the resentment? What are the odds that the people who resent it most will be in a position of power sometime soon? To what extent will passage of this law influence whether they might pass a law that we resent? (Of course, we shouldn’t ignore the possibility that our opponents might be non-cooperative types – for example, they might be convinced of their own “neutrality” – so that restraint on our part might be counterproductive. But since our game is essentially an iterated prisoner’s dilemma, too much suspiciousness of this sort could lead to a sub-optimal equilibrium.) In short, we need to estimate the expected benefit against the expected cost.

As a practical matter, legislation of morality is likely to be worthwhile only if the matter is extremely important to us or if no neutral position is possible or if there is a strong consensus on our side. Thus, to a limited extent, my practical conclusions are not all that different than those of the normative approach I reject.

Nevertheless, there are crucial differences.

First, my approach does not preclude the possibility of legislating on the basis of some particular moral theory in the event that the benefit to a sufficiently strong coalition outweighs the cost to them.

Second, it does not posit the superiority, or even the existence, of any neutral view. In fact, there are many issues about which there is no neutral position; abortion is either murder or it’s not. The possibility of a neutral position might, however, be an important consideration in determining how much better some law is than the next best alternative: when no neutral position exists the gap will necessarily be larger. When a neutral position does exist on a matter of considerable controversy, we might indeed be well-advised to seize it.

Third, no argument is disqualified from public discourse. It might in fact be good policy on my part to present arguments in behalf of my position in terms that are meaningful to others whose present or future cooperation might be important for me. But it is also surely counter-productive to debate inauthentically. If we are motivated by considerations particular to a moral system that is not shared by all citizens, everyone is best served if we put our true motivations on the table. In the end, if we fail to be persuasive, we will not carry the day.

Given that we incur the smallest cost in legislating morality when the moral principle being legislated is least controversial, the most judicious investment of effort on our part would be in creating consensus around our moral views. And the best way to do that is to strengthen moral communities generally – or at least the kinds of communities that share our moral views.

It will be my contention in the next post that the worst thing we can do if we wish to strengthen the right kinds of communities is to do precisely what most people in my little corner of the world advocate, namely, to cede community power to the state.