The Moral Purposes of Law and Government
Several years ago First Things published an essay entitled “Law and Moral Purpose” by Robert P. George, Princeton University’s McCormick Professor of Jurisprudence, and Director of the James Madison Program in American Ideals and Institutions. I’ve taken a section of this essay and added questions, numbering, and italics, turning it into an “interview” of sorts.
What are the obligations and purposes of law and government?
(1) To protect
- public health
- safety
- morals
(2) to advance
the general welfare—including, preeminently, protecting people’s fundamental rights and basic liberties.
Wouldn’t this require the granting of vast and sweeping powers to public authority?
No; the general welfare—the common good—requires that government be limited.
You distinguish between government’s primary and subsidiary roles. What are the government’s primary responsibilities?
Government’s responsibility is primary when the questions involve
(1) defending the nation from attack and subversion,(2) protecting people from physical assaults and various other forms of depredation, and(3) maintaining public order.
What are the subsidiary roles of the government?
The subsidiary role of government is to support the work of the
- families,
- religious communities, and
- other institutions of civil society
that shoulder the primary burden of
- forming upright and decent citizens,
- caring for those in need,
- encouraging people to meet their responsibilities to one another
- while also discouraging them from harming themselves or others.
You’ve said that political morality requires (1)
governmental respect for individual freedom and (2) the autonomy of
nongovernmental spheres of authority. Can you explain?
Government must not try to run people’s lives or usurp the
roles and responsibilities of families, religious bodies, and other
character- and culture-forming authoritative communities. The usurpation of the just authority of families, religious
communities, and other institutions is unjust in principle, often
seriously so, and the record of big government in the twentieth
century—even when it has not degenerated into vicious
totalitarianism—shows that it does little good in the long run and
frequently harms those it seeks to help.
What is the relationship between limited government and classic liberalism?
Limited government is a key tenet of classic liberalism—the
liberalism of people like Madison and Tocqueville—although today it is
regarded as a conservative ideal.
Does belief in limited government entail libertarianism?
No. The strict libertarian position, it seems to me, goes much too far in depriving government of even its subsidiary role.
(1) It underestimates the importance of maintaining a
reasonably healthy moral ecology, especially for the rearing of
children, and
(2) it misses the legitimate role of government in
supporting the nongovernmental institutions that shoulder the main
burden of assisting those in need.
What truths is libertarianism responding to?
Libertarianism responds to certain truths about big
government, especially in government’s bureaucratic and managerial
dimensions. Economic freedom cannot guarantee political liberty and the
just autonomy of the institutions of civil society, but, in the absence
of economic liberty, other honorable personal and institutional
freedoms are rarely secure. Moreover, the concentration of economic
power in the hands of government is something every true friend of
civil liberties should, by now, have learned to fear.
What else does libertarianism respond to?
There is an even deeper truth—one going beyond economics—to which libertarianism responds: Law and government exist to protect human persons and secure their well-being.
It is not the other way round, as communist and other forms of
collectivist ideology suppose. Individuals are not cogs in a social
wheel. Stringent norms of political justice forbid persons to be treated
as mere servants or instrumentalities of the state. These norms equally
exclude the sacrificing of the dignity and rights of persons for the
sake of some supposed “greater overall good.”
It is a profound mistake to suppose that the principle of
limited government is (1) rooted in the denial of moral truth or (2) a
putative requirement of governments to refrain from acting on the basis
of judgments about moral truth.
Why?
Our commitment to limited government is itself the fruit of
moral conviction—conviction ultimately founded on truths that our
nation’s founders proclaimed as self-evident: namely “that all men are
created equal, that they are endowed by their Creator with certain
unalienable rights, and among these are life, liberty, and the pursuit
of happiness.”
What’s at the foundation of this proposition?
That each human being possesses a profound, inherent, and
equal dignity simply by virtue of his nature as a rational creature—a
creature possessing, albeit in limited measure (and in the case of some
human beings merely in root or rudimentary form), the Godlike powers of
reason and freedom—powers that make possible such human and humanizing
phenomena as intellectual inquiry, aesthetic appreciation, respect for
self and others, friendship, and love.
This great truth of natural law, which is at the heart of
our civilizational and civic order, has its theological expression in
the biblical teaching that man, unlike the brute animals, is made in the
image and likeness of the divine creator and ruler of the universe.
What do you think about a pragmatic approach to these issues?
We must not adopt a merely pragmatic understanding or speak
only of practical considerations in addressing the pressing issues of
our day. Sound positions cannot be effectively advanced and defended by
citizens and statesmen who are unwilling or unable to engage moral
arguments.
That is why we should, in my opinion, rededicate ourselves
to understanding and making the moral argument for the sanctity of human
life in all stages and conditions, and the dignity of marriage as the
conjugal union of one man and one woman.
Are you saying that practical considerations should, or even can, be left out of the argument?
No. In a proper understanding of morality, practical considerations are not “merely” practical.
Can you give some examples?
The moral case for the reform of unilateral-divorce laws
includes reference to the devastating, poverty-inducing, crime-promoting
social consequences of the collapse of a healthy marriage culture and
the role of unilateral divorce in contributing to the collapse.
The moral argument for restoring legal protection to the
unborn includes reference to the adverse psychological and, in some
cases, physical consequences of abortion on many women who undergo the
procedure.
Our task should be to understand the moral truth and speak it in season and out of season.
What do the pure pragmatists urge?
We will be told by the pure pragmatists that the public is
too far gone in moral relativism or even moral delinquency to be reached
by moral argument. We will be advised to frame arguments in coded
language so as not to scare off the soccer moms or whoever is playing
their role in the next election cycle.
But you believe this must be resisted. Why?
We must, to be sure, practice the much-neglected and badly
underrated virtue of prudence. But we must have faith that truth is
luminously powerful, so that if we bear witness to the truth about, say,
marriage and the sanctity of human life—lovingly, civilly, but also
passionately and with determination—and if we honor the truth in
advancing our positions, then even many of our fellow citizens who now
find themselves on the other side of these issues will come around.
Why does speaking of “truth” frighten some people today?
They evidently believe that people who claim to know the
truth about anything—and especially about moral matters—are
fundamentalists and potential totalitarians. But, as Hadley Arkes has patiently explained, those on the
other side of the great debates over social issues such as abortion and
marriage make truth claims—moral truth claims—all the time.
- They assert their positions with no less confidence and no more doubt than one finds in the advocacy of pro-lifers and defenders of conjugal marriage.
- They proclaim that women have a fundamental right to abortion.
- They maintain that “love makes a family” and other strong and controversial moral claims.
What do you think about incrementalism in politics?
Of course, politics is the art of the possible. And, as
Frederick Douglass reminded us in his tribute to Lincoln, public opinion
and other constraints sometimes limit what can be done at the moment to
advance any just cause. The pro-life movement has in recent years
settled on an incrementalist strategy for protecting nascent human life.
So long as incrementalism is not a euphemism for surrender or neglect,
it can be entirely honorable. Planting premises in the law whose logic
demands, in the end, full respect for all members of the human family
can be a valuable thing to do, even where those premises seem modest.
Fully just law would protect all innocent human life. Yet
sometimes this is not, or not yet, possible in the concrete political
circumstances of the moment.
[You can read the whole essay here.]
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