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What, then, if anything, can one legislate, pray tell?
Look, lets be clear here. The law both prescribes and proscribes human action. All human action is governed by morality. Thus, any legislature, by definition, is the legislation of morality in some way or another. The real question is whether or not it is the legislation of correct morality.
So let us hear no more of this "You can't legislate morality!" twaddle.
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Hmmm. What I've meant, on the occasions when I've said, "You can't legislate morality," is that you can't make people moral by passing laws. If the laws are not enforced, people ignore them; and if they are enforced, people evade them (as witness Prohibition).
Even supposing that Prohibition had been accompanied with draconian punishments and perfect enforcement, such that no one in the country drank alcohol at all, this would not indicate a growth in the virtue of temperance among the general population.
Please note, I'm not arguing against legislation. I'm just saying that its effects are limited.
What I've meant, on the occasions when I've said, "You can't legislate morality," is that you can't make people moral by passing laws.
Well, following St. Thomas--and, I'm quite certain, Aristotle as well--I would disagree to some extent. Many people like to say that laws cannot in anyway make people virtuous because virtue has to be freely chosen. But that isn't completely true.
Virtues are habits, not simply actions. One can be made to do virtuous acts and not do vicious acts through the threat of punishment. But after awhile of continually acting in this way it becomes a habit, a second nature. A large part of the moral education of children often involves prescribing and proscribing certain actions and punishing the children when they do not abide by these prescriptions and proscriptions. There is more to it than this, but it is not negligible.
A virtuous person freely chooses to do good out of habit. A man who is compelled by some prescription of the law to act virtuously does not posses virtue, properly speaking. But then, neither does a man who freely chooses to act virtuously but does so with great difficulty. A truly virtuous man freely acts virtuously with ease, because it is his habit to do so. Since the law can help form habits by prescription and proscription, the law can play a part in making men virtuous, at least insofar as that virtue is ordered towards the common good.
Even supposing that Prohibition had been accompanied with draconian punishments and perfect enforcement, such that no one in the country drank alcohol at all, this would not indicate a growth in the virtue of temperance among the general population.
The largest problem with prohibition is that teetotalism is not temperate. It is a vice that is opposed to temperance, specifically to the special part of temperance known as sobriety. It may be the opposite of drunkenness, but that only makes it an opposite vice opposed to the same virtue. It may be proper to certain men to abstain completely from alcohol, but it is contrary to right reason to proscribe any use of alcohol whatsoever.
I should clarify my comment. I'm not saying that human law should, let alone could, compel all virtue. Trying to do so would be imprudent and cause more harm than good.
Practically speaking, I would say that the law would need to proscribe the most vicious evils, since these are the ones that will destroy a society from the inside. The law should also enforce acts of justice by providing redress when citizens fail to live up to their duties to one another. And finally, the law should leave space for institutions such as the family, the Church, local communities &c. to operate without disturbance, since these institutions have more immediate and important effects on forming a virtuous citizenship.
I realize, of course, that the common good is often referred to by those seeking to expand the role of the state more and more into areas of everyday life. I wanted to clarify that I do not think that the Thomistic understanding of law and the common good supports such a position, let alone requires it.
Brendon:
I can understand your argument here, especially with respect to Aristotle.
After having gone over a brief introduction, there is some merit to the latter wherein he speaks concerning the cultivation of certain (good) habits as to make it 2nd nature (albeit, this is a loose interpretation on my part and, for that, I apologize); which, I believe, you are alluding to in your above comments.
However, there is some rather unique instances wherein, although the individual does so due to the cultivation of such 'virtue' in his/her person; s/he may not being do so 'freely', as you claim here.
For example, I recall a scene in a picture I saw some time ago wherein this lady had given her wealth to charity not because she was freely doing so due to Godly charity but on account of 'habit'.
Again, I acknowledge the merit in your argument that cultivation of virtue in the person at the beginning does go on to make a person virtuous on account of such 'training' where the person matures and ultimately becomes one that freely chooses to do good and perform virtuous acts on his own free will; however, there are instances where this fails, such as in the aforementioned example.
- e.
For example, I recall a scene in a picture I saw some time ago wherein this lady had given her wealth to charity not because she was freely doing so due to Godly charity but on account of 'habit'.
From a Thomistic perspective, charity is a habit. Not a habit we can naturally acquire, true, but a habit none the less. For a virtue is a good habit and charity is a virtue, thus charity is a habit. A habit that can only be infused into us by God's grace, but still a habit.
I don't know the picture of which you speak, so I cannot offer more comment upon it. But I will say that an action appearing charitable but done out of pride or vainglory is not an act of charity, but rather an act of pride or vainglory. Intent can change the species of an action that is objectively virtuous and make it vicious.
But I will say that an action appearing charitable but done out of pride or vainglory is not an act of charity, but rather an act of pride or vainglory.
Agreed.
But please do include in that same category the acts of those individuals that do so not out of free will, mind you, but rather because "s/he has to".
In that case, that person is committing the act not because s/he does so freely out of any genuine sense of charity but rather out of obligation.
- e.
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