Making Men Moral: Civil Liberties and Public Morality.

Lee, Patrick

Robert George of Princeton University challenges the fundamental dogma of contemporary political philosophy, namely, that it is wrong to "legislate morality." George's positive argument for morals legislation is in the tradition of Aristotle and Aquinas. "The idea that public morality is a public good, and that immoral acts -- even between consenting adults -- can therefore do public harm, has not been refuted by liberal critics of the central tradition" (p. 37). Chapter 1 defends this, arguing that a healthy political society has a moral environment or "ecology" which encourages virtue and is inhospitable to such vices as pornography, prostitution, drug abuse, and so on.

In the rest of the book, George carefully examines and refutes the main arguments for the opposing liberal position. Chapter 2 examines the famous Devlin-Hart debate, with George disagreeing with Devlin's defense(s) of morals laws. Against Devlin, George argues that social cohesion by itself cannot justify morals laws. Instead, morals laws contribute to the common good only if they proscribe actions which truly are immoral or encourage actions which truly perfect character.

Chapter 3 examines Ronald Dworkin's case against morals legislation. Dworkin's position amounts to a defense of the American liberal agenda, especially its view of the right to privacy. Dworkin's early position was that individual rights derive not from what is genuinely good for human beings but from an abstract right to equal concern and respect, and that individual rights trump the collective interests of political society. Dworkin concludes that legislation should be neutral with respect to competing views of what is genuinely good for human beings. For Dworkin, government violates the "right to moral independence" whenever it restricts individual liberty by preferring some citizens' conception of the good life to others'.

George replies that the common good is not merely the well-being of the aggregate; so it is not opposed, as Dworkin holds, to individual interests. Rather, "there simply are no `collective interests' not reducible to the concrete aspects of individual members of the collectivity" (p. 90). Moreover, having a community supportive of and conducive to virtuous living is a benefit for all individuals, including especially those very individuals inclined to the actions prohibited. It follows that morals legislation does not treat such people with contempt or with less than equal regard. Indeed, it should be grounded precisely in an appreciation of their human worth and dignity.

In later writings, Dworkin argues that morals legislation is self-defeating, because it attempts to coerce people to live in certain ways that have no value unless they do so voluntarily, without coercion. George replies that the basic human goods are not reducible to satisfactions, that they are valuable for a person even when he fails to value them. Moreover, Dworkin exaggerates the degree to which people act, in the areas most commonly prescribed by morals legislation, "out of deep and settled convictions as to what is valuable for them" (p. 106). Morals legislation seldom forbids actions that people think are morally obligatory and most often forbids actions to which people are attracted merely by emotional appeals and unintegrated desires.

Chapter 4 examines the claim, made especially by Jeremy Waldron, that, since people have a right to govern their lives by their own consciences, they "have a right to do wrong." George replies that only in a very attenuated sense does one "have a right to do wrong," namely, as a "shadow" of the government's duty not to interfere in someone's wrongdoing because it would be counter-productive, risk lives, and so on).

Chapter 5 examines anti-perfectionist arguments against morals legislation. George argues that, in John Rawls's view of the "original position," he smuggles in strong liberal individualist presuppositions; the position is biased for a certain conception of the person. Moreover, Rawls makes a logical mistake by inferring that, because everything one decides behind the "veil of ignorance" is fair, everything decided outside the veil is unfair. Stripped of this non sequitur, "Rawls's argument is ... helpless against claims that applying `perfectionist' principle(s) will be in the best interest, truly conceived, of everyone, even those who have to be coercively prevented from damaging their own best interests" (p. 139). George then replies to the position of D. A. J. Richards, showing that, instead of justifying a regime of law strictly neutral regarding what truly makes for a valuable life, in the end Richards presupposes a subjectivist view of human choice and motivation.

Chapter 6 replies to Joseph Raz's perfectionist argument against morals laws, namely, that autonomy is a genuine human good, and so government should refrain from morals laws. George obviously (and rightly) sees much of value in Raz's analyses, including cogent arguments against anti-perfectionism and the more radical forms of liberalism. However, George replies that, first, since (as Raz recognizes) the exercise of personal autonomy for evil ends has no value, one cannot say (as Raz nevertheless does) that personal autonomy is an intrinsic good. Rather, it is an instrumental good, a necessary condition for the exercise of practical reasonableness and for other intrinsic goods. Secondly, if Raz's argument were sound, it would apply to virtually all other criminal laws. Finally, excluding certain (not all) immoral options (or making them more difficult to attain) still leaves ample room for personal autonomy and the exercise of practical reasonableness.

Chapter 7 explains the principled grounds for respecting freedoms of speech, the press, privacy, assembly, and religion, as conditions for the pursuit of intrinsic, basic human goods. George's position is that "the common good is served by a social milieu more or less free from powerful inducements to vice" (p. 190), but also that diversity (various pursuits and emphases on the various basic human goods), liberty, and privacy "are themselves important components of a decent social milieu and conditions for the attainment of many basic human goods" (p. 190). The relationship of these liberties to the basic goods and to the common good is the ground for their importance, but also for their due restriction. In particular, George defends a return to the traditional notion of a right to privacy and a rejection of the more recent liberal notion (which his book as a whole quite effectively shows is a fiction). "The right to privacy ... is not the substantive right to be legally free to perform certain' `private' acts.... but the essentially procedural right to be free from governmental and other intrusions into one's home," office, other premises, files, papers, and so on, except for "very powerful reasons" (p. 211). This book is clear, incisive, and well argued. I highly recommend it.