Morality and Lawmaking

I was strolling through the blogosphere looking at drug war-related posts and I stumbled across a blog by Ron Gainey (WRONGAINEY) and yesterday’s post about Risk, Reward, and Paternalism. In it, he quotes an unlinked statement from his friend Daniel Charles regarding the drug war and the paternalistic justification for prohibition that I found interesting.

For any given thing that has no demonstrably irreplaceable good value and which does have demonstrable negative effects to a significant portion of a population of people, there can be no moral justification for permitting it.

Now Gailey describes himself as a quasi-libertarian and does a fairly good job in the rest of the post in refuting this statement through analysis of relative risks, etc., (which is a good trick, since the words “demonstrably,” “irreplaceable,” “good,” “value,” “demonstrable,” “negative,” “effects,” and “significant” are undefined, and who gets to define them is unassigned) but I kept going back to Charles’ statement with a growing sense of outgraged astonishment.

For any given thing that has no demonstrably irreplaceable good value and which does have demonstrable negative effects to a significant portion of a population of people, there can be no moral justification for permitting it.

And quite frankly, I find the notion of even looking at comparative risk analysis to be… odd. My gut reactions were as follows:

1. Such a political philosophy is one of the few justifications I can imagine for actually invading and overthrowing a radical theocracy (assuming that philosophy was held by their government).
2. As a patriotic American, I would fight to the death to prevent the overthrow of our constitution and our system of freedom to such a political philosophy.

Problem is, I can’t just dismiss this, because it appears to me that this kind of thinking is influencing those who have hijacked much of the conservative “movement” in the U.S., including public figures like William Bennett, Mark Souder, John Walters, and others.
Focus on that last section: “there can be no moral justification for permitting it.” This is, in context, saying that there is a moral imperative to use government power to outlaw the action, and even leads to the notion that punishing others is a moral value. Sound familiar?
This is an extremely perverse definition of morality that is nevertheless seductive to many. It’s nice to think that if we pass a law, we’re being moral, but in fact that is not a moral act.
Take the obvious: Murder. If you choose not to commit murder, that is a moral act. If you teach someone else that murder is wrong so that they choose not to commit murder, then both you and they have committed a moral act. If you murder someone, you have committed an immoral act. The act of making murder illegal, on the other hand, may well be an appropriate element of a legal system and may be based on moral principles, but is not itself moral or immoral.
Many people are confused about this and somehow think that making something illegal can, itself, be a moral act, under the assumption that the illegality will reduce the incidence of a supposed immoral action (far from certain), or are confused by the fact that law may sometimes get its inspiration from moral values.
Attempting to legislate morality is not only incorrect, it is potentially dangerous. Those who believe that drug prohibition laws are moral acts will strongly resist alternatives, despite clear facts showing the lack of efficacy of those laws, or the increased harm caused by those laws.
If someone wants to argue with me that drug use is immoral, fine. I may disagree with you, but I accept your right to your own moral views. But don’t ever try to tell me that passing drug laws is a moral necessity.