Law and Persuasion

First, apologies to any of you who have been following this blog for the long gap between this one and the last. School holidays, as anyone who works freelance from home and has children will probably agree, tend to be a blur of activities requiring a children's taxi service, conversations about all manner of things, visits by other children, and outings, into which the necessary minimum of work tasks to keep projects running has to be crammed, leading to the normal 'extras' such as blog writing, and in my case fiction writing, being consigned to the back burner for the duration.

However, I haven't eschewed all rational thought in the interim, and one of the things I've been thinking about is the relationship between moral dilemmas and legislation. There are a number of entrenched moral issues that are more or less continually under debate in the media, and indeed to a greater or lesser extent among the citizenry of most societies. Abortion and its timing, artificial birth control, IVF and cloning, drug abuse and the legalizing of drugs such as heroin, cocaine and marijuiana, suicide and especially assisted suicide, and religious rights such as the wearing of the burka or freedom of worship and the right to practise minority religions - the list could go on.

Conclusions on these issues vary across the world, of course, partly for cultural or religious reasons and partly for historical ones. In some parts of the EU veiling one's face is now illegal; in others abortion in all but the most extreme circumstances is a criminal offence; those who assist loved ones to commit suicide may be prosecuted; drugs are categorized, and possession of them may lead to imprisonment; in some countries, including the UK, there is now a ban on smoking in public places.

The interesting question, to me, is why some of these issues are covered by legislation, and some are not. The criterion may be whether the action harms others - the smoking ban is justified, for example, on the grounds that others' health and wellbeing, especially in confined spaces, is at risk; illegal drug use fuels crime as addicts truggle to pay for the drugs they 'need'; abortion destroys human life; assisted suicide may turn into pressure on the terminally ill or even the elderly, to remove themselves from our midst because their problems are expensive or inconvenient. But sometimes there seems to be a strong element of justice, or even punishment, in our desire to make these actions illegal. So drug abuse, suicide and abortion are believed by many to be morally wrong, but so is adultery, which is only illegal in the more extreme Muslim states. Smoking is seen as unpleasant and its effects cause large-scale expense for the health services (but the same applies to binge-drinking, which is not currently banned in the West, though drunken disorder is illegal). Banning the veil and the burka in public places is justified on social grounds, since it isolates those who wear it and ghettoizes some female members of the community (but other extremes of dress such as low-cut tops and pelmet-length skirts, which reduce some young women to the status of sex objects, are acceptable). The denial of freedom of religion and religious expression in theocratic states is usually justified on the grounds that it offends not only God but the religious majority (e.g. blasphemy laws in Pakistan and Iran deriving from Sharia).

In order to make such laws work properly there must be a consensus in society that they are necessary and useful. This does not have to be an absolute consensus, but it needs to command a very large majority. As soon as this consensus breaks down, there will be challenges to the laws concerned, but the legality or otherwise of these moral offences does not in fact in any way 'prove' the correctness of the moral position taken up. In some cases there may not in fact be one 'right' argument on these complex questions, and in such case legislation rarely works effectively.

But there is another way to bring about change, although it is slower and less certain, and thus less acceptable to those who feel strongly about a moral issue, and it is essential if legislation is to work in the long term. I'm talking about persuasion - making the argument so as to bring about consensus, and if necessary a change in the law. For example, few people would now accept the arguments put forward by the pro-slavery majority in Western countries in the 18th century, because the anti-slavery campaigners won the argument and changed minds to such an extent that there is no longer a moral issue, and it is hard to see how this could be reopened. It may be that a time will come when no one will see assisted suicide as problematic, or when abortion will carry no stigma, but this doesn't primarily depend on how the law stands but on how the argument has been made; in other words, whether or not the citizens of society are convinced. From today's standpoint it is just as likely that the current movement away from the sanctity of life, and particularly away from long-held safeguards such as the Hippocratic Oath (see previous blog, Mercy killing, abortion and the Hippocratic Oath) will be seen as an aberration as terrible as Nazi eugenics or nineteenth-century racist scientific notions. We cannot tell. But discussing the issues openly is important if we are to have laws that reflect sound moral positions that command wide acceptance. Sometimes laws have to change to accommodate new moral positions, but the law itself cannot make morality or change hearts. Only persuasion can do that.

And in order to have an informed debate we must have facts, and real solid ones, not statistics and opinions manipulated by extreme opinion on either side. Pro-abortion and pro-life antagonists must be willing to look at the science as well as the moral or religious positions they hold - and in this case science is not a one-way street. Those who would keep drugs illegal must take on board the depth of deprivation, whether social and economic or emotional that often leads young people to become addicts or pushers, or use drugs recreationally, and come up with solutions that won't fill our prisons to overflowing, while those who would legalise heroin, cocaine or marijuiana need to check out the possible consequences; and both should accept that their opponents may also be motivated by a care for society. Better palliative care and a more positive attitude by society as a whole towards terminal illness and disability might help some of those considering suicide to find the courage to face life, which perhaps should be recognized by those who wish the law on assisted suicide to change as a valid alternative to assisting sufferers to escape by ending their lives.

What I am suggesting is that we don't rush for the statute book in an attempt to solve every moral or social problem. Some crimes have always been crimes, and probably always will be: murder, and theft, and in recent centuries such things as grievous bodily harm, and serious cruelty to children or animals. The consensus on these is both ancient and enduring. But on other matters we need to engage with those who transgress, or disagree with, those moral imperatives we hold dear, whether they are traditional or liberal, rather than beating them over the head with the law book. Persuasion, the kind of education that gives a factual basis to an argument, and a helping hand to those whose failures have landed them in trouble - these will benefit society more than the heavy burden of criminal law. And our prisons might also be a little emptier, and perhaps our hearts a little lighter, as a result.