May 28, 2004

Why Cockfighting is Immoral

by Nick Morgan

The other day, Will Baude quoted a series of interesting passages from Barnes v. Glen Theatre, among which this bit from Scalia reminded me that ole Antonin could really use a class in moral philosophy:

    Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, "contra bonos mores," i. e., immoral. In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy.

Scalia, as we know from Lawrence and elsewhere, has been quite the defender of "morals legislation." It's not uncommon for people to distinguish between laws justified by the harmful consequences they prevent, and laws that simply target behavior that is "immoral," but this distinction is good for casual references, not legal or metaethical reasoning. Action is "immoral" if and only if it is action that ought not be taken. (Yes, in case you're wondering, I'd consider principles of politeness to be moral principles--rudeness being immoral--because rudeness differs from wickedness in degree, not in kind.)

The reasons we come up with to explain why something is immoral might differ, but whether they are strictly economic, or strictly based on scripture, they all advocate a state of affairs that ought to be so. To defend laws merely because they prohibit conduct thought to be "immoral" reveals more about the law's lack of justification than anything. In the philosophical sense, pretty much all laws are "morally" motivated. We should approve them not for merely proclaiming "immoral!" but for the particular reasons advanced that some conduct is immoral. I'm not arguing that laws without any consequentialist justification are without justification altogether (that's often false), or that laws without any justification must be unconstitutional, but simply that the phrase "morals legislation" elides the critical questions.

It occurs to me now that my second problem with this passage from Scalia needs little explication: decide for yourself whether suicide and drug use hurt people, or whether citing animal cruelty does any work for Scalia's argument, or instead reveals a more basic problem in framing the issue as one of human harm preventing laws vs. morals legislation.

May 28, 2004 11:04 AM | TrackBack

It was just over 50 years ago that I learned the difference between malum in se and malum prohibitum. Now I have to deal with "contra bonos mores". What about sodomy (however defined) between opposite sex consenting adults? What about the statement in a case I read over 50 years ago that held "a mere lick does not constitute penetration" - is that still good law? I would shepardize it except that I might be charged with beastiality. Are there not victimless crimes? Has "natural law" replaced "common law"? Have faith, hope and chastity.

Puck. (Formerly known as:

Posted by: Shag from Brookline at May 28, 2004 02:28 PM

I have a self-deprecating (but not in a funny way) response here. I think the final analysis comes down to my being morally worse than the average pigfucker.

Posted by: PG at May 29, 2004 02:04 AM

Stop the cockfight before Little Jerry gets hurt!

Posted by: Brian at May 29, 2004 02:30 PM
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