Government promotion of moral issues: gambling, smoking, and advertising.(Symposium: Law and Morality)

Publication: Harvard Journal of Law & Public Policy

Publication Date: 01-JAN-08

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What makes gambling, smoking, and advertising and the encouragement of those activities "moral" issues? The use of the word "moral" should prompt the question: From what is "moral" being distinguished? This Essay tries to avoid use of the word because it usually conceals more than it clarifies as a basis for policy judgments. The usual distinction is between a principle-based morality, as advocated by Immanuel Kant, and utilitarianism, a morality based on consequences. The issue, therefore, would seem to be whether government should or may regulate conduct on any other than purely utilitarian grounds.

Utilitarianism maintains that the rightness or wrongness of conduct depends on its consequences. To a secularist claiming no aid from the supernatural, the above assertion seems self-evident. How is it possible to judge an action except by its consequences? Kantian tradition answers by judging an action's inherent justice or rightness, which should somehow be determined apart from and regardless of consequences. "Do justice," the Kantian view advises, "though the heavens fall" (1)--that is, do what is inherently right, even though it brings about an unimaginable disaster. Surely that has to be wrong: If doing justice will bring about an unimaginable disaster, we must rethink our idea of justice. The fanaticism underlying the Taliban's destruction of the Buddhist statues may illustrate the alternative of a morality apparently not based on consequences. (2)

Taking as a given on utilitarian grounds that human liberty is a good thing, the answer to the question whether government should prohibit certain conduct, and thereby restrict liberty, on any grounds other than its consequences is not a difficult one. Government should prohibit conduct only to produce beneficial consequences sufficient to overcome the resulting loss of liberty. This answer presents a problem because consequences yielding a net benefit for some people may not yield the same result for others, at least not immediately; utilitarianism, it is said, is not sufficiently respectful of the individual. (3) To some extent, however, that problem is a necessary and inevitable consequence of any system of law; "immediately beneficial for every individual" does not provide a workable test for determining what constitutes permissible government action. Almost every change in the law makes...

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