You Believe in Legislating Morality

If there’s one thing everyone agrees on, it’s this: “You shouldn’t use law to force your morality on others.” And if there’s one other thing everyone agrees on, it’s that the other side is always trying to do exactly that.

You don’t want to use contraceptives? Fine. Just stop insisting that others avoid them as well.

You want to participate in gay weddings? Fine. Just stop making cake vendors do the same.

What’s going on here?

Aristotle, Again

Last time, I tried to explain the difference between hypocrites and antiheroes in terms of a very, very old ethical system. Hypocrites claim to have a virtue, when in fact they have one of the two vices associated with that virtue. Antiheroes, in contrast, have a mixture of vices and virtues. They’re good people in some moral areas, but bad people in others.

That was largely a discussion of aesthetics—literature, film, and whatnot—so I hope it wasn’t stressful to read. Today, in contrast, it’s going to be more difficult to avoid politics. That’s not to say what follows will be stressful, but it is to say that we’re going to need some help.

Aristotle to the rescue, once again!

How Many Types of Virtue?

And Which Is Most Important?

In the Nicomachean Ethics, Aristotle divides the virtues into two categories: moral and intellectual.1 In the first group are virtues of emotion and action. They involve feeling and/or doing the right thing, at the right time, to the right extent.2 In the second group are virtues of thinking and judging. They involve discovering and being faithful to the truth of things.

Given that twofold division, you might expect the Ethics to devote five of its “books” to the moral virtues, and other five to the intellectual virtues. That’s not how it goes, however. Book I is a general introduction. Only Book VI deals exclusively with intellectual virtues. Seven of the remaining books deal exclusively with moral virtues, and Book X offers a kind of mix.

In the game of “who gets the most attention,” therefore, the moral virtues beat the intellectual virtues by a score of 7.5 to 1.5. Clearly, Aristotle thinks the moral virtues are much more interesting than the intellectual virtues.

Cardinals and Non-Cardinals

The first two virtues Aristotle tackles in Nicomachean Ethics (III.6–12) belong to the Cardinal Virtues. They are courage (or “fortitude,” or “bravery,” depending on your translation) and moderation (or “self-control,” or “temperance”). Before getting to the third Cardinal Virtue—Justice—however, he devotes Book IV to eight other moral virtues that didn’t make the Cardinal cut.3 They’re things like generosity (IV.1) and good temper (IV.5).4

In Book V, then, we turn to justice, and thereby return to the list of Cardinal Virtues.5

The Virtue of Justice

The First Type of Justice

Understood in one way, Aristotle tells us, justice is another word for “being lawful” (V.1). That is, if you follow the law, you count as just. But that means being completely virtuous, because the law’s job is to inculcate all the virtues in the citizens it rules.

Allow me to pause here and let that sink in. Aristotle thinks that a society’s laws ought to make citizens virtuous. And that means all the virtues, like generosity, courage, and moderation.

So, I ask: Would Aristotle agree with our modern notion that we ought not use law to impose our morality on others?

It looks like we have a fundamental disagreement with Aristotle on this point. But I still think he can help us.

The Second Type of Justice

Fairness is the second meaning for the word “justice,” Aristotle continues (V.2). That is, being just can mean giving people what is due to them, ensuring that they have what they deserve. But depending on the situation, this second type of justice will manifest itself in two different ways.

In one kind of situation, someone has harmed someone else, taking something good (V.4). A wrong has been done that needs to be made right. The virtue of justice in this situation restores the balance, returning what was taken. This is the type of virtue needed by a judge. It is what we would call “criminal justice.”

In the other kind of situation, someone has something good that is owed to others (V.3). There’s no damage to repair. The only “problem” is that the person with the good thing needs to figure out how much of it to give to each of the deserving parties.

Imagine a company owner on payday, for example. She has money—which is a good thing—and needs to give that money to her employees as payment for their work. The virtue of justice in this situation would distribute the good thing to those to whom it is owed, and in proportion to what they deserve. Better employees deserve more pay, so “distributive justice” would give them more. Worse employees deserve less, so “distributive justice” would give them less.6 Whatever the case may be, justice would insist that each person be given an amount that is equal to what she or he deserves.

What We Really Mean

The Position

Where previous moral virtues were each given only a chapter or two, justice is so important and complex that it requires an entire book in the Nicomachean Ethics. And I believe we too divide the moral virtues into “justice” and “all the others.” We too tend to think of justice as something special.

Like Aristotle, furthermore, we also tend to think of justice as a matter for government. While we might not agree that government ought to be in the business of inculcating all the virtues by law, we do think it ought to be enforcing justice.

So, what do we mean by, “You shouldn’t legislate morality”? I believe we mean, “Government should enforce only one virtue—the virtue of justice—and leave all the others alone.” Government should focus on Book V of the Nicomachean Ethics, and let private persons and NGOs handle the other books.

What I believe is one thing, however. Whether I can prove it is another. Let’s see if I can.

The Proof

Allow me to ask you a series of leading questions.

First, are murder and theft immoral? When the Ten Commandments tells us, “Thou shalt not kill,” and “Thou shalt not steal,” is it giving us moral instructions?


Now, when a murder is punished by a court, or a thief is forced to make restitution by a judge, what do we say “has been done”? The criminal has been “brought to” what, by what “system”? Whose blindfolded statue might you find in the court’s main lobby?


Now, inside an American courtroom, you sometimes will find a plaque hanging on the wall—a plaque that might get your court sued by the ACLU. What is on that plaque?


Now, on what basis do the police take suspects to court, in order to have justice done? That is, what justifies the entire court proceedings? Isn’t it that someone has been charged with breaking a law?


So, when a government makes laws about theft and murder, we believe they are trying to enforce justice. But we also believe that rules about theft and murder are moral. That is, by passing such laws—and “doing justice” in accordance with those laws—governments are imposing moral restrictions on their citizens. And we’re perfectly fine with that. In fact, we think that’s exactly what government ought to be doing.

If we still object to the legislation of morality, therefore, we can only be objecting to the legislation of “any virtue other than justice.” It seems we don’t want government to make us completely virtuous; apparently we want it to leave us free to be antiheroes.


But if everyone believes government should only enforce the single virtue of justice, whence the debate? Why does each side think the other is trying to get government to enforce virtues other than justice?

Or, more tellingly: Why is it not obvious to each side that they are themselves calling for government to enforce virtues other than justice (given that it’s so obvious to the other side that this is what they are doing)?

I think we are finally ready to answer these questions, but we’re out of space and will need to wait for next time.

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Micah Tillman

Micah Tillman

Micah is the host of the Top 40 Philosophy podcast. He has a B.A. in computer science (Messiah College), an M.A. in philosophy (West Chester University of Pennsylvania), and a Ph.D. in philosophy (The Catholic University of America). He taught philosophy at universities in the Washington, DC area for 9.5 years, and is now on what he thinks of as a sabbatical.

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