Murray Rothbard explained in Man, Economy, and State that praxeology is the “general, formal theory of human action” and that economics is the only subdivision of knowledge to have been fully elaborated by praxeological methods. However, he contended that those methods could be applied to other fields of study as well. Law, or legal theory, is perhaps one such field.
The application of praxeology has been described as “methodological individualism.” As Rothbard wrote, “only an individual can adopt values or make choices; only an individual can act.” Law, being essentially the attempt at controlling the values, choices, and actions of individuals, must at least be subject to criticism by this methodology.
Below, I attempt to apply such a criticism to the legal theory of prominent twentieth century British jurist and legal philosopher Patrick Devlin known as legal moralism to make the case that legal systems intended to enforce a society’s morality may end up contributing to its moral decay instead.
The Enforcement of Morals
Devlin argued, in his 1959 lecture, “The Enforcement of Morals,” that systems of laws are necessary to preserve a society’s “common morality,” which he believed was necessary to prevent the society’s “disintegration.” To him, this concern justified passage of legislation regulating the conduct of individuals’ lives. In his view, societies are justified in enforcing a common morality through legislation because this common morality is necessary for their own preservation.
To be fair, there is something admirable in Devlin’s analysis of the function of a common morality within society:
For society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far relaxed, the members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price.
However, Devlin did not stop at this basic observation that a natural means by which societies remain bonded is through a shared morality. He proposes that this need for a common morality justifies the imposition of legislation regulating individual conduct:
If society has the right to make a judgement and has it on the basis that a recognized morality is as necessary to society as, say, a recognized government, then society may use the law to preserve morality in the same way as it uses it to safeguard anything else that is essential to its existence. If therefore the first proposition is securely established with all its implications, prima facie society has the right to legislate against immorality as such.
There is an unspoken assumption at work here, however, which is that legislation against immorality does in fact strengthen moral bonds within societies. Unlike purely theoretical legal systems confined to academic literature, actual legal systems are subject to the reality that the societies they govern are composed of individuals who act to satisfy their own chosen ends. Viewed from this praxeological perspective, a strong case can be made that vigorous legislation is at least as likely to degrade social morals as it is to improve them.
Legislation and Abdication of Moral Judgment
Proponents of theories like legal moralism seem to assume as a starting point that men can be made to follow certain moral patterns just because the law directs them to. But laws do not change the ends men wish to achieve, they only impede men from achieving them. Thus, if the law forbids the sale of alcohol on Sundays, the result for some men will not be that they drink less of it, but that they will buy more of it on Saturdays and Mondays.
If hard liquor is outlawed, they will drink more beer or wine. If alcohol is prohibited altogether, some will evade legal enforcement. And those who do end up drinking less will not do so because the law has awakened in them a realization of the immorality of alcohol. They will do so only because they prefer to avoid punishment.
Therefore, the idea that legislation of moral behavior will induce a desired moral character in society ignores that individual men do not act for the purpose of fulfilling the “higher principles” for which the state passes its laws. As Rothbard reasoned in the first volume of Conceived in Liberty, concerning the Puritans who settled New England with the intention of heavily regulating public morals:
Since men’s actions, given freedom to express their choices, are determined by their inner convictions and values, compulsory moral rules only serve to manufacture hypocrites and not to advance genuine morality. Coercion only forces people to change their actions; it does not persuade people to change their underlying values and convictions.
One area where excess legislation seems to actively fracture a society’s common morality is in conflict resolution. When a conflict arises between two parties, both parties will naturally advocate for it to be resolved in their own favor. Where no legal regulation controls, to resolve their differences the parties must rely on shared moral principles and a mutual concern for their standing among their communities if they were to repudiate those principles.
However, where detailed legal regulations control, one party will find that those laws support resolution of the conflict in his favor regardless of what common moral principles between the parties might control. He is tempted to adopt the law as his guide for what is right and to ignore any moral principles to the contrary. His fear of the opprobrium of his community is muted by the fact that it is the community’s own laws to which he is appealing. Therefore, with excessive regulation must come a temptation for individuals to abdicate their own moral judgment for whatever existing law will allow them to get away with.
For example, in a heavily regulated society, a tenant who has not paid rent is legally justified to remain in his landlord’s house for months while the landlord endures an expensive and lengthy legal ordeal to secure a court judgment. Likewise, a landlord is legally justified evicting a tenant he does not like who is short on rent by a single dollar due to a temporary hardship. However, few would find either action morally justified.
Contrary to what Devlin might have suggested, the array of legislation regulating this subject in most states has not resulted in a society-wide embrasure of the basic moral principles underlying landlord-tenant relationships. Instead, tenants are found claiming a “right” to use the legal system to extend their stay in their landlords’ properties rent-free, while landlords are found searching for loopholes in the law permitting them to break their leases with tenants they simply do not like. In this arena at least, the attempt to enforce a fair system of rights through detailed legislation has not preserved society’s “common morality,” but has fractured it.
This is not an argument against societies pursuing shared moral values, nor necessarily against societies enacting laws that reflect moral values already universally agreed upon. But it is evident that moral values come from the individuals who make up a society, not from the edicts that legislators hand down from above. This brief praxeological exercise suggests that the meticulous legislation of modern regulatory states may in fact engender moral decay, as cynical compliance with bare law comes to replace respect for a shared morality as the overriding characteristic of society.