What Should We Do Next?

Alison sees tension between law and morality. She wonders how law sometimes appears to further a moral goal (e.g., tax benefits encourage people to marry and marriage is morally superior to non-marital collaborative forms). At the same time, lawyers appear to justify law without reference to any stable moral objectives. She wonders why law sublimates morality or worse, appears to proceed entirely without reference to it.

Here's my explanation. The most basic function of law is to order society toward its most basic goal: survival. The closer the connection between law and survival, the easier it is to see (and find consensus in) the moral basis for law. For example, we all tend to agree that theft, murder and rape are morally wrong. Even those who do not believe they contradict God's law, intuitively understand that these behaviors waste resources and threaten the survival of our species. An economy based on physical force rather than voluntary exchange draws resources from farming, building and learning into self-protection which yields no social value. Putting the same idea another way, the greater the perceived impact of law on survival, the closer the link between morality and efficiency.

The tension between law and morality becomes increasingly clear as law moves away from its most basic function. We simply do not agree on how to maximize social wealth at the margin. Marriage is a good example. Alison notes, perhaps nostalgically, greater consensus on moral behavior and a larger justificatory role for morality in law in the second half of the nineteenth century. During this time, marriage as a legal institution served as a tool of social control, to insulate investment (by women) in child-bearing from the vicissitudes of market economy. Through the first three quarters of the twentieth century, my mother's generation viewed marriage and motherhood as a career option (along with nursing, teaching and religious life). Since then, much has changed. The social function of marriage has become attenuated from survival. We debate the social function of marriage, not necessarily because society has become less moral, but perhaps because marriage is no longer as powerfully connected to the survival of our species.

Given changes in reproductive technology, and the economy, we believe we can survive as a species without marriage as it was traditionally constituted -- the exclusive legally sanctioned locus for sexuality and child bearing. So, what should be the purpose for legal regulation of marriage today? Once law moves beyond survival, once we achieve the luxury of social stability, competing ideas about the next order of goals emerge. Social stability breeds tolerance of competing ideas. Pluralism makes democracy both possible and necessary. But, democracy is inherently inconsistent with the ideal of moral truth.

Welcome to the profession Alison. We lawyers give voice to competing ideas about what we should do next. You will find yours and no doubt it will be formidable.