Extravagance of morality

Consider this paradox: Pakistanis generally believe that the time of their fathers and grandfathers was more moral than the world we now live in. We have laws today which ban alcohol and provide that adulterers be stoned to death. Those laws did not exist fifty years ago. And yet, many Pakistanis are convinced that our moral standards would be devastated if those laws were repealed.

The relationship between law and morality is complicated. In particular, the question as to whether laws need to have any particular moral content has entertained jurists for millennia. However, what I want to discuss today is a different issue: can you legislate morality? If not, why bother; if yes, when should you make the effort?

The short answer is that you can legislate morality. You can, for example, make something illegal selling hallucinogens, for example and assuming the penalties are sufficiently intimidating (or the benefits sufficiently enticing), people will normally desist from the illegal act.

The more interesting issue though is this: when should you bother?

The reason why the issue even arises is because legislation is a tool, not a magic wand. In other words, legislation can encourage people to act in certain ways, but there are limits to what it can accomplish. As you near those limits, you need to increase the sanctions or benefits provided in the law for it to accomplish any purpose.

One response at this point is to say: so what? No law works perfectly. The penalty for murder is death and the law itself is backed by the strongest possible moral consensus of our citizens. And yet, people continue to murder. Society should, therefore, resign itself to the fact that laws work imperfectly but it should still nonetheless keep on legislating against those acts which it believes to be immoral because some sanction is better than no sanction.

I disagree, for three reasons.

The first reason is that I believe society has generally speaking no business interfering with what I do if what I do does not physically harm somebody else. Obviously, all sorts of caveats apply to that statement. However, I dont intend to discuss those caveats (a) because this is not a philosophy of law seminar and (b) because I accept the fact that the majority of Pakistanis do not share my belief. Assuming then that societies have the right to define their own legal boundaries (yes, I know, big assumption, what about human rights etc, etc), I have to lump the fact that my view is in a minority.

The second reason is that even to the extent society has a general right to tell me what to do, that right needs to be subordinated to economic reality. Beggars cannot be choosers and Pakistan is certainly in a beggared state right now. Take the issue of alcohol, for example. According to one former government employee I once met, the income from alcohol taxes in 1977 was Rs 400 millions, from the NWFP alone. Multiply that figure by ten to get an estimate for all of Pakistan. Divide by ten to get a figure in US dollars. Now multiply by 2.5 to take into account population growth since 1977: net result is US$ 1 billion.

A billion dollars may seem like a nice round figure plucked out of thin air but it is not entirely without basis. For example, Turkeys annual revenue from alcohol taxes is approximately US$ 2 billion. On the plus side, Turkeys population is about 74 million (as compared to approximately 170 million for Pakistan). On the negative side, Turks have more money, are visited by more tourists and have a larger percentage of non-Muslims. Even if all those factors balance out, a billion dollars is still a conservative estimate for Pakistan.

Not to belabour the obvious but a billion dollars is a sizable chunk of change. You can build a lot of schools and hospitals with that kind of money (not to mention, buy the odd F-16). If Pakistan had an extra billion dollars a year, we would be in less need of charity and more able to provide charity.

The rebuttal to this argument follows a similar line as the rebuttal to the first argument. Societies get to pick their morality and societies also get to decide the extent to which they wish to compromise their chosen moral norms. If Pakistan wishes to sacrifice its economic health at the altar of anti-alcoholism, that is a choice that Pakistan gets to make.

My third reason, however, is different in that it is based not on morality but on the nature of law itself. L L Fuller defined law as the enterprise of subjecting human conduct to the governance of rules. Assuming you accept his definition, his argument was that there were certain characteristics inherent in the very nature of law which had nothing to do with morality in the common sense but which nonetheless needed to be respected. For example, if you want people to obey laws, they need to know what those laws are. Similarly, you cannot expect people to obey laws which are only made retrospectively or which are entirely incomprehensible.

One of these fundamental characteristics of laws is that there cannot be too great a gap between the law as it stands and the law as it is applied. And it is in this respect that society has to respect certain legislative limits. It is one thing to enact laws on a moral basis. It is another thing to enact laws on a moral basis which are then flouted conspicuously, openly and generally, as is the case with the laws prohibiting alcohol in Pakistan.

In 1982, James Q Wilson and George L Kelling wrote a seminal social studies article called Broken Windows. The argument they used was simple. Imagine a car parked on a street. If the car is in good condition, it may be days or even weeks before it gets vandalized. But if the car has a broken window, it is likely to get vandalized within a few hours.

The point behind the broken windows theory is that people look at other people to figure out what to do. And that point applies not only in the context of petty crime but in the context of broader social attitudes. If we see laws being flouted, our conclusion is that laws can be flouted. And once we conclude that laws can be flouted, the jump to actually breaking laws ourselves is much smaller than it would be otherwise.

To return to the original topic, there is only a certain amount of hypocrisy that a society can reasonably tolerate. Beyond that level, the entire legal structure gets corroded by public cynicism. And we begin to ask ourselves, Why should I be the only fool who follows the law?

Every society has a right to enact its morality into law. But if a society does not have either the will or the ability to enforce its morality, it is better off not making that attempt. Empty promises and unfulfilled threats are a luxury. And Pakistan has no room for luxuries any more.

The author is an advocate of the Supreme Court of Pakistan. The views given above are his individual views and do not represent the views of his firm. He can be contacted at [email protected]