Moral policy vs. public policy

The Economist ran a leader, "Sex is their business", on 4 September arguing in favor of legalizing prostitution, and received the following response from Dave West of Greenwich, CT:
If you can find one person on the staff of The Economist who says it is fine for their daughter to become a prostitute, or one person in a healthy marriage who says it is okay for their spouse to have sex with a prostitute, then I will consider your arugument that it should be legalized.
This argument makes a basic but all too common error that bears pointing out again: failing to distinguish between legislation as moral policy and legislation as public policy. The question isn't whether prostitution is "fine" or "okay", but whether, should his daughter become a prostitute or his spouse seek sex for money, he would rather that occur with prostitution legalized or not. In objecting as he does, he simply misses the point of the leader: that we can hold moral objections to a practice, yet still try to minimize the harms that come through it. Much the same applies to the "war" on drugs.

In secular law we can choose whether we are adopting legislation on the basis of moral or public policy, but in religious law, at least in Jewish law, it is often unclear whether particular legal positions were advanced on moral or public policy grounds. While halacha is no longer conducted on a legislative model, we face confusion about when religious values are really at stake in some practice, or when it is only a pragmatic legal compromise which is not itself a direct statement of religious values, but represents a weighing of competing values, authorities, and traditions. This confusion can lead to lending legal compromises the glow of real values, and missing the values inherent in some practice mandated by religious law by viewing it as a mere compromise. Unfortunately, the present meagre state of our tradition does not often allow us to determine the matter; religious jews now distinguish themselves between those who insist on leaving these questions unanswered in the absence of the approbation of tradition, and those who believe (as I do) that we must forge new answers to these questions if our meagre tradition is to be one worth passing on.


Blogger Zev said...

You take for granted a liberatrian POV which is not generally adopted by the legislative community. Laws are not only enacted to prevent harm, but also to uphold good. City zoning is a fine example. Most every city I know of has zoning requirements. Factories are not built next to houses. Now you and Oren can cry all you want about zoning laws, but the fact is voters don't want a factory built next door, and they will vote on these issues. While in a 'perfect world' prostitution should be legal, the voters do not think so. Sorry.

27 September, 2004 21:56  

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