More moral policy vs. public policy

[Replying to a comment by Zev Berger.]

The distinction I drew in the last post wasn't based on a "liberatrian POV". My point was merely that one needs to keep straight when one is legislating moral policy and when public policy, not that moral legislating is always illegitimate. Too often this distinction is not made, and what is public policy is criticized on moral policy grounds, as in Dave West's letter. Advancing this distinction would allow legislators and voters to support public policies that do not accord with the morals they wish to promote (where they think it appropriate), as they recognize that trying to reduce overall harms through some public policy does not entail endorsing that policy as promoting a morally ideal state of affairs.

Perhaps my choice of words, 'moral policy' and 'public policy', is less than clear, but I intend only to distinguish between legislating that is an ab initio attempt to establish some morally ideal state of affairs — 'moral policy' — versus legislating that is an ex post facto attempt to extract the greatest good, or minimize the harm, from a situation that already obtains, or can be reasonably expected to obtain in future — 'public policy'. By calling one "moral" I did not intend to imply that the other does not involve moral or normative choices — public policy certainly does. I probably should have used the term 'moralistic policy' instead, pointing to its distinctive motivation to elevate a moral ideal.

I believe prohibitions on prostitution are of the moralistic type, and are tantamount to legislatively endorsed wishes that prostitution should not occur. The Economist's argument, with which I agree, is that prostitution does occur and its prohibition results in greater harms in practice than would legalization and consequently, adopting the public policy mode, that we ought to minimize those harms by legalizing. That is, of course, and empirical argument; if outlawing prostitution would promote the greater good than liberalization, then I would accordingly support prohibition.

The claim I am making here (which The Economist doesn't make, at least not explicitly) is that we ought to adopt a consequentialist methodology in determining which mode in which to legislate. On this methodology, the morally preferable public policy need not promote a morally ideal state of affairs, but merely a morally better state of affairs than alternative policies. Nonetheless, one might adopt some other method for deciding when moral policy or public policy is the appropriate mode. One concern might be that adopting a consequentialist approach to this question may demand a broader consequentialist approach in ethics in general. Furthermore, it is unclear to me how a thoroughgoing consequentialist would determine the morally ideal state of affairs presupposed by the moral policy mode.

Of course, one needn't accept this methodological approach along with the moral policy – pubic policy distinction, and it is the distinction I really want to urge, for I am convinced the notion that good public policy must be moral policy obstructs out ability to effectively consider all available policy alternatives.

Finally a word about zoning, since Zev brought it up: I am all in favor of it, but I don't think it is a potential moral issue (in the first instance) to which the distinction I'm suggesting applies; I find it difficult to understand what a "morally ideal zoning regulation" could even be. Certainly there might be important differences between ab initio and ex post facto zoning plans, but I don't believe that someone who endorses some zoning plan in an ex post facto situation (zoning reform in an already existing city) would experience any feeling of conflict that she is thereby endorsing that plan as ideal in an ab initio case (greenfield development). But this is precisely the sort of conflict experienced in moral cases like prostitution, which leads people to gloss over the distinction between moral policy and public policy. My claim is that we can distinguish between these two policy modes, and that it is helpful to do so. All I've done here is attempt to draw the distinction in a rough-and-ready way; perhaps I'll post a more refined version of the distinction and an argument to support it in principle at some point.


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