5.4.4  Legislation on Morally Controversial Issues

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There are issues which are morally controversial, in that society as a whole is unable to agree a standard of behaviour for them.  A policy of inclusivity requires that the law should try to accommodate different views where possible €“ though without sacrificing important principles.

Issues of life and death have proved to be particularly difficult €“ having become politicised, particularly in America, with politicians trying to burnish their popularity by advocating changes to legislation.  There are conflicting moral standards involved.  There is an inherent diversity of attitude (2.2) in all the following examples, so any simple assertion of right and wrong will conflict with the convictions of some of the people and will make the law less acceptable to them:

·      Abortion is an example of conflicting rights: the right to life for the foetus, compared to the woman's right to choose.  There are further aspects to take into account, such as the mother€™s health, her state of mind when making a decision, the likely quality of life for the potential child and the problems associated with driving abortion 'underground'.[1]

·      There is a controversy about whether there are circumstances when people should have the right to commit suicide.  This is even more controversial if this requires the assistance of other people (as in the example quoted at the end of section 5.4.2). 

·      Another, related, set of problems is whether to allow euthanasia to prevent suffering, and when to use medical means to artificially prolong people's lives (or when to withdraw life-support mechanisms) if they are unable to express a preference.  Safeguards, such as €˜living wills€™,[2] can ensure that the patient€™s rights are protected in some circumstances but countries vary in what is allowed.[3]  The topic is very controversial.[4] 

·      Freedom of the individual is also an issue when considering the vexed question of regulating the use of recreational drugs, and there are other issues:

€’      There would be huge cost savings on policing and prisons if drug-taking were de-criminalised.[5]  The public might reasonably object to the increased cost of healthcare for people who have inflicted damage on themselves, but this could be recovered by taxing the drugs if they were legalised. 

€’      Attempts to prohibit drug use have always failed.[6]  Most spectacularly, the prohibition on alcohol in America was completely unsuccessful in preventing its consumption €“ and organised crime gained huge benefits from supplying it illegally. 

€’      There is also the question of driving drug users out of sight, which prevents anyone from providing them with appropriate treatment.  Treating addiction as an illness helps to reduce its incidence, whereas criminals have an incentive to increase the size of their €˜market€™ by deliberately creating addiction in vulnerable people.

The issue of enforceability runs through all these examples.  People have gone to other countries to avoid coercive legislation on abortion and euthanasia in their own societies,[7] and criminal organisations are very happy to make money by providing people with recreational drugs.

The effect of trying to use legislation to control people's behaviour is to politicise the issue in countries where the legislature is largely composed of politicians.  As has been seen (5.4.1.2), there are problems in trying to associate people's votes with their views on particular items of legislation so democracy does not per se guarantee an inclusive negotiation.  A pragmatic approach is to take account of acceptability: to legislate on such issues only insofar as it is possible to persuade the vast majority of people.  This is essentially the status of the current law on abortion, for example, in many parts of America.

There is an argument against using legislation for such issues.  An inclusive alternative is to give people all the necessary information and give them the right to make such moral choices for themselves, within certain parameters, rather than using the law divisively to impose some people€™s views upon everyone else.  This is not to say that abortion, euthanasia and drug-taking are morally right.  It is an acknowledgement that they are contested.  Many people support the argument that a society is only justified in constraining people€™s liberty for the purpose of protecting the liberty of others €“ as discussed in the last chapter (9.2.2). 

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