MoJ’s Rob Vischer uses this story about the culture of marital infidelity in Russia to raise questions about the relationship between law and cultural norms in maintaining general public adherence to the practices constitutive of healthy family life. Do not laws, he seems to ask, that are apparently morally neutral (e.g., “no-fault” divorce statutes) actually presume a general moral framework in which marital fidelity is the norm? And what happens when or if that general moral framework begins to dissolve, perhaps (I’d add) in part as a result of the aforementioned morally neutral laws?
I’m tempted to extend his line of questioning even further. Recognizing with, among others, Tocqueville and Lincoln that mores are essential to the functioning of laws, I’d ask whether any legal regime is sustainable without an underlying moral culture that supports adherence to the law. I know that someone like Thomas Hobbes might argue that fear of violent death supports adherence to virtually any set of laws a sovereign wishes to impose, but even he recognizes the practical limits of the police power and turns to education to produce the general understanding that supports the legitimacy of the sovereign. If there are limits to the effectiveness of a Hobbesian police state to maintain the rule of law, mustn’t we always rely on moral norms (cultivated by a variety of means) to secure law-abidingness?
And must then the laws supported by the moral norms not themselves be at odds with or undermine those moral norms? Stated positively, mustn’t the laws themselves embody the moral norms on whose support they ultimately rely?
Is it really possible to have laws that cut one way and moral norms that cut another? What was the question that Abraham Lincoln, quoting Scripture , asked?
