At a Federalist Society forum in 2008, I was invited to offer some thoughts on Robert Bork’s book Slouching Toward Gomorrah , as part of a panel discussion devoted to the arguments advanced by Judge Bork in the book. Here, in tribute to him, I’m reprinting my reflections. ”May eternal rest be granted unto him, O Lord, and may perpetual light shine upon him.”
When Slouching Toward Gomorrah appeared, it bore on its dust jacket a few words of mine praising the book and its distinguished author: “The ideological triumph of liberalism among American elites, far from bringing the individual and social enlightenment it promised, has produced unprecedented decay. The principal victims of this decay are the poorest and most vulnerable among us, those most in need of a healthy culture. Bork courageously and boldly states these truths. A judge as wise as Solomon has become a prophet as powerful as Isaiah.”
That is what I thought then, and I believe it even more firmly now. It was not that I agreed with everything that Judge Bork said in the book. I strongly dissented, for example, from Judge Bork’s attitude of suspicion toward the natural rights teaching and equality doctrine of the Declaration of Independence, though it must be said that even in the chapters of Slouching in which he articulates the grounds of his skepticism about the Declaration, I found characteristically Borkian flashes of insight and many important truths.
What seemed to me most prophetic about the book was its profound appreciation of the character- or soul-shaping role of culture and its deadly accurate description of, and warning about, the ways in which the triumph of liberal ideology among American elites was corroding public morality and damaging the interests of all of us, but especially the poorest and most vulnerable among us. This is our common interest in maintaining a social environment—a moral ecology, as I have elsewhere described it—that is more or less conducive to virtue and at least minimally inhospitable to what the great British jurist Patrick Devlin referred to as “the grosser forms of vice.”
I have in my own writings, both before Slouching and after, offered philosophical criticisms of what I regard as the illusion of moral neutrality that is the centerpiece of much liberal and libertarian legal and political theory, political theory of the sort that has been championed by the late John Rawls, for example, by Ronald Dworkin, and the late Robert Nozick. I’ve tried to illustrate the many ways in which beliefs, attitudes, and choices are shaped in any society—not just in ours—by the framework of understandings and expectations that, to a considerable extent, constitute for better or worse a society’s public morality and would do so even in the strict libertarian’s utopia.
I’ve sought to show that the acts of private parties, even the apparently private acts of private parties, can and often do have public consequences; indeed, sometimes very extensive and profound public consequences. It will come as no surprise, then, that I found Judge Bork’s refocusing of our attention on public morality to be valuable and even prophetic.
Of course, the next question, for those of us who see things as Judge Bork and I see them is, the hard one: “What do we do about it?”
Truth be told, in the period from roughly the middle 1960s to the publication of Slouching Toward Gomorrah in the mid-1990s there had been very little serious scholarly attention given to public morality and its decline. Concern about public morality seemed to disappear, at least from the scholarly literature, except as an item of ridicule. Even as public morality was quickly eroding, virtually no attention was paid to the question of what might be done to rebuild a decent moral ecology.
So the question is, what are the legitimate and illegitimate means of upholding or restoring public morality? What is likely to work, and what is likely to prove futile or even to do more harm than good? We can all think of ways in which the effort to rebuild public morality could go awry. And, of course, there are some people who believe that any effort to rebuild public morality would do more harm than good, or at least any use of the law toward that end.
But that brings us, of course, to the next question, what is the role and what are the limits of law in the establishment and maintenance of public morality or a moral ecology that assists us in our own lives and in bringing up our children to be decent and honorable people? Now here Judge Bork and I break from our strict libertarian friends. We do think that law and public policy can play a constructive, albeit limited, role in protecting not only public health and safety but public morals as well.
Judge Bork, in Slouching, was even willing to cause scandal and outrage by putting in a good word for censorship. Now I myself would never support the censoring of ideas and arguments, however evil and revolting the causes in which they are advanced. I would defend, for example, Larry Flynt’s right to advocate a free market in hard-core pornography, and even his right to encourage pornography as a tool of personal and social liberation—as vile an idea as I think that is. At the same time, I would have no objection in principle and can think easily of circumstances under which I would be willing to support forbidding Flynt, by law, from producing and distributing his smut. If there is a case against shutting down operations like Hustler, it is merely a prudential case, not a case based on natural rights, liberty, equality, or justice, or so it seems to me.
In my own criticisms of John Stuart Mill’s “harm principle,” for example, or of modern and contemporary defenses of that principle and its application to some of the issues that people who think about public morality are concerned about, I’ve made the argument that there is no ground of moral principle on which Mill’s position can be defended, although in the case of any proposal to use the mechanism of the law, especially in its coercive aspects, to forbid wrongdoing, there are always a range of prudential questions that have to be asked and answered. And sometimes the weight of argument as a matter of prudence will militate against using the force of law, other times, perhaps, for it.
Take, for example, the drug prohibition debate. Now it seems to me that there is no compelling moral argument for a right to use hallucinogens and other mind-impairing drugs on a recreational basis. However, it seems to me that critics of drug prohibition have made a serious case for their view on prudential, as opposed to moral, grounds. I don’t myself find it in the end to be a persuasive case, but I can understand why many people do. They have been persuaded that the social costs imposed by drug prohibition are so high, that we would be better off decriminalizing at least some commonly used drugs.
In any event, I think that’s where the argument has to be made. It is not a question of whether people have a right to do immoral things like use cocaine or LSD, but rather a question of whether the effort to use the coercive force of the law will be futile or even counterproductive—whether it will do more harm than good by, for example, encouraging police corruption or the development of black markets, or leading to the prohibition of legitimate things that might fall under too sweeping a prohibition.
In the area of censorship, or example, there are arguments having to do with whether efforts to ban pornographic material that really does deserve to be banned will lead to the banning of material—literature, art, movies—that actually does have important literary and artistic merit. Now that’s not necessarily to say that the prudential argument always comes down against prohibition. It is only to say that someone considering what his position ought to be on the question, whether as a policymaker or a citizen of a democratic society, needs to consider carefully the weight of prudential arguments on the competing sides. It is not a knockdown, for example, even to prove that if we prohibit Hustler, there will, in some circumstances in some parts of the country, be prohibitions of literature that actually should not be prohibited because it is not truly obscene. The question of what the default position should be is itself a matter for argument and prudential judgment. It requires us to consider what damage is being done, especially to our young people, in a culture in which pornography flows as freely and flourishes as it does in our society today.
Let me conclude these remarks with a brief comment about the role of law and government in upholding public morality in circumstances where it does have a legitimate role, where it passes not only the test that I think it will always pass so long as what it’s prohibiting is actually something wicked, but even where it passes all the tests of prudence. And that comment is this, that the role of law and government is always secondary and subsidiary. The primary role, it seems to me, in this area is played by the institutions of civil society—families, churches and other religious bodies, organizations such as the Boy Scouts—that are concerned fundamentally with character formation and which by working closely with individuals can actually do a good job of inculcating a sound understanding of morality and promoting virtue. Despite the fact, that is to say, that public morality is indeed a public good, its maintenance depends far more on contributions of private institutions, beginning with the family, than on the institutions of law and government, and we go wrong on the non-libertarian side if we invert them and ascribe to government and law the primary role. Where families, churches, and other institutions of civil society fail, or where they’re unable, perhaps because of legal impediments, to play their parts properly, laws will hardly suffice to preserve public morals. Ordinarily, at least, law’s role is supportive. That’s what I mean by secondary, subsidiary. Its role is to support families, churches, and the like in the task of forming honorable and decent people and good citizens.
And of course, finally, the point that cannot be stressed often enough: Law goes wrong when it displaces those institutions of civil society, when it undermines or pushes aside the church, the family, other character-shaping institutions, and substitutes itself for them, forcing them in a sense to abdicate their own responsibilities.
At the same time, while we must be aware of a usurpation of familial or religious authority by government, it’s also important to note that the role of law upholding public morality, even though it is subsidiary, is itself undermined by families, by religious communities, churches and other religious institutions, when they abdicate their primary responsibility, or even worse, when they promote false and morally destructive practices.
