Morality and law: an expanded version

Someone on Reddit replied to what I wrote in the previous post and asked, basically: "Well, but if you believe something is moral, you believe it ought to be done. I mean, that’s the definition of something moral. So, how can you say that something’s ought to be done but ought not to be a law? Isn’t that a contradiction?"

I thought it was a good point. I responded the following:

I struggle with this as someone with a very developed ethical system (I am an Orthodox Jew) but also someone with strong political views.

I think it is exactly like I wrote: law is a contract. A social contract. Not between you and the government (that's nonsense), but between you and other people. Law allows you guys to coexist together.

(A slight tangent: You probably think of law as "something that the government, elected by We the People, said", but that's not the case, and it has not been the case throughout human history. Kings were not in charge of creating laws. People were (not democratically, but through customs or favoring private arbitrators who resolved disputes). Law is a natural way for people to resolve conflicts peacefully, rather than through violence. It is all about the civilization. You can cut out the government from the model completely, and you'd still have the need for law and have some way that people would find to create the law (as they have for millennia). Now that we’ve established that, let’s go back to answering the question:)

Suppose one's moral views tell him that all males must wear little hats on their heads. In his opinion, that's the right thing to do. Should he urge people to make that into a law?

Well, imagine he has very good martial arts skills and a lot of friends with sticks and guns. Should he go from house to house and force people to put on little hats? First, he has to decide whether violence or threats of violence fit into his moral views (he might think wearing little hats is a moral imperative, but also abhor violence, for instance). But even if he decides that it fits, notice that what he is doing is simply bullying. He did not create a law, because wearing little hats has nothing to do with conflict resolution. He just decided: screw the law, I am going back to the jungle and might makes right, because I just care about the little hats this much. Which, I suppose, is his choice.

Now, if he and his little gang are called "government" nothing changes. If 51% of the people in the neighborhood voted for him and his friends, nothing changes. He may think he is doing a morally upright thing, but it's still not the law. It's an instance of bullying among otherwise possibly peaceful society.

So, why should someone choose law over moralistic bullying? Well, as I said, for starters because maybe he thinks bullying is immoral (whether done by him or "the government"). Or because he values peace.

Throughout history, even the societies that felt that they knew what's right (as David Mitchell puts it in one of his Youtube videos, they felt like they were certain as to what the hell was going on and, in fact, which specific hell was going on) at some point found it beneficial to stop fighting and recognize that it's more important just to survive and not kill each other. Emergence of the classical liberal values (as opposed to neo-liberalism, which is basically Marxism) in the Western culture was the same idea but applied within the society: coexisting with others peacefully is as much a value as whatever moral values one has.

Finally, there is something to be said for upholding the concept of law over "whatever we happen to think is right". It's a long-term principle. Today we may think it's beneficial to forbid people to grow as much wheat on their farms as the want. Or we may think it's a good thing to outlaw Communist party. But by supporting whatever (imagined and usually wrongly estimated) short-term benefit, we are destroying the concept of law: that it is wrong to bully people and that interaction between people in the society must be peaceful, by definition of the society.

And the next thing we know, well, pick your favorite 20th-century atrocity. It is always a direct result of that slippery slope that starts with the idea "I know what's best for the society, so let's force everyone to do it".
This is basically the deontological argument. The principled one.

[Before you read the rest, note that I was responding to a moral utilitarian.]

The economic/consequentialist one is: you don't know what is best for the society. Nobody knows. Just like you don't know what the best next model of the smart phone should be. And nobody knows. A bunch of people have good ideas, but you have to let them experiment, compete with each other, then send their phones to Best Buy, and let the public choose. And the public will choose more than one correct answer (some more correct than others), and those answers must be allowed to co-exist.

Every single central-planning strategy in anything, from cars to roads to economics to warfare to politics, is horrible compared to the strategy of letting people do whatever they want* and comparing the results.

*The obvious caveat is that there are things we cannot let people do. Those things that would tear the fabric of the society. I.e., violence and bullying. Murder, theft, robbery, rape, fraud. Those should be illegal. But everything else — you may think you're the new Oracle of Delphi and the Universe has shared its secrets with you how to build the perfect society, but you're wrong. Your little Sim City will not run as smoothly as it will if left to its own devices.

As I said, this is the pragmatic/economic argument. Very different from my original "principled"/legal/contractarian argument. But I think the two go hand-in-hand.