Sculptor said:
Take the United States as an example. The moral "container" stays the same; a red plastic Solo® cup is a red plastic Solo® cup, but are you sure what's in my cup right now is an India Pale Ale just because that's what I was drinking when you arrived at the party?
Consider that there are many people who consider the United States a "Christian" nation, and would attempt to legislate from the moral outlook thereof.
And then consider that part of our American Christianity involves an idea called "prosperity gospel". This theology directly contradicts Christ in order to assert that the rich man is blessed by God. What's in their cup? Water? Wine? Poison?
As the Gay Fray escalated post-Lawrence, some Christians tried arguing that God does not forgive "lifestyle sins", since one cannot repent of a sin continuously committed. Many of these Christians also belonged to faith communities that were happy to give God's blessing to adultrous heterosexual marriages, in direct contradiction of Christ's words. One wonders what's in their cup.
Conservatives occasionally try their own brand of feminism. That is, someone scrawls "Feminism" on the cup with a Sharpie®, but what is the cocktail inside? No sex education, no oral contraception, no IUDs, no abortion, and even support for the conservative men's talk about "real" or "legitimate" rape, and oh, by the way, equal pay for equal work is unfair to women.
When the United States declared their independence from England, they invoked God to declare that all men were created equal. And when we won that independence through warfare, we turned around and adopted first Articles of Confederation that preserved slavery, and then a Constitution that not only preserved slavery, but declared that some individuals were only three-fifths of a person. And when we fought a war with ourselves about that, slavery was over. So we adopted a Constitutional amendment that required the states to provide equal protection under the law to all persons within their jurisdictions. And then it turned out that women were not considered people under that amendment; that's the reason we eventually required a Nineteenth Amendment, fifty-five years later.
At the time of the Declaration, slavery was morally acceptable and even laudable. The only reason slaves were counted as 3/5 of a person was to compromise between taxation and apportionment. The slave states wanted those people counted for purposes of congressional apportionment, but not for purposes of taxation, so what the founders came up with is this bizarre Three-Fifths Compromise.
Would you argue that the supporters of dehumanization and slavery actually believed they were being immoral?
By the time of the Civil War, our attitudes had changed. And the anti-slavery assertion of morality won, hence Amendments XIII-XV.
Do we really think the federal and state interests that argued against women having the vote under equal protection obligations of the states were saying, "We know it's immoral, but this is what we're going to do because we must"?
It's not that I don't get your point, but its functional challenge is the difference between my moral perceptions and theirs. Or yours and theirs. Or yours and mine. But in the question of law as an expression of morals, what you or I think doesn't define their reasons for doing what they did. That you or I might find slavery and the Three-Fifths Compromise immoral does not mean that the founders drafted and adopted the Constitution in order to assert as law something they found immoral. The Three-Fifths Compromise expresses a political outcome within the moral framework. What didn't prevail at that time was an idea more familiar to you and me, and that's that black people aren't fractional people, but actual people.
In South Carolina, prosecutors are, in the twenty-first century, arguing against a woman's right to defend herself against domestic violence. As grotesque as you or I might find that, it sounds about par for the Palmetto course. This is what counts as "morality" in South Carolina, a state where misogyny is virtually as common as air. They're not being misogynists to celebrate their own immorality. To wit, they crafted a fetal protection law, and it was indeed an attempt to legislate morality. At the time, supporters argued they were protecting pregnant women from domestic and other violence. Opponents argued that the laws were intended to constrict women. These years later, only one man was ever charged under the statute; his conviction was eventually overturned. They have, however, prosecuted hundreds of women under the law, with many convictions that have not been overturned. We see in this outcome the true expression of South Carolina morals motivating such laws. But it was also a different time; Christian extremists, being Christian, were granted a certain superiority in the public discourse. (Hint: There's a reason why conservatives often assert that one violates their free speech by disagreeing with them.)
These are expressions of cultural morals. Or, perhaps, we might wonder why, post-Lawrence, Texas fought so hard to enforce prohibition of dildos. The Travis County attorney who aruged the case in the beginning was just elected governor, by the way. Let me guess, he was enforcing what he recognized as immorality? Of course he wasn't. The State of Texas took the lead, and went on to argue that it had a legitimate moral reasons for the laws, because it needed to discourage sexual gratification that was not intended to procreate.
In the state of Ohio, recently, small-government Republicans wrote a bunch of TRAP laws ... and passed them in the state budget. And here's a nifty legal catch: One section required abortion providers to have transfer agreements with local hospitals, something akin to admitting privileges; another section prohibited the hospitals from entering those agreements. Would you assert Gov. Kasich signed this into law in order to assert the state's immorality? Anti-abortion laws are a moral expression.
"I would argue that law is based on custom and tradition and not on morality." (#311)
Those customs and traditions are intrinsically linked to morality.
Justice itself is a moral assertion.
I just don't see how you are separating morality from the customs and traditions from which the laws are derived.
I still appreciate your wordiness as always. I wasn't disagreeing with you, just offering that there can be many many pathologies for hatred including also ignorance and immaturity.
