5.4.4 Legislation on Morally Controversial Issues
Legislation on morally controversial issues may not be appropriate; the law should not be used to impose a contested political ideology.
The previous section described the need for the law to avoid alienating large sections of the population (5.4.3). This is particularly difficult for issues which are morally controversial, where there is an inherent diversity of attitude (2.2). The key question in such matters is whether the law should be used to enforce one set of views against those who disagree.
Issues of life and death have proved to be particularly difficult:
● Abortion is an example of conflicting rights: the right to life for the unborn child, compared to a woman’s right to choose. As referred to earlier (4.3.4.1), America is polarised on this issue.
● There is a controversy about assisted suicide, which is illegal in many countries: helping someone to end their life makes a person liable to prosecution for murder. Sentencing is a matter for judicial discretion in Britain, as described earlier (5.2.6), so each case is decided on its merits.
● A related problem 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) if someone is unable to express a preference.
The use of recreational drugs can also be seen as a moral issue: a question of freedom of the individual. The legalisation of drug use reduces crime, the costs of policing, and the associated prison populations. And the resulting tax income contributes to the costs of providing healthcare to addicts. A Guardian article on one example, Portugal’s radical drugs policy is working. Why hasn’t the world copied it?, reported that:
“Since it decriminalised all drugs in 2001, Portugal has seen dramatic drops in overdoses, HIV infection and drug-related crime.”
An inclusive alternative to legislation on morally controversial issues is to give people all the necessary information and give them the right to make their own decisions, within certain parameters, rather than using the law divisively to impose some people’s views upon everyone else. The parameters could be chosen to achieve widespread acceptability:
● A compromise on abortion might be the point at which the rights of an unborn child become comparable to a mother’s rights. This might be the moment when it would be capable of surviving outside the mother’s womb.
● Cases of assisted suicide might be determined by the subject having previously given permission. Independent witnesses could be bought.
● Cases of euthanasia could be made dependent upon medical testimony by several doctors.
● A restricted list of recreational drugs could be legalised with the appropriate warnings (as is widely the case for tobacco).
This is not to say that abortion, assisted suicide, euthanasia and drug-taking are morally right. It is an acknowledgement that they are contested and that blanket prohibitions are an inappropriate use of legal power.
This page is intended to form part of Edition 4 of the Patterns of Power series of books. An archived copy of it is held at https://www.patternsofpower.org/edition04/544a.htm.