5.4.4 Legislation on Morally Controversial Issues

(This is a current page, from the Patterns of Power Edition 3 book contents.  An archived copy of this page is held at https://www.patternsofpower.org/edition03/544a.htm)

There are issues which are morally controversial, in that society as a whole is unable to agree a standard of behaviour for them.  A policy of inclusivity requires that the law should try to accommodate different views where possible – though without sacrificing important principles.

Issues of life and death have proved to be particularly difficult – having become politicised, particularly in America, with politicians trying to increase their popularity by advocating changes to legislation.  There are conflicting moral standards involved.  There is an inherent diversity of attitude (2.2) in all the following examples, so any simple assertion of right and wrong will conflict with the convictions of some of the people and will make the law less acceptable to them.

Abortion is an example of conflicting rights: the right to life for the foetus, compared to the woman’s right to choose.  There are further aspects to take into account, such as the mother’s health, her state of mind when making a decision, the likely quality of life for the potential child and problems associated with driving abortion ‘underground’.  The topic of illegal abortion was addressed in the film Vera Drake, which was described in a Rotten Tomatoes review:

“While the practice itself was illegal in 1950s England, Vera sees herself as simply helping women in need”.

There is a controversy about whether there are circumstances when people should have the right to commit suicide.  This is even more controversial if it requires the assistance of other people, as described earlier (5.4.2).

Another, related, set of problems 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 they are unable to express a preference.  Safeguards such as the British Government guidance, Your right to refuse future medical treatment, can ensure that the patient’s rights are protected in some circumstances.  It does not include requesting help to commit suicide.

Freedom of the individual is also an issue when considering the vexed question of regulating the use of recreational drugs.  The legalisation of drug use reduces crime, the costs of policing and the associated prison populations.  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.”

The effect of trying to use legislation to control people’s behaviour is to politicise the issue in countries where the legislature is largely composed of politicians.  As has been seen (5.4.1.2), there are problems in trying to associate people’s votes with their views on particular items of legislation so democracy does not per se guarantee an inclusive negotiation.  A pragmatic approach is to take account of acceptability: to legislate on such issues only insofar as it is possible to persuade the vast majority of people.  This is essentially the status of the current law on abortion, for example, in many parts of America.

There is an argument against using legislation for such issues.  An inclusive alternative is to give people all the necessary information and give them the right to make such moral choices for themselves, within certain parameters, rather than using the law divisively to impose some people’s views upon everyone else.  This is not to say that abortion, euthanasia and drug-taking are morally right.  It is an acknowledgement that they are contested.  Many people support the argument that a society is only justified in constraining people’s liberty for the purpose of protecting the liberty of others – as discussed in the last chapter (9.2.2).

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