There is a common saying that "you cannot legislate morality." And yet we do legislate morality all the time. We should legislate it, and when we do, it works. We have laws against stealing, all kinds, and murder, all kinds. We have laws against drunk drivers, but not against drunks. In that case, we are selective, distinguishing between a sin and a crime. We have laws against perjury, but not against other forms of lying. Again, we are selective. However, we are legislating morality.
Such legislation does not determine morality; the legislation just makes a civil law out of an intrinsic moral law that we should already know and recognize. I am speaking in legal terms, not religious terms.
The Navy has some truisms, one of them being "a taut ship is a happy ship." A taut ship, of course, does not mean an over-trained, workaholic ship. Nor does it mean a "chicken" ship. It simply means a ship with laws, the infractions of which are justly and quickly punished.
What are these laws? In written law, there is the Constitution of the United States, and its interpretation by Federal Courts. Then there are the laws of the United States and of the respective states and cities. After that (for the Navy), there is the UCMJ, Navy Regulations, and finally the laws and regulations of any single unit, ship, squadron, or station.
Within this hierarchy of governments, there are always two types of laws.
1. Malum in se - behavior which is evil in itself.
2. Malum prohibitum - something which is "evil" simply because it has been prohibited.
An example of the first is murder. All states have laws against murder. Making the law did not make murder evil. Murder was already evil; that's why the law was made.
An example of the second is the 55-mph speed limit. Exceeding 55 miles per hour is not intrinsically evil. It is only "evil" because the law declares it so.
In our home, we also had two kinds of rules for our children - God's rules and house rules. Lying was a violation of God's rules. Jumping on the couch was a violation of house rules.
With this distinction in mind, we in the armed forces should approach the problem three ways:
1. Law is concerned with malum in se and malum prohibitum.
2. Moral teaching and example are concerned with malum in se.
3. Morale is concerned with malum prohibitum.
The law that prohibited homosexuals in the Armed Forces was malum prohibitum. It was wrong because we said so. That is different from the practice of homosexuality, which is malum in se. Both kinds of law are legitimate. We should, however, recognize the differences between them.
To illustrate, the eighteenth amendment to the Constitution introduced the prohibition of alcohol. The Volstead Act was passed in 1919 to help enforce this amendment. As a result of this new national law, the Secretary of the Navy, Josephus Daniels, put the word out to remove all alcoholic beverages from ships at sea. This was a clear case of malum prohibitum. It was wrong to drink at sea because we said so.
When the twenty-first amendment was passed in 1933, repealing the eighteenth amendment and making alcohol legal again, the Navy decided to keep prohibition at sea. We'd had thirteen years with no liquor aboard ship and had found out that we had a better-operating Navy. This prohibition is still found in U.S. Navy Regulations, Article 1150.
[to be continued]
Such legislation does not determine morality; the legislation just makes a civil law out of an intrinsic moral law that we should already know and recognize. I am speaking in legal terms, not religious terms.
The Navy has some truisms, one of them being "a taut ship is a happy ship." A taut ship, of course, does not mean an over-trained, workaholic ship. Nor does it mean a "chicken" ship. It simply means a ship with laws, the infractions of which are justly and quickly punished.
What are these laws? In written law, there is the Constitution of the United States, and its interpretation by Federal Courts. Then there are the laws of the United States and of the respective states and cities. After that (for the Navy), there is the UCMJ, Navy Regulations, and finally the laws and regulations of any single unit, ship, squadron, or station.
Within this hierarchy of governments, there are always two types of laws.
1. Malum in se - behavior which is evil in itself.
2. Malum prohibitum - something which is "evil" simply because it has been prohibited.
An example of the first is murder. All states have laws against murder. Making the law did not make murder evil. Murder was already evil; that's why the law was made.
An example of the second is the 55-mph speed limit. Exceeding 55 miles per hour is not intrinsically evil. It is only "evil" because the law declares it so.
In our home, we also had two kinds of rules for our children - God's rules and house rules. Lying was a violation of God's rules. Jumping on the couch was a violation of house rules.
With this distinction in mind, we in the armed forces should approach the problem three ways:
1. Law is concerned with malum in se and malum prohibitum.
2. Moral teaching and example are concerned with malum in se.
3. Morale is concerned with malum prohibitum.
The law that prohibited homosexuals in the Armed Forces was malum prohibitum. It was wrong because we said so. That is different from the practice of homosexuality, which is malum in se. Both kinds of law are legitimate. We should, however, recognize the differences between them.
To illustrate, the eighteenth amendment to the Constitution introduced the prohibition of alcohol. The Volstead Act was passed in 1919 to help enforce this amendment. As a result of this new national law, the Secretary of the Navy, Josephus Daniels, put the word out to remove all alcoholic beverages from ships at sea. This was a clear case of malum prohibitum. It was wrong to drink at sea because we said so.
When the twenty-first amendment was passed in 1933, repealing the eighteenth amendment and making alcohol legal again, the Navy decided to keep prohibition at sea. We'd had thirteen years with no liquor aboard ship and had found out that we had a better-operating Navy. This prohibition is still found in U.S. Navy Regulations, Article 1150.
[to be continued]
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