§3. These differences become important when we proceed to consider the practical relations between the two systems of rules that we have been comparing. First, we have to recognise the possibility that Government, in legislating with a view to the general happiness of the governed, may come into conflict with the positive morality prevalent among them; may be led to enforce rights popularly regarded as wrongs, to compel men by legal penalties to do what they are commonly thought right in refusing to do, or to compel them to abstain from doing what is commonly thought innocent if not laudable. This is, indeed, less likely to happen in the case of legislators appointed by popular election, or even in the case of rulers, however appointed, whose education has tended to make them share the moral opinions and sentiments current in their community; since they are likely to share, among other current opinions, the belief that what is commonly thought right is conducive to the general happiness. Still even in this case, owing to the divergences above noticed within the limits of the same community, such conflicts may occasionally arise: e.g. the majority of a modern legislature may think it expedient to close theatres or public-houses on Sunday, when public opinion holds it allowable and desirable to keep them open, or to open museums and picture-galleries on the same day, when public opinion thinks it right to close them. Any serious conflict of this kind is mischievous in two ways: by rendering it difficult to enforce the law in the particular case without an unusual exercise of force and consequent intense and diffused annoyance, and by its tendency to weaken the habit of obedience to law and government in the citizens generally. We cannot, indeed, therefore lay down that such a conflict is always to be avoided: the question must be decided in each particular case by a comparative forecast of the mischiefs just mentioned, and the good to be expected from the proposed legislation. But we may say generally that government ought to take all possible care to minimise the evil of this conflict, supposing it to be in some degree inevitable; thus, when any new governmental interference of a coercive kind is required to repress practices dangerous to social wellbeing, or otherwise to attain some important public end, it, is expedient, if possible, that it should only take place after public attention has been strongly called to the need which the new regulations are designed to meet.
Further, it is to be noted that even legislative measures that have the approval of the majority may come into collision with the moral beliefs and sentiments of important portions of the community: and the prospect even of this more limited conflict may be a weighty reason for deferring or modifying governmental interference that would be otherwise expedient. Even if the legislation in question is not exactly disapproved as immoral, it must always be a serious drawback to its expediency that it will have to contend with strong-forces of desire, interest, and habit, without receiving effective support from Positive Morality.
Thus the actual condition of the positive morality of the community---including under the term all prevalent opinions as to the bad and good effects of actions---confines within rather narrow limits the power of an enlightened Government to act upon the community governed in conformity to the conclusions of the highest political wisdom of the time. On the other hand, it is no less important to note that the legislator has within limits a valuable power of modifying positive morality. Through the general habit of law-observance and the general recognition of the duty of obeying rules laid down by a legitimate authority---which we may expect to find in any well-ordered community---the legislator may obtain a general obedience to rules to which current morality is indifferent or even mildly averse; and then by the reaction of habitual conduct on opinion, a moral aversion to the opposite conduct may gradually grow up. In other cases, where Government interferes to prevent mischievous acts which are already vaguely regarded with some degree of moral disapprobation, the legislator or judge may produce. a more sudden and impressive effect by giving sharpness and decision to this disapprobation. Especially we may say that the judicial organ of government is within certain limits accepted as a moral expert; if within these limits it classifies an act with crimes, public opinion is prepared so to regard it.
[Back to:] [Elempol, Chapter 13, Section 2] Law and Morality