Mark L kindly gave me the last word, and I’ll try not to abuse that privilege by going on too long.

On Adam Smith, my reference was designed to be fairly lighthearted, and was more concerned with price than values. As I wrote this morning, I’m not sure what Smith did think about laws against prostitution, but I’d guess that he would have been a supporter. Smith certainly believed (as I do, incidentally) that law can legitimately have a moral function. I’ve no reason to think that he would have disapproved of Britain’s then extant, if unevenly enforced, laws against prostitution.

I’m not sure, however, that Mark fully answered my questions. The first question was whether human conduct had to be morally justified to be legal. The second was whether he accepted that there could be a moral objection to laws banning immoral conduct. In reply, he said (in essence) that the basis of law was that it should reflect the “accepted norms of society”, developed over time and blessed with democratic approval. Broadly speaking, I agree, of course, although I would stress (and I’m sure Mark would too) the importance, as the American Founders understood so well, of a constitution as some sort of brake on the potential despotism, moral or otherwise, of the majority.

So far so good. The problem is that this wasn’t really what I was talking about. That said, when it comes to the first of my questions, I cannot blame Mark for that. That question was merely a way of asking whether he thought that all immoral conduct should, by definition, be illegal. I asked it (without really thinking he did) because I thought was it the logical consequence of part of his earlier arguments. On rereading those arguments more carefully (apologies, Mark), I no longer think that was the case, mainly because of the importance he rightly also attaches to popular consent.

The second question (whether Mark accepted that an “objection to laws banning activities that are generally regarded as immoral can be itself rooted in morality”) remains valid. The point I was making was that the case for small government can itself be a moral case, even if it involves accepting that the state will, in certain circumstances, tolerate behavior that most of its citizens find immoral.