Andrew S. asks me: “Does all human conduct have to be morally ‘justified’ to be legal? Additionally, do you accept that an objection to laws banning activities that are generally regarded as immoral can be itself rooted in morality (even if you don’t agree with that morality).”

When I speak of morality, I speak of accepted norms of society, developed over time, and which underlie the the civilized society (ordered liberty), which includes the making of laws through the people’s representatives. I suppose an argument can be made that not all laws should be so justified. And Andrew is free to make the case. But he does have some obstacles to overcome. If certain laws are to be made based on something other than accepted (or at least perceived) societal norms — based on community values, etc. — then what is the standard? Surely it has to be more than Andrew’s personal standard, whatever that may be. And in a representative government, how do laws get made if they are not reflective of those values and lack popular support? Should the courts manufacture some federal constitutional right of privacy as applies to prostitution and impose it on society? Andrew faces both philosophical and practical obstacles, I believe.

And of course the societal norm may be immoral. Behavior evolves, the law evolves, etc. But the manner in which change occurs in a society is also relevant. If a moral case can be made that prostitution should be legal, then presumably Andrew and others who share his position can persuade his fellow citizens to the wisdom of their position. But in Andrew’s response to me, he cites Adam Smith thusly: “Smith would not have approved of the Emperors VIP Club, but he might possibly have understood the rates it (allegedly) charged…”

I take it Andrew did his due diligence in search of any passage where Adam Smith would endorse prostitution on moral grounds and came up empty. Of course, analyzing the financial costs and benefits of prostitution does not suffice.

Andrew is free to post the final word. We are, I expect, at an impasse.

UPDATE: Re : “Does all human conduct have to be morally ‘justified’ to be legal?” It could be that Andrew is implying that if society doesn’t outlaw all immoral behavior that there is something illegitimate about society condemning through law certain immoral behavior. Well, that argument doesn’t get Andrew very far. It’s kind of a selective enforcement argument, i.e., if you don’t prosecute all crimes then why have criminal statutes? Again, society generally, if not imperfectly, sets priorities for itself.