Q&A: Legalizing a Black Market
Legalizing a Black Market
Question
Let us assume for the sake of discussion that abortion at any stage is morally forbidden. And let us assume that the number of abortions (and the identity of the women having them) would not be affected at all by a legal ban on abortion. In other words, let us assume hypothetically that a law preventing abortions would *only* drive abortions underground, meaning a risk of injury/death to the women having them and perhaps a black market, but would not improve any outcome in any way.
Would it, under those specific assumptions, be a moral obligation to allow moral offenses in order not to make things harder for the offenders and harm them.
Answer
I didn’t understand the question. Do you mean to ask whether there is a moral obligation not to enact a law forbidding abortions?
I would start with a different question: is there any obligation at all to enact such a law? Before asking whether it is forbidden to legislate it, one should examine whether there is any value in such a law, and then ask whether that value outweighs the value of not harming people unnecessarily.
That of course depends on the different ways of understanding the obligation to legislate. If you view the law as a declaration regardless of consequences, then there is value in such legislation even if it has no practical results. If you see law as a means of achieving goals, then in such a case there is no value at all in that legislation.
If, in the final analysis, you say that the law has declarative value, then one must now discuss whether that value overrides the prohibition on harming people unnecessarily.
Still, even here one could ask whether there is perhaps value in harming them for their criminality, and if an offender is harmed by his own actions—he brought it on himself, and good that he did. Not only on the consequential level, that this would cause him and others to stop what they are doing (for that does not exist here, according to your assumption), but in the very act of taking revenge on the wicked. That takes us back to our old arguments.
As for me, I tend to think there is no value in a law that has no practical consequences, but it may be that, ironically, precisely because of this there is reason to enact it in order to cause evil people harm as a sanction (and that too without practical consequences). On this I remain uncertain. However, if the harm would also be caused to others (not to the offenders themselves), then there is probably no justification, but I do not see any others here who are being harmed.
Discussion on Answer
I can’t lay down hard and fast rules. If it doesn’t require anything from me, then presumably I won’t go beyond what is necessary in causing harm. But if there is a price for me, then there is room to weigh that against the excess harm.
Yes, that’s what I meant (both an obligation not to enact a prohibiting law, and also an obligation to enact a law that helps. Just as websites have accessibility requirements for people with disabilities, so clinics should have an accessibility requirement to an abortion doctor).
Is the possibility you raised—that he stuffed himself and good that he caused it—also true if the results are more severe than the punishment the person would have wanted to impose on the wrongdoer? In other words, does that possibility mean freezing concern for another person when he is an offender, or simply saving effort while the work of punishment is done by others?