Rather than aim for perfection, conservative energy would be better spent rebuilding the foundations of virtue. We need laws that, for instance, encourage marriage, discourage divorce, and promote community through friendship and civil associations. The benefits of rebuilding a healthy society are uncontroversial. Moral regulations must build upon this foundation rather than grate against it. In this way, conservatives can support incremental progress toward traditional morality while avoiding the twin dangers of judgmental moralism and amoral libertarianism.

Tim Keller recently critiqued evangelical Christians for not developing a political theology—that is, a theory of how to apply religious beliefs to public policy. He correctly points out that Christians do not want to penalize every sin. Specifically, most evangelicals want to penalize abortion but do not want to penalize idolatry (i.e. false religion). He writes: “Since we can’t simply say, ‘If the Bible says its sin it should be illegal’—how do we choose which morals to politically champion?” Keller aims to prevent Christians from dividing over politics by accepting that the political implications of Christianity are debatable. Keller’s piece provoked a response from several commentators, including Adam Carrington.

Keller’s challenge applies not only to Christianity but to ethical philosophies more generally. Should an action be illegal simply because it is wrong? If not, then which wrong actions should be illegal? Are there “harmless wrongs” that the state ought not to forbid?

In America, one often hears that the state shouldn’t “legislate morality,” or that people have a right to do anything so long as they aren’t “hurting anyone.” This position derives from John Stuart Mill’s famous “harm principle,” which holds that the state may only interfere with liberty to prevent non-consensual harm to other people. Live and let live!

This view, while popular, is wrong: the law may encourage virtuous actions and punish evil ones. As I have argued elsewhere, conservatism ought to abandon the liberal idea that the state exists solely to protect individual rights. Rather, individual rights derive from, and must remain rooted in, a framework of moral duties oriented toward natural human goods. Natural goods are not fleeting desires; rather, they are perceived by reason to be worthy of pursuit for their own sake because they enable humans to reach the best possible state according to their nature. If, then, rights are designed to facilitate the pursuit of natural goods, one cannot have a “right” to do wrong.

Nevertheless, drawing upon the natural law theories of Thomas Aquinas and Richard Hooker, I will argue that the state ought to refrain from punishing minor vices. Sometimes, people ought to have tacit “permission” to perform wrong actions, particularly those with minor social consequences. This view of the relationship between morality and law is attractive in that it encourages the promotion of virtue while preventing harsh intolerance. It acknowledges the reality of human sin without excusing or ignoring moral norms. It is idealistic without being unrealistic.

The Common Good Involves Virtue

Classic natural law thinkers hold that human law ultimately derives from natural law, which originates from God’s creative design and is known through reason. Thomas Aquinas argues that the natural law encompasses “everything to which a man is inclined according to his nature,” including virtue, since all people have a natural inclination to pursue virtue (Aquinas, Political Writings, 119). As the Anglican Richard Hooker–who followed Thomas rather closely–wrote in The Laws of Ecclesiastical Polity, humans have a natural “desire” to become “more perfect,” i.e. to reach “an exquisite excellence of form” by “constantly and excellently doing whatever it is that their kind does” (62). They not only seek “continued existence,” both for themselves “individually” and for their species “through their offspring,” but above all aspire “to the greatest conformity with God by pursuing the knowledge of truth and growing in the exercise of virtue” (63).

Achieving basic goods, moreover, requires good political institutions. Hooker states that societies need laws “governing the order of their common life together,” which must be framed “for the sake of the common good” and for “the sake of public order” (82). Thus, as Aquinas likewise notes, “human laws should be adapted to the common good,” i.e. the collective flourishing of members in a political community, which is accomplished especially through natural goods such as life, peace, friendship, and the rearing and education of children (Aquinas, 138). Even supposedly private actions implicate the common good to the extent that they promote or hinder human flourishing.

In a chapter in Mere Christianity called “The Three Parts of Morality,” C.S. Lewis provides a good example of how virtue promotes the common good. He invokes the image of society as a naval convoy traveling through the ocean. There is a danger that the ships will either “drift apart from one another, or else collide with one another and do one another damage.” In order to avoid this, the individual ships must be in good shape; a ship with a faulty engine or steering mechanism will fall behind or veer wildly. The only way to keep the convoy safe is to ensure that each individual ship is seaworthy enough to stay in formation. Likewise, individual people who lack virtue are especially likely to harm others. So even “private” actions affect people’s ability to follow the rules and to lend society their aid.

If virtue serves the common good, then the promotion of virtue falls within the state’s legitimate powers. Hooker writes that “the course of politic[al] affairs cannot in any good sort go forward without fit instruments [i.e. citizens], and that which fitteth them be their virtues.” He argues for this reason that “pure and unstained religion ought to be the highest of all cares” for rulers inasmuch as religion is the best way to inculcate virtue among the citizenry. Whatever view of church-state relations we choose to adopt nowadays, Christian theorists traditionally perceived the inculcation of moral character to be a chief priority of good political communities. The same is true of non-virtuous or “vicious” acts, which may be proscribed. Hooker states that laws are not “properly devised” unless they “presume that man’s will is obstinate” and seek to “moderate his actions to prevent any hindrance to the common good” (82-83). This classic view follows Romans 13:1-7, which states that God instituted government to be a “terror” to people who do “evil” but to “praise” those who do “good.”

The Danger of Banning all Vices

Natural law theorists nevertheless believe that there should be practical limitations on laws that compel virtue or punish vice.

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