Legislating Morality

I saw this argument beginning on a Facebook status of mine, and thought I'd expand my thoughts about it in a little more depth.

I posted a link about a referendum in Switzerland this weekend that would create a national system of explicitly animal-rights prosecutors in the nation. I don't think, from reading the article, that it would change the laws in any way, but it would create positions whose sole responsibility was enforcing those laws. Apparently very few animal-abuse cases make it to court because nobody really cares about prosecuting them, except one guy in Zurich who is the star of the piece. Then Will Bertelsen, a friend of mine, commented on my posted link saying "Legislating morality is always a good idea. Just ask the anti-abortion crowd." Christian Drappi, one of my most frequent online debate sparring partners, said that Will had a good point. But there's a problem with that: if one shouldn't legislate morality, what should one legislate?
Here are some things that most government prohibit: murder, assault, theft, arson, breaking-and-entering, rape, fraud. All are, I think, also generally considered immoral. Is this for some other reason? Does it just happen that most things considered uncontroversially criminal are also those things considered most uncontroversially immoral? In my view, no, and here's part of why. I think I once had an argument about this with Will, actually, in my APES class, and he said that it was something not so much about morality but more public utility: that is, if you didn't prohibit murder, or theft, or arson, society would just be chaos. It might be something like a Hobbesian state of nature, where the life of man was "solitary, poor, nasty, brutish, and short." Agreed; that is true, and it is one reason why it's good to ban murder and its ilk. But why does one oppose that kind of chaos? Why do we oppose a world where the life of man is solitary, poor, nasty, brutish, and short?

One could say, I guess, that there's an element of self-interest; those are, of course, the terms in which Hobbes expresses his argument against that kind of a state of nature. The idea is that avoiding that kind of chaos will dramatically lower all of our chances of being murdered, so it's in all of our self-interest. That's true, I suppose, but the difference here sort of vanishes when considered from the point of view of society. For each individual, banning murder is good because it reduces that individual's chance of being murdered; fine. But for the society as a whole, for what one might call Rousseau's general will, banning murder, if good, has to be good because it will reduce the overall number of murders, and each murder is inherently bad, whomever it happens to. I, in my capacity as Robert Black, an individual human being who lives in American society, would like not to be murdered and therefore I support criminalizing murder, but in my capacity as a member of society I support that criminalization because I think murder is bad and I don't think it should happen to anyone.

My point here is sort of that in order for an individual self-interest to become something that should be a matter of public law, it should be something that is considered a legitimate interest, like not being murdered. Certain individuals might also have an interest in robbing or murdering, but those are considered illegitimate interests, in part at least because they conflict inexorably with other, very important and very legitimate interests. So now we aren't really legislating out of self-interest, but rather out of the judgment that such-and-such an interest is legitimate. But what is that except a statement of morality?

So the idea that we don't, or shouldn't, legislate morality is not really true. What, then, is meant by that statement? Because I don't really think Will means we oughtn't prohibit murder and rape. It could conceivably mean that one oughtn't try to legislate against things one thinks are immoral but that don't involve one individual's actively harming another. That's a reasonable position, and one that I don't necessarily disagree with. But I think that asserting it in this situation is really saying that animals don't count. I obviously disagree with this idea, but I certainly respect people's right to express it. What I mind is trying to cloak it in this "we shouldn't legislate morality" thing, when that's not what they're really saying. If you want to argue with me that animals don't count, fine, that's an argument I'm always happy to have, but make that argument explicitly, please.