The question of whether government should legislate morality is at first glance comprised of two fundamental definitions, which need to be clarified so as to provide a valuable answer. Firstly, governments must be defined, so as to better understand to what purpose they exist. Secondly, morality itself would need to be defined in order to provide a consistent definition of exactly what social norms that are adhered to and which are to be prohibited. However, upon closer examination perhaps only one point needs clarification: what are the functions and purposes of government, and, in a greater sense, politics in general? For the particular moral system that is espoused by a given government is ultimately relative to the culture that is governed, whereas the question of the legislation of morality itself is tied to what is expected from government.
Hence, the key question becomes in this light: what is the function of government? If one takes a standpoint that is based in the liberal tradition, for example, then there must be a rejection of government legislation by morality, since political structures, by definition, always threaten individual freedoms. Hence, Locke contrasts the life of the human being in the state of nature as one constituted by liberty, whereas life under political rule is one that is a sacrifice of this same liberty, then there is a fundamental question as to why human beings create political organizations such as governments: “if man in the state of nature be so free, as has been said, if he be absolute lord of his own person and possessions…why will he part with his freedom?” (sec. 123) For Locke, it is tied to not being “constantly exposed to the invasion of others” (sec. 123), hence, it is primarily a matter of security. According to Locke therefore, one must be wary of governments because they may ultimately become a threat to their own citizens; at the same time, the question of morality is clearly outside of the scope of governmental power, in so far as security and not questions of ethics are the reason for the existence of government.
Aristotle gives us a radically different picture of politics: “it is clear that all communities aims at some good…at the most authoritative good of all.” (Book 1, Chapter 1, Paragraph 1) For Aristotle, this good is inseparable from an ethical concept of the good, and thus, politics, must legislate over morality, because ethics are a crucial part of what individuals consider to be good. In other terms, people do not organize themselves into political societies because of security reasons, as Locke mentions, but also because they share some ethical commitments, some basic sense of morality. Politics is inseparable from morality and thus government should legislate over ethical questions.
The difficulty with Aristotle’s account, however, is that it represents an idealized form of political organization. Locke does not take this idealist point: he takes a realist standpoint, whereby the only reason why states should exist is to provide security – if they fail to provide this security they should essentially be abolished. The reason why Aristotle’s point is idealist and Locke is realist is that the history of politics continually shows an overwhelming abuse of political power. Whereas some communities may have been founded on ethical commitments, these political communities, such as various totalitarian regimes, have historically become tyrannies. This is what Locke feared: granting too much power to government could lead to the government becoming the greatest threat to individual liberties, whereas the very origin of government lies in security.
Asking governments to establish moral principles assumes that governments can articulate a series of ethical commitments which are consistent with the views of the community. However, communities may also be heterogeneous on the level of morality and may only join together so as to achieve the goal of security.
Furthermore, there does not appear any pressing need why governments should legislate morality, to the extent that this assumes a common moral consensus can be reached and that the government is the ideal form of social organization to maintain this morality. Yet, following Locke, this goes beyond the basic function of government as a form of security apparatus and into the idealized terrain of political hegemony as becoming a moral authority, whereas the moral authority of politics itself has been shown to be lacking in history.