Law professor Robert Miller has an important and sobering response to a letter from Professor Robert P. George and Shaykh Hamza Yusuf sent to hotel executives urging them to cease the sale of pornographic films and channels on their hotel TVs.
George and Yusuf, building on the idea that all that is legal is not necessarily morally right, present the heart of their argument as follows:
We urge you to do away with pornography in your hotels because it is morally wrong to seek to profit from the suffering, degradation, or corruption of others. Some might say that you are simply honoring the free choices of your customers. However, you are doing much more than that. You are placing temptation in their path—temptation for the sake of profit. That is unjust. Moreover, the fact that something is chosen freely does not make it right; nor does it ensure that the choice will not be damaging to those who make it or to the larger community where degrading practices and materials flourish.
They conclude their appeal as follows:
We believe that the properly regulated market economy serves the good of all by providing products and services at reasonable prices and by generating prosperity and social mobility. But the market itself cannot provide the moral values that make it a truly humane and just institution. We—owners, managers, employees, customers—must bring those values to the market. There are some things—inhuman things, unjust things, de-humanizing things—that should not be sold. There must be some things that, for the sake of human dignity and the common good, we must refuse to sell—even it if means forgoing profit.
In Professor Miller’s response, he identifies some of the obstacles to this proposal—namely, the financial cost of such a decision, and perhaps (amazingly) the illegality and liability of it, given the relationship between executives and shareholders within a corporation.
This is the most important part of Professor Miller’s perspective:
There is an important lesson here about how our society is organized, and it can be best brought out by a comparison. Like pornographic videos, videos espousing racist views are immoral but legal, but we never find such videos on offer in hotel rooms or, for that matter, almost anywhere else. Why not? Obviously, because practically everyone nowadays finds racist views deeply offensive, and any company that attempted to make money selling such trash would be severely punished by the market. The situation is different with pornographic videos because a significant portion of the population wants to watch such videos and, more importantly, a large majority of the population doesn’t object to their doing so. With racist videos, market institutions reinforce a moral result; with pornographic videos, market institutions reinforce an immoral result. The lesson is that, when a people’s desires are consistent with moral norms, markets produce moral results, but when a people’s desires are inconsistent with moral norms, markets produce immoral results. The economic institutions of capitalism are thus analogous to the political institutions of democracy. With limited exceptions, laws can be enacted and enforced in a democratic society only if they command the support of a large majority of the population. Hence, it is not so much wrong as it is impossible to impose moral norms through law: the only norms that can be imposed in this way are norms that already command broad support.
The legal institutions of a democratic and capitalist society are not designed to give people what is good and prevent them from getting what is bad; they are designed to give people what they want and not give them what they don’t want. For this reason, some people decry capitalism and democracy as amoral. Such views are misguided. In a democratic and capitalist society, there is a certain division of labor: it is up to the people themselves to become moral individuals with moral desires, while the political and economic institutions of the society implement the individuals’ aggregated desires. In any alternative system, there are institutions not accountable to the people and powerful enough to impose their will (really the will of the individuals who control the institutions) on everyone who disagrees with them. The historical record of such institutions has been terrifying, which is the best argument in favor of democratic capitalism. It is true that, in such a system, it may be harder to be moral when your understanding of morality is different from the majority view, but at least you will not often be forced into doing what you think is wrong. You may be seduced, but you will not be coerced. Democratic capitalism is a moral system, but in this system the guardians of morality are not institutions but the people themselves. . . .