Bicodicism

This blog post has the aim of coining a word for a thing I have sometimes seen.

Some people, chiefly liberals and libertarians, will sometimes speak as though law and morality operate under entirely different principles. Not only is it different for something to be illegal and immoral, but these things are actually thought to be unrelated by nature, so that the disconnection between them is right and good, and would also exist in a more perfect legal system.

More specifically, they seem to think that some acts are intrinsically legally permissible or impermissible, and that these acts are different from the acts which are intrinsically morally permissible or impermissible. The legal code and the moral code may overlap, but there can be no general proposition about whether immoral things can or must be illegal, or vice-versa.

As this doctrine is believed, only the legal code may be enforced by the courts; the moral code, if the speaker is a Christian, is only enforced in the day of Judgment.

I have coined the term bicodicism for this idea; plainly, the name derives from the opinion’s belief in “two codes” or codices.

Bicodicism may be contrasted, for instance, with the opinion of Thomas Aquinas, who thought that all immoral acts could, in theory, be forbidden by law, but human law rightly allows some immoral acts because it is not possible for the majority to abstain from them; which is a practical reason, rather than a reason of principle.

A bicodicist might, instead, say that some acts are immoral but are legally permissible, because people have a legal right to do them. This is different from mere legal positivism because the bicodicist regards this as a correct state of the law, and may even find it to be immoral, or against ‘the principles of law’ (or some such phrase), to change the law to forbid the immoral act.

Lysander Spooner plainly stated a bicodicist doctrine in his famous pamphlet Vices are Not Crimes, where he defined some acts as vices and some as crimes, claiming that only the latter are passible of legal prohibition. Spooner’s definition of a crime has nothing to do with whether an act is in fact forbidden by the laws, so that his doctrine is not positivist.

I note that it is not necessary for someone to adopt bicodicism in order to be a liberal or a libertarian. For supposing that a man believed in Thomas’s doctrine as I have stated it, but also believed that acts which do not harm others are never possible for the majority to abstain from – or supposing that he thought that there are always overwhelming practical reasons for the sovereign not to forbid such acts – then he would certainly agree with the common liberal and libertarian doctrine, that acts which do not harm others should always be tolerated by law.