The Difference Between Prohibition And Regulation

One of the more common arguments I see from somewhat sophisticated people who tend to disagree with the large amount of focus by conservative and evangelical Christians on issues of personal morality, especially homosexuality, is to comment that while the bible in about half a dozen instances prohibits homosexuality (one of those times, in Romans 1, dealing rather obliquely with the issue of lesbianism), the Bible deals with problems like gossip or heterosexual immorality far more often. This is true, as far as it goes. The people who make the argument do not stop at this point, though, to merely comment on the different frequency that sins are spoken about, but rather seek to make one of a couple of further points. Either they argue that sins such as fornication or adultery are much more abhorrent to God or much more serious given their greater frequency of condemnation, or that the small amount of times that a sin is mentioned means that such a sin is not as great a problem and should therefore not be emphasized to a great degree.

This argument has a great deal of sophistication because it does not seek to argue that the moral and ethical standards of the Bible are no longer applicable (as is argued by some), or that they are cruel and inhumane (like the Sharia law, for example), but rather it represents a serious attempt to take the Bible seriously while also seeking to justify or legitimize conduct that has become extremely problematic in contemporary society, especially given the Bible’s very clear and pointed condemnation of that conduct. Rather than find fault with those who sincerely wish to understand the Bible, and who wish to place the corpus of biblical law in some kind of larger context rather than to selectively condemn certain sins while giving others a pass, I would like to consider this sort of distinction between different types of conduct as a way to understand the common difficulties faced by rulers, whether of God over man or of mankind’s attempts at self-government, as a way of understanding the distinction that we can draw between the prohibition of acts and the regulation of them.

All lawgivers face a common problem, and that is the problem of properly framing laws that will motivate and inform others to engage in certain kinds of conduct and prohibit them from engaging in other forms of conduct. In stark contrast to those who say that there should be no legislation of morality, the writing and enacting and enforcement of laws has always been about the efforts of rulers and governors to enforce standards of morality that are congruent to their own and to punish and delegitimize conduct that they consider immoral. Whatever the grounds of this judgment, whether it is personal and subjective feelings, the shared standards of a cultural elite or of a society in general, or an external body of moral and legal code that was not created by man but was revealed by God, the adoption of a particular moral worldview contains consequences as far as what moral standards exist (for moral standards are inescapable, even if not all of them are moral, because there will always be some choices and some behaviors that are considered illegitimate, at least those choices and behaviors that attack our own) and as far as what sort of legal enactments will best defend and enforce that moral worldview.

In this problem, the efforts by God to regulate the moral conduct of His people and the efforts by human regimes to do the same are analogous in terms of their difficulty. In particular, we may class between two distinct types of efforts at influencing the conduct of people. One type of effort is prohibition, which is the banning of that conduct, and the other type of effort is regulation, which is a considerably more difficult task that seeks to place appropriate boundary markers around conduct which is proper within certain limitations but improper outside of those bounds. As might be imagined, prohibition is not a matter that takes a great deal of length of frequency of repetition to deal with, but rather regulation is a much more difficult matter, given the greater complexity of seeking to regulate conduct that is acceptable at some times and places and in some situations and not in others.

Let us move the conversation from the imprecise and airy world of theory and into the world of practical examples. Let us begin with the examples often complained about the most, and that is the contrast between the Bible’s treatment of homosexuality and the Bible’s regulation of heterosexual conduct, as a way of examining the larger issue of distinguishing between the frequency of mention and length of discussion between issues of prohibition on the one hand and regulation on the other. These examples will help us to be just when it comes to dealing with those issues in our own lives and in our own institutions, and come to a greater appreciation of the deeper logic behind frequency counts and other surface level attempts to understand the scriptures (or any other work that contains a great deal of legislation).

Leviticus 18 contains the first legal prohibition of homosexuality, though it shows up as an aspect of moral condemnation before (in Genesis 19, in the famous story of Sodom & Gomorrah), which is but one example of the general truth that God’s moral standards were in effect long before they are first recorded as statutes, commandments, and laws in the Bible [1]. Be that as it may, Leviticus 18 contains a very clear effort at describing acts that are forbidden and prohibited, showing the general biblical approach of laying clear standards of what is unacceptable conduct and then providing the appropriate punishment for such conduct. Leviticus 18:19-23 gives some of these blanket prohibitions, which have no exceptions given: “‘Also you shall not approach a woman to uncover her nakedness as long as she is in her customary impurity. Moreover you shall not lie carnally with your neighbor’s wife, to defile yourself with her. And you shall not let any of your descendants pass through the fire to Molech, nor shall you profane the name of your God: I am the Lord. You shall not lie with a male as with a woman. It is an abomination. Nor shall you mate with any animal, to defile yourself with it. Nor shall any woman stand before an animal to mate with it. It is perversion.”

It is important to note that this is speaking not in the language of regulation (although it is part of overall regulation concerning matters of sexuality), but rather in the language of prohibition. There are not any circumstances where the Bible considers homosexuality appropriate, nor bestiality, nor having sex with a woman during her monthly period, nor adultery. Now, some of these commands had to be repeated over and over again because of disobedience (such as the command against child sacrifice), but they do not have to be elaborated at length because there is no regulation of such conduct, but rather their outright prohibition. Whatever our own feelings or desires about the matter, it does not change the blunt truth that such things are forbidden outright.

In stark contrast to this lies the biblical treatment of heterosexual behavior, which is acceptable in some circumstances and not in others [2]. To give but one example among many, let us discuss the issue of women prisoners [3], an often misinterpreted law that gives us some of the hallmarks of regulation. Deuteronomy 21:10-14 gives us this law: “When you go out to war against your enemies, and the Lord your God delivers them into your hand, and you take them captive, and you see among the captives a beautiful woman, and desire her and would take her for your wife, then you shall bring her home to your house, and she shall shave her head and trim her nails. She shall put off the clothes of her captivity, remain in your house, and mourn her father and her mother a full month; after that you may go in to her and be her husband, and she shall be your wife. And it shall be, if you have no delight in her, then you shall set her free, but you certainly shall not sell her for money; you shall not treat her brutally, because you have humbled her.”

It is worthwhile to point out how this law is a regulation instead of a prohibition. Let us note that this particular regulation provides the acceptable conduct for a single soldier who sees among the female prisoners of war someone he would like to marry. This is not dealing with the rape of such prisoners, which was a mortal offense, nor about some sort of exploitative situation where such women were to serve as prostitutes, which was also unrighteous, but rather a case where a single man with a longing to marry saw among the prisoners of war someone that he wanted for a wife. The rest of the passage talks about regulations, including giving her time to mourn the loss of her family who she would now be separated from as well as protecting her as a wife and prohibiting her from being sold by her husband. This language is a clear example of the distinction between regulation and prohibition. As there are legitimate circumstances where a single young man would marry a lovely and chaste prisoner of war from another culture, the Bible places boundaries around such conduct to protect the more vulnerable party while legitimizing the desire for a wife and a family even among soldiers. Far from an inhumane and barbaric law, this is a law that shows a great deal of humane concern for all people involved in what is clearly not an ideal situation for courtship and love.

It is worthwhile to note one of the easiest ways to distinguish between a prohibition and a regulation, and that is the length of space that is devoted to dealing with a matter. Where something is prohibited, it can be dealt with very briefly. The same amount of space in scripture that gives seven prohibitions, most of them dealing with sexual sin, some of a very serious nature, in Leviticus 18 deals with the regulation of one very rare and minor case of heterosexual conduct. This is not an isolated circumstance either. It takes one very short verse to prohibit murder (see Exodus 20:13) but it takes almost an entire chapter of the Bible (Numbers 25:9-34) to deal with the establishment of cities of refuge to regulate the survival within a sort of house arrest for those who have committed manslaughter to avoid the death penalty for murder. Again, regulation takes a lot more space than prohibition, something that was true as far back as ancient Israel.

It is noteworthy that this same distinction is present in our contemporary laws. Let us compare, for example, the difference in space required between the prohibition of alcohol (widely regarded as an unwise law) and the regulation of the healthcare industry. The entirety of the 18th Amendment to the United States Constitution is as follows:

Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all the territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress [4].
This is not a particularly complicated law. It gives a blanket prohibition of alcohol (hence its name), gives Congress the authority to enforce the law, and gives the requirements for the Amendment to go into force. The regulations of appropriate use (medicinal or religious purposes) took up more space, as might be expected. Perhaps the most glaring example of the massive size of regulation is the attempt by the United States government in 2010 to regulate the health care industry with the Patient Protection And Affordable Care Act [5]. Instead of being three straightforward and easy to understand sections, this particular law contains about two thousand pages of law that is very complicated and difficult to understand.

This is entirely what one would expect if one compares the short space that is necessary to condemn or prohibit a task with the much greater amount of crafting that it takes to set appropriate boundaries for acceptable behavior. Even if one wishes to compare apples to apples, and that is statutory law that seeks to prohibit as opposed to statutory law that seeks to regulate, the differences in scope are notable. An example of this would be Florida’s laws against sexual battery [6], which, as might be expected, contain sections full of straightforward definitions and a straightforward prohibition of various unacceptable conduct (which would include a wide variety of conduct, including rape and statutory rape). The language of these prohibitions is not very unlike the language of Leviticus 18, and for good reason—both of them describe unacceptable conduct, provide the punishment for that conduct, and our own feelings or longings or desires are entirely irrelevant to the way the law is constructed because coercion of others for sexual intent, or taking advantage of the vulnerable, whether by reason of mental incapacity or difference in power, or youth, is deemed entirely unacceptable, which is precisely as it should be. Although this law prohibits a wide variety of conduct, it can be printed out very easily on a couple of pages, as opposed to the two thousand pages of the Affordable Care Act.

What are the implications of this reality? For one, we cannot view the amount of space that is devoted to different matters to imply a straightforward difference in morality. Having vastly more references or laws that relate to the regulation of heterosexual conduct does not in any way imply that this is equally or more problematic than homosexual conduct because of its relatively short and infrequent prohibitions. On the contrary, while heterosexual misconduct (adultery and fornication, for example) is far more common than homosexual misconduct, when viewed across society as a whole, the fact that there is acceptable heterosexual conduct while there is no acceptable homosexual conduct accounts for the difference in the amount of laws that are necessary to regulate the one and the much smaller amount of laws that are needed to condemn the other.

Let us note further that most of the references that deal with the condemnation of homosexuality occur in the New Testament. Why would this be the case, given that the Old Testament is more concerned with the passage of laws (and contains, for example, the above cited prohibition against bestiality which is the only biblical law against that improper conduct)? Cultural context matters a great deal here. In the Old Testament, homosexuality appears to have been mainly a problem of cultic prostitutes and associated tranvestivism and the transgression of boundaries for the purposes of some sort of heathen magical beliefs [7]. Outside of this, there was a strong tradition of deep friendship and loyalty among men (see, for example, the friendship between David and Jonathan that has been slandered by gay activists as being homoerotic), but not a great deal of the homosexuality that we associate with contemporary society, hence the lack of frequent moral condemnation of that sin.

It is a different matter when we come to the New Testament, where both Greek and Roman society had some immoral cultural baggage. For the Greeks, there was a lengthy tradition of pederasty among Greek society, where it was common for older Greek men to gratify their sexual lusts with younger Greek men in the context of mentoring. Part of this, ironically enough, involved Greek sexism, for the Greek male form was considered to be the ideal of beauty (resulting in nude athletic events, which was a scandal for more restrained and modest Hebrew audiences), and the female form was considered important only for procreation, which meant that sexism was a major cause of Greek immorality. In Roman society, in contrast, the moral blame for homosexual conduct only fell on the recipient, who was considered unmanly, rather than in the dominant party, who as long as he was a Roman of a high enough class was allowed to deposit his seed wherever he wished, so long as it was not inside the wife of another member of the same class. With Roman society, sexism as well as class snobbery was a major cause of Roman immorality.

As might be imagined, this corrupt pagan society among both the Greeks and Romans meant that Paul’s efforts to evangelize in that world meant that these moral issues had to be addressed. Of course, they were, in such places as Romans and Corinthians and Revelation, precisely as one would expect. The greater frequency of such sins (as well as the historical precedent of Sappho, which accounted for the lone condemnation of lesbian activity that can be found in the Bible) meant a greater frequency of such condemnation of sins that can be found in scripture. If the scriptures were written today, it would be likely that such conduct would be condemned greatly, although there would be plenty of other sins of both social and personal morality that would also merit mention.

That said, let us put matters into their proper context. The legal corpus of the Bible (as is the case for any other legal corpus) is not something that can be taken on a piece by piece basis. The laws that are passed and enforced are based on underlying moral and ethical worldviews. A change in moral worldview, whether it is in terms of progress towards the standards of our God, or whether it is a regress into corruption and decline, generally necessitates a change in the enforcement of laws, as people are unwilling to enforce laws that they no longer agree with, and eventually a change in those laws if the moral worldview of those laws becomes abhorrent to the moral worldview of future generations. Our contemporary hostility towards moral law can be found in the fact that many people consider there being no law greater than their own desires. It matters little what those desires are. It ought to give us some pause, though, that our only defense from being exploited by other human beings is the existence of some sort of restraint on their part, whether out of their own conscience or their fear of punishment, or their self-discipline in the attempt to follow a code of ethical standards that exists outside of themselves. If we seek to demolish that defense because it is inconvenient when it restrains us from our lusts, then we will awake one dark day to find that we have destroyed the preservation of our own well-being and safety from the evil desires of others to exploit us however they wish.

The same people who decry the prohibition of homosexuality, or even so-called gay marriage, are often very vocal in their desire to prohibit any speech or conduct that would seek to condemn their own behavior. Thus, we see that despite their different moral worldview, they too consider some conduct to abhorrent to tolerate, even as they demand toleration of their own conduct, and not merely tolerance but vocal approval. Likewise, those same people who decry the regulation of sexuality, and the attempt by the law to channel it into proper circumstances and punish its abuse often see a great need to regulate the conduct of businesses because of the potential for abuse on the part of the rich and powerful against commonfolk. The reverse is also true in that there are many who would feel it appropriate to regulate sexuality and not business (and some who would believe it appropriate to regulate neither of those, but only regulate the behavior of government to stay within narrowly prescribed boundaries, or both). In truth, though, everyone sees the existence of some threat to our social order and the need for regulation, whether that threat comes in government tyranny, or the oppressiveness of grasping and selfish elites, or the chaotic and anarchical moral dissipation of individuals. Some of us see a threat in all of those places. Whoever’s conscience cannot be trusted, one wishes to regulate by law. We all wish, in some fashion, to coerce at least an outward obedience to law even where, and especially where, great darkness and evil desire resides within. In short, we are no different from Moses and Paul and others who sought to make clear God’s condemnation of certain acts and the proper boundaries of other actions. The only difference is the moral content of those acts that we applaud, of those that we regulate strictly, and those that we condemn and prohibit. We are not so different under the surface after all.

[1] See, for example:

[2] The Bible deals often with such circumstances as result from the complex need to regulate the relationships between men and women, for example:

[3] I have discussed this law in greater detail in:





About nathanalbright

I'm a person with diverse interests who loves to read. If you want to know something about me, just ask.
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9 Responses to The Difference Between Prohibition And Regulation

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