We must first take seriously the separation of the legal and the moral. If you do not take that seriously you will not find what follows even interesting. You will find it shockingly monstrous and judge is author vile and evil. Put in the form of a question and assume omniscience: should all that is good be duty and all that is bad be banned? There it is in its nugget form. The easy answer of “no” is presumed. Help getting there? An example, an remember, that we have assumed omniscience about morality.
Not to be charitable when you should is wrong (morally). Thus, to he who answered “yes” to the above question not being charitable should be banned legally. Now, let us consider the apparatus which will oversee the walking by the homeless without giving-just one among an infinite number of variable situations in which one can fail to be charitable. The not being charitable is only wrong morally and so banned legally when the individual who could have been charitable had met all of his other needs ahead of charity. It would be unreasonable for the potential giver to be expected to give to his own poverty. If he did he would not alleviate need but only move it from the impoverished person to himself. So, for each case of “not giving” we need to insure that it was a situation in which that which was needed was held in sufficient quantity to be given without detriment to the giver.
In addition, it is not immoral to not give charitably where the giving would only support evil. In other words, it matters why the impoverished or needy is in the position he is in. Even if his position is innocent the giver must be sure that his giving will not increase the probability of dependency or otherwise destabilize the incentives the impoverished has for productivity and independence (amounting to his own conversion into the status of a giver).
So, it is the day of trial or it is the moment for the writing of the ticket for the breach of the law of charity. You will note, I hope, the knowledge required to judge whether the law was broken. The moral case being nuanced, the legal case must be so. Otherwise the legal system will to great damage in its bluntness to the moral nuance.
And, we have not even broached the position of power created in he who is the surveiller of acts of charity and their breach and the misuse of that position that is risked. We have not even broached the question of punishment but obviously it is silly to consider legality without punishment. Law without reward and punishment is less that real and will not be attended to. That any parent knows.
So, in this one example we have blown the top off the equivalence between morality and legality. What we have done is driven a significant wedge between the two. And, we have threatened two contemporary groups who rely on the moral in order to achieve in the legal: the leftist in economics and the rightist in social matters. The leftist in economics will absolutely rely on moral claims about “rights” to healthcare, education, food, shelter (and the list only grows) in order to justify their force and control over others. The rightists in social matters will similarly rely on moral claims to justify restrictions against certain relations or requirements that certain relations be required. Both are mistaken, and we begin the argument against either by asking them to admit that there is room between the moral and the legal. Then, it becomes a question of what precisely that is moral (assuming omniscience again…a big assumption) should also be legal.
Once we acknowledge ignorance and disagreement in the moral realm it is like a bomb going off. Either my morals get instantiated into law or yours and it is a power game with serious implications. Or, there is another way. And human rights attached to property rights is that other way. More soon.