[originally from October 13th, 2014]
Classical liberal (i.e. borderline libertarian) ideas about rights are very deontological in their nature. It is postulated that certain rather abstract ideas about rights are good just because they are (usually they do sounds quite self-evident though), and the legislation is there to protect them. It doesn’t matter how unhappy someone’s executing their rights makes others – as long as they’re not infringing their rights, it may be immoral, but has to stay legal. This is an important point: something immoral can be legal, since the rights aren’t protected in order to make people happy – they’re protected for their own sake. That’s why the conservative position on minimum wages is that the right to make any mutually agreed contract overrides the unhappiness of minimum wage workers (and probably because conservatives are largely protecting the interests of big companies, but I’m talking about the rationale they give, that is consistent with the classical ideals). And that’s why Westboro Baptist Church is allowed to picket funerals – however offended others are, these guys do have the freedom of speech (and probably because they’re Christians, whereas Muslims or atheists doing the same would very likely be beaten up a long ago – but again, it’s about the justifications, not the hidden motivation of people who choose these justifications).
Modern social democratic ideas (more or less corresponding to modern American liberal ones) are generally way more consequentialist. They didn’t go full social engineering (like communists did), but the overall shift of the focus from ideals of rights to people’s wellbeing is very clear. It doesn’t matter whether something protects or infringes rights – if it hurts people, it should be fixed. That’s what justifies gender quotas: the actual position of women in the society matters more than the abstract virtue of gender-blind legislation. And that’s what justifies outlawing Holocaust denial: offending people and harming the society matters more than the abstract virtue of freedom to say anything you want.
What’s interesting though is that in the consequentialist approach to legislation there’s very little reason why something immoral can be legal. Immoral is something that harms people. And things that harm people should be fixed by a legislative action. The only options I see here is either deciding that something is not harmful enough compared to the difficulty of enforcing it, or deciding to leave a margin of error, for the case of the legislators being wrong. The last one is particularly interesting, since admitting that a piece of legislation can be wrong has all sorts of implications on the penitentiary system.