What would be the harm?

[The Grand Nudger]

Thus the difference between morality and legality.  Legality reserves for itself the right (and yes..by power or might - no less) to set norms which may, in some cases or instances, be opposed to a moral reading of that same situation. It's often the case that what we find morally questionable is legal, and what we find morally upright...illegal.

Ideally, we seek a legal situation that mirrors our moral appraisals as closely as is prudent for an institution, and prefer permissive institutions and legality over impermissive ones. The idea of democracy is a tool to approach that state of affairs. Nonetheless, both the tools and our systems are imperfect, and do not (nor likely ever will) have a one for one equivalence with our moral appraisals.

As with the specific example, I can see no reason (after objections are removed) that it would be immoral for julie and mark to bump uglies. That doesn't diminish the justification for it's status as broadly illegal - and perhaps our laws should contain provisions meant to test for those objections and grant exemption in specific cases.

I still wouldn't screw julie..if I were mark.

(the reason that we consider harm to be morally relevant, btw, from a realist pov, is -not- because we possess empathy...even though it's true that we do and it's true that our moral intuitions are certainly built upon that - you tied yourself into a knot on that one. Rejecting those evolved intuitions as the sole or deciding basis for an objective morality is how realism purports to escape the naturalistic fallacy. Yes, we have empathy, yes, it evolved for survival, yes, our apparatus is in the same position and yes, our intuitive notions of morality are much the same - but it does not need to be that way just because it evolved for that purpose or with that aim. Our empathy can mislead, what is good for our survival may not be morally good, our intuitions do not always match facts. )

*most of that was for the gallery, lol.