By Jonathan Wright
It seems that many political conversations evolve into a discussion of the issue of legislating morality. On the one hand, in these situations, one person might argue in favor of legalizing some supposedly immoral behavior, saying that government cannot and should not legislate morality. However, the other person then responds by saying that laws are inherently moral, therefore, government must act to legislate morality.
It is my opinion that these types of conversations largely miss the crux of the matter. The real issue should not be whether or not governing entities should legislate morality. Rather, the correct question is: what immoral behaviors necessitate forceful punishment? Yes, it can be said that governments are making moral claims when, for example, they declare murder to be illegal. But this fact does not prove that therefore, government should make every immoral behavior illegal. For even those who argue in favor of legislating morality would certainly not argue that government should coercively punish every type of immoral behavior. For example, these types of people might say that children have a moral duty to obey their parents, but should a child’s disobedience be punished by government force?
It seems to me that the issue of “legislating morality” is a distraction from the proper discussion of what immoral behaviors are worthy of physical punishment. At the end of the day, political philosophy revolves around this singular issue: what actions necessitate forceful retribution? As political theorist Murray Rothbard argues, political philosophy is concerned with “the proper or improper exercise of physical violence in human relations.” Rather than focus on what behaviors are right or wrong, political philosophy focuses on which actions deserve a physically violent response.
It truly blows my mind how quickly individuals will declare that various behaviors should be illegal. For such a pronouncement not only involves disapproving of such behaviors but also advocating violence towards those who choose to engage in them. Decrying drug use, prostitution, soda consumption, and/or various other practices, these types of people will readily argue that some list of activities is detrimental to society. The imprecision and vagueness of this phraseology make this argument appear more powerful than it is in actuality, for, from the perspective of human action, society is not a legitimate entity. That is to say, society cannot act or be acted upon. Therefore, it is fallacious to make the blanket claim that certain actions are harmful to the entirety of the aggregate group of individuals within society. Certainly, some individuals within society can experience negative consequences from some of these behaviors. However, every single individual within a society will not necessarily be impacted by these types of actions and their consequences.
Additionally, while I do agree that these activities can produce genuine harm for certain individuals, I am skeptical that whether or not an activity is “detrimental to society” is a valid justification for its prohibition. Consider all of the legal activities such as divorce, adultery, fast food consumption, smoking, and alcohol consumption that have clear negative effects on certain individuals within society. Why are these behaviors not illegal? Without some clear method of measuring the harm of these types of behaviors and identifying the victims of these supposed crimes, those who argue in favor of outlawing actions for being “detrimental to society” will never have a consistent methodology for delineating which behaviors should be allowed and which should be prohibited. Furthermore, such an imprecise standard lends itself to abuse and the complete erosion of individual liberties.
Criminality and Libertarianism
On the contrary, I believe that libertarianism offers an exceedingly consistent and sensible answer to questions of legality and criminality. Economist and libertarian thinker Walter Block elucidates the libertarian perspective on this matter, “[Libertarianism] asks under what conditions is violence justified? And it answers, violence is justified only for purposes of defense, or in response to prior aggression, or in retaliation against it.” Note that, rather than starting with the issue of immoral or unfavorable actions, the libertarian philosophy starts with the question of the appropriate use of violence. This fittingly changes the conversation from a discussion of the propriety of various actions into a discussion of the proper use of force. For it is easy to label an action “wrong,” but much more difficult to justify forceful punishment for a variety of so-called wrong actions.
Note the limitations of libertarianism. This political philosophy is not a worldview and does not claim to answer all of life’s questions. As Block argues, “Libertarianism, then, is not a philosophy of life. It does not presume to indicate how mankind may best live. It does not set out the boundaries between good and the bad, between the moral and the immoral, between propriety and impropriety.” Rather than making broad claims regarding morality, libertarianism merely delineates the proper role of violent force in society. Governance is force and, therefore, libertarianism makes a compelling claim for limiting the sphere of government prohibition.
Ultimately, the libertarian standard of justice is based on lex talionis — the law of retaliation or “an eye for an eye.” All crimes must have victims and the punishment and/or restitution for crimes must be proportional to the crime committed. Rothbard clarifies this concept, “The criminal, or invader, loses his own right to the extent that he has deprived another man of his. If a man deprives another man of some of his self-ownership or its extension in physical property, to the extent does he lose his own rights. From the principle immediately derives the proportionality theory of punishment — best summed up in the old adage ‘let the punishment fit the crime.’”
Of course, the application of these principles is likely to be less simple or straightforward, however, the wisdom and consistency of this philosophy are perfectly clear. If an action does not aggress against the rights (to life and property) of another, then it is not a crime. Any forceful punishments of non-aggressive behaviors are themselves acts of aggression and should be considered illegitimate. Activities such as murder, rape, theft, and fraud are clear violations of individual rights and should be made illegal. However, voluntary interactions that do not violate anybody’s right to life or property should not be made illegal. While many of these actions might legitimately be immoral, it is clear that forceful punishment is an overreaction if no individual’s rights have been violated through such actions.
I realize that some of the arguments or conclusions might seem radical. Rather than attempting to be edgy or controversial, however, I am merely attempting to formulate an accurate and consistent perspective. Let me make one final appeal to my position via a quick example. One could accurately label drug abuse as a problem and maybe even argue that drug use is morally wrong. But consider the weightiness and severity of violating an individual’s natural rights in the form of forceful imprisonment. It is eminently difficult to make the case that imprisonment is a just response to an action such as drug use, which, in and of itself creates no clear victim besides the drug user. In this case, the punishment clearly fails to fit the crime — for no crime actually occurred — and it represents a gross violation of individual natural rights.
Therefore, in these social discussions, we must be able to make the distinction between actions that are immoral and actions that should be illegal. While actions that should be illegal are a subset of immoral actions, they are not perfectly synonymous by any means