The road to viciousness is paved by the urge to legislate for Virtue.
In spite of what the title of this article suggests, the characteristically Libertarian position — what is typically regarded as "the Harm Principle" — that all adult human beings have the right to do whatever they want as long as it doesn't involve them visiting harm upon others is not one that I endorse.
The assumption that from the enterprise of invoking "rights" alleged to be "Natural" or "Human" in settling moral issues there is much fruit to be had is correct: since the idiom of "rights" is, so to speak, "the English language" of the universe that is our contemporary political-moral discourse, commerce between agents is facilitated by speaking it; furthermore, the language of rights embodies a vision that is markedly simple in its essence. Yet these fruits are in reality poisonous: like all monopolies, the monopoly on our public morality that the idiom of "rights" has secured has resulted in a waste of resources in moral reflection, and the simplicity that it supplies has similarly succeeded in drying up the moral imagination by closing it off to other and potentially richer possibilities to explore in accounting for our experiences.
The distinctively Anglo spirit of liberty that "the Harm Principle" intended to encapsulate is all but lost by its transformation into a species of absolutism. The largely informal mannerisms, customs, and dispositions — i.e. the cultural particularity — from which it sprung and that is the necessary precondition of its enjoyment and conservation is traded for a rootless abstraction or "proposition" that, as a timeless doctrine, runs up against logical challenges that are, in the final analysis, insuperable.
That perhaps most Americans are unaware of it does not change the fact that the only liberty that we have ever known consists in the far reaching dispersal of power that our constitutional traditions have secured for us: the division between the federal government and the governments of the states; the sovereignty of each state over and against the others; the division of each government into three branches; and, as importantly as any of our other institutional arrangements, the institution of private property, are designed to preclude the formation of large concentrations of power. It is in the interstices of this intricate constellation of "checks and balances" that our liberty is located.
To put the point even more succinctly, our freedom derives from the rule of law, for it is the rule of law that effects this wide distribution of power within which our liberty is to be found. The criminalization of those activities, like recreational drug use, that have traditionally been regarded as "vices" upsets this distribution and, hence, our freedom, by insuring that ever larger concentrations of power will be formed.
Yet it isn't just an ever more powerful government that imperils our liberty. The criminalization of vice empowers as well the criminal; it encourages outlawry and, thus, turning the law against itself, undermines the legal association for the sake of which law exists.
The criminalization of drugs, prostitution, and gambling has given rise to black markets. Since these black markets are the criminal's oxygen, by legalizing these activities we drain the blood from his veins and divest him of every vestige of power.
At one time, the Bootlegger was the emblem of the Outlaw, the Gangster. But there never would have been any bootleggers without Prohibition. The Drug Dealer is the archetype of the Gangster today. Both are creations of bad government policy, but while it took the generation of yesteryear only a decade or so to appreciate the truth of what no less a figure, and no more a "libertarian," than the Angelic Doctor, Thomas Aquinas, long ago discerned — the impulse to outlaw all evils creates even greater evils — we persist in our folly.
The Bootlegger is no less a relic from a bygone era than the Knight simply because enough people realized that while alcohol consumption can ruin lives, the criminalization of alcohol consumption — through the seedy underworld that it engenders and strengthens — ruins more lives. And what is true of the criminalization of alcohol consumption is at least as true of the criminalization of drugs and other currently criminalized vices.
The common objection that the legalization of, say, drugs, will result in an increase in usage is inconsequential for at least three reasons: first, it is an assumption; second, assuming as it does that legislators can alter the conduct of citizens at will simply by passing (or repealing) laws, it is rationalistic: the illegality of an activity may be a factor in accounting for why some people abstain from it, but surely it is far from being a decisive one; third, even if true, this disadvantage of legalizing drugs must be measured against, not some ideal standard of perfection, but the aforementioned disadvantages of criminalizing them.
The impulse to criminalize vice is a function of a view of the state and government that we needn't pursue here. Suffice it to say, however, the road to viciousness is paved by the urge to legislate for Virtue.
The criminalization of drugs, prostitution, and gambling has given rise to black markets. Since these black markets are the criminal’s oxygen, by legalizing these activities we drain the blood from his veins and divest him of every vestige of power.
To which your conservative readers will respond “Well, why don’t we just legalize murder and rape too!” And without the “No Harm” principle you derided at the very outset of your essay, they have a perfectly valid point. If your objection to the criminalization of those things is purely utilitarian, then the same argument can easily be extended to other crimes which actually do cause harm and destruction of personal property to others. The “No Harm” principle, more properly and popularly known as the “non-aggression principle”, in libertarian thought is what differentiates criminal from non-criminal activity. Rather than being an arbitrary expression of “Anglo culture” the law serves a singular purpose and is very clearly defined. The reason why prostitution would not be considered criminal under a libertarian legal philosophy is because both agents engaging in the act of prostitution are doing so voluntarily and without fraud or coercion. No act of aggression, physical or otherwise, has taken place. This serves as a much better basis for decriminalization than a utilitarian argument that outlawing prostitution causes more problems than it solves because it gets to the root moral issue instead of just appealing to convenience. Furthermore, the utilitarian argument can be invalidated by addressing the secondary problems which are extensions of the first. For instance, if we could guarantee with 100% success that we could eliminate the secondary social problems associated with criminalization of prostitution through some government apparatus, the argument that we should decriminalize prostitution because it causes the secondary problems would become baseless. In that case, not only would we be forced to abandon the argument for decriminalization of prostitution, but we would also have to support the growth of a new government apparatus (unless, of course, we could justifiably make the argument that the government apparatus itself had unintended consequences, but then we are back to square one). Prostitution is merely an example of convenience, of course. You can extend this example to any of the particular vices you mentioned.
So while I would generally agree with the policy results of your argument, the logic you’ve used is rather unconvincing. If you believe in the decriminalization of vice, I can’t imagine why you would choose such a weak justification instead of just supporting the non-aggression principle as the moral basis for law. I can scarcely think of an example where the result wouldn’t be essentially the same, but the logic would maintain a consistency that is impossible with this utilitarian proposition.
One thing we don’t seem to talk about with this issue is the Federal goverment vs the States. So many of these so called vices should be controled from the local level. Yes, the feds can help with national data bases but decisions regarding drugs, prostition, abortion and such should be given back to the states.
It is certainly appropriate for a conservative intellectual (or intellectual conservative) to write critically about the moral-political idiom of ‘rights.’ Dr. Kerwick joins a distinguished list of conservatives who have drawn attention to what they regard as the confusions and inadequacies of this characteristically Anglo-American manner of thinking.
There are several ways conservatives have found to argue against ‘rights.’ One approach is that of Oakeshott, who, as part of his criticism of political rationalism, regards ‘rights’ as, at best, excessively simple abstractions from the various actual liberties that members of a society might have as the result of their specific historical paths. Thus, to borrow from Oakeshott, the ‘right’ of habeas corpus is simply the availability of this process. Dr. Kerwick’s position resembles this standpoint.
However, both Dr. Kerwick and Oakeshott want to argue against the notion of law having virtue as its telos. I’ll comment on Dr. Kerwick and leave Oakeshott for other occasions. Dr. Kerwick seems to be claiming that the rule of law can be completely abstracted from any and all concerns with virtues and vices or, to speak more plainly, with good and evil. Such an abstraction can be performed—no doubt—but it can only breathe the thin air of the graduate seminar at best and runs aground on the shoals of what most of us, most of the time, simply mean when we think and speak of ‘law’ in our capacities as dwellers in an ongoing society which has its distinctive traditions of moral conduct and its equally distinctive exceptions to and exemptions from the full sway of these traditions. I expect conservatives to be well and lovingly acquainted with the unique moral fabric of their society and to have a capacity to relish and enjoy the permissions and prohibitions that comprise this ensemble of practical conduct. Separating the moral fabric from law is, in my view, impossible.
Dr. Kerwick’s discussion of the Bootlegger makes the obvious point that without Prohibition, the Bootlegger would not exist. Certainly, and without laws against murder, murder would not exist either, unless God’s law is taken into account. I’m not sure that this sociological commonplace does the philosophical work Dr. Kerwick wants it to accomplish. His examples are simply limiting cases of a much more general—and hair-raising proposition, although some libertarians do come close to embracing it—if you want to eliminate criminality, just do away with law.
Dr. Kerwick may well imagine that a government can maintain a sort of morally neutral constellation of rules—perhaps like the legal formalism of Hohfeld—that consists solely in those measures that have the greatest likelihood of both minimizing the incidence of and mitigating the inconveniences of the inevitable collisions we experience as members of a society. However, conservatives should know that there appears to be in many, perhaps most, human beings the notion that something more, something higher, should be somehow embodied in their society than simply an optimal algorithm for conflict management. We want our society to be good, we want at least some dimension of its order to be properly labeled as righteous. Leo Strauss puts this well when he notes that human beings in society look up to something and want to do so. There are, of course, conflicting visions concerning which virtues and which vices should play a role in the order of society, but the libertarian answer that none should be cast in this role at all is far removed from the consensus of most men and of most nations. Are libertarians really saying that all of this history is nothing by a syllabus of errors?
We’re all familiar with the old line “few indeed are the martyrs to the limited liability corporation.” A libertarian of my acquaintance used to object to the sentiment of this sentence by asking why anyone thinks it is necessary or good to have martyrs to or for anything, but such utilitarian sentiments are shared hardly at all by most men at most times.
As for law itself, does Dr. Kerwick think an ironclad case has been made for the legal positivism that his position calls for? Any law concerned with any matter of deep importance to us is replete with moral presuppositions and intentions. Libertarians strain mightily either to ignore all of this or to reduce it to their own master premise, the no-harm principle, producing clever exercises that are noticeably missing from real legal discourse. Presumably Dr. Kerwick’s position is that no government should have the traditional ‘police power’ of government. And, like many libertarians, he probably thinks that such concepts as the “public good” are metaphysical nonsense. However, if a conservative is someone who accords at least some weight to historically grounded social consensus, it’s hard to see how conservatives can rest content with denying to government at least some role in opposing vice and promoting virtue. These are things conservatives should be conservative about.
Thus, to borrow from Oakeshott, the ‘right’ of habeas corpus is simply the availability of this process. Dr. Kerwick’s position resembles this standpoint.
That isn’t too terribly surprising. Dr. Kerwick’s bio makes mention of the important influence of Oakeshott on his own work and conservative philosophy, and he has made reference to Oakeshott in several of his pieces here at Intellectual Conservative.
His examples are simply limiting cases of a much more general—and hair-raising proposition, although some libertarians do come close to embracing it—if you want to eliminate criminality, just do away with law.
Precisely the point I raised. I was expecting our more conservative readers to raise the objection. However, no libertarian thinker has ever come within a cosmic distance of embracing that proposition. You are confusing libertarianism with anarchy. Even anarcho-capitalists embrace a role for the law, but divorce it from a public instrument of enforcement (e.g., private courts and arbitration based upon private contracts). Libertarians favor doing away with a lot of the current body of law, but not as an end in itself, and not for the purpose of convenience. Dr. Kerwick’s position is, ultimately, utilitarian: the purpose of the law in his view is to provide the least harm for the most people. In his practical examples, the well-intentioned law ended up causing more harm than it prevented, so the law was no good. The libertarian concept of law is most decidedly not utilitarian. It is concerned entirely with the securing of individual rights from infringement, based upon the moral precept of the “non-aggression principle”, without regard to the convenience of the consequences. Although the resultant policy prescriptions may be the same, or at least similar, there should be no mistaking the one position for the other – Dr. Kerwick made the differentiation himself right at the very outset of his piece.
Any law concerned with any matter of deep importance to us is replete with moral presuppositions and intentions. Libertarians strain mightily either to ignore all of this or to reduce it to their own master premise, the no-harm principle, producing clever exercises that are noticeably missing from real legal discourse.
Libertarians do, indeed, reduce the moral presuppositions of the law to the master premise of the non-aggression, or, if you all prefer, “no-harm”, principle. The result is a consistency of both law and the legal reasoning accompanying it that is absent from “real legal discourse” precisely because of the dysfunctional nature of a legal system that sees itself as an instrument of social policy (or in an alternate Kerwickian world, as the arbiter of maximum utility), and a legislative system that sees the law as the sandbox in which experiments in the molding of human nature take place. It is right and natural that libertarian legal philosophy does not integrate with the absurdities of our present legal system. It is a different legal philosophy.
The doctrinal purity of libertarianism is its most attractive feature to its votaries who exemplify political rationalism. Of course it is correct to say ” It is right and natural that libertarian legal philosophy does not integrate with the absurdities of our present legal system. It is a different legal philosophy.” In its intransigent refusal to consider the possibility that it is nowhere embodied in the government or law of any human society that has ever existed it shows itself to be as politically irrelevant as the wooliest doctrines on the Left. In its own way, libertarianism is a form of ideological fanaticism.
In its intransigent refusal to consider the possibility that it is nowhere embodied in the government or law of any human society that has ever existed it shows itself to be as politically irrelevant as the wooliest doctrines on the Left.
So it’s irrelevant because it has not been embraced by existing governments and political systems? Considering that the entirety of American liberal ideology is opposing what exists simply because it already exists and embracing what is new (or at least perceived to be new – I’m not sure how many ways you can rework Marx and still call it “progressive”) simply because it is new, that is a rather surprising rebuttal. It’s worth pointing out that the little squabble we call the Revolutionary War was fought in order to upend traditional government as it existed up to that point in time and implement what was, at the time, entirely un-tested, wild-eye radicalism. The very fact that you so tightly cling to the status quo is proof enough for me that it’s basically a pile of rubbish :)
Besides of which, the United States federal government as originally crafted is actually a pretty close approximation to libertarian ideology, with the power granted to the states to create whatever sort of localized regime – totalitarian, libertarian, or anywhere in between – they wished. Obviously that is a long way removed from the modern federal apparatus.
Reply to Mr. Mulligan:
No, I mean that no people, no society in the course of human history has ever set up and operated anything like the libertarian conception of law. Law, everywhere, at every time, has embodied a host of moral, ethical, and (in most times) religious value systems. No one has had a purely formal, content-free system of law.
I’m actually just borrowing one of Aristotle’s criticisms of the doctrine of Plato’s “Republic.” Aristotle argues that if Plato’s model is so great, then why is it that no society has even approximated it?
Then you indulge one of the more peculiar fantasies of conservatives or libertarians when you write “the entirety of American liberal ideology is opposing what exists simply because it already exists and embracing what is new (or at least perceived to be new…” Not even close. American liberals don’t oppose what exists simply because it exists. In the first place, nobody, not even American liberals,opposes “everything.” To assert that they do is to trade in idle nonsense. Second, what liberals oppose is what they believe to be defective or in need of improvement, and that which replaces it is judged to be better. You’re subscribing to the nonsense that liberals are relativistic nihilists opposed to what exists. There are, of course, genuine nihilists, but liberals are not to be found among their ranks. We think that various social policies that we propose are morally defensible because they contribute to a better life for human beings, not just because they are novel. What is at issue between Left and Right are substantive views of what human beings need, what rights they have, and how they should live their lives. Both sides are, to this extent, absolutists, not relativists. A liberal truly believes that society is better to the extent that obstacles to the development of people based on false judgments are weakened or dissolved. Of cousre, the conservative thinks these judgments are correct–and that is why there is ideological war between the two positions.
On what planet is it possible to believe that the Revolutionary War was fought to “upend traditional government?” Do you really believe that the American governmental system was built on the airy fabrications of intellectuals? Left largely intact by the Revolution were the social structures, economic life, and culture of the colonies. The Founders learned lessons from the sheer fact that colonists had been forced by distance to become skilled in self-government from the level of the small town to the colony itself. All colonies had functioning legislatures, elected by a growing percentage of the white male population over time. Niether those governments, nor those of the states which replaced the colonies were happy exercises in libertarianism. Governments imposed taxes, undertook public projects, and passed laws. Democracy flourished at the local level. Colonial, and then American, society was permeated with the police power of government–i.e., the power to enforce laws and make poliies pertaining to “public health and morals,” as the old phrase had it. The daily lives of the Americans were lived in what historian Barry Shain shows to be a largely Protestant,, very moralistic consensus on what we today call basic values. No room here for “untested, wide-eyed radicalism.” English common law was the legal vernacular and, while government at all levels was limited, its reach over the moral conduct of people was far greater then than even most traditional conservatives seem to want today.
Now wherever did you get the idea that the Constitution left the states to do what they will in terms of government? Remember that the Constitution guarantees a ‘republican’ form of government to the states.(Article IV. sec.4). To men of the 18th century, a ‘republican’ form of government had very specific features, especially the institution of representation, which makes your claim that the Constitution allows states to have a ‘totalitarian’ government demonstrably silly. Yes, the states could establish churches, and a majority of them did, but in terms of their institutional structures, basic laws, and political practices, they were all clearly the heirs of English politics and the Reformation.
Yet, there was an American ‘revolution,’ and it led to a new sort of government. Here are its two main features. First, it was a government that did not build a traditional class structure solidly into the fabric of government itself, as was the case in most continental European nations. Second, and very much in reaction against what had happened to Europe in the previous century, no one version of Christianity was built into the fabric of government either. The precise opposite of the American approach was stated clearly by the early 19th century French conservative Joseph de Maistre: “throne and altar” was the principle of the French ancien regime, to which France should return once the effects of the French Revolution were undone. The third leg of the American regime was the federal system, which Madison and others recognized as a new form–not quite the same (although traditional conservatives often get this wrong) as a confederation. The American federal government was to be more than the lynchpin of a loose alliance of separate republics but less than a continental unitary state. And this is why the main dispute in American politics has been, from the beginning, the proper relationships between the states and the federal government.
You seem to imagine that the American political system was a collection of bright ideas dreamed up one warm summer morning in Philidelphia by a collection of bright lads like you and your fellow libertarians. It’s a good thing this isn’t the way it went down.
No, I mean that no people, no society in the course of human history has ever set up and operated anything like the libertarian conception of law.
Yes. That’s exactly what I said. You reject a libertarian conception of law because it is (in your view) novel. Of course, until they were formulated and implemented, all of the conceptions of law throughout human history would have been subject to the exact same argument. Back time up a couple hundred years and the same challenge could be posed to Aristotle regarding Classical Greek law as Aristotle posed to Plato regarding his utopian Republic. That something is old is not necessarily an indication that it is correct or good. Like I said, a “liberal” of all people should understand this very well, since the incessant implementation of “new” (or at least “different than present”) experiments in social engineering are the very cornerstone of “liberal” or “progressive” ideology. It is rather amusing to see the liberal suddenly turn into a total and complete reactionary at the prospect of embracing a theory of law based upon a moral premise he rejects. Now you know how conservatives feel about, well, pretty much the entirety of your ideology.
We think that various social policies that we propose are morally defensible because they contribute to a better life for human beings, not just because they are novel.
It is a curiosity then why you continue to propose social policies that have shown themselves to be abysmal failures that have made life demonstrably worse for the very people you ostensibly are trying to help. The 16 years of economic depression under the “New Deal” and urban rot under the “Great Society” should suffice as examples where the “compassionate” liberal, like a one-move chess player, failed to recognize the unintended consequences of his actions, or perhaps did recognize them and pressed forward anyway because his true agenda was not so much “compassion”, but social change as an end to itself (lest we forget, “You never want a serious crisis to go to waste”).
On what planet is it possible to believe that the Revolutionary War was fought to “upend traditional government?”… Left largely intact by the Revolution were the social structures, economic life, and culture of the colonies.
Yes? And? That the day-to-day lives of the people were not largely affected by the completely novel theory of government upon which the United States system (that’s the federal one, remember) was built does not change the fact that the legal and moral theories of American government were not just liberal, but radical at the time of their adoption. Do you really think that much of anything about society would change if a libertarian government were installed tomorrow? Of course it wouldn’t. Because most people’s behavior is formed by their cultural institutions and personal choices – not the present set of ever-changing laws.
Niether those [colonial] governments, nor those of the states which replaced the colonies were happy exercises in libertarianism.
Nor did I suggest that they were. I said that the United States federal government, as originally crafted, was a “pretty close approximation” of libertarian ideology and specifically took care to mention that the states were free to create whatever body of laws and regulations that they saw fit.
Now wherever did you get the idea that the Constitution left the states to do what they will in terms of government?
There’s this one part of the constitution called the “10th Amendment”. “You liberals” generally reject the spirit and letter of the 10th Amendment, and it is less than 2,000 pages long, so I’m not surprised you forgot about it. However, it still exists, un-repealed, as a fully-fledged part of the American constitution. Here’s the full text:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
That small clause gives the states powers far exceeding the federal government. Indeed, this is borne out by the vast differences in local laws and regulations in the individual states. If you’d ever owned a gun or a business and moved to a different state, these differences would become acutely recognizable (liberals being opposed to guns and business, I can only assume you were unaware of these differences). As you mentioned, many individual states even had official state churches well into the 1800′s, with Massachusetts featuring an official state church until 1833 (it wasn’t until Everson v. Board of Education that the Supreme Court decided that the “establishment clause” extended to states via the 14th Amendment, in contradiction of the application of the law for the previous 160 years). The Massachusetts state constitution to this day includes a provision for the public financial support of public places of worship and the “support and maintenance of Protestant teachers of piety, religion and morality”. Until the Uniform Commercial Code was adopted in 1952, interstate commerce was made tedious by the various commercial contract laws in the individual states. Until the National Minimum Drinking Age Act of 1984, which effectively strong-armed states by withholding federal highway funding if they failed to enforce the federal minimum drinking age, the various states had different minimum drinking ages. My state, as well as Oregon, has an “assisted suicide” law while most of the rest of the states do not. And you know how liberals think it’s, like, totally cool and stuff that California has legalized pot? Yeah, that all comes from the freedom of self-government granted to the states by the 10th Amendment. Despite the liberal ideal of an all-powerful central government unencumbered by the interference of those pesky states, and despite the progress you’ve made in making such a system the de-facto reality in America, such a system does not exist, and has never existed, in the spirit or letter of the constitution.
To men of the 18th century, a ‘republican’ form of government had very specific features, especially the institution of representation, which makes your claim that the Constitution allows states to have a ‘totalitarian’ government demonstrably silly.
Representation does not preclude totalitarian government. The Soviet Union had “representative” government, after all (I know most liberals and “progressives” up until the 1940′s refused to acknowledge the totalitarian nature of the communist experiment in the USSR, but I think it should be fairly uncontroversial to call it a totalitarian regime today in hindsight). And don’t forget the recently-held election in Iran where, in a stunning upset victory, Mahmoud Ahmadinejad won another term as president. Even in the absence of coercion, some people are stupid enough to willingly vote themselves totalitarianism. Franklin Roosevelt’s 4 terms as president, during which more power was consolidated in the executive branch than ever before in history up to that time, should serve as a convenient example. Exploitation of the tendency of frightened people to willingly subject themselves to oppressive government has been the catalyst to just about every liberal policy “victory” for the past century, and that strategy has been written on extensively by liberal and socialist thinkers, so I’m sure you’re familiar with the concept.
Yet, there was an American ‘revolution,’ and it led to a new sort of government. Here are its two main features. First, it was a government that did not build a traditional class structure solidly into the fabric of government itself, as was the case in most continental European nations. Second, and very much in reaction against what had happened to Europe in the previous century, no one version of Christianity was built into the fabric of government either.
Those two procedural features are important and distinctive, but actually the most important and also the most distinctive moral principles of the new American government were natural rights and consent of the governed. These concepts are not named in the constitution, but underlie the moral premise of America’s claim to independence and the legitimacy of its new government. The constitution is the procedural extension of those two moral principles. But the principles themselves are what really differentiate American government from those that came before it.
You seem to imagine that the American political system was a collection of bright ideas dreamed up one warm summer morning in Philidelphia by a collection of bright lads like you and your fellow libertarians.
I never said or implied anything of the kind. The entirety of my equation of libertarian ideology and American government was this:
the United States federal government as originally crafted is actually a pretty close approximation to libertarian ideology, with the power granted to the states to create whatever sort of localized regime – totalitarian, libertarian, or anywhere in between – they wished.
How you got out of that an argument that the American system of government was conceived in the hearts and minds of young libertarian intellectuals in Philadelphia is beyond me. Since the philosophy of libertarianism and the term itself were not even in existence at the time of the founding of America, that would quite obviously have been impossible. The classically liberal concept of rights and the purpose of government, however, does share basic underlying compatibility with libertarian legal and moral philosophy.
It’s a good thing this isn’t the way it went down.
What difference would it make to you? “You liberals” wouldn’t want anything to do with a government even resembling the one that existed either in philosophy or practicality at the time of the composition of the constitution anymore than you would an orthodox libertarian government. The only advantage I can possibly think of from the liberal point of view would be that the American system was a lot easier to change than a libertarian one would have been.
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