By criminalizing those activities that we have traditionally regarded as "vices" we upset our system of liberties by allocating great power to the criminal and even greater power to the government.
Rare is the political pundit who so much as alludes to crime's cancerous effects on our country, much less expresses any indignation over it. As an antidote to this state of affairs, I recently wrote an article in which I argued for the legalization of a number of currently criminalized activities primarily on the grounds that it would starve the criminal of his oxygen.
The liberty that the inhabitants of the Anglo world have always enjoyed, far from being an "absolute" or "inalienable right" possessed by all human beings in all places and at all times, is as much a cultural artifact and as long in the making as the language that they speak. In fact, our liberty is as indissolubly bound with the English language as it is inseparable from the intricate arrangement of institutions that distinguish the Anglo political universe from all others, a finely (and thus, precariously) balanced system of "checks and balances" bearing the unmistakable impress of the sensibilities of a people to whom large concentrations of power have always been anathema.
By criminalizing those activities that we have traditionally regarded as "vices" — activities that, whatever their potential for destruction, are both essentially self-oriented and capable of being enforced only with considerable difficulty and at great cost– we upset our system of liberties by allocating great power to the criminal and even greater power to the government.
A reader raised a couple of objections that warrant an answer.
To begin with, if we should legalize recreational drug usage and the like for the sake of fighting crime, why not, he asks, legalize murder, rape, and, for that matter, every other crime? After all, if there is no crime, then there cannot be any criminals.
That this criticism is really no criticism at all is easily demonstrated by the consideration that if there are no crimes, then there is no law. Since the state is a legal association, the "legalization" of all crimes is tantamount to the dissolution of the state. In other words, a state that doesn't recognize crime is a logical impossibility, and because neither I nor my critic thinks that the demise of the legal association to which we both belong is morally desirable, we can put it behind us.
Perhaps, however, what my detractor means to suggest is not that we should decriminalize all currently illegal activities, but that I have failed to supply a non-arbitrary reason for selecting the activities that I have for decriminalization. Why decriminalize recreational drug usage, prostitution, and gambling and not murder, rape, and so forth?
As was said, a state is an association of a specific sort, an association all of the members of which are bound together by means of the laws of which it is constituted. The most fundamental and, quite possibly, only "justification" for the state's existence is that it promises to be the most efficient mechanism by which each associate can secure his person and property against all others. While those enterprises that we have traditionally recognized as "vices" or "victimless crimes" not infrequently result in no inconsiderable degree of pain for the loved ones of those who engage in them, and while there is even undoubtedly a cost that they impose upon the rest of society, unlike murder, rape, and other overtly violent practices, the injury to others of which they are productive is incidental, not intrinsic to their characters. Murder, rape, and the like, in stark contrast, consist in the harm of others.
This means that there would be no state unless the latter were outlawed or, to put it another way, if we sought to legalize these then we would, in effect, have sought to dissolve the state.
My critic also found that my "utilitarian" argument for legalizing "vice" and concomitant dismissal of "the Harm Principle" was a strategy doomed to run aground. The latter is more aptly named "the Principle of Non-Aggression," he informs me, and insofar as it is a non-utilitarian criterion for distinguishing those actions that should be classified as crimes from those that should not, it succeeds in avoiding at once both the untidiness with which all "utilitarian" arguments of the sort that I offer are plagued as well as the objections that they invite.
To this line of thought a couple of replies are in order.
First, whether we call it "the Harm Principle" or "the Principle of Non-Aggression," the deontological or non-utilitarian character that my critic, following many an illustrious figure, imputes to it is illusory; this principle, though capturing to no small extent the spirit of our tradition, is but an abridgment of it. It is a cliff note, as it were, and like all cliff notes, is both dependent upon "the text" from which it is abstracted and devoid of its nuances, that intricate constellation of specific details that contain within themselves the shadows of the contingent events to which they emerged over long tracts of time as responses.
Yet even if the "Harm" or "Non-Aggression" principle was the categorical certitude that libertarians yearn for, inasmuch as it is devoid of content, it would continue to encounter the same fundamental problem up against which all formal principles inevitably run, the problem, that is, of how and when it should be "applied": how can we know that this action and not that one constitutes illegitimate "harm" or "aggression?" Although it remains a phrase of commendation, "person of principle" literally denotes a person of no substance. From a universal and purely formal principle it is impossible to generate any substantive action; or, to put it another way, principles are not "self-applicable."
Rather, since principles are "the Reader's Digest" versions of the traditions from which they are distilled, they are not really "applied" at all; as Michael Oakeshott said, principles or "rules" are not "applied," they are "used," used in and through conduct. It is only through immersion in the tradition of conduct from which the principles are abstracted that the knowledge of both the principles and their usage can be had.
At the end of the day, however, it shouldn't be forgotten that my original argument for the legalization of vice was intended, not primarily as a substitute for any other that may be given, but as a supplement to them. Mainly, I recommended it as a proposal to combat crime.
From my vantage point on the Left, there is much to agree with in Dr. Kerwick’s views on decriminalization of various “vices.” As conservatives have long been aware, modern liberalism and libertarianism converge to some extent in this area. Dr. Kerwick, however, doesn’t address (and perhaps believes that he does not have to address) the principal source of conservative hostility to his libertarian proposal. What I have in mind is the notion, common to both conservatives and to many on the Left, that any human society has, and must have, a distinct moral character, a coherent ensemble of standards of right and wrong, good and bad, to which a significant majority of the members of society subscribe. There are various ways of framing this notion. If one thinks sociologically, then there will be talk of ‘shared values’ as essential for a society to exist in the first place. If one thinks like a traditional conservative, then the ‘shared values’ will be understood as ‘traditions’ that contain the wisdom of the past that is needed to guide human actions in the present. Both of these views can be taken straight, so to speak, or religion may be added to either of them to make God the ultimate source of the notions that should guide human action. Even liberals often articulate an ideal of human development or an updated version of Aristotelian eudaimonia that is projected as the human good. Further to the Left lie ideologies that project an ultimate or perfectionist version of this position. Sometimes leftists can be surprisingly traditional. In “State and Revolution” (1917) Lenin wrote with no further explanation that the moral code of the Communist future was self-evident and was taught in all of the ‘old books’ of the human past.
In all of these examples, society is understood as requiring a substantive (what trendy discourse calls a “thick”) conception of goodness that would be ill-served by Dr. Kerwick’s libertarian position. I think Dr. Kerwick needs to pursue his argument further, since I don’t see how his position would fare in a debate with, say, a strong traditionalist conservative.
Yet even if the “Harm” or “Non-Aggression” principle was the categorical certitude that libertarians yearn for, inasmuch as it is devoid of content, it would continue to encounter the same fundamental problem up against which all formal principles inevitably run, the problem, that is, of how and when it should be “applied”
This is pretty easily dispensed with when a charter of individual rights, like, say, the constitution, is composed. How do we know when some action is a violation of the non-aggression principle? It’s pretty easy, actually. Was one party harmed physically or materially by another through an act of violence, fraud, or coercion? If yes, a violation of the non-aggression principle took place. If no, no violation of the non-aggression principle took place. When there is less than perfect clarity, courts and juries arbitrate the dispute and make the decision. That’s the only legitimate role of the state! Dr. Kerwick acknowledges this role for the state, but makes it subject to the arbitrary expression(s) of the culture in which the state finds itself, believing the relativistic whims of “Anglo” society morally and practically superior to slavish reliance on some arbitrary “first principle”. The practical difference is negligible, but the philosophical difference is huge in that Dr. Kerwick finds himself in basic agreement with the cultural and moral relativism usually ascribed by conservatives to the Enlightenment liberalism that Dr. Kerwick himself despises.
Furthermore, Dr. Kerwick undermines his own argument by acknowledging in the introductory sentence to the argument that it is equally applicable to any formal principle or set of formal principles, apparently oblivious to the fact that his own anthropological utilitarianism subjects itself to the same argument, as does any system of morals or ethics thus far devised in human history.
Dr. Kerwick calls the non-aggression principle a “cliff note” of a larger cultural environment. But remove that principle, as Dr. Kerwick suggested in his previous piece, and you are left with a very frightening proposition indeed: a society governed by whatever moral consensus is reached, regardless of the effects of that consensus on the rights and personhood of any one individual. This scenario should sound familiar – it is the situation that has been unfolding in the United States for the past century, much to the chagrin of conservatives, libertarians, classical liberals, and everyone else concerned with the preservation of the rights of the individual.
Mr. Mulligan assumes a huge premise whose validity or necessity he does not even attempt to demonstrate–that the “only legitimate role of the state” is to address violations of the Constitution, which he understands as a “charter of individual rights.” He may have read someplace that first principles are beyond rational discussion, but if so, the books from which he learned this are wrong. In politics, disagreement about first principles is a huge part of fundamental political debate.
So, I ask Mr. Mulligan: why is the principle that the primary function of the state is to maintain the traditional values of the dominant part of the population it governs incorrect?
Mr. Mulligan assumes a huge premise whose validity or necessity he does not even attempt to demonstrate: that the “only legitimate role of the state” is to address violations of the Constitution, which he understands as a “charter of individual rights.”… I ask Mr. Mulligan: why is the principle that the primary function of the state is to maintain the traditional values of the dominant part of the population it governs incorrect?
Well, you’ve almost got the quote correct. The only legitimate function of government is to secure the rights of individuals against violation. Inasmuch as the constitution is a charter of individual rights, it would be basically accurate to say “the “only legitimate role of the state” is to address violations of the Constitution”, but individual rights are the real point of the argument, and not just whatever arbitrary document happens to guarantee them. I did not feel it necessary to delve into the underlying assumptions of that statement since the person to whom I was replying acknowledged in his argument that he accepted that premise as axiomatic. Recall that Dr. Kerwick wrote:
The most fundamental and, quite possibly, only “justification” for the state’s existence is that it promises to be the most efficient mechanism by which each associate can secure his person and property against all others.
Classical liberals (including virtually every early American intellectual), libertarians, and conservatives to the extent that their conservatism is relative to America’s founding, which is generally the case, accept this premise while social liberals have always categorically rejected it. It is the fundamental philosophical difference between the ideologies.
For the purposes of the point I was addressing, it is tangential and redundant to explore and define such basic assumptions.
This lame duck session was a failure from the Republican, Tea Party and conservative perspective. When a Republicam majority is again in a lame session they will be too scared to ever pass any bll of any importance settling for “being nice” instead. How can any Republican agree to a Start Treaty DURING A LAME DUCK SESSION????? Are these people idiots????
Isakson actually believes that he voted for this START Treaty because Obama said it was OK to sign up for this thing. The Don’t Ask Don’t Tell should never had been agreed to and the so called Bush “Obama” Tax Cuts is a great fiasco. Did not some one stand up and ask for more in return??? Instead they give us 13 months of unemployment and a Death Tax INCREASE??????
There is not a single Republican Senator I can give any of my hard earned money so they can come back to me with “THIS IS THE BEST WE CAME UP WITH”????? I am not mad I am just dropping out…
Mr. Mulligan chooses not to engage in a debate at the level of general principles, which is probably just as well, since he is clear that libertarian principles and modern liberal principles are incompatible, and the political positions built on them are at war with each other.
reply to Fernman,
From a doctrinaire conservative point of view, you’re absolutely correct. Republicans should have refused any cooperation with Obama on any bill or policy. And once the new House majority comes into office, it should simply oppose every move Obama makes. The public will, of course, truly love a gridlocked Congress–getting just what it wants, no doubt. Ideologues of left or right can’t help wanting to do the political equivalent of holding their breaths until they turn blue. Obama did this for two years and look where it got him. Now you guys on the right get to do it too, and feel as puffed up about your own virtue as Obama has been about his.
When it comes to politics, I’m reminded of Casey Stengel’s exasperated comment delivered to the assembled New York Mets: “Does anybody here know how to play this game?”
Mr. Mulligan chooses not to engage in a debate at the level of general principles, which is probably just as well, since he is clear that libertarian principles and modern liberal principles are incompatible, and the political positions built on them are at war with each other.
That’s an accurate way to summarize what could easily turn into a 10 page argument completely unrelated to the original piece, so I’m happy to leave it there. In lieu of a moral and philosophical argument about the legitimacy and purpose of government, the following short definition of classical liberalism from the NCPA is a pretty good substitution for the argument/explanation I would make if you’re interested in reading it: http://www.ncpa.org/pub/what-is-classical-liberalism
RE: Gestell’s comment “In “State and Revolution” (1917) Lenin wrote with no further explanation that the moral code of the Communist future was self-evident and was taught in all of the ‘old books’ of the human past.”
Before Lenin, Shakespeare wrote “devil can cite Scripture for his purpose.”
I hope that Ivan Ivanovich isn’t capable of reading my reference to Lenin as a pro-Lenin endorsement, although many conservatives assume that if someone reads a book, he must agree with what he finds there. Even Lenin didn’t claim (at least in “State and Revolution”) that Communism brings some completely new kind of morality–instead, doubtless at least in part for tactical reasons, Lenin presents Communism as leading to a situation where the old morality he pretends most people have always known will prevail.
Gestell
I am not capable of understanding what you mean by “I hope…isn’t capable…”, but I am capable of understanding what Lenin said in a polemic speech or propaganda pamphlet. Somehow, I doubt you would quote Stalin or Hitler, but you feel free to quote the person who set the stage for them.