I have recently engaged in a lengthy debate1, and as I read the responses, I realized in a way, I had allowed myself to engage in the wrong argument. It was hard not to do so, as I strongly disagreed with the conclusions, not to mention having, as they say, a "dog in the fight", as the laws in questions had resulted in lots of personal discomfort, inconvenience, physical pain and generally humiliating treatment. However, I should not have responded as I did, since the debate in which I engaged was actually distracting both parties from the true issue. It was as if I had a cold and someone suggested horseradish as a cure since it heated the blood, and I responded by arguing that it actually heated the bile. I am sure there are those who could debate such topics ad nauseam, but the debate would miss the key point, that both answers are based on an incorrect understanding of medicine and physiology. Similarly, when CW and I debated the harm done by drug use, and whether or not banning drugs somehow protected society, I was allowing myself to miss the main point. Oh, I did mention a few times that the question of protecting society was an invalid one, but again and again, I allowed myself to argue that point, thus, despite my denials, making it seem that protecting society was a valid justification for such laws. And since I did create a great deal of confusion in so doing, I decided I should explain precisely why such a debate is both invalid and a distraction from the true argument that should have taken place. And fortunately, in so doing, I can speak in largely abstract terms, or at least using much less contentious examples, so the drug debate does not need to rear its ugly head once more. (Nor does the prostitution argument, which seems to assume quite similar form.)
In a way, I suppose this is simply a restatement of what I argued in "Hard Cases Make Bad Law", but I fear I did a poor job of making may argument clear in that essay -- sure proof that volume of writing does not necessarily improve clarity -- and so I will try again, taking a slightly different approach, and see if I can make myself as clear as possible. (And also remind myself not to debate points which I should know are not germane, regardless of my personal involvement.)
Actually, there are several principles involved here. First, what makes a valid law. Second, who is a valid individual as far as law is concerned. (The reason I describe it thus will be clear as we proceed through the first topic.) Third, what methods can be taken to resolve issues that fall outside the realm of proper laws. And finally, why we need to concern ourselves with these issues, what harm will come from adopting a pragmatic approach and ignoring these general principles of governance3. In some ways it is all ground I have covered before4, sometimes covering all of these topics in a single essay, other times covering one, or maybe two, of these matters in depth5. However, I will try in this argument to take a somewhat different approach, hopefully one which is a little less involved and needlessly complicated. But, I suppose it remains to be seen whether or not I succeed. And so let us skip over any additional introduction and dive right into our topic, beginning with the nature and form of valid laws.
In both "Symmetry and Asymmetry in Government" and "Negative and Positive Rights"6, I argued at some length for a very precise and limited definition of individual rights and argued that government should limits itself to defending those rights against violation by fellow citizens or external forces.In the essays cited I provided a detailed justification for so dividing the laws, but for the moment, let us forget about such arguments, and, instead look at the ways in which i have tried to divide valid and invalid laws, as that is, for our purposes, of much more immediate interest.
I have tried to define the two types of laws, the valid and the invalid, in any number of ways, and yet each effort has ended up producing attempted rebuttals based upon the descriptions chosen, sometimes using rather shoddy analogies or metaphors, but often based upon the weaknesses of the terms chosen. For example, we can describe laws as "protective" and "normative", that is, those laws which defend individual liberties, and those which prescribe certain types of actions. Or, as I did in the cited essays, as "positive" and "negative", that is those which require only abstaining from action versus those that require action. Or we can use the form proposed in another essay and describe them as "symmetrical" and "asymmetrical", that is those which apply in a uniform way, and those that do not. However, in each case, one can adopt a perspective which will make invalid laws fall into the valid category and vice versa.
For example, when I say that invalid laws often demand an individual refrain from acting on his own wishes, someone will argue that laws prohibiting murder or theft also require an individual to refrain from acting on his desires. Or, when I suggest that only negative laws are valid, someone will argue that requiring an individual abstain from drugs or prostitution is also negative. Similarly, they will also point out such laws are symmetrical, as they apply universally as well. And thus, no matter how I try to codify laws -- outside of an explicit enumeration of the valid rights law can protect -- the definition is subject to misunderstanding, depending upon how one chooses to see certain questions.
In the end, there really is no way in which to define valid and invalid laws without misunderstanding, though the method which seems to produce the least confusion seems to be to use the rather wordy definition: Laws are valid, if and only if, they serve to protect an individual against force, theft or fraud. Or, perhaps the alternate version: Laws are valid if and only if they protect an individual's rights to life, liberty and property. Both still leave considerable room for those who wish to do so to argue in favor of their favorite regulation, but, as such definitions go, these two seem the least prone to widespread confusion. Of course, justifying them is another matter, that takes quite a bit of discussion, but at least once they have been justified they are less prone to confusion than any other choices.
I mention all of this because, in most cases, the laws which inspired this essay, laws intended to protect individuals from their own bad choices, or in an alternate version to protect society from bad choices, do not rest upon an argument against my definition of the purpose of the law. Those supporting such laws often agree the law exists to protect us, rather than make us better7. The difference between us is not on that fundamental level, we both say we oppose social engineering by the state, as well as activist, intrusive government. In essence, we both claim to promote a government which is interested solely in protecting citizens. Thus, our disagreement rest not on the fundamental understanding of the role of government, instead it rests upon two other disagreements. Those are the question of what sort of protection the law can provide, and who the law is intended to protect. There are a few other arguments that arise form time to time, such as the argument from necessity - -that is, if the government does not do something that it won't be done -- or even the pragmatic position that, while they violate the basic principles of our state, they are sufficiently beneficial that it is worth the inconsistency8. But those latter arguments are much less common, and can be ignored for the moment. We shall come back to them later in this work. For now, let us look at the first two arguments, the two that effectively accept the same assumptions I do, but take a very different approach to applying them.
In effect, this boils down to two arguments, which strangely enough match the first two questions I listed above. First, there is the argument that such laws protect individual rights, just rights beyond the basic life, liberty and property, matching my question of what is a valid law. Second, there is the argument that the government must not just protect individuals and their rights, but must also protect society, which matches my question of who the government should protect. The remaining two questions above -- what to do about issues falling outside the scope of government, and why we should or should not be concerned about inconsistent applications of these principles -- relate mostly to the remaining two questions, the ones I have put off for now. We shall look at those near the end of the essay.
Let us look first at the argument for a more expansive view of rights, or perhaps a broader definition of harm. This argument is usually offered in a relatively vague form, such as arguing that individuals are harmed by being forced to watch prostitutes having sex in public places or that the use and sale of drugs cause harm which violates individual rights. And that is precisely the problem. Rights, in their traditional form, the rights to life, liberty and property, are essential to survival, and are easily defined. The laws which protect them are likewise easily defined. Once we begin to move beyond these basic and essential rights, problems arise, and we end up with government either exercising unlimited power, or enforcing vague notions with unpredictable and chaotic results.
The basic problem is that there is no such thing as "line drawing". Though everyone hates to hear "slippery slope" arguments, they come up so often because they are true.It may seem unobjectionable to prevent acts which offend almost everyone, such as prohibiting prostitution, or public nudity, but the principles established in so doing create dangerous precedents. If the law can ban acts because they offend the majority, or because the majority considers them harmful to participants, then there is no effective limit to what the government can do. And once a principle is established, it will eventually run its course and reach the logical conclusions. It may take time, but it will, eventually, lead to all those outcomes the proponents find unthinkable.
And the reason is simple. While many may claim such laws are just common sense and to not establish a precedent, every law does. For example, if we ban some public display because it is offensive, what is to stop someone else from using the same justification to stop another act, say public prayer? The argument is simple. "You banned X because it was offensive, so why can't we ban Y for the same reason?" And no counter argument will stand. "Because banning X is common sense, but Y is not" will meet with the argument that one is saying only his values matter, others do not. And the same with the argument that a majority supported one ban but not another. In that case, the argument will hinge on why minorities are not given a say. Regardless of claims about line drawing and common sense, the fact remains that every law establishes a precedent, and that in any argument the one who most consistently app;lies that principle will win. Thus, whatever laws are created, they will, eventually, be used to their fullest extent, reaching their logical conclusion9.
That argument alone should make unnecessary any rebuttal of the other arguments, but since many fail to see how this argument applies, I will address them as well, just to be certain that my point is made clear.
The other common argument, that society has rights and needs protection as well, can be seen several different ways. We can ask ourselves what justification there is for assigning rights to society, or who would decide how those rights are to be enforced, or even who would decide when society's rights have been violated. Or, to look at it from the opposite direction, we can adopt the approach taken in our first argument and ask quite simply, what the logical outcome would be of assigning rights to society. Regardless of the approach taken, it is clear that this position results in a number of undesirable outcomes.
Quite simply put, society is a fiction, or, to be more precise, society is meaningful if use din the sense of a group of individuals with individual goals and desires but sharing, to some degree, a common set of cultural beliefs. However, when we start speaking of society in terms of a corporate entity, when we assign it goals, values, or interests, then we have crossed the line and entered into fiction. Society, being nothing but a group of individuals, has no interests, no goals, and thus cannot be protected, except in the sense that the individuals comprising it are being protected. To create a pseudo-Hegelian spirit of society, which can be injured and which has desires independent of the individuals is nonsense.
Of course, some will say I am making a mistake and society's interests are those of the individuals, so it is simply a shorthand way of saying we are protecting the individuals making up society. But there is one problem. if society's interests are the interests of the individuals comprising society, then there would be no call to make laws restricting them from making the choices they wish. If their interest is society's interest, then how can stopping them from pursuing their desires be protecting society, if society is nothing but their desires? It is the same problem I have with those claiming to support individual freedoms yet promoting the war on drugs, if we support the right of individuals to pursue their wishes, how can we then punish them for pursuing their wishes, provided they violate no one else's rights?
And the response is, as always, the response which troubles me so10. It comes in many forms, and has many guises, but in the end it boils down to that same old arrogant claim, "they don't know what is good for them". The modern governmental version of the "white man's burden", call it the "wise bureaucrat's burden", or on the other end of the spectrum "the social conservative's burden". Reduced to its most basic form, the claim is always the same, that most people or some people simply don't know what is good for them, and must be told what to do -- no, let us not use euphemisms -- FORCED to do the right thing under threat of jailing or worse. At least the proponents of "rights of society" tend to answer a few of the questions better than most.
Often, when I ask those on the left (or the right) why the state must save people from making what some think are "bad decisions" the answer is vague. "For their own good." Think about it, you must be fined and jailed for your own good, lest you visit a prostitute or use drugs, take a job at a salary that is "too low" or fail to buy health insurance. The same people who mock the inquisition for killing to save souls are perfectly happy to make criminals of individuals, ruin their lives and permanently consign them to the underclass because they might make the wrong choice.
Those who espouse the rights of society are a bit better. They argue that we must stop people from making bad choices because it will harm society. It is still not clear precisely how private drug use or solicitation of prostitutes -- and notice it is not just streetwalkers, but all prostitutes they ban, so it is not just the public nuisance aspect -- will destroy society. Especially since both continue despite the laws and society continues to function. But at least it is better to claim we are somehow saving "society", that is protecting the majority from the bad choices of a minority, rather than claiming we are saving people from themselves.
But there is a problem there as well. What is "society"? How do we determine what is the interest of society? How does it differ from simple brute majority rule? And if it is not the will of the majority, then who gets to define what is society's interest? And that is where this whole thing breaks down, and brings about pretty undesirable implications, making it differ in practice very little from liberalism's desire to save us from ourselves. You see, either society is defined by simple majority vote, which means rights are meaningless, and nothing matters but the desire of the masses, or else the interest of society is defined, as are the "right choices" of liberalism, by the values of a select group, who appoint themselves to that role. In short, either we introduce mob rule, or force the values of an elite upon the bulk of society. In either case, we are not discussing a society compatible with individual rights, but another version of the modern omnipotent state.
I was going to discuss her the other alternatives, those who argue that we need not worry about principles, that we need only employ common sense, that we can create ad hoc rules as we wish, and so on, but I think I have addressed those arguments more than once in the course of this discussion, so it seems pointless to return to them again. Much as I have enjoyed pointing out the failings of pragmatism and the advocates of "common sense" in the past11, it would be overkill to visit that well once more. I have added copious footnotes to this essay, and anyone curious about my general arguments can find plenty of material there. And so, instead of dwelling on that topic, let us simply proceed tot he final question, how those who see something they think to be damaging can address it when it is of such a nature that it falls outside the proper role of government.
The answer, I am afraid, is not going to please many, especially in our age. It seems since at least the 1960's, if not before, we developed something of an immature fixation with dramatic gestures, with grand battles, with epic struggles, and have come to believe if we are not doing something which will immediately solve a problem completely, then we are doing nothing12. And, sadly, our politicians are worse about this than most. Responding to popular pressures to "do something"13, whenever a problem arises, politicians have come to abhor any solution which is slow, or partial, or leaves some of the problem untouched. And yet, if we look at most our lives, outside of the realm of politics, we will realize, that most of life is solved by solutions which are slow, piecemeal, and incomplete. Do you leave college and refuse any job that is not your "dream job"? No, you work your way up the ladder, even taking jobs far from ideal to get experience, or just pay the bills. Do you wait until you meet someone you are certain is perfect and immediately marry them? No, you date several people to find out more about them, and also to learn what you really want in a mate. Do you remain homeless until you can buy your perfect house? Without transport until you can get your perfect car? If your doctor cannot promise a cure with 100% success do you refuse treatment? And on and on. I could offer thousands of examples. Real life is all about slow, methodical solutions. And yet, when one proposes them in response to social or political problems, they are seen as something akin to defeat. It is madness, and yet it is everywhere in our modern society.
But despite that, I am going to offer just such a solution, the same one I offered before in a few essays14. The solution is quite simple, and obvious too, but it is so contrary to what we have come to accept as the norm for solving problems that it is ignored by not just liberals but most conservatives as well. Which only serves to show how successful the liberal takeover of our society has been.
The answer, quite simply, for eliminating behaviors one thinks are damaging, but which do not violate the rights of another individual, and thus are not the proper focus for government action, is to convince others to change their ways. I know, it is totally contrary to our beliefs, to say we should stop drugs not by jailing or government programs or any other state intervention, but simply by persuasion, and yet, it makes sense. If the state exists only to protect rights, then what other answer is there?
Allow me to offer an analogy. At one time, many states believed it was their role to either force individuals to practice the state religion, or at least to stop practicing certain banned faiths. Even today some states believe this. To them, it would seem madness to say religious matters should be resolved by persuasion. They would ask how we could let others persist in error, damaging society, harming the true faith. And yet, to us that sounds quite wrong. Who is not to say, one day, we will not find the idea of jailing drug users, prostitutes and others equally absurd? Simply because we find it "unthinkable" today is no measure of the validity of a position.
Having made my case against government involvement, I suppose there is little argument left to make in favor of my position, but I will, before I go, present two final arguments, or rather, I will debunk two arguments offered against such solutions.
First, we have the argument that such a solution will allow individuals to continue using drugs or seeking prostitutes or whatever, without anyone stopping them, or, even if some are persuaded, others will persist in error. The simple rebuttal to such a claim is to look around us. Even with rather draconian laws, even with decades of enforcement, people still persist in using drugs and seeking prostitutes. So, if persuasion means some will persist in what some believe to be error, how will it be any different from what we have now? The truth is, if you try to prevent people from doing what they want, some will continue to do it despite your most strenuous efforts. In some cases, such as protecting rights, it may be important enough that we must persevere, but in others, such as effort to "defend society" or protect people from themselves, perhaps the prize is not worth the cost.
The other argument is that foolish claim that stopping now will be "giving up" or will be seen as endorsing drug use. Neither claim is worth much. First, being a "quitter" when one is wrong is a virtue, not a fault. I had a girlfriend in high school whose father accidentally drank a glass of bleach, thinking it was water. If he had picked it up and noticed the odor, would he be a "quitter" for putting it down? Should he have chugged it anyway, so as not to "quit"? Of course not! And that is the absurdity of claims about being a quitter. Second, stopping the war on drugs is no more endorsing drugs than ending Prohibition endorsed alcohol. Instead, it is recognizing that the function of government does not extend to these matters. Rather than seeing it as endorsing drugs, why not see it as endorsing individual liberty? It could be just as easily seen either way. That those who put forth this argument choose their particular view says more about their desire to keep the war on drugs going than anything else.
Obviously, I have thought about this a lot, and I am afraid in places I let my rather strong feelings peek through more than I would like. So it should be obvious I could continue another few dozen paragraphs or more. But I will spare you that. I think I have made my case as well as I can right now, and have presented all my most significant arguments, and so, rather than wear out my welcome -- assuming I have not already -- I will simply say farewell, asking that you simply give some thought to what I have said and not just reject it out of hand as seems to happen far too often when these topics are mentioned.
1. See the notes following "The "Liberal Bubble" Becomes Universal" -- though the topic argued in the comments more closely relates to "Addicts?", "Guns and Drugs" and "Missionary Zeal and Human Discord" -- as well as a similar debate in "The Sexual Revolution and Prostitution", "Some Responses" and "Hard Cases Make Bad Law".
2. And to a lesser extent in "A Small Clarification" and "Some Responses".
3. To spare myself having to go through the many earlier arguments I have made against pragmatism and supposed "common sense" exceptions, I will tell any interested readers they can be found in my essays "The Lunacy of "Common Sense"", ""Seems About Right", Another Lesson in Common Sense and Its Futility", "A Look at Common Sense", "Res Ipsa Loquitur", "The Shortcomings of Pragmatism", "Pragmatism Revisited", "Pragmatism Revistied, Again", "The Plural of Anecdote is Not Data", "Rules of Grammar and Pragmatism", "The Problem of the Small Picture", "Keyhole Thinking", "Impractical Pragmatists", "In Defense of Zero Tolerance, or, An Examination of Law, Common Sense and Consistency", "No Dividing Line", "The Consequences of Bad Laws" and "Questions of Law and Questions of Fact" A few of the arguments from these prior essays will be necessary in examining this topic and so will be reproduced, the rest I leave for curious readers to find in these earlier works.
4. As I mentioned in several previous essays, I had planned to write about what is and is not a valid law, and so, in a way, this essay actually saves me work, as I need to cover that very topic in order to discuss this larger matter.
5. For example "The Case for Small Government", "The Consequences of Bad Laws", "In Defense of Zero Tolerance, or, An Examination of Law, Common Sense and Consistency", "A New Look At Intervention", "The Basics", "Who Does It Harm?", "It Doesn't Matter to ME...", "Kelo, Home Schooling and Drug Laws - Inconsistent Theories of "Social Costs"", "The Problem of Pornography", "Free Speech, Absolute Rights and the Absurdity of "Balancing Tests"", "The Danger Inherent in Banning "Bad Ideas"", "In Defense of Discrimination", "The Inherent Disappointment of Authoritarianism", "The Threat of Perfection", "Utopianism and Disaster", "The Right Way", "Doing Something", "Tyranny Without Tyrants", "Volunteer Fireman, Barn Raisings and Government", ""...Then Who Would Do it?" ", "Collective Action and Government" and "Why Must The Government Do It? Part I" and, most recently, "In Loco Parentis".
6. I made similar arguments in "Prelude", "Tools", "My Vision of Government", "My Vision of Government Part II", , "An Analogy For Government", "A Simple Proposal", "Man's Nature and Government", "Why Freedom Is Essential" and "A Right Is A Right", as well as "The Case for Small Government" and "Competition". I also discussed the topic to a lesser degree in "The State of Nature and Man's Rights", "The Benefit of Society", "In Praise of Contracts" and "A Beast's Life". In addition to that, I have a half-finished essay which walks through the basic reasons individuals would choose to live in a society and the reasons for the laws they would and would not allow, but I don't think it will be published for another week or more. Finally, there is this regularly quoted description of the basic self-interested motives that go into forming laws, drawn from my essay "A Rational Approach to Punishment" :
Obviously, like anyone else, I would find ideal a system which allowed me to do whatever I wanted without consequence, while providing enough punishment to everyone else that ti prevents them from harming me. Of course, no one would agree to allow me that freedom, and I would allow it to no one. So, the only choice which would be acceptable to all is a system where punishment is applied uniformly.which can be found quoted in "Hard Cases Make Bad Law", "The Case for Small Government", and several other essays.
The next question is whether the system will punish everyone or forgive everyone. The forgiving system will allow me any crime, but will allow the same to everyone else. As I expect to benefit less from my own freedom than I would suffer from the freedom allowed others, it makes sense to opt for the system that punishes everyone. The loss from giving up the freedom to commit crime is small, while the protection is great.
Finally, we need to ask how harshly crime should be punished. And again, the logic is the same. I can benefit from weak punishment, but the potential harm is much greater. As I am unlikely to commit a crime, but I will suffer if even a small percentage of others do, it makes sense to punish crimes harshly enough that almost everyone is deterred from committing them.
7. Of course, there are those who openly promote such measures as means to improve citizens, admitting they believe the purpose of government is to encourage people to do the right thing. I have rebutted those theories in a number of essays, such as "The Right Way" , "The Danger Inherent in Banning "Bad Ideas"", "In Defense of Discrimination", "The Single Greatest Weakness", "No Dividing Line", "The Consequences of Bad Laws", "Questions of Law and Questions of Fact", " In Loco Parentis" and others. I will not be addressing those arguments here. This essay is intended to address the others, those who claim they do not believe in using government to perform social engineering, but continue to support measures such as the war on drugs, bans on prostitution and pornography and the rest on the basis of protecting individuals, or perhaps society. It is this position which I hope to address in this essay.
8. These two arguments are often hard to distinguish, and many people make both, so it is frequently a moot point which argument is being made. As such, I will deal with both together when we finally address them.
9. This point will be made later in the essay itself, but for those who are already asking how we can then control these behaviors, I would recommend "Shame and Behavior", "Our Rude Behavior", "Social Controls", "Volunteer Fireman, Barn Raisings and Government" and "Government Versus Culture - A Forgotten Distinction". The argument itself will appear later in the essay.
10. See "Liberalism, Its Origins and Consequences", also my earlier essays "The Essence of Liberalism", "Arrogance and Gun Control", "Our View of Our Fellow Citizens", "Those Other People", "Seeing People As Stupid" and "Man's Nature and Government".
11. See the essays cited in footnote 3, above.
12. See "All Life in a Day, or, How Our Mistaken View of History Distorts Our Understanding of Events", "Catastrophic Thinking, The Political, Economic and Social Impact of Seeing History in the Superlative", "Utopianism and Disaster", "The Threat of Perfection", "Cranky Old Man?", "Faux "Maturity"", "Deadly Cynicism", "Juvenile Intellectuals", "Trophy Spouses", "O Tempora! O Mores!, or, The High Cost of Supposed Freedom" and "Self-Serving Cynicism and Our Cultural Immaturity".
13. See "Doing Something", ""Doing Something" Revisited", "Doing Something Revisited, Again", "Action and Inaction", "Don't Blame the Politicians", "In Loco Parentis", "Hard Cases Make Bad Law" and "The Single Greatest Weakness" .
14. Cf "In Defense of Discrimination", "A Statute of Limitations for Race", "How to Handle Idiots", "Back Again", "Best of the Web gets It Very, Very Wrong", "Private Versus Public Racism", "The Costs of Understanding", "Musings on Discrimination" , "The Danger Inherent in Banning "Bad Ideas"" , "The Inherent Disappointment of Authoritarianism", "Tyranny Without Tyrants", "Some Thoughts on "Summerhill"", "In Defense of Zero Tolerance, or, And Examination of Law, Common Sense and Consistency", "In Praise of Slow Changes", "Conservatism, Incremental Change and Federalism" and "Traffic Lights, Predictability and Conservatism" . See also -- citing many of them for the second or third time -- "Volunteer Fireman, Barn Raisings and Government", ""...Then Who Would Do it?" ", "Collective Action and Government", "Government Versus Culture - A Forgotten Distinction" and "Why Must The Government Do It? Part I".