THE LIBERTARIAN ENTERPRISE
Number 543, November 1, 2009
"Each advocate [of socialism] secretly imagines
himself at the top of the hierarchy-to-come"
Non-Aggression Principle and Vice: Where's The Crime?
Attribute to The Libertarian Enterprise
One of the tenets of individual liberty is the Non-Aggression Principle (NAP), which states that no person has the right to initiate force or fraud against any other person for any reason. When the NAP comes up against criminal law as it relates to vices, both should be tested honestly.
Societies have had an ongoing debate about Crime and Vice over centuries. Much of this perpetual conflict comes from the organized Church, which has formulated moral positions on various human behaviors. If you read Old Testament law, you'll find a lot of human acts listed with penalties for committing those acts. But you'll also find that Scriptural penalties are restorative, meaning that they require the perpetrator to make restitution, not incarceration for punishment.
So, in the times in which we live, how does this affect us? Should vices be crimes?
The dictionary defines "vice" as "an immoral or evil habit or practice." It defines "crime" as "an action or an instance of negligence that is deemed injurious to the public welfare or to the interests of the state and that is legally prohibited."
The first challenge is in the definition of "vice." Who makes the determination that any human action is immoral or evil? One man's vice could be another man's living. Each person must have the liberty to test every alleged vice to determine of his own judgment and conscience what may be good and what may be evil.
Some folks have a knee-jerk reaction to vices, and believe that they should be prosecuted by law enforcement and the courts. But is this belief founded in law, old traditions, habits or any desire for liberty?
Punishing crime is meant to guarantee to every person the fullest liberty he can realize that is also consistent with the full liberty of others. Government should exist only to protect the liberty of the individual, and protect his life and property from force and fraud. An individual must be free in the "pursuit of happiness," even to practice vices that others detest. An individual must be free to use his own judgment, his own body and his own property without restriction so far as the use does not interfere with another individual's quiet enjoyment of his own person and property.
Everyone wants to be protected against violations from other men. But no one wants to be "protected" from himself, since someone else is determining what "protection" is.
So the punishment of crimes can be justified, but the punishment of vices deprives every individual of his natural right to pursue his own happiness, the full use of his body and his own property. These two actions are polar opposites, directly opposed to one another. Criminalizing vice is absurd and a crime of itself. Governments should not be instituted and maintained that commit crimes and prosecute crimes simultaneously.
As the philosopher Sallust said in ancient Rome, "Most men do not desire liberty. Most only wish for a just master." But masters make the rules that their property live by. Living under such rules and regulations does not cause people to be more virtuous or more free. It makes them small-minded and vicious and eager to make their fellow man suffer. The minds of men are not elevated by such stupidity, but whipped into shape by superstition and the exercise of raw power.
Here is a list of various vices. You may argue that each is a sin, but you cannot argue successfully that any one of these vices should be a crime. That is, unless you are capable of Cognitive Dissonance, which is holding two opposing viewpoints in your mind at once.
Gambling: This is to risk money, or anything of value, on the outcome of something involving chance. There is no force in a wager. If fraud is determined, then prosecution for that fraud is indicated. But gambling has no victim, and therefore should not be criminal acts. Do not be misled into thinking that those who gamble excessively are victims. They should have the liberty to use their resources in any manner they choose, including wasting the resources. Anything less that this level of individual liberty is tyranny. It is the State attempting to protect individuals from themselves. It is massively hypocritical that many States run gambling operations, but criminalize individuals who do the same.
Prostitution: a voluntary exchange of sexual activity for valuable consideration between two or more individuals. There is no force. If the parties begin their exchange, and either one says "No," further sex would be considered force. If one party infected any other party with a disease, that would be a tortious injury. If one party accepted valuable consideration and did not perform the desired sex act, it would be fraud. So absent intent, force or fraud, prostitution should be entirely legal.
Sex acts in general: Sex acts between two or more consenting adults have no victims. There is no intent to harm, commit force or fraud. If some physical harm were to befall any party, they could seek damages in the courts. So, there is no crime in consentual sex acts.
Marriage: The Bible is full of men with multiple wives, and most are the pillars of the Christian and Jewish faiths. There should exist no law that prohibits polygamy. The laws against assault, battery, force or fraud are in existence to deal with any criminal issues. The civil courts are available to deal with divorce, child custody and support, and the division of assets. Marriage is basically an issue of contract law. But the State has no standing or vested interest in any marriage other than to tax and license it.
Homosexual individuals are free under law to enter into contracts regarding cohabitation and all it entails. If a homosexual can locate a religious leader that will perform a "marriage" ceremony, nothing should prevent that. But the "marriage" should not gain a special legal status, since the State has no standing or vested interest in any marriage other than to tax and license it.
Pornography is sexually explicit pictures, writing, or other material whose primary purpose is to cause sexual arousal. If there is a free exchange of valuable consideration for the pornographic material, then no force or fraud has been committed. If the pornographer uses children, defined as individuals below the age of legal adulthood, who cannot contract for themselves, then there are victims of injury, force or fraud. Those torts should be prosecuted and restoration should be required.
Recreational drug and alcohol use: The use of any substance by a human being to alter his own consciousness is an act without a victim. The user is entirely within his individual liberty to use as little or as much of the substance as he chooses, even to the point of his own death. Mere possession of a substance shows no intent. Private use shows no fraud or force. Recreational drug use should be legal.
Recreational drug/alcohol manufacture and sales: If a manufacturer or grower of any product should manufacture a defective product, there would be fraud and product liability torts could be subject to legal remedy. There is no force in a free exchange of valuable consideration for the manufactured product. So the manufacture and sale by any individual or company of recreational drugs and alcohol should be legal.
Drunk Driving: The mere ingestion of alcoholic beverages should not ever constitute a crime. A person driving a vehicle under the influence of alcohol who causes no harm or damage to another individual or his property commits no crime. There must be a victim for there to be a crime. This person under the influence has not committed force or fraud either. So drunk driving laws are not compatible with personal liberty and should be rescinded.
Counterfeiting is creation of an imitation intended to be passed off fraudulently or deceptively as genuine. The US Federal Government, through the Federal Reserve, prints paper currency that has no redemption value. Genuine currency issued by a 100% gold/silver reserve bank would have 100% redeemability. Fractional reserve banking is also counterfeiting since it creates credit with no underlying value. So counterfeiting is fraud, and should be illegal...even when a nation does it.
Cheating in any form is fraud, which has penalties under criminal law.
Lying in any form is fraud. Perjury is lying under oath in a legal proceeding. So, lying may be subject to criminal penalties and restitution of some form. The trick is how to determine how much lying is criminal and how little is legal.
Stealing is depriving another individual of his property...or even his life... by force or fraud. Restitution should be made, but should incarceration be part of the penalty? What purpose does incarceration serve other than punishment? The prisons are full of prisoners who stole things. Were the victims made whole again?
Gun laws: Many gun laws across America make the very possession of a firearm a criminal act. Some outlaw possession in certain locations, Some outlaw concealed carry of a firearm. But the only determinants of criminality should be intent, force or fraud against another individual. Therefore, the criminality of gun possession is itself criminal.
This author holds the hope that the Framers of a new nation, born of a secession by a sovereign US State, will throw off the shackles of old superstitions and traditions and embrace individual liberty once again.