Criminal law in a libertarian society

BarsCriminal laws prohibit (or require) an assortment of activities. If caught disobeying the criminal law, the lawbreaker is punished by the government. Criminal laws are usually written by legislatures and contain two types of crimes: 1) crimes that harm victims (such as murder, assault and theft); and 2) crimes that harm the person or property of no one, except perhaps the criminals themselves.

The latter type outlaws conduct such as drunkenness, gambling, prostitution, drug use, or anything that requires a license when such license has not been granted. Ultimately, a crime is whatever the government says it is.

See somethingA recent and popular trend is to make it a crime for anyone to fail to inform the government if they believe someone else is breaking the law. This trend, now firmly established regarding a few especially despicable crimes such as child sexual abuse, may spread to cover other crimes—and eventually all crimes.

In a nation where informing for the government is mandatory, when you “see something,” you “say something” . . . or else. Such a society would see the full blossoming of the police state and, like the 20th-century residents of fascist and communist states, a healthy fear of one’s neighbors, friends and even family could become a valuable survival skill.

In a libertarian society, the maximum role of the state would be to protect life, liberty and property. The use of defensive force is always legitimate, but the non-aggression principle limits the criminal law to things like assault, murder, theft, fraud, trespass and the like; that is, crimes against persons or their property. As Saints Thomas and Augustine taught, [here, here, and here] the law should not criminalize moral vices or other disapproved conduct, where such conduct does not directly harm others.

Stop fightingA libertarian criminal code would be compact and intuitive. Its function is to ensure peace and tranquility, not to make virtuous people. Instead of needing a lawyer to explain it, children would understand it by the time they were two years old.

[excerpted from Chapter 8 of Free is Beautiful: Why Catholics should be libertarian]

Free is Beautiful AudioBook – Chapter Five: Liberty and the Criminal Law

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Chapter Five: Liberty and
the Criminal Law

Ignorance of the law is no excuse | Thomas Aquinas: Should all vices be crimes? |

What  should be criminal? | St. Augustine: Divine Providence and the problem of evil |

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Libertarian does not mean libertine

Why do so many think that libertarians are “anything goes” libertines? Many conservatives believe that libertarians are really just liberals. Many liberals insist that libertarians are really just conservatives. How can it be both? It is wrong to say–as some do–that libertarians are “socially liberal and fiscally conservative.” These views stem from confusion about morality and criminality, such that our modern society has lost the ability to distinguish between vice and crime. Even worse, many so-called crimes are not vices at all.

Conservatives and liberals alike want to use government to force everyone to conform to their view of morality. And each would like to hold the whip against the other, and nobody is happy with the way things are.

This is because we have ignored what St. Augustine and St. Thomas Aquinas wisely taught: that punishment for crime should be limited to conduct that harms others (i.e., “theft, murder and the like”). Beyond that, neither individuals, nor the government have the right to punish or force people to do whatever the state tells them.

As to what is moral conduct, libertarians are just as variable as the population as a whole. Libertarian Catholics do not dissent from Church teachings. They embrace them. They hope and pray that others do likewise, but they refuse to use force (whether individual or collective) to make others conform to Christian morals. Only defensive force is legitimate.

That does not mean, however, that a free society would be an “anything goes” society. If drug addiction or prostitution were treated as health and moral issues—rather than as criminal issues—most families would still not want to see them on their streets. People will rightly have their preferences as to church, society, friends and the neighborhoods they live and work in. In later posts, we will see that a libertarian society would be more conducive to a moral lifestyle, not less; more supportive in the raising of families according to our beliefs and our purpose in life.

Thomas Aquinas: Should all vices be crimes?

Should all vices be crimes? This a question St. Thomas addresses explicitly in his Summa, wherein he objects to the criminalization of most vices on the ground that it would make criminals of most people. St. Thomas argues that “human law rightly allows some vices, by not repressing them” and with good reason:

[Virtuous conduct] is not possible to one who has not a virtuous habit, as is possible to one who has. Thus the same is not possible to a child as to a full-grown man: for which reason the law for children is not the same as for adults, since many things are permitted to children, which in an adult are punished by law or at any rate are open to blame. In like manner many things are permissible to men not perfect in virtue, which would be intolerable in a virtuous man.

Now human law is framed for a number of human beings, the majority of whom are not perfect in virtue. Wherefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of oth-ers, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft and such like.

What St. Thomas is teaching is nothing less than the non-aggression principle: that human law should limit its punishments to acts that hurt other people or their prop-erty. He goes on to assert that criminal punishment “belongs to those sins chiefly whereby one’s neighbor is injured.”

St. Thomas also cites God’s own unwillingness to prevent earthly evils, often times because the cure would be worse than the disease:

Human government is derived from the Divine gov-ernment, and should imitate it. Now although God is all-powerful and supremely good, nevertheless He al-lows certain evils to take place in the universe, which He might prevent, lest, without them, greater goods might be forfeited, or greater evils ensue. Accordingly in human government also, those who are in authority, rightly tolerate certain evils, lest certain goods be lost, or certain greater evils be incurred: thus Augustine says (De Ordine ii, 4): “If you do away with harlots, the world will be convulsed with lust.”

Elsewhere, St. Thomas repeats this truth that suppressing vices can lead to greater evils: “[Human law] does not lay upon the multitude of imperfect men the burdens of those who are already virtuous . . . Otherwise these imperfect ones, being unable to bear such precepts, would break out into yet greater evils.

As St. Thomas foresaw (along with St. Augustine), the criminalization of other moral evils–drunkenness, drug abuse, sexual immorality and other vices which are not directly harmful to others or their propertyis unjust and results in greater sins.