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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 |
“The State is nothing more nor less than a bandit gang writ large.”
~ Murray Rothbard, The Ethics of Liberty. “The Nature of the State”.
Alexander and the Pirate
by St. Augustine
Remove justice, then, what are kingdoms but great robberies? For what are robberies themselves, but little kingdoms? The band itself is made up of men; it is ruled by the authority of a prince, it is knit together by the pact of the confederacy; the booty is divided by the law agreed on. If, by the admittance of abandoned men, this evil increases to such a degree that it holds places, fixes abodes, takes possession of cities, and subdues peoples, it assumes the more plainly the name of a kingdom, because the reality is now manifestly conferred on it, not by the removal of covetousness, but by the addition of im-punity. Indeed, that was an apt and true reply which was given to Alexander the Great by a pirate who had been seized. For when that king had asked the man what he meant by keeping hostile possession of the sea, he answered with bold pride, “What do you mean by seizing the whole earth; but because I do it with a petty ship, I am called a robber, while you who does it with a great fleet are styled emperor.”
~ St. Augustine, City of God, Book IV, Chapter 4.
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.
St. Augustine taught that mankind is divided into two groups or “cities,” the City of God and the City of Man. Inhabitants of the City of God have their will and reason turned toward communion with God. The City of Man looks to purely earthly ends, yet these groups are “commingled” in this life, just as the wheat and the chaff grow in the same field until the Judgment Day.
This creates a pluralism of moral and religious values that will persist until the end of the age. There can be no common agreement as to every right and wrong, except for a common desire for “the sweetness of peace which is dear to all,” and the “tranquility of order.” [City of God, XIX:11, 13]
Here again, one sees that same common ground inherent in the non-aggression principle. Augustine wrote that, “peace is a good so great, that even in this earthly and mortal life there is no word we hear with such pleasure, nothing we more strongly desire, or enjoy more thoroughly when it comes.” [City of God, XIX:11.] The citizens of both cities have a common interest in peace. They can agree, at a minimum, upon a secure and orderly society that lets them pursue their goals, be they spiritual or material.
When laws truly protect us from harming one another, we respect those laws so unanimously that even criminals will agree (at least as those protections apply to themselves). On the other hand, when we cannot agree on moral values that do not impinge directly on others, we lose respect for the law. It seems brutal, rather than just and leads to contempt for the law.
Libertarians, along with St. Augustine, see the wisdom in limiting government (of whatever sort) to a least common denominator between the City of God and the City of Man; i.e. the protection of life, liberty and property. St. Augustine—along with St. Thomas, as noted above—believed vices must be tolerated because governmental suppression would only result in more evils:
What can be mentioned more sordid, more bereft of decency, or more full of turpitude than prostitutes, procurers, and the other pests of that sort? Remove prostitutes from human affairs, and you will unsettle everything because of lusts; place them in the position of matrons, and you will dishonor these latter by disgrace and ignominy. This class of people is, therefore, by its own mode of life most unchaste in its morals; by the law of order, it is most vile in social condition. [De Ordine, 2.4]
In condemning prostitution, St. Augustine makes it clear that just because we do not punish these sins does not mean we approve of the conduct. In his letter to Macedonius (413-14 A.D.), he uses the example of Jesus and the woman taken in adultery (whom Jesus saved from stoning). Augustine recommends that believers of his own day adopt Jesus’ merciful example: “Impious Jews yielded to his pronouncement; may pious Christians do so too.” He also notes that “[God] punishes very few offenses in this life, in case no one believes in divine providence; and he keeps most of them back for the final assessment, in order to remind us of that future judgment.” [“Letter 153: to Macedonius,” ¶ 4, 11]