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]

Venerable Fulton Sheen: No freedom, No virtue

Catholic libertarianSome earlier posts explore the importance of liberty and free will in turning human beings into saints. In “God gives free will to make virtuous people,” there is the inevitability of evil in a universe where God wanted good men rather than robots.

In “Mind Your Own Business,” God’s oddly libertarian permissiveness regarding the evil in this world is not an invitation for men to fill the gap and to rule others lives in God’s place. Nobody likes a “busybody. “ The scriptures make it clear that the meddling of these bottom-feeders is not listed among the virtues.

fulton_sheenThe Venerable Fulton J. Sheen (died 1979) was an American Catholic archbishop, best known for his television preaching in the 1950’s (Life Is Worth Living). In 2012, he was officially recognized by the Vatican as having lived a life of “heroic virtue,” a major step towards being declared a saint.

He taught that human freedom is essential to the Divine purpose as is the possibility of evil. Men must have the freedom to do good or evil, otherwise true virtue not possible. As Archbishop Sheen wrote:

“Take the quality of freedom away from anyone, and it is no more possible for him to be virtuous than it is for the blade of grass which he treads beneath his feet to be virtuous. Take freedom away from life, and there would be no more reason to honor the fortitude of martyrs than there would be to honor the flames which kindle their faggots. Is it therefore any impeachment of God that he chose not to reign over an empire of chemicals?

Virtue in its concrete order is possible only in those spheres in which it is possible to be vicious. Man can be a saint only in a world in which it is possible to be a devil.

~Through the Year with Fulton Sheen, Servant Books, 1985 pp 110-111.

Not every vice is a crime

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.

St. Augustine, vices and the criminal law – Part 2

[Part I here]

In the last post, we saw that St. Augustine taught against the criminalization of all but the most egregious human conduct. Beyond keeping the peace, he wrote, government does more harm than good when it uses force to make men behave rightly. Like St. Thomas Aquinas, he essentially adopts the libertarian non-aggression principle as a limit on the use of force by government.

In his “Letter to Macedonius,” St. Augustine goes further, challenging the idea that government can make bad men good by force of law:

[The bad] are not to be described as good just because they do not sin, out of fear of such penalties. One is good not through fear of punishment, but through the love of justice. Punishment by the government is useful so that “the innocent can live in security among the unscrupulous.” 

Not only does he reject the notion that criminal punishment removes an interior disposition to evil, he goes on to assert the opposite. He writes that, “prohibition increases the desire of illicit action.” [City of God, XIII:5.] This cannot be denied, for the attractiveness of “forbidden fruit” goes back all the way to the garden of Eden and is especially enticing to less mature individuals. Teenage rebellion is a testament to this proposition.