Saturday, September 29, 2012

A Few Latin Terms

No, I'm not channeling John Malkovich, I'm responding to an article in the Wall Street Journal attempting to get inside the Libertarian mind.  Now, I personally believe that the concept of a Libertarian Party is nearly as ungovernable as a herd of cats.  One blogger I follow has humorously compared a roomful of Capital L Libertarians as similar to an Asperger's Syndrome convention, not without some merit.  I've read Ayn Rand and Freidrich Hayek and of the two, I'd much rather hang out with Freidrich.  But it would be hard to imagine a more fractious and hard to manage group, except perhaps for an anarchists' convention, which is another oxymoron on its face.  I see libertarianism as more of a personal philosophy than a political platform.

The aforementioned WSJ article describes the results of a self-selected group of self-identified libertarians given an online quiz on ethical problem solving.  Compared to self-identified liberals and conservatives, libertarians are more detached in the decision-making process, less likely to use purely emotional responses to arrive at an answer.  Great, so I'm a Vulcan.  Well, yeah, pretty much.

I won't attempt to speak for other libertarians, which in many ways is the essence of libertarianism.  But I will discuss my own ethical and moral compass and how I view laws and society.

I view society as a group of individuals, so any law that unduly restricts individual liberty in the name of society automatically fails as a logical proposition.  I am a classical liberal, which bears no resemblance to the modern definition which is inherently statist.  To be fair, modern conservatism also has some ugly statist features, although I think the modern liberal statist wins the competition based upon the sheer scope of their goals.

A classical liberal views society as a group of individuals that agree upon a set of laws that provides for a common defense against unjustified attacks both upon the societal and individual levels, provides a means for the enforcement of contracts (civil courts), and maximizes economic freedom within the previous constraints. 

The last several centuries of human history demonstrates to me that societies work best when people are working for individual goals and rewards.  Collectivism fails every time it is forced upon people who don't want to live in a collectivist society.  Freidrich Hayek equated modern statism with serfdom, and with good reason.  The lives of a medieval serf and a twentieth-century Soviet peasant had a great many similarities.

So, I recognize that any society needs laws.  The devil is in the details.  Here come the Latin terms!  A law can regulate behavior that is either malum in se or malum prohibitum. A law that regulates malum in se  behavior is restricting activity that is immoral in and of itself, such as murder, rape or theft.  Sure we can find examples of individuals that do not regard those behaviors as perfectly acceptable but you will be hard pressed to find a society that did not regulate those behaviors and existed for more than a few years.

Behavior that is malum prohibitum is illegal because a statute says it is.  Not stopping at a four-way stop sign when you are the only driver there is an example of something that is illegal only because our legal system says it is.  Illegal narcotics are another modern example.  I will scrutinize malum prohibitum laws much more closely than I will malum in se laws.  Why?

Because malum prohibitum laws usually involve one person deciding that the conduct of another person is unacceptable, even when that conduct causes no tangible negative effects on the person deciding.  I don't care if it is a campus speech code or a crying Baby Jesus, neither is acceptable to a classical liberal.

Unless a person's actions cause unjustifiable direct harm to others, their conduct should not be criminally sanctioned.  Period.  Dot.  Any law restricting behavior must demonstrate why that behavior meets this test.  Mental discomfort is not sufficient grounds.  My rights cannot be limited because somebody else doesn't like how I exercise them.  Laws are permission for the state to use force against individual members of that society.  Once we start legislating based upon personal opinions and biases we end up with the ugly mess we have now.  It's time as society for all of us to put our adult pants on and let others live their lives as they see fit, while they reciprocate the same courtesy to us.

1 comment:

  1. "Unless a person's actions cause unjustifiable direct harm to others, their conduct should not be criminally sanctioned. "

    Who gets to decide what is considered harm?