Mark Olson has responded to my reply to his post juxtaposing a "rights" position with an "ethics" position. Unfortunately, he still misunderstands the reason why I say his dichotomy is false. He concludes:
Have I answered the claim of "false dichotomy"? Clearly Rights based legal thinking exists. Clearly Ethics based legal thinking exists. Mr Brayton clearly opposes many Ethics based laws. Others, at the very least those who penned those laws, disagree. Thus dichotomy must exist, for we have two disagreeing viewpoints.
But he's missing the point of my argument. I'm not arguing that the two positions are compatible. I'm arguing only that it is false to claim that one is based on ethics and the other is not. The "rights position" is based upon an objective and universal moral claim just as much - more so, in fact, because it draws the line much more consistently - as what he calls the "ethics position". The "rights position" - the idea that each person should be free to do as they desire so long as their actions do not deprive another person of their equal right to self-determination or harm them against their will - absolutely is an objective moral declaration. It is based upon the idea that each person owns themselves and therefore it is immoral for other people, with or without the government, to exert ownership over him and deprive him of his self-determination (I am here referring only to consenting adults, of course).
As a staunch libertarian, Mr Brayton feels that only the Rights based one is correct. And at that I may be even misstating his stand, his comments might be read to imply that the Ethics based method as I've stated it doesn't even exist. Clearly this last statement is false. For lawmakers explicitly often discuss laws explicitly in the context of trying to alter the behavior of their constituents, which if that is explicitly the reason behind such laws then they are explicitly penning laws hoping to mold the behavior of the people. Since this is not just to protect or delineate their rights then the existence of such an Ethics based philosophy is clear.
I have no idea where he gets the idea that I have implied that there is no other side to this dispute. Of course there is, and of course our political leaders spend a good deal of their time passing laws that violate our rights in order to coerce us into behaving in what they perceive to be a moral fashion. The relevant question, of course, is whether they should pass such laws, whether such laws are legitimate use of government or not. I contend they are not, and I cite Jefferson, Madison, John Locke and numerous others who take the same position. Olson's answer is that this is not practical:
That we have laws which are not based on Rights, but on Ethics is clear. Laws of governing behavior, such as those regulating prostitution, sodomy, drugs (entertainment and prescription) are obviously laws based on Ethics not Rights. Laws regulating marriage and divorce, highway laws, speed limits, and our laws finely adjusting our tax code (tuned to provide not-so-subtle motivations toward "righteous" action) abound and are based on Ethics.
Again, Olson seems to insist that only one side has a moral or ethical claim and that is patently false. I would argue that laws against prostitution, sodomy, drug use and the like are themselves unethical. They are using the coercive power of government to punish people whose actions harm themselves, not others. If we begin with the premise of self-ownership - the very basis of our constitutional system, the core idea of Locke's thesis upon which our entire system was based - then it can only be immoral to violate another's right to self-determination (just as it is equally immoral for an individual to deprive another of the same, which is the point at which the law may justly step in to protect the rights of one against the intrusions of another).
It is the legitimate (i.e. moral) uses of power that the "rights" position concerns itself with. Olson's argument, on the other hand, is based not on an objective moral claim but only on a vague "practicality". He asserts again and again that a purely rights based system - i.e. a system in which the government only intervenes to protect one from another and not from their own poor decisions - is "impractical" and a "dream of men living in ivory towers". He doesn't really explain why, other than to assert, again without any explanation, that "a country based on such will not stand but perish quickly from this good green Earth." But he seems merely to assume this, as though it was self-evident. It certainly isn't evident to me.
Let's pretend that we were to do away with all the laws against consensual crimes, laws against prostitution, gambling, drug use, driving without one's seat belt, and so forth (for adults only, of course; self-determination is not limitless, it is premised upon maturity and the ability to give informed consent, which is not the same thing as the ability to make good decisions). I would argue that not only would this nation not "perish quickly" from the Earth, it would thrive in multiple ways.
It wouldn't stop people from gambling or using drugs or frequenting prostitutes, of course; those things have been universally a part of human societies from the very start and no number of harsh and coercive laws has ever changed that, nor will it ever. But it will get rid of the violent black market in drugs, thus ending a good deal of drug-related real crime. You don't see gangs having turf wars over cigarettes or alcohol, do you? That's because there is a legitimate market that controls the distribution of those items, unlike illicit drugs. It would also eliminate what is easily the most prominent source of corruption in law enforcement and save tens of billions of dollars every year, money that we spend to lock up the hundreds of thousands of people we have in prison solely on charges of possession or distribution of drugs. It would give the opportunity to regulate prostitution, which would certainly help reduce the risk of transmitting AIDS and other diseases, and put an end to to the violent control of prostitution on the streets. I'm at a loss to understand why Olson thinks that we would "perish quickly" from the face of the Earth.
I now want to flip the burden on to Mr. Olson, and other advocates of such laws. I have given what I argue is the only objective and consistent place to draw the line between legitimate and illegitimate laws, again the same place where Locke, Jefferson, Madison and many others draw that line. But where does Mr. Olson draw that line? He admits that a society that cares only about enforcing moral purity would "suck eggs". But it appears that he trusts the politicians to decide for us because they are better than us:
It takes less talent to recognize a Mozart than to be a Mozart. All men do not write laws, only a few. It is easier for fallible men, who though cognizant of their failings, can still recognize that a Lycurgus, a Cicero, a Jefferson, or a Lincoln might be better fit to set down a code by which they can live. In fact, that is just what we have done. That those names are recognized is precisely indicative of the method we use to try to run our imperfect governments run by fallible men. We try to find those who can describe the vision of a less imperfect world for which we should be striving, and who can teach us how to get there. Then we follow where they lead, though knowing that they like us are fallible.
This, I would argue, is rather stunningly naive and is disproven by even a cursory glimpse at our own history. It was within my lifetime that our political leaders - those he says we rightfully entrust to make rational laws to protect society's moral standing - were adamantly defending laws banning the marriage of people of different races because, they argued, it was necessary "to preserve the racial integrity of its citizens," and to prevent "the corruption of blood," "a mongrel breed of citizens," and "the obliteration of racial pride," obviously an endorsement of the doctrine of White Supremacy. (those last words were taken directly from the Loving decision, which struck down such laws).
It was only one generation ago that, in the name of maintaining an ethical society, the government forced school children, regardless of their religious beliefs, to say Christian prayers every morning (again, I would argue that this was highly immoral, using the coercive power of government to force people to engage in a religious exercise that they do not believe in). Indeed, the concept of limited government that our founders left us with was largely a reaction to governments within their own view that, in the name of forced moral uniformity, threw people in prison and even executed them for such "crimes" as blasphemy and witchcraft.
The only reaction to this must be the principled stand that laws which destroy our unalienable rights to liberty, freedom of conscience and self-determination are oppressive and wrong in all circumstances and at all times. It cannot be a half-hearted, "Okay, maybe they shouldn't have gone that far, but when they use the same arguments to justify laws that violate the rights of others in ways that I approve of, I'm okay with it." It cannot be so because once we cede to government the authority to enforce moral uniformity beyond the bounds of protecting one from another, there is no principled way to prevent the further intrusion of government.
It is the nature of government - all governments, regardless of their basis - to perpetually increase their power and authority over their subjects. Once we accept the notion that government has the power to prohibit people from reading or viewing material that they deem to be dangerous, how can we take a principled stand if the government decided, for example, that the Bible is dangerous and needs to be done away with? And if not the Bible, how about the Quran? I dare say we could find a lot of folks in this country who would vote to ban the Quran from the country because it contains dangerous ideas.
And remember that there is a long history in this country of those leaders that Olson has so much faith in violating the rights of dissidents in the most appalling ways, from throwing Ben Franklin's grandson in jail for printing anti-Federalist articles in the late 1700s to the jailing of Eugene Debs and Roger Baldwin for speaking out against World War I to the FBI's subversion of legitimate civil rights organizations in the 60s.
The government simply has no legitimate authority to punish an adult for smoking a joint, anymore than they can punish someone for taking a drink, and the fact that we continue to allow them to despite the clear evidence of history that such attempts not only fail but corrupt our government is powerful evidence that the zeal to control is always acceptable to most people as long as it's not their choices being controlled. The government has no legitimate authority to tell me that I cannot play poker with my hard earned money (as I am going to do in about an hour because I reject their authority to tell me otherwise).
And yet again, I return to the words of Thomas Jefferson:
Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law,' because law is often but the tyrant's will, and always so when it violates the right of an individual.
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Ed... although I'm sure Arianna Huffington annoys you at times (she certainly does me), you may be interested in this post: http://www.huffingtonpost.com/arianna-huffington/bushs-war-on-porn-perve_b_7704.html
I suppose it depends on what motivates the libertarian. A libertarian could be an ethical egoist, suggesting (in classic Rand formulation) that the invididual is unique and sovereign, you have one life to live, etc., thus altruism is a violation of the integrity of the individual. Or I suppose you could be a utilitarian, thinking that libertarianism best serves the utility of all. I suppose there are other ways to do it. In any case, libertarianism can clearly be grounded in ethics. This guy is confused.
I liked both your essays on this subject very much, and tend to agree, but I have a question: Where do you think consumer protection laws would fall on the Rights-Ethics vs. Morals-Ethics spectrum? I'm thinking of such things as government requirements that autos, medicine, or factories meet safety / efficiency standards. You wrote that legalizing prostitution would "give the opportunity to regulate" it, thereby reducing Aids and other diseases. But where would the right to "regulate" come in? Regulation by whom?
Couldn't someone use a rights-ethics position to support a "buyer beware" philosophy - let the people choose whatever they want, and failure to investigate, care, or pick wisely leads to their own harm. Or would this be a case where "harm to others" comes in with regard to manufacturers, even if the consumers themselves seem to think they are willing to take the risk? I'm not really sure what the libertarian stance is here.
Olson's notion of the imperfection of man, something addressed as far back as Hobbs et al during the Enlightenment, reminds me of the changes in traffic laws in Toronto and Montreal recently. The government decided to remove the traffic signals and other intersection controls, and speed limits, in certain downtown areas. They did so over much outcry by folks advocating Olson's sort of rhetoric. The results were classic. Traffic moved smoother, will less "road rage" incidents and vehicular and pedestrian accidents. The induced "anarchy" reframed the social responsibilities of the citizenry to actively engage one another to acknowledge actions, and, in many ways, to request permission to proceed. Use of appropriate signals and signs of recognition and awareness were observed, and because of the need to "pay attention" the overall speed of vehicles slowed. They have found this same pattern in Portland, OR and here in Spokane, WA. The de-regulation of traffic, the removal of the command and control structures, the lessening of enforceable laws and codes---these had beneficial consequences for the citizens. Moral and ethical constructs are not developed by top down ordered directions; they are part and parcel of the interrelations of humans with the world. Olson's argument is semantically ludicrous as Ed points out. The examples i mentioned above argue against his premises as well.
To follow Sastra's thread, what about the regulation of drugs? I can certainly see some of the benefits of legalization from the law enforcement aspect but a couple of statistics from the DEA website need some consideration. To paraphrase the first, since marijuana has become legal in Holland heroin addiction has at least tripled. The other is that (at least in this country) "six times as many homicides are committed by people under the influence of drugs as by those who are looking for money to buy drugs." Putting these two statistics together one could suggest that there may be an increased potential for homicides with the legalization of drugs. The highly addictive nature of drugs and their impact on the human mind are worrisome in any discussion of their legalization. The site I visited for information was:
http://www.usdoj.gov/dea/demand/speakout/07so.htm
jcw:
since marijuana has become legal in Holland heroin addiction has at least tripled
If this factoid is indeed true, then it raises other question in my mind. What was the heroin additction rate in the Netherlands before marijuana legalization? If the rate tripled from 0.00001 to 0.00003, is it really a crippling societal problem?
Even if the rising rates of heroin addiction are worrisome to some people, the mere fact of this trend does not suddenly create a legitimate government power where none existed before. Lots of things are crippling societal problems. One could argue that racial bigotry is far more devastating to society than heroin addiction. Is the government suddenly empowered to mandate sensitivtiy programming for every citizen, simply because a lot of people agree that a racial bigotry problem exists?
Do you see where the problem lies here? What is the threshold where private behavior suddenly becomes a public problem requiring government intervention? How many people have to be affected? How widespread do the effects have to be? When the line is fuzzy, it is subject to political exploitation and, yes, tyranny. A better, brighter, cleaner line is to prohibit government intervention in private behavior entirely.
The other is that (at least in this country) "six times as many homicides are committed by people under the influence of drugs as by those who are looking for money to buy drugs."
Again, if true, it raises further questions. Is vehicluar manslaughter included in the former statistic? If so, is alcohol counted? How was the latter statistic determined? How many robberies and thefts that did not result in a homicide were motivated by a desire for drug money?
Of course, one of the reasons that the poor in particular must steal to feed their addictions is because designating a product illegal artificially raises its price. Convenient, no, that the elite make and enfore law that criminalizes a good such that it does not substantively affect their own ability to purchase said good, but creates conflict in the lower classes over the good's availability?
Sastra wrote:
I don't think public health and safety laws necessarily violate the premise of my argument, as they are an instance of government protecting one person from being harmed by another against their will. Many libertarians would disagree with me on that and argue that the market would control such things without regulation, but I frankly find that unlikely. There are some externalities that markets don't protect well against, though I think there are often market-based policies that could help with the problems (effluent fees, for example).
I think there are multiple libertarian stances. Being a moderate libertarian myself rather than a full blown "the market solves every possible problem on earth" libertarian, I have no doubt that my position is probably anathema to many other libertarians. I expect this comment may well bring "well you're not a real libertarian" comments; I can live with that.
jcw wrote:
Even if true, this doesn't exactly tell the whole story. Sociologist Mike Males writes:
Great Britain has had similar experience with the use of methadone to treat heroin addiction. It isn't a panacea, and some have just become addicted to the methadone. But overall, the damage done by heroin has been reduced enormously. Drug abuse - as opposed to use - should be treated as a medical problem, not a criminal one. The US already locks up 4 times as many of its citizens per capita than any other western country, with half of those locked up being there on drug charges. It certainly hasn't reduced our drug problem a bit.
Leave it to the government to ignore the most crucial aspect of the issue to score political points. They're leaving out the number of people who commit homicides in order to protect their turf or their stock from other drug dealers. This is the nature of a black market as opposed to a legitimate one. You don't see roving gangs of Jack Daniels salesmen shooting each other up in a war over territory, killing innocent people in the crossfire.
Andrew:
"A better, brighter, cleaner line is to prohibit government intervention in private behavior entirely."
At some point in the legalization of drugs the government must be involved if only to set an age limit on their purchase. I think you would agree that people under a certain age aren't mature enough to make these decisions. The paragraph that statement is in brings up excellent questions and points about government tyranny. I remain skeptical that legalizing drugs would significantly change any crime rates in a positive direction because of two reasons. First the behavior modifications people go through taking drugs are hard to predict but with the potential of more people being high the types of crimes committed by high people, ie spousal and child abuse, would probably go up. Second, with an age limit set on these drugs there would still be plenty of illegal activity going on concerning their purchase and sale. Government tyranny is a concern but I'm not so sure that tyranny is descriptive of the drug laws of this country.
Ed -
Although I am no "great thinker" on such matters, I must say that this post is the about the best description of what government "should" be that I have seen.
Your point about alcohol and pot illustrates particularly well the hypocrisy of one huge area of "ethics" based legislation: our current drug laws. I'd be willing to bet that, in terms of car accidents, lost productivity on the job, domestic violence, etc, etc, alcohol has a far more detrimental impact than pot or even coke. So why is alcohol legal, even celebrated, in our culture?
Please don't think that I'm advocating a return to Prohibiiton. I'm just pointing out the arbitrary and not-quite-always-rational nature of current drug policy.
And I'd like to ask guys like Olson: If illicit drugs were suddenly made legal, would the situation, in terms of rates of addiction, accessibility by kids, etc etc, be any worse than it is now?
And Mr Olson seems to have forgotten that, while we have indeed been blessed by luminaries such as Jefferson and Madison, we also have been afflicted with characters like J. Edgar Hoover, Joe McCarthy and what's his name in the White House....
At some point in the legalization of drugs the government must be involved if only to set an age limit on their purchase. I think you would agree that people under a certain age aren't mature enough to make these decisions.
Well, yes. Of course, an 8-year-old shooting up heroin is less akin to 30-year-old shooting up heroin than it is to my dog getting into the antifreeze in my garage and poisoning herself. There's a reason that the "consenting adult" standard comes up over and over in libertarian thought. Often--heroin use excluded, I think--it's nothing more than a necessary evil, an arbitrary standard where no standard is arguably worse. The age where alcohol, tobacco, and sex are legal could stand to be lowered in most states, I suspect.
I remain skeptical that legalizing drugs would significantly change any crime rates in a positive direction because of two reasons.
Well, as Ed notes, there's one reason to suspect a dip in crime when drugs are legalized: no more turf wars. Any commodity that is criminalized produces a black market whose violence is in direct proportion to the draconian measures the authorities employ. Stiff penalties and aggressive enforcement raise the stakes for those who traffick in the commodity, so the profits and risks become that much greater. This, of course, is why the War on Drugs is self-defeating. The more harsh the government's policies, the more violent and organized the criminals will become, pushing criminal activity into the hands of a few cartels with vast resources.
First the behavior modifications people go through taking drugs are hard to predict but with the potential of more people being high the types of crimes committed by high people, ie spousal and child abuse, would probably go up.
Alcohol leads to more spousal abuse and child abuse than all illegal drugs combined. Sounds like a societal problem to me. Should we re-criminalize that as well? Come to think of it, one of the features that correllates best with child abuse, assault, and homicide is a family relationship between victim and criminal. Guess it's time to abolish the family, raise all citizens in government education pods, and ban inter-personal relationships outside of the workplace. For the children, of course.
JCW -
Your concerns are certainly justified, but I really doubt that the DEA website is the best place to get reliable statistics.
Andrew:
Your comment about the creation of black markets as a result of the criminalization of substances brings to mind a story I heard on NPR a few years ago. The details are foggy, but it goes something like this:
It was around the time Canada implemented the GST (or whatever that hellacious tax is called). As a result, the cost of cigarettes skyrocketed. Seeing a profit motive in selling cheap cigarettes, people who had been dealing drugs got out the smack business and into cigarette smuggling. Talk about unintended consequences!
PopeZach64,
I know what you are saying about my choice of websites to get reliable stats from, keeping some drugs illicit is in their best interest. That being said the site brings up some good questions needing consideration before any legalization of these drugs takes place.
Andrew, your points about alcohol are correct. Also I agree with yours and Ed's assertions about the War on Drugs and about the large number of arrests made because of it. Maybe it is an irrational fear but I am still concerned about the potential trade offs if a higher number of people used the now illicit drugs because of their ready availability and cheaper price. Your final couple of points, however, are intriguing to me. I have a couple of teenagers at home and this government pod thing has some possibilities. Thanks for the discussion, I better do some work or I might get in trouble.
jcw-
I don't think your concern about possible tradeoffs is completely off base. I don't pretend that legalizing drugs would be a panacea, it will have negative effects, one of which is probably increased drug use (though I think that will be minimal, particularly with respect to the harder drugs). But I think on balance, things will be better in a number of important ways.
The big result I think legalizing drug use would have on how people USE it (ignoring turf wars, where I think Ed is completely right), is ...
... simplification.
Sure, more people will use heroin and cocaine and the like.
But they'll be using more precise dosages (instead of having it cut with filler semi-randomly), and they'll be doing it in more public places.
Consider how most people drink - with other people. Other drugs will most likely show a similar pattern, when legal issues are no longer a worry for the user.
And if a drunk starts getting violent, that drunk will usually have friends restrain him, and so on. And the same will go for heroin and cocaine - except that people will likely be more worried about what it might do and thus will pay better attention.
Plus - it loses the allure of the forbidden, which changes the useage patterns a bit.
You get more users - but they tend to be a bit more responsible than the sort who WON'T use it anymore.