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ROBERT M. HURT, Sin and the Criminal Law - Ralph Raico, New Individualist Review 
New Individualist Review, editor-in-chief Ralph Raico, introduction by Milton Friedman (Indianapolis: Liberty Fund, 1981).
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Sin and the Criminal Law
The freedom we enjoy extends also to ordinary life; we are not suspicious of one another, and do not nag our neighbor if he chooses to go his own way.1
He who imagines that he can give laws for the public conduct of states, while he leaves the private lives of citizens wholly to take care of itself; who thinks that individuals may pass the day as they please, and that there is no necessity of order in all things; he, I say, who gives up the control of their private lives, and supposes that they will conform to law in their common and public life, is making a great mistake.2
WHILE ONE would expect the criminal arm of the New York City bureaucracy to be fully occupied with more momentous problems, it was able in February of this year to find time to hail a group of girls before the bar of justice for “glue sniffing,” allegedly for the narcotic effect. Though we think of the criminal law as designed to protect individuals against the acts of other individuals, these girls were charged with “impairing their own health and morals.” In a nation which allows persons to be punished on such grounds, those of us who are interested in the maximization of personal liberty should consider whether John Stuart Mill’s maxim that the state should not interfere in the private acts of individuals is a minimum condition for a free society.
The maxims are, first, that the individual is not accountable to society for his actions, in so far as these concern the interests of no person but himself. Advice, instruction, persuasion, and avoidance by other people if thought necessary by them for their own good, are the only measures by which society can justifiably express its dislike or disapprobation of his conduct.3
Most conservatives will be quick to agree with Mill’s refusal to let the law interfere in the private sphere when some new economic regulation is under consideration. Ambassador Galbraith’s vendetta against tailfins and his desire to protect the consumer against his imprudent free choice, Ambassador Stevenson’s indignation at the “myth of privacy,” and Social Security taxes designed to provide workers to provide for themselves in their old age, are all greeted by the “right” as attempts to subvert our liberty. Yet, conservative “defenders of freedom” are often found shouting the loudest for coercion to enforce their particular moral concepts or standards of decency in situations directly affecting only those who are voluntary parties to an act. (And, to compound the paradox, it is often the interventionist liberal who most vigorously upholds personal freedom in these areas.)
At the risk of offending those who not only support these prohibitions but also feel they are too delicate to be discussed in a scholarly journal, I invite the reader to examine an area of law which is all too often ignored in analyses of the role of the state. If adherents to the libertarian-conservative philosophy of limited government are to deserve the intellectual respectability which they claim, they have a duty to develop a more consistent practical application of that philosophy.
LIKE MOST important intellectual controversies, the proper role of state intervention in the private affairs of citizens was a point of vigorous dispute among the early Greeks. Little is known of that Greek libertarian tradition which received one of its most eloquent formulations in the funeral oration of Pericles and seems to have been advocated by Democritus, Protagoras, and Lycophron.4 Lycophron is quoted by Aristotle as demanding that the state should be merely a “covenant by which men assure one another of justice” and a “co-operative association for the prevention of crime.” In reaction to this first known advocacy of an “open society” came the totalitarianism of Plato, who urged the complete regulation of every important aspect of the citizen’s moral life as a necessity for a “virtuous society.” Though seeing more value in freedom of action than Plato, Aristotle still saw “virtue” as the end of the polis, an end to which the secondary value of freedom of action readily gave way. While this Platonic-Aristotelian tradition triumphed over its libertarian alternative and was not successfully attacked until recent centuries, the early Christian and medieval period gave far more deference to individual freedom than is commonly supposed. St. Augustine viewed the state as completely unable to improve the moral constitution of its already corrupted citizens and consequently advocated severe limitations on state intervention. While St. Thomas, like Aristotle, saw virtue as the principal end of the state, he emphasized the importance of “individual autonomy” and the necessity of allowing free choice between right and wrong. The last few centuries have seen an erosion of this Platonic-Aristotelian tradition and a return in the Protestant countries to the social contract and policeman state concepts of Lycophron. Ironically, most Catholic countries do not proscribe many of those acts which are penalized in some supposedly more liberal Protestant nations: gambling, use of alcoholic beverages, homosexuality, adultery, and fornication.5
The early nineteenth century saw England, under Benthamite influence, gradually move toward the position that the state should not interfere in the private lives of its citizens. It was, however, in the United States that lovers of freedom placed their greatest hopes. Lord Acton was prompted to write:
Europe seemed incapable of becoming the home of free states. It was from America that the plain idea that men ought to mind their own business, and that the nation is responsible to Heaven for the acts of State, burst forth like a conqueror upon the world they were destined to transform, under the title of the Rights of Man.6
Unfortunately, the “home of free states” has had to endure periods of legal moralizing on such a hysterical scale that even Plato might have blanched to see it. Characteristic of the “yahooism” so vividly described by H. L. Mencken was the career of Anthony Comstock, who in the 1870’s led a nationwide campaign for legal proscription of conduct which he considered sinful. He succeeded, as leader of the New York Society for the Suppression of Vice and later as special agent for the Post Office, in preventing the circulation through the U. S. mails of birth control information and other literature considered by persons of his turn of mind to be obscene or immoral. This jehad against sin which characterized the Populism and Bryanism of the turn of the century had not even the mitigating value of being directed by a Platonic elite; rather it was a grassroots movement based largely on religious moralizing and a dislike of the “strange ways” and religious trends in the urban centers of the East.
The crowning glory of this radical democracy was the Prohibition Amendment, which stands as one of the most striking examples in the history of a free nation of an attempt by one group to impose its personal mores on others. Since the beginning of the New Deal and the repeal of Prohibition in all but a few states, government action against private immorality has tended to decline. The grassroots citizenry has since turned to the more lucrative pastime of regulating the economic lives rather than the moral lives of others. Though state regulation of private conduct is at present far less pervasive than economic intervention, it is still extensive enough to constitute a serious limitation on freedom.
A long and comprehensive list of the areas of personal morality regulated by law, from federal statute down to minute municipal ordinance, could easily be composed, but some of the more far-reaching are: (1) prohibitions against the sale of birth control devices or the dissemination of birth control information, (2) statutes forbidding the intermarriage or cohabitation of persons of different racial groups, (3) statutes classifying suicide or attempted suicide as a crime and classifying voluntary euthanasia (the killing of a suffering and hopelessly incurable person at his own request) or otherwise aiding a person in committing suicide as murder, (4) prohibition of fornication, prostitution, and homosexual and other unnatural sex acts between consenting adults, (5) prohibitions against the sale of narcotics and alcoholic beverages, (6) statutes prohibiting gambling, (7) censorship of allegedly “obscene” or “immoral” books or movies.7
Even should we accept the classical liberal maxim that a person should not be punished for his own “sins” as long as no non-consenting party is injured, other problems are raised by the laws mentioned above. If we hold that the law should not protect adults from themselves, we still must deal with the thorny problem of special protection for juveniles, the insane, and possibly the feeble-minded. Should the sale of certain narcotics or alcoholic beverages be likely to lead to crime, it has been argued that legal prohibition is needed to protect innocent parties. Moreover, are persons to be born entitled to any protection? Should measures be taken to protect their genetic stock from deterioration? In examining the extent of government coercion in these areas of private conduct, I will attempt to show that almost none of this legislation can be justified as preventing harm to juveniles or innocent third parties. I conclude with a theoretical proposal concerning the proper delineation of the private sphere from the sphere of allowable government intervention.
NOT ONLY IS the Comstock Act, which prohibits distribution of contraceptives or birth control information for other than medical purposes through the mail, still federal law but, also, twenty-two states prohibit or limit the sale of contraceptives. In five states, Connecticut, Kansas, Massachusetts, Mississippi, and Nebraska, the statute makes no exceptions; even if pregnancy would result in death or serious injury to the wife, the sale of contraceptives or dissemination of information still can technically land the party in jail. In Connecticut the use of contraceptives is also a criminal offense. While the status of these laws is unclear in Mississippi, Kansas, and Nebraska, high courts in Connecticut and Massachusetts have held that the health or life of the wife does not prevail against legislative fiat.8 To any future widowers as a result of this statute, the highest Connecticut court offers this brutal condolence: the legislature left them free to practice the alternative of “abstention.” The United States Supreme Court has thus far avoided testing the constitutionality of these statutes, but it will soon be forced to reach a decision. On November 1st of last year a Planned Parenthood Center was opened in New Haven, Connecticut, to disseminate birth control information. Ten days later officers of the center were arrested. There seems to be no gimmick by which the Supreme Court can avoid deciding this case, now on appeal, on the constitutional issues involved.
These anti-birth control laws, though reduced in importance because of the reluctance of officials to enforce them, (except when their hand is forced, as in New Haven, by deliberate publicity) make a travesty of that “plain idea that men ought to mind their own business.” No injury is claimed to third parties, unless one is willing to argue that a potential person deprived of existence is somehow entitled to legal protection. Protection of juveniles seems to raise no special problem, as it might in the case of narcotics and alcoholic beverages. These laws seem to be a clearcut example of a partially successful attempt to impose a personal religious and moral code on dissenters.
THE SUPREME COURT has also avoided passing on the constitutionality of state laws which touch on one of the most personal decisions in an individual’s life: the choice of a spouse. Twenty-two states, six of them outside the South, still prohibit interracial marriages. While one-eighth Negro blood is enough to constitute a person a Negro in most of these states, in Georgia and Virginia an “ascertainable trace” is sufficient.9 The record of such prohibitions is sanctified with age; a Jamestown ordinance proclaimed that a white man should be publicly whipped “for abusing himself to the dishonour of God and the shame of Christians by defiling his body in lying with a Negro.” After passage of the Fourteenth Amendment, state courts generally upheld the constitutionality of these statutes. The Alabama Supreme Court summed up the usual rationale for these laws in an 1877 case:
The natural law, which forbids their intermarriage and that amalgamation which leads to a corruption of races, is as clearly divine as that which imparts to them different natures.10
The California Supreme Court is the only high court which has thus far struck down such a statute as violating the federal constitution.
Unlike some “moral legislation,” which is allowed to lie dormant on the statute books, these statutes are still often vigorously enforced, especially in the South. The depravity to which “protectors of the white race” will resort in enforcing these statutes is illustrated by the fate of Davis Knight, who at the age of twenty-three was sentenced to five years imprisonment in Mississippi for marrying a white girl. He was classified as a Negro because his great-grandmother was a Negro, a fact which neither he nor his parents knew at the time of his marriage.11
These fantastic laws fail to arouse the attention they deserve both because they affect only a small group of people and because they have for so long been a part of the judicial landscape. In a nation where social security or the banning of a Communist speaker bring forth cries of tyranny, one might expect more indignation at prohibitions in this area of private choice. If we require injury to innocent parties as the basis for criminal liability, these laws clearly cannot be justified on the grounds by which they are usually defended: that intermarriage is inherently sinful, contrary to the Bible, or opposed to natural law. Likewise, the notion that the “white race has a right to protect itself” is necessarily a collectivist and mystical sentiment which can hardly give justification for criminal sanctions if freedom is a serious goal. These laws are defended by the more sophisticated on a eugenic basis: intermarriage will allegedly lower the genetic quality of unborn generations; hence anti-miscegenation laws prevent injury to unborn persons. But even if this argument is admitted to have a sound scientific basis, few if any of the proponents of this legislation would admit the general principle that the state may regulate marriage whenever justified by “scientifically proven” eugenic principles. As a general principle, the choice of a spouse is one decision almost all of us want left to the individual, regardless of the genetic consequences; it is only when the additional prejudices and fears surrounding intermarriage are involved that we allow such restrictions.
PERHAPS THE ACID test of one’s belief in freedom of choice arises when we are asked: does a person have the legal right to terminate his own life? Further, may a person, without incurring criminal liability, assist another in terminating his own life? Though our Christian tradition has regarded suicide as a heinous crime, authorities have been understandably vexed in applying sanctions. By canon of King Edgar in 967, English suicides were denied burial rites; this tradition was later embellished by burial on a highway with a stake through the heart, coupled with forfeiture of the suicide’s possessions to the Crown. In a famous early case the court outlined the reasons for treating suicide as a crime:12 (1) it is against nature “because it is contrary to the rules of self-preservation, which is the principle of nature, for everything living does by instinct of nature defend itself from destruction, and then to destroy one’s self is contrary to nature and a thing most horrible,” (2) to kill one’s self is a breach of God’s command “thou shalt not kill,” (3) the king loses a subject, “he being the head has lost one of his mystical members.”
Classification of suicide as a felony is not an academic matter when applied to attempted suicides and accomplices to a suicide. Attempted suicide is a crime in England; from 1946 to 1955, 5,794 cases were tried by courts and 308 persons actually went to prison. In the United States neither suicide nor attempted suicide is a crime in most states, and in those states that do make attempted suicide a criminal offense, prosecutions are rare. However, assisting a person in committing suicide at his own request is generally punished as murder in both England and the United States.13
The legality of voluntary euthanasia, or “mercy killing,” provides a particularly controversial variation to this general question. Courts are frequently called upon to decide whether a doctor commits murder when he kills a patient who is in serious pain from an incurable disease, and requests that the doctor end his misery. Polls have indicated that about half of Americans and an even larger portion of Britons favor mercy killings;14 this is reflected in the frequent refusals of juries to find that a killing was committed, even when the defendant had admitted the killing.15 Though euthanasia societies in both Britain and the United States have pressed for a change in legislation,16 only Uruguay has enacted a law legalizing voluntary euthanasia. Since many of the objections to mercy killing may be overcome by proper legal draftsmanship—the danger of a hasty decision due to a temporary whim induced by suffering, and the danger that the doctor could get away with actual murder for selfish reasons—the argument against it rests largely on theological and ethical strictures concerning felo de se, a crime against one’s self.17 We are told that suicide, of which voluntary euthanasia is a form, is a sin which must be discouraged by the law. According to St. Thomas and the mainstream of Catholic thought, “suicide is the most fatal of sins, because it cannot be repented of.”18 Further, God reserved the right to take away life at the appointed time, an argument which would seem to prohibit the use of any medicine to prolong life beyond the time when the patient would otherwise die. Finally, the Biblical commandment against killing, as well as the nobility and desirability of suffering as part of a “divine plan,” is invoked. Advocates of personal liberty may or may not agree that suicide to prevent a slow and agonizing death is sinful. Undoubtedly, they would unanimously admire the person who would voluntarily stick it out to the bitter end on moral or religious grounds. And certainly they would not argue that such a person should be killed against his will; the compulsory euthanasia centers for the feeble-minded and the deformed set up by the Nazis have left a bad taste in the mouth of humanity. But even to those who accept this view of the sinfulness of suicide and who would live by this principle themselves and fervently urge it on others, it should appear as an act of barbarity to urge state coercion against those who choose relief from pain over the moral principle involved. Imposition of religious views here smacks not only of cruelty but of hypocrisy, when those who would let the “absolute value of human life” prevail against the voluntary choice of the subject refuse to take an unqualified stand against the involuntary taking of human life through capital punishment or war. Joseph Fletcher, a noted physician and writer, has commented on this strange double standard:
We are, by some strange habit of mind and heart, willing to impose death but unwilling to permit it: we will justify humanly contrived death when it violates the human integrity of its victims, but we condemn it when it is an intelligent voluntary decision. If death is not inevitable anyway, not desired by the subject, and not merciful, it is righteous! If it is happening anyway and is freely embraced and merciful, then it is wrong.19
Probably the most common ground for attacking voluntary euthanasia is the fallibility of doctors. Either the malady might be erroneously diagnosed as incurable or a cure might be discovered in time to save the patient. Since it is certainly possible that, even with the checks provided by legislation, some would choose euthanasia who might have been cured, we are driven back to the original question: should it be a criminal offense to aid a person in taking his own life, regardless of whether he is doomed to a painful death in the near future. If we hold strictly to the principle that the criminal law should protect only innocent parties and should not recognize “crimes against one’s self,” we could not sanction the use of law to prevent a person from seeking aid in his own destruction. (As a corollary we could not punish the person who gave the aid.) Unlike some of the other issues raised in this article, this would appear to be an unambiguous and clearcut application of this principle. However, this conclusion runs so directly counter to certain threads in our political and moral thought that it would be a bitter pill even for many strong advocates of freedom to swallow. The notion of the “absolute sanctity of human life” has been a vital part not only of our religious tradition but also of the classical liberal tradition from which our attachment to freedom largely derives. (Another related and possibly more difficult question is whether dueling should be permitted when both parties agree to the duel.) While sanctions against voluntary euthanasia might be liberalized or even abandoned in the future, emotions and countervailing philosophical attitudes are probably too strong to make a change in the law in regard to aiding a suicide likely in the near future.
WHILE CRIMINAL sanctions against voluntary euthanasia raise serious issues for a philosophy of freedom, our attempts to regulate the private sexual conduct of adults through state coercion have been more in the nature of a very bad joke. At present, the fantastic hodgepodge of statutes and ordinances of the various states prohibiting fornication, adultery,20 and those acts amorphously grouped as “unmentionable crimes against nature,” even when in private between consenting adults, cover such a wide range of sexual conduct that, according to Kinsey’s sampling, ninety-five percent of all males have committed a criminal sexual offense sometime in their lives.21 These statutes, if literally applied, would in most states not only result in criminal sanctions against all those engaged in sexual relations of any sort outside the marriage bond, but would, under the fantastic statutory definitions of “crimes against nature,” etc., result in criminal penalties against a large percentage, probably a majority, of married couples for their private relations. State interference in private sexual affairs was not extensive in the western world until rather recently; at present, statutory meddling in the Anglo-Saxon countries is probably more comprehensive and detailed than it has ever been.
Most of the advanced nations of the world attach no criminal penalty to fornication, though they probably do this out of recognition of the fact that the practice is well-nigh universal and literal enforcement would lead to a call to arms by the citizenry rather then out of a feeling that this is none of the state’s business. Further, even adultery is normally not a statutory offense, though the injured spouse usually has civil redress. The Code Napoleon abolished such offenses between consenting adults, and France’s example has been followed throughout Western Europe. American crusaders against sin, however, have been able to hold the line in most state legislatures in an unsuccessful attempt to enforce their moral code on a population that generally rejects it. All but eleven states make fornication a criminal offense, penalties ranging from a three-year jail sentence in Arizona to fines alone in seven states. The federal government has plunged into the battle with the Mann White Slave Act, which prohibits the transporting of a woman across a state line for “immoral purposes.” The courts have held that a federal crime is committed should one have relations with one’s girl friend on an interstate drive.22 But the interventionists have had their reverses; the California courts recently struck down all municipal legislation prohibiting fornication and adultery (because state legislation, which contained no bar, had preempted the field), in the face of the warning of the Los Angeles Police Chief that this was a “Bill of Rights for prostitutes” and that “a hedonistic philosophy is filling the void created by the destruction of the Victorian culture.”23
Until rather recently, criminal law codes in western countries had paid little attention to homosexual acts between consenting adults, and the civil and ecclesiastical sanctions which did exist were justified in large part by the notion that God would visit the fate of Sodom and Gomorrah on those nations where such conduct was tolerated. Since we optimistically assume that this belief has lost wide acceptance, we might expect the laws to likewise disappear. All the nations of Western Europe except West Germany and Austria have repealed laws penalizing these “crimes against nature” except when juveniles are involved or when the crime occurs in a public place. But in Britain and the United States the statutes have been extended rather than repealed and now in most states cover such a wide variety of allegedly “unnatural acts” that husband and wife are no longer safe from legislative meddling. Practices widely recommended by most modern marriage manuals and in no conceivable way the legitimate concern of “organized society” are technically criminal even though probably practiced by a majority of married couples.24 While there is fantastic variety and confusion in the laws of the various states (partly due to the embarrassment of legislators who wanted to prohibit the act without mentioning its name or describing it), every state except Illinois makes some form of private homosexual conduct between consenting adults a prison offense. In England the maximum penalty for sodomy is life imprisonment. Many states impose a high minimum sentence; for example, Rhode Island sets seven years. Maximum sentence varies from life in Nevada and sixty years in North Carolina to three years in several states. Some states, such as Colorado, underline the social danger by depriving those convicted of the right to vote, serve on a jury, or hold public office.
Perusing the statutes and ordinances alone, we might assume that minute government regulation of almost every form of sexual activity has reached a level of intensity which would gratify Orwell’s Anti-Sex League. But the citizenry has been given a reprieve: Big Brother seldom enforces these laws. Only in Massachusetts is the adultery statute widely enforced, and prohibitions against fornication and the various “unnatural acts” between male and female in private are only sporadically enforced by exceptionally vigorous upholders of community mores. (Witness the zeal of the Atlanta ordinance which required that shades should be pulled when mannequins were being undressed.) Even homosexuals, though subject much more to public indignation, are rarely imprisoned for voluntary private acts between adults. In both Britain and the United States, most arrests involve either juveniles or “public indecency” of some sort. However, sporadic round-ups by the police, even when resulting in probation rather than a jail sentence, have been so blatantly unjustifiable as a necessary police measure, that respected jurists in both Britain and this country have argued vigorously for abolition of this offense. The authoritative American Law Institute, upon the recommendation of such noted jurists as Learned Hand, has urged that such laws be repealed. Thus far, their recommendation has been adopted only in Illinois, where the legislature this year removed all criminal penalties for private relations between consenting adults. In Britain, the Wolfenden report recommending that all such prohibitions be removed is still the subject of heated debate.
Jeremy Bentham classified prohibited sex acts in which there is neither violence, fraud, nor interference with the rights of others, as “imaginary offenses” in which no penalty is justified. Fornication (including prostitution) and homosexuality, when juveniles are not involved and when not occurring in a public place, obviously qualify under this criterion as “imaginary offenses”: no question of violence or fraud is involved (these are covered by separate statutes) and no third parties are directly injured except insofar as they are somehow offended or indignant that such things occur in their vicinity. The most important exception would be that fornication could be viewed as injuring resulting children due to social opprobrium placed upon illegitimacy. The usual motivation for such legislation, however, is to either protect the offender from himself or to give vent to community indignation and to enforce its notion of sin. This fact seems to be generally recognized by informed persons who have a high regard for individual freedom, as is indicated by the widespread support for the Wolfenden Report in Britain and by the attempts to liberalize the law in this country. In an otherwise statist era, this is probably one field in which the trend will be toward more individual freedom rather than less.
WHILE ALCOHOLIC beverages are barred in only a few states, a pervasive net of state and federal laws and international treaties provide almost universal prohibition or regulation of addicting narcotics. In addition to the desire to save the potential addict from his own misconduct, to prevent him from metaphorically “selling himself into slavery,” these prohibitions are motivated by two other important considerations. Addiction allegedly leads to crime either through its direct effect on the mind or due to the need for money to buy more of the drug; hence, innocent parties are protected by these laws. Further, it is argued that if drugs are sold freely, there is no practical way to prevent them from falling into the hands of juveniles, who it is felt should be protected from addiction. As to the first consideration, a recent joint American Bar Association-American Medical Association report has accepted the position of most modern authorities that drugs themselves reduce the propensity to commit crimes of violence. Addicts are forced to commit crimes mainly to pay the exorbitant prices of illegal narcotics which can be supplied only by the underworld.25 Narcotics, if traded on a free market, would be among the cheapest of commodities.
Anti-gambling statutes, as well as the traditional unwillingness of courts to enforce gambling contracts, are, like narcotics laws, attempts to protect individuals from their own sinfulness and imprudence. Like alcohol, gambling is regarded by many religious groups not only as a “vice of Babylon” but as one justifying state interference. Just as Galbraith would prevent the consumer from imprudently wasting his money on “unnecessary” car appliances, many anti-gambling zealots would mark off this area as one where consumer choice should not be allowed. The money could, in their estimation, be put to better use. While anti-gambling and anti-narcotics laws are both to an extent honestly motivated by a desire to prevent crimes of violence, these very laws have provided a new haven for organized crime, evicted from its most lucrative business by repeal of Prohibition, since it is now the only institution that can carry on the trade.
Censorship statutes and ordinances are too complex and present too many issues to be covered adequately here. Book-banning to prevent “immoral” and “obscene” literature from passing into the hands of the citizenry by local and state officials as well as by the Post Office has been one of the most comprehensive devices for imposition of the tastes and values of a majority or of a vocal group upon the rest of the community. The Supreme Court itself applies a majoritarian test in determining whether a book may be constitutionally banned:
Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.26
However, many advocates of censorship are undoubtedly motivated not by a desire merely to impose their tastes and sentiments by force but by a genuine concern for the effect pornography will have on juveniles and on juvenile crime. While the effect of pornography on juveniles is still an open question, a comprehensive recent study concludes that there is no evidence that pornography has harmful effects on juveniles and promotes crime, and that there is some indication that attempts to keep pornography from juveniles may be harmful.27
The problems discussed above are only some of the more spectacular and controversial examples of moral legislation. A complete survey would deal with laws regulating or prohibiting commercial activity on the Lord’s day, artificial insemination, voluntary sterilization, polygamy, incest, and physical injury to a consenting subject. We have dealt exclusively with criminal laws; civil laws making various “immoral” contracts unenforceable or otherwise interjecting community moral values into the process of civil recovery raise similar issues. Instead of extending this survey of state intervention into the sphere of private morality, I propose to devote the remainder of this article to the more fundamental question: why should the state be prevented from legislating morality?
WHILE ALL GENUINE friends of freedom will be distressed at this panorama of official meddling, it is admittedly more difficult to translate this sentiment into a practical and consistent principle delineating a sphere of private moral conduct with which the state may not interfere. Mill would bar the state from interfering with a person’s acts which “concern the interests of no person but himself.” Unfortunately, this maxim can be stretched to sanction almost any conceivable state intervention, since it is difficult to conceive of any act which could not adversely affect others. Excessive drinking, excessive TV watching, or refusal to go to college may make a person less productive, thereby lessening his ability to support a family, to produce goods desired by others, and to pay taxes. One who regularly reads the Congressional Record might conceivably be driven insane and commit homicide. An improper diet could make one less attractive or pleasant. Birth control might lower the population growth, which could arguably hinder the defense effort. Even when practiced in an outpost isolated from public view, poker games, nudist colonies, rock ’n’ roll dancing, even theatre going may be offensive through their mere presence to some citizens.
While the primary purpose of this article is to present the problem rather than to propose an airtight theoretical answer, a few suggestions may be ventured. Juveniles and other persons given a similar status because of insanity or judicially declared incompetence will undoubtedly be given a special protective status under the criminal law; the limits of such protection present too complex a problem to be subsumed under a general principle. After side-stepping this problem, the following general maxim can be offered: the criminal law may punish no category of acts which are not directly injurious to persons who do not consent to the act.28
“Directly” in this context is an admittedly ambiguous term. I employ it in a sense analogous to the legal term “proximate cause.”29 Under this criterion I would exclude the following acts from the area of legitimate concern of criminal legislation: (1) Injury to a consenting party would not be grounds for punishing another party. (2) Mere outrage or indignation that such acts are going on would not constitute direct injury. (3) Acts which injure others only insofar as they make the actor a less able, virtuous, or pleasant person (by affecting his money-making capacity, etc.) or which deprive others of his contributions altogether (e.g., suicide) will not be sufficient grounds for government interference. (4) Acts which, when taken in the aggregate, might injure others in a remote and secondary way, as by tending to decrease the birth rate or to debase the genetic stock of the community, or by tending to lower the “moral tone” of the community by causing changes in attitudes, will not be grounds for punishment, especially when the alleged tendency is hypothetical and supported only by popular attitudes rather than by conclusive scientific evidence.
This position, held implicitly or explicitly by classical liberals for the last two centuries, has been the subject of intense criticism, some eloquent and penetrating, in recent years. The most frequent criticisms might be mentioned.
First is the “civil libertine” charge: those who would not punish vice by jail sentences thereby spend their nights practicing it. While classical liberals might incur their proportionate share of sin, this argument needs no reply. The personal habits of advocates of an idea can hardly affect the validity of the idea.
Second, those who would not penalize immorality either do not believe in absolute values or do not have any system of values at all. This assessment may be valid to the extent that one who rejects a system of fixed, absolute values is more likely to object to state enforcement of such alleged values. One is more likely to reject state enforcement of morals if he agrees with F. A. Hayek that:
. . . even what we regard as good or beautiful is changeable—if not in any recognizable manner that would entitle us to take a relativistic position, then in the sense that in many respects we do not know what will appear as good or beautiful to another generation.30
and rejects W. F. Buckley’s claim that, as to moral values
. . . all that is finally important in human experience is behind us; that the crucial explorations have been undertaken, and that it is given to man to know what are the great truths that emerged from them.31
However, libertarians number among their ranks those who base their position on absolute moral values and who find freedom a necessity because it is a condition precedent to moral choice and because the state, by its intervention, will inevitably thwart morality.32 At any rate, to condemn a political position merely by linking it with a philosophical position completely begs the issue of its validity.
Third, by repealing laws prohibiting immoral acts, “society” somehow appears to condone and encourage them. This argument, like its twin brothers in the economic realm—if you vote against Kennedy’s farm program, you are against the farmer; if you are against forced desegregation of private dwellings, you are against the Negro—is based on a pernicious premise: the state condones and encourages those things which it does not condemn or act to prevent. Holding to such a doctrine presupposes a rejection of the concept of limited government, whereby most decisions in vital matters, both moral and economic, are left to individual choice. This area of unrestricted freedom is narrowed in principle as much when the state acts as moral conscience as when it acts as policeman. Such is true even when the law is not enforced, though the policy will be less effective.
It has been urged with more plausibility that it would be better to leave such statutes on the books and not enforce them or only enforce them sporadically, since repeal would be taken as a positive encouragement to engage in the prohibited act. If it were true that such statutes would actually remain dead and would not be gleefully “rediscovered” by some zealot, there would be little advantage in repeal other than the possibility that by not enforcing certain laws we breed disrespect for the remaining laws. However, playing Russian roulette through sporadic enforcement wreaks havoc with the rule of law. The selection of persons to be prosecuted becomes arbitrary and rests solely on the whims of the bureaucrat who happens to be charged with its enforcement. In any case, no evidence has been offered that persons will engage in acts simply because they think repeal of a criminal law showed that “society” or the government thereby encouraged and condoned it.
Fourth, one cannot separate law and morals, as those who would not punish private immorality allegedly would do. This criticism is at least in part due to the tendency of liberal legal philosophers, such as H. L. A. Hart,33 to emphasize the “separation of law and morals” and to couple this with a plea that the law not enforce morality. Actually, neither criminal nor civil law can be divorced from community moral concepts (a close reading of Hart shows he does not deny this), and this in no way undermines the position advocated generally by classical liberals. Generally speaking, an act must be considered in some way “immoral” or “evil” before a criminal sanction can be applied to it. If the criminal law is radically out of step with what Eugen Ehrlich dubbed the “living law,” i.e., if acts are punished which are not considered meriting punishment by most members of society, the statutory law will probably be changed to parallel this living law. Prohibition is the usual example given. Further, the severity of punishment will be determined in large measure by the degree of turpitude attached to the crime. However, this “moral turpitude” is clearly at most a necessary, not a sufficient, condition for criminal sanction. No one would argue that all acts considered immoral—lying, indolence, not going to church—should be punished. The position taken here is that not only must the penalized act be condemned morally by members of society, but that also some non-consenting party must be directly injured by this category of act.
Fifth, coercive enforcement of a moral code is necessary to prevent society from “disintegrating.” Sir Patrick Devlin has eloquently argued, in an attack on the Wolfenden Report’s contention that there must be a realm of private morality which is “not the law’s business,” that the threat of such disintegration gives a justification to moral legislation which has no theoretical limit.34 “Society means a community of shared ideas,” of which moral and ethical ideas are a part. Without fundamental agreement on good and evil, “society will fail.” Since a recognized morality is necessary to society’s existence, “prima facie, society has the right to legislate against immorality as such,” just as it has a right to legislate against subversion. As “society” is used here in a vague sense and has, at first glance, a suggestion of mysticism, we need to pin down just what is meant by “disintegration of society.”
Two possibilities suggest themselves. The way people live and interact becomes changed in a manner short of the breakdown of law and order—i.e., violence is still controlled by law and commerce continues. Let us say that “society” consisted of shared ideas A, B, C, D. Then A disappears and is replaced by E. Since the original society, that is, shared ideas A, B, C, D, no longer “exists,” in this definitional sense, society has disintegrated. This is what Devlin seems to have had in mind when he asserts that since monogamy is part of the structure of our society, it “could not be removed without bringing it down.” No assertion is made that polygamy is not workable where practiced or that its adaption or partial acceptance would lead to any breakdown in law and order. Merely, the society in question would cease to exist because monogamy is claimed to be an essential ingredient of this society. In this sense the statement that “society has a right to protect itself” is a mystical guise for the assertion that certain persons have a right to prevent, by use of the policeman, the adoption by others of a practice which they do not like. Devlin’s “society,” “a community of shared ideas” is an abstraction which, as such, is incapable of any action whatsoever.
Devlin may be interpreted to mean, however, that if an established morality is not enforced, anarchy and a breakdown of law and order will result, as allegedly occurred in Rome. This would be a more concrete and persuasive argument. One could object to this thesis that there seems to be no evidence that private immorality has been the cause rather than a symptom of any descent into chaos; and if an immoral trend was actually threatening chaos, laws would be ineffectual to stem it, due to enforcement difficulties. Actually, this “trend” would certainly be impossible to properly diagnose, and such an alleged danger could be used to justify almost any moral legislation. Devlin, however, gives little indication that he is concerned with this problem. He makes no offer of criteria to determine when immorality threatens chaos. Instead, he contends that the state may intervene in private affairs whenever an act is considered “a vice so abominable that its mere presence is an offense.” This is a mere thermometer of intolerance, and is unrelated to any analysis of the danger to law and order. I would conclude that Devlin and others who argue about “society’s right to defend itself” are, in company with those who propound “the white race’s right to defend itself,” are merely urging that changes in voluntary relations between individuals which they strongly dislike be stopped. It is undoubtedly true that a certain consensus as to morality may be an absolute necessity to prevent chaos. If the majority of persons believed in the goodness of indiscriminate theft or murder, the strongest law enforcement would probably not be sufficient to uphold minimum order. But as to conduct not directly injuring third parties, there seems to be no indication that a divergence of practice will do any more than prove vexatious to an indignant majority.
Even if the usual attacks on our maxim are rejected, the basic query remains. Why should “society” permit individuals to act according to their own dictates, even if the course chosen is one considered markedly evil or immoral? The reasons are identical with those which lead us to urge that economic decisions be left to private individuals rather than government, even when, in our estimation, not enough books and education and too many large cars and cigarettes are being purchased. While we may regret the result of freedom in particular cases, we hold that on balance the good will outweigh the bad.
Virtually all readers of a conservative-libertarian journal accept, to some degree, that aspect of Western political theory which has made it unique—the emphasis on what is broadly described as the “innate dignity of the individual.” This notion can only be given content if these individuals are free to make their own mistakes as well as to make “correct” decisions. Freedom of choice becomes either an intrinsic good or a necessary prerequisite for truly moral decisions. The Platonic tradition of paternalism, in which obedience and uniformity replace freedom as ultimate goals, leaves no place for an autonomous individual to whom is accorded the dignity and responsibility of making by his own decisions a success or failure of his life. If we agree that the “innate dignity” of an individual implies his right to make his own mistakes, this principle would nowhere be more applicable than in those areas of allegedly sinful acts which injure no one but the consenting actors.
A more subtle but probably more forceful argument is that developed by those writers in the Anglo-Saxon Whig tradition, which has received its most recent formulation in F. A. Hayek’s Constitution of Liberty. Writers in this tradition, who include David Hume and Lord Acton, argue that civilization will advance more rapidly and more satisfactorily if decisions are left to the spontaneous interaction of individuals acting voluntarily rather than to the edict of a governmental body with a monopoly of coercion. Even the great conservative Edmund Burke, who derived most of his political philosophy from this tradition, argued that, contrary to the latent totalitarianism of the French Revolution (which he successfully predicted would burst forth into actual totalitarianism), the inalienable rights of Englishmen provide that, “whatever each man can separately do, without trespassing on others, he has a right to do for himself.”35
This view is based on a pessimistic view of man’s nature and his knowledge, rather than an optimistic one, as is sometimes charged. Man’s ignorance of the factors of his environment and his inability to take into account more than a few facts at a time make it difficult enough for him to plan out his own life, even with his knowledge of his own desires and of those factors of his immediate environment which most directly affect his existence. To place such decisions in the hands of a central legislature or executive merely compounds a thousandfold this ignorance. The Authority not only has no way of effectively collecting and assimilating data on the desires of all those it controls, but it cannot assimilate the fantastic amount of other relevant data that individuals would use in making their decisions.
There was also no assumption that men were by nature good. On the contrary, defects in human nature would be magnified when persons were given extensive power of political coercion over others; this was pithily summed up in Acton’s warning about absolute power corrupting absolutely. They concluded that balanced progress could best be obtained by allowing human institutions to adjust to changed conditions and changed desires through a gradual process of free, voluntary interaction of individuals. Through trial and error this evolutionary process would reject what was found to be unsuited. This theory is, consequently, not built on an optimistic but on a pessimistic view of man’s nature and knowledge. It is only more optimistic than its “conservative” counterparts in that it holds that when men are given as much freedom as is possible while still providing for protection of innocent persons from violence, civilization will descend into neither chaos nor a grand Saturnalian debauchery.
While this position is most commonly associated with freedom in the economic sphere, it applies to all aspects of our lives which might come under central regulation, including our very value structure. As Hayek has noted:
It would be an error to believe that, to achieve a higher civilization, we have merely to put into effect the ideas now guiding us. If we are to advance, we must leave room for a continuous revision of our present conceptions and ideals which will be necessitated by further experience. We are as little able to conceive what civilization will be, or can be, five hundred or even fifty years hence as our medieval forefathers or even our grandfathers were able to forsee our manner of life today.36
Consequently, even our patterns of accepted morality should be open to some experimentation and change. It, too, in large part has been adapted through a continuous process of experimentation and evolution to suit the more basic problems of the times. Social pressure and the odium attached to conduct considered “immoral” are sufficient to insure a considerable degree of uniformity in moral conduct. However, if “immoral” conduct is not punished by the government, a few individuals will risk social odium if the incentive is great enough; as a result, there is room for some experimentation and gradual change.
It will be argued that, granted the general argument for freedom, certain immoral acts have no redeeming features whatsoever, and punishment of these acts can in no conceivable way impede progress. However, even if we can only see advantages in an ad hoc piece of legislation, we are much better off sticking to a general principle which bars all prohibitions of private immorality:
The argument for liberty, in the last resort, is indeed an argument for principles and against expediency in collective action . . . Not only is liberty a system under which all government action is guided by principles, but it is an ideal that will not be preserved unless it is itself accepted as an overriding principle governing all particular acts of legislation. Where no such fundamental rule is stubbornly adhered to as an ultimate ideal about which there must be no compromise for the sake of material advantages—as an ideal which, even though it may have to be temporarily infringed during a passing emergency, must form the basis of all permanent arrangements—freedom is almost certain to be destroyed by piecemeal encroachments. For in each particular instance it will be possible to promise concrete and tangible advantages as the result of a curtailment of freedom, while the benefits sacrificed will in their nature always be unknown and uncertain.37
We cannot tell in advance whether freedom in a given area will bring results which we or a later generation will consider desirable. If we could tell exactly in which areas beneficial results would flow from freedom, the general case for freedom would disappear, since it is the unforeseeable results of free interaction of individuals on which the case for liberty largely rests. Consequently, we may expect to be forced to put up with immediate results which we do not like if we are to consistently apply our doctrine. It is in the belief that on balance men will be better able to solve their problems if they are left as free as the necessary protection of others will permit, as well as out of the conviction that only maximum freedom of choice is consistent with our belief in man as a creature of inherent dignity and with moral responsibility, that we conclude that the sphere of private morality and immorality is none of the law’s business.
[* ] Robert M. Hurt is an Associate Editor of New Individualist Review.
[1 ] Thucydides, The Peloponnesian War, (New York: Random House, 1951) p. 104.
[2 ]Laws, vi., 780.
[3 ]On Liberty, (Chicago: Gateway, 1952) p. 119.
[4 ]Cf. Popper, The Open Society and Its Enemies, (Princeton: Princeton University, 1950), pp. 112-14, 165 ff., and Hayek, The Constitution of Liberty (Chicago: University of Chicago, 1960), pp. 164-66.
[5 ] Catholic intolerance in areas such as birth control and censorship has tended to obscure the facts that Catholic scholars are by no means agreed on many areas of state intervention and that the most restrictive moral legislation is often due to pressure from Protestant groups. An excellent book which represents the more liberal Catholic tradition is St. John-Stevas, Life, Death and the Law, (Bloomington, Ind.: Ind. Univ. Press, 1961). He concludes that birth control should not be outlawed in countries with large non-Catholic populations.
[6 ] Acton, History of Freedom, p. 55, as cited in Hayek, op. cit., p. 176.
[7 ] I have not included certain laws which raise complicated issues involving possible injury to third parties which cannot be easily answered by any general principle as to the right of government to regulate private lives. For instance, abortion raises the issue as to whether an unborn child is an innocent party that should be protected against murder, and polygamy and artificial insemination raise the question as to whether a future child should be protected agains the social stigma of “illegitimacy.”
[8 ] Tileston v. Ullman, 129 Conn 84 (1942), and Cw. v. Allison, 227 Mass 57 (1917).
[9 ] These ratios make a mockery of the notion that the statutes are designed to protect equally the integrity of the white and Negro races. A consistent application would require a person with less than one-half Negro blood to marry only a person of the white race.
[10 ] Green v. State, 58 Ala 190 (1877).
[11 ]Time, Dec. 27, 1948, p. 18. The police were informed by a relative who as a result of an old family feud, dug up Knight’s genealogy. Mississippi’s zealousness also extends to nipping the threat to racial integrity in the bud. Section 2339 (1959) of the Mississippi Code reads: “Any person, firm, or corporation who shall be guilty of printing, publishing, or circulating printed, typewritten, or written matter urging or presenting for public acceptance or general information, arguments or suggestions in favor of social equality or intermarriage between whites and negroes shall be guilty of a misdemeanor and subject to a fine not exceeding five hundred dollars or imprisonment not exceeding six months, or both . . .”
[12 ] Hales v. Petit, 1 Plow 253 (C.B. 1563).
[13 ] Assisting a suicide is only manslaughter in New York, and in Texas no crime is committed if the accused merely encourages or assists without actually killing the suicide. Many European writers accept the position of the Italian positivist, Enrico Ferri, who argued that, since a man has the right to dispose of his own life as he chooses, he has the right to consent to his own destruction by another. But Ferri’s suggestion has been adopted only in the Swiss Criminal Code, which provides that whoever assists the suicide of another commits no crime unless he is actuated by “selfish motives.”
[14 ] Fifty-four percent of Americans favored mercy killings in an Institute of Public Opinion Poll in the New York Herald Tribune, Jan. 17, 1937, but 46 percent of Americans and 68 percent of Britons favored it in a Gallup Poll recorded in the New York Times Index (1939), p. 1414.
[15 ] A New Hampshire case, State v. Sander, received nation-wide publicity in 1950.
[16 ] The proposed legislation wouild allow a patient to petition a court for euthanasia, provided he is over twenty-one, of sound mind, and suffering from an incurable disease accompanied by severe pain. After an investigation to determine whether the patient fully understands what he is doing and whether his malady is incurable, euthanasia would be administered before court appointed witnesses. While these proposals would avoid some objections to euthanasia—it could not be used as a result of a temporary whim, and a court would not have to rely on the doctor’s word that the patient desired death—this legal ritual might be viewed as governmental encouragement of euthanasia. Glanville Williams’ suggestion, that murder would be presumed and the physician would be required to show that the patient requested death upon mature reflection and was incurably ill, seems preferable.
[17 ] Additional objections are that killing violates the Hippocratic Oath, although the oath also requires a physician to relieve suffering, and that, as Chesterton has asserted, this might be extended to involuntary euthanasia in the future. The non-religious arguments against euthanasia are summed up in Kamisar, Minnesota Law Review, 42: 16 (May, 1958).
[18 ]Summa Theologica, ii-ii q. 64, art. 5.
[19 ] Fletcher, Morals and Medicine, (Princeton: Princeton Univ. Press, 1954) p. 181.
[20 ] Adultery presents a special problem because it is justified as protecting the spouse from injury. In almost every European nation, however, the civil remedy is considered adequate.
[21 ] Kinsey, Pomeroy, and Martin, Sexual Behavior in the Human Male, (Philadelphia: Saunders, 1948).
[22 ] Neff v. U. S., 105 F. 2nd 688 (1939).
[23 ]Newsweek, Jan. 8, 1962, p. 18.
[24 ] Ploscowe, Sex and the Law, (New York: Prentice Hall, 1951) p. 202.
[25 ]Drug Addiction: Crime or Disease, Final Report of the Joint Committee of the American Bar Association and American Medical Association on Narcotic Drugs (Bloomington, Ind.: Ind. Univ. Press, 1961) p. 165: “In terms of numbers afflicted, and in ill effects on others in the community, drug addiction is a problem of far less magnitude than alcoholism. Crimes of violence are rarely, and sexual crimes are almost never, committed by addicts. In most instances the addicts’ sins are those of omission rather than commission, they are ineffective people, individuals whose great desire is to withdraw from the world and its troubles into a land of dreams.”
[26 ] Roth v. United States, 354 U. S. 476 (1957). A letter by a Commander of the Catholic War Veterans illustrates the majoritarian and “low boiling point” attitude toward censorship: “The Illinois Department of Catholic War Veterans would like to go on record as opposing distribution of a book that shocks a judge the first time he reads it. Further, the Department would like to state for its members . . . that their standards of decency still do not accept the use of dirty words or the description of lewd and vulgar incidents into their homes. They have a right, therefore, to resent a book which brings these things into their community.”
[27 ]Ct. Kronhausen, Pornography and the Law. (New York: Ballantine, 1959).
[28 ] This, of course, does not imply that all acts which do directly injure innocent persons should be criminal. Vigorous commercial competition is desirable even though competitors are “injured” in one sense; many acts which result in injuries, such as hurting a person’s feelings, would not be made the subject of law by all but the most ardent statists. And most injuries will be redressed by civil damages rather than criminal sanctions.
[29 ] Black’s Law Dictionary gives this definition of proximate cause: “That which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.”
[30 ] Hayek, op. cit., p. 35.
[31 ] Buckley, Up from Liberalism, (New York: Hillman, 1959) p. 172.
[32 ] The articles by M. Stanton Evans and Frank S. Meyer in the Fall, 1960, Modern Age and by Murray N. Rothbard in the Spring, 1961, Modern Age illustrate how libertarian political philosophies can be based on a belief in absolute moral values.
[33 ] “Positivism and the Separation of Law and Morals,” Harvard Law Review, 71:593 (Feb., 1958).
[34 ]The Enforcement of Morals, (London: Oxford Univ., 1959).
[35 ]Reflections on the Revolution in France, (New York: Liberal Arts, 1955) p. 67.
[36 ] Hayek, op. cit., p. 23.
[37 ]Ibid., p. 68.