In spite of what the title of this article suggests, the characteristically Libertarian position—what is typically regarded as “the Harm Principle”—that all adult human beings have the right to do whatever they want as long as it doesn’t involve them visiting harm upon others is not one that I endorse. 

The assumption that from the enterprise of invoking “rights” alleged to be “Natural” or “Human” in settling moral issues there is much fruit to be had is correct: since the idiom of “rights” is, so to speak, “the English language” of the universe that is our contemporary political-moral discourse, commerce between agents is facilitated by speaking it; furthermore, the language of rights embodies a vision that is markedly simple in its essence.  Yet these fruits are in reality poisonous: like all monopolies, the monopoly on our public morality that the idiom of “rights” has secured has resulted in a waste of resources in moral reflection, and the simplicity that it supplies has similarly succeeded in drying up the moral imagination by closing it off to other and potentially richer possibilities to explore in accounting for our experiences.

The distinctively Anglo spirit of liberty that “the Harm Principle” intended to encapsulate is all but lost by its transformation into a species of absolutism.  The largely informal mannerisms, customs, and dispositions—i.e. the cultural particularity—from which it sprung and that is the necessary precondition of its enjoyment and conservation is traded for a rootless abstraction or “proposition” that, as a timeless doctrine, runs up against logical challenges that are, in the final analysis, insuperable.

That perhaps most Americans are unaware of it does not change the fact that the only liberty that we have ever known consists in the far reaching dispersal of power that our constitutional traditions have secured for us: the division between the federal government and the governments of the states; the sovereignty of each state over and against the others; the division of each government into three branches; and, as importantly as any of our other institutional arrangements, the institution of private property, are designed to preclude the formation of large concentrations of power.  It is in the interstices of this intricate constellation of “checks and balances” that our liberty is located.

To put the point even more succinctly, our freedom derives from the rule of law, for it is the rule of law that effects this wide distribution of power within which our liberty is to be found.  The criminalization of those activities, like recreational drug use, that have traditionally been regarded as “vices” upsets this distribution and, hence, our freedom, by insuring that ever larger concentrations of power will be formed. 

Yet it isn’t just an ever more powerful government that imperils our liberty.  The criminalization of vice empowers as well the criminal; it encourages outlawry and, thus, turning the law against itself, undermines the legal association for the sake of which law exists.  

The criminalization of drugs, prostitution, and gambling has given rise to black markets.  Since these black markets are the criminal’s oxygen, by legalizing these activities we drain the blood from his veins and divest him of every vestige of power. 

At one time, the Bootlegger was the emblem of the Outlaw, the Gangster.  But there never would have been any bootleggers without Prohibition.  The Drug Dealer is the archetype of the Gangster today.  Both are creations of bad government policy, but while it took the generation of yesteryear only a decade or so to appreciate the truth of what no less a figure, and no more a “libertarian,” than the Angelic Doctor, Thomas Aquinas, long ago discerned—the impulse to outlaw all evils creates even greater evils—we persist in our folly. 

The Bootlegger is no less a relic from a bygone era than the Knight simply because enough people realized that while alcohol consumption can ruin lives, the criminalization of alcohol consumption—through the seedy underworld that it engenders and strengthens—ruins more lives.  And what is true of the criminalization of alcohol consumption is at least as true of the criminalization of drugs and other currently criminalized vices.

The common objection that the legalization of, say, drugs, will result in an increase in usage is inconsequential for at least three reasons: first, it is an assumption; second, assuming as it does that legislators can alter the conduct of citizens at will simply by passing (or repealing) laws, it is rationalistic: the illegality of an activity may be a factor in accounting for why some people abstain from it, but surely it is far from being a decisive one; third, even if true, this disadvantage of legalizing drugs must be measured against, not some ideal standard of perfection, but the aforementioned disadvantages of criminalizing them. 

The impulse to criminalize vice is a function of a view of the state and government that we needn’t pursue here.  Suffice it to say, however, the road to viciousness is paved by the urge to legislate for Virtue.

Jack Kerwick, Ph.D.