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Should Laws Be Based On Morals?

March 13, 2013

This was the question posed to me (and others) this week. Are laws moral? Should they be?

A libertarian answered the question by saying some laws are moral, but the only rule to go by when setting laws is,

“Does the activity to be banned/regulated *directly* harm innocent third persons?”

On the surface, this seems like a solid answer. One I’ve probably agreed with at some point. If I want to engage in an activity which does no harm to anyone else, it is my right to do so. If I contract with another person, and the activity is agreed upon and mutually beneficial to the both of us, and this activity does no harm to a third-party, then we have the right to do so.

This seems pretty cut and dried, which is why it’s such an enticing political philosophy. It seems to be the foundation of libertarianism, and creeps into Republican rhetoric as well. But it leads libertarians to uncomfortable places. Prostitution, for one. If two people contract to engage in that activity, who else has the right to tell them they can’t? For me, it’s always been self-evident that prostitution should not be legal. But I never really articulated why. Ironically, it was a famous libertarian who provided me the means to explain.

In an econtalk.org podcast last May David Schmidtz and Russ Roberts discussed noted libertarian philosopher Robert Nozick, and his book Anarchy, State, and Utopia. Schmidtz then told a fascinating story of a dinner he shared with Nozick in 1999. In Anarchy, State, and Utopia, Nozick had argued that if a man needed money and contracted to sell himself into slavery to get it, then he was within his rights to do so. But at this dinner, Nozick said he had softened his stance on this point. Here’s how Schmidtz tells it:

I said that in Anarchy, State, and Utopia. Now fast forward, and I’m thinking about symbolic value. And I’m thinking: countries don’t just do things, like defend freedom or not, or secure freedom or not, secure freedom of contract or not. They also stand for things. And at some point, America’s supposed to be the country that doesn’t just defend freedom. It stands for freedom. And I thought, if this is going to be the country that stands for freedom, allowing the emergence of a class of slaves, that’s not a really impressive way of standing for freedom. In fact, it’s not a really successful way of standing for freedom. And so he thought, he said: I came to the conclusion that it matters what a country stands for. And so, even though this is, in a truncation of freedom of contract and the sacrosanct status, individual status, of contractors–he said–I came to think there’s an importance of standing for freedom; and in view of that I gave up on the idea that people should be allowed to sell themselves into slavery, even voluntary slavery.

Countries stand for things. Society stands for things. Simply saying, as long as an activity doesn’t harm an innocent third-party then that activity is fine, isn’t enough any more. Suddenly morality, virtue, comes into play. We can legislate away voluntary slavery because it violates our morality. Consequently, we have a basis for creating moral laws. When we are asked, should laws be based on morals, we answer with a resounding YES.

Perhaps even more fascinating to me is how Nozick’s thoughts on freedom, and protecting freedom, led him to advocate a public policy that many of his philosophical descendants would claim restricts freedom. In the above story he’s quoted as saying that creating a class of slaves not only would conflict with the idea of standing for freedom, but that “it’s not a really successful way of standing for freedom.” In other words, if we allow people the freedom to sell themselves, freedom is inevitably destroyed. Slavery, prostitution, drug use, alcohol abuse – all of these destroy freedom. As such, promoting their legality in the name of protecting freedom is counter productive. Why do we restrict or regulate activities which on the surface appear to hurt no one but themselves? Because freedom demands it.

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