Some Libertarians Want to Legislate Morality, and Others Don’t

Now, it isn’t exactly clear what is meant by “morality” in this context. Sometimes, it seems that legislation against vice is what’s being singled out; other times, it seems like the objection is to the idea that the law ought to be justified on ethical grounds. In any case, the principle is frequently used to separate libertarians from conservatives, who, it is inferred, do want to “legislate morality.” The desire to make immoral actions illegal is being offered as a litmus test.

In that context, I want to discuss the label “libertarian,” beginning with the “legislating morality” litmus test. In doing this, it will help to examine what libertarians believe about the relationship between morality and the law. There are several positions libertarians have taken on this issue. I’m going to discuss several important and illustrative possibilities below; I do not mean for this enumeration to be exhaustive nor for the chosen examples to be very nuanced.

1.) All immoral actions, and nothing else, should be illegal. To arrive at libertarian conclusions from this position, a person would have to think that, for example, John Stuart Mill’s “harm principle” describes a system of complete ethics. Mill states the principle this way: “[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others” (1978, p. 9). Note that Mill specifically means for his criterion to determine whether or not it’s permissible to “exercise power,” i.e., political power, against someone. A person might believe the same thing about whether an act is ethical—no harm, no (moral) foul. I don’t think that’s correct, but I hope everyone will agree that it’s a perfectly reasonable thing to think if a person has arrived at the conclusion through careful reflection and not by merely conflating immoral things and illegal things.

2.) Some but not all immoral actions, and no moral actions, should be illegal. Some libertarians might think that the consequences of making some immoral thing illegal would be terrible. For example, suppose I think it’s wrong to shout racial slurs at people while they’re shopping at the grocery store. Not merely impolite, but morally wrong. I might nevertheless hold that the consequences of making it illegal to do that would be worse than the consequences of it remaining legal. I might fear, for example, that if you can arrest someone based on his or her speech alone, the government might simply deem illegal all speech hostile to the government.

Another example might be a person who thinks abortion is wrong, but thinks it should be legal because enforcing a ban would involve intolerable invasions of people’s property and privacy. That person might say that under a ban, police might have to investigate accidental miscarriages to determine criminal intent, for example.

3.) The law isn’t about morality in the first place; it’s about maintaining the peace. Another sort of libertarian might point out that at least in common-​law countries—like England and America—the law was not designed with an eye toward justice in mind. In fact, he might note that most of the law, at least the useful bits, was not designed by anyone! Instead, laws arose as people formed expectations about the future based on the outcomes of past conflict mediation. This position would be typified by someone like John Hasnas, who outlines the perspective in “The Depoliticization of Law” and elsewhere.

What we call the “common law” today evolved out of the arbitration of individual cases, and the evolutionary pressures were not so much aimed at justice as they were at producing rules that prevented costly violence in the future. As a consequence, then, the common law bans certain kinds of speech that would be likely to provoke violence (“fighting words”) but that fall short of being threats of physical harm.

A libertarian of this stripe would say that if there’s a place in the law for concerns of right and wrong at all, it’s as a matter of external criticism. Someone could argue that there ought to be cases where we abandon the peace-​optimizing rule for reasons of justice, for example. However, the law is not presumed to have justice as its goal in all cases or even most cases.

This sort of law system might be attractive to libertarians for a variety of reasons. It produces rules that overlap largely, if not exactly, with libertarian ideas about right and wrong, and it limits a judge’s ability to impose his will on society at large, since his decisions hold sway over only discrete interpersonal conflicts.

Those three rough examples will be sufficient, I hope, to establish that libertarians have diverse opinions on the relationship between ethics and law. What ties them together as libertarians is not a commitment to “not legislating morality;” some libertarians, at least, want to outlaw ex. theft because theft is wrong.

If you want to write them out of the movement, that’s your prerogative, but that’s not a particularly elucidating way to use the term “libertarian.” Likewise for attempts to say that only deontological anarchists and maybe some confused deontological minarchists are libertarian.

I also think it would be wrong to define libertarianism as being a set of conclusions about political philosophy, though libertarians are united much more by their conclusions than by their justifications for those conclusions. Rather, you have to talk about libertarianism as an intellectual tradition in a historical context. Roughly, that means the Enlightenment liberals and their intellectual heirs. You have to construe that group narrowly, because today more or less everyone’s political thought has been profoundly shaped by Enlightenment liberalism. So Rawls is out, despite the fact that he built a social contract theory that expresses many moral claims in terms of rights, which is all very typical of political thought in the Enlightenment tradition. On the other hand, a whole swath of thinkers is in, encompassing names like Rothbard, Friedman, Mises, Nozick, and, despite her protestations, Rand.

Where Hayek fits into a tradition started by the likes of Adam Smith, John Locke, and John Stuart Mill is a bit murky. My inclination is to say he’s on the outside edge, peering over the libertarian/​conservative border at Edmund Burke. That said, labels of this kind are only really helpful in helping us get our bearings: substantively, the question “Was Hayek libertarian?” is boring. How about we ask instead: was he right?

That’s the question I’ll be examining in my next few posts. Hayek frequently gets used as a bludgeon by different people in support of different and often contradictory arguments, and I want to make some progress toward clarity on what, exactly, Hayek claims about the role of morality, laws, and norms in society and what implications this has for Hayekian libertarians and libertarians of other stripes.