Legislating Morality

The expression “legislating morality” is often used as a pejorative. It’s been invoked to criticize Utah’s liquor laws, among other things. But are laws moral? Should they be? Our libertarian friends sometimes argue the only rule guiding lawmaking is whether the thing to be banned directly harms an innocent third party. But if a person desires to do something that harms no one but herself, she is free to do so. Or if two people wish to enter into an agreement with each other, there should be no law restricting that contract no matter what the agreement is.
This is the argument that would legalize things like prostitution and drug use. These are simple individual acts or agreements between consenting adults which harm no third party and therefore the government has no power to ban or regulate them.

Sounds simple enough, but is it true that these are just individual acts with no bearing on anyone else? Of course not. And to illustrate the point, we’ll use famed libertarian Robert Nozick. Nozick is the author of one of the foundational texts of modern libertarianism, Anarchy, State, and Utopia. In this book Nozick argued that if a man needed money he should be free to sell himself into slavery to get it. That this would constitute a simple contract, freely engaged in between two parties and so the government had no right to prevent it. You see, no third party is directly harmed.

However, in an interview later in life Nozick revisited his slavery argument, saying,

“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 I came to the conclusion that it matters what a country stands for. And so, even though this is a truncation of freedom of contract and the sacrosanct status, individual status, of contractors, I came to think there’s an importance of standing for freedom.”

It matters what a country (or a state, county, city or neighborhood) stands for. Laws are a key component of expressing that stance. And laws that seem to restrict freedom, such as a ban on slave contracts (even consensual ones), are precisely what preserve freedom. These basic realities are fundamental concepts to achieving the common good and protecting true freedom. Recognizing and applying them is a critical part of responsible citizenship.

Dig Deeper

Econtalk Podcast: Schmidtz on Rawls, Nozick, and Justice

Utah Citizen Network: Why Is The Government Involved in Alcohol Sales?

Utah Citizen Network: Why Doesn’t Libertarianism Work?