There Ought Not to Be a Law

January 29, 2003

One danger of arguing for or against a position is that everyone thinks you are saying, "there ought to be a law."

Take the issue of discrimination on the basis of sex or gender as an example. If you argue against it, people assume you want to prohibit discrimination. If you argue for the right to discriminate, they assume you want to return to Jim Crow laws and force women back to the kitchen.

"There ought to be a law" is the unspoken message underlying much of public discourse. And that message makes people reluctant to listen impartially because agreement might lead to yet another regulation.

On most of the issues I address, my underlying message is "there ought not to be a law." This is because the issues involve personal ethics, not public policy. The difference: Personal ethics involve moral decisions concerning the use of your own body and property -- that is, virtue and vice. Public policy involves those actions that threaten or violate the rights of others -- that is, crime.

Lysander Spooner, a 19^th -century legal theorist, wrote a classic tract entitled Vices Are Not Crimes. He argued: "Vices are those acts by which a man harms himself or his property. Crimes are those acts by which a man harms the person or property of another." I prefer a different wording. A vice is the bad or immoral exercise of a right, for example, to conclude that blacks or women are subhuman and/or to refuse to associate with them. A crime is an act you have no right to commit at all -- for example, theft, murder, rape.

This distinction lies at the heart of the Bill of Rights, which codified individual rights -- the right of every individual to determine the use of his or her own person and property. The Bill of Rights protected personal morality by telling the government to mind its own business regarding matters of conscience. Consider the First Amendment, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press …"

The Bill of Rights doesn't say the "establishment of a proper religion" or "freedom of respectable speech." It protects the right to believe and to speak, even if the ideas and attitudes expressed are wrong, immoral. As Mark Twain would say, "Every man has the right to go to hell by a means of his own choosing."

James Madison, often referred to as the father of the Constitution, wrote in The Federalist Papers: "The diversity in the faculties of men, from which the rights of property originate, is an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government."

Today, the distinction between personal morality and public policy is collapsing. Much of the blame rests with political correctness. This evolved form of liberalism declares that certain ideas and attitudes are improper and, so, should be prohibited by law. For example, because it is improper to view women as inferior to men, discrimination against women should be prohibited. The law should encourage correct attitudes and discourage incorrect ones.

Political correctness stands in sharp contrast to the traditional American value of legally respecting, not restricting, everyone's right to their personal beliefs. The beliefs may be accurate or false, virtuous or vicious, but everyone has the right to use their own judgment to arrive at their own conclusions.

And the right to discriminate based on those conclusions comes from freedom of association. That is, the right to decide whom you wish to invite into your home. Whom you wish to hire as an employee in a business you own. And that decision should be left to the judgment and conscience of each human being. Not law.

The conflict between personal freedom and public policy arises when society strongly disapproves of certain moral choices, such as discriminating on the basis of race or gender. When a choice becomes widely viewed as a vice, society often tells the erring individual, "you have no right to reach this conclusion and live according to it." In other words, "there ought to be a law."

This approach assumes that personal freedom must be restricted in order to promote virtue: It assumes that the two are in conflict.

I believe the opposite is true. The freedom of individuals to choose, without intrusive state regulation, is the prerequisite of morality. A coerced "choice" does not reflect virtue, only compliance. In other words, you cannot force a person to be moral; you can only make them conform. True morality requires freedom and cannot exist without it.

Those who value virtue should be first in line to declare, "there ought not to be a law" governing vice.

What there ought to be is a return to non-legal remedies for vice: education, peer pressure, denial of membership, shaming, persuasion, excommunication, therapy, losing face, losing business, non-violent protest …

People who believe in both morality and freedom, as I do, should argue vigorously for virtue without ever denying the freedom of the individual to decide. Because without freedom there is no morality. Only social control.

Wendy McElroy