Can we legislate morality?

The libertarian way versus the statist way

A previous version of this article appeared at the Zero Aggression Project.

We’ve all heard the statement, “You can’t legislate morality.” Perhaps you’ve even said this yourself. But is it true?

After all, everyone supports laws against murder, theft, assault, and fraud. These are clearly areas where moral legislation has universal support. Everyone believes we can legislate against at least those specific moral violations, and yet…

The claim that we can’t legislate morality does seem to have some truth to it. What exactly is that truth? And how do we disentangle it from the fact that some kinds of morality can be legislated?

In addition, what exactly is meant by legislating something? What are laws actually for? What can they do and not do?

I think coherent answers to these questions could change the world in a profound and beneficial way. They illuminate the difference between the libertarian way versus the path followed by left-statists and right-statists (so-called socialists, liberals, progressives, and conservatives).

Statists of all varieties believe that the government, or what most of the rest of the world calls The State, can morally do things that individuals cannot. Libertarians reject this notion. We advocate an ethic much closer to that deployed at the Nuremberg Trials. If something is wrong for an individual to do, it’s also wrong for politicians, cops, soldiers, and bureaucrats to do it. When it comes to legislating morality, or not doing so, I think the key distinction libertarians make, and that others should adopt, is this…

There are two kinds of morality

The two kinds are social morality and personal morality. Let’s dig in and see why this is so and what it means.

Social Morality

Some moral principles govern how we treat each other. This is social morality. It includes standards like these …

The Golden Rule

Respect the conscience of others, as you desire them to respect your conscience.

That’s my version of the GR. I like it better than other versions, of which there are many.

The Zero Aggression Principle

Don’t tread on others.

This too can be stated in many different ways. Some people even call it the non-aggression principle. Jim Babka and I think the resulting acronym — NAP — is too lazy sounding. That’s why we created the Zero Aggression Project to promote the Zero Aggression Principle — the ZAP! The form of the ZAP we promote goes like this…

Don’t aggress against others, personally or politically!

The Self-ownership Principle

We all own our own lives. No one else can own us, or take the fruits of our labor without violating our self-ownership.

This idea is invoked in the slogan “My body, my choice.” It is the supreme anti-slavery principle.

The Homesteading Principle

When we mix our labor with land or raw materials we own the result. This is an extension of the Self-ownership Principle. It provides a moral basis for property rights.

We own what we labor to create, otherwise our self-ownership is violated. If someone steals all of our labor then we are slaves. But stealing only a part of what we create amounts to a fractional form of slavery, especially if it happens continually, as with an extortion racket (or taxation?), rather than episodically, as with a mugger or a burglar.

Legislating social morality

All of the above principles are similar and interlock with each other. They lead to laws against assault, murder, fraud, and theft. Nearly everyone supports these rules. Even Adolf Hitler thought it would be wrong for someone to kill him or steal his property. But these ideas are not the only form of morality. There is also…

Personal Morality

In contrast to the social morality that governs how we treat others, there are also moral values that govern how we treat ourselves. This includes what we ingest, how we work, how we worship, what we wear, and how we have sex. There’s far less agreement about this kind of morality. It’s highly personal. So I call it personal morality.

How do social morality and personal morality interact with each other? It’s perfectly obvious that laws against, murder, assault, theft, and fraud can be enforced by police and courts, but can the same be said for personal morality? Can we or should we use police and courts to control how other people eat, drink, worship, work, dress, or have sex? Here’s the crucial point…

Using police and courts to enforce personal morality contradicts social morality.

Imposing your personal moral preferences on people who have different aesthetic values requires you to initiate force against them. Please focus on exactly what this means. When people fail to comply with your moral dictates, you must…

• Fine them, at the very least
• Seize their property or arrest them If they refuse to pay the fine
• Injure them or kill them if resist the arrest or the property seizure

If you are not willing to do these things then you cannot enforce your law. This is the stark reality that lies behind every law.

Some degree of violence makes sense for enforcing laws against murder, theft, assault, and fraud. But does it make any sense at all for imposing one group’s personal moral code on people who have different aesthetic values?

Please notice the profound contradiction. You must use aggression to tread on someone else’s personal conscience and self-ownership. Doing that violates social morality, and is therefore immoral. Some people may think it’s sometimes a good trade to violate social morality in order to enforce some forms of personal morality, but beware…

What you can do to others, others can also do to you.

Please realize that laws may someday be enacted that violate your personal morality. And here we come to a great bifurcation in the human mind — a form of mass insanity that has murdered, maimed, and impoverished hundreds of millions of people over the course of human history.

Personal behavior versus political behavior

Most of us respect social morality in our daily lives. We don’t kill, steal, or defraud. Neither do we rape or assault. And we don’t use aggression to impose our personal morality on others. Only a few sociopaths violate these rules. But…

All of this peace, agreement, and good behavior completely vanishes when it comes to politics and government. Most people behave exactly like sociopaths when it comes to voting. We do not care how much we hurt our political opponents. It even brings us joy!

Republicans (right-statists) work hard to impose their personal preferences on Democrats (left-statists), and vice versa. Independents and libertarians end up caught in the middle of this circular firing squad, but even the independents (and some libertarians) will end up choosing one side or the other in this political war of all against all.

Most people seem to think it’s morally okay to use politics to impose their personal preferences on other people against their will. These impositions cover every aspect of human life. Not only what we wear, eat, or drink, or how we work, worship, or have sex, but also…

• What kind of medicine we can use
• What kind of insurance we must have
• What kind of house we can live in
• What kind of car we drive
• The way our food is handled
• How we plan for retirement
• The services we can offer
• The services we can buy
• And so forth and so on, without end

There is literally nothing we do that is not constrained by other people’s opinions about how we should live. There are thousands and thousands of pages of complex dictates that define what we should be allowed to do or prohibited from doing. Indeed, it sometimes seems as if everything that is not expressly forbidden is actually mandatory. The scope left for personal conscience and freedom is surprisingly small, when examined closely. We simply fail to notice it because we are so used to it. And here’s the really strange thing…

Most people actually endorse this system of mutual assault, even when it turns against them. It’s as if the entire world is suffering from Stockholm Syndrome. People may moan when they lose an election. They may even shout and cry when the force of “law” is used to oppress them, but they still accept it as legitimate. Why is that?

Magic!

People seem to think there is some special magic that allows voters, politicians, and bureaucrats to turn wrong into right. The wrong of stealing from people, or assaulting people, or killing people, becomes transmuted into mere law enforcement. But what exactly is the magic that causes this transformation? Where does it come from and how does it work, assuming it really exists?

Can majority rule provide the magic?

Let’s say you and I vote to take a third person’s money. We have a two-thirds majority. Does anyone think that makes the theft okay? Of course not. Majority rule is just another form of “might makes right.” That’s why the Founders created the Bill of Rights to limit majoritarian tyranny. The Founders somewhat understood that majority votes have no magic power to turn wrong into right.

Can large numbers of people conjure the magic?

Perhaps the group of voters in the above case is simply too small. Is there some magic in large numbers? If so, what’s the precise number of voters that are required to make wrong become right?

There is no such number is there? Wrong remains wrong no matter how large the majority is.

Does the magic happen if we get a benefit?

Does theft become okay if we get something in return? What if a majority votes to take our money so they can give us some product or service? Does the wrong of theft suddenly become right if we somehow benefit from it?

If that were true then companies could legally rob people so long as they gave them their products in return. That doesn’t work either, does it? Wrong doesn’t become right just because we get something in return.

Can our compassion and good intentions bring the magic?

What if the act of theft wasn’t for our own benefit? What if we were taking the money to provide aid to someone else? Can the wrong of theft become right if we’re doing it to help others? Some people may be tempted to answer yes, but the consequences could be dangerous. We can see why by considering the next possibility…

Does extreme need make the magic happen?

Many people need kidney transplants. And most of us have a second kidney we can live without. Would it be morally correct for a majority vote to take one of your kidneys against your will? Can the wrong of bodily violation be turned into a moral action if it saves someone’s life?

It can be easy to become confused about this. We might favor it if someone else’s kidney is being taken to save someone we love, but our views quickly change if our own kidney is threatened to save another person’s loved one. I think we can safely conclude that extreme need has no magic power to turn wrong into right.

Does a desire for human equality create the needed magic?

Many people see economic inequality as inherently unjust. They think some wealth should be taken from those who have more and given to those who have less. They call this desire social justice. The word justice implies that morality is involved. So, can a desire for economic equality turn wrong into right?

Please notice that social justice warriors do not also seek to equalize the amount of work, risk, delayed gratification, and responsibility people have to bear. This suggests that their desire for economic equality is slippery and perhaps even fraudulent. They don’t really want to equalize all aspects of economic life. They just want to redistribute the fun part, while leaving the burdens to other people.

Even worse, they want to transfer vast amounts of economic power into the hands of politicians. Is it really fair that 535 people in Washington, DC can dispose of several trillion dollars, while I am constrained to spend only what I earn? This level of economic inequality is vastly greater than the difference between me and Elon Musk or Jeff Bezos. I too would like to have trillions of dollars that I could use to re-engineer society as I think best. But the social justice warriors don’t want to equalize this kind of economic power. They actually want to expand this form of inequality.

But we shouldn’t stop there. Push the social justice argument to its logical conclusion. Mere material affluence is not the only important thing in life. It may not even be the most important thing. Why do the social justice warriors fail to equalize other valuable areas? For instance…

Is it really fair that so many people of below-average appearance are forever denied the pleasure of having sex with the top 1% of physical specimens? Should we impose a draft to force beautiful people to have sex with ugly people? Of course not.

And what about intelligence? Should more intelligent people have parts of their brains removed so that they will be equal with less intelligent people?

It seems to me, and hopefully to you, that a desire for human equality DOES NOT turn wrong into right. We can all be equal in our right to own our lives, our bodies, and the property we create, but no form of human equality has the power to turn wrong into right.

Can delegation cause the magic?

But what if we weren’t stealing the money or the kidneys directly? What if we were doing it indirectly? What if we were electing politicians to pass laws that order the police to do the stealing and kidney extractions for us? In other words…

Does wrong become right just because someone with a title, badge or uniform is taking our money or our kidneys?

Of course not.

Delegating the dirty work to others — to be performed at a distance and out of our sight — does nothing to change the immoral nature of those actions. It provides no magic power to turn wrong into right.

But what about social unity?

Many people wrongly assume that politics and government are a realm where we all join together for a common purpose. Under this view state violence is okay because it’s something we do together to achieve shared goals. But this is the same as saying that democratic governance amounts to the bludgeoning of the people by the people for the people.

In reality, our only shared common purpose is our universal commitment to social morality. In every other area of life there is no such unity. Indeed, there are as many different sets of personal moral values and preferences as there are individuals. So…

What should we do about this diversity? Should we celebrate it or try to crush it? Should we live and let live, or live and let die? This brings us to…

The Law

We are attracted to state violence because we see it as a universal solvent. If only we can force people to do everything our way, then every problem could be solved. But such violence is a problem in its own right, because it violates social morality.

In reality, no law can solve any social problem. The law cannot even prevent people from murdering, raping, stealing, and defrauding. That is not even the purpose of laws against murder, assault, and fraud. The true purpose of such laws is simply to provide a basis for due process.

Due process is the series of steps we go through when we think someone has aggressed against another person. These steps are intended to protect the innocent while hopefully punishing the guilty. And the end of this process is NOT a majority vote by citizens who offer their poorly informed opinions at a ballot box on the way home from work, but rather a UNANIMOUS vote by a jury who heard the evidence tested. Due process is almost the exact opposite of a majoritarian political process.

And this brings us back to our initial question…

Can we legislate morality?

The answer is yes for social morality but no for personal morality. Indeed, this distinction is how we can define legitimate governance (which currently exists nowhere on Earth) as opposed to aggressive tyranny (as represented by The State, which exists everywhere on Earth).

• Legitimate government only uses violence defensively, to counter aggressive actions such as murder, rape, assault, theft, and fraud.
• Illegitimate government (The State) uses aggression to impose personal preferences on peaceful people against their will.

Which path do you want to follow?

When you empower politicians to impose personal morality on people, the morality they prefer to enforce will RARELY be yours. Here is your only choice….

Do you want the law to enforce social morality, or someone’s version of personal morality? It cannot do both.

If you encourage politicians to enforce personal morality then they must tread on others. But….

If you restrict coercion to the enforcement of social morality, you can still use peaceful persuasion and voluntary cooperation to promote your own values.

Isn’t that the correct path? Aren’t peaceful persuasion and voluntary cooperation the only socially moral ways to promote your personal morality? Saying yes is the first step on the libertarian path. I hope to see you on that journey.

Copyright © Perry Willis 2023

Perry Willis is the co-founder of Downsize DC and the Zero Aggression Project. He co-created, with Jim Babka, the Read the Bills Act, the One Subject at a Time Act, and the Write the Laws Act, all of which have been introduced in Congress. He is a past Executive Director of the national Libertarian Party and was the campaign manager for Harry Browne for President in 2000.