Sunday, November 7, 2010

Pondering Victimless Crimes

James Peron

Sam Harris in The End of Faith, wrote:
It is time we realized that crimes without victims are like debts without creditors. They do not even exist. Any person who lies awake at night worrying about the private pleasures of other consenting adults has more than just too much time on his hands; he has some unjustifiable beliefs are the nature of right and wrong.
This is not to say that one should not lay awake at night pondering the deep questions of individual ethics. But with Harris I suspect we shouldn't spend much time, if any, worrying about the actions of consenting adults. Alas, there is still much to ponder and lie awake over.

To consider these issues we have to think about what "consent" means and what is, or is not, an "adult." Of course to merely debate those issues, in the hope of resolving them, leaves one open to the charge that you are promoting crimes against children, even though what you are trying to do is define "crime" and define "child" so as to avoid that very thing from happening.

Happily for the majority of issues in life such boundaries are easy to define. But always those pesky boundaries creep up to annoy and perplex us. Some resolution to these boundary issues is required. These boundary issues may well keep us awake in a pondering mood.

In addition the individual must constantly consider his, or her own ethics. That something is a victimless "crime" is not itself a justification to participate in it. I would agree that taking heroin does not violate the rights of others. Yet that does not mean that taking heroin is without personal consequences. Those consequences clearly put the matter into the realm of personal ethics. But it is not "other ethics," or those areas of morality that cover how people should act toward one another.

Personal ethics are matters of morality that do not violate the rights of others. It may impact on them, annoy them, cause them distress, etc., but it does not violate their fundamental rights. It might even be said to cause "harm" to them in some sense of the word.

This is the problem with what John Stuart Mill said centuries ago:
…the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the 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. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right... The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign. 
John Stuart Mill
According to Mill society does not have the right to infringe on the liberty of others except to "to prevent harm to others." But in some ways that exception is wide enough to drive through many a victimless crime law.

Is gambling a victimless crime? The first impulse is to say yes. But the advocates of "morality" and Nannyism would then argue that gamblers might be gambling with the milk money for the kids. If the gambler buys a lotto ticket then he isn’t spending the same money on food. You can only spend it in one place. Fundamentalists, like Billy Sunday, who helped pushed through Prohibition argued from precisely this premise. Sunday said:
The saloon is the sum of all villainies. It is worse than war or pestilence. It is the crime of crimes. It is parent of crimes and the mother of sins. It is the appalling source of misery and crime in the land and the principal cause of crime. ...I tell you, gentlemen, the American home is the dearest heritage of the people, for the people, by the people, and when a man can go from home in the morning with the kisses of his wife and children on his lips, and come back at night with an empty dinner bucket to a happy home, that man is a better man, whether white of black. Whatever takes away the comforts of home - whatever degrades that man or woman - whatever invades the sanctity of the home, is the deadliest foe to the home, to church, to state and school, and the saloon is the deadliest foe to the home, the church and the state, on top of God Almighty's dirt.
The whole argument for Sunday was that allowing people to drink causes harm. The drunkard husband, who spent milk money given him by his thrifty wife, harmed her and the children. It is harm. The Nanny advocates on the Left, and the moralists on the Right, both want state regulation to control the "harm."

Of course the husband who spends $10 on drinking or $100 on gambling has less to spend for shoes for his children. But does this then justify prohibition as the fundamentalists have proposed for generations?

This same husband could give $10 to the Red Cross and $100 to the Salvation Army. He will just as equally have less to spend on shoes for his children. It is his spending choices that determine where these funds go. There are individuals who neglect their families in the name of God. Families can suffer and be harmed when they are neglected and it doesn't matter if the neglect is for the pleasure of drink, or the pleasure of religion. If a crime of child neglect exists it exists regardless of the spending choices of the parent. Banning alcohol is no more the solution than banning charity.

What harm exists is caused by the neglect, regardless of the reasons for the neglect. And the law properly sorts out what recourses exist. The wife, who can work, may simply have to leave this vagrant and find her own means of support. She is capable of doing that. Children are another matter and it can well be proper for the state to enforce child support in these cases regardless of the reasons for the neglect. But banning free choices for all adults, because the actions of some adults harm some innocent parties, is not acceptable.

The wife may not have a "right" to her husband's income except by agreement. Children are another matter entirely. And required child support is appropriate where prohibition is not. Yes, the alcohol can cause harm. But so can anything.

A grocer is harmed by the presence of another grocer. Sears is harmed by Wal-Mart. The Republican Party is harmed by the existence of the Democratic Party. Others wanting to buy the same home and thus bidding up prices harm a family wanting to buy a home.

These are all legitimate activities that can harm others. But they are not crimes. Crimes are distinguished from vices, not by whether there is harm, but by whether or not they violate the life, liberty or property of others. A vice is that which a man does to himself to satisfy his own desires. A crime is that which he does to others, without their consent.

At this point socialists stick their nose in. They argue that man has to provide for others. One must labor for the benefit of others. To not labor is to steal from those who require your labor to live. The collective comes first. We have a "right" to health care, homes, education, entertainment, food, clothing, leisure, ad infinitum. The list of positive rights that socialists dream up is endless. In recent years they argued people have a "right" to telephones and Internet connections.

In each case the right of one person must be provided by the involuntary labor of other people. The concept of "positive rights" is one that turns every person into the slave of every other person and creates a class of slave masters who control the process of redistribution.

This applies to the issue of victimless crimes as well. Notice again what the Religious Right does. Their view of harm is one that is basically "positive" in nature. The man who drinks is not violating the life, liberty or property of his spouse. He is not hitting her, killing her or stealing her property. He is disposing of his own property as he sees fit, although most of us would agree he is doing so badly. The Religious Right has resorted to a socialist concept of rights. The man is obligated to provide for his wife they say. (Children are another matter because they are dependent beings that were created by the parent involved.)

That is the "positive theory of rights" in a nutshell—the obligation to provide for the good of others. The classical liberal view is one of a "negative theory of rights," that we should not be allowed to violate the life, liberty or property of others. We are not legally obligated to be good to them, just obligated to avoid making them worse off. (Moral obligations are a separate debate.) Is this, however, the harm principle in another guise?

No. Harm itself can be either the positive or negative kind of damage. If a grocer loses a customer he is harmed. But that is a harm that merely means he is not made better off. Not that he is made worse off. The customer takes nothing from the grocer, but merely stops providing sales to the grocer. But, the customer is under no obligation to be a customer.

Consider two actions. You will see that each has the same impact on the grocer thus causing the same amount of "harm." Every Monday a housewife comes into the store and spends $100 on food for the week. The grocer's income every Monday is $1000, $100 from this woman and the rest from other customers.

In scenario A the housewife does not come in one Monday. The grocer's income is $900 since he is missing his regular customer. He has clearly been harmed to the tune of $100. He has $100 less in the till no matter what you call it, or how you cut it.

In scenario B the housewife still comes in. So does a rather seedy looking gentleman who is quite adept at helping himself to money from the cash register. He easily slips out with $100 in stolen income. Again the grocer has been harmed. He has $100 less in the till no matter what you call it, or how you cut it.

In both scenarios the grocer is down $100. Both actions harm him in the same quantifiable way. But only one is a crime. The thief and the housewife both harm the grocer. But only the thief is the criminal.

The money the thief takes belongs to the grocer. It is the grocer's by right. The money the housewife doesn't hand over to the grocer is not his by right whether or not he has come to expect it. It is hers. In the one case the criminal makes the grocer worse off. In the other the housewife fails to make him better off. However, the harm in both cases is quantifiably the same.

This is also the case with much that is considered a "victimless crime." The real harm that drugs do is to those who take them. The harm that the prohibitionists discuss is not that sort of harm at all. It is the harm of refusing to contribute. It is the crime of the housewife above. The drug addict, by being an addict, allegedly fails to make a positive contribution to society. (This is clearly not true in most cases.)

It may be that some users steal to support their vice. But the reason for the theft is immaterial. It is no better if they steal to give an offering at church. It is the theft, not the reason for the theft, which is the violation of rights and the only matter worthy of consideration by the law. Stealing for good purposes is just as much a violation of rights as stealing for bad purposes. It is the action, not the ends, that is the crime.

Sometimes the issue of imposing costs on "society" is discussed. You will often find a claim that X causes $400 million in social damage per year. What does this mean? Take riding a motorbike without a helmet as an example. Usually the prohibitionists (in this case prohibiting riding without a safety helmet) will argue from both sides.

He will discuss the costs imposed by the cyclist on society in the form of direct costs if the cyclist is harmed. But the cyclist does not impose much cost on society. If society provides health care his actions will cost society, but those costs are not imposed by the cyclist, who may well oppose socialized medicine. It is the politicians who socialized the cost of riding without a helmet who imposed that cost on society, not the cyclist.

One could argue that a cyclist who has an accident may impose police costs. But all accidents impose that cost, not just those where a helmet is absent. Only when individual risk is socialized by the state do individual actions create a "social" cost. If this is a justification for Nanny or moralistic prohibition then all human actions are allowed only at the whim of the state and freedom is abolished.

Health care covers all of human existence and everything we do impacts health to one degree or another. If socialized health care justifies helmet laws it justifies Nanny banning smoking, drinking, fatty foods, watching too much TV, etc. It also justifies positive obligations imposed on individuals as well. It would justify the state forcing people to exercise or get 8 hours of sleep per night. In other words it wipes out individual freedom entirely.

This sort of "social cost" is one that is inherent in socialism and that is where the problem lies, not freedom. Allow freedom and remove socialized health care and no such "social cost" exists anymore. It is individualized costs that are imposed and those are imposed through individual choices.

The other kind of "social cost" is the equivalent of the housewife above. Here the socialists argue that the cyclist would have earned $1 million over the rest of his life. Thus society has been harmed to the tune of $1 million if the cyclist is killed in an accident.

Oddly this form of socialized cost is never counted toward welfare recipients. Each welfare recipient, who would have to work in the absence of the benefit, is just like the cyclist. Assume he would make $25,000 per year over the next 40 years. His "social cost" would be $1 million as well. Not only that, but he collects as well. And if he collects $25,000 per year in benefits he also consumes an extra $1 million, thus making his social cost $2 million. The advocates of socialism never discuss this sort of “social cost”.

The cyclist imposes no "social cost" at all. His health costs are imposed by the politicians, not by the cyclist. And he is under no more of an obligation to produce $1 million over his lifetime than the housewife is obligated to spend $100 each Monday at the grocery. In a liberal society the cyclist bears the cost and reaps the benefits.

Refusing to wear a helmet is a victimless crime in the same way that prostitution or drug use is a victimless crime. The liberal society would ban none of these. But neither would it socialize the costs resulting from these actions. The prostitute would have no right to medical care for VD; the drug user can't expect free rehab, or welfare checks so he feed himself. Nor would the cyclist be able to seek medical care at the expense of others, without their consent, if he harms himself while riding.

Only those actions that entail committing an action against the rights of the other would be forbidden. Only "harm" in the sense of violating the rights of others is forbidden. Harm that is caused by refusing to make others better off is not a crime. It is not a violation of rights. The Religious Right, whether it wishes to see it as such or not, is basically pushing a socialist concept of rights when it wishes to ban victimless crimes. I am sure that many socialists would be equally horrified to discover that they share so much common ground with their sworn opponents.

The solution is to understand the differences between "positive rights" and "negative rights" and then applying that to the "harm principle." That Mills did not differentiate between the two types of harm, illustrated here by the housewife and the thief, may well be one reason that he slipped into socialism in the later years of his life. But, I don't know enough to say whether that was the case or not. I merely offer it as a possible reason and to show why, once again, I think the intrinsic nature of the Religious Right is to move toward socialism despite their apparent hatred for that philosophy.

James Peron is president of The Moorfield Storey Institute.

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