Victimless Crimes: No Concern of the State

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The late, for many years book editor of NATIONAL REVIEW, lived during the night-time and slept during the day, and his disconcerting schedule caught his friends often deep into dreamland just as he was revving up his engines at 2 a.m. I remember once receiving a call at 2:30 in the morning from Frank, complaining, among other matters, about some young fellow who had written something that stepped over the boundaries Frank had drawn, boundaries separating the libertarian from the libertine. Frank Meyer knew a libertine when he saw one, and Damn It!, Frank said, that boy is a libertine!

What can we say of the libertine, that straw man whom traditionalists often set on fire when they start out to singe the libertarian? Professor Czeslaw Milosz, the Polish poet and critic resident now at Berkeley, suggests of the libertine that he knows that "divine and human laws cannot be overthrown effectively until they are attacked at their very bases, the point where they are automatically accepted by everyone." And so one of the Marquis de Sade's famous books, PHILOSOPHY IN THE BEDROOM, emerges as a treatise on murder. To overthrow divine and human laws necessitates a readiness even to commit murder for one's own pleasures, thus proving (as Professor Milosz observes) "that the fetters of a completely artificial commandment have been left behind."

Needless to say, public opinion did not cotton to De Sade's PHILOSOPHY IN THE BEDROOM. After all, society usually requires a cause, holy or otherwise, to make murder legitimate. Society recognizes, furthermore, that the written word does indeed have an influence on institutions and morals. De Sade, the total revolutionary, aimed at the overthrow of the very fundaments of his society. He ennobled—if that is the word—his venture, with an appeal to the private morality, or better, amorality of his personal pleasure. Whatever else can be said of that most inventive man, the Marquis de Sade, he did heighten society's perception of a crucial issue: the individual's prerogatives as opposed to those of the State, and of society.

This is a central problem. Stated otherwise, it is: how does one reconcile the rights of the person with the duties of government? Granting that the unfettered individual is the symbol of anarchy, and granting as well that the omnicompetent, omniactive, omnipotent State is the actualization of tyranny; how, then, does one discern and effect a realistic, and just, middle path? In short: how does one tame the State while not simultaneously setting loose the most craven tendencies of the individual? How does one liberate Mankind—I think the term is now Personkind—while not simultaneously emasculating the State?

One area of importance in discussing this subject is that of "victimless crimes." Even the radical libertarian Murray Rothbard, my colleague in the pages of REASON, who thinks that all matters of crime can be dealt with by private police agencies and private courts, does not require that we deny the distinction between crimes against individuals and victimless crimes. I think that one of the great contributions of contemporary American libertarian theory is its judicious application of certain tests to the concept of crime, leading to the conclusion that the only legitimate function of government in this arena is in protecting the individual against demonstrable physical aggression. Most emphatically, the libertarian—and in this I am of that breed—asserts that the State must not interfere in the area of activities characterized by an absence of unsought physical aggression. I say "unsought" and one must, if he be sharp, wince. Because this most specifically refers to the Marquis de Sade, whose genital heirs, along with those of his near-contemporary, the Austrian novelist Leopold von Sacher-Masoch, unite in unholy matrimony in sado-masochism, a phenomenon which requires sought physical aggression. This is not to urge sado-masochistic games-playing on anyone, but only to show that a consistent application of the test of unsought physical aggression as the criterion necessary for the intervention of some outside agency, let us say the State, would—must—exclude those instances where some people want to be hurt.

Let us stress the distinction: a crime with a victim is one where an unsought physical aggression has occurred; whereas, a victimless crime is typified by the absence of unsought physical aggression. Incidentally, I detest the word "crime" in this context, but the law is still the law, and so I talk here not of the world of present reality but of an ideal.

CONSERVATIVE REACTION In the April 1973 issue of the Young Americans for Freedom publication, NEW GUARD, I wrote a piece entitled "Decriminalizing Crimes Without Victims." An examination of the printed reactions to that piece is instructive. The letters column of the June NEW GUARD took after me both for being insufficiently libertarian and for being too libertarian; for improperly understanding, as a Mr. Richard Jannette of Rhode Island put it, that "freedom is not an absolute"; for imprecisely distinguishing between "decriminalizing" and "legalizing" various activities; for not caring very much about the connection, as a letter-writer phrased it, between immorality and illegality; for not knowing enough about marijuana to be able to urge the decriminalization of its use and sale and purchase; and so on.

I was spared the assault over the summer; communing with Nature on Cape Cod and directing my reading as well as my writing along other avenues took my mind off of victimless crimes. But the onslaught of the students trooping back to class in the autumn also brought the October issue of NEW GUARD, to whose letters column I turned immediately. A Mr. David Hyman of Paulding, Ohio, lumped me and William F. Buckley, Jr., together as "pseudoconservatives," and worse, as bedmates of liberalism. Mr. Buckley had allowed the subterranean matter of marijuana decriminalization to surface in his magazine, for which transgression he has yet to hear the end. He, for that, and I for my sins, are now, according to Mr. Hyman, "anathema to conventional conservatism." The rumor that Mr. Buckley, in atonement for his wickedness, has taken holy orders, is as yet unverified; as for me, if the term "conventional conservatism" be read as "authoritarian conservatism," I gladly bear up under the anathematization.

I would not bore the reader further with Mr. Hyman's letter except that it gets to the heart of this matter. Lumping the Brudnoy-Buckley cabal in with Mr. Richard Cowan, who wrote the pro-pot piece in NATIONAL REVIEW, Mr. Hyman says: "I can't accept Buckley's, Brudnoy's, Cowan's, et al., assertions for legalized prostitution…, 'decriminalized' or legalized pot usage, and so on. Their libertarian justifications"—here it comes—"often draw on ambiguous and questionable rights and freedoms which, formally, do not exist, and, I believe, in many cases should not."

What is a right? Is there such a thing as an "inalienable right," with which Man is "endowed by his Creator," among which are "life, liberty, and the pursuit of happiness"? Frankly, I don't know. I hope so. Were I theologically disposed, I would certainly want to believe in a doctrine that stressed the inalienable right of life, liberty, and property (property is what the Founders meant by "pursuit of happiness").

But this much I do know: in the real world—half or more of which is unfree and scornful of the very notion of individual rights—rights and freedoms exist when society allows them to exist. For that matter, such rights and freedoms exist everywhere, only when society allows them to exist. It isn't nice, but it's so. Thus, what the letter writer in the October NEW GUARD tried in his earnest way to say, is this: in a democracy where, alas, we have accepted the notion that the majority can determine almost everything for almost everyone, he, the letter writer, does not wish that the freedoms to make individual choices should exist in those areas where he does not think such freedoms should exist. That is his right, and, unfortunately, he has a majority of his fellow Americans with him, certainly a majority of those on the Right. But keep in mind that precisely because I cannot have recourse to Natural Law and Divine Law arguments, I must emphatically stress the problem as follows: mankind claims certain rights; mankind as individuals seek certain rights and liberties; and mankind as society grants them or doesn't grant them. That's the way it works in the observable world. Therefore, my argument is as follows: mankind ought to restrain itself in its collective role; mankind ought to make primary the individual, and work, as Frank Meyer worked for most of his last two decades to achieve, the "harmonious unity of the tensed poles of Western thought"—the love of liberty and the love of truth, which, Meyer said, "are not the hostile standards of irreconcilable parties; rather they form together the twin sign of any viable conservatism."

CALLING THE TUNE In that same October 1973 issue of NEW GUARD, Messrs. Goodwin and Sills took after me, in regard to marijuana decriminalization and other matters, for "swallow[ing] the heart of the modern liberal heresy," of which act of cannibalism and political deviancy I stand in terror. Why do the Messrs. Goodwin and Sills think that I have committed this unconscionable wickedness? Because the good writers believe that I believe that "the present laws cause more problems (coupled with organized crime's involvement) than legalization would." The writers observe that we're in a hell of a pickle, with rape up, prostitution arrests up, illegitimacy up, and the gods know what else up because of "a decade of sex education, pornography, and the heralded 'frank and open generation'." Or, to be more fair, they say that after a decade of all that, we have all the other horrors.

Randy Goodwin and James Sills would have us note that "one very big reason why people don't do things destructive to themselves is because society creates community pressure against such behavior. That corporate pressure manifests itself in laws, among other vehicles. If there is to remain anything of America for conservatives to conserve, we must have the courage to back this community disapproval of society's plagues. Never forget, fellow taxpayers, the two men warn, "that we pick up the mounting bill for the physical, mental and financial rehabilitation of drug-dependent, narcotic-addicted, and VD- ravaged individuals. We pay the piper and have some right to call the tune."

Precisely, and Amen. But let us ask in response: is there no difference between disapproval and illegalization? Is there no alternative, when faced by problems, to government financing to, ahem, solve…those problems? That long last quotation from Goodwin and Sills is a cornucopia of goodies: disapproval; community pressure; law; courage to disapprove; plagues; costs; and finally, if not in quite so many words: good grief we've got the problems and society has to deal with them and you and / pay for those measures so, golly gee, we must control the money! With which I agree; that is, with the notion that if we have to pay for something we surely should possess the right to have a say about what we're paying for. But must we really, a) allow government to tax us for such ventures; b) assume that government is the proper vehicle for dealing with such matters; and c) let government legislate on such matters in the first place?

No.

In the November NEW GUARD I received the ultimate compliment any writer can receive, short of money and a Pulitzer or a Nobel: infuriated readers, Mr. and Mrs. Rinella of Stamford, Connecticut, despair that they already renewed their subscription. Cancel My Subscription is the immediate response of those who have had it; the Rinellas have had it. Why? Because my article "should have been consigned to the rubbish heap that spawned it in a monumental feat of recycling." My views are "morally wrong and unacceptable. Said views could also nurture a disastrous and corrosive influence on many young high school members…who read" it. Alas, they forgot to send me the hemlock.

Obviously, teachers, preachers, writers, and lecturers are all engaged in the process of education, or should be. Some simply nurse their wounds over low pay or lousy reception of their truths, though I would prefer not to do that—here. I have quoted responses to my views not to enlist compassion or enflame hostilities, or to engage in some lesser masochism before charging off into some major sadism, but because I think it should be made explicit that what I say is far from universally accepted among my fellows on the Right, libertarians as well as traditionalists, although fewer of the former than the latter think I am an advance agent of Lucifer.

I would again draw your attention to the work of my friend and mentor Frank Meyer, whose achievement was his effort to work out a reconciliation between Burkean traditionalism and nineteenth-century liberalism, for which let us substitute the word libertarianism. When Frank called me that morning, at that awful hour, to talk (among other things) of his annoyance with the young man, I forget who, whose libertarianism had slid into libertinism, he was doing a characteristic thing: protecting the principles and exposing the heresies, checking the tensions which gave to his NR column its name: Principles & Heresies.

So must we all. So must we always know what our principles are, recognize our deviations from them, and know what our own principles and what our own deviations from those principles entail. The principle I stress is this: the proper function of the State is to protect individuals from unsought physical aggression, whether from aliens or internal denizens, and to establish a system, which we call Law, for adjudicating disputes between persons peaceably. I do not enunciate this principle because Locke did, or because Libertarians do, or because it is written in the wind, or handed down to me one night by God.

I enunciate it because it seems to me the best description of a just government that I can imagine, however ungainly put. Accordingly, the proper function of one who would indulge in political philosophy is to start out with, or at least somewhere early in his travels undertake, a determination of what is, to use John Stuart Mill's dichotomy, a "self-regarding" act and what is an "other-regarding" act, recognizing always that the line of demarcation is not as neat as that by which that 17th century Pope divided South America between his children the Spanish and his children the Portuguese.

It is not a simple business and there are problems. These are the problems:

First, ideas do have consequences. "Pornography," say, probably can influence behavior, although we aren't quite sure just how, whether for better or worse. And censorship, however much we may detest it in principle, may not always be worse than license. But: what price do we pay in liberty, in liberty of many kinds, for the admitted benefit of social cohesion and what we may perceive as an increase in Virtue (to use Russell Kirk's favorite word)?

My sense of what is Virtue, and your sense of what is Virtue, may differ.

And so, the second problem: Who is to decide what we may censor? Me? You? If not me or you, who? The Church? Which church? Elected officials? Which elected officials. For how long? For all time? For just the duration of their term in office? The judiciary? Which judiciary? Elected judges? Appointed judges? Supreme Court Justices who may sit until their Maker takes them into Heaven? To endorse censorship is, perforce, to acknowledge human censors as having the wisdom—and more, the power—to enforce their views on others.

Third problem: What phenomena can, at that fuzzy line between "self-regarding" and "other-regarding" acts, be placed neatly in one or the other category and thus dealt with properly? Murder is clearly "other-regarding," and Mill would allow, as would I, as would we all, that a murderer has committed an act of unsought physical aggression which is clearly not, by definition, a victimless crime. Rape ditto. Mugging ditto. Mutilation ditto. Immolation ditto. Ditto ad infinitum.

Now, how about the publication of a nasty book, its hawking on the street, and its thrusting into the hands of a passerby? The passerby can drop the book, unread, unglanced at, even. The passerby can "tune out" the hawker's hawking. However, it is simply not clear, at least not to me, that thrusting the book into somebody's hand, and even the nuisance of being in the area where it is hawked, do not constitute in some sense, "unsought aggression." Physical aggression-it is not. But aggression, unsought? Hmmm. And yet surely we can draw this line: to publish a nasty book is not aggression. And to sell it in a store that one must enter voluntarily, is not aggression. And to buy it is not aggression. Is its use, that is, its reading and derivation therefrom of some feeling (pleasure or outrage or anger or sadness or pain) aggression? If so, then the definition of aggression is so broad as to validate the censor's occupation, and we are all in the end enslaved. If not, then censorship of matter to be purchased and used by an individual is not acceptable in a society which accepts the fundamental principle I expounded earlier.

Fourth problem: when does a sexual act—for that is at the crux of much of this ferment over victimless crimes—when does a sexual act, voluntarily consented to, become an unsought act of physical aggression? Obviously, a sought act is never unsought, at least consciously, and obviously it does not come under our category of acts the State can, or at least should, concern itself with. But, say those who wish to keep the State in that realm, certain types of sexual acts are immoral. Others are degrading. And many conduce to a weakening of the Social Fabric, that immediate catch-all term for those who, in good conscience and bad, stress the traditionalist against the libertarian facets of our lives. And when our censorious types tell us that we must have censorship because of the young, I am reminded of a line in Philip Slater's book, THE PURSUIT OF LONELINESS (Beacon Press, 1970): "'For the children' is second only to 'for God and country' as a rallying cry for public atrocities."

The Fifth problem: What is the line to be drawn between the immoral and the illegal? It is a serious problem. Wilde, the beloved Oscar, observed in "Lady Windermere's Fan" that "I can resist everything except temptation." Me too. Again quoting Wilde—and an inability to quote Wilde should be a disqualification for voting—"We are all in the gutter, but some of us are looking at the stars." And I would urge that we not assume that he who discusses sexual matters in public is more in the gutter than he who does not. Our society has done some terrible things to us sexually. As Philip Slater writes in THE PURSUIT OF LONELINESS:

"In our society pleasure is allowable only as a means to an end which is itself a mere means. It must in some way or another yield energy for the economy. Thus direct sexual gratification is attacked, but symbolic sexual stimulation, in such attenuated forms as PLAYBOY, is acceptable. The attempt to gain simple, direct gratification in personal ways is punished more severely than robbing and swindling one's neighbor, which maintains the energy flow. Our society has developed a number of secondary scarcity mechanisms to enforce this priority. Pleasure is made scarce, for example, by making it illegal. This makes it expensive and more difficult to obtain, and forces people to compete for what would otherwise be plentiful. Making liquor, drugs, prostitution, pornography, or gambling illegal also opens up new career pathways for the aggressive and ruthless." (pages 90-91.)

Allowing for Slater's hyperbole, there is more than just a grain of sense in what he says. At bottom, American society is both terribly neo-Puritanical and simultaneously terribly licentious. It's either fattening or immoral—or illegal, the neo-Puritan bemoans of his pleasures. And he would enforce that deranged mentality on us all. Such, I fear, is a root of much conservative preachment about "morality."

Wilde also said that "there is no such thing as a moral or an immoral book. Books are well written, or badly written." Yet we don't really believe that, do we? Did he? "A thing is not necessarily true because a man dies for it," Oscar Wilde said elsewhere. And I'm not about to die for this view, nor am I sure it's true, but I think it is, and here it is:

It is best not to have law undertake to punish the "immoral" act, and best not to have law define as illegal those things which do not involve unsought physical aggression—in the area about which we are concerned here. Perhaps if someone can firmly prove a connection between a strictly immoral (but not illegal) act today and an illegal act tomorrow—"illegal" defined as I would have it defined—then we could say that an ounce of prevention is worth that damned pound of cure, and march into the quicksand of state regulation of victimless crimes.

The sixth problem: How can the State properly define its role vis a vis protecting people against themselves? A suicide, for instance, may leave a family bereft, and that muddies these waters. Let us take the single person, with no debts, obligations, or unfulfilled chores, who jumps off the bridge and perishes in the polluted river of your town or mine. If one is religious, the answer is obvious: a person may not take a life, any life, his own included, because it is the gift of God. But if one is not religious, and believes that a person's life is indeed his own, then what? Extend and complicate the matter a bit: can the self-same unfettered individual indulge himself in a drug, the use of which may make him loony, thereafter to be the ward of the State—meaning, of you and me?

Well, consider: those who say the State should not have any role in the cure of those who've become diseased, can answer simply: the guy has a right to be his own potty self—no pun intended. But the reason I define this as a problem is because it is not clear-cut. I'm not going to argue marijuana any more, one way or the other, owing to the fact that the weight of evidence, whatever right-wing journals say, is that the drug is just not more harmful than alcohol, and none of us is going to make a serious case for bringing back Prohibition. So I refer instead to other drugs. The person who objected to my recourse to the argument that it is just too bothersome to have the State get into all these matters, was correct in seeing that as a variety of what is called the "pragmatic" approach. But I disdain the title "pragmatist" and think such rhetoric explains nothing. Surely one can be practical as well as theoretical, no?

But again, what to do? One answer, mine, is that the State should be as restrained as possible in meddling in a person's right even to hurt himself. Let the individual choose his pleasures and his pains, his virtues and his vices, his success and failure, and let the State [expletive deleted]. To the extent that the State can protect us against unsought physical aggression, fine; let's hear it for the State. When, however, it seeks to protect us against ourselves, let us tell it to go back to printing money.

Seventh problem: where will it all end? Once it becomes the consensus of mankind, or let us say Americankind, that the State does not belong in the realm of victimless crimes, what will happen to the State? Will it, to make Marx's ghost happy, wither away? Hardly. Will it be enough, people ask, to do the things we want it to do? That's a neat little trick of bad debate, and let's be done with it. Of course the State won't be enough to do the things we want it to do if it eschews imposing morality while we still want it to do so. Accordingly, we have to want the State to bug out of such matters, not because we have lost all sense of right and wrong, but because we have decided that the government's role in dealing with acts that cannot be described as involving unsought physical aggression, should be nil. To some, such a course is pure libertinism. To others, who can recognize a philosophical argument for something other than frippery, it is at least untrammelled libertarianism.

But that is not what this, strictly speaking, is about. Were I an unabashed orthodox libertarian I would cease to call myself a conservative; I would cancel my own subscriptions to the right-wing mags, would yank my name off the masthead of those journals, and would perhaps ask my friend, Professor Rothbard, to adopt me and teach me the ways of anarcho-capitalism.

No, it is not that which I want, not yet, either for me or for us. I desire instead that we get on with the important business of considering—seriously, calmly, rationally, an alternative to the liberal State, that is, an alternative to Big Brother as Tarzan, swinging through the jungle rescuing us all from every danger lurking in the bush. Sure, there are kids, and kids aren't adults, and that's another problem, one I don't deny is a problem. But that's not what we are talking about. We are talking about citizens above the age of consent, whatever that age is, or should be. We are talking about individuals in a relatively free society who would like to be freer and would like their society to be more receptive to the legitimate calls for more freedom.

We are not—I am not—urging anybody to smoke anything, inhale anything, swallow anything, sleep with anyone, read anything; in short, I am not urging activities. (In my avuncular role, in fact, I often urge abstinence.) I am instead urging a halt to activities, activities of the State in meddling in our lives, to a degree at present unknown in these United States. I am no Utopian and expect no Utopia tomorrow, if ever. I am no songster singing the praises of mankind, pretending either to myself or to others that people will always act correctly if only left alone by the State. My sometime debate partner, the anarchist Karl Hess, can believe that if he likes, or can trumpet it for effect, if that's all it amounts to in the end. But I don't believe it for a moment.

Nor do I condemn out of hand those who are deeply concerned about the effects of a libertarian- conservative society on the nature of Man; they may be right and I, wrong. But I do believe that we can stand a much less active State; we can profit by some serious reference to those very few nations which have endured quite nicely in their social set-up, however they have succumbed to the lures of socialism economically—nations like The Netherlands, or Denmark-with a wholesale relaxation of government regulation over a wide variety of matters which we here still consider the proper business of government.

"The Youth of America is their oldest tradition," Wilde said; "it has been going on now for three hundred years." We are indeed a very young nation, albeit the greatest and, on the whole—thus far—the freest. We have made democracy work, but—I cannot resist temptation, and so I quote Wilde a bit more—"Democracy [may] mean simply the bludgeoning of the people by the people for the people." In short, democracy is not always best perceived as the power of the majority to do everything to everyone else. Maybe I'm all wrong. But Oscar said, and he was right, "On an occasion of this kind it becomes more than a moral duty to speak one's mind. It becomes a pleasure." It is indeed a pleasure to participate in the assault on Big Brother as Tarzan. Ill

This article is derived from an address delivered to a conference on "Privacy: The Rights of the Individual, and the Role of Government," Philadelphia, December 8, 1973, sponsored by the Young America's Foundation. Dr. Brudnoy, contributing editor of this journal, teaches history at Boston College and the University of Rhode Island. He also taught a course at Harvard's Institute of Politics last semester, entitled "Big Brother as Tarzan: a Right-wing Critique of the State." His anthology, THE CONSERVATIVE ALTERNATIVE, was published by Holt, Rinehart & Winston in 1973.