Intolerant Tolerance


Sex, Drugs, Death, and the Law, by David A. J. Richards, Totowa, N.J.: Rowman and Littlefield, 1982, 316 pp., $26.50.

David Richards has set out to provide a systematic philosophical and jurisprudential defense of the liberties that should attach to each individual's non-aggressive choices about sex, drugs, and self-willed death. Richards scornfully rejects the utilitarian defense of such liberties, which holds that it simply is not worth it to society to attempt to suppress activities such as homosexuality, prostitution, and drug use. He insists that personal freedoms are founded, instead, on the radically anticollectivist and anti-majoritarian basis of natural rights.

Moreover, Richards maintains that this radical natural-rights perspective must inform any correct reading of the Constitution. Laws that repress persons in their peaceful choices about sex, drugs, and suicide not only violate rights—they are also unconstitutional. Finally, Richards is sometimes eloquent in his account of the heavy costs imposed on peaceful citizens by our moral police and the politics of intolerance. What more could anyone ask for in the way of hard-hitting civil libertarianism? Lots.

Putting aside foundational and methodological difficulties, Sex, Drugs, Death, and the Law suffers from two major problems. The first centers on Richards's choice of a "right to autonomy" as the crucial relevant right protective of civil liberties. Autonomy is the capacity for the exercise of rational and self-critical choice. Richards claims that autonomy is violated by laws that make crimes of nonstandard sexual behavior, drug use, and certain decisions about the time and manner of one's death. But this is not obvious.

While such laws create barriers to acting on the basis of certain decisions, autonomy consists in arriving at decisions rationally and self-critically. The person who is forbidden to act on decisions so reached is not free—yet that person remains autonomous. Indeed, external barriers to action may sharpen and intensify a person's autonomy—as, say, in the case of Soviet dissidents. At the very most, external barriers violate autonomy only when the actions blocked would have been based on autonomous—that is, rational and self-critical-choice. So, at most, a right to autonomy would protect the acts of, say, reflective, self-creative prostitutes—but not the acts of unthoughtful, unimaginative prostitutes.

Of course, one might interpret autonomy in a less intellectual and inward-looking fashion—as just another word for liberty. But a robust right to liberty invalidates not only state interference with persons' peaceful "personal" pursuits but also state interference with persons' peaceful economic pursuits. And, for Richards, this will never do. He defends the choice of heroin use or suicide or even a career in prostitution as "a basic life choice" protected by the right to autonomy, but he would never grant that, say, the choice to include gold clauses in one's contracts or the choice not to be part of the Social Security system is "a basic life choice" deserving of similar protection. Only Richards's inward-looking sense of autonomy will have a chance of fitting with a constitutional right to privacy that protects "lifestyle" rights but not economic freedom.

But the real tragedy of Sex, Drugs, Death, and the Law lies in Richards's blurring of the distinction between the right to engage in an activity and the moral value or propriety of that activity. True liberalism strongly insists on this distinction. An individual must be free to engage in any nonaggressive act he or she chooses, no matter how immoral it may be in terms other than coercion against others. At the core of liberal tolerance is the idea that the law may only act against the special immorality involved in violating rights; all other acts, no matter how offensive or objectively immoral, must be legally tolerated.

Richards inadvertently betrays this liberalism in holding that the right to heroin use or to engage in prostitution or suicide depends on the goodness of these actions—at least as exercises of autonomy. This is why, throughout Sex, Drugs, Death, and the Law, Richards feels bound to argue against the immorality of the acts that he seeks to release from legal constraints. He feels bound to insist on "a transvaluation of values whereby many traditional judgments regarding the proper exercise of these life choices are no longer justified." Indeed, he feels bound to insist on these choices now being "perceived as affirmative goods."

Richards does note belatedly that not every exercise of a right need be accepted by everyone as morally correct. All he means by this, however, is that individuals may continue to invoke their subjective moral ideals to arrive at personal, idiosyncratic condemnations of actions that must be legally permitted because objective "public morality" affirms their value as expressions of autonomy.

The tragedy in all this is that Richards ends up sharing with the intolerants the crucial premises that if an act is objectively immoral it should be forbidden and that only if an act is not objectively immoral may it be allowed! Thus, he also shares with them the view that to decriminalize an activity is to withdraw any claim to its objective immorality. So, on this fundamental level, his book reinforces the intolerants' mistaken belief that the demand that they legally tolerate some human activity is equivalent to the demand that they accept as moral what they morally abhor.

This is not the way to build a liberal pluralistic social order. David Richards is often correct and insightful in his opposition to traditional moral judgments. But by linking the case for legal toleration to this opposition, he illiberally reunites politics and morals.

Contributing Editor Eric Mack teaches philosophy at Tulane University.