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To Alter Or To AbolishChapter 17Morality and VicesWritten by Darrell Anderson. Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. Justice Louis D. Brandeis, Olmstead v. United States, 277 U.S. 438 (1928) Fundamental instinctive boundaries of human existence include the pursuit of happiness and a desire to prevent trespass. Trespass is an interpreted violation of one’s pursuit of happiness. To promote those desires, humans prefer mutual survival as a means to secure individual survival. Through that foundation humans adopt concepts about self, property, rights, contracts, and consent. Mutual survival means some restraint with respect to defining individual happiness and trespass. Thus, in every community of people there must exist a balance between actual practices and adopted beliefs.[1] No human is omniscient. Humans are ignorant — creatures of limited knowledge. Nonetheless, people create and maintain social systems based upon common pursuits, beliefs, and worldviews. Through such interactions various principles, rules, and expectations evolve. The foundations for those rules and expectations are dependent upon and unique to each society. Today, most humans concurrently participate in numerous societies. No human escapes the never-ending process of interpretation. Every human is a product of his or her environment. While pursuing happiness and exploring the universe people develop shared and common beliefs and worldviews. Decision-making can be a costly process. Commonly shared beliefs and worldviews reduce those costs and helps people live more efficiently.[2] Through those perspectives people try to promote mutual survival by establishing boundaries of expected behavior. Those perspectives not only create knowable boundaries with respect to the concept of property, but also create boundaries of action and limits of toleration. Such adopted boundaries often are called morals. What is morality? Morality is a difficult word to define because the individuals participating within any specific unique group agree to operate and abide by their own worldview and principles. No two societies are exactly alike. Some societies exist within other societies, some societies overlap, some societies are intellectually or geographically far apart. What is acceptable behavior for people in one group is not necessarily acceptable for others. Therefore, the individuals within each group embrace their own definition of morality and what is acceptable moral behavior. Morality: a collection of expected and accepted social behaviors (relational rules) with respect to certain beliefs and worldviews (elements), describing the tolerable limits (boundaries) to human actions within a particular society (system model). Because morals are based upon worldviews, and all worldviews fundamentally are based upon presumptions, morals are not instinctive or innate but learned through every day interaction with other people. The concept of morality provides a collective social conscience of sorts. Morals manifest themselves in various social, political, and legal beliefs; but often these interpretations are incorrectly presented as facts instead of ideas.[3] Such social systems are defined by the general opinion of what those individuals collectively believe defines happiness. Happiness is influenced by the relationships and interactions of humans, but ultimately is defined by each individual. That definition is partially based upon the concept of property titles — knowable boundaries. A sharp and fast line between law and morals or expected “good” behavior is contrary to the experience of humanity.[4] Unlike the knowable objective boundaries of property titles, morality depends upon subjective consensus approval. The concept of morality never will be exact because of so many widely held opinions and worldviews.[5] Therefore, humans must exercise caution when comparing legal boundaries to expected moral or social boundaries. Although sometimes overlapping, the two sets of boundaries often are not the same. Humans must distinguish between regulating expected morals within a specific society and protecting property titles, especially when social boundaries overlap and intermix. Because individuals generally form societies voluntarily, subsequent consent of actions often is insignificant with respect to expected moral boundaries within that specific society, but the concept of consent always is critical with respect to property title exchanges. Expected social behaviors often are a function of implied consent, but exchanging property titles is strictly a result of explicit consent. Both moral and legal boundaries are derived from the principle of pursuing happiness. The concept of expected moral behaviors is based upon common beliefs and worldviews regarding individual and mutual happiness. The concept of property titles is derived from an acceptance that every human — regardless of beliefs — has a right to survive and that right includes possession of resources to sustain life and the individual pursuit of happiness. The concept of morality is based primarily upon the concept of perceived mutual happiness. The concept of justice is based primarily upon the concept of trespass. Therefore, the concept of justice is primarily physical in foundation, the concept of morality is intellectual. The concept of justice is universal, the concept of morality is localized. The two concepts do not exist in a vacuum. There is a natural tension between the desire to protect the rights of individuals and to protect the overall security and health of the community. People recognize both the need for order and stability as well as the need for change.[6] That is not to declare that positive human laws are not based upon moral principles, only that regulating preferred behavior versus reconciling trespass are not always the same thing. Not distinguishing between legal and moral boundaries tends to stifle human progress. For example, in a theocratic society, enforcing legal penalties for alleged religious transgressions blends the two concepts together in a way that will, at some point, restrict open discussions and increase fear and uncertainty about personal human action.[7] Every type of society recognizes both legal and moral social system models. People enact rules based upon the broad philosophies of religion, collectivism, utilitarianism, egalitarianism, and individualism. In a society based upon religion, the distinction between legal and moral systems might be non-existent or imperceptible. In a society based upon collectivism, people likely see a legal system of property titles as having a secondary role to their moral system. In a society based upon utilitarianism, people likely see legal and moral systems only as avenues to pursue an arbitrary definition of the greatest happiness of all. In a society based upon egalitarianism, people likely see legal and moral systems as avenues to define equality. In a society based upon individualism, people likely create a significant distinction between the two systems. Although legal boundaries and expected moral behavior sometimes can mean the same thing, the terms are not synonymous.[8] For example, people might decide they have a moral “obligation” to care for the sick or clothe the poor, or that people should discourage activities such as smoking, drinking or gambling. Despite being seemingly unselfish and beneficial efforts, such “obligations” are not always based upon the concept of trespass. Thus, such “obligations” should not be enforced legally, but encouraged by persuasion and cooperation. Such moral “obligations” are not legal obligations but personal choices based upon beliefs and worldviews. On the other hand, many individuals believe they have a moral obligation not to steal from their neighbor, and that obligation is seen concurrently as a legal responsibility. Stealing is considered trespass and a violation of knowable property boundaries. The morality of each specific society influences what are acceptable and unacceptable behaviors. There is a difference between actual harm — trespass, and perceived unworthy behavior — vices. This distinction between trespass and vices has largely been forgotten in this age of dictatorial law and social engineering. Harm or the threat of harm is about violating knowable property boundaries and is an interpretive opinion about trespass. Vices are about expected or desired social behaviors and is an opinion based upon collective beliefs and worldviews within that specific society. Lysander Spooner attempted to describe the difference:[9] Vices are those acts by which a man harms himself or his property. Crimes are acts by which one man harms the person or property of another. Although Spooner focused in the proper direction in distinguishing vices from other acts, his definitions are incomplete. Vices might harm an individual in a self-inflicted manner or they might not. Likewise, a crime is a specific type of trespass — intentional trespass. Thus, Spooner’s definitions should be revised: Vices: acts where no trespass occurs but other people nonetheless find those acts undesirable. Trespasses: acts that violate the knowable boundaries of another individual — whether intentional or unintentional. Crimes: intentional trespasses. Accidents: unintentional trespasses. Not only do vices not harm other people or their property, vices contain within themselves no intent or willfulness to cause harm to other individuals. Vices are merely acts contrary to various desired social behaviors within a specific society. Vices do not necessarily represent a violation of knowable property boundaries — trespass. Vices merely represent contrarian behaviors. However, accidents still occur where trespass is the result. That an accident is an unplanned event does not necessarily mean an individual can claim no responsibility; nor can a victim always claim complete innocence either. Even without malice or intent trespass can still occur. The reason is that all people are continually making choices. Every individual is somewhat ignorant and nobody can predict the future. Thus, determining whether somebody got peanut butter in another person’s chocolate or chocolate in the peanut butter is sometimes difficult. That is one reason why legal systems evolve. The distinction between a vice and a trespass then, cannot be mens rea — intent or willfulness, but merely whether an individual or an individual’s property boundary is violated, encroached, and infringed. Unfortunately, with many human laws, not only is there no intent or willfulness to harm or trespass, but also there is no actual harm or threat of harm at all, despite an individual being accused of causing “offense.” Many, if not most so-called “crimes” today are by created by fiat and are entirely victimless. By definition, then, without trespass these acts are not crimes. Victimless crime: an arbitrary, fiat declaration of prohibited behavior. Unlike a true crime, there is no trespass of property boundaries, only an interpreted “breach” of mandated behavior. Thus, many statutory “crimes” today are alleged violations of legislated political and ideological rules, not property boundaries.[10] This is contrary to the definition that a crime is an intentional trespass. Worldviews and a desire for social attachment and kindred gives rise to law. The concept of human-made law is to regulate human action. Through law there are three types of human behavior that people within specific societies desire to regulate:
Vices lie in the realm of expected moral behaviors and involve no property boundaries, whereas trespasses lie in the realm of violating property boundaries. A challenge with lumping expected moral behaviors with protecting property boundaries is that most individuals are members of numerous societies, and each of those societies maintain their own set of rules of expected behaviors. Thus, most individuals simply scratch their heads when confronted with fiat dictatorial law. What exactly did they do to warrant legal action against them? Their only “crime” was merely crossing the alleged moral boundaries that other individuals subjectively established in the hopes and desire to engineer social structures as they saw fit, and without any reflection or concern about property boundaries. Indeed, most fiat dictatorial laws never consider the effects of property boundaries. That trespass does not occur is irrelevant to such laws. “Unworthy” activities are not crimes (intentional trespass) and such activities seldom lead to intentional trespass. When carried to excess some vices might provide opportunities to violate property boundaries. However, a restitutional legal system cannot be concerned with the vice associated with such a violation, or the potential for trespass, such laws are concerned only with the actual trespass and restoration of personal and social order. For example, “addiction” type behaviors such as drug consumption or gambling occasionally lead to theft. When theft occurs the violation is intentional trespass and nothing else. What was stolen must be restored. That a particular vice (behavior) was related to the trespass is not within the realm of such a legal system. At best, such behaviors only provide possible foundations for willfulness and intent because people choose to participate voluntarily in such behaviors. Willfulness serves only as a gauge for determining punitive damages. Surely each specific society of people must wrestle with how to discourage specific vices from disrupting social order, but individual members of a society and not the law itself bear that burden of change. That is not to propose that a punitive component of a legal system model should be ignored in the case of intentional trespass. Intentional trespasses are willful acts and should be considered a defiance of knowable boundaries. That philosophy is centuries old.[11] Punishment, therefore, serves as a potential deterrent if the punishment is meaningful and effective. Punishment becomes meaningful and effective if restitution is at the core of that punishment. Indeed, if intentional trespassers (criminals) knew that the consequences of their actions required “mere” like-for-like restitution to a victim, often there would be little incentive in such a system to deter future acts of intentional trespass. Thus, in acts of intentional trespass there should be a punitive component. Not only must there be an attempt to restore what was lost through trespass, but additional punitive compensation creates incentive not to trespass willfully. Punitive components must be a part of the restitution package.[12] In other words, punitive damages must be awarded to the victim, not to other third parties. Those individuals administratively helping to provide justice still would need to receive compensation for goods and services rendered, but the trespasser ultimately pays those fees. Administrative fees are separate expenses from the costs of restitution and punitive rewards. No punitive components are necessary for unintentional acts of trespass, but only restoration. Only if a trespasser willfully fails to provide restitution does that act then convert the situation into willful trespass or crime. Because trespass can be defined only by a victim, restitution also can be defined only by a victim.[13] To avoid temptations of absurd claims of restitution there must be limits to arbitrary definitions, and that is where human positive law can provide balance. Most people will be tempted to overestimate their claims of damage and underestimate the claims made against them.[14] Vices are a special class of behaviors that violate no property rights, whereas crimes are a special class of tort — intentional trespass. Thus, the concept of mens rea — intent and willfulness — is a useful element when trying to determine appropriate restitution because mens rea creates standing to demand a punitive component in restitution. However, mens rea serves no usefulness in distinguishing between a vice and a crime. Trespass deals with physical acts. Thus, “acts of the body” and not “operations of the mind,” are what should be “subject to the coercion of laws.”[15] Because of common beliefs and pursuits, participating members of a specific society do have standing to determine what is tolerable and intolerable behavior within their specific society. Members are at liberty to create boundaries of expected social behaviors, but only a specific individual can determine when trespass occurs to knowable property boundaries. People cannot assume all individuals will act to cause a property violation while pursuing their vices. Nobody can predict the future with absolute certainty. Surely any group of people who freely band together must wrestle with adopted moral choices, but those challenges are choices of interpretation, not law. The law itself is concerned only with legal duties and liabilities. Realizing that adopted moral choices are defined by each and every society in no way lessens the importance of such choices, but such choices are outside the law. That moral choices might clash and cause conflict also is something people must acknowledge, but the law is unconcerned unless trespass occurs. That some individuals will find repugnant the choices made by other people also must be acknowledged; but again, the law is concerned only with the two cornerstones of justice. To do anything less is to void the fundamental cornerstones of choice and liberty of action. Only when the freedom to choose causes trespass can the law be concerned. Being free to choose does not mean being able to choose without responsibility. All choices contain some degree of responsibility. Those choices might be legal choices or moral choices, or both, but exercising responsibility will be a part of that choice. No individual is an island — all choices have consequences. To argue that legal precepts are built upon fundamental moral precepts is arguably a true observation, but those foundations are found in the two objective cornerstones of justice, not in the subjective moral beliefs of people. Individuals, not law, bear the responsibility for discouraging activities residing outside the scope of property titles. As Thomas Paine observed in Common Sense: Some writers have so confounded society with [the process of] government, as to leave little or no distinction between them; whereas they are not only different, but have different origins. Society is produced by our wants, and [the process of] government by our wickedness; the former promotes our happiness positively by uniting our affections, the latter negatively by restraining our vices [trespasses]. The one encourages intercourse, the other creates distinctions. The first is a patron, the last a punisher. Paine’s use of the word vices is unfortunate. Pursuing a vice does not necessarily mean trespass against other individuals or property. Paine would have done better if he had used the word trespasses instead of vices. The goal of restitution is to restore personal order by offsetting an act of trespass. The primary goal of reconciling intentional trespasses is to restore personal and social order; and to secure, to a maximum extent possible, the liberty of all people to pursue their own happiness and enjoyment of their property. However, the primary goal of punishing vices is to deprive people of liberty of action, their pursuit of happiness, and enjoyment of property.[16] Within the concepts of being created equal, pursuing happiness, and preventing trespass, the goal of reconciling intentional trespasses to restore personal and social order is a knowable boundary. The goal of punishing vices to deprive people of liberty of action is filled with confusion, increases fear and uncertainty, and opens the door to conflict. Many human actions overlap because so many people concurrently participate in numerous societies. Members of a society are free to choose their moral boundaries, but unless trespass occurs no society of people are free to deprive non-participants of property. By nature, a generalized definition of happiness means that within the give-and-take process of defining that overall collective happiness, individuals within a group will tend to be utilitarian in their approach of providing that happiness. Many early societies were utilitarian in nature in order to promote mutual survival. Because ultimately happiness can be defined only by each individual, a utilitarian approach tries to create a one-size-fits-all definition — an impossibility. Through that effort people often forget that property boundaries are not necessarily the same as behavioral boundaries or expectations. Attempting to create a one-size-fits-all definition usually results in an totalitarian legal system that uses violent force and coercion to deny fundamental property rights in the hopes of promoting or creating a one-size-fits-all definition of happiness. The result is conflict. Because humans adopt interpretive beliefs and worldviews, they adopt moral systems. Moral systems are extensions of those beliefs and worldviews. Worldviews are intellectual mechanisms for survival. Most humans concurrently participate in numerous societies. In other words, there are many boundaries affecting all human interactions, and those boundaries are continuously changing. “Being in the neighborhood” does not always mean providing implied consent. Finis. Next: Chapter 18 — Old Foundations Anew Endnotes [1] Spencer, “The Great Political Superstition,” The Man Versus The State, p. 167. [2] Sowell, Knowledge and Decisions, pp. 100–101. [3] Sowell, Knowledge and Decisions, p. 6. [4] Zane, The Story of Law, p. 353. [5] Zane, The Story of Law, p. 352. [6] Berman, Law and Revolution, p. 21. [7] Maine, The Ancient Law, p. 14. [8] Barnett, “A Consent Theory of Contracts,” p. 296. [9] Spooner, The Lysander Spooner Reader, “Vices are Not Crimes,” p. 25. [10] Berman, Law and Revolution, p. 36. [11] Berman, Law and Revolution, p. 183. [12] Benson, “Restitution in Theory and Practice,” p. 78. [13] Benson, “Restitution in Theory and Practice,” p. 78. [14] Nozick, Anarchy, State, and Utopia, p. 11. [15] Livingston and Thompson, The Consent of the Governed, p. 108, citing Thomas Jefferson, Notes on Virginia. [16] Spooner, The Lysander Spooner Reader, “Vices are Not Crimes,” p. 34. |
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