Such external human controls upon personal action represent the antithesis of liberty. This essay explicates a particularly surreptitious and dangerous means currently employed to dominate and command free men who attempt to act freely.
Contrary to the essential statist doctrine, men and women who believe in liberty consider human beings as purposive, acting individuals possessing an infinite web of motives and desires, drives and dreams. By our nature, then, we acting free beings want to choose and act individually as we assess our internal goals and personal values in light of the world surrounding us. Accordingly, we generally wish to make our own choices, and we dislike and distrust someone who seeks either to select for us or to foreclose our individual choice. The existence of this attribute requires the statist to employ deceit to achieve his goal of a complete command society. Hence, statists must lie, cheat, and steal. They must disguise their intentions by clever words and devious means. They must use such ploys because freedom-loving men and women will recoil and rebel at their illiberal schemes unless they are artfully camouflaged and charmingly packaged.
Human history records a single fundamental political and philosophical revolution in human action, the American Revolution of the late 18th century. Those revolutionary protagonists understood most clearly both the moral implications and the empirical value of individual choice-caused action and the continuing dire threat to liberty posed by organized force directing or foreclosing such personal choices. Those who constructed the Constitution of the United States wrestled with the design and implementation of a governing legal structure that would accommodate personal liberty and safeguard constructive human actors from needless and offensive state constraints. Two hundred twenty-five years later, we look back and see a continuing assault on liberty by elitists who believe that they know better than we how to live our lives and how we should act, choose, and behave. The record reveals many incremental incursions, some obvious, others obnoxiously devious and hidden, but none more malignant than the current ploy of using the criminal law to channel conduct that is essentially neither forceful nor fraudulent.
Consider this apt, frightening, and unrecognized example of a stealth assault on personal liberty. Current clandestine use of skewed legal principles in a manner discordant with traditional Anglo-American jurisprudence is undermining individual choice by making conduct disliked by the statist subject to criminal-law penalties, including fines and imprisonment, shunning and notoriety, thereby channeling conduct into the avenues desired by the social engineers who wish to fit us all into a Procrustean bed.
Understanding this sneak attack requires a brief primer on basic common-law legal theory. Fundamental formal analysis divided the common law into civil and criminal components. The civil law, in theory, dealt with separate and distinct disputes between individuals and groups of individuals, while the criminal law prosecuted individual violations of national and local statutes, penalizing personally harmful conduct against other human inhabitants, violations viewed concurrently both as an assault on the state and as an attack on the individual victim.
Malum in se
The brilliance of the common civil law lay in its development in an open-textured form. Thus, individual disputes were decided individually, on the preparation and presentation of a specific factual background to the individual disagreement, and application of sound legal principles to those facts, instead of the continental model of extended codes preordaining all kinds of human endeavor. While the courts tried to decide like cases in a like manner (creating and employing doctrines of stare decisis and res judicata, and varying theories of claim and issue preclusion), judges and juries could and did look carefully at the specific facts of each particular case, and judges could and did apply legal rules in light of those facts. The Roman influence in equity jurisprudence (constructed on statutory directives from a legislative lawgiver), commencing in the 13th century, modified the common-law tradition somewhat, as did occasional legislative-law interference, but the civil-law tradition remained and encouraged the development of the common law and supported the concurrent emergence and flowering of personal liberty.
To the contrary, Anglo-American criminal law consisted of rules (as opposed to orders) developed from a statutory and more limited base. Since the state prosecuted criminal conduct, and since it applied harsh and sometimes lasting consequences in a successful prosecution, a panoply of individual protections developed over the years, such as a right to specificity of charge, to a trial by a jury of the defendant’s peers, and to proof of guilt of the specific charge beyond a reasonable doubt and to a moral certainty.
In addition, the criminal law component divided into two disparate parts from early times: crimes fell into categories of malum in se (evil in and of itself) and malum prohibitum (wrong because the lawgiver says it is wrong). Legislation commonly penalized rape, robbery, murder, burglary, theft, assault, battery, and kidnapping as obvious examples of malum in se crimes. Most civil and virtuous men would consider those acts as heinous, as conduct that no proper society should or could permit, behavior that any organized state must outlaw if it is to survive and prosper for any length of time. Moreover, only a very few incompetent individuals would ever presume that committing those forbidden acts could be permitted and would go unpunished. In other words, members of society were on notice that one committed a malum in se crime at his peril, and that “every man is presumed to know the law.” Very importantly, malum in se crimes required proof of a moral component, that the defendant intended by his act to harm another person. Lack of a felonious intent, for example, led to the 19th-century insanity defenses; if insane, the actor could not intend to murder, and therefore should be committed to an asylum instead of a prison or the gallows.
Malum prohibitum conduct differed. The common law suffered the tatters of prohibited conduct that offended either the mores of the particular society or community or, more likely, the whim of the king or his cohorts. Blue laws, prostitution, Sunday laws, regulation of obscenity, and all manner of strange statutes dot the landscape of history. The most that can be said of this fact is that, blessedly, relatively few such rules survived long and, at least during the flowering of the United States, a more libertarian attitude generally limited the number and scope of such intrusions. More simply said, “mind your own business” became a byword as the young country grew and prospered, and by and large Americans became tolerant of their neighbors’ differences if they did others no harm.
Moreover, in general and most profoundly, even the run-of-the-mill malum prohibitum conduct possessed some semblance of a moral component, that is, that the act punished was conduct and consequence intended by the actor. The scarcity of such rules meant that most persons very likely knew about the particular local law that prohibited the proscribed conduct. Hence, most ordinary malum prohibitum constraints left negligent and unintended acts and omissions alleged to cause individual harm to the open texture of the civil law, to be decided on a case-by-case factual basis.
Dissimilar from malum in se crimes, malum prohibitum constraints circumscribe, define, and channel human conduct that can just as well be left to the individual actor. Consider the following simplistic examples. Sunday or blue laws are intended to enforce religious orthodoxy; absence of those regulations allows the religious and virtuous to keep their Sunday unimpeded, and also permits nonbelievers or different believers to live their lives as they think best. Both believer and nonbeliever can exist in community without harm or strife. Laws forbidding usury can be discarded, leaving individuals free to select with whom they do their business of borrowing, on what terms, and at what rate. Laws interdicting prostitution or unorthodox sexual activity may be forgone without requiring anyone to engage in, or refrain from, adult consensual sexual conduct. A society can endure and prosper in the absence of such restraints on personal choice.
Without fanfare, the past dec-ades have witnessed an almost silent increase in malum prohibitum “crimes.” In virtually all cases, conduct that could be and should be unrestricted unless forceful or fraudulent is forbidden by busybodies who persuade thoughtless legislators to authorize criminal penalties for acts or omissions contrary to the prescribed rule. Consider some of the following common instances.
Possession of pornographic images represents a ripe controversy. One certainly can make a case for barring mistreatment of children and disabled adults, whether that mistreatment is sexual, emotional, or physical in nature: when one cannot consent meaningfully, the law correctly infers nonconsent, and such untoward conduct becomes assault, battery, rape, false imprisonment, or fraud, malum in se crimes in any civilized society. However, if one privately views “dirty” pictures on a personal computer, why should the criminal law apply? Some members of society might consider such conduct odious or repellant, but a free society must make room for different or unusual conduct that does not adversely affect the equal, reciprocal rights of others.
Sundry examples arise in the context of investment, banking, and transactional enterprises, where the traditional concept of punishable fraud has been so stretched out of shape as to bear scant resemblance to its former self. Customarily, proof of fraud required an intentionally false and dishonest statement of fact designed to mislead the opponent, and which in fact did mislead him to his detriment. Moreover, the misled party must have exercised basic common sense and elemental intelligence in protecting himself in the marketplace. However, with amelioration of that original concept, and the concurrent growth of a dumbed-down public produced and ensured by compulsory state institutions of public indoctrination, those who sell securities or other business interests often find themselves defending both criminal charges and civil claims when an investment fails or the gain disappoints. Purchasers of products or business interests conveniently forget that some products can injure and some investments can fail, and that mankind is particularly inept at predicting the future. And when a gang of disappointed buyers or investors conspire in a class-action setting to charge the seller or the promoter or the banker or the advisor with “criminal fraud,” defense against such a mighty state-funded prosecution is costly and the outcome very uncertain.
Manufacturers of perfectly lawful and useful products also find themselves targets of the new and enhanced criminal law. For decades the civil law has been bloated with strange and thoughtless legal theories to mulct the producer. Market-share and enterprise-liability contrivances demonstrate some of these assaults on the citadel of production, doctrines that enable disappointed or greedy consumers to collect inflated money damages without any showing of traditional fault and causation. The concurrent growth of punitive or exemplary damages — which deserves a separate analysis as to both its dubious antecedents and its deleterious economic effects — affords an additional means of legally mulcting the productive and creative person and entitling those who delight in sloth and victimhood.
The altered concepts enhance liability for the creative and productive class, but at least they pay lip-service to a continued separation of traditional civil and criminal components of the common law. In contrast, the new malum prohibitum crimes make no such pretense. Instead they apply criminal penalties to productive behavior. For example, employers may be fined or imprisoned for “unlawful hiring”; that is, one who produces a perfectly good, useful, and legitimate product or service risks criminal sanctions if he hires a person and the state does not approve of the particular worker, normally a person who has not become a legal resident of the country. It does not matter that the worker and the employer are acting nonviolently and nonaggressively, or that they are making a useful good or are providing a desirable service or are developing important ideas; the charged employer goes to jail.
Consider another example increasingly marring the landscape of commerce today: an owner or manager or other executive of a legal and useful business enterprise may face charges of manslaughter or even second-degree murder if a worker dies on the job. All that is required is for the legislature to decree that the business or occupation involves “unreasonable risk and danger” or to create some other verbal concoction denoting enhanced possibility of harm. This is nonsense: danger lurks in all human endeavor and unless the manager or owner coerces the employee in some real fashion, both parties ought to recognize and assume the ordinary and common risks that attend human life.
A current ridiculous proposal deserves unmitigated ridicule. The Arizona legislature is considering a bipartisan bill that would apply criminal penalties when a person employs words on Facebook or Twitter that another person might find “annoying” or “offensive”! What happens to freedom of thought and expression? Whither unpopular ideas and cutting-edge theories, and open debate in the cauldron of public discourse? Castration of discussion ensures the demise of any advance of civilization, inasmuch as forbidding “annoying” or “offensive” challenges to established idols and ideas mandates that civilization will remain stuck in the mud of existing concepts, deterred from any creative change for the better. Nothing could chill common discussion more than using the amorphous measures of “annoying” and “offensive” to punish words and thoughts; after all, few more-subjective terms exist in the English language.
Moreover, the more-standard criminal law itself participates in this burgeoning development of new and unusual crimes. Consider the ascendancy of “hate crimes” that lead to enhanced penalties for common malum in se offenses. In this world of new-speak, if an assailant beats a victim, he commits a simple battery, an unwanted touching of the body of another; but if the victim belongs to a selected different race, religion, creed, culture, or some other differentiating feature du jour from the attacker, the state now converts a simple battery into a dreaded hate-crime battery, and upon conviction the assailant receives a greater penalty. Apparently, rape, robbery, and murder hurt much less when the assailant does not hate you.
Finally, even the penalty phase of criminal-law sentencing participates in channeling human conduct in accordance with the mandates of the social engineers. Instead of the common fines and imprisonment, judges now add or substitute sentences of “community service”; that is, they assign the convicted man or woman to work without recompense for favored programs and places and institutions. Interesting to note, I look in vain to find anyone sentenced to study the pursuit of liberty in the mode of the Founding Fathers, or to read Economics in One Lesson, or to go to work for a living. Somehow, the “community service” seems always to comprise some favorite institution or issue of the sentencing jurist.
The death march toward extended criminalization of productive conduct will continue unabated until citizens recognize the demon for what it is and rebel against this mongrel concept. Until that time, we will continue to step through Mr. Carroll’s Looking Glass into Mr. Huxley’s Brave New World.
This article originally appeared in the October 2012 edition of Future of Freedom.