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Libertarians, Business, and “Victimless Crimes”: A Contradiction?

March 24, 2008

While a few libertarians base their views strictly on moral grounds, the vast majority are at least willing to supplement any moral arguments with practical arguments about the ineffective or counter-productive nature of government action. When it comes to government regulation of the economy, such practical arguments often involve appeals to the deterant effect taxes or regulations can have on productive activity. If you raise the cost of doing business, Libertarians will say, and you discourage economic growth, as these increased costs will discourage people from engaging in otherwise profitable activity, to the detriment of society. The underlying assumption of such arguments is that people respond to laws raising the cost of doing something by doing less of it.

When the subject turns to so-called “victimless crimes,” however, the Libertarian argument seems to be exactly the reverse. Laws against drug use, say, are ill advised as they will not stop people who want to do drugs from doing so, but will only drive such activity underground. Here the operative assumption is that law cannot deter behavior, or get people to do less of something by making it more costly. Of course, libertarians do not make this argument about laws against murder, rape, or theft. In those cases it is assumed that the law does exert a deterent effect sufficient to justify their continuation. While not rising to the level of a formal contradiction, one might wonder what it is about things like prostitution, drug use, gun ownership, etc., that make them unique among all human activities in that they are unresponsive to changes in cost.

A sophisticated Libertarian can, I think, avoid this inconsistency through two considerations. The first is that the effect of a law on behavior is not an all or nothing matter. When a libertarian argues against regulation and taxation of business on the grounds that it will deter business activity, he does not mean to make the ridiculous claim that it will deter all business activity, only that it will deter some such activity. Likewise, an honest libertarian should acknowledge that laws against drug use, say, do decrease the total amount of drug use to some extent, even if (as is undoubtedly also true) many people will still take drugs even if illegal.

By itself, the fact that making a given activity criminal will not completely eradicate it is not a cogent argument against its being criminal. The fact that a law is not a complete success does not mean that it is a complete failure. Murder and rape still occur, despite being illegal, and no one considers this a reason to legalize murder and rape. The libertarian insight, however, is that certain activities become much more harmful when they are forced underground than they would be otherwise. This is because black markets, being unable to rely on the courts for protection of property and contract, are forced to employ private violence to “protect their rights.” The result, in the case of drugs, is street gangs at home and narco cartels abroad, with the resulting loss of life measured in the tens of thousands every year, many of them innocent bystanders. The large amounts of money made from the sale of drugs becomes a tool to corrupt the police and justice systems, and the resulting attempts to fight the drug trade often involve a loss of privacy and civil liberties on the part of the entire population, both of which contribute to a decline in respect for the law generally. A similar story, with varying particulars, can also be told for the other activities libertarians typically wish to see criminalized.

Whether these sorts of harms attendant on suppression are sufficient to outweigh any benefit that comes from suppression is, of course, an open question, and one that may vary from case to case. I happen to think, for example, that such a case is weak with regards to abortion (the idea that a market in murder would be more harmful in driven underground not seeming very plausible), strong with regard to drugs, and unclear with regard to prostitution. But the argument should at least suffice to acquit libertarianism on the charges of inconsistency.

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19 Comments
  1. March 24, 2008 11:16 am

    The other interesting question, I suppose, is whether there are rare occasions on which criminalizing something makes it more popular rather than less. The only example I can think of being prohibition — where it is at least claimed that drinking went up during prohibition, though I don’t know if I’ve actually seen data to substantiate that. (It could be that the consumption of alcohol went down, but the fact it was often being consumed in colorful speakeasies made it _seem_ more prevalent.)

    In that case, it would seem that prohibiting drinking created an alcohol blackmarket which was, in many ways, more attractive to people than the previous legal market.

    It seems, however, like that would be a pretty rare sort of situation.

  2. Blackadder permalink
    March 24, 2008 3:40 pm

    The evidence I’ve seen is that Prohibition did significantly reduce alcohol consumption, at least in the short term.

    If the demand for a particular activity is highly inelastic, then I can see how criminalizing that activity wouldn’t reduce its incidence all that much. But I would be skeptical of any claim that an increase in cost would lead to an increase in demand.

  3. March 24, 2008 4:04 pm

    Are you aware of any statistics showing the effect of laws criminalizing abortion on the number of abortions performed? The number of legal abortions in the US since 1973 is well known, but does anyone have a sense for how many illegal abortions occurred each year in the US prior to and also after Roe v. Wade?

  4. March 24, 2008 5:06 pm

    Blackadder, I use the ‘victimless’ crime argument myself. I also don’t think government should be in the morality business when there are no victims.

    Would you agree with me that a constitutional amendment banning gay marriage is akin to putting abortion rights into the Constitution ? Furthermore, would you agree with me that the government really has no choice but to allow gays to marry as well ? (that’s separate from the moral argument). I think the government has no business in restricting access to an institution based on sexual orientation. Churches do, certainly, but not the government. In addition, the argument of ‘defense of marriage’ are rather off the mark, since no one demands keeping straight people from marrying. Is it not in fact deeply un-American for bishops to argue that gays should be discriminated against by the state in matters of marriage and adoption ? They are perfectly within their rights to ban gays from church weddings, and here I’d oppose the state forcing anything on any religion. But, with adoption it is perfectly legitimate to demand a government-supported charity not discriminate. Either there’s equality before the law or there isn’t. Can’t pick and choose based on one’s preferences.

  5. Blackadder permalink
    March 24, 2008 6:12 pm

    Kyle,

    As with any illegal activity, one can only guess the number of abortions prior to Roe v. Wade. However, there is good reason to think that the number of abortions post Roe is significantly higher than when abortion was illegal. In 1973 there were roughly 750 thousand abortions in the U.S. (Roe was handed down in January of ’73). By 1980 that number had more than doubled. Unless one wants to say that Roe caused the number of abortions to temporarily fall (an implausible assumption) one has to conclude that legalization led to an increase in the number of abortions of at least 100%.

  6. Blackadder permalink
    March 24, 2008 6:23 pm

    “Would you agree with me that a constitutional amendment banning gay marriage is akin to putting abortion rights into the Constitution ?”

    I would not. Whatever one thinks of the Federal Marriage Amendment, it doesn’t really compare to creating a constitutional right for mothers to kill their unborn children.

    On the issue of gay marriage proper, depending on my mood, I will say that the government ought to get out of the marriage business altogether, which would make gay marriage a non-issue. What typically holds me back from this is a) pragmatism (if we can’t get the government out of the postal business the chances of getting it out of the marriage business are pretty much nil), and b) the fact that people not getting married and having children ought of wedlock leads to a whole host of negative social consequences (including growing dependance on the state), and in a society such as ours where traditional religious and moral customs have broken down some sort of state role is necessary. Once the state is involved, then I’m afraid making moral distinctions between approved types of marriage and disapproved types is unavoidable, and if such choices have to be made, I’d rather they reflect my values (which happen also to be the correct values) rather than those of, say, Gavin Newsome.

    The Marriage Amendment, as I see it, serves a useful deterrent function. The only way it would ever pass is if the Supreme Court declared that gay marriage was constitutionally required. The fact that the amendment is out there makes it less likely that the Supreme Court will do so.

  7. March 24, 2008 6:41 pm

    What I meant is that people try to get their hobby horses into the Constitution and that I oppose that regardless of the issue. Of course, one can also make the argument that gay marriage is a stabilizing factor for same-sex relationships. In California, domestic partnerships have basically the same rights as marriage. Stopping one step short is simply because of many people not wanting gays to be married. Factually, there isn’t much difference. Personally, I don’t see how my ‘uncles-in-law’ getting married would infringe on my rights in any manner. I’m basically uncomfortable with inequality. Whether one church considers homosexual relationships sinful and another one doesnt’, to me, is no legal argument. The state should not be in the morality business where no injury to others is involved. I believe that standing up for the rights of others can only be beneficial; in addition, I find it wrong to force one’s beliefs on others in matters of consenting adults. If one advocates Catholic values being forced on others (say, ban condoms), one may well find oneself on the receiving end when others manage to force theirs.

    In Austria, btw, a church wedding has no legal meaning whatsoever. One has to go to city hall to get married in the state’s view.

  8. March 24, 2008 7:43 pm

    Thanks for the response, Blackadder. If I read the link correctly, the increase in abortions from 73 to 80 is that of legal abortions. Of course, calculating the number of illegal abortions in US history would be an act of guesswork, but I wonder if anyone has ventured a reasonable guess.

  9. March 24, 2008 7:50 pm

    I am very much against giving the government the power to define marriage, or person for that matter, in the Constitution. The meanings of marriage and personhood may be things that the law should acknowledge, but not define. Once government is used to define marriage or person one way, then the meanings of such things are in its power to decide in the future. A dangerous legal precedent, that.

  10. Blackadder permalink
    March 24, 2008 8:19 pm

    Gerald,

    In no particular order:

    1. If the state declines to recognize gay marriage, this doesn’t “force one’s beliefs on others.” No one is required to believe anything if the state does this. Heck, people aren’t even required to do anything (which is more than can be said for most beliefs).

    2. In my experience, resolving not to force one’s beliefs on others is no guarantee that they will not try and force their beliefs on you. Often, in fact, it makes it more likely that they will do so.

    3. Equality is, I think, overrated.

    4. Whether getting one’s “hobby horse” enshrined in the constitution is good or bad depends on the horse. I’m glad, for example, that the constitution was amended to outlaw slavery.

    5. Whether or not the state should be in the morality business, the fact is that once it starts saying some relationships have state approval and some don’t, it is in the morality business, and so long as the state is in the morality business, I’d prefer it to be my morality.

  11. March 24, 2008 8:39 pm

    I’m against attempting to achieve factual equality, an equality of results – that’s fascism/socialism etc. You’ve written about that.

    I’m for basic equality. Slavery is different – since it deprives people of their liberty, thus making it unconstitutional. Gay marriage doesn’t deprive anyone of anything. Someone smoking weed at home doesn’t hurt anyone. And so forth. I’m very much a ‘live and let live person’.

    Btw, did you think the “Texas sodomy law” was unconstitutional ? I did. It’s not the government’s business what consenting adults do in the privacy of their homes. If you remember Santorum’s response, that was a true embarrassment.

  12. Karen permalink
    March 24, 2008 9:37 pm

    You might also consider things besides simply the number of people who engage in a given illicit practice. For example, illegal drugs have no standard strengths or ingredients, as opposed to legal alcohol, which has very specific and narrow quality requirements. In the case of prostitution, there is the problem that the women involved can’t rely on the police to protect them from violence from pimps and customers because they’ll get arrested.

  13. Blackadder permalink
    March 24, 2008 10:11 pm

    Gerald,

    The Texas sodomy law was pretty clearly constitutional, which is not to say that it was a good idea. There is a difference between a law’s being unwise or even unjust and its being unconstitutional.

    I’m afraid I don’t know what you mean by basic equality (I’m generally at a loss to comprehend statements talking about “basic x,” e.g. “the right to basic health care” etc.). In particular, it’s not clear to me how not having the state put its seal of approval on your romantic relationships constitutes a denial of basic equality.

  14. March 24, 2008 10:33 pm

    Basic equality … everyone is equal before the law…no discrimination based on sex…Bill of Rights …slavery being the opposite of it. As opposed to try and socially engineer equality of results.

    The argument is probably something like…The law offers a framework for contracts between people. Marriage is such a contract. It not being available on basis of sexual orientation is discrimination by the state. The state doesn’t discriminate in other areas either. Eg, people can adopt regardless of sex or orientation, obtain a loan, a government grant, what have you. I don’t see a legal reason why anti-discrimination rules would not apply in the marriage case when they do everywhere else. Apart from the fact that many still are uncomfortable with gay people. It’s like MM with Calvin for many people :P I don’t even blog about gay topics anymore cause I can’t stand the talk about “Sodomites” * and “crying to heaven for vengeance”.

    * obviously the actual Sodomites were presumed by Lot to be bi-sexual, why else would he have offered them his virgin daughters ? (niiiiice move, by the way. Just endearing. Of course those virgin daughters jumped Pa’s bones soon thereafter, so one wonders why they all didn’t get to STAY in Sodom for the fireworks :P )

  15. March 25, 2008 10:02 am

    Gerald,

    It seems to me that one runs into trouble defining marriage simply as a contract between two people. The reason why marriage has generally be considered an important social institution and has been limitted to being between men and women (even in societies which were very open to same sex intercourse) is that male-female pairings form, to put it crassly, a breeding unit. Though modern technology, adoption, etc. make it possible for some to imagine that these basic biological realities are behind us, it seems to me unwise to do so.

    Regardless of who or what people choose to besport themselves with for romance and satisfaction, the male/female pairing remains the basic unit for perpetuating the human species, and as such it seems to me entirely reasonable that it retain a legal recognition that other relationships, however close, do not receive.

  16. Blackadder permalink
    March 25, 2008 10:04 am

    Gerald,

    First off, it is not the case that there are no distinctions in the law based on sex. Women are not allowed to serve in combat ,for example, nor are they required to register for the draft. Title IX anticipates and encourages sex segregated sports teams. Many police and fire departments have separate physical requirements for men and women (indeed, they are required to do so by law). There are sex segregated prisons, bathrooms, affirmative action for women, etc. Someone could, I suppose, oppose all of these distinctions, but he would have to do so on some other basis than saying “the law says you can’t discriminate on the basis of sex” since the law is the basis for all of these distinctions.

    Second, while marriage is often referred to as a contract, it isn’t really that. With a contract, you can vary the terms as you wish, only parties to a contract are bound to it, and there is no requirement that the contract be ratified by any sort of government official. None of this is true for a marriage. Under current law, nothing prevents two gay people from entering into any contract they wish, just as nothing prevents them from getting marriage in a religious or other private ceremony; that state just won’t recognize the union as a marriage.

    Third, I used to live with a lesbian, and I assure you that my views on this matter have little to do with my being uncomfortable with gay people. If people responded to you discussing gay marriage on your blog by talking about “sodomites” and “sins crying to heaven for vengeance” then that is unfortunate, and if that has been your only exposure to the Church’s views on the matter, I can understand why it would make you uncomfortable. For a different perspective, you might want to look at the blogs of John Heard, and Eve Tushnet, among others,

  17. March 25, 2008 4:41 pm

    I would like to associate myself with Blackadder’s remarks. Except for the part about livin with a lesbian. Sodomite cooties are gross.

  18. March 25, 2008 4:47 pm

    I’m sure you can guess my opinion on Title IX, Affirmative Action, different standards for the same job based on sex, etc :o)

  19. March 26, 2008 2:49 pm

    The libertarian position is not a moral/consequentialist either/or proposition. It involves both components. Libertarians oppose drug prohibition both because it is immoral to impose moral judgements on others AND because it is ineffective (it invites criminals into the business etc). Even if it were true that drug prohibition laws were *somewhat effective* , libertarians like me would still oppose those laws unless their benefits were so huge as to outweigh their inherent negative component, i.e. disallowing people from doing what they want with their bodies.

    From my perspective as a pragmatic libertarian, all laws must be weighed with respect to this trade-off between maximising freedom but minimizing externalities. For the record, I support legalization (with regulation) of drugs, prostitution and other ‘victimless crimes’ based on my analysis of these issues.

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