The Search for Liberty; Chapter Fifteen: Crime and Punishment

NB: All previous chapters can be found here.

John 8: 3 The teachers of the law and the Pharisees brought in a woman caught in adultery. They made her stand before the group 4 and said to Jesus, “Teacher, this woman was caught in the act of adultery. 5 In the Law Moses commanded us to stone such women. Now what do you say?”

7 When they kept on questioning him, he straightened up and said to them, “Let any one of you who is without sin be the first to throw a stone at her.”

9 At this, those who heard began to go away one at a time, the older ones first, until only Jesus was left, with the woman still standing there. 10 Jesus straightened up and asked her, “Woman, where are they? Has no one condemned you?”

11 “No one, sir,” she said.  “Then neither do I condemn you,” Jesus declared. “Go now and leave your life of sin.”

Apparently, this text was not found in the earliest manuscripts.  But it seems reasonable to conclude that it depicts behavior consistent with the Jesus we know from the Gospels.  Would we expect the sinless Jesus to cast the first stone, or for Him to advocate that the sinning and hypocritical Pharisees do so?

I have offered fourteen chapters for making the case for natural law and making the case that natural law is the necessary basis for liberty.  Finally, the chapter on integrating the non-aggression principle.  While the concept in this chapter is the easiest for me to grasp intellectually, it is proving for me the most difficult to put into words.  The entirety of the chapter can be summarized via the passage cited above.

Without going into details of a natural law ethic, it is clear that many violations of natural law do not at the same time violate the non-aggression principle:

The non-aggression principle is an ethical stance which asserts that "aggression" is inherently illegitimate. "Aggression" is defined as the "initiation" of physical force against persons or property, the threat of such, or fraud upon persons or their property. In contrast to pacifism, the non-aggression principle does not preclude violent self-defense.

I have often simplified this: don’t hit first; don’t take my stuff.  This, therefor, leads to the conclusion that under the non-aggression principle crime requires a victim, and that physical punishment can only be dished out for a crime.  Consistent libertarians would also apply this same ethic to actors in any government institution: agency for an action cannot be granted by one who does not hold a right to so act. 

But to get an idea of where natural law and the non-aggression principle might not be on the same page, consider the chapter titles from Walter Block’s Defending the Undefendable:

The Prostitute, The Pimp, The Male Chauvinist Pig, The Drug Pusher, The Drug Addict, The Blackmailer, The Slanderer and Libeler, The Denier of Academic Freedom, The Advertiser, The Person Who Yells “Fire!” in a Crowded Theater, The Gypsy Cab Driver, The Ticket, The Dishonest Cop, The (Nongovernment) Counterfeiter, The Miser, The Inheritor, The Moneylender, The Noncontributor to Charity, The Curmudgeon, The Slumlord, The Ghetto Merchant, The Speculator, The Importer, The Middleman, The Profiteer, The Stripminer, The Litterer, The Wastemakers, The Fat Capitalist-Pig Employer, The Scab, The Rate Buster, The Employer of Child Labor.

Block does not defend these from an ethical stance; he does offer that these would not be punishable under libertarian law.  I have no doubt that Block considered each in accord with the non-aggression principle and found these not worthy of physical punishment or an action permitting self-defense. 

Yet many of these, without doubt, violate what would be considered Aristotelian-Thomistic Natural Law.  We could certainly identify a community that accepted these behaviors as libertine; but could we also say that such a community would remain in liberty?  I think not for long.  Would we even describe such a society as one in liberty?  Maybe to some, but something akin to hell for many.

Of course, there are libertarian-consistent ways around this dilemma, this disagreement between natural law and the non-aggression principle – voluntary ways: a voluntarily-organized community is free to place any rules or prohibitions on behavior as desired by its members or by the underlying covenant agreements. 

Such a community is free to define rules and punishment fully in accord with natural law.  But this is secondary to my point: for a community to remain in liberty, it must respect natural law.  In other words, natural law is not optional if one is to consider liberty as the objective.

Alexandr Solzhenitsyn offered:

A society which is based on the letter of the law and never reaches any higher is taking very scarce advantage of the high level of human possibilities.

Humans are designed with a purpose, an end.  Is there a higher form of liberty possible for a human being beyond being free to achieve his purpose, his end?  Is it possible for a human being – or any part of creation – to be free or remain free if it purposefully acts contrary to its ends, contrary to the ends from which natural law is derived? 

Is a fish free when it escapes the confines of water?  “Oh, yes” – you will retort – “we must accept our physical limitations, just as a fish must.”  (I know that this statement opens an entirely different can of worms, I will only answer for now with Lewis’s Abolition of Man.)  Is a man free when he escapes the confines of an atmosphere that offers oxygen?  Of course not.  We know we cannot violate such physical laws and remain free.

But human beings are made for so much more than surviving in a physical place.  Aristotle and Thomas have offered us this.  Not even a moment’s reflection is necessary to understand and accept this – animal instinct is sufficient for non-human animals to survive.  Humans have been given much more than instinct; they have been given reason and a fully-formed consciousness.  To what end, if not for something beyond mere survival? 

If we do not accept that humans are made for something more than surviving, we have no basis for any comment on moral behavior – not even the non-aggression principle.  Instinct doesn’t lead us to even the most basic moral behavior.  See if instinct leads non-human animals even to the bare-minimum ethic of the non-aggression principle, let alone something along the lines of the Golden Rule.

But where does this leave the applicability of the non-aggression principle to a society that both lives under the natural law and desires liberty?  Again, from Solzhenitsyn:

I have spent all my life under a Communist regime and I will tell you that a society without any objective legal scale is a terrible one indeed. But a society with no other scale than the legal one is not quite worthy of man either.

By “worthy of a man,” consider that Solzhenitsyn is referring to a being having the potential of reaching the “high[est] level of human possibilities.”  Anything less is not worthy of a man – not as man has been created.  And consider further that the ultimate “liberty” is to be found in man reaching such a level; I have no better definition of liberty to offer than this – not when considering man’s nature and natural law.

Solzhenitsyn grew up in a society without any objective law at all – so he need not be lectured on the value of objective law.  Yet – despite his seeing the consequences of the lack of objective law – he offers that strict objective law is also not the answer.

The non-aggression principle is perhaps the most extreme and narrow example of objective law.  It offers no other scale than the legal one, and its legal scale is quite objective – only applicable to acts of aggression.  The non-aggression principle would not punish acts of Block’s undefendable actions, despite such acts limiting, preventing, and even destroying the possibility of man reaching his highest level of possibilities – in other words, despite such acts hindering or even eliminating the possibility of liberty.

Hans Hoppe addresses this issue as well.  He introduces a portion of the Ten Commandments – specifically the six that speak to man’s relationship to man; surely the Ten Commandments are foundational to the Natural Law.  Some of these commandments, of course, are not violations of the non-aggression principle, for example: honor your father and mother, do not commit adultery.  What does Hoppe have to say about this?

…this difference between a strict and rigid libertarianism and the ten biblical commandments does not imply any incompatibility of the two. Both are in complete harmony if only a distinction is made between legal prohibitions on the one hand…and extra-legal or moral prohibitions on the other hand…

Why does Hoppe bother with this?  Libertarianism has nothing to say about morality – at least nothing beyond the morality of don’t hit first and don’t take my stuff.  Apparently Hoppe does not find the non-aggression principle and libertarianism to be sufficient for liberty:

For surely, any society of people who habitually disrespect their parents and routinely mock the idea of natural ranks and hierarchies of social authority, which underlies the institution of the family; who pooh-pooh the institution of marriage and cavalierly regard adultery as inconsequential, fault-less, or even liberating acts; or who habitually scoff at the idea of personal honor and honesty and routinely or even gleefully engage in libelous activity, i.e. the practice of “bearing false witness against one’s neighbor” - any such society will quickly disintegrate into a group of people ceaselessly disturbed by social strife and conflict rather than enjoying enduring and lasting peace.

Of course, we have seen the same point made by Murray Rothbard:

What I have been trying to say is that Mises's utilitarian, relativist approach to ethics is not nearly enough to establish a full case for liberty. It must be supplemented by an absolutist ethic — an ethic of liberty, as well as of other values needed for the health and development of the individual — grounded on natural law, i.e., discovery of the laws of man's nature.

A perplexity: consensual acts in no way violate the non-aggression principle, yet consensual acts stand in the way of achieving liberty.  What is to be done?

I find only one answer, only one means by which to square this circle.  Jesus gave us the answer to this question, as offered at the opening of this chapter: advice and counsel, not physical punishment.  This is the means by which non-violent transgressions must be dealt with if liberty is to be maintained. 

Much easier said than done.  This requires a society that will value and defend such requirements, that will teach these to its young, that will reflect these in its institutions, and that will elevate these in and expect these from its (natural) leaders.

In other words, it is the Natural Law in the Aristotelian-Thomistic tradition under which we must live if we are to develop and maintain liberty; it is the non-aggression principle that is used to inform such a society when violations of Natural Law are deserving of physical punishment or are such that physical defense is justified.

Can we expect anything approaching liberty to develop in a society that does not value the ethics derived from natural law?  Look around you today, as we live in just such a society: do you expect liberty to spring forth from the society that you see around you?  To believe so is to put the cart of good law and liberty before the horse of good society and cultural tradition.

Conclusion

This is why I see the possibility of liberty only through a society that values natural law in its fullest – not merely the Silver Rule, but the Golden Rule.  It is in the institution of the Church – or Christianity more broadly and appropriately – where this foundation must be formed and maintained.

We are so far away from having such institutional support; instead – from today’s churches – we have support for endless war, torture, taxation, and spying; we have support for a warped view of social justice; we have the lack of responsibility reflected in “you’re OK just as you are” instead of a share of responsibility in  “take up your cross and bear the load.”  Liberty is not be found on the current path of much of mainstream Christianity today.

But I find no other way: individuals create and develop ideas, only institutions maintain these.  There was a time – despite its tremendous shortcomings – when the Church (or Christianity, more broadly) as an institution did just this.

Epilogue

There is nothing about the Natural Law or the non-aggression principle that defines or explains itself.  Both are subject to man’s understanding and application in the real world.  In other words, understanding and agreement on the concept is one thing, application is quite another. 

We are not done yet.