I would like to put forth the notion that morality and legality, while containing overlap, are actually two different things, such that libertarians (when speaking about liberty) should only be concerned with the latter and leave the former to other individuals at other times. This is not to dismiss the value of either field of study, but only to suggest that the two are distinct enough to generally require a narrowed focus on one or the other (just as biologist and chemists hold different meetings, read different books, teach different classes). And the way I would like to do this is to use a well known (perhaps the most well known) example of morality and inverse it slightly to show the demarcation between morality and legality.
Morality: Do unto others as you would have them do unto you. It’s the most famous phrasing of the most underlying principle of all morality. The idea of morality is to treat others as you yourself would like to be treated. If you wouldn’t generally liked to be lied to, stolen from, spat upon, then don’t do these things to other people. It’s such a simple idea that it probably lies somewhere deep in our ancestral past (even chimps and apes appear to follow the principle). And I claim that this is the sought after “ought” inherent in all morality — this provides the impetus for action.
Legality: Do not do unto others as you would not have them do unto you. And this is what I consider the fundamental principle behind what all laws should be. All laws essentially restrict some kind of meta-untamed ‘freedom’ that exists in the ethereal ‘state of nature’ of the olden philosopher (I happen to think that the term ‘freedom’ here is often times unjustly associated with what we take ‘freedom’ to mean now, but that is a discussion for another day). In that sense, laws restrict what people would otherwise be “allowed” to do. A law like “do not kill” restricts the ‘freedom’ (see above parenthetical comment) of murderers. “Do not steal” and “do not rape” do the same to thieves and rapists. Hence we see that all laws should be negative laws, laws against certain actions — providing disincentives for action.
Going forth, I will use this as my provisional understanding about the intentions of morality and legality (what one ought to do vs. what one should not be allowed to do). I understand that the language of this piece would seem to suggest that a proposition like “not killing” would fall squarely under legality and not the morality side of things — and suggest to some that killing should not be taken under moral consideration — but I emphatically deny this to be the case. This proposal is still formative, quite rough around the edges, and will admit of exceptions. However, I posit that most of these counterintuitive morality vs. legality conundrums have more to do with the fact that atrocity high up on the Scale of Awful adversely affect many fields and hence cannot be constrained to either legality or morality. Thus with weighty issues it is better to understand that there is massive overlap between fields of study rather than trying to parse everything out through time-wasting word games.
But for things farther down on the Scale of Awful, this version and inversion of the ‘Golden Rule’ proves an excellent framework that filters legal and moral considerations. ‘Taking drugs’ for instance, which is considered immoral by some, would be something that would compel one not to personally take drugs, but simultaneously prevent one from stopping others from doing so, and vice versa. The same is true of eating products that contain trans fats, gambling, sending children to school, and just about every other libertarian talking point. It hopefully frames the discussion in such a manner as to show where all the confusion has lain.
And it also answers that pesky ‘should taxes be compelled?’ question…
