The libertarian view of the criminal law is that the law exists to protect each of us from harm; to keep us secure and at peace. If anyone harms another or steals/damages their property, the law exists to deal with the wrongdoer and repair the harm done.
As the saying goes,” No Harm, No Foul.” Such a policy rejects all those parts of the criminal code which forbid conduct that does not actually harm other people. It is not the role of a coercive state to correct moral faults that hurt no one but the sinner himself.
St. Thomas Aquinas addresses this issue explicitly in his Summa, in which
“[Virtuous conduct] is not possible to one who has not a virtuous habit, as is possible to one who has. Thus the same is not possible to a child as to a full-grown man: for which reason the law for children is not the same as for
“Now human law is framed for a number of human beings, the majority of whom are not perfect in virtue. Wherefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft and such
In practical terms, this teaching seeks to invoke the criminal law only in response to violations of the non-aggression principle; that is, human law should limit its punishments to acts that hurt other people or their property.
St. Thomas goes on to assert that criminal punishment “belongs to those sins chiefly whereby one’s neighbor is injured.”
St. Thomas will have more to say about making every sin a crime in the next post. St. Augustine (and Jesus) will join him in slapping around the moral busybodies. Hope you will come back.
If you can’t wait until then, get your copy of FREE IS BEAUTIFUL at Amazon here.
Mr. England,
Aquinas himself says that human law punishes “chiefly” those things that harm another like murder, theft, and other similar felonies, and should not criminalize behaviors from which the majority of the jurisdiction of the law-giver cannot abstain. He argues that the prudent lawgiver will not demand that all his subjects bear the burden of laws which even the majority are incapable of obeying. One cannot infer from this that Aquinas would decriminalize every act that does not harm another person, nor that Aquinas thinks every lawgiver who does so order his society is acting immorally. Prudence being the virtue of acting rightly under the circumstances, such an inference nullifies the very particular judgment that each ruler must make of the people under his care. Your understanding takes Aquinas’ thought far beyond its intended boundaries.
Dominic:
Thanks for your comments. I believe you make a good point about St. Thomas Aquinas. He is not a modern libertarian. I’m sure there are some things that he would punish that today that we might agree was no one else’s business.
The punishment (and even execution) of some heretics of those days certainly comes to mind. At that time, however, a heretic–in the eyes of the monarch–was considered guilty of treason. I think the people of that time saw no way for Cathar society and Western Christianity to co-exist. Perhaps they couldn’t.
I quote the Angelic Doctor not because he would limit the criminal law for exactly the same reasons as a modern libertarian, but because it is his summation (not mine) which draws a line at the:
“ . . . more Grievous vices,” and “chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft, and such like.”
I take him at his word.
We know that he did not support criminal punishment of prostitution, and presumably adultery. I am unaware that any controlled substances were prohibited by the state in his day. I think that he would be horrified by our own “war on drugs” and the total state that we live under today. He was radical in his teaching that the people had the right to rid themselves of a tyrannical ruler.
While I am completely against the initiation of violence, I propose this question: When the community has a problem to solve or has a worthy goal to reach, should it seek voluntary solutions rather than coercive ones?
I believe we may—without violating any Church teaching—prefer voluntary solutions to coercive solutions.
Kind regards,
Randy England