Vices Are Not Crimes

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This article
is taken from Murray Rothbard’s introduction to Vices
Are Not Crimes: A Vindication of Moral Liberty
by Lysander Spooner.
It is also available
in PDF
along with the full Spooner essay.

We are all
indebted to Carl Watner for uncovering an unknown work by the great
Lysander Spooner, one that managed to escape the editor of Spooner’s
Collected Works.

Both the title
and the substance of "Vices are not Crimes" highlight
the unique role that morality and moral principle had for Spooner
among the anarchists and libertarians of his day. For Spooner was
the last of the great natural rights theorists among anarchists,
classical liberals, or moral theorists generally; the doughty old
heir of the natural law–natural
rights tradition
of the seventeenth and eighteenth centuries
was fighting a rearguard battle against the collapse of the idea
of a scientific or rational morality, or of the science of justice
or of individual right.

Not only had
natural law and natural rights given way throughout society to the
arbitrary rule of utilitarian calculation or nihilistic whim, but
the same degenerative process had occurred among libertarians and
anarchists as well. Spooner knew that the foundation for individual
rights and liberty was tinsel if all values and ethics were arbitrary
and subjective.

Yet, even in
his own anarchist movement Spooner was the last of the Old Guard
believers in natural rights; his successors in the individualist-anarchist
movement, led by Benjamin R. Tucker, all proclaimed arbitrary whim
and might-makes-right as the foundation of libertarian moral theory.
And yet, Spooner knew that this was no foundation at all; for the
State is far mightier than any individual, and if the individual
cannot use a theory of justice as his armor against State oppression,
then he has no solid base from which to roll back and defeat it.

With his emphasis
on cognitive moral principles and natural rights, Spooner must have
looked hopelessly old-fashioned to Tucker and the young anarchists
of the 1870s and 1880s. And yet now, a century later, it is the
latters’ once fashionable nihilism and tough amoralism that strike
us as being empty and destructive of the very liberty they all tried
hard to bring about. We are now beginning to recapture the once-great
tradition of an objectively grounded rights of the individual. In
philosophy, in economics, in social analysis, we are beginning to
see that the tossing aside of moral rights was not the brave new
world it once seemed – but rather a long and disastrous detour
in political philosophy that is now fortunately drawing to a close.

Opponents of
the idea of an objective morality commonly charge that moral theory
functions as a tyranny over the individual. This, of course, happens
with many theories of morality, but it cannot happen when the moral
theory makes a sharp and clear distinction between the "immoral"
and the "illegal," or, in Spooner’s words, between "vices"
and "crimes." The immoral or the "vicious" may
consist of a myriad of human actions, from matters of vital importance
down to being nasty to one’s neighbor or to willful failure to take
one’s vitamins. But none of them should be confused with an action
that should be "illegal," that is, an action to be prohibited
by the violence of law. The latter, in Spooner’s libertarian view,
should be confined strictly to the initiation of violence against
the rights of person and property.

Other moral
theories attempt to apply the law – the engine of socially
legitimated violence – to compelling obedience to various norms
of behavior; in contrast, libertarian moral theory asserts the immorality
and injustice of interfering with any man’s (or rather, any non-criminal
man’s) right to run his own life and property without interference.
For the natural rights libertarian, then, his cognitive theory of
justice is a great bulwark against the State’s eternal invasion
of rights – in contrast to other moral theories which attempt
to employ the State to combat immorality.

It is instructive
to consider Spooner and his essay in the light of the fascinating
insights into nineteenth-century American politics provided in recent
years by the "new political history." While this new history
has been applied for most of the nineteenth century, the best work
has been done for the Midwest after the Civil War, in particular
the brilliant study by Paul Kleppner, The Cross of Culture.1

What Kleppner
and others have shown is that the political ideas of Americans can
be reduced, with almost remarkable precision, back to their religious
attitudes and beliefs. In particular, their political and economic
views depend on the degree to which they conform to the two basic
poles of Christian belief: pietistic, or liturgical (although the
latter might be amended to liturgical plus doctrinal). Pietistic,
by the 19th century, meant all groups of Protestants except Episcopalian,
High Church Lutheran, and orthodox Calvinist; liturgical meant the
latter plus Roman Catholic. (And "pietistic" attitudes
often included deist and atheist.)

Briefly, the
pietist tends to hold that to be truly religious, a person must
experience an emotional conversion; the convert, in what has been
called "the baptism of the Holy Spirit," has a direct
relationship to God or to Jesus. The liturgical, on the other hand,
is interested in either doctrinal belief or the following of prescribed
church ritual as the key to salvation.

Now, it might
seem as if the pietistic emphasis on the individual might lead to
a political individualism, to the belief that the State may not
interfere in each individual’s moral choices and actions. In 17th-century
pietism, it often meant just that. But by the 19th century, unfortunately,
such was not the case. Most pietists took the following view: Since
we can’t gauge an individual’s morality by his following rituals
or even by his professed adherence to creed, we must watch his actions
and see if he is really moral.

From there
the pietists concluded that it was everyone’s moral duty to his
own salvation to see to it that his fellow men as well as himself
are kept out of temptation’s path. That is, it was supposed to be
the State’s business to enforce compulsory morality, to create the
proper moral climate for maximizing salvation. In short, instead
of an individualist, the pietist now tended to become a pest, a
busybody, a moral watchdog for his fellow man, and a compulsory
moralist using the State to outlaw "vice" as well as crime.

 


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The liturgicals,
on the other hand, took the view that morality and salvation were
to be achieved by following the creed and the rituals of their church.
The experts on those church beliefs and practices were, of course,
not the State but the priests or bishops of the church (or, in the
case of the few orthodox Calvinists, the ministers). The liturgicals,
secure in their church teachings and practices, simply wanted to
be left alone to follow the counsel of their priests; they were
not interested in pestering or forcing their fellow human beings
into being saved. And they believed profoundly that morality was
not the business of the State, but only of their own church mentors.

From the 1850s
to the 1890s the Republican party was almost exclusively the pietist
party, known commonly as the "party of great moral ideas";
the Democratic party, on the other hand, was almost exclusively
the liturgical party, and was known widely as the "party of
personal liberty."

Specifically,
after the Civil War there were three interconnected local struggles
that kept reappearing throughout America; in each case, the Republicans
and Democrats played out this contrasting role. These were: the
attempt by pietist groups (almost always Republican) to enforce
prohibition; the attempt by the same groups to enforce Sunday blue
laws; and the attempt by the selfsame pietists to enforce compulsory
attendance in the public schools, in order to use these schools
to "Christianize" the Catholics.

What of the
political and economic struggles that historians have, until recently,
focused on almost exclusively: sound money vs. fiat money or silver
inflation; free trade vs. a protective tariff; free markets vs.
government regulation; small vs. large government spending? It is
true that these were fought out repeatedly, but these were on the
national level, and generally remote from the concerns of the average
person. I have long wondered how it was that the nineteenth century
saw the mass of the public get highly excited about such recondite
matters as the tariff, bank credits, or the currency. How could
that happen when it is almost impossible to interest the mass of
the public in these matters today?

Kleppner and
the others have provided the missing link, the middle term between
these abstract economic issues and the gut social issues close to
the hearts and lives of the public. Specifically, the Democrats,
who (at least until 1896) favored the free-market libertarian position
on all these economic issues, linked them (and properly so) in the
minds of their liturgical supporters, with their opposition to prohibition,
blue laws, etc. The Democrats pointed out that all these statist
economic measures – including inflation – were "paternalistic"
in the same way as the hated pietistic invasions of their personal
liberty. In that way, the Democrat leaders were able to "raise
the consciousness" of their followers from their local and
personal concerns to wider and more abstract economic issues, and
to take the libertarian position on all of them.

The
pietist Republicans did similarly for their mass base, pointing
out that big government should regulate and control economic matters
as it should control morality. In this stance, the Republicans followed
in the footsteps of their predecessors, the Whigs, who for example
were generally the Fathers of the Public School System in their
local areas.

Generally,
the "mind your own business" liturgicals almost instinctively
took the libertarian position on every question. But there was of
course one area – before the Civil War – where pestering
and hectoring were needed to right a monstrous injustice: slavery.
Here the typical pietistic concern with universal moral principles
and seeing them put into action brought us the abolitionist and
anti-slavery movements. Slavery was the great flaw in the American
system in more senses than one: for it was also the flaw in the
instinctive liturgical resentment against great moral crusades.

To return now
to Lysander Spooner. Spooner, born in the New England pietist tradition,
began his distinguished ideological career as an all-out abolitionist.
Despite differences over interpretation of the US Constitution,
Spooner was basically in the anarchistic, "no-government"
Garrisonian wing of the abolitionist movement – the wing that
sought the abolition of slavery not through the use of the central
government (which was in any case dominated by the South), but by
a combination of moral fervor and slave rebellion. Far from being
fervent supporters of the Union, the Garrisonians held that the
northern states should secede from a pro-slaveholding United States
of America.

So far, Spooner
and the Garrisonians took the proper libertarian approach toward
slavery. But the tragic betrayal came when the Union went to war
with the Southern states over the issue of their declared independence.
Garrison and his former "no-government" movement forgot
their anarchistic principles in their enthusiasm for militarism,
mass murder, and centralized statism on behalf of what they correctly
figured would be a war against slavery.

Only Lysander
Spooner and a very few others stood foursquare against this betrayal;
only Spooner realized that it would be compounding crime and error
to try to use government to right the wrongs committed by another
government. And so, among his pietistic and moralizing anti-slavery
colleagues, only Spooner was able to see with shining clarity, despite
all temptations, the stark difference between vice and crime. He
saw that it was correct to denounce the crimes of governments, but
that it was only compounding those crimes to maximize government
power as an attempted remedy. Spooner never followed other pietists
in endorsing crime or in trying to outlaw vice.

Spooner’s anarchism
was, like his abolitionism, another valuable part of his pietist
legacy. For, here again, his pietistic concern for universal principles
– in this case, as in the case of slavery, for the complete
triumph of justice and the elimination of injustice – brought
him to a consistent and courageous application of libertarian principles
where it was not socially convenient (to put it mildly) to have
the question raised.

While the liturgicals
proved to be far more libertarian that the pietists during the second
half of the nineteenth century, a pietistic spirit is always important
in libertarianism to emphasize a tireless determination to eradicate
crime and injustice. Surely it is no accident that Spooner’s greatest
and most fervent anarchistic tracts were directed in dialogue against
the Democrats Cleveland and Bayard; he did not bother with the openly
statist Republicans. A pietistic leaven in the quasi-libertarian
liturgical lump?

But it takes
firmness in libertarian principle to make sure to confine one’s
pietistic moral crusade to crime (e.g., slavery, statism), and not
have it spill over to what anyone might designate as "vice."
Fortunately, we have the immortal Lysander Spooner, in his life
and in his works, to guide us along the correct path.

Notes

  1. Paul Kleppner,

    The Cross of Culture: A Social Analysis of Midwestern Politics,
    1850–1900
    (New York: Free Press, 1970). Also see
    Richard Jensen, The
    Winning of the Midwest: Social and Political Conflicts, 1888–1896

    (Chicago: University of Chicago Press, 1971).

Murray
N. Rothbard
(1926–1995) dean of the Austrian School and
the founder of modern libertarianism – was the author of Man,
Economy, and State
, Conceived
in Liberty
, What
Has Government Done to Our Money
, For
a New Liberty
, and many other books and articles. He was
editor — with Lew Rockwell — of The
Rothbard-Rockwell Report
, and appointed Lew his literary
executor.

The
Best of Murray Rothbard

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