columns

This is part of a series

Jun 16, 2017

Concluding Remarks on Vices are not Crimes

Smith summarizes Lysander Spooner’s objections to the most popular arguments in favor of the prohibition of alcohol.

This essay will conclude my discussion of prohibition and the abolitionists. It summarizes Lysander Spooner’s specific objections, as found in Vices are not Crimes, to the most common arguments used by prohibitionists.

According to some advocates of prohibition, only the manufacture and sale of liquor should be legally banned, not its possession or consumption by individuals. Indeed, this was the case with the Eighteenth Amendment to the U.S. Constitution (the prohibition amendment), which outlawed only “the manufacture, sale, or transportation of intoxicating liquors.”

In this way of thinking, drunkards were often viewed as the victims of demonic forces—the manufacturers and distributors of alcoholic beverages who lured people into lives of vice and self-destruction for the sake of profit. If these greedy evildoers could be restrained and punished by law, then much of the blight of alcoholism could be eliminated.

Lysander Spooner made short work of this argument.

The answer to this is, that the simple sale of any article whatever—independently of the use that is to be made of the article—is legally a perfectly innocent act. The quality of the act of sale depends wholly upon the quality of the use for which the thing is sold. If the use of anything is virtuous and lawful, then the sale of it, for that use, is virtuous and lawful. If the use is vicious, then the sale of it, for that use, is vicious. If the use is criminal, then the sale of it, for that use, is criminal.

The seller of a commodity is at most only an accomplice in how that commodity is used. If the commodity furthers a vice, then the seller is an accomplice to a vice but not to a crime, so he should not be punished. If an act is legally innocent in its own right, then to assist or encourage that act cannot be a crime.

But what if we entice another person to commit a vice? Should this be regarded as a crime? Spooner called this supposition “preposterous,” and he laid out the basic principle involved.

If any particular act is simply a vice, then a man who entices another to commit it, is simply an accomplice in the vice. He evidently commits no crime, because the accomplice can certainly commit no greater offence than the principal.

A common allegation of prohibitionists was that drinking is so destructive that it can cause insanity and death. This charge led Spooner to ask whether government has the right to curb the actions of people who are “bent on self-destruction.” As usual his analysis was clear and uncompromising.

The answer is, that government has no rights whatever in the matter, so long as these so-called vicious persons remain sane, compos mentis, capable of exercising reasonable discretion and self-control; because, so long as they do remain sane, they must be allowed to judge and decide for themselves whether their so-called vices really are vices; whether they really are leading them to destruction; and whether, on the whole, they will go there or not.

So long as a person does not meet the legal standards of insanity, he should be free to decide for himself how self-destructive his own actions may be and whether he wishes to take them. Friends, family members, and other interested parties may attempt to persuade him to change his way of life, but that should be the legal limit of their interference. “But, if he chooses to go on to what other men call destruction, he must be permitted to do so. And all that can be said of him, so far as this life is concerned, is, that he made a great mistake in his search after happiness, and that others will do well to take warning by his fate.”

Spooner’s comments about mentally incompetent people raise some interesting issues for libertarians. First, we have his argument that to provide an insane person with the means to harm himself or others should be classified as a crime. And, second, we have Spooner’s statement that the state should care for the insane, if no one else is willing—a position that casts serious doubt on the common assertion that Spooner was an anarchist. A thorough discussion of this tricky issue must await my future series on Spooner. Nevertheless, according to Spooner, when dealing with mentally competent adults, each person has the right to judge for himself or herself which actions are self-destructive and which are not. The right to choose entails the right to choose poorly. The right to act, so long as one does not violate the rights of others, entails the right to act in self-destructive ways. Any attempt to compel a person from taking unwise or harmful courses of action is to violate that person’s nature as a rational and moral agent. If a person’s actions seriously harm him or even kills him, then others should take heed and avoid similar actions, but unwise and stupid actions don’t give others the right to use force against a fool. Persuasion, not coercion, is the only proper remedy in such cases.

What of another common argument of prohibitionists, namely, that drinking can make a man irresponsible and dangerous to others? Spooner replied that a dangerous person may properly be restrained from harming others, while noting that the reason he became dangerous is irrelevant. People become dangerous for all kinds of reasons, and drinking is only one reason among many. In addition, many people drink without becoming dangerous at all. If it should be illegal to sell alcohol to a dangerous man, it does not follow that it should be illegal to sell alcohol to everyone.

But because one man becomes quarrelsome and dangerous after drinking spirituous liquors, and because it is a crime to give or sell liquor to such a man, it does not follow at all that it is a crime to sell liquors to the hundreds and thousands of other persons, who are not made quarrelsome or dangerous by drinking them. Before a man can be convicted of crime in selling liquor to a dangerous man, it must be shown that the particular man, to whom the liquor was sold, was dangerous; and also that the seller knew, or had reasonable grounds to suppose, that the man would be made dangerous by drinking it.

Spooner’s contention that it should be a criminal offense to give or sell liquor to a man whom one reasonably suspects will be made dangerous by drinking the liquor generates some problems for a libertarian legal theory. Spooner claimed that “there is no difficulty convicting and punishing men for the sale or gift of any article to a man, who is made dangerous to others by the use of it.” I contend that this principle cannot be justified by Spooner’s own principles, especially the principle of self-responsibility, but I will not argue the point here. At the very least, it is to Spooner’s credit that he identified and analyzed some difficult areas of legal theory that most modern libertarian philosophers have ignored.

What of the argument that “the use of spirituous liquors is the great source of crime; that ‘it fills our prisons with criminals’ and that this is reason enough for prohibiting the sale of them?” I dealt with Spooner’s reply to this common argument in a previous essay, so I shall not repeat his points here. Equally interesting is Spooner’s reaction to the argument that drinking and other vices create private or public nuisances and may be legally forbidden for that reason. I find Spooner’s discussion of this problem one of the more interesting parts of Vices are not Crimes.

Spooner insisted that we must give a clear legal definition of a “nuisance.” It is not enough that my vices annoy or offend others; by this standard, every person in a society could be convicted of being a nuisance. The law requires precision about how to identify the crime in question.

It is true that anything that is really and legally a nuisance (either public or private) can be abated and punished. But it is not true that the mere private vices of one man are, in any legal sense, nuisances to another man, or to the public.

No act of one person can be a nuisance to another, unless it in some way obstructs or interferes with that other’s safe and quiet use or enjoyment of what is rightfully his own.

To obstruct a public highway is a nuisance, so is to poison the air or make it unhealthful to breathe, but actions such as these find no parallels in a liquor store or tavern. It had been argued that a tavern is dangerous in the same way that stores of gunpowder are dangerous, but “there is no analogy between the two cases.” Gunpowder is liable to explode by accident, especially in cities where fires are frequent, but the same is obviously not true of establishments where liquor is sold. If it is argued that taverns are a nuisance because they are often filled with “noisy and boisterous men who disturb the quiet of the neighborhood,” Spooner conceded that this is sometimes true, and where it is true the law may properly intervene.

But an assembly of noisy drinkers is no more a nuisance than is any other noisy assembly. A jolly or hilarious drinker disturbs the quiet of a neighborhood no more, and no less, than does a shouting religious fanatic. An assembly of noisy drinkers is no more, and no less, a nuisance than is an assembly of shouting religious fanatics. Both of them are nuisances when they disturb the rest and sleep, or quiet, of neighbors. Even a dog that is given to barking, to the disturbance of the sleep or quiet of the neighborhood, is a nuisance.

Spooner’s point is clear. Many things can become a nuisance, but vices in general and drinking in particular are not nuisances per se. Each case must be judged on its own terms. An excessively noisy tavern is not a nuisance because it is a tavern. The same kind of nuisance may emanate from a variety of different sources. If the potential to create a nuisance is to be condemned as a crime, then we would need to outlaw all public preachers and all dogs.

This is part of a series