We have seen how “Vices are not Crimes: A Vindication of Moral Liberty” was written by Lysander Spooner as an anonymous contribution to a book, Prohibition: A Failure (1875), by the temperance reformer and homeopathic physician Dio Lewis. Lewis regarded alcohol as a poison that should be avoided altogether, but he was also a libertarian who fiercely opposed all laws against the manufacture, sale, and consumption of alcohol. Intemperance is a vice, not a crime, so it should be dealt with by voluntary means, not by coercion. When Lewis decided that he wanted a concise statement of the differences between vices and crimes for his book, he called on his “lawyer friend” and patient Lysander Spooner to write the analysis.

Spooner responded with what is probably the best libertarian treatment of this topic ever published. “Vices are not Crimes” is as fresh as the day it was written. Although it was aimed primarily at the prohibition of liquor, Spooner’s arguments apply equally well to every instance of what we now call “victimless crime laws.” Spooner indicated as much when he included the following activities as among those that should be immune to legal prohibitions and punishments: “gluttony, drunkenness, prostitution, gambling, prize-fighting, tobacco-chewing, smoking, and snuffing, opium-eating, corset-wearing, idleness, waste of property, avarice, hypocrisy, &c., &c.” These and similar activities may be vices—they may harm the people who engage in them—but they are not authentic crimes because they don’t violate the rights of anyone.

According to Spooner, every mentally competent person over ten years of age (the age of consent in English common law)—regardless of race, gender, religion, or personal proclivities—is equally possessed with natural rights, including the right to pursue happiness according to his or her own judgments. Governments should protect this right, which is something that should be obvious to anyone who takes the Declaration of Independence seriously, but this is impossible if a government also attempts to punish vices. A government can do one or the other but not both, any more than it can protect both liberty and slavery.

No one is morally perfect, so if a government were to punish all vices impartially, “everybody would be in prison for his or her vices,” leaving “no one left outside to lock the doors upon those within.” Only one possibility remains: a government might punish only select vices. But it is “utterly absurd, illogical, and tyrannical” for some people to punish the vices of others while demanding liberty for their own.

The violation of rights is the bright line by which Spooner separates vices from crimes. A truly free society is impossible unless this crucial difference is recognized and respected in a legal system.

Unless this clear distinction between vices and crimes be made and recognized by the laws, there can be on earth no such thing as individual right, liberty, or property; no such things as the right of one man to the control of his own person and property, and the corresponding and co-equal rights of another man to the control of his own person and property.

Activities that we dub “vices” may be self-destructive or offensive, but, like all peaceful, voluntary activities, they should remain outside the province of law and government. If practitioners of vices cannot be reformed voluntarily, if they go “on to what other men call destruction,” then they “must be permitted to do so.”

The essence of Spooner’s argument runs deep in the individualist tradition of political philosophy. For example, two centuries before Spooner, John Locke had argued that a ruler should not try to stamp out sin. Why? Because sins as such “are not prejudicial to other men’s rights, nor do they break the public peace of societies.” The difference between Spooner and his classical liberal predecessors lay in the consistency with which Spooner applied their common principle of individualism. Spooner understood that to advocate a principle in theory but then compromise it in practice is effectively to destroy the principle itself.

Spooner begins with rights but does not end there. “Vices are not Crimes” contains a wealth of insightful observations about the highly contextual nature of virtue and vice. Spooner shows great respect for the unique characteristics and circumstances of each individual, and he studiously avoids the pretentious moralizing sometimes found in works of this kind. He never says, in effect, “People who do x are the scum of the earth, but they should be free to be as scummy as they like.” Instead, he points out that people naturally desire to further their own happiness and that some make better decisions than others. Virtuous actions are those that actually increase the happiness of the acting agent; but people differ so radically in their characters, needs, and circumstances that it is usually impossible to say that a given action will increase the happiness of every person who takes it. What is good for one person may not be good for another. As Spooner put it:

[E]ach human being differs in his physical, mental, and emotional constitution, and also in the circumstances by which he is surrounded, from every other human being. Many acts, therefore, that are virtuous, and tend to happiness, in the case of one person, are vicious, and tend to unhappiness, in the case of another person.

Many acts, also, that are virtuous, and tend to happiness, in the case of one man, at one time, and under one set of circumstances, are vicious, and tend to unhappiness, in the case of the same man, at another time, and under other circumstances.

Moreover, many virtues and vices exist on a continuum. Many are a matter of degree and cannot be separated by a hard-and-fast line.

It is not often possible to say of those acts that are called vices, that they really are vices, except in degree. That is, it is difficult to say of any actions, or courses of action, that are called vices, that they really would have been vices, if they had stopped short of a certain point. The question of virtue or vice, therefore, in all such cases, is a question of quantity and degree, and not of the intrinsic character of any single act, by itself. This fact adds to the difficulty, not to say the impossibility, of any one’s—except each individual for himself—drawing any accurate line, or anything like any accurate line, between virtue and vice; that is, of telling where virtue ends, and vice begins. And this is another reason why this whole question of virtue and vice should be left for each person to settle for himself.

Another factor is that vices sometimes do not reveal themselves as harmful until after they have been practiced over a long period of time. And virtues “often appear so harsh and rugged” that their good results may not be immediately apparent. This means that a general, abstract knowledge of particular virtues and vices can be nearly impossible to acquire. Ultimately, the only way for a person gain useful knowledge of virtues and vices is by exercising the “right to inquire, investigate, reason, try experiments, judge, and ascertain for himself, what is, to him, virtue, and what is, to him, vice; in other words, what, on the whole, conduces to his happiness, and what, on the whole, tends to his unhappiness.”  

We are not born with knowledge of ourselves or what we need to be happy. But we are born with a natural desire for happiness and the desire to avoid pain. How to satisfy these closely related desires is something we must learn from experience. And this is something we must learn for ourselves.

No two of us are wholly alike, either physically, mentally, or emotionally; or, consequently, in our physical, mental, or emotional requirements for the acquisition of happiness, and the avoidance of unhappiness. No one of us, therefore, can learn this indispensable lesson of happiness and unhappiness, of virtue and vice, for another. Each must learn it for himself. To learn it, he must be at liberty to try all experiments that commend themselves to his judgment.

Some of our “experiments” in living will succeed, while others will fail. We gain crucial knowledge from both our successes and failures. But if we are legally prohibited from acting according to our own judgments of what will make us happy, then we will be unable to acquire the knowledge essential to our pursuit of happiness. No other person can tell us how to happy. This is something we must learn for ourselves. This requires complete freedom from coercion by others, so long as our actions do not violate the equal freedom of any other person.

I shall continue this discussion of Spooner in my next essay.