In speaking to a dear friend of mine yesterday, I encountered this objection to my drug prohibition argument. Of course, I've heard it before. I just don't buy it.
Theoretical libertarians (as opposed to practical libertarians who merely want to downsize government) are opposed in principle to the legitimate and just exercise of government. In the following paragraphs I'll lay out the main reasons why this must be so.
To begin with, we must ask, What is government's proper function?
As a Christian, I accept the authority of special divine revelation. When I read St. Paul in Romans 13:4 to say the king is "an agent of [God's] wrath to bring punishment on the wrongdoer," I accept this role for government. Indeed, most Christians will admit this role.
What many Christians overlook is the other responsibility government has been given according to the inspired apostle. St. Paul also says, "Do you want to be free from fear of the one in authority? Then do what is right and he will commend you. For he is God's servant to do you good" (Rom. 13:3b-4a).
From this, I conclude that a governor is essentially an authority figure given a divine mandate to punish the evil and reward the good.
Theoretical libertarians may recognize that government is instituted to keep order and ensure the tranquility of the community. However, what they fail to recognize is that the use of the sword to defend society from external and internal threat is only half of the governor's lawful task.
Government is also instituted to reward the good.
Theoretical libertarians maintain that the punitive function of government is limited to the exercise of defense against physical threat and retributive punishment for external crimes only. These theorists deny that government ought to make moral judgments and argue that government should only respond to external acts.
They are incorrect. Government must take preventitive, even preemptive, measures to deal with problems before they grow too large to deal with. In support of this I cite the "broken window thesis."
"James Q. Wilson and George Kelling developed the 'broken window' thesis. Their thesis suggests that a certain sequence of events can be expected in deteriorating neighborhoods: evidence of decay (broken windows, accumulated trash, deteriorated building exteriors) which remains in the neighborhood for a reasonably long period of time causes people who live and work in the area to feel more vulnerable and to begin to withdraw. They become less willing to intervene to maintain public order (for example, to attempt to break up groups of rowdy teens loitering on street corners) or to address physical signs of deterioration.
"In response to this, some vandals may become bolder and intensify their harassment and vandalism. This makes residents even more fearful and less likely to participate in community upkeep. Offenders now may come in from outside the area, sensing that the neighborhood has become a vulnerable and less risky site for crime.
"'One unrepaired broken window is a signal that no one cares,' Wilson and Kelling have written, 'and so breaking more windows costs nothing.'"
The broken window thesis may confound correlation with causality at times, but it should be pointed out that criminality is not a mere series of criminal acts, but a lifestyle that progressively degenerates. At some point after certain warning signs appear, the time for intervention has come.
Society is really a social system made of a complex of symbiotic relationships between humans and their physical and social environments. The soul affects the body and the body influences the soul. Groups influence individual choice and vice versa. Environments form options and so determine human choice to an extent. No man is an island. Libertarians are fools to think otherwise.
General disorder, alcoholism, drug addiction, sexual promiscuity and divorce, are all elements of a social eco-system that fosters criminality. This point of view conforms to common sense and is confirmed by the vast majority of scientific social data available.
So no, government should not just let people destroy their lives if they want. They are not just destroying their own lives; they are destroying others' as well. It's not just that I have to personally live around people who make bad choices. My neighborhood deteriorates when these people reproduce. My children must go to school with their children and live in the environment they create.
As a rewarder of good and punisher of evil, government has an interest in suppressing undesirable behavior and encouraging desirable choices. Government has the legitimate function to promote the attainment of and require civic virtue.
In another place, St. Paul describes the purpose of the law:
"[We] know that the law is good, if a man use it lawfully; Knowing this, that the law is not made for a righteous man, but for the lawless and disobedient, for the ungodly and for sinners, for unholy and profane, for murderers of fathers and murderers of mothers, for manslayers, for whoremongers, for them that defile themselves with mankind, for menstealers, for liars, for perjured persons, and if there be any other thing that is contrary to sound doctrine according to the glorious gospel of the blessed God, which was committed to my trust" (1 Tim. 1:8-11).
Constitutional proceduralism, i.e., the proceduralist "rule of law" is insufficient. Judgment is necessary for justice. A constitution is a machine, and machines do not judge or produce right decisions.
A major thesis of this blog is that all forms of theoretical libertarianism (including classical liberals' republican constitutionalism) can only produce legal systems. They cannot produce justice systems.
In order to fulfill his purpose as the guarantor of the peace and happiness of society, the governor must be empowered to effectively administer law. For this, he must be above human law in the sense--and to the extent--that he judges what the law says and how to apply it in particular cases.
In order to have a just and effective ministration of law, there must be one who acts as a judge, knowing good from evil, and who chooses the good.