What is a crime, and how are crimes to be punished? It’s important to note that most thinking about crime and punishment is what the philosopher John Dewey called “customary” as opposed to “reflective morality”. The citizens of different countries generally seem to accept whatever is customary, at any given time in any given place. But the point of Attitude Media’s Crime and Punishment section is to get people to reflect on what is just.
Is the object of punishment to deter crime, or to achieve some abstract ideal of justice? We believe both. In the case of deterrence, we believe, in accordance with our philosophy of Valuism, that because it is so much more difficult to create value than to destroy it, there have to be harsh penalties against those who in engage in all forms of destructive activity, whether that be rape, theft, or murder. We draw a clear line between these sorts of value destroying activities involving coercion and those which are consenting acts between adults. Our philosophy on crime and punishment sits at the intersection of our overall philosophy of Valuism and our political inclination towards libertarianism. In the latter, only fraud and force are punished.
The world is a complex place, and crime and punishment requires careful, nuanced thought, but ultimately right and wrong can be clearly distinguished, thus enabling us to draw a bright line between acceptable and unacceptable behavior.
The key to Valuism is the right, and the responsibility, for each individual to make their own value judgments. We may believe that the act of prostitution is an act of value destruction, but if the prostitute and his or her client engages in such an act without force or fraud, that is their decision – their value judgment – to make, as long as they are consenting adults.
The purpose of the state is to foster an environment where adults are able to make their own value judgments, and live according to those judgments, not to enforce the judgments of the majority or of any elite. This point of view is in stark contrast to that of many leading jurists. For instance, the most important jurist in American history, Oliver Wendell Holmes, who served on the Supreme Court from 1902-1932, thought that law was simply “the dominant opinion of society” and that law should simply reflect that opinion at any given time. (wsj 8.24, C5, What Democracy Requires.) Holmes was, at root, a moral relativist, and there could be no one with which we more fundamentally disagree. While it is true, as he said, that “all life is an experiment” that applies to tactics and strategy in business, politics, perhaps even evolution. It does not apply to basic moral issues – the founders of America knew this when they cited certain “inalienable rights” which were not subject to revocation by any political authority.
The 3 Fundamental Principles of Justice
We think law is not a matter of opinion that shifts over time and place, but should be founded on 3 main principles that are true over time and without regard to place.
- 1) The basic principle of the liberty of the individual to enter into contracts with consenting adults; and a bias against government intervention in such contracts.
- 2) Severe punishment for the use of force or fraud. In most cases, one should be able to determine if someone committed a crime by answering a single question; was force or deception used? This means that a whole category of offenses; among them drug use, prostitution, and gambling, should be decriminalized. That does not mean that we endorse such activities, simply that individuals should be free to make their own decisions regarding them. In fact, we personally find many such activities morally reprehensible, but we can shun those activities and those engaged in them without legislating against them.
- 3) When in doubt, the system should default to custom, as embodied in common law, rather than legislatively generated statutory law. Thus power is moved to the people and away from politicians. For each individual, there is an obligation to reflect on what is right and wrong, but the system as a whole should emphasize custom, as reflection can only take place at the level of the individual.