AFTER ALL, IT DOES SEEM A LITTLE SILLY TO “HELP” SOMEONE IN THEIR LIFESTYLE CHOICE BY THROWING THEM IN JAIL...
Article By Cameron Wilson
LAW AND THE HARM PRINCIPLE
PUBLISHED: 17th October, 2014 | By Cameron Wilson
I think it would be a good idea for our society to take a chill pill. Seriously. Why are we so intent on using criminal law to enforce the morals of our society? I think this is an important question. After all, it's not as if being prosecuted for a crime is a little thing. It destroys the lives of people who are put through the ordeal. This does not make criminal sanction inherently bad, but it does mean that whenever we decide to use the overwhelming power of the state through the criminal law we should be darned sure that it's worth it.
Now before any objections are raised, I'm not some crazy libertine hedonist who wants the state to punish fewer horrible things so I can do more of those horrible things without repercussion. A true libertarian understands that libertarianism is more defined by responsibility that by liberty, he merely also believes that a paternalistic state does not breed a true sense of responsibility. For example, a libertarian believes that consuming alcohol should be legal, but that the state should not bail out alcoholics. Freedom balanced with responsibility.
It is precisely this point that we need to flesh out as a society. We need to have a conversation about paternalistic criminal laws. By paternalistic criminal laws, I mean those laws which make it a crime to do something which only directly harms the people who voluntarily participate in that thing.
Keep in mind that these things can be deeply immoral. I would posit that cocaine use in a non-medical setting is immoral. However, does this mean that a cocaine addict should be thrown in jail? After all, it does seem a little silly to "help" someone in their lifestyle choice by throwing them in jail. Especially because we are "helping" them to not hurt themselves...by incarcerating them.
It’s bizarre, it’s expensive, and it needs to stop. As a society there are far better ways of dealing with addiction. Private charities, for example, which can give a person the compassion and help they need to battle the addiction. Private charitable hospitals which deal with those who O.D. on drugs is another possible aid to the solution. Putting them in jail with murderers, rapists, and thieves just doesn't seem effective.
The same is true of many other similar crimes. The fact is that criminalization of self-harm is expensive, counter-intuitive, and counter-productive. In America over 1% of the population is currently in jail. Over 50% of all people in American jails are there because of drug related offenses. More than half of inmates will re-offend within three years of leaving prison. Often, the offense they commit will be worse than the one which got them put in jail in the first place.
While these are American numbers, they show the danger of criminalizing these types of offences. It's expensive to have 1% of your population in jail, especially as that would only be about .5% if the drug related prisoners were removed. Furthermore, it criminalizes those who are put through the system. They have decreased employment opportunities as a result of their criminal record, and as they have a new skill set from interaction with hardened criminals, a criminal life is often a very tempting prospect.
Naturally, some actions should result in punishment. Murder, theft, and assault, for example, deserve punishment. Note, however, the thing that all of these types of crimes have in common. There is a direct harm of another person. This is called the "harm principle", the idea that we should only criminally punish those people who directly harm other people. It was famously advanced by the British philosopher John Stuart Mill.
Essentially the harm principle recognizes that the use of force is a corrupting thing by its nature. Compulsion is not good for the compelled or the compeller. It brutalizes the victim and turns the perpetrator into a brute. We should be extremely careful what aims we use force to accomplish.
Why, then, should we use force to stop one person, or group of people, from directly harming another group? After all, the surely the same argument applies here.
The difference is that if we only use force in accordance with the harm principle, essentially we reserve the use of force only in circumstances where it prevents an innocent person suffering from the perpetrator's attempt to use force. You stop a thief from forcing someone to give up his wallet by forcing him to not steal. At least in this latter circumstance, the use of force is only to prevent the further use of force.
That is the aim of the harm principle, to minimize the use of force in society by only using force against those who would use force to oppress others. In this way maximum freedom is allowed. It is, however, tempered, as noted early, by responsibility.
This system seems sensible. Considering the costs of American style crackdowns on "moral" crimes, it may well be necessary. Regardless, it's a conversation that needs to be taken seriously.
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