Why I’m a Libertarian Part 1/4: The Coercive Nature of Law

Libertarianism is a political philosophy which emphasises individual rights, peace, private property, and free market capitalism. In this series I want to share four reasons that made libertarianism so attractive to me: the coercive nature of law, the efficiency of free market capitalism, the negative externalities of government, and the beauty of the harmony of interests in a free society.

Following the recent and ongoing debate in America over whether businesses should be forced to provide products and services such as flowers or cakes for gay weddings has left me frustrated. Proponents argue that discrimination on the basis of sexuality is immoral and should therefore not be allowed. Opponents typically counter with an appeal to religious freedom.

For reasons I’ve elaborated in my previous post on discrimination, I’m solidly in the latter camp, but I find myself frustrated because the popular arguments advanced for the right to select one’s customers are weak.

Why should religious beliefs give one any additional rights? And are the people advancing this argument willing to extend the principle of religious liberty trumping regular law to people they disagree with? Should, for example, Muslim men have the right to physically punish their wives in accordance with Islamic tradition? If you grant the general principle that discrimination is a rights violation, but one which is trumped by religious freedom, then it’s hard to see how you could consistently oppose other rights violations such as domestic violence if they are carried out in accordance with religious beliefs.

A fundamental underlying problem I see with these popular perspectives is that they treat laws as a value-neutral way of getting desired outcomes: It’d be nice if gay people could buy wedding cakes just like everyone else, so let’s have a law to make it so. But this attitude fails to recognise the inherently coercive nature of law. At its core, a law is a standing threat of violence by a government against its people: If you do X, we will punish you and if you don’t submit to the punishment, we will use whatever force is necessary to get you to comply.

This does not mean that laws are per se bad. Some actions are so harmful and destructive that using violence and the threat thereof is justified. We definitely need laws against things like murder, rape, and assault since these are themselves violent actions, and we need laws against theft, extortion, and fraud since civilization as we know it would collapse without reasonably secure property rights.

But what this does mean is that we should not use laws to solve every minor problem. The harm done by the kind of discrimination discussed above is very minimal: if one bakery refuses to bake a cake for your wedding, you simply go to a different bakery.

When considering whether to pass a law against something, the question should never be “Is X a good thing or a bad thing?” but rather “Is X so harmful that we are justified in using violence to prevent it?” Only if a problem passes this much higher bar should we consider using the law to prevent it.

Is recreational drug use bad? Yes. Bad enough to use violence to prevent it? Probably not. Is playing violent video games or watching pornography bad? Possibly. Bad enough to use violence to prevent it? Probably not. Is prostitution bad? Possibly. Bad enough to use violence to prevent it? Probably not.

If we go through with this filter, we find that most laws on the books today are morally very questionable, which takes us a good part of the way toward libertarianism. How we get further on the way will be discussed over the next three weeks.

For part 2 of this series, see The Efficiency of Free Market Capitalism.

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