Topics Law

Question I found the following statement on a website, along with many other radical philosophies, and just wondered what the panel thought of it. "The state (society) shouldn't outlaw activities like drug use/sale, prostitution, pornography, gambling, euthanasia, and abortion (the traditional "victimless crimes") -- or indeed even old-skool duelling, killer game shows, and consensual cannibalism. No matter how stupid, dangerous, "shocking", or "perverted", as long as it doesn't actually harm anyone against his will, it shouldn't be illegal, period. One has every (moral) right to ignore any law that violates the above-mentioned principle (at one's own risk, of course). Or, in the words of St. Thomas Aquinas: "Lex malla, lex nulla"; a bad law is no law."

Accepted:
October 3, 2006

Comments

By way of a partial answer: the phrase 'against his will' in the quotation places the moral stress on the notion of 'informed consent'. But such consent is not an uncontroversial concept. It may that 'the state' has a duty of care with respect to those whose -- or in those situations where -- consent is not or could not be 'informed'. Please see my answer to a previous question for a bit more on this:

http://www.amherst.edu/askphilosophers/question/1157

Such a view about legitimate state action often rests on the following sort of argument:

(1) Since coercion is generally wrong, the coercive activities of the state (setting up rules that are backed up by credible threats of punishment) need a special justification.

(2) The only such justification that would be possible is the actual or hypothetical prior consent of those to whom the rules apply.

(3) No one would reasonably give prior consent to being coerced to act in her own self-interest (except, perhaps, under conditions in which she loses her mental faculties).

(4) Therefore, paternalistic laws (those that require citizens to act in ways that further their own self-interest) are unjustified.

All three premises of this argument are debatable.