Jewish World Review Jan. 29, 2003 / 26 Shevat 5763

Wendy McElroy

Wendy McElroy
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There ought not to be a law | One danger of arguing for or against a position is that everyone thinks you are saying, "there ought to be a law."

Take the issue of discrimination on the basis of sex or gender as an example. If you argue against it, people assume you want to prohibit discrimination. If you argue for the right to discriminate, they assume you want to return to Jim Crow laws and force women back to the kitchen.

"There ought to be a law" is the unspoken message underlying much of public discourse. And that message makes people reluctant to listen impartially because agreement might lead to yet another regulation.

On most of the issues I address, my underlying message is "there ought not to be a law." This is because the issues involve personal ethics, not public policy. The difference: Personal ethics involve moral decisions concerning the use of your own body and property -- that is, virtue and vice. Public policy involves those actions that threaten or violate the rights of others -- that is, crime.

Lysander Spooner, a 19th -century legal theorist, wrote a classic tract entitled Vices Are Not Crimes. He argued: "Vices are those acts by which a man harms himself or his property. Crimes are those acts by which a man harms the person or property of another." I prefer a different wording. A vice is the bad or immoral exercise of a right, for example, to conclude that blacks or women are subhuman and/or to refuse to associate with them. A crime is an act you have no right to commit at all -- for example, theft, murder, rape.

This distinction lies at the heart of the Bill of Rights, which codified individual rights -- the right of every individual to determine the use of his or her own person and property. The Bill of Rights protected personal morality by telling the government to mind its own business regarding matters of conscience. Consider the First Amendment, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press …"

The Bill of Rights doesn't say the "establishment of a proper religion" or "freedom of respectable speech." It protects the right to believe and to speak, even if the ideas and attitudes expressed are wrong, immoral. As Mark Twain would say, "Every man has the right to go to hell by a means of his own choosing."

James Madison, often referred to as the father of the Constitution, wrote in The Federalist Papers: "The diversity in the faculties of men, from which the rights of property originate, is an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government."

Today, the distinction between personal morality and public policy is collapsing. Much of the blame rests with political correctness. This evolved form of liberalism declares that certain ideas and attitudes are improper and, so, should be prohibited by law. For example, because it is improper to view women as inferior to men, discrimination against women should be prohibited. The law should encourage correct attitudes and discourage incorrect ones.

Political correctness stands in sharp contrast to the traditional American value of legally respecting, not restricting, everyone's right to their personal beliefs. The beliefs may be accurate or false, virtuous or vicious, but everyone has the right to use their own judgment to arrive at their own conclusions.

And the right to discriminate based on those conclusions comes from freedom of association. That is, the right to decide whom you wish to invite into your home. Whom you wish to hire as an employee in a business you own. And that decision should be left to the judgment and conscience of each human being. Not law.

The conflict between personal freedom and public policy arises when society strongly disapproves of certain moral choices, such as discriminating on the basis of race or gender. When a choice becomes widely viewed as a vice, society often tells the erring individual, "you have no right to reach this conclusion and live according to it." In other words, "there ought to be a law."

This approach assumes that personal freedom must be restricted in order to promote virtue: It assumes that the two are in conflict.

I believe the opposite is true. The freedom of individuals to choose, without intrusive state regulation, is the prerequisite of morality. A coerced "choice" does not reflect virtue, only compliance. In other words, you cannot force a person to be moral; you can only make them conform. True morality requires freedom and cannot exist without it.

Those who value virtue should be first in line to declare, "there ought not to be a law" governing vice.

What there ought to be is a return to non-legal remedies for vice: education, peer pressure, denial of membership, shaming, persuasion, excommunication, therapy, losing face, losing business, non-violent protest …

People who believe in both morality and freedom, as I do, should argue vigorously for virtue without ever denying the freedom of the individual to decide. Because without freedom there is no morality. Only social control.

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JWR contributor Wendy McElroy is the editor of She also edited Freedom, Feminism, and the State (Independent Institute, 1999) and Sexual Correctness: The Gender Feminist Attack on Women (McFarland, 1996). She lives with her husband in Canada. Comment by clicking here.


01/22/03: Gambling with race and gender cards
01/02/03: The future of fatherhood
12/26/02: U.N. complicit in forced sterilizations
12/20/02: Compassion, kindness killed by fear, paranoia
12/11/02: Affirmative action insults immigrant contributions
12/04/02: Stand up for yourself
11/27/02: Feminist fighting: Aren't we all women?
11/20/02: Rights & responsibilities
11/14/02: Feminist "urban legends"
11/06/02: Equal access does not guarantee equal outcome
10/24/02: Battered Women's Syndrome: Science or sham?
10/17/02: I demand a civil society that respects the individual and acknowledges the existence of honest disagreement between human beings of good will
10/09/02: Abortion debate is about to be ratcheted up yet again
10/02/02: 'Restorative justice' offers battered women more options
09/25/02: Why is prez promising to embrace UN radical social engineering programs?
09/18/02: Dirty dealings kill men's panel
09/11/02: Taking back your power
09/05/02: Calm down, Hootie!
08/21/02: Will Congress empower a group of radical feminists to oversee money slated for Afghan women?
08/14/02: Empower the U.N. with power to sculpt American laws and institutions into the image of gender feminism!?
08/01/02: Practicing 'intellectual virtue'
07/24/02: All male, bad. All female, good: Your tax dollars at work
07/11/02: Put Up or Shut Up
07/03/02: NOW they've done it, again!
06/19/02: A dark cloud shades U.N. Women's Treaty
06/10/02: This Father's Day, send justice
05/31/02: When good women do nothing
05/28/02: Feminists claiming motherhood as liberal cause
05/20/02: Wounds in health care system are self-inflicted: Or, why "my son the lawyer" makes more sense
05/10/02: Are parents boycotting public schools?
05/03/02: Women can't be gun-shy about defense
04/25/02: The Bill of Intellectual Rights
04/19/02: World Bank or World Government?: The World Bank is blackmailing impoverished nations
04/12/02: Victims From Birth: Engineering Defects in Helpless Children Crosses the Line
04/05/02: The professor made me cry, now I will make him pay!
03/31/02: Doctors and teens --- parents be on guard
03/22/02: I was born, now I'm suing you!
03/15/02: The 21st Century is knocking at the barricaded door of feminism
03/08/02: Fun and games at the Ms mag Bulletin Board
03/01/02: Andrea Yates, NOW, and Feminist Jurisprudence
02/22/02: Lady, Your Slip is Showing
02/14/02: 'Abusing' Valentine's Day
02/11/02: Is NOW Pro-Choice or Pro-Abortion?
02/01/02: Are 'fathers' rights' a factor in male suicide?
01/25/02: Is the U.N. Running Brothels in Bosnia?
01/18/02: 'Freedom' at another's (moral) expense
01/11/02: Feminists hit Ground Zero with WTC funds grab
01/04/02: Males winning "diversity discrimination" cases is good?
12/21/01: Good will toward men
12/14/01: "Boss Tweed" feminism
12/07/01: Call me 'anti-woman'

© 2001, Wendy McElroy