And the moral is not the legal.
It is a distinction that often seems to be lost. Admittedly, most people, when faced with the distasteful, the unpleasant or the unfair have a natural impulse to ‘ban it’. That is an emotional response. As we grow up, we learn to separate the emotional from the rational. Libertarianism simply takes this ability to make distinctions to its logical conclusion.
Of course social and personal issues are important and they need to be addressed. It is a worthy goal to oppose hateful, discriminatory, bigoted or irrational conduct. The right way to do that however is by social means, such as ostracization or education. It is wrong to pretend that no harm is done by letting the political into the personal. Moreover, even when one is using purely social means to stop a harmful practice, it is important to keep the political-personal distinction in mind.
As Todd Seavey puts it in this excellent post:
Libertarianism’s chief strength, then, has always been in recognizing the vast gulf between, on one hand, myriad, never-ending social complaints (along with the conflicting social philosophies built around them) and, on the other hand, the minuscule and tightly constrained range of things that rise (or, if you prefer, fall) to the level of political/legal complaints.
The more causes for political complaint people believe themselves to have, the more likely a total state becomes. If selling trans fats — or simply calling a woman fat — is deemed an assault on social justice, a Kafkaesque web of petty laws becomes more likely.
[…] Maybe it’s high time we formulated a more-explicitly tiered language for talking about such distinctions, though: wrong vs. illegal vs. ought-to-be-illegal — grey area, merely unpleasant, bad idea but not really morally-loaded, etc. — since these things so often get lumped together. Libertarianism, though, like no other philosophy, hinges on recognizing these distinctions rather than treating That Which Is Bad as necessarily deserving of simultaneous avoidance, moral condemnation, outlawing, punishment by God, etc., etc., etc.
Most of my posts have been concerned with laws that arise from this failure to distinguish between the moral and the legal. There is the obscenity law, laws against prostitution, laws forbidding discrimination and hate speech, laws that regulate freedom of association, blackmail law and so on. Do these laws improve the ability of some people (the alleged victims) to make more out of their lives? Doubtful, but let us assume that they do. However, even then, any rational system of morality that makes the basic libertarian distinction between the personal and the political must conclude that such laws are immoral.
That is not to say that all laws in this complex world can be straitjacketed into a strict property-rights system. First of all, property rights can be tricky to define in the borders. Secondly, we need to make sure that whatever political system we are proposing is sustainable. The real world is full of political ambiguities. A dogmatically libertarian state just isn’t in the cards, the poor aren’t going to magically go away, deregulation will hurt some people. Finally liberty may be the basic moral good but it is not the only good one needs to survive. And people on the edge will always choose survival first.
In short, we do need to worry about the consequences of everything, even libertarian prescriptions. I believe that it does make sense to have a certain level of mandatory taxation, even if some of that money will necessarily go into projects you do not support. It does make sense to have a certain minimum degree of redistribution and welfare to ensure equilibrium and also to help develop the basic capacities to exercise freedom in children. It makes sense to have compulsory security checks in certain places and it most certainly makes sense to prevent private citizens from acquiring nuclear weapons. It may even make sense to mandate certain consumer protection laws — such as those that deal with information disclosure — though I am less convinced about this. And so on.
What does not make sense, is to pretend that laws like the above — all of which restrict some basic individual rights — are morally neutral/superior or liberty enhancing. They may be necessary and they may increase the happiness of many people and depending on my rational and empirical analysis of the particular issue I might even support them — but to claim that those laws are anything other than a necessary evil is unlibertarian.