Liberty, Not Legislated Morality, Leads to Human Excellence

Originally published on Libertas Institute, December 4, 2012.


“The more prohibitions you have, the less virtuous people will be” (Lao-Tzu). 

“The more numerous the laws, the more corrupt the government” (Tacitus).

Everyone has a philosophy. The question is whether it is a good philosophy that leads to a consistent, objective, and systematic way of thinking, or a bad philosophy that leads to subjective thinking and cognitive dissonance. In a recent article published by the Sutherland Institute on the supposed evils of marijuana decriminalization, the Institute’s president, Paul Mero, demonstrates a clear case of bad philosophy, and exemplifies what is currently wrong with Utah political thinking in general.

Who Cares About Philosophy?

Well, to answer this question, Paul Mero says that he does—but more on this later.

Philosophy is ideological, impractical, subjective, and doesn’t reflect any meaningful aspect of reality, right? Wrong. The truth is that this common idea of philosophy applies only to bad philosophy (what most political advocacy groups espouse), whereas good philosophy is realistic, practical, objective, and its endeavor is to understand principles of reality and human nature, how we know that reality, and how we are to live in that reality to pursue and achieve happiness.

Let me explain how this works in the context of government and politics—especially in light of America’s period of “enlightenment.”

The American philosophical adaptation of the European period known as theEnlightenment made certain observations on the individual and posited certain axioms (principles) of reality (metaphysics), and used these principles to extrapolate a code of interactional ethics (politics). To such founders and early American thinkers as Samuel Adams, Thomas Jefferson, and Thomas Paine, the problem with previous government structures was that they used positive (i.e. man-made) law as a way to construct society by compelling the individual to act in accordance with the monarch’s prescribed  idea of morality. Said Thomas Jefferson to the Georgetown Republicans in 1809,

The principles on which we engaged, of which the charter of our independence is the record, were sanctioned by the laws of our being, and we but obeyed them in pursuing undeviatingly the course they called for. It issued finally in that inestimable state of freedom which alone can ensure to man the enjoyment of his equal rights.  [emphasis added]

In addition, most of the founders were vocally disdainful towards democracy (aform of government, not to be confused with the democratic method), as they saw law based on the unchecked majority as a threat to individual liberty similar to law arbitrarily prescribed by a despotic monarch.

Early American revolutionary and constructional thought generally posited that once a society of individuals are secured and protected in their natural, inherent, and inalienable rights, then they would naturally gravitate toward and create good society. “Good society”, in their view, was not a positive (again, man-made) fabrication and creation of what followed from government’s imposed limitations through positive law (as it was with the monarchs of old), but a natural consequence (effect) following from the individual’s natural causal expression of his rights in pursuing happiness. In other words, by following such “laws of our being” (as Jefferson put it) in pursuing happiness, individuals would naturally create good society. That said, such early constructionists, it is important to note, were not always consistent inapplying these principles, but this was the basis and ideal of the American Enlightenment’s foundation for human excellence and reasons for separation from England.

Today, many so-called “conservatives” wish to form and mold society according to their own ideas, by using law—under the guise of “morality” (ironically to the actual violation of morality)—to dictate what they think constitutes the good society of our forebears. Another irony here comes from these so-called “conservatives” in arguing that libertarianism is socially and politically amoral. This is blatantly untrue.

The misunderstanding comes in their apparent inability to see that libertarians place more consistent and strict moral priority on different virtues than do conventional conservatives. For instance, when Patrick Henry cried “give me liberty, or give me death” his statement reflected the libertarian priority and importance of liberty over life itself. This is not to say that Henry did not value life and was amoral, but he was making a moral priority claim in realizing that securing liberty is inherently and morally necessary in man’s pursuit of happiness—the ultimate human motivation in obtaining “excellence”. Most conservatives unwittingly posit this same libertarian axiom in their support of the military “protecting and defending our freedoms by paying the ultimate sacrifice.” If liberty is not placed in a greater moral priority to life itself, then conservatives must realize that the “ultimate sacrifice” offered by the military is both illogical and immoral on its face.

By molding society by positive edict (violating many axioms of morality) and suffering from troublesome priority issues, conservative despots reject the principles of reality and human excellence upon which the vast majority of founders sought to base and build a government. Instead of believing that good society is a natural effect following from the cause of securing individual rights, some seek to return to the monarchical claims that government’s positive edicts and laws are what constitute and perpetuate a good and moral society.

To the Founders and early American thinkers, a constitution was a construct of the people to limit government in arbitrating matters where natural rights were violated. A constitution is what the people used to constitute and limit government. However, today, many of these conservatives, in alignment with collectivist liberals, attempt to wrongfully promote the idea that a constitution is a tool of the government to constitute and make (through supposed “moral” law) good society according to the majority’s concept of “good” (a literaltyranny of the majority). In so doing they reject a Constitutional Republic and institute in its stead a Democracy.

Enter Paul Mero 

While this section specifically references Mero and the arguments he employed in the above-referenced article, it is not meant to necessarily single him out or cast aspersions upon his character. Mero’s opinions are shared with other conservatives who wrongly believe what Mero claimed, so by objecting to Mero I am objecting to a set of popular misconceptions which merit rebuttal.

The crux of Mero’s argument is that smoking marijuana diminishes human excellence, and that it is our moral prerogative to utilize government and the law to promote behaviors that enhance this “excellence.” Mero goes so far as to title the article “Pot smokers want to diminish human excellence” (as if the goal of every marijuana user is specifically to promote human mediocrity) and then decries the “libertarian” path to promote liberty and autonomy a failure in “practical reasonableness.” This is all done while praising “philosophy and ethics” as “essential classes [in a liberal arts education] to study how we might become better human beings in the quest for human excellence.” Oh, the irony!

The purpose of law, according to Mero, is to legislate morality. Reasonableness, however, in keeping with America’s founding thought, goes against his claim, since the purpose of law is rather to establish an objective and just standard—with acknowledgment of the individual’s natural rights—whereby two individuals may bring their disagreements or violations of individual rights before an impartial arbiter. Said Samuel Adams in The Rights of the Colonists,

In the state of nature every man is, under God, judge and sole judge of his own rights and of the injuries done him. By entering into society he agrees to an arbiter or indifferent judge between him and his neighbors; but he no more renounces his original right than by taking a cause out of the ordinary course of law, and leaving the decision to referees or indifferent arbitrators.

Here, Adams argues that whatever an individual does in his own personal pursuit of happiness in the state of nature (without organized government) he is perfectly at liberty to do in a state of society (with organized government). The only difference between a state of nature and a state of society is the agreed establishment of an objective and just standard (law) to interpose an “arbiter or indifferent judge” between ourselves and our neighbor. This is in keeping with what Frederic Bastiat explained in his famous treatise The Law:

Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.

Our right to our life, liberty, and property exist prior to the law. Whereas Mero would subdue inherent liberty—thereby confusing virtuous and moral priority—in order to argue for his legislated idea of human excellence, the libertarian argues that human excellence is only truly achieved in a society where individual liberty is properly defended, upheld, and kept vouchsafe as a morally necessary virtue pertaining to moral persuasion. Said William Godwin,

If he who employs coercion against me could mould me to his purposes by argument, no doubt he would. He pretends to punish me because his argument is strong; but he really punishes me because his argument is weak.

The punishment spoken of by Godwin refers to despotic arguments and practices that seek to place government as lord over the individual, to compel the individual to act—by violent means under the cloak of “moral law”—in the despots’ (whether it be a monarch, an oligarch, or a mob) prescribed  way, whether that despot be a monarch, an oligarch, or a democratic mob. Despots throughout history have always claimed that their necessary tyranny was in the best interest of the individual and society in order to form and maintain good and moral society to advance human excellence (some of the greatest despots have even done this in the name of God—for His glory and honor).

“Human Excellence”

Mero’s lip service to the need of learning “philosophy and ethics” (ethics is actually a subset of philosophy) is appropriate, since he and those who share his opinions are in desperate need of learning both.

Mero not only fails to define “human excellence” but also forgets that any sense of “human excellence” depends on the most basic axioms of human action: autonomy and liberty. Indeed, man’s excellence is measured based on the fact that he could have been and done one thing and he chose a better way—in other words, that he excelled when he could have failed.

Such similarly inconsistent “conservative” thinkers argue that drug prohibition does not take away liberty, autonomy, or someone’s ability to choose, but only puts legal consequences on the act if they so choose to participate (even when there is not a directly injured second party). This argument is comical at best, however, for it hearkens to the insane premise offered by Senator Harry Reid who fails to convince anyone that we, in America, have a “voluntary tax system.”

The Reality of the Situation

All of this said, we should ask ourselves whether the so-called “libertarian” view has any practical merit. Will man strive to achieve his supposed “excellence” even if he is allowed by law to use marijuana? What if he is allowed to use any current socially prohibited narcotic without legal recourse? Won’t society quickly devolve into a pot-smoking, acid-dropping, ecstasy-raving country of addicts if we do not legally prohibit them?

Are there any examples of successful decriminalization?

What’s Going on with Portugal? 

In an article abstract from The New Yorker, dated October 17, 2011, Michael Specter reports concerning the problems that Portugal faced.

By the nineteen-eighties, drug abuse had become a serious problem in Portugal. The Lisbon government responded in the usual way—increasing sentences for convictions and spending more money on investigations and prosecutions. Matters only grew worse. In 1999, nearly one per cent of the population—a hundred thousand people—were heroin addicts, and Portugal reported the highest rate of drug-related AIDS deaths in the European Union.

This, on its face, may seem to prove Mero’s point—that drug use inherently diminishes human excellence. Portugal had struggled, like the United States does today, to get its drug problem tamed to manageable proportions. It increased laws, and spent more and more money dissuading people through increased investigations and prosecutions—all to no avail. What Portugal ultimately did differently than the United States is interesting to note. Spector continues:

In 2001, Portuguese leaders, flailing about and desperate for change, took an unlikely gamble: they passed a law that made Portugal the first country to fully decriminalize drug use… “We were out of options,” said Joao Goulau, the president of the [Portuguese] Institute on Drugs and Drug Addiction… For people caught with no more than a ten-day supply of marijuana, heroin, ecstasy, cocaine, or crystal methamphetamine—anything, really—there would be no arrests, no prosecutions, no prison sentences. Dealers are still sent to prison, or fined, or both, but, for the past decade, Portugal has treated drug abuse solely as a public-health concern.

What? Isn’t this counterintuitive? How is “giving in” to the drug users going to help them achieve their “excellence”? Well, in line with what Godwin noted above, Portugal finally realized that persuasion is not generally found in increased laws, investigations, and prosecutions—it is found in the free marketplace of ideas and choice. The government of Portugal invested its money in helping drug users quit the addiction, instead of criminally prosecuting and incarcerating them.

When caught, drug users in Portugal are summoned before an administrative body called the Commission for the Dissuasion of Drug Addiction. Each panel consists of three members—usually a lawyer or a judge, a doctor, and a psychologist or social worker. The commissioners have three options: recommend treatment, levy a small fine, or do nothing.

The United States could certainly take a lesson from Portugal’s actions, for the results were quite astonishing:

In most respects, the law seems to have worked: serious drug use is down significantly, particularly among young people; the burden on the criminal-justice system has eased; the number of people seeking treatment has grown; the rates of drug-related deaths and cases of infectious diseases have fallen.

In fact, because of shifting the focus away from criminalizing drug use and towards helping them the number of users has  fallen dramatically. TheAssociated Foreign Press (AFP) revealed on July 1, 2011, that, after 10 years,

The number of addicts considered “problematic”—those who repeatedly use “hard” drugs and intravenous users—had fallen by halfsince the early 1990s, when the figure was estimated at around 100,000 people…

Other factors had also played their part however, Goulau, a medical doctor added. “This development can not only be attributed to decriminalization but to a confluence of treatment and risk reduction policies.”

Godwin and the early American adaptation of the Enlightenment are proven right, yet again. Though they could have gone even further, Portugal’s bold step showed the realism and strength of using Godwin’s suggested non-violent or forceful forms of persuasion.

As Forbes reported on July 5, 2011,

Many of these innovative treatment procedures would not have emerged if addicts had continued to be arrested and locked up rather than treated by medical experts and psychologists. Currently 40,000 people in Portugal are being treated for drug abuse. This is a far cheaper, far more humane way to tackle the problem. Rather than locking up 100,000 criminals, the Portuguese are working to cure 40,000 patients and fine-tuning a whole new canon of drug treatment knowledge at the same time.

Imagine what American ingenuity and “excellence” could come up with by following Portugal’s example, in terms of helping to heal a person through persuasion rather than criminalizing his actions and punishing him.


Of the many libertarians I know in Utah, I do not know of a single one who promotes addictive and abusive drug use—whether to enhance “human excellence” or to fight against it. To say that marijuana use necessarily leads to diminished “human excellence” is nonsense—for some of the greatest producers and inspiring individuals have used marijuana (let alone harder drugs). I do, on the other hand, see individuals who seek to rely on the strength of their arguments to win the day and promote the most basic axioms of human excellence found within individual autonomy, liberty, and persuasion. And within that group exist a large number of people who aim to persuade their peers to abstain from harmful or addictive substances—exploding the myth, held by Mero and many others, that libertarians are largely a drug-loving crowd.

The ideas that are promoted by closet statists in secretly appealing to the monarchical systems of old—the same systems (including democracy) that our American forebears sought to reject by establishing a Constitutional Republic—which aim to create “good society” and perpetuate “human excellence” through positive edict should be discarded as the bad collectivist and “progressive” philosophies that they are.

Let us instead follow Portugal’s example in promoting true “excellence” through persuasion, not through increased legislation, investigations, and prosecutions. There is something intrinsic in each of us that hearkens to true persuasion and that rejects forced compulsion. Let us all remain true to our nature in proving our own “excellence” through liberty and freedom.