Government is not reason. It is Force. And since force and coercion necessarily infringe on the freedom of any person whenever it is used, the coercive action will always either be morally right or morally wrong. There is no way around this. When it becomes apparent that governments operate using the medium of force, the dilemma immediately should become very clear: When is it moral and legitimate to use force against our fellow human beings via our agents in government?
First, before that question is answered, some basic premises must be remembered.
The principles outlined in the Declaration of Independence answer the questions of “why,” and “what” as far as governments are concerned. It outlines the reasons for having civil government at all. It asserts that the sole legitimate purpose of civil government is the protection of fundamental rights, and the enforcement of fundamental duties, both of which are inherent in man. Therefore, if we do not clearly understand the bounds of those rights and those rights’ corresponding duties, then we can, all too quickly, create a situation where our agents in government are acting contrary to their entire purpose. And if this ever becomes the case, the people have a right and duty to “alter or abolish” that government.
Therefore, if rights are unalienable to the individual, and legitimate government action would necessarily be derived from those rights, the before mentioned question becomes more easily identifiable: When is it moral and right for us as individuals to use force against our fellow-man? Once this question is answered, the answer to the question involving civil government should become extremely clear, due to the fact that legitimate government action must be in harmony with legitimate individual action. Such legitimate action is only in the defense of those rights, and thus, the enforcement of other people’s duties! It is in response to another person’s failure to live in harmony with their unalienable duties inherent in their personhood in a way that is harming another person. It is only force that is reactionary in the defense of one’s own rights. It is moral and right when it is strictly a defensive measure.
Thus, government force must be held to this principle. Government force should be married to the principle of only using its power in the defense of individual rights, and the enforcement of individual duties. This is especially true since representative government can’t possibly derive any legitimate authority outside of the individual rights/duties of the members of the society which it represents. Anything else could not be an exercise of authority, but merely an abuse of power.
A government in harmony with its entire purpose for existing would hold a defensive standard, and would be a government by restoration. It would be a limited government, which mechanism would only be used to aid in preventing injustice from reigning, instead of taking the presumptuous and active role of “promoting justice,” or even “supplying social justice.” Any government action contrary to this limited and defensive stance would be, at best, unnecessary, and at worst, an outright infringement on people’s rights. And once again, if that were the case, it would be a government which acts contrary to its entire purpose for existing.
Simply applying the principle naturally set by our innate consciences, and our own inherent rights and duties, should be the standard that is set for government action. This is basically what was attempted in making the Constitutions of the several States, and of the United States Constitution. That is the only standard which could truly claim to be in harmony with the principles outlined in the Declaration of Independence. These Constitutions were the attempt by the Founders to make the American standard of government in harmony with eternal principles set forth by the “Laws of Nature and of Nature’s God”. This is one of the biggest reasons why there should be no question as to why public representatives in this nation swear an oath to the Constitution, and not just simply to what a majority of the people desire. One reason, which should be more apparent now than ever, is that the Individual Rights and Duties of Man, which are endowments from the God of Nature, should be considered non-negotiable.
When people act contrary to this understanding, and intentionally violate someone else’s rights, either by action or inaction, we call this a crime. Thus, when a group of people, using the government as the medium for action, intentionally violate someone’s rights, by action or inaction, we should call this a crime as well.
It would be correct to state that it is part of the proper role of government to punish crime. Force is justified in response to crime at an individual level, and thus, it is justified in using the medium of society’s organization itself. But, unfortunately, in our time there is much confusion as to what constitutes a crime. What is the specific standard by which we can tell whether or not an action is criminal?
The Founding of this country was based on principles that run deeper than any earthly institution, or any earthly government. It was based on the principles of Natural Law which were considered to be self-existent and self-evident. Thus, a crime is not merely what the legislature forbade and the king prohibited. In civil society amongst sovereign individuals, criminal behavior was intentionally, whether through action or even inaction, infringing on the rights of another person. At this point, as has been shown above, it is legitimate to react even using force if necessary, to infringe on the aggressor’s freedom to at least the same extent. (And once again, that is merely enforcing the duty that is inherent in the aggressor, or criminal’s, person.)
Now, since every law has a moral backing, the question is which set of morals is to be codified, and is justifiably enforceable against every individual, regardless of their differences of opinions, religious beliefs, culture, and lifestyles. This dilemma was succinctly captured in this quote by H. Verlan Andersen:
“A government which pretends to be just to all men must see to it that the code of morality expressed by its laws is properly enforceable against everyone. With the exception of infants and mental incompetents, everyone is expected to conform to the laws or suffer punishment. But unless each member of society believes the conduct which the law prohibits to be evil, and that which it commands to be good, some will be punished for doing that which they sincerely consider to be right while others will be compelled to do that which they regard as wrong. This violates our sense of justice and the only solution is to find a moral code which is known and accepted by all people. But does such a code exist?” (Moral Basis of A Free Society, Introduction)
Remember that the ultimate goal of civil government is freedom itself. Freedom, which is universally desired and needed for the pursuit of any sort of happiness. The general morality will always be reliant upon this principle, due to the universal nature of the desire of man to be free to pursue his/her happiness. Every statute/ordinance outside of this general morality could, depending on how it is enforced, be “disenfranchising” to a certain portion of the population. If that is actually the case, it would be codification of a particular brand of morality which is not justifiably enforceable against everyone.
We cannot forget that criminal punishment necessarily involves the force of law to penalize the individual that is not compliant with such decrees. This will involve the punishment of life, liberty, or the pursuit of happiness. It will involve bodily harm, restriction of freedom, and/or fines or other deprivation of a person’s property. Thus, the principles and standard held for this type of punishment as a part of the societal structure is so very crucial, especially to those who think about this in terms of good morality and justice.
A good question to think about is this: If you, as a person, would be acting criminally to punish someone for acting or not acting in a certain way, then how could government be exempt from this moral standard? If you, indeed, would be acting lawfully in the defense of your life, freedom, and property, then it should be apparent that it would lawful to hire people to aid you in this endeavor.
The principle of what truly constitutes a crime can be termed: Corpus Delicti. This term is latin for “Body of the Crime.”
This term has been defined in many ways, by many different courts, but it always boils down to at least:
1) The occurrence of a specific injury
2) The injury resulting from action, or inaction, from another person
Black’s Law Dictionary (6th Edition) defines Corpus Delicti as “[t]he fact of a crime having been actually committed.”
But there is more to it than this. Assuming no other contractual duties, this act that is legitimately considered criminal must be an act that is Malum in Se (“wrong in itself”) and not just Malum Prohibitum (“wrong due to prohibition”). Something that is unquestionably wrong, not just something that is prohibited by some governmental “authority” figure. This difference is found in the difference between government punishment of theft, robbery and murder, or government punishment of jaywalking, or someone traveling in their car at a rate that just happens to be above the posted speed limit. Theft, Robbery and Murder are unquestionably wrong in and of themselves (Malum in Se). The latter examples are not.
The concept of “crime” is truly a tripartite recipe. A crime necessarily consists of three equally necessary parts that need to be present for it to maintain its true meaning. The “body” of a crime will always include:
1) Injury, Loss, or Harm. (It must be noted that this ingredient assumes a victim, or victims.)
2) Violation of a Legal Right or Duty
It must be a combination of an Actus Reus (“guilty act”) and Mens Rea (“guilty mind”) for it to actually constitute a crime.
In fact, that saying goes that Actus Non Facit Reum Nisi Mens Sit Rea. Or, “the act is not culpable unless the mind is guilty”.
Remember that these three ingredients are all necessarily going to be part of an actual crime. Self-defensive measures would include injury (#1), and intent (#3). But it would not be violating rights, but merely defending your own rights against an unjustified aggressor. Injury (#1)and a violation of a duty (#2), absent intent, does include liability, but it is not a crime. This is precisely why there are civil courts and criminal courts, both of which are desired in a free society!
For example, lets say that a person is traveling in their car down a road and slips on black ice thus causing the car to hit somebody else’s fence. Yes, this person is liable for the injury, loss, and harm, and the reparations can be facilitated by a court process, but this will be held in civil courts. Why? Because there was no intent to do such action. Now, lets say that a person, instead of accidentally running into the fence, blows the fence up intentionally. Even if the damage done was less than the damage committed by the person who slipped on black ice, the intent would make the issue a criminal matter.
It should be noted that it is, and should be, considered this simple in determining which cases should reside in which courts. Unfortunately, as another symptom of apostasy from the principles of freedom, most legislatures have confused the issue by neglecting the principle of intent in a lot of cases that come within their jurisdiction. For instance, in most areas this author is aware of, traffic law cases (such as speeding) are handled in a criminal fashion, even though they divorce the allegedly “criminal” conduct from the necessary ingredient of intent.
Intent, as a necessary ingredient for actual crime, cannot be understated. In fact, this is the basis for even exempting children and mental incompetents from the force of law, where it may have come otherwise. This understanding was even championed in one of the most famous and influential legal treatises of all time. William Blackstone stated in the Commentaries on the Laws of England that:
“To make a complete crime cognizable by human laws, there must be both a will and an act. For though…a fixed design or will to do an unlawful act is almost as heinous as the commission of it, yet, as no temporal tribunal can search the heart, or fathom the intentions of the mind, otherwise than as they are demonstrated by outward actions, it therefore cannot punish for what it cannot know. For which reason in all temporal jurisdictions an overt act, or some open evidence of an intended crime, is necessary in order to demonstrate the depravity of the will, before the man is liable to punishment. And, as a vicious will, without a vicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will is no crime at all. So that to constitute a crime against human laws, there must be, first, a vicious will; and, secondly, an unlawful act consequent upon such a vicious will.“
Now, a violation of something which would be considered a duty to self, but their fellow man, even with intent, but which does not involve injury to another person lacks a basic ingredient to any legitimate court case: Standing.
Standing, or locus standi, is the ingredient that gives a person a cause of action against another person in court. A person must be directly, and palpably harmed by an action or an inaction from another person to be able to have a case that a court will see. Even to challenge the constitutionality of a statute, a person must adequately demonstrate and explain to the court how they are specifically being harmed by that statute to have standing enough to challenge it. No one, without standing, can go to court as someone else, even if that someone else had standing. (A point which should not be confused with the idea of someone hiring, in one way or another, someone else to aid them in court.)
Having this understanding, it should begin to be clear to everyone that many things that are punished as if they are crimes in our society, are actually no crimes at all – at least as it relates to other peers in that society. In other words: at least, they should not be punished as crimes by their fellow man.
This is not to say that there aren’t immoral things that people can and will do that do not deserve our respect. But, personal decisions that are made, regardless of the moral nature of those decisions, that do not harm other people could never be lawfully constituted as a crime punishable by civil government. If this premise is accepted, where is the logical line in the sand as to what the limits are to government action?
In fact, if someone, as an individual, would be committing a crime to walk into my neighbor’s house with a glock-22 and make sure they are brushing their teeth and not abusing any potentially addicting substances, how could anyone delegate such “authority” to a civil government acting on their behalf? And even if they tried, and dressed this action with a pretense of legality, would this not be a government that is actually perpetrating crime, and not punishing crime?!
After all, it is not as if there is no accountability! People will always be accountable to the natural consequences of their decisions. For those that believe in God, there should be no doubt about accountability towards the Being which gave you breath. That being said, would it not be presumptuous, for those so inclined to believe in a Higher Being, to then turn around and use civil government as if your fellow beings should be accountable to you, instead of the God of Nature? Should this not, like tyranny itself, be considered blasphemous? Who are we, the people, to question, let alone trample, the rights with which the God of Nature endowed man, including the sacred right to pursue happiness?!
The question, as far as the concept of government is concerned, is not whether or not people will have negative consequences for any immoral decisions that they may choose to make; it is the question of when your fellow man is accountable to you, via your agents in government, for the actions they take! And if those consequences do not involve and include palpable injury to another person, where could the line be logically drawn when it comes to adequately defining crime? In fact, who would actually have standing in such a case that didn’t involve the ingredient of specific and palpable harm to other/another persons/person.Whether it is the threat of irresponsible personal debt, drug addiction, bad hygiene, or whatever the case may be, if there is no palpable harm to another being, how could it ever be considered a “crime” punishable by you via government force – especially since it was hopefully already conceded that you, as an individual, would not be able to lawfully force your will and opinion doing the same.
In fact, as has been pointed out, if this force and punishment is allowed, would that not be criminal in and of itself?! And when this is done by a government that theoretically represents us, what sort of reflection does this give of the moral state of our society? In fact, at that point, would we not be responsible for the criminal actions our agents in government carry out in our name? At that point, how could we exempt ourselves from the DUTY, as Jefferson put it, to “alter or abolish” tyrannical government?
When these principles are understood, often, even traffic enforcement, and the so-called “Justice” Courts become seen for what they all too often have become… A source of injustice! A place in our society where some days more criminal activity occurs, wrapped the clothes of supposed “legality,” than in the rest of society as a whole. The author knows this is unpopular to state, but it needs to be stated.
When will we, as a society, revive the attitude held in this quote by Thomas Jefferson when he stated in the Notes on the State of Virginia that:
“The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”
The role of government is simple. When will we, as a society, and as a nation, remember this?
Thomas Jefferson said it well in this statement that is found in his first inaugural address:
“A wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government.“
Will we heed this council and understanding? Even in our local communities? In the end, since civil government will merely be a reflection of the people, it is entirely up to us.
The City of Orem Justice Court, which was established in September 2010, declares four “core principles” as “objectives”:
1. Treating Individuals with dignity and respect
2. Ensuring that proceedings are open, impartial, and timely
3. Providing appropriate case follow-up to ensure compliance with judicial orders.
4. Advancing justice under the law
It claims that its mission is “to improve the quality of life in our communities”.
After understanding the principle of Corpus Delicti, which will necessarily be behind a free society, the author will leave the reader to judge for him or herself whether or not the system itself goes contrary to its entire claim.
It is in this context that I feel this quote has more meaning than what was perhaps even intended by a justice of the US Supreme Court:
“Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a law-breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”
– Justice Brandeis
Olmstead v. United States, 277 U.S. 438, 485 (1928)