How to prevent murder (and other crimes): Regulatory law vs. Freedom

Estimated reading time 7 mins.

The following was written for myself in 2014 but occurred to me when recently reflecting on the reactions to the current pandemic. I went and re-read it and was surprised to see that I found it quite relevant to the current discussion on preventive lockdowns vs. freedom of action in dealing with the SARS-CoV-2 virus. So with only very minor edits in formatting, I publish it here.

Louis C.K. is among those brilliant comedians who identify universal events and ideas relatable to all, often hitting upon great truths or irrationalities, and are able to express them as to make their truthfulness or absurdity obvious to their audience, and inevitably funny. Such identifications leave people slapping their knees and their friends, expressing the sentence, “It’s so true!” while in other cases, people giggle ashamedly, betraying a guilt in the unnamed sentence, “I know that’s wrong, but he’s so right!” To be clear, I personally find a lot of his premises to be mistaken, and others just not within my taste. But for the large portion of the time when he is along a line I agree with, he presents the side with creative argument and storytelling, combined with immaculate comedic timing.

One such instance is from his 2013 Oh My God HBO comedy special, in which he exclaims that, “The law against murder is the number one thing preventing murder.” The implications I draw from this run further and in a different direction than he proceeds to roll with, but they exist within the statement regardless of his intentions.

How is it that a single law can prevent such an abominable action more effectively than anything else, and how is it that we would leave such a serious crime as murder to the effectiveness of a mere law? Wouldn’t it do much better to be more vigilant in trying to prevent such an abhorrent crime before it happens, perhaps by regulating people more strictly?  After all, this has been the approach taken in trying to prevent other—albeit less serious—crimes.

Prevention is impossible and impractical

The acknowledged fact in this case is that you can’t prevent people from murdering; you can only institute severe penalties to be imposed after the fact. And not only according to Louis C.K., but in fact, it is the existence of these laws which has proved to be more effective in preventing the crime than anything else possible, apart from, if you could imagine it being possible, to keep people locked in their homes or followed by an agent of the law at every step of their lives.

But what about that is impractical, even if it really could achieve a zero murder rate? Murder is not an “intrinsic” evil. All values and corresponding evils exist in a context, and arise from a standard. If we take human life (an individual human life) to be the standard determining what is good or evil, we will conclude that murder is an evil, among other lesser evils.

“Life” is more than just survival

But what else makes human life possible, and what makes it successful and worth living? Biological life alone is not what human beings seek. They seek a flourishing life, where they act to gain values and attain happiness. This is impossible if they are to be tied at every step, for the purpose of preventing them from depriving others of mere breath and physical existence. If you prevent action, you prevent life.

The most effective way, then, to at once promote successful human life and protect it is to institute strict laws against murder and to enforce them vigorously. Philosophy, common sense, and historical record show us that Louis C.K.’s proclamation, “The law against murder is the number one thing preventing murder” is profoundly true.

So when considering the problem of people physically harming others, as in the case of murder, we see it sufficient to rely upon laws which are to be enforced after the fact.  Why, then, do we impose paralyzing regulations upon people when acting in the realm of economics, or in other more basic choices in their lives? Businesses are followed, monitored, and bound at nearly every step of their operation, and individuals are told what they may consume, at what price, in what amount, and under what terms, among other things. 

In the realm of potential murder, people are left free until a crime has been committed; in the realm of economics, people are unable to move without say so, lest they take a misstep.

Harm in the name of protection

Under the regulatory state which exists in our society today, we are told how much soda we are allowed to purchase, what we may feed our kids, how and where we must educate them, what drugs we may use or may not, what safety equipment we must wear when driving, cycling, (perhaps soon when jogging?), etc. Banks must report what they are doing at every step, are told what kinds of products they may offer, at what terms they must sell them, to whom, and a whole host of incapacitating regulations. Other companies must explain what they plan to do before doing anything, and are required to get special licenses before operating, all of it resulting in businesses closing, or potential small businesses from ever getting started at all.

The outcome is a deterioration in the success and flourishing of these businesses, the lives of the individuals with interests in them, and a general deterioration in the standard of the lives of everyone in an economy—all of us.

This is all done in the name of preventing such crimes as fraud, theft, and causing harm to consumers, among other injuries. But if laws against murder are enough—nay, the most effective way—to prevent murder, then why are existing laws against fraud, theft, and physical harm to others not sufficient to prevent such things?

What is our goal?

Perhaps it is in the term prevention, which implies eliminating an event before it occurs. In any case, if our goal is to eliminate, or at least keep at a minimum, these types of actions which thwart human life, it would do best to leave people free to act, and only come down upon them when they violate the law, such as we do in the case of murder. You can’t prevent people from lying, stealing, cheating, or harming others, the same as you can’t prevent them from murdering; you can only prevent people and an economy from moving. What we ought to do is make it positively clear that those who violate laws will be punished to the full extent of the law.

John Locke, in his Second Treatise of Civil Government, proclaims, “The end of law is not to abolish or restrain, but to preserve and enlarge freedom.” But in today’s cultural context, law is seen as primarily preventive and restrictive instead of reactive. The result is ever-diminishing freedom, the freedom to live our lives as we see fit, the freedom necessary to promote innovation, abundance in production, and an ever-increasing standard of living for all.

Indeed, society cannot function without law, and people must be held accountable for actions which hinder others through force or fraud. To this, Locke adds, “For in all the states of created beings capable of law, where there is no law, there is no freedom.”

Which attitude is moral and practical?

But this does not imply that the best way to protect people is to stop them and others from moving at all, assuming everyone to be criminals before they’ve committed any act, and therefore regulating them to stagnation. The proper attitude toward protecting individual rights ought to be, in essence, “You are all free to pursue your own happiness in whichever manner you see fit, so long as you don’t, through force or fraud, hinder others from pursuing their own happiness. If so, you will be dealt with resolutely, forfeiting your own freedom to the extent of your crime.”

Today, however, the attitude is, in essence, “You are either a crook or incompetent to take care of yourself, and if left free, you will proceed to defraud or injure others, or otherwise destroy yourself through recklessness. Therefore, we must follow your every move to protect you from others, others from you, and you from yourself.”

The former is the only proper moral and practical attitude to take, and it is in this way that, to paraphrase Louis C.K., “The laws against the initiation of force and fraud—by themselves—can and ought to be the number one thing preventing force and fraud.”

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