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By Root 811 0

the chance that an individual will harm another? Is the violence in football morally acceptable because the government permits it, or because the participants choose to waive certain natural rights? Lest one think that the government would have the sense to stop at criminalizing drunk driving and leave activities such as attending football rivalries unregulated, consider that many jurisdictions ban the ownership of German shepherd dogs, a breed described by the American Kennel Club as “energetic and fun-loving . . . very fond of children . . . a loyal family pet and a good guard dog, the ideal choice for many families.” If German shepherd dogs can be banned, then what other breeds as well? Golden retrievers? Beagles? Chihuahuas? Dogs altogether? The purpose behind this discussion is that justifying the criminalization of certain actions on the grounds that they increase the likelihood of harm to others, but fall short of causing actual harm, is hopelessly subjective and opens the door to the regulation of practically any activity the government chooses. It opens the door to totalitarianism.

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More fundamentally, why should the government be criminalizing activities, such as driving without a seatbelt, which are merely risky to ourselves? Laurence M. Vance writes,

Seat belt, helmet, and texting laws are predicated on the idea that we need the state to protect us from doing something stupid. But it is families and friends that should be the ones persuading people to buckle up, wear a helmet, or turn off their cell phone, not the state. But they won’t do it, some say, and therefore the state has to do it. But this presupposes that the state cares more about an individual than do his family and friends—a very dubious proposition.5

Why should this sphere of activity—convincing our loved ones to lead healthier and safer lives—come within the coercive power of government? What’s next? Government-mandated marriage counseling sessions?

A particular type of victimless crime demands particular attention: Crimes which punish consensual actions between individuals. In order to be considered harm, a “violation” of natural rights must be nonconsensual, since if the recipient of that “violation” consented (assuming he was mentally capable of doing so), he was simply exercising his own liberties, and there can therefore be no victim and no violation of natural rights and hence no crime. This accounts for the difference between consensual sexual conduct and rape, and tackling during a football game and aggravated assault.

Sadly, the criminalization of consensual conduct has historically been one of the primary means by which societies have enforced their own moral values upon others. Such was the case for centuries with sodomy laws, which punished the intimate sexual actions of consenting adults. What legitimate interest could society possibly have in regulating what types of harmless physical interaction may be engaged upon in the privacy of the home? Not only is the public not affected by such actions, but the public would not even know that such actions were taking place. Such laws have nothing to do with preventing harm, or even benefitting a certain group, but merely imposing the collective values of the majority upon the minority in an area of human behavior that should be immune from government regulation, as it does not assault natural rights. Thus, they are at their base arbitrary restrictions of fundamental liberties, that is to say, restrictions which do not address harm.

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What Is Offense?

Offense, on the other hand, is merely an affront to another person’s senses or subjective sensibilities. This difference is related to the distinction between malum in se and malum prohibitum. Malum in se refers to an action which is “evil in itself ”; it is a violation of the Natural Law, and therefore needs no explanation or justification for why it is evil. Its evil is, in other words, self-evident. Why is infanticide evil? Although one could write volumes reasoning why it should be criminalized, every single human inherently