One Rule for Constraining Lawmaking

‘knowable’ harm — which can be material or psychological, but not spiritual

Photo by Tingey Injury Law Firm on Unsplash

The organizing principle of the U.S. can be said to have been ‘liberty first and foremost’. To that end, there has been much talk from the beginning about ‘limited government’. For many, the very existence of government is seen as an inherent threat to liberty: the ‘smaller’ it is, the less of a threat to liberty it must represent.

I am all for maximizing liberty, but I disagree with the idea that government is an inherent threat to liberty. I think people who think that way have confused ‘smallness’ with ‘limited’.

I’ve written this before, but it goes precisely to the point of this article: John Locke famously wrote that government should be limited to the role of “Night Watchman.” That is, it should be limited to protecting persons and property. If, however, you are alone at night in a sketchy part of town and you see an officer of the peace on the street corner where you will be waiting for a while for a ride, do you want that officer to look like a ballerina or a linebacker?

Sure, a properly trained officer who looks like a ballerina can get the job done, but the point is that to protect persons as well as property government must be big enough and strong enough to wrestle to the ground the biggest, baddest predators in society. These days, that requires more than Marshal Dillon and a game but limited Chester — or a well-intentioned but addled Festus.

Liberty is about laws, not the size of government as measured by how much money it is spending. In this country we really have one right: the right to do whatever is not against the law.

How should we decide what to outlaw?

The principle of liberty first and foremost suggests first of all that fewer laws constraining individuals means more liberty. Given that principle, it is not a question of it being O.K. to outlaw some conduct or action, or even that outlawing it would be a good thing, or even that it should be outlawed: only conduct/actions that must be outlawed may be outlawed.

How can we know what must be outlawed? I think there should be one rule: outlawing conduct/actions that do knowable harm to people (to include their property).

What does “knowable” mean? What I mean by it is harm that other people can accurately perceive or discern.

Harm that is material in nature is most readily knowable: physical harm to a person or a person’s property or taking property (including money) from a person without that person’s voluntary (of course) permission. Laws against such conduct are the easiest to write and adjudicate.

Psychological harm is every bit as real, but can be somewhat more difficult to ‘know’. Still, we all share the same general psychological makeup and can perceive well enough what constitutes harm of a psychological kind to another person. Different people have different degrees of sensitivity to different psychological vulnerabilities, but we all experience all of them to some degree. Such harm can be more direct or indirect, more blatant or more subtle, more intense or less, but it is relatively easy for people in general to relate to such harm, and therefore to make judgements about actions generating such harm as a judge or jurist. Psychological harm, though likely to be more difficult than material harm is to codify and adjudicate with precision, can be amenable to making and enforcing laws banning conduct/actions that would cause it.

One question that arises is whether there can be such a thing as laws banning spiritual harm. I have no doubt that such harm can be experienced. Such harm occurs when a person is required to do something that is counter to what that person believes to be acceptable — moral — behavior. The question is whether conduct/actions generating such harm should be outlawed.

To that end, the nature of spirituality is a problem. Spiritual harm is not knowable in the way that material and psychological harm can be, a way sufficient for making laws and judging adherence to them. That makes laws and their enforcement in relation to spiritual harm impossible.

We humans share a psychological makeup that is similar enough for us relate to another person’s claims regarding psychological harm, but that is not the case with spirituality. So we can have some hope of accurately understanding the psychological claims of other people. We have no chance of understanding another person’s spirituality. Even people who profess to share a certain spirituality — people next to each other attending a service or other ritual — can have hugely different understandings of the spirituality they would say they share.

Moreover, spirituality can take a person literally anywhere. It provides absolute liberty, what Immanuel Kant called autonomy: spiritually, absolutely anything goes. Spirituality can sanctify or condemn any act whatsoever. Since we have no way of judging spiritualities in themselves, whether this one or that one is real or not, or true or not, etc., we are at a loss to judge any conduct/action that a person says accords with any form of spirituality.

Also, a person can make a claim of being spiritually harmed by someone else’s actions that don’t involve that person in any way. Yet, if those kinds of conduct/actions are not outlawed, they are being made to suffer spiritual harm. Again, it is our inability to know another person’s spirituality that is the source of the problem in making and adjudicating laws related to such claims.

At the same time, since we cannot know a person’s spirituality, we have no chance of judging accurately whether a person is being sincere when making any spiritually-based claim. As such, a spiritual claim of some kind can readily serve as a ‘cover’ for any material or psychological motivation or intention any person might have.

So laws related to spiritual harm, as such harm might exist separate from material or psychological harm, are simply not possible. Spiritually, we must all be prepared to take our lumps.

One way to think about all this is to think of how easy it would be to fake having suffered one kind of harm or another. It is easy to try to fake material harm of some kind, but it is extremely difficult to get away with it. Psychological harm is easier to fake, but still something about which all other people can make informed judgements. A claim of spiritual harm, on the other hand, is perfectly amenable to being faked, for the simple reason that no other person(s) can do anything but take a person’s word for it that such harm has been suffered.

So, to maximize the liberty that coexisting people can share simultaneously, laws must be limited to banning conduct/actions that result in knowable harm: material and psychological harm. Whether every possible harm of those kinds should be illegal and what penalties should be attached to violating them are separate issues. At the same time, maximizing liberty also requires for everyone to allow everyone else to do whatever does not violate a law, without interference, confrontation, or harassment of any kind, even if they have a psychological or spiritual abhorrence to some action that is not illegal.