Here in the USA, when we think about existing or proposed legislation, we should put it through various processes that test it for problems that make it bad law. One of the most important of these tests needed for any legislation that is directed towards action by individuals is testing for violation of personal liberty.
This chart provides a path for just such a testing process; if this test cannot be passed, then legislation should not be enacted, or it should be discarded if it has already been made into law.
If the legislation in question can pass this test, then it is reasonable to begin considering other disqualifying factors, such as compliance with the constitution's bill of rights, commerce clause issues, if the law violates the ex post facto provision, enactment and enforcement costs, and so forth. If it cannot, then if the law exists, it should be discarded, and if proposed, the proposal abandoned.
Start by examining the chart below. This gives an overview of the process I suggest should be used to determine if we should be considering laws, or not, with regard to any particular act or acts that are matters of informed, personal or consensual choice. Below the chart, I discuss some of the terms and ideas behind the chart.
The first decision block is the most controversial, and that is also why it is first, so we can discuss it and get that controversy out of the way.
Should we make any act that is personal or individual illegal? The first issue is the question of victims, however if the act is truly personal, then by definition there is no victim. I deal with the idea of victims directly in the chart by leading right to the idea that more than one party is involved, and asking if all parties consent. That means those we might see as victims, too. If all parties consent, this leads to the same ethical basis as when one commits an act that affects only one's self — and we can start with the presumption that there is no victim. We may change that presumption in the next step.
Assuming the act is personal, or involves only consenting people, the next question deals with the idea of being informed; that is, do all parties understand the consequences of the act under consideration for action at law.
You may have observed that I didn't incorporate the idea of adult consent in the chart; that is because that idea is legal sophistry that exists only to ignore reality and is unethical by its very nature because it deprives mature and informed, but young, individuals of social and legal status arbitrarily, while at the same time it confers immature and uninformed, but older, individuals freedom to act based on the false presumption that they understand things that they clearly do not actually understand.
There is no question that determining who is actually informed is tough to do, but that doesn't give us a good reason to side-step it and replace it with the nonsense answer of a line drawn by age, which is certain to be wrong on both sides and for very wide margins — that's just being lazy and irresponsible. Further, working to see that the people are informed is a legitimate role for government. Clearly, any law that restricts any act must deal with the idea of informed consent properly or be relegated to the status of an unethical law. The problem is twofold:
If people are uninformed and the law doesn't account for that, the law is fatally flawed because it allows victimization.
On the other hand, if people are informed and the law doesn't account for that, the law is fatally flawed because it creates a false portrait of a victim where said victim doesn't actually exist.
That is why the "line in the sand", or in other words, arbitrarily assessing a citizen's informed status by virtue of a specific physical age, is inherently unethical and immoral itself — it is guaranteed to directly commit both of these abuses of the citizenry.
If everyone is informed, we're done. There is no sufficient justification for creating a law against such a situation.
Now, if multiple parties have not consented, or anyone is uninformed, we need to examine the act itself for harm. Harm is fairly easy to define in terms of where we should draw a line. We don't want anyone physically harmed without consent or knowledge. We don't want property harmed. We don't want finances to be harmed. We don't want reputation to be harmed such that it would have material consequences.
We're talking about direct harm here. For instance, we're not talking about if property value goes up or down because the fellow next door didn't mow his lawn; there is no right to have property values go in any particular direction with regard to other people's actions. We're talking about when that same fellow next door comes over and cuts your tree down, or parks a junk car in your field, or poisons your land, or water that flows through your land.<strong> Direct harm.</strong>
It is time to point out that inherent in the paths through the chart is the presumption of your right to decide to harm yourself, your property, your finances and your reputation either directly or in taking a risk that harm might be the outcome. It's your money, property, body and reputation. You are the person with the rights here — no one else.
If no direct harm is done, again, we're done — there is no justification for creating a law against any situation such a path describes.
But if harm is caused, there is still one more question to ask: What about self defense? If I enter your home and you believe that I am going to harm your family or yourself, clearly you have to be able to act to prevent this, even if it causes me harm. Making such action illegal creates victims of others; your family and you. So if the action is self-defense, then we should not be making laws against it.
If the action was not self-defense, we have arrived at the definition of an act that very likely is an appropriate candidate for legislation.<strong>Does this relate to how we make law?</strong>
Not always. Often, we make laws against acts that in general seem like really bad things (ie, assault), and then work out the details; for implied consent (boxers in a ring), for degree of harm (degrees of assault, use of weapons, consequences), for self-defense (you were attacked, so...) and so on.
However, we also make very bad law that, had it gone through this process, would have been stopped before it began to harm our society. Marriage laws that forbid polygamy, prostitution, and same-sex marriage are good examples of this. Others include drug laws, laws on consensual sexual practices, laws on public nudity, laws against doing any one thing on any one particular day, government sponsorship and support of one religion in favor of another or lack thereof, and so on.
By all means, try to work one of these laws through the above chart. If you're honest, every one of them will end up in the "no law" box. Or more generally, try running a prank through, practical jokes, putting the outhouse on the courthouse lawn, bullying, using drugs, abusing animals, burning down someone's home, rape, polygamy, can't buy beer on Sunday, various building codes (these are interesting... some will fall through, some will not), water and pollution issues, conservation, flag handling and so on. Really, try it. It's a fascinating exercise.
These issues aren't as tough as many people seem to think they are. I hope this chart is of use to you in understanding where your rights to consensual, informed choice should end — only where another's rights begin.