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130 Chapter 8 from gay rights to drug legalization: The Tension between Individual freedom and social morality whICh ArgUAbly PrIvATe ACTIvITIes should remain beyond the reach of the law? How strong a presence should the state have in the personal decisions of the ordinary individual? While centrists may agree with conservatives that issues such as gay marriage, abortion, or other private activities should be decided by the democratically elected legislature and not by the courts, this does not mean that we believe these activities should all be legally prohibited. Consider the kinds of activities that libertarians and some liberals believe should remain beyond the reach of the law: using contraception, having an abortion, consensual sexual acts between adults, including adulterous and homosexual acts. The more libertarian among them often go further, arguing that prostitution, drug use, polygamy, incest, and assisted suicide, among others, should also be permitted activities among adults. The morals legislation debate has historically opened up a great intellectual Maginot Line between liberals, who believe that government should have no say in any of these matters, and social conservatives, who insist that the state should be able to reach and potentially prohibit all of these. On these issues centrists often find themselves in the middle between two unacceptably extreme , if opposed, positions. Morals Legislation and the Liberal-Conservative Fault Line The various traditions of liberalism part ways on the issue of the legitimacy of morals legislation. Where classical liberals usually accepted the state’s role in regulating the health, safety, and morals of its citizens, a few early liberals dissented, arguing that society had no interest in regulating personal morality. Bentham had concluded that there was little point in punishing consensual, private acts such as homosexual sex because doing so was counterproductive from a utilitarian perspective . Morals prohibitions, he reasoned, subtracted from the overall happiness of society by preventing those who want to engage in these activities from doing so while giving nothing back to society in terms of collective utility.1 The German political thinker Wilhelm von Humboldt may have been the first (around 1790) to defend an early libertarian argument for an absolute right to live as one wishes, consistent with a similar right for all others.2 Yet it was John Stuart Mill (who cited Humboldt in the inscription of On Liberty) who opened up the gulf between mod- From Gay Rights to Drug Legalization 131 ern liberals and conservatives by drawing a clear distinction between self-regarding and other-regarding behaviors and arguing that all self-regarding behaviors should be off limits to state regulation.3 Mill’s “harm principle,” as it came to be called, was pristine in its simplicity: He began his essay by asserting that “the sole end for which mankind are warranted individually or collectively to interfere with the liberty of any of their number is self-protection.” The person’s “own good, either physical or moral, is not a sufficient warrant.” He insisted that “the only part of the conduct of any one for which he is amenable to society is that which concerns others.” The harm principle drew a basic distinction between “harm-based” laws, which prohibit one person from harming another in a direct and material way (e.g., laws prohibiting murder, theft, fraud, and so on), and laws which regulate behavior that causes no direct, material harm to third parties. This placed off limits two kinds of laws—laws that seek to prevent individuals from making decisions that might potentially harm themselves (paternalistic laws) and laws that prohibit an activity because the majority believes it to be morally wrong (moralistic laws). Mill concluded that moralistic laws prohibiting prostitution, drug use, homosexuality , gambling, and a variety of other issues fall into the self-regarding domain, although he also argued that the commercial and other effects of some of these activities could be regulated.4 Underlying the harm principle was an expansive theory of human liberty that asserted that freedom was necessary for the flowering of selfindividuation . The quest for self-individuation means that each of us must have the right to perform our own experiments in living as we see fit, in order to become a truly individualized self. For liberals who follow Mill, the legal and political world is divided between two realms—one purely personal and completely beyond the reach of government and the other public and reachable by laws.5 Yet true Millians are difficult to find outside the ranks of libertarians today. Most...

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