As the debate between libertarian and moral conservatives shows no signs of abating, I thought I'd take another look at the drug issue, which is a frequent area of contention. I'll start with my remark yesterday in discussing Pope Benedict:

If there's one thing worse than a conservative, it's a conservative who used to be a liberal.

It is often said that libertarians can consistently favor legalizing certain “victimless” crimes while leaving it open that such things might really be immoral. A reader of my earlier post on libertarianism commented: “Libertarianism does not say whether gambling, prostitution, drug use, etc. are good or bad but whether they ought to be legal or illegal. I personally thinking (sic) smoking crack is bad, but I have no right to use the force of law to stop someone from doing it.” I used to buy this sort of argument. I don't anymore. Here's what’s wrong with it.

Suppose you're a contractarian libertarian. Then you think that all moral rules derive, roughly, from what all rational agents would agree to. But not everyone would agree to redistribution, so that can't be morally required. And not all people would agree either to rules against prostitution, smoking crack, etc. – which means these things can't be considered wrong either. So, not only should there be no law against them, but they can't be regarded even as immoral. This sort of libertarianism is therefore strictly incompatible with moral conservatism. And some libertarians who take the contractarian approach (e.g. Jan Narveson) explicitly acknowledge this.

Now suppose your libertarianism is grounded instead in some sort of Aristotelian or natural law moral theory. Then our rights derive from the role they play in helping us to flourish as rational social animals, fulfill our natural end, or something of that sort. But in that case it is very hard to see how there could, strictly speaking, be a right to do what is contrary to moral virtue. If we grant, for example, that smoking crack is contrary to virtue, and that rights only exist insofar as they facilitate our ability to master the virtues, then there can be no such thing as a right to smoke crack. There may, of course, nevertheless be all sorts of prudential reasons why we might wonder whether it is a good idea to have government forbid or regulate drug use. But what we can’t say in this case is what libertarians usually want to say – that a government that forbade you to smoke crack would be violating your rights. And this is, indeed, why many libertarians don’t like Aristotelian and natural law approaches to arguing for rights – they fear that such attempts, if followed out consistently, will end up denying that we can really have a right to many things libertarians want to claim we have a right to.

Now this raises all sorts of questions, but it will suffice to make the point. I would argue that any attempt to give a moral foundation to libertarianism (e.g. utilitarian, Lockean) will inevitably end up either favoring moral conservatism to such an extent that it fails to count as genuinely “libertarian” at all (since it will end up denying that we can, strictly speaking, have a “right” to do many of the things libertarians want to claim we have a right to), or it will succeed in being genuinely libertarian, but in a way that rules out the possibility of moral conservatism. In short, there is no coherent way to be both morally conservative and strictly libertarian. “Fusionism,” the attempt to fuse libertarianism and conservatism, is incoherent – whatever my younger self might have said to the contrary. You can still be a conservative who strongly favors the free market and severe limitations on government power. And you can, as a conservative, doubt for pragmatic reasons whether paternalistic regulations are a good idea. But no conservative can hold that it is strictly an injustice to outlaw what is immoral, that there is “a right to do what is wrong.” You cannot be both a conservative and a libertarian.

Illegal does not mean immoral. Malum prohibitum is not malum in se.

Now, obviously some drug use is so utterly egregious that the individual user is placing his life and health in danger. Whether self harm is immoral is of course debatable. Should I be free to amputate my own fingers? Scorch myself with hot irons? If I inject heroin to the point of becoming an addict, there is no question that I am harming myself. But unless I get in my car and plow into someone (or commit crimes to pay for the heroin), what is the harm to anyone else? Mr. Feser seems to take it for granted that: a) self harm is immoral; and b) society is therefore justified in prohibiting self harm.

It goes without saying that this same argument justifies prohibition of alcohol, or any other substance, including unknown future substances, and, I suppose, anything which the government might deem harmful to the individual.

Note further that in the case of drugs, we're talking necessarily about possessory offenses. There need not be any showing whatsoever that the individual ever used the substances prohibited, much less harmed himself. Thus from a moral perspective, it is not merely harm to self which is being prohibited, but potential harm to self. If possession of potentially harmful things can be prohibited, then why not guns? Because the latter can be used for good as well as for ill? Can't that be said about many drugs? And what about food?

Or, (dare I ask it?) having too much money?

While I happen to think drug use is stupid, I speak for myself only, and from personal experience. I haven't used a single illegal drug since 1992 and I don't intend to. That does not grant me any moral authority, and I cannot speak for other people, each of whose situations is personal. Some people might be able to use drugs as others use alcohol. Others destroy themselves.

I think a legitimate moral argument can be made about punishment, though. I think that prison is harmful. It is a horrible, dangerous, often deadly punishment which should be reserved for horrible, dangerous people. I think it is patently immoral (even grotesquely so), to lock an individual in prison because he harmed himself. That is like saying that if you are demented enough to cut off some of your own fingers, why, we'll show you by cutting off the rest of them!

I see Mr. Feser's point about drug use not being a "right," and I don't argue that this is a formal right, any more than there's a formal "right" for me to go out and get wasted on sugar by eating ten cream filled donuts. I guess that makes me a rather sloppy libertarian. Still, I see no right of society to punish self harm by brutal means.

Nor does anything in the Constitution grant the federal government such power. (That's why prohibition of alcohol required the 18th Amendment....)

I guess I failed to come up with "a coherent way to be both morally conservative and strictly libertarian." I think of myself as someone who is morally conservative in my personal life, and loosely libertarian in my political views.

As I say, my standards are lower than most people's. But drug laws which do harm to an individual on the theory that he has done harm to himself -- well, they offend my low standards very deeply.

MORE: John at Locusts and Honey thinks that Edward Feser is "confusing libertarianism and libertinism":

I agree that prostitution and smoking crack are wrong. I also think that gorging on Twinkies all day and engaging in pre-marital sex are wrong. Furthermore, I think that worshipping gods other than the one true God revealed in Scripture is morally wrong, since it contradicts God's commandments.

However, it does not directly harm me if another person sells his body for sex, smokes crack, eats a horrendous diet of junk food, or bows down before false gods. Since he, as an individual, has absolute soverignty over his own life, it is his right to engage in immoral behavior.