On Culture and Law

How can we claim to live in a free society, if our only choice is between conformity and punishment? In a truly free society, culture, not law, should be the proper vehicle for changing behavior.

It’s become a reflex in American society: all bad things, or even potentially bad things, must be banned. Whether it be vaping, smoking in public places (coming to a home near you), texting while driving, wearing your pants too low, large sodas, or other nuisances, a consensus has emerged that government has the right and obligation to punish behavior deemed harmful to the individual, perhaps even simply annoying or unsightly as well.

By making these activities illegal, the oft-repeated claim goes, it will promote the general welfare by discouraging them. But how can we claim to live in a free society, if our only choice is between conformity and punishment? In a truly free society, culture, not law, should be the proper vehicle for changing behavior.

When it comes to new laws, it seems, the only disagreement is over which actions or behaviors should be regulated, not whether they should be regulated at all. Whether it is to promote a more moral society, a safer society, or a more inclusive society, few object to the use of law and government as a hammer to bring the rest of the country in line with their views. But the threat of imprisonment, fines, and taxation to regulate behaviors as mundane as wearing a helmet, smoking, or drinking soda should be anathema to a free society.

Film critic and radio talk show host Michael Medved illustrates this view when he argues with libertarians over the federal ban on marijuana. With a certain verbal gymnastics, he claims that he would not call for its banning if it weren’t already illegal, but since it is illegal, he believes it should remain so because its illegality discourages its use. In other words, Medved believes more people would use what he considers to be a harmful drug if it were legal. The proper response to that objection is “so what?”

First, it is not necessarily true that the legality of a thing determines its level of use. Salvia divinorum, a psychoactive herb that is smoked like marijuana, is currently legal at the federal level despite some media scare stories, yet its use is not widespread. Marijuana, though its advocates have made strides in decriminalizing it, remains illegal for recreational use but is among the most popular drugs. Individuals choose to smoke marijuana rather than Salvia divinorum despite their legal standing. The real distinction is cultural, not legal.

The mistake proponents of law over culture make is in believing that cultural change can be enforced through judges, juries, and police. In waging a culture war, both sides have hijacked our legal system to serve their own interests and enforce their values on the rest of us. But the only change they actually achieve is in moving us away from a free society and toward one in which the government makes all our decisions for us.

Culture is a more powerful force governing our behavior than law, and it doesn’t carry with it the threat of state enforced punishment. Culture is defined as the refining of human moral or intellectual faculties, or more broadly, as a set of values and customs that governs our behavior. Culture can be either permissive or restrictive, but cultural norms, in a free society, are arrived at through generations of discussion and debate.

People should be free to examine information and weigh the benefits and disadvantages of certain behaviors. Historically, we can see that laws, even when most brutally enforced, do not trump culture. Prohibition may have curtailed drinking, for example, but it did not destroy most Americans’ love of alcohol.

The libertarian response to arguments in favor of encroaching government control over our personal choices should be that culture, not law, is the proper vehicle for social change. The very notion that debate should be cut short by force of law, especially when it comes to mundane personal choices, ought to be morally repugnant. Those in favor of liberty do not have the luxury of enforcing our opinion on others, and therefore nothing is more important than winning this debate. The freedom of our very thoughts depends on it.

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