On Culture and Law

by Michael Kleen

Exclusive to STR

September 24, 2009

Proponents of individual liberty are often confronted by the argument that proper behavior must be enforced by laws. Whether it be calls to ban smoking in public places (coming to a home near you), texting while driving, wearing your pants too low, or other nuisances, both liberals and conservatives maintain that a government has the right and obligation to punish behaviors deemed harmful to the individual, as well as those that are simply annoying or unsightly. By making certain activities illegal, they claim, it will promote the general welfare by discouraging those activities. Simply put, this idea is totalitarian, and not suitable for a free society. If we do not wish to live in a totalitarian or nanny state, we must accept that in instances where we find a behavior objectionable, culture—and not law—should be the proper vehicle for changing those behaviors.           

It is abundantly clear that both liberals and conservatives want more government regulation over the lives of individuals, and that their disagreement is simply over which actions or behaviors should be regulated. Whether it is to promote a more moral society, a safer society, or a more diverse society, neither ideology objects to the use of law (and therefore government force) 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 exemplifies the problem with the totalitarian view when he argues with libertarians over the 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, but one which I have not yet heard, is “so what?” But there are other problems with his argument that expose the fallacy of appealing to the government to regulate individual choices.           

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 despite some media scare stories, yet its use is not widespread. Marijuana, on the other hand, remains illegal but is used all over the country. Individuals choose to smoke marijuana rather than Salvia divinorum in spite of the legal standings of the two plants, and therefore the real distinction is cultural, not legal.            

Secondly, the mistake Medved makes, along with most liberals and conservatives, 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 a totalitarian state, one in which the government decides how we should dress, what words we can use, what we can and can’t watch or read, and ultimately, what we should think.  

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 are 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 American’s 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, and that 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.