Subverting Moralizing Laws with the Natural Law

Do you think prostitution should be legalized? What about narcotics? If I told you that saints Augustine and Thomas Aquinas thought that they should be, how would that change your voting habits for 2012?

Introduction: Natural Law and Human Law

Right now I am reading Alasdair MacIntyre's brilliant and timely article Natural Law as Subversive: The Case of Aquinas. It is brilliant because it blends sociological and historical analysis with philosophical rigor, of which MacIntyre is famous. MacIntyre's conclusion about the relationship between human law and natural law in the eyes of Saint Thomas Aquinas is surprising, especially if you have those belittling assumptions about Medieval life and thought.

MacIntyre pits Aquinas against two monarchs of his time and shows how he would disagree with both of them, in accordance with the natural law. These two men are the canonized St. Louis IX of France, and the secularist Frederick II, King of Sicily- two men who are probably as far apart in politics as one could get in those days. The conclusion is simple, but the implications of Aquinas' case can be felt even today.

The natural law cannot and ought not be, in every instance, enforced by human laws. That is to say, human laws are a moral guide, but are not sufficient to make men moral.

Indeed, the lawgiver who wants to make other men saints by criminalizing all sin is actually stepping outside his authority over the community and is overreaching, according to Aquinas' understanding of the natural law. There are for Aquinas many things that are sinful and destructive, but which still ought not to be prohibited by human legislators. Such things, though evil, ought to be tolerated within society. Criminalizing such things causes reprocussions even more disasterous than the evil itself.

This struck me deeply.

Common Experience in Natural Law Legislation

I have never heard, not even once, in all my classes and in all the lectures with Thomists and natural law philosophers one of them dare come close to repeating what Aquinas, following Augustine, thought about prostitution. Both Augustine and Aquinas thought prostitution should be legal, and that by making it illegal it would have disastrous consequences that far outweighed the good. Furthermore, and this is probably what astounded me the most, the lawgiver, by making such a law, would be doign so outside the authority of the natural law.

Incredible!

One usually hears the exact opposite position from modern day Thomists, Christian politicians, or advocacy groups, when dealing with the relationship between natural law and human laws. Typically, they are all about moralizing the law- getting this or that moral position passed by the Legislature on "common good" grounds, saying if it hurts the individual, then it hurts the community he/she is a part of, and thus it should be illegal. It is a moralizing of human law, trying to force through by law what the individual will not or can not do on his/her own. You cannot make saints by external pressures and punishments.

I heard a Republican politician - Rep. Ron Paul (Texas 14th District) - getting slammed by fellow conservatives and the news media when he called for ending the so-called War on Drugs by complete legalization. He stated that, surely drugs are stupid, wrong, and destructive and that will never change, but once drugs are legalized, all of the black-market wretchedness that comes with prohibition would be diminished or removed altogether. No more gang-culture, no more drug cartels, no more needless arrests for non-violent offenses.

Results of the War on Drugs

For instance, non-violent drug charges are the main reason why America has the highest incarceration rate in the world. Treatment would be the new response to drug users and abusers, not imprisonment. Furthermore, there would not exist the stigma of being an ex-con when one tries to get a job to improve one's life. A vicious cycle is prevented when the coercive nature of law enforcement is removed from possible solutions to the drug problem.

Due to Drug War legislation, drugs are driven to the black market, where the selling of drugs is left to criminals, to the most vicious in our society. The potential profit margins, now artificially sky-high due to their illegality, far outweighs the costs of getting caught. As dealers gain wealth and status in the community, more young people are drawn into the lifestyle, and a vicious subculture is created and fostered.

Poor and minority neighborhoods are transformed into warzones and pockets of despair as the selling of drugs and gaining more territory rapidly grows the gang culture, and the whole host of evils that accompany it (drunkenness, promiscuity, fatherlessness, violent crime, etc.).

The more legislation against it, the more drugs cost, and thus the higher the monetary incentive to risk jail and/or violence in order profit. If you could make $2,000 in four hours selling drugs, would you see a point to study, avoid gangs, or working minimum wage jobs to build experience? If you made $2,000 on one street corner, what happens if you and your friends took control of more street corners? Gang violence would be undercut greatly if black market profits were removed from the situation. After all, no one is killing each other to sell aspirin (Wal-greens employees with gats, wearin' red, shooting up an Eckerd's, spraying anyone in blue- just doesn't happen).

On top of all that, what happens to society in response to the drug and gang culture is a pervasive racism and a ghettoization of the American inner city. "Decent folks" stay away and flee to the suburbs, further dividing people and bringing out more isolation and despair in these areas. In our urban ghettos, the "no way out" feeling is palpable and causes reliance on criminal activities and organizations to increase, alongside the feeling of desperation.

All of that, with billions each year spent on the crusade to keep people from using and to keep drugs out of the country, and we still cannot keep drugs out of prisons, the most secured area on earth! It is apparent that the War on Drugs has indeed failed and cannot help but fail because prohibition, as history teaches, does not alter men's wills. Law is not sufficient to make men moral.

My Own Conclusion

Now, I have never used drugs and never will, but I am starting to think that an absolute prohibition on non-state-approved narcotics is a bad idea. I do not think drug use/abuse is a good idea, or ought to be fostered, but I think prudence demands we reassess the situation and rethink what we have been doing as a nation these last 40 years.

I think today that Saint Thomas Aquinas - no hippie or bleeding heart liberal - would be against broad drug prohibition as we see it today. If reliance on prohibition fosters a host of other evils, and if the enforcement of the legislation brings with it more evils, then I think Aquinas would oppose drug prohibition, just as he, following Saint Augustine, opposed making prostitution illegal. You cannot legislate men to be moral, but only to prevent men from "audacity" against their neighbor.

In my opinion, I believe he would see users as weak, driven by passions, pleasures, and failing as human persons; but I do not think Aquinas would like to see such a man in prison. Prisons are not schools of virtue. In fact, they are schools of crime and are notorious for even more crimes (rape, violence being infamous). If your goal is really to make men and women moral by prohibiting immoral acts, then prison should be the last place to send a person who is weak-willed.

Human laws cannot instill virtue, and when the monetary rewards are high enough, they can no longer instill fear in criminals. Remove the rewards, you destroy the drug culture. Legalization keeps drugs off the black market, cutting profits to the bone. Drug cartels would be replaced by local farmers or even Big Pharma. Prison populations would drop broadly, cutting costs of enforcement, processing and imprisonment down dramatically. Inner cities, while not being transformed over night, would cease to elevate and admire dealers with cash and power. Gangs would be broken when the source of their incomes evaporate. Treatment centers could actually be schools of virtue and not warehouses of criminals like our prisons.