Rethinking ‘No Victim = No Crime’
February 4, 2016
The phrase ‘no victim means no crime’ is commonly used among libertarians to protest against government abuses. Governments frequently declare that activities which do not harm a person or damage property are against the law regardless, such as failure to wear a seat belt while driving, selling liquor on Sundays, price gouging, drug possession, among many others. While such declarations are immoral and the government officials and agents who make and enforce such laws are the real criminals in such cases, the idea that a criminal act requires some harm to be done is overly simplistic.
Non-Aggression versus Non-Harm
The foundation of libertarianism is the non-aggression principle. It says that initiating the use of force is immoral and that using force to defend against initiated force is acceptable. The idea that a crime requires a victim substitutes non-harm for non-aggression, which is a much different standard. The idea of non-harm comes from the Declaration of the Rights of Man and of the Citizen (1789) and was first discussed at depth by John Stuart Mill in the first chapter of On Liberty (1859). The non-harm principle is rooted in consequentialism, not in a rigorously logical derivation from first principles, as the non-aggression principle is. Non-harm means that one may threaten or imperil people at will so long as the threat remains unrealized, while the non-aggression principle forbids this.
Non-Aggression versus Non-Violence
Another troublesome deviation from the non-aggression principle is pacifism, or the confusion of non-aggression with non-violence. While there are few people who believe that crime should be allowed to proceed unchecked (and a free society would likely watch them be victimized to the point of renunciation or elimination in short order), softer forms of pacifism have more successfully crept into libertarianism. This takes the form of the proportionality of force doctrine or the immediate threat doctrine, both of which are nonsensical. If a defender may never escalate beyond the level of force used by an aggressor, then the aggressor can always maintain an advantage and the purpose of defensive force, i.e. to do what is necessary to repel or subdue an aggressor, can go unrealized. If one may only use force to respond to immediate aggressive acts, then one cannot be proactive against threats, reclaim stolen property, stop a crime boss who hires underlings to keep his own hands clean, or deal with any other situation in which responsibility is obfuscated.
In Praxi
With an understanding of the difference between the non-aggression principle and the idea that no victim means no crime, let us explore some examples. First, consider drunk driving. Some libertarians believe that this behavior should be legalized. But let us consider what this behavior entails. A drunk driver is piloting a vehicle which weighs over a ton at potentially lethal speed while being impaired to such an extent as to not be in proper control of it. This poses a threat to everyone in the vicinity of such behavior and is therefore an act of aggression against everyone who could be hit by the car. There are aspects of current DUI laws that need to change, such as being able to get a DUI while sleeping in a car or riding a bicycle, but it is a valid concern for a libertarian security service to act against. The use of force to stop the car and detain the driver so as to keep him from continuing to drive under the influence of an intoxicating substance is justified.
Second, consider firing stray bullets in public. This is a threatening action because the difference between causing no harm and fatally striking an innocent bystander is a matter of chance. The use of force to stop the shooter from continuing to gamble with other people’s lives is justified. There is no need to wait until the shooter actually injures or kills someone.
The first two cases involved threatening acts that have potential to cause harm. The next two cases involve criminal acts with an obfuscation of responsibility. Consider a crime boss who hires a hitman to murder someone. While the boss does not directly murder someone, he has hired an agent to do this for him and is thus vicariously responsible for the murder or attempted murder. The use of force by the would-be victim or an agent of his against the boss is therefore justified, even though the boss did not directly victimize anyone. Note that the alternative produces the absurd result that a potential victim must face one hitman after another instead of eliminating the threat at its source.
Finally, consider a person who is guarding stolen property but did not steal the property himself. When the rightful owner of the property or his agent comes to reclaim it, a guard of stolen property has not directly victimized anyone, but is acting to aid and perpetuate a violation of property rights. The use of force to subdue a guard of stolen property in order to reclaim the property is justified. Note that the alternative produces the absurd result that a thief can profit from theft simply by fencing the stolen merchandise before getting caught.
In conclusion, it is clear that ‘no victim means no crime’ is an inadequate standard for the use of defensive force. It is more accurate to say that no victim means no restitution can be owed and no punishment beyond what is necessary to stop acts of aggression should be meted out.
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