The political tragedy is that there is no absolute reason why some alleged victimless crimes should not be the subject of community action (expressed if necessary through an executive State mechanism). We argue for what is permissible later but we have to be clear that liberty is lost through the process of process (a liberal obsession) getting out of control.
The First Category - Absolute Private Rights
We might start by saying that, of the four general areas of victimless (alleged) criminality, one is an absolute - the right of persons to command their own actions, language and words in consensual acts of any nature under conditions of reasonably full information and without creating non-consensual obligations on others (such as, say, clearing away a body in the case of suicide).
The community has no role to play in private consensual transactions under these conditions. Indeed, the State, rather than other persons, has little role in public consensual transactions either. An offence to one person must as much be regarded as an offence to the other if that offensive act is not then permitted. Good manners are not a matter for the State - the private citizen or subject has, as recourse, the right not to associate with the boor.
The rules regulating alleged offensive behaviour are matters that are, first, based on the equality of all persons in regard to comparative 'offensiveness' and, second, a matter of negotiation between persons. Under this approach, it is reasonable to consider it an offence to intrude noise and images (say) on to the personal self and property of a person yet the control of public space, purely understood, is regulated according to reasonable specific harm to all equally and not simply to the harm felt or perceived by one person and not another.
Aesthetic difference or emotional reaction is not sufficient cause for one person to dictate the behaviour, language or thoughts of another. A distinction thus has to be drawn between an act by a person (who is free) and an act directed at a person (which may be oppressive). The intent of the actor, not the presumption of the 'victim', is what counts. For a man to walk down the street naked with an erect willy may be tasteless but it causes no harm. To assertively wave the willy directly in the face of another is the act of a bully and is offensive - but then so is waving a fist or offering a direct insult. It is not beyond the whit of society to make these distinctions.
A test of inappropriate community power is whether it stops one or more persons being who they are in private or in public (like gay kissing or breast feeding) regardless of the aesthetics of others. Appropriate community power stops any person from forcing their aesthetic not on the community but on another person in a targeted way with deliberation or through ignorance. And, of course, before it is raised, a 'strong' view of consent (involving not only adequate information but the ability to comprehend) is accepted. This does not remove all risk from transactions (since risk is what is to be respected here) but it does protect children, animals, the physically and mentally vulnerable and workers in the work place from abuse because of the power relations involved.
But, again, matters should be appropriate. Sexual harassment of a worker is bullying but sexual conduct between workers is no one's business but that of the workers themselves if it does not breach contractual duties that relate solely to the job in hand. Similarly, the private right to erotic pain is a private right about which the community has nothing to say. Opinions should be free, no matter how 'hurtful' or aesthetically troubling, they are. To be contemptuous of a belief in God or even insanely to believe in conspiracy theory is a private matter. Above all, persons who are adult must be reasonably assumed to have rights to personhood that rise above imposed community norms.
The Nordic laws (Sweden, Norway, Iceland) criminalising adult males for undertaking an economic transaction with a woman for sexual pleasure represent the highest form of cultural oppression: acts of totalitarian war on the choices of both parties where both parties are engaged in a consensual act. These have become oppressive states. Religious insult as a crime must be restricted to going into a Church and asserting contempt or to desecrating Jewish graves and such like acts against individual persons or on communities on their own territory - and they should represent a civil action supported by the state and not a state action alone.
The Second Category - Regulating Harm
The second level of community intervention is where the executive intrudes to stop a person harming themselves. The issue here is the line between acting against a temporary aberration or weak information and oppressively failing to permit persons to make personal developmental choices that might incur risk or danger. This is the 'killing ground' (literally) of the political struggle between 'progressives' and 'libertarians' with the latter being excessively principled in terms of absolutes because the former have engaged in a determined 'mission creep' that extends community control not only over acts but language and thoughts in a wholly unprincipled way.
Drugs and assisted suicide are the obvious knotty issues here but also sex work and gambling. The 'progressive' mentality is piling up spending on industries whose purpose is to save people from themselves in an oppressive and infantilising way. The low point was not just Nordic Fascism but arresting BDSM consensual sado-masochists. Above all, there is no logic to solutions which are oppressive in one nation and free in another. The Nordics have become insanely intrusive into sexual matters while the Americans have an irrational 'thing' about gambling that is incomprehensible to the Chinese. Anglo-Saxons obsess about drugs, the Dutch are more relaxed.
The common sense approach - to reduce expenditure and close down self-sustaining special interest groups as well as restore private freedoms - is to permit in general and regulate in particular, with an emphasis on controlling the conduct of suppliers of services, providing full information and developing escape mechanisms paid for out of taxes raised. So, prostitution, gambling and assisted suicide in extremis might be legalised, regulated to a reasonable degree and (except obviously in the case of assisted suicide) taxed, but the 'consumer' and the 'worker' protected, much as they should be (often inadequately in practice) within the financial services or retail sectors, on these principles:-
- 'silent harm' (that is, harm arising out of lack of information) should be reduced or eliminated: this would require industry-funded information on real risk in gambling or duties of care on disease transmission in sex work or the offer of counseling and mental health treatment (even drugs like LSD) as alternatives to suicide in terminally ill patients
- the community state (financed through taxes) should be engaged in general economic equality strategies for women, provide but not enforce skills training to give choice, consider legally enforceable limits (cooling off periods) on decisions to bet high sums or escrow funds for gambling amongst low income earners and so on.
The Third Category - Systems Management
The third category of alleged victimless crime is one that irritates many economic libertarians but it has validity on the basis that it applies where a person is not engaged in private acts but is integrated into a system that has social consequences. The demand for car insurance is an example of this. The free person might object to paying for this, especially if they believe they will never use it but this misses the point, which is that the person is not a free agent in a car but a user of a system that is integrated with other users.
Systems regulation to mitigate harm based on the users' actions en masse is perfectly reasonable but only with two assumptions in mind - that a person can, if they so chose, albeit with inconvenience, opt out of the system (in this case, by not driving on the roads) and that the regulation is proportionate and geared to the facts of the case. The recent EU Court ruling that equalised male and female costs in insurance arrangements is a typical progressive oppression because it shifts the car insurance system from a self-regulating system to an arm of community policy engineered by activists to meet strategic communitarian aims. It is typical of the new European bureaucracy.
However, mandating seat belts and banning the use of mobile phones while driving are permissible restrictions on liberty because the cost to the system as a whole and the potential harm to non-consenting others (including trauma and cost of accidents) makes the point unarguable that action should be taken. As soon as a self-regulating system, usually linked to a technological solution to a human need (such as transport or food or water supply) moves from these two ground rules - the ability to opt out and the necessity to remain proportionate – it shifts from legitimate regulation to our fourth zone of interest, 'government'.
To recapitulate, private lives are not the business of the State, private vices require some degree of regulation as trades in the general public interest and public systems supplying services require a degree of proportionate regulation in order to ensure their proper functioning. But what of government and, indeed, of other non-human entities with claims?
The Fourth Category - The People as Victims of the Criminal State
Government executes a legislative power that might reasonably regulate both 'emotional trades' and complex industrial and post-industrial systems. Government also has certain macro-regulatory functions - which include economic stability, defence of the nation and, more controversially, social order. Crimes against the State are the most difficult of all 'victimless crimes' because the State is a thing-in-itself that claims to represent us as persons but which, in fact, is a bureaucratic self-perpetuating machine that represents only those persons who have seized the levers of power, usually through somewhat spuriously democratic means.
The State is not a moral actor but is merely the vehicle for appropriate conduct (the preservation of order and economic stability to enable private life and the permitted regulatory functions in a complex post-industrial society) by an organisation whose entire claim to rule is ultimately based on the simple expedient of having a monopoly of force. What do we mean by this? Only that the current constitutional liberal democratic State may do all these 'good' things but it is also empowered to do many 'bad' things under the behest not of private persons working in concert within agreed rules about freedom and responsibility but under the behest of those who have seized control of its powers.
- The State has a professional political class that has no direct link to private persons acting in concert but is entirely beholden to a party structure based on clientage and the influence of special interests.
- The State has a bureaucratic class that not only has no accountable and direct or indirect link to private persons acting in concert but represents an institutional interest protective of its own status and privileges.
- The State is surrounded by a parasitical class of representatives of competing special interests who, at their best, improve appropriate regulation but which, at their worst, divert appropriate regulation from the needs of the system or from the consumer or worker in order to strengthen their own financial and ideological interests.
If this is all it is, perhaps we could live with it, but this unholy trinity of politicians, bureaucrats and vested interests brings with it an ideological package that operates against the public interest by using the State as the means to impose their particular vision of what it is to be human. The politicians will not challenge standard cultural norms as fearful electoral conservatives. The 'emotional trades' cannot be regulated properly. Activist groups enter into the political and bureaucratic process and force minor oppressions and major costs on the population. Business perverts the smooth-running of the market at consumer and worker expense.
The victim here is the public. The meaning of criminality has been reversed so that crimes against the State become 'bad' and crimes against persons or the people go unpunished. Petty wars are declared at huge public cost, non-jobs are created that assist the few at the expense of the many and individuals are persecuted by the police to please their security and populist allies. Until we, as a people, understand that we are the victims of this three-fold class of interests and restructure our political decision-making to make our representatives and bureaucrats more directly accountable and activists and lobbyists much more transparent, we will continue to be victims of organised state crime, mostly (admittedly) petty but quite capable of both expropriation and, in war time, enslavement.