What if there were one commandment that, if property followed, would produce peace among all people? What if we could discover or devise a perfect rule that encompassed all the others—some principle that could guide our behavior and maximize social harmony? What would that be worth to us?
Needless to say, the search has been on for such a commandment for a long, long time, with mixed results. It is much easier to come up with ten rules or ten thousand pages of rules. One comprehensive commandment is much tougher.
What would such a commandment look like? No doubt, we would want it to be short and sweet. Something that is easily memorized by anyone. Something cogent that can be understood without needing a law degree.
On the other hand, if such a commandment were too pithy, would it contain enough information to provide adequate moral guidance? It’s a tough needle to thread.
The Quest for a Prime Directive
In the Judeo-Christian tradition, there are the Ten Commandments. Yet there is also a single, top-level commandment. When Jesus is asked to sum up the law, He offers a pure instruction: “Love your neighbor as yourself.” As a moral, spiritual, and religious teaching, it is strong and clear.
Morality, however, is a complicated concept. Like a braided rope, it has several strands. Among these are the morality of justice (things that one absolutely MUST NOT do) and a morality of goodness (things that one SHOULD do in order to be a decent person). And of these, only the morality of justice is rightly enforceable.
The reason becomes clear upon examination. If someone is about to commit a murder, they may rightly be stopped by an act of physical force. If someone fails to be sufficiently nice to someone else, there is no morally supportable principle that tells us force may be used in punishment for their lack of kindness, or to compel them to be nicer in future. A deeply ingrained moral knowledge tells us that force is repugnant and must only be used to respond to and defend against an act of force initiated by another. Call it protective force versus coercive force.
When constructing an enforceable rule for a peaceful social order, we quickly discover that we must concern ourselves with the morality of justice. Love your neighbor as yourself is a powerful moral instruction, and if people truly lived by it, there would be much peace in this world.
However, there are impediments to its use as a guiding principle for a political order. It implies moral obligations from both the MUST NOT and the SHOULD categories; it is somewhat open to interpretation; and it is subject to change depending on what it means to each person to love himself or herself. As such, it cannot constitute an enforceable rule. A political order must concern itself only with what is rightly enforceable, not with whether people are being sufficiently nice.
The related Golden Rule—do unto others as you would have them do unto you—has the same impediments. You should give to charity. You should say something nice about Mrs. Potter’s dog (no matter how ugly it is). But it would be wrong to use force against you if you were to fail this niceness test.
And it too has the subjectivity problem: what if what you would have others do unto you differs significantly from what I would? (People are into weird stuff, after all.) The wording of the Golden Rule presumes a similarity of opinion that does not always exist.
Kant’s categorical imperative is another attempt at a single commandment: “Act only according to that maxim whereby you can at the same time will that it should become a universal law.” (In other words: Only do something if you’d be okay with everyone doing the same thing in the same situation.) This has the same problems: it would work most of the time, but it leaves the door open to the subjective interpretation of each individual.
The nonaggression principle—that no one ought to initiate coercive force against another—seeks to overcome some of these difficulties by being more direct about the thing that MUST NOT be done: Don’t initiate force against innocent people. This is far clearer and more specific, and is considered by many libertarians to be an acceptable prime directive or top-level commandment.
However, as we discussed in Part 1, the nonaggression principle has some difficulties of its own.
First, there are things that are deemed by nearly every person and culture to be actionable harms, but that do not readily appear to be force: accidental damage to property, nonviolent theft, fraud, trespassing, and others. These can be redefined as “force” or “aggression,” but it takes a bit of philosophical explanation, and the explanation can still feel a little flat. Fraud is wrong, but it still doesn’t seem the same as a punch in the mouth.
Second, there are actions that are clearly force, but that are perfectly fine with consent. With consent, rape, assault, and theft become sex, a boxing match, and borrowing a tool from your garage. Consent makes all the difference.
The Fundamental Unit of Moral Concern
When we gaze down the muddy track of human history, we see that man’s inhumanity to man is usually the result of a repugnant (but all too common) act: one person being made into the means to another person’s ends. When Person A wants something and turns Person B into the means to get it, he makes B into an object. Often, this involves obvious and outright force. Other times, the means are more subtle. But there is always a common denominator: a violation of consent.
When we conceptualize or describe a wrong, the words “…against his [or her] will” are either implied or explicitly stated. I choose to do most of the cleaning in our house. My schedule is more flexible, and to be perfectly frank, I am better at it than my wife. It is my choice to labor in this way. But if I am made to labor against my will, I am a slave.
If a man is going about the business of his life and some intelligence agency uses sophisticated techniques to brainwash him toward some nefarious end, he has been robbed of personal agency. These techniques may not be force as the concept is commonly understood, but we still know them to be wrong because they were done to him without consent.
We could continue to generate examples ad infinitum. Individual human consent, it would seem, is the fundamental unit of moral concern.
Different people may come to this conclusion by different means. Drawing moral teaching from the facts of nature, some may reason that violations of consent are a violation of the personhood and self-ownership of the individual, and are thus morally impermissible. Others may simply observe the consequences of consent violations and deem them sufficiently undesirable to develop a moral rule about them. Either way, the conclusion is roughly the same: violations of consent constitute an actionable moral wrong that ought to be forbidden in any social context.
Trespass
Yet here too, there are complications. You might not consent to someone walking up and asking you the time of day, but that person’s question does not constitute an actionable moral wrong. We know intuitively that our consent is required for some things but not others. Any rule we construct to represent the centrality of consent would have to make this distinction somehow.
Recall our formulation from above: we want our rule to be pithy, but comprehensive. This means we need economy of language. Some explanation will always be required, but we should do our best to come up with a rule that expresses as much as it can in a small package.
The word “trespass” serves a highly useful purpose in this regard. Merriam Webster’s definition, for example, covers a lot of essential ground, describing trespass as an “unwarranted infringement,” “uninvited incursion,” and a “violation of moral or social ethics.” It even hints at an entire rule within one of its definitions, calling trespass “an unlawful act committed on the person, property, or rights of another.”
“Uninvited” and “infringement” clearly speak to the consent of the violated individual.
“Unwarranted” speaks to the notion that the violated individual was peaceful—an innocent who had done nothing to warrant any violation of his consent.
Incursion speaks to the specific sub-definition of “trespass” as an encroachment upon property—an act that we understand to be generally impermissible, even though it is not “force” in the common understanding of the word.
Thus, this one economical (yet comprehensive) word—trespass—immediately gives us hope that we may be able to devise a rule that is pithy, yet still more comprehensive than the nonaggression principle.
A Simple Prime Directive
Okay, so we have one excellent word. Great! Now what do we do? Stated as a commandment, we have Thou shalt not trespass….what? We need a target of the trespass.
Here, we cannot leave things open-ended. No doubt, some people would like it if no one ever trespassed against their feelings and sensibilities. Some cranky person might want it to be illegal for anyone to ask him the time of day whenever he is in a bad mood. Yet these things do not rightly constitute actionable harms, nor would we ever want enforceable rules about them. Our focus must be on the MUST NOTs, not on the SHOULDs.
Fortunately, millennia of accumulated human wisdom have given us a pretty clear answer, enunciated thusly by John Locke, in his famous Second Treatise:
[T]hat being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions.
This is commonly cited as “life, liberty, and property” or “life, liberty, and estate,” as he used in another passage. Though Thomas Jefferson was a student of, and borrowing heavily from, Locke, he ultimately substituted the more aspirational “pursuit of happiness” for “property” in the Declaration of Independence’s most famous phrase.
It would have been better had Jefferson included both, however, since property is absolutely essential to life. And we shall, in our wording.
For “life,” we will use “person.” This conveys not only the life and health of the body, but also the individual’s sovereign control of his own being.
And we shall use “liberty,” as did Locke and the American Founders.*
Here, then, is potential wording for a prime directive (written in the form of a commandment):
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Thou shalt not trespass the person, property, or liberty of another.
By including the notion of consent, which is included in and implied by the word trespass**, and by enumerating the specific areas in which one’s consent must be respected, this principle appears to cover more ground, and at a higher categorical level of importance, than the nonaggression principle.
An Expanded Prime Directive
Is this wording sufficiently pithy, while still covering the necessary ground? Again, no section of text can stand alone without some further explanation. Yet we also want to avoid having to provide an extensive concordance for the essential meaning to be grasped. Still, we might benefit from an expanded version that provides a few more details.
To determine the wording for this slightly longer supplementary version, we must look to the kinds of acts of trespass that are (almost) universally considered actionable harms.
Violence, theft, and fraud would be on any such list. So too would property damage and trespassing (in the narrow sense of encroachment upon someone’s property). And we must further include any act that seeks to impose control, authority, or any form of dominion against anyone without their consent.
After a careful survey of these, I have chosen the following verbs: damage, encroach, steal, subjugate, and initiate coercive force upon.
When coupled with our discussion of the necessary conditions of consent, I propose the following wording:
(In the absence of voluntary, explicit, transparent, informed, and revocable consent), thou shalt not trespass (damage, encroach, steal, subjugate, or initiate coercive force upon) the person, property, or liberty of another.
This is not quite as pithy, of course, but it covers significant ground with just a few extra words, and is far superior to a lengthy concordance. We could use the simple version, and then refer to the supplementary version when more explanation is needed or requested.***
In order to test the viability of our wording, however, we must analyze the interplay of our types of trespass and their targets. Does each one represent a real, actionable moral crime? To this end, I have created a chart:
So what do you think? Does that chart cover all the acts that are generally understood to be actionable harms?
Does our wording for a “consent principle” cover the needed ground without being overly complex? Do you think it occupies a higher categorical level of importance than the nonaggression principle?
Do you think it works as a “prime directive”?
Feel free to contact me at chriscook@theadvocates.org and let me know your thoughts.
*One possible distinction: freedom is the absence of external restraints upon one’s actions and liberty is a condition of freedom in which it is understood that violations of the freedom of others are actionable. Preferring “liberty” allows us to at least imply the notion that proportional protective force is justified in response to coercive force.
**It is better, for reasons of both meaning and syntax, to use trespass transitively here, rather than following it with a preposition. The same will also apply to our use of the word “encroach.”
***Because “trespass” implies a violation of consent, we might consider removing it and changing “steal” to “take” in our expanded version. Thus, In the absence of voluntary, explicit, transparent, informed, and revocable consent, thou shalt not damage, encroach, take, subjugate, or initiate coercive force upon the person, property, or liberty of another.