This post was originally drafted in March of 2011.
I think it interesting to compare Murder with Nude Dancing. Doesn’t one have the right to die? If we assume arguendo that, for example, a terminally ill patient asks a someone for assistance in hastening death and also assume arguendo that there are absolutely no direct effects thereby, such as disposal expenses or emotional/psychological impact on family/friends (e.g., patient has no relatives and has already paid for cremation), may we thereby reach a homicide which is not Murder nor Manslaughter (in the common usage), yet is both unjustified (i.e., not self-defence) and unexcused (i.e., not accidental)?
Murder (and Manslaughter), in my opinion, is rightly criminally outlawed since it has not only the direct effect of ending another’s life, nor only the secondary effects of emotional and psychological trauma on loved ones, nor only the secondary effects of the aftermath thereto (disposal, inheritance, &c.), but also the societal effect of instilling fear in the general public. A murder in the inner city strikes legitimate fear in the hearts of suburbanites who may never have been nor ever plan to go anywhere near the inner city. More strikingly, a murder in Boston has this effect in NYC or even LA. The mere fact that the murder occurred leads to reduction in the exercise of other persons’ legitimate rights, albeit not proximately so. Manslaughter, however, leads to a much lesser interference with other persons’ rights and is therefore rightly treated as a lesser, but still criminal, offence.
Other activities, such as parking in a metered space without feeding the meter or littering, certainly do frustrate the exercise of other persons’ rights but not in the same way. Taking up a convenient parking space, e.g., without paying for use of the scarce resource does not create an environment where another may fear, and therefore avoid, e.g., traveling to the mall. It merely raises the cost of doing so (in that the other must park in a less desirable location, walk further, and expend time doing so). Such a cost increase may encourage the other to patronise another mall, but it certainly cannot be said to discourage leaving the home.
Unlike unlawful parking, a murder encourages a general and debilitating fear. Note that I am not claiming that all of society is handicapped by every murder, but rather that the accumulation of murders promotes a cumulative effect of less lawful activity. A murder in the inner city not only discourages others from travelling there, which is certainly constituent of this cumulative effect, but it also discourages others from going out of their homes generally since it is possible, however unlikely, that murderers may travel to (or arise in!) the other’s very neighbourhood.
Ignoring any theoretical deterrent effect, the criminalisation of Murder declares to society as a whole that any given individual is generally safe when out and interacting with the world. I assume arguendo that most persons would not murder one another if Murder were to be suddenly legal (in isolation from other elements of our society), e.g., for one day a year or some such. Certainly there are some people who are maladjusted just enough that such a legalisation would free them to act on their impulses when they otherwise wouldn’t, but I assume that there are relatively few of them. Furthermore, I expressly ignore this group.
On this hypothetical murder-is-legal-for-one-day-only day, nearly the entire population will lock their doors and windows, arm themselves, and hide in their basements for the entire 24-hour period. No business would transact. No non-business would transact. Nobody would do anything at all for the entire day. Not even a gov’t mandate that people do continue about “normally” could get them out. Almost every single person would be more than happy to pay a fine or even be criminally convicted of a misdemeanour or, perhaps, even a felony, if doing such would save their lives. In fact, our society already excuses all persons from criminal liability when their action was directly to save their own life or that of another.
We can see this effect very simply in the real world today simply by looking at the social and cultural life of persons in failed states or totalitarian regimes. Although they don’t exactly cower in fear in their basements, this is most likely because they both have no basements and that their fear is not particularised to one day a year. They do, however, avoid any and all activity which might expose them to persons who are not trusted to be safe.
The declaration that Murder is wrong, is always enforced against all transgressors, always in favour of all victims, allows the general population to presume bodily safety as a general matter. This presumption may be rebutted under certain circumstances, e.g., when a suburbanite faces the prospect of traveling unaided into the inner city, but the presumption itself works to allow the suburbanite to believe himself safe even in unknown situations. Thus, he may walk into any business he pleases or travel on any carrier he pleases; he need not maintain body armour nor employ security guards.
Such a declaration does not, itself, interfere with any other rights. Persons generally lack the right to interfere with the affairs of another and so the declaration that a particular interference is officially wrong is inconsequential as far as the theoretical scope of an individual’s positive rights. The declaration serves instead to psychologically guarantee not only that others lack the right to diminish one’s own positive rights, but that they lack the power to do so.
When seen from this societal-effects viewpoint, Live Adult Entertainment is wholly distinct from Murder. Although both are declared morally wrong by the same sorts of moral philosophies (such as the Cristian religious tradition), they lack any similarity in their effect. Not even Jerry Falwell fears to leave his home upon learning that a strip club has opened in another state, in another city in the same state, or even his own city! He may avoid a particular part of town, but he may be expected to walk right up to (and presumably past) such an establishment when he has good reason to, for example to reach a nearby business or, perhaps, to protest against the strip club itself.
Absent riot gear, no individual would travel to a location where one is likely to be shot in the head without consequence. With riot gear, very few would be willing to do so anyway. Nude Dancing is just in a different category. As such, it should not be regulable as Criminal.
How does euthanasia fit into this? Does the prohibition against euthanasia fill the same social need as the prohibition against violent murder? Does it fill the lesser but still criminal position of manslaughter? How does society improve by preventing people who are already dying from dying on their own terms? How does society improve by declaring that people may only die without assistance? (Remember, the prohibition on murder is useful as a declaration of a norm, not simply as an attempt to prevent actual deaths.)