The retreat of the state to the minimum

16Oct08

Foreword to my foreign readers: This is a piece I first wrote in German and which therefore aims at German readers. Though the ideas I explain can be used universally, they are based on German law and the legal system of the Federal Republic of Germany. I have not altered it for this translation, so some concepts I refer to may not be easy to understand for a foreigner. If this is the case please use to comments section to pose your question.

As a part of the current topic of our philosophy classes – dignity – we have used the last lesson to discuss embryology, ART and abortions. Being the sole boy among a feminine superiority that is not an easy topic for me – women have, after all, some bonus here even without having any own experiences. At the end it’s finally them who have to bear the practical consequences of the theoretical discussion.

But it was my part to grant women the greatest freedoms, especially when it came to abortions. My schoolmates are anything but radically pro life, still they support strict restrictions on abortions. Where they argue in favor of a powerful state, I propagate the republic’s retreat to the minimum.

For me it’s the state’s task to regulate the single individuals’ freedoms. The goal of this administration should be to enable as many individuals as possible to be as free as possible. If the individual citizens are fine themselves and in their relationship to others, the whole society profits.

I tend to imagining the individual humans’ freedoms as bubbles which build up a space, but also a sphere around them. To give every individual a “bubble” as big as possible, the state has to care for the even allocation of the bubbles. At the same time the administrator has to ensure that no bubble bursts due to a citizens invasion in the freedoms of another one.

This task is being taken care of by the state through legislature, judiciary and executive. So in the middle of the regulation is the law: The rules which are meant to make sure that the regulation of freedoms functions.

Who invades somebody else’s space of freedom will be punished by the state. This punishment is not meant to take revenge for the damages created or for the violation of the law. The punishment is only meant to prevent further invasions by individuals into the freedoms of others.

But beneath these there is also another category of laws, which punish “moral offenses”, even if these do not cause any damage to another citizen. Many of these laws have been abolished in the last few decades, but still the idea that such a regulation is rightful has its supporters. It is mostly proposed by the social conservative clientele.

One example for such laws are regulations aimed at homosexuals. While homosexuality does not cause any harm to third parties, it is still condemned in many societies due to moral concepts. This moral judgment is respectively manifested in the law.

In the USA, these acts are shaky like never before. No wonder that the “Christian Right” massively agitates “pro life” and against same-sex marriage. This time it is not only about God’s will for them, but also about the last relics of a concept of justice fading from Western societies.

Fact is, that any legal system is based on a philosophical concept – in many cases on highly complex ones. A law not morally formed therefore is neither possible nor can it be wanted.

But in my opinion the state should not interfere with moral decisions which only affect the acting protagonists. Homosexuals must have the right decide themselves whether or not they want to live up their sexuality – as do heterosexuals. A becoming mother must have the right to decide herself about a termination of pregnancy.

At this point we come to the problem at which the opinions of our philosophy class where divided: At which point does the embryo become a “third party”? At the time of its procreation, because all possibilities of development are open for it from then on? After the human figure has been formed? When it develops the ability to perceive its surroundings?

Here the legislator has to make a moral decision. A medical indication at which point an embryo has to be granted dignity is not possible, because dignity is not biological, but man-thought.

At this point I vote for granting the woman as a citizen the greatest possible freedoms – e.g. low restrictions against abortions. At the same time the freedoms of the becoming human, which the embryo is, have to be taken into consideration.

The state’s task is it to mediate between these two bordering “bubbles”. Even if it sounds cynical: At this point a weighing of goods is needed in which the dignity is put on the scales. Can the faceless state even answer such a question?

While in this precedent – embryology is not without reason the maybe most controversial ethical topic of our time – I do not want to presume to give a final verdict how far the state should interfere with the decision of the individual mother, I have to do it in general.

Fundamentally the state should keep out of the citizens’ personal decisions which do only affect themselves. A deregulation of public life is (still) needed. In many sectors the state interferes with the citizens’ organization of life though it does not do any harm to the society.

The maybe most prominent – but also most controversial – example for this “moral legislation” instead of the needed pragmatism is the ban on child pornographical drawings and animations. There is no doubt child pornography must be prohibited and legally be sought after. Still too many children suffer extreme physical and psychical pain due to such crimes.

But artificially produced child pornographical graphics do not affect anybody’s quality of life. Also I cannot see any endangering: Since scientific research has proved that the legalization of pornography comes along with a relevant decline in rape cases a similar connection in the case of child pornography seems highly probable. If this effect would also show up in case of a legalization of drawings and animations remains speculation. A contrary development at least does not seem very likely.

In this case the punishment seeks after what is reprehensible, but not harming. One does not have to reproach the proponents of the illegalization of artificially produced child pornographical graphics with playing a cynical game with the victims’ fate who are sacrificed to the moral to find this ruling absurd.

At this point one can find the continuation of a legal concept which has equally justified legal measurements against strange religions or unpleasant ideas in respective times: That the state, in case the society is piqued, should fight this by blunting the “offender”.

It is this the concept of witch hunt in which a danger is constructed to punish the victim of the moral indignation. But the task of the state is in contrary to defend the individual citizen’s freedom against his neighbors’ arbitrariness with the help of its monopoly on the legitimate use of physical force and punishment and not, to be their tool.

Therefore the state should abstain from this moral judgment in cases that do not affect third parties and keep to its core task of taring the freedoms of the members of the society. The moral decision about his own behavior can be made by the citizen himself.


"„Der Unterschied zwischen Reich und Arm ist der, dass die Armen alles selbst tun müssen mit ihren eigenen Händen, die Reichen aber können jemanden anstellen, der die Dinge für sie tut.“"— Betty Smith


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