I’m about to do something pretty rare for me and disagree with a prominent pro-liberty writer.  In this article, Jeffrey Tucker (who’s writing I am generally a huge fan of) tackles a common theme in the libertarian world, laws against drunk driving.  The typical argument goes that driving while intoxicated in and of itself is not an act of aggression, and therefore should not be subject to draconian punishment.  This is quite a reasonable assertion, and in a perfect world, I would stand ready to agree with it.

However, at some point we must concede that the world we live in is quite imperfect.  One of the most obvious imperfections is the presence of a rather large and rather meddlesome state.  I am more than willing to engage in the occasional theoretical debate about how we might structure society in the absence of a state, but for the moment the state is here, and we must take that into consideration when discussing exactly how societal order should be maintained.

The primary factor that I believe Mr. Tucker and others are overlooking in this matter is the burden of proof for alleged offenses.  Blanket statues such as “No driving with a BAC over 0.08” or “No texting while driving” offer one huge advantage over more general laws such as “Do not drive recklessly.”  They can be measured objectively, and as such, they take a great deal of power away from individual law enforcement officers.  Current punishments for DUI can be quite draconian and nearly always include immediate arrest, at least one night in prison, fines and legal fees in the thousands of dollars, a suspended license, and lengthy mandatory courses.  Certainly no laughing matter.  Fortunately, there is no major concern that many people are falsely convicted of DUI, because there is a standard blood test that is not subject to the individual bias of a certain police officer.  While the officer uses his discretion in deciding who to pull over, being actually convicted of the crime typically requires a positive result from a scientific test.

Let us imagine if that were not the case.  Would Mr. Tucker and other pro-liberty activists favor putting the power to destroy someone’s life completely into the hands of individual law enforcement officers?  Certainly if the crime of DUI were replaced with a vague “reckless driving” law, but the punishment remained the same, every case of reckless driving would come down to a “he-said, she-said” argument between the accused and the law enforcement officer.  Officers could claim anyone was driving recklessly, and it would be rather difficult for the accused to prove otherwise.  This opens up the doorway to huge potential abuses.  Officers could accuse minorities, they could accuse randomly to attempt to meet a quota, they could even start pulling over people with Ron Paul bumper stickers and arresting them on the spot for driving dangerously.

Ultimately, this issue, like many others in our society, comes down to whether (in terms of legal statues) we prefer subjective laws or objective laws.  Subjective laws, such as “reckless driving” are certainly more targeted towards actual acts of aggression and, if implemented perfectly, more fair.  However, objective laws are certainly far easier to measure, enforce, and adjudicate properly.  I would suggest that replacing a subjective statute such as “do not drive dangerously” with an objective statute such as “do not drive with a BAC over 0.08” actually enhances individual freedom, as it creates an objective standard that we can all measure and take great care to maintain, rather than being at the mercy of the arbitrary whims of the government’s so-called peacekeepers.

As a final point of comparison, I would ask Mr. Tucker and other like-minded libertarians how they would feel if we replaced all speed limits with “officers are free to ticket whoever they deem to be driving too fast.”  I cannot imagine that any self-respecting libertarian would prefer such a change.