Yes, of course they can. There is such a thing as a mistake,and there is such a thing as evil. No sane person denies the former and no sensible person denies the latter. People can make mistakes, and they can commit evil acts. None of these are necessarily preventable by law. The only ones that should be prevented are those that violate others' rights, i.e. that initiate force or fraud. The rest may be immoral, but they are not crimes.
has just published a debate
on this issue, contrasting "Virtuous Libertarianism" vs. "Libertine Libertarianism." The gist is the following. Two political scientists, William Ruger and Jason Sorens, argue that some libertarians -- they term them "libertine libertarians" -- believe that "so long as an act is consensual and respects at least one truth—the inviolability of the person's fundamental right to choose how to use his or her person and property—not only should the law not get involved, but there is also no ground for moral criticism of the act. Values are essentially subjective in more than a descriptive sense but in a normative sense as well." Ruger and Sorens further contend that this is an error, and propose instead "virtue libertarianism," which recognizes that values aren't subjective.
In the debate, economist Deirdre McCloskey concurs, and economist Steven Horwitz and Reason
editor Katherine Mangu-Ward dissent.
A colleague was sufficiently impressed that he emailed this debate to me and maybe twenty or so other professors, including Ruger himself. Here's my response, which I also cc'd to Drs. McCloskey and Horwitz, both of whom I know.
"Interesting debate, but...
Would it not be simpler to just say that government has no business imposing ethics, and instead ought simply to defend individual rights? Some unethical things -- murder, rape, robbery, assault, fraud, etc. -- violate others' rights, and those are matters for the police. Other unethical things, such as having a zillion sex partners or following the wrong religion or drinking oneself to death or being mean, are not matters for the police.
I agree with Ruger & Sorens (and McCloskey), but this is just plain old libertarianism (classical liberalism): the state is only a means to address matters of protection of rights/collective security, and it shouldn't be imposing any particular moral system beyond that. Those "libertine" libertarians who add the provision "and we can't privately say one moral system is better than another, either" are changing the definition of libertarianism by adding their own personal view of what ethics should be. They essentially replace "anything that violates rights must be prohibited" with "anything that doesn't violate rights is good," but that substitution has nothing to do with promoting liberty. They're just smuggling in their own ethical system and pretending it is part of promoting liberty (or maybe fooling themselves into this).
One additional point: Horwitz argues that "libertine libertarianism" is "largely non-existent" among libertarians, and then ironically proceeds to promote exactly this "non-existent" position with his hypothetical of a promiscuous woman...maybe she's not un-virtuous -- maybe it's just that she, "heaven forbid," likes sex. As Horwitz himself demonstrates, it's unfortunately not a largely non-existent position, I fear (although most libertarians I know still understand that just because some things shouldn't be outlawed, it doesn't follow that we have to defend them as moral or sensible)."
Horwitz then responded:
"I don’t think the example demonstrates that I have a commitment to “libertine libertarianism” if that means a refusal to make judgments about behavior. My point was that I think R&S have a narrow conception of what might constitute the basis for making judgments about the quality of other people’s judgments, and as KMW notes in her reply, they seem overly concerned with a particular subset of human choices that they single out for judgment.
I explicitly did NOT say we can’t make a moral judgment about a woman with multiple sex partners, or a couple who chooses not to stay together. I suggested that such judgments are more complicated that R&S would have it. IOW: I object to their attempt to monopolize the high ground on what constitutes a right understanding of virtue.
So I’m not at all convinced I demonstrate the reality of their sorta straw libertarian."
To which I replied:
"Thanks for the comment Steve. But it strikes me that if one believes in an objective morality, i.e. that there really are such things as right and wrong, then one necessarily must be 'monopolizing' the right understanding of virtue. People disagree on what the proper morality is; under libertarianism they are free to do so, so long as they don't violate others' rights. Accepting this doesn't commit libertarians to saying that whatever people choose is right, but I do think there are a number of libertarians who think just that."
Frankly, what else can one conclude from what Horwitz has said? Almost all ethical systems, including those of Judaism, Christianity, Islam, and Objectivism, and pretty much every other religion, condemn promiscuity. So do the ethical systems of atheists, e.g. Ayn Rand and Ludwig von Mises. Yet in Horwitz' example, that the woman likes promiscuous sex (and has taken precautions against various physical
consequences!) should be enough to give libertarians pause. Good grief!
As for Mangu-Ward's point that Ruger and Sorens are overly concerned with a particular subset of human choices, well, what would one expect? The debate will necessarily be concerned with a subset of choices, i.e. those that don't involve initiation of force or fraud.
Ruger and Sorens are, of course, right. But there's no need to invent a new category of libertarianism, Nothing in libertarianism denies that there can be objective ethical standards. Neither does libertarianism hold that the only ethical question is whether rights are violated or not, i.e. whether or not a use of force is proper or not. There are many ethical questions, questions of what behavior is right and what's wrong, that do not deal with violence or rights. Bad choices, unethical choices, do not necessarily violate rights, but certainly they remain bad, and there's no reason for libertarians to defend them; a libertarian should simply defend one's right
to make bad choices.
I'll also note that free people might make bad choices that undermine a free society. They might become so self-indulgent, irresponsible, uncivil, and so devoted to tricking or otherwise taking advantage of each other that they destroy their society -- all without violating rights. There's no state solution for this. Contra progressives and many conservatives, the state cannot make people be moral. But that doesn't mean we don't know what moral behavior is. Mangu-Ward contends that "a list of virtues suited to a free society—and perhaps more importantly, our ability to identify those virtues in the wild—is historically contingent and tricky to pin down."
No, it's not. Being self-indulgent, irresponsible, uncivil, and devoted to taking advantage of others is neither historically contingent not hard to pin down.
Liberty is a necessary condition for a successful society and happy people, but not a sufficient condition, because people -- including free ones -- can make bad, immoral choices.