I just recently ran into someone on Facebook trying the line that the only laws that can be justified are those against force and fraud. I suppose everybody on the conservative side of the spectrum has to go through a die-hard, card-carrying libertarian period in their lives, during which they agonize over the question, "How can the state rightly stop a man from cutting off his own arm with a chain saw, as long as he doesn't hurt anybody else? Think! Think! No, I just can't justify such a prohibition." I, too, have had such debates. (Though I wish to have it known that I was always on the anti-chainsaw side. I could never go quite that far.)
As time goes on, it seems to me that the restriction of just laws to those against force and fraud is so obviously incorrect that I find it more and more difficult to know why it is so attractive. Here are just a few knock-down counterexamples. (Note that I say "knock-down." My point is that I'm not going to put into this list laws against pornography and prostitution, because those are of course points at issue between the die-hard libertarian and the social conservative. I'm going to pick other examples.)
It is obviously legitimate for some level of government to be able to stop/prohibit...
--keeping large dead animal carcasses all over your property, attracting vermin.
--dumping your garbage in the local public park to save on your garbage bills.
--having sex in public.
--walking around entirely nude in public.
--getting dead drunk or high and leaving your two-year-old to look after himself all day.
--deliberately cutting off your own arm with a chainsaw. (I know, I gave that one already, but I thought I'd put it into the list for good measure.)
--buying and selling infants.
Now, that's just for starters. I'm sure readers can add to the list. The point is that none of these involve either force or fraud, yet any person with a modicum of sense knows that to have laws against them or to allow the police to jump in and stop them (e.g., to confiscate the chainsaw) is not government overreach.
So why do people, it seems especially young people, adopt the slogan about force and fraud?
I can think of a few reasons.
1) Sensible small-government conservatives realize that notions like "the common good" and "indirect harm" have been vastly over-used by big-government leftists. There is a temptation to overreact, and the slogan about having laws only against force and fraud sounds in some way like a principled way to cut off all those big bureaucracies and excessive regulations at the knee. (Though come to think of it, why is it so principled? I mean, force and fraud are still moral categories. It's not as though we've somehow gotten away from morals by restricting laws to those against force and fraud. If getting away from morals is supposed to be a good thing, for some reason. What is the argument that places those moral categories into such a special position? Is it just supposed to be evident to the natural light?)
2) Related to #1, it is actually true that in many cases, laws that are not against force and fraud deserve additional scrutiny and prudential questions. Is it really going to be worth the intrusion into people's lives to have this law? This is true even before we get to ridiculous things like telling businesses how far away from the wall they have to have their toilets. Seatbelt laws are a good example. They are by no means knock-down laws. Are we really sure that it's worth it to have such laws? Doesn't it give you a bit of pause when your state gov. starts setting up "click-it or ticket" zones in which they videocam on-coming drivers and, if it appears visually that they aren't wearing a seatbelt, stop them and give them a ticket? It's perfectly legitimate to be in a sense libertarian sympathetic. I would be entirely open to an argument that, for all the lives they save, seatbelt laws aren't worth the loss of liberty and the feeling of giving the police state another stick with which to beat a dog. And so on for innumerable regulations. A phrase like "the common good" is not irrelevant, but it isn't a talisman either. It doesn't excuse just anything.
3) Finally, I think this "force and fraud" stuff gets brought up by fake libertarians who are actually leftists, and then conscientious conservatives feel stymied by it if they haven't answered it decisively already in their own minds. A liberal who accepts a kajillion business, environmental, and animal rights laws, and would even want to see more, a liberal who endorses Obamacare, of all things, will nonetheless start talking like a pious libertarian the moment one starts discussing a law against, say, prostitution or pornography. "It's a free contract." "It isn't violence against anybody." This, from a man who doubtless supports all manner of restrictions on free, non-violent contracts, is a bit thick, and the liberal should be called on the hypocrisy. Like this: "Do you support minimum wage laws? But isn't one freely entering into a contract to work for less than minimum wage? Do you support unions? But isn't that an intrusion into the right of a non-union worker to make a free contract with the employer? Do you support laws against pollution? But releasing x amount of smoke into the air is non-violent." And so on and so forth. Instead, there are some conservatives who will feel that they have somehow been "caught forcing their morals" on other people, momentarily forgetting all the ways in which the interlocutor wants to "force his morals" on you. (Try asking him if he supports non-discrimination laws. Talk about forcing morals!)
The fact of the matter is that it is impossible to build a workable society with only laws against force and fraud. They're a good place to start, but they aren't going to do it on their own. Others have written about this much more eloquently than I. I think that Jennifer Roback Morse is a good example of a person who comes from a somewhat libertarian background but also sees the limits thereof, especially when it comes to issues regarding children and custody. Every good conservative should have a little libertarian inside him. But that's not the place to stop.