Sunday, April 16, 2017

The Liberty Principle

Liberty is the principle of self-direction. Liberalism is the Enlightenment political doctrine that values liberty above other principles, such as beneficence, utility, and justice. There are two strands of Western Liberalism: egalitarianism and libertarianism. The differences between these two stands will be discussed in the next section.

Both egalitarians and libertarians believe that human beings ought to be able to do, pretty much, whatever they want. Many philosophers follow John Stuart Mill's idea that utility and liberty are mutually supporting principles. A happy society is nothing more than a society that has a lot of happy individuals. How do we become happy individuals? Simply put, in order to be happy we have to have a certain percentage of our needs and wants fulfilled. But who has a more accurate of idea of what those needs and wants might be: a.) we ourselves as individuals, or b.) someone else? More importantly, does government really know how to make you happy? If we as individuals know what kinds of things make us happy, and if we are more likely to know how to attain those things, then any society that aspires toward collective happiness must protect an individual's right to pursue those things. In my mind, that is a simple empirical truth. Now this is not to say that we as individuals have perfect insight into what makes us happy. In fact, most of us tend to discover happiness over the course of our lifetimes via trial and error. My sole hypothesis here is that rational competent adults are better judges of their own personal happiness than government, and that the collective happiness is proportional to personal freedom.

But the liberty principle does have its own fair share of philosophical controversy. Obviously, some critics argue that human beings are neither rational nor do they possess something that resembles free will. Admittedly, that might be true. But if it is true, there is no sense talking about morality apart mere convention or politics. So my view is that moral responsibility implies rationality and free will. If I'm wrong, the whole libertarian agenda makes no sense. I think I'm on solid ground.

There are problems too. As we have already seen, the pursuit of pleasure by some individuals often conflicts with the pursuit of pleasure by others. After all, it is virtually impossible to live in a modern society without interfering with another individual's pursuit of pleasure. Here, there are varying degrees of conflict. For example, my elderly neighbor finds her pleasure working in the tranquil and serene confines of her garden. I enjoy playing electric guitar at a near-deafening volume level, but my elderly neighbor complained that my playing is both physically and aesthetically painful to her. Another neighbor experienced pleasure from raising vicious pit bulls, while my children derived pleasure running around the neighborhood playing "Capture the Flag" on warm summer evenings. Any society committed to the private pursuit of pleasure or happiness and the liberty necessary to sustain it, must provide for the resolution of these types of personal conflicts. So over the years, philosophers have proposed a variety of liberty limiting principles, which include: harm to others, harm to self, harm to public institutions, offense, legal moralism, and social utility. Libertarians recognize only harm to others, and under limited conditions, harm to self.

All libertarians recognize one liberty limiting principle: that is, harm to others. The formula says: "You can do whatever you want as long as you do not harm anyone else in the process." There are two objective ways to harm others: by forcefully seizing their property (the fruits of their labor) or by killing or injuring their bodies. The distinction between harm to others and harm to self, however, implies other distinctions; most notably a distinction between self-regarding acts (that do not harm others) and other-regarding acts (that harm others); and a distinction between acts and speech. Libertarians argue that a liberal government may regulate other-regarding acts, but they may not regulate self-regarding acts.

First of all, it takes "thick skin" to live under a libertarian society. My children and I must tolerate my neighbor's vicious barking dogs, unless I can prove that their enclosure is inadequate. Of course, if my dog-loving neighbor's pit bulls escape and bite my kids, then the government could justify regulating his actions (or the actions of his dogs). My elderly neighbor might occasionally have to tolerate my guitar playing, barking dogs, and screaming kids. She might consider wearing headphones or wear earplugs when she works in her garden. I might build a fence around my yard to protect my kids from wandering pit bulls. At any rate, unless there is objective harm to others involved, libertarians argue that these kinds of disputes are best resolved by rational individuals engaged in one-on-one bargaining, "you scratch my back and I'll scratch yours!" Simply put, don't want to employ the coercive power of government to solve all of our disputes.

What are some examples of these self-regarding acts that are obviously protected by the liberty principle? Let's start off with things that we all do at home. Clearly I should certainly be able to sleep in the new boxer shorts that I bought at Wal-Mart, read a book purchased on Amazon, pick my nose, or eat spaghetti with my hands. Clearly, none of these acts harm anyone. They don't even harm me. I would also add, sharing a bottle of wine with my wife. Of course, if I decided to go out joy riding afterwards, that might be a problem. I might harm others in a car accident. But the problem here is how to determine exactly how much alcohol consumption it takes to impede judgment. Laws in the United States are disproportionately influenced by powerful industries. In the case of the regulation of drinking and driving, on the one side we have the alcohol industry and its distributors that want us to be able to drive to a bar or restaurant and have a couple of drinks, without having to worry about getting arrested. On the other side, we have the insurance industry that would prefer that we not only drive stone cold sober, but also that we drive only armored vehicles on the highways at 25 miles per hour, to avoid property and personal injury claims.

The real problem here is repeat offenders; that is lifelong alcoholics that repeatedly get drunk, get behind the wheel, crash, and harm others. Libertarians argue that DUI laws ought to focus on getting these people off the road. We all know that taking their licenses away does not deter them, nor do the modest court fines or brief jail. Libertarians would certainly support long jail sentences for alcoholics that repeatedly get into accidents. They will not support the expenditure of tax money to pay for rehabilitation either, even if those programs were proven to be efficient.

But the most basic problem is that the defenders of personal liberty must deal with a growing number of misguided Americans that want our highways to be as safe as our living rooms. While this might seem to be a worthwhile public policy goal, where does this quest for universal personal safety end? Do we want to live in vacuum sealed, risk free society, if it means giving up most of our personal pleasures: beer drinking, smoking, meat eating, sky diving, race car driving, or pot smoking? It's this very mindset that has fueled not only the ongoing wars on drugs, alcohol, and tobacco; but also the war on terror. Perfect security requires is  incompatible with personal liberty. For thousands of years, despots have used the pursuit of security as an excuse to usurp personal liberty. Do you really believe that the same government that planned and executed the wars in Iraq and Afghanistan and the responded poorly to Hurricane Katrina can be trusted to efficiently insure our security? Do you currently hold any stocks in one of those security conscious airlines?

There is also a longstanding puzzle that arises in the context of speech. Of course, we have a legal right to freedom speech, but how far does that right extend? Libertarians consider speech to be (almost always) self-regarding, in the sense that words rarely "harm" other persons. Remember when we were kids we used to say, "Sticks and stones will break my bones, but names will never hurt me!" Admittedly, I don't enjoy being told that I'm a jerk, ass hole, idiot, or creep. Occasionally in the exercise of their free speech, students say bad things about me that, frankly, hurt my feelings. The problem here is how to deal with these hurt feelings in a free society. Some libertarians, like John Stewart Mill, defend free speech, in general, on utilitarian grounds by saying that by leaving speech unregulated we are more likely to find the truth in a diversity of expressed opinions. When students point flaws in my teaching, I try to fix those flaws. Trial and error implies feedback!

But clearly, some forms of speech do harm others. As Mill suggested, if I falsely yell, "FIRE!" in a crowded theater, and if I know that there really is no fire, my words may unnecessarily harm others. Sometimes in the exercise of free speech, we harm others by making false or derogatory statements or by verbally threatening to use violence. But today, there is an ever-growing list of things that we cannot say to others. If you ask a coworker to go out on a date, be careful. You might be contributing to a hostile work environment and be prosecuted for sexual harassment. Libertarians defend a rather narrow definition of harm by restricting to physical harm, or threats of physical harm.

Many argue that "harm to self" can sometimes be invoked as a liberty-limiting principle. Acts of paternalism involve violating a moral principle, usually liberty, in order to provide an unwanted benefit or prevent someone from a harming themselves. Hard paternalism is when you either provide an unwanted benefit or remove harm from a rational person. Soft paternalism is when the unwilling target of our beneficent acts is irrational. Paternalism can be exercised toward individual adults, or groups of adults. Paternalistic intervention can be exercised by either: individuals, groups, or the State.
Of course, not all acts of paternalism can be morally justified. Libertarians reject all forms of hard paternalism because they are against the use of coercive force against competent adults. At least some libertarians support weak paternalism; that is they are sometimes willing to violate the liberty of some individuals in order to protect them from self-inflicted harms. The following conditions must be met before paternalistic intervention can be morally justified:

Competency Requirement: The target of paternalistic intervention must be incompetent. Paternalism can never be justified on behalf of a competent person.

Harm Requirement: The target of paternalistic intervention must be either suffering from a major harm or facing an immanent harm. Paternalism cannot be justified merely to provide an unwanted benefit. It must aim to remove a major harm.

Redounding Good Requirement: The proposed intervention must obviously do more good than harm. Paternalism cannot be justified if the intervention is likely to do more harm than they are already experiencing, or may experience.

Least Restrictive Alternative Requirement: If several interventions are possible we are obligated to employ the least restrictive one.

In sum, libertarians regard all forms of paternalism as problematic.

Another liberty-limiting principle that is often invoked in modern societies is the offense principle, which states that I am at liberty to pursue my own private interests as long as I do not "offend" others in the process. The difficulty with applying this principle is the fact that we all have different levels of sensibility. Some people are offended very easily. For example, some thin- skinned individuals are offended when they see mothers breast-feed their children in public places. They insist that it ought to be done only in private places. But if we regulate public places in such a way to avoid all possible sources of offense, our collective liberty would be severely curtailed, and our public places would not be much fun for anyone. What I consider to be offensive might not be offensive to others. At least some people are offended by rap music, public nudity, burning the American flag, Rush Limbaugh's radio show, and houses painted pink. Therefore, the widespread use of the offense principle as a liberty-limiting principle will invariably lead to a pretty dull public sphere.

Now libertarians do not object if you choose to regulate your own personal behavior based on the offense principle. There are many things in life that I simply will not do because I do not want to offend others. I'll never use offensive words in reference to racial or ethnic groups such as: niggers, spicks, chinks, or Japs. (Oops, I just did!) Problems arise, however, when government attempts to enforce legal limits on speech based on the offense principle. That's because it requires some objective, mutually agreed upon standards.

First of all, libertarians argue that the concept of a public sphere is philosophically incoherent and a threat to personal liberty, and therefore, argue that that all places ought to be private places. If you call me "whop" (or any of the five or six ethic slurs that might apply to my background) when you are visiting my home, I might ask you to leave and I probably won't invite you over again. That's easy enough, right? But how would we go about applying the offense principle in public places?

Suppose the city decides to purchase lakefront property to construct a public park and beach. The idea is create a place that everyone owns collectively. But whenever, any place is designated "public" (beaches, golf courses, libraries, cyberspace, television, radio etc.) there will always be those thin-skinned individuals that want to minimize their own exposure to behaviors that they find offensive. This means that public officials will always be placed in the unenviable position of having to set rules that limit offensive behavior. And, as the old saying goes, "The squeaky wheel gets the grease." That means that the threshold of offensiveness will usually be set at the lowest common denominator. No skimpy bathing suits, thongs, rap music, or Irish beer drinking music allowed. Many public places in the United States are so sterile that they are no fun.

We might argue that public acts that offend a majority of people can be restricted? Let's just vote? Others might argue that the main problem with offensiveness, is when it's involuntary; that is, only if, those offenses are imposed on others without their consent. For example, if you voluntarily attend a public art exhibit knowing that it contains homo-erotic material, then you cannot subsequently claim to be offended. Logically, you cannot be voluntarily offended! But enforcing voluntariness alone doesn't seem to solve much. Will Wal-Mart have to post signs that warn customers that they might encounter breastfeeding mothers, obnoxious children, obese customers, violent video games, condoms, birth-control pills, and racy tabloids?

Libertarians argue that the only way to avoid the sterility of an inoffensive culture is to limit the acquisition of public property, which will also limit the government's ability to regulate those places. But in the final analysis, we'll just have to learn to be more tolerant of how others pursue pleasure.

Other forms of speech might harm public institutions. For example I might make a public speech in which I advocate tax evasion as a means of protesting tax policy in the United States. However, if we accept "harm to public institutions" as a liberty-limiting principle, many morally repugnant institutions (such as slavery) might never have been repealed.

In the United States, one of the goofiest debates I've ever encountered has been over whether or not to legalize gay marriage. First of all, whether we like it or not, marriage in the United States has become a public institution regulated and controlled by federal, state, and local governments. It serves as a means of distributing resources, especially in terms of child welfare, health and life insurance. There are tax advantages and disadvantages attached to marriage. Now once something is designated as a "public institution" there is a tendency to assume that it universal and eternal, and therefore, immune to revision. Remember that slavery was at one time a public institution.

By both tradition and legislation, marriage in the United States is assumed to be between males and females. Critics of gay marriage argue that allowing gay couples to get married undermines the institution of marriage. From a libertarian perspective, this argument is incomprehensible, if not laughable.

First of all, there is an unstated premise that institutions ought to support nature, and that lifelong marriage between males and females is "natural." But there is a difference between pair-bonding and marriage. Pair-bonding among human is natural, standing up in front of a public official declaring "till death do us part" is a cultural practice. So is getting divorced, which also requires going before a judge (usually an old man) and paying for a lawyer to file the papers. My take on all this is that marriage is simply a contract between two individuals. Whatever conditions they agree upon is their business. I am also willing to admit that marriage is a religious event, in the Roman Catholic Church it is regarded as a sacrament. In that case, those individuals choose to be Catholics, and choose to say their vows before a priest. They may or may not choose to use artificial birth control. If you choose to be a Catholic, then you must deal with the fact that as an institution, it does not support gay marriage. You can choose to try to reform the church or you can choose to join another church that is more hospitable to gay marriage.

But once marriage becomes a public institution that affects the distribution of resources, that's when it becomes suspect. So why not leave government out of whole marriage issue. Whoever you choose to be your marriage partner is your business. Your choice does not harm anyone else. If a gay couple chooses to adopt children or have children via in vitro fertilization, that's their business. They are as likely, or as unlikely to be good parents as anyone else. Just because you have a marriage license doesn't mean that you will be a good or bad parent. Just because you have a license to cut hair doesn't mean that you are a good or bad hair dresser.

So harm to public institution is a notorious bad justification for violating personal liberty.

The liberty-limiting principle known as Legal Moralism holds that civilized society can justifiably enforce rules of morality. Hence, advocates of this principle believe that the liberty of individuals can be justifiably limited by a moral code imposed and enforced by government, even if there are no harms or offenses committed. For example, I cannot buy beer or wine on Sunday morning in Cincinnati. What's the justification? The city cannot reasonably argue that buying beer either harms others, harms me, or offends others. Apparently the law exists because the city simply believes that it is immoral to purchase beer at that time when you ought to be in church. Some forms of legal moralism also encroach upon the private, self-regarding sphere. Laws against, polygamy, fornication, and sodomy might be good examples.

The basic problem with using the power of government to enforce morality is determining whose moral principles to enforce. Given the variety of moral convictions expressed by the numerous religious groups practicing in the United States, legal moralism could also make for a very restrictive public and private life.

Libertarians believe that morality arises out of the interaction of individuals in communities. They argue back and forth and arrive at some basic rules of conduct. Legal moralism takes the onus of control away from individuals and places it in the hands of public officials. That's how we end up with laws against polygamy, and blue laws that restrict the sale of alcohol on Sundays. If you want to marry 3-4 other persons go for it: as long as everyone involved is an adult and as long as everyone agrees. One would have to prove that polygamy harms others in order to make it illegal. If I'm right, you can't justify its illegality by arguing that it undermines the institution of marriage, or that others find it offensive either. So I support both gay marriage and polygamy. But then again, I also believe that marriage is personal and religious. We don't need government to tell us who to marry. Politicians are not marriage experts and they not especially good at it themselves.

In summary, there have been many proposed liberty-limiting principles. The more the government limits liberty in public and private spheres, the less room there is for individuals and groups to pursue happiness as they see fit.

Terms to Know: Liberty Principle, Liberty-Limiting Principles, Harm to Others, Harm to Self, Paternalism, Offense Principle, Legal Moralism. 


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