Laws and Liberty
By Keith Allen

In Association with

Laws and Liberty
18 March, 2008 (originally posted on Blogger, 13 February, 2008)

"Let's ban hate speech!"

"Let's ban gay marriage!"

"Let's get rid of corporate regulation!"

"Let's get rid of restrictions on freedom of speech!"

There certainly are quite a few people who either want to revoke particular laws or who want to put new laws in place. Unfortunately, the debate on this topic is horribly muddled. Some say laws are just bad. Some say freedom can be taken to excess. How are we to judge any of this? Well, the answer is that we need to look at things rationally.

To begin with, let me say that I am not going to be talking about laws setting up some institution, fund, or the like. Assuming that one accepts that laws of this sort are acceptable, then the appropriateness of such a law ultimately depends upon the nature of the institution, fund, or whatever that is being established. Is it beneficial, cost effective, responsibly organized, and so on? Questions about the appropriateness of these laws, both in general and with regard to specific instances, as interesting as they can be, are quite different from those I will be asking here.

Instead, I am going to talk about punitive laws, that is to say, those laws for which a punishment can be imposed if they are disobeyed.

When I look at these laws (which I will hereafter refer to simply as 'laws,' rather than as 'punitive laws'), I notice that they can be divided into two classes: those intended to protect liberty and those intended to restrict liberty. Of course, all laws do restrict somebody's liberty, but those of the first sort restrict only those behaviors that impinge upon the liberties of others. They, in other words, protect liberty by making sure one individual does not limit the liberty of a second individual. It is these laws that are morally acceptable. The others almost never are.

In making these claims, I am working from the axiom that we human beings, and, indeed, all living things, have innate worth and that, because we do, our desires have worth. If our desires have worth, then our ability to fulfill our desires should not be limited without reason. That said, one person's acquisition of what he desires might be detrimental to the fulfillment of the desire of another. I am not, of course, talking about cases where the desires of two persons clash in such a way that those persons are in competition. When two people desire the same thing, or have desires such that if one is fulfilled the other cannot be, then such conflicts will simply have to be resolved in as equitable a way as is possible. I am, instead, talking about instances where one person is imposing his desire upon a second person and, in doing so, hurting that other person. In such a case, that individual whose desire is hurtful to the other cannot be allowed to fulfill his desire. It is then that laws must be made. Because of our innate worth, no person can be permitted to do harm to another. We should, consequently, ban theft, murder, rape, and every form of exploitation.

At the same time, we should not make any laws that limit how a person leads his or her life. Every person has a right, based on his innate worth, to engage in whatever activities he desires, so long as these are not directly hurtful to someone else.

I do not mean to imply that I am advocating libertarianism. I am not. In fact, I think that libertarianism is a foolish, blind movement. Its adherents apparently assume that the only entity that infringes upon people's liberties is the government. This is clearly not the case. Private individuals and private institution are equally capable of doing so. If the libertarians had their way, and the government withdrew from protecting people's rights, from regulating corporations and the like, the country where such measures were taken would quickly degenerate into a tyrannical oligarchy where corporate bosses did as they desired and the people would have no recourse against them. There are more than a sufficient number of examples of countries, the governments of which have not passed laws protecting the poor or the weak, where these people are brutally exploited by those with economic power. Just look at the great haciendas of South America or the factories of Nineteenth Century Europe. If we are to be free, we need laws restricting the freedoms of those who would oppress us. Someone's freedom is undoubtedly being restricted then, but it is only their freedom to limit the freedom of others. That, of course, is the extent to which any government should limit the rights of its citizens.

Whatever a person may desire to do with his or her life, he should be free to do it, so long as it does not impinge upon the liberties of others. There will certainly be cases where others are annoyed by the freedoms exercised by their fellow citizens. I might not, for example, be happy to see some person walking naked down the street, but if that person chooses to do so, I cannot think of any reason why my aesthetic sensibilities should be imposed upon him. Somebody else's nudity does no direct harm to me. If I am emotionally harmed, it is only because of my own values, not because of some assault. I am not being insulted or vilified by another person's lack of clothing. That person is simply not living his life according to the standards I think he should.

All this said, I do not deny that there will be grey areas, cases in which one person's freedom so irritates another than it might have to be restricted. Noise laws come to mind. One person might desire to play music so loudly in the middle of the night that all his neighbors can hear it. No doubt, he is exercising his freedom, but I do think his freedom ought to be restricted in this matter. Though the person playing the music is not physically harming another, he is directly imposing his noise upon another in a way that the other person cannot avoid the noise. Moreover, in such an instance, it is not the playing of the music that is the issue. The problem is with the volume, something that can be adjusted without prohibiting the playing of the music itself. In a case like this, I would say that, due to the particular balance of factors, restrictive laws are reasonable.

There are, however, other cases that fall within this grey area where rights ought not to be restricted. It could, for example, be argued that same-sex relationships should be made illegal because those who engage in them are hurting their families. No doubt, this is true. There are parents who might be reduced to tears to learn their child has had sex with someone of the same gender. This case is a little different from that given above, however. Here, the parents are upset because they desire their child to share their values. They are not upset because the child is imposing something on them. If they make a value judgment about their child, they have every right to do so, but that does not alter that fact that the child is not doing anything to them in any direct way. Simple non-approval of another's action, even if that non-approval is accompanied by anger or chagrin, is not a sufficient reason to make a law against something. It is only when an action directly affects another person in a harmful way that a law is justified, and, frankly, not even always then. Sometimes we just have to put up with annoying people.

The same can be said about freedom of expression. One person may say something that offends another, but his disapproval is no reason to keep the first individual from saying what he desires to say. Now, if what the first person says is actually harmful to the second person, and if it is false, then certainly the second person should have legal recourse. That, of course, is why we have libel and slander laws.

Endless other such examples could be provided, but they do not weaken my case. There are no absolutes in this world, and instances in grey areas will simply have to be examined on a case by case basis and decisions made according to our best judgment. Undoubtedly, errors will be made, but that's just not avoidable.

When a decision is made to restrict liberty, it should always, in the end, be made because some person is exercising his freedom in such a way as to limit another's freedom. We should never, except in the most exceptional of cases, make laws intended to restrict freedom. Such laws restricting the freedoms of one class of persons are virtually always made either to benefit a second class of persons or to prevent the members of the first class from engaging in an activity those of the second class find morally objectionable. As examples of the first of these categories, I might point to laws in Nazi Germany banning trade unions, that were intended to make sure workers were not able to challenge their bosses, Jim Crow laws in the United States, meant to keep blacks in a subservient position, and current attempts to pass laws on "lawsuit abuse," intended to shelter corporations from individuals they have wronged. With regard to the second class, I could point out sodomy laws, prohibitions of various sorts of intoxicants, and restrictions on freedoms of expression. All of these laws are wrong, and they are wrong because they are intended to limit liberty when there is no moral justification for doing so. I might not approve of how my neighbor lives his life, but I have no right to force him to live it as I see fit. For that matter, he has no right to try to get me to live my life as he thinks I should. Neither of us, moreover, has any right to restrict the rights of the other in order to exploit that other.

When laws are tools one group can use to oppress another group, either because it is beneficial for the first group to do so or because the first group is disdainful of the second group, then those laws should be attacked. However, when one group, or even one person, infringes upon the liberties of another, then laws are needed to prevent such actions. When the strong prey upon the weak, then laws need to be made to stop them. When the strong make laws to ensure they can prey upon the weak, then we need to rid ourselves of those laws.

By Keith Allen

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