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Posts Tagged ‘paternalism’

Every libertarian has a pet peeve, and mine is paternalism. Yes, I am deeply disturbed by the warspolice militarization, Obama’s pursuit of whistleblowers, regulations which make it illegal to do math without a license, and many other freedom-snuffing things. But the kind of stuff that gets me most riled up are laws to protect people from themselves.

It is impossible to have a discussion of these laws without referring to the following passage from John Stuart Mill’s influential work On liberty. The sentence in bold from the excerpt below is usually called the harm principle and is a cornerstone of libertarianism.

The object of this Essay is to assert one very simple principle … That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right… The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

I suspect that many liberal-progressive types agree with the harm principle on some level. So they often tend to justify paternalistic laws not on paternalistic grounds but on the grounds of limiting negative externalities. For instance, in their support for motorcycle helmet laws, their argument might echo that of the Massachusetts high court, which in 1972 (when it affirmed that a motorcycle helmet law was rationally related to the public welfare) declared:

From the moment of injury, society picks the person up off the highway; delivers him to a municipal hospital and municipal doctors; provides him with unemployment compensation if, after recovery, he cannot replace his lost job; and, if the injury causes disability, may assume the responsibility for his and his family’s continued subsistence. We do not understand a state of mind that permits plaintiff to think that only he himself is concerned.

In other words, your decision to ride un-helmeted harms other people, and so society can rightfully coerce you to wear a helmet.

The word “harm”, of course, needs to be interpreted narrowly in order that the harm principle be meaningful. A harsh word hurts. Breakups hurt. Abandoning your wife and going off with someone else may cause intense emotional harm. Everytime I buy something from X and not from his competitor Y, I am harming Y and favoring X. All these activities are legal, and should be.  Only kinds of harm that directly violate others’ rights (by causing violence upon them, or depriving them of their life, liberty, or property) should enter into the calculus.

Still, it is clear that if society is forced to pay extra because of someone’s recklessness, it is indeed a harm inflicted by the reckless individual upon the other members of society; who then might be justified in their intervention. This is what the high court affirmed in its ruling. In doing so, however, the court committed an elementary (but common) mistake; the failure to consider the alternative. The pertinent questions — when considering whether there should be a helmet mandate — are the following:

  • Does a person who rides unhelmeted cause a negative externality greater than one who wears a helmet?
  • Can any such negative externality be removed (i.e. internalized) without resorting to a helmet mandate?

Let us tackle the first question first. It is almost an article of faith among many that the unsafe and the unhealthy incur higher health costs. However, a recent study by Dutch researchers found that smokers and the obese typically cost less to society than the average person, the reason being that they die younger. It is likely that similar conclusions hold for several other activities that the safety brigade frowns upon. There is no doubt that a typical mountaineer or a base jumper spends much less over his lifetime on health and hospital costs than your average grandpa. So even if one lives in a jurisdiction where health costs are socialized, the argument that these people cost more to society, and hence their unhealthy/unsafe activites should be restricted, is specious.

The data on motorcycle helmets is more ambiguous. Some studies have found that riding unhelmeted reduces health costs per person (for the same reason as above, namely untimely death). Others have found a slight increase. For instance a 1996 NHTSA study showed average inpatient hospital charges for unhelmeted motorcyclists in crashes were 8 percent higher than for helmeted riders ($15,578 compared with $14,377). Now, that’s a small difference, and it is worth noting that the study only considered motorcyclists who were actually admitted to a hospital. When those who die on the spot are included, it is quite possible that riding unhelmeted actually reduces costs to society. There is also evidence that helmet mandates make little difference to  insurance premiums. Currently there are 30 American states where there is no universal helmet law for motorcyclists. There are 20 states where such a law does exist. The health insurance premiums across these states show almost no correlation with helmet laws. None of this is to say that it is good to be reckless or unhealthy, merely that the claim that by doing so you cost extra to society is often not true.

For the sake of argument, however, let us assume that there is indeed a significant negative externality associated with the act of not wearing a helmet. I would argue that this does not justify a mandate. What it does justify are steps to internalize this externality. How can this be done? By making sure that those who ride helmetless pay for the consequences. Here’s a proposal: Every motorcyclist who does not wear a helmet should be forced to either a) carry adequate insurance, or b) have proof of sufficient personal funds, or c) pay a certain amount of money annually into a common pool that would pay for any accident related costs not covered by their insurance; the amount would be empirically adjusted to ensure that unhelmeted motorcyclists, as a group, are cost-neutral for the taxpayer with relation to their helmeted counterparts, or d) sign a waiver that no part of their health or other costs reasonably attributable to their decision to not wear a helmet can be charged to the taxpayer. Furthermore, insurance companies, if they wish, should be allowed to charge an extra premium on helmetless riders.

People often go bonkers saying that they do not care to pay for risky decisions taken by others. Well, they don’t need to! Switzerland, the country I currently live in, has the right attitude about some of these things. The Swiss mountains are beautiful but many of the activities people love to do here (hiking, skiing, mountaineering, sledging, climbing, paragliding, base-jumping and so on) carry inherent risks. They do not ban any of these things here or mandate protective gear (a recent straw poll on a Verbier ski-slope found almost everyone, including the helmeted, opposed to compulsory ski-helmets) or even skimp on the protections. In fact, every time someone is in trouble and calls for help so that he can be airlifted out, a helicopter comes in swiftly for the rescue. What they do later, however, is to make an airlifted person pay the bill. Unless, of course, the person is already a patron of REGA, which one can do by paying a measly sum of 30 francs. Most avid adventurers choose to do so, and this small fee (which is basically an insurance premium) covers any heli-rescues they may need to avail of. So if you happen to need an airlift, and you aren’t a REGA patron, you pay for your rescue to the last cent. If you are a patron, you don’t pay anything. Externality internalized.

The proposal on internalizing public costs due to helmetlessness that I briefly sketched above is similar in spirit. I really don’t see how anyone committed to the harm principle can reject such a proposal and continue to defend helmet mandates. Yet, I know from experience that many will. I think the reason is that many of those arguing for mandates on grounds of externalities haven’t really thought carefully about externalities, nor do they really care. As evidenced above, the externalities related to motorcycle helmets, whether positive or negative, are most certainly negligible as a fraction of total costs; no one will notice any real difference in taxes or insurance premiums whatever the helmet law. There are all kinds of legal activities that people regularly do that create far, far, larger externalities, or involve much bigger risks. Then there’s the fact that the people who call loudly for helmet laws (whether it be motorcycling, cycling or skiing) only do so when someone tragically dies, but they barely notice it if someone is injured and requires expensive long-term care. Yet it is the former that actually saves the taxpayer money. When these same people resort to the specious “externality” argument while debating their helmet laws, I want to scream at them: “Stop arguing in bad faith.”

In fact, the act of riding a motorcycle itself is highly risky; whether or not one wears a helmet makes a difference in only a small number of cases (if a motorcyclist gets into a serious crash, a helmet will rarely save him). Yet very few people would support actually banning motorcycles. If one only cared about externalities and costs to the taxpayer, one should support regulations and counteracting measures roughly in proportion to the size of the externalities. In reality, the regulations reflect the size of the moral disapproval. It is stupid to ride without a helmet. It is such a completely unnecessary risk. Riding helmetless or not wearing a seatbelt is incredibly foolish. There should be a federal law stopping all these. Period.

The true reason behind paternalism (whatever the purported reason) is the desire of people to impose their values on others. Quite simply, paternalists ignore that different people have different values. Like all nannies, they think they know best. They decide what risks are acceptable and what risks are unnecessary. They fail to see that maximizing health is not the same as maximizing happiness. To some people, the joy of riding down a hill, unencumbered by a helmet, unweighed by laws, feeling the wind in your face and hair, is indeed worth the risk of severe injury or death. Besides, there is an inherent value to freedom. As Jacob Sullum put it, when it comes to how people feel about their lives, they may well prefer to make their own bad choices rather than have better ones imposed on them.

Most people has a deep seated urge to control others and bring them to the “right” path. It is important to be able to recognize this urge as the greatest evil. Libertarians oppose laws that mandate helmets or seatbelts, and those that prohibit drug use, prostitution, raw milk sales and the infinitely many other things the unwashed masses are supposed to keep away from. Yes, we personally may not indulge in or encourage most of these behaviors. But we recognize our decision to do so for what it is, an exercise of our own values and cost-benefit analyses, which may not match those of others.

***

The group was driving south on Route 11 in Lafayette around 1:30 p.m., headed toward Lake Como, just south of the Finger Lakes. It was a nice day, but they were there to make a point.

In the group was Philip Contos, from Parish, NY, and he was 55 years old. They were participating in a helmet protest ride initiated by ABATE, an organisation that opposes mandatory helmet laws. A beautiful day it was, but Philip’s bootlaces got stuck in a chain. The biker looked down to inspect the problem, looked up and saw traffic slowing and slammed on the brakes. The bike fishtailed, and he was ejected. He hit the ground with a crunch and he died on the spot.

He died on the spot. What did he die for? Was it to preserve his freedom to be an idiot, a rebel, a reckless individual? Perhaps he would have survived if he was wearing a helmet. But then again, if there was no law in New York that mandated helmets, he would not be out protesting that day, that beautiful day, and maybe his shoelaces would have not stuck in the chain…. His brother, Richard Contos, said Philip would do it again, if he could. “He would have wanted it that way. … He protested everything.” So, who was this man who protested everything?

I never met Philip Contos, but I feel joined to him. 

He died defending the freedom to be himself, to be free of moral busybodies telling him how to lead his life. I would probably wear a helmet if I did ride a motorcycle, but if I were in New York that makes it illegal to ride without one, I’d probably be joining Contos in his protest.

Helmets make one safer. But safety is just one thing among many. We do not have to live life in a way that maximizes safety. We have the right to make whatever trade-offs we wish in our personal decisions. He died defending this sacred right.

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Dear Amit Varma,

A year ago, in a post on your blog, you vigorously opposed French president Nicolas Sarkozy’s position that the burqa should be banned. You wrote:

But not all women who wear burkhas, especially in the West, do so because they are being forced into it. Many women wear them out of choice, and we should respect that choice. We may disagree with their reasons for it—but really, once that choice is established, those reasons are none of our business. They have as much of a right to wear a burkha as to not wear a burkha, and to outlaw that option amounts to the same kind of coercion that Sarkozy is trying to position himself against.

In his speech, Sarkozy said, “The issue of the burqa is not a religious issue, it is a question of freedom and of women’s dignity.” I agree—and that is why we should respect their freedom and dignity by not trying to regulate what they wear. Sarkozy condescends to women who choose to wear a burkha by implying that the government is better placed to make those choices for them. If I was a burqa-wearing women, I’d be rather pissed off.

That is my view too, and I was glad to see it seconded on one of India’s most popular blogs. If freedom means anything, it means the right to make choices both good and bad, the right to pursue actions that liberate or enslave. Anyone who truly believes in liberty will oppose government attempts to ban the burqa as strongly as they would an attempt to ban the skirt. In the absence of explicit coercion, it’s not the state’s business to protect people by regulating their “bad” choices.

Yet, last week, in a tweet, you approved of a Muslim group’s campaign in Canada to get the burqa banned.

I wonder if your position has changed or if you just weren’t thinking it through when you wrote that tweet? If it is the former, I lament your fall from the libertarian you once were.

Sincerely,
Abhishek

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Michael Bloomberg, chief nanny of New York, while defending his plan to regulate the amount of salt restaurant chefs will henceforth be allowed to put in their dishes:

If we know there’s asbestos in a school room what do you expect us to do? Say it’s not our business? I don’t think so.

This is an absurd analogy and not just because of the substantial difference in harmfulness between salt and asbestos. (If it was just that, I’d merely call Bloomberg’s analogy far fetched.) There are more fundamental reasons why his analogy breaks down.

1. Choice.  Salt imparts taste to food. Life’s choices are about weighing costs and benefits, in this case weighing the cost of increased risk of high blood pressure versus the benefit of a possibly tastier meal. Ditto with other unhealthy lifestyle choices: smoking, spending all day playing video-games or riding a motorbike. It’s a freedom issue, one of individual choice. On the other hand, not many people in this age knowingly choose to live in a house with lethal asbestos in the roof.

2. Fraud. Assuming that the asbestos is typically present without the consent or knowledge of whoever owns or lives in the building, it is a case of fraud and a lethal one at that. On the other hand, the food you buy: well you get what you wanted and ordered. Presumably you know perfectly well that it contains a fair amount of salt. There is no fraud of any kind. (And if a lot of people are unknowingly ordering food with high amounts of salt, well, that would at best call for some kind of salt-quantity-disclosure law.)

3. Age. A school room is populated by students, who are mostly not of legal age and in some cases very young. Restaurants are populated by a lot of adults who, presumably, should be able to eat very salty food if they want to.

Finally, if some person  knowingly goes ahead and builds asbestos into the roof of his house, I think — notwithstanding Bloomberg’s protests — it is not the government’s business to stop him, but merely to make sure he makes this information available to all other occupants, tenants and any guests who come to the building, and does not have any children living there.

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A new French law criminalizes “psychological violence” against a spouse or cohabiting partner.

Pretty great I say. The French are geniuses. They have already outlawed pesky things like free speech, unsexy clothes and hard work. Now all those domestic arguments must stay within strict rules laid down by the government. Think about all the hours saved. No endless bickering, no name-calling, no emotional blackmails. Ah, what a life. Relaxed, stress-free and productive. A nice, fat, motherly government to keep deviants in line and make sure no one ever hurts another’s feelings. What’s there to worry? Big momma will always watch out for you.

“Why can’t you be caring and romantic again, like when we were seventeen? I wonder why I still stick with you!

“No one’s forcing you to stay honey. Feel free to move your fat ass and leave me for good. Just stop subjecting me to your endless blabbering.”

“Sob! Police!! I have been PSYCHOLOGICALLY abused!!”

On the French agenda for next month: rules forbidding laziness, rudeness and jealousy.

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To add to the list of depressing news for the day, have a look at the sorry fate that the medical marijuana bill in Minnesota suffered.

Nonetheless, I think the wind is blowing in one direction in the US; and that is towards legalization. These are not the wishful words of an optimist but a mere appraisal of the expression of views we are seeing currently. Major newspapers are running pro-legalization opeds like never before, the public attitudes have never been more favorable and if you look at the age-breakup of the polls that are being conducted, it is obvious that change is coming.

I have an almost perfect success rate in previous predictions I have made on this blog, and I am confident that the two I am going to make now will come true.

1) In ten years from now, recreational marijuana use will be either fully legal or decriminalized in more than 35 American states; the federal government will no longer seek to interfere in state policy on this matter; most major US urban cities will be as pot-friendly as Amsterdam is today.

2) On the other hand, regulations against tobacco, unhealthy foods and fatty burgers will get more stringent. Vice taxes associated to those will increase substantially. In ten years from now, it will be hard to light up even in most private owned properties except a few narrowly defined areas. Trans-fat bans will be almost universal. Companies will have much less freedom than now about what they can sell you; this will be done to protect you from your bad choices.

In short, the pro-marijuana legalization winds that are blowing today have less to do with libertarian principles and more to do with what is currently considered ok. Here’s an old post by me on this theme.

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Chuck Hurley’s appointment as National Highway Traffic Safety Administration head is a troubling one. Read this great piece by Radley Balko to find out why.

As for MADD, they are a perfect example of an organization whose nanny-statism has crossed the line from being annoying to what I can only succintly describe as evil.

[In case anyone is wondering, I do realize that highway and traffic restrictions affect people other the driver, and thus are not necessarily paternalistic. My comments above concern only those positions held by MADD (and others of its ilk) that are either purely paternalistic or so unreasonable that they can only have been motivated by paternalistic concerns.]

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A small victory for freedom and common sense, though for the wrong reasons:

A court in Breda, Netherlands has overturned the smoking ban the government imposed last summer. The judge ruled that the ban violates Article One of the Constitution and the European Convention on Human Rights.

The judge argues that the ban disproportionately affects the owners of small establishments with no additional staff.

The correct reason why the smoking ban is doubly absurd is that it targets private, not public places and in particular ones where most customers come specifically for smoking. The fact that passive smoking can lead to cancer is quite irrelevant here because no one is forcing a non-smoker to go to these places. 

A similar law in the US, for instance, would immediately ban most hookah bars. I would think anyone would see the underlying absurdity and inherent dangers immediately but apparently that is not the case.

I am also surprised — as when I read the linked comment above — at most people’s amazing lack of understanding of the basic libertarian principles and their propensity to attribute positions to their opponents that they do not hold. (For the uninitiated, this is usually referred to as a strawman argument)

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The following piece of news seems relevant in the context of my earlier post on tobacco and the illusion of liberty caused by unprincipled value judgements.

From the incomparable Reason Brickbats:

Dutch police cited a 27-year-old man for smoking a joint in one of Amsterdam’s famous coffee shops. Smoking pot is legal there, but the man, who was not identified by the local press, mixed the pot with tobacco before rolling the joint. That broke the Netherlands’ ban on smoking tobacco in workplaces.

The above incident is so absurd that I cannot even feel outraged.

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Oregon wants to raise the (tobacco) smoking age to 21.

Wait, that can’t be right, can it? Don’t Oregonians love their mountains and their freedom? I mean, come on, Oregon  is a pioneer in assisted suicide laws. It was one of the very few states to oppose ski-helmet mandates in an online TIME poll from last week! And they really like gays and unconventional individuals.

And oh, they love their pot. Marijuana for medicinal use is legal and simple possession for personal use has been decriminalized. If there is one state whose residents would be comfortable with legalizing most drugs, it is Oregon. So how can they get paternalistic about tobacco?

You see, tobacco is just not in. Hell, rednecks smoke it all the time. Some of the lowest taxes on tobacco are in states where gay-haters and religious conservatives rule.

For that matter, fatty foods are not in. Pleasures that are not good for your health are usually not in unless supplemented by some kind of culture. Free speech is in but hate speech is not. Trying to explain to them that hate speech is part of free speech is most certainly not in. Protesting exploitation and capitalism and going to jail for political persecution is in. Woolly sweaters and vegetarianism are in. For a detailed list of things that are in at cities like Portland or Seattle or SF or NY, head over to SWPL.

So I was thinking of all this and that’s when I realized this: Oregon’s supposed libertarianism is an accident. It has nothing whatsoever to do with the moral principle of individual liberty. It has to do with certain value judgements.

It is the same everywhere. It is cool in San Francisco to be stoned for days doing weed or cocaine or heroine but smoke a pack of  cigaretters over there and you will be treated like a demon. Hookah is somewhat in though and will draw no more than mild disapproval. Wine  and most other alcohol is awesome. Prostitution is a private matter and should not be interfered with. However trans fats are banned.

Then head over to Texas or Utah and do all of the above things San Francisco residents approve of wholeheartedly. You will be dragged to jail kicking. But don’t get too despondent! In Texas, they will give you other freedoms than are in over there. Like guns and cigars and low taxes and the right to eat trans-fat laden foods.

Jeffrey Rosen said it best. On the surface it might seem that restrictions on freedom are getting more unacceptable. Horrendous laws like those against sodomy no longer exist. But the truth is that morals legislation is alive and well. The problem with sodomy laws wasn’t that they were based on moral disapproval; the problem was that the public consensus about the immorality of sodomy had collapsed. It all depends on the value judgements of the majority and the influential; the things they consider ok become legal. Defending freedom for freedom’s sake … not just in.

And that realization would ordinarily make me sad but today it makes me smile. For it reminds me of another insight I had when I was very young. Of all the insights I’ve ever had that one is my favourite. And it’s simply this: The world we live in is a ridiculously funny place.

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  •  While GM and Chrysler are in their last throes, Ford is trudging on. Obama may have fired GM’s CEO and told Chrysler exactly what to do but he has had no such luck controlling Ford. The company has refused offers of taxpayer life support and believes it can not only survive this recession but in fact prosper. It’s CEO, Mullaly does not hide his admiration for Toyota and believes that in a few years Ford will be viewed on par with the Japanese giant. “I would love people in the future to say, ‘There’s Toyota and Honda and Ford,’ ” says Ford’s North American chief Mark Fields. “We have the goods to do it.”
  • It may be the strangest worm to ever hit the internet. The unknown creators of the Conficker worm have earned praise for their breathtaking sophistication even from the supranational security forces that are currently trying to track them down. So far the worm has done nothing except morph into more sophisticated variants but estimates for the number of infected — and thus controllable — computers range from five to fifteen million. Microsoft has announced a $250,000 bounty for information leading to the identity of the hacker who created it. Everyone only agrees on two things: it is the most complex and brilliant piece of malware written in years and no one knows what it can really do if it’s controller decides to wake it up.
  • Today, the federal excise tax on every pack of cigarettes will jump from 39 cents to $1.01, the single largest federal tobacco tax increase ever. Future plans in the works include outlawing risky sports, putting a 1000% tax on cheeseburgers, and having fines for too little exercise; eventually anything that places a ‘needless burden on society’ will be either banned or taxed to such an extent that everyone will be forced to conduct themeselves in an exemplary manner. Ok, I made up the last sentence. But you get the idea. You see, it is for the sake of the children.
  • Brooke Oberwetter has filed a lawsuit against the U.S. Parks Police officer who arrested her last year. She was arrested while — and apparently because — she was quietly dancing to her iPod during a planned celebration at the Thomas Jefferson Memorial in Washington, D.C.
  • Celebrities are getting strange fantasies involving President Obama and have no qualms about admitting it. “I’ll collect paper cups off the ground to make [Obama’s] pathway clear,” Halle Berry recently told the Philadelphia Daily News, “I’ll do whatever he says.” And in February, author Judith Warner used her New York Times blog to confess that “The other night I dreamt of Barack Obama. He was taking a shower right when I needed to get into the bathroom to shave my legs.”
  • A beautiful piece by former Seattle police chief Norm Stamper on drug legalization.

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I found this on the internet while searching for related stuff. It was written ten years ago by someone called Brian Wilson.

This is the important year. The beginning of the end. “The Shift” is happening.

[…] “The Shift” is what I call the mass hysteria, the mass group thinking that takes over suddenly, when 95 percent of the population suddenly and ferociously agrees on something that they never cared deeply about before. And what comes next is legislation to force the last 5 percent to bend to their will. To the population caught up in “The Shift”, this sudden new conviction is as strong as religion, and anyone in the last 5 percent who even SUGGESTS a calm debate or alternative is treated like a heretic who should be burned at the stake. If you are getting angry or self righteous at this rant because you suspect where it is going, then you have fallen prey to the mass thinking already.

[…] Now, you might be part of the 1 percent of the population that is like me. If that is the case, I apologize for lumping you in with the rest of the mindless masses. I seem to be immune to “The Shift” in most cases. This isn’t a blessing: I’m continually lamenting the loss of yet another freedom to “The Shift”. Those caught up in the various crusades (anti-smoking, pro-seat belts, pro-motorcycle helmets, etc) joyously give away their freedoms, and seem happy to do it.

This year we are still early enough in “The Shift” that some helmet wearers had some very thoughtful insights. One 50 year old couple who were wearing helmets suggested that the highly publicized deaths of Sonny Bono and Kennedy last year, both by colliding with trees, contributed to the large rise in helmet use. But we are far enough along in “The Shift” that the truly mindless were coming out of the woodwork also. I rode up a lift in Winter Park Colorado with a woman and her 4 year daughter. The daughter was wearing a helmet, and the woman was not. The woman actually told me that she wished the government would pass a skier helmet law, so that she would be forced to wear a helmet just like she forced her daughter to wear one.

For a moment I lost the will to live, and I almost jumped off the lift.

I cannot STAND people who have this kind of attitude. It is not the government’s job to force us to be “safer children”. It is not the government’s job to decide what is an acceptable risk for us personally, and what is not. If you want to wear a helmet while skiing, please do! It is a very good idea. I might choose to wear one also, depending on the conditions and where I plan to ski that day. But you and I need to accept the decision of the informed skier who chooses to feel the wind in their hair, and take the well known risk of going sans-helmet.

That applies today, it will apply tomorrow, and it will apply 50 years from now. Don’t succumb to “The Shift”, in which you suddenly change your opinion at the same time as the rest of the population does, and you hold your new opinion with religious fervor.

I realize this rant is hopeless; I am tilting at windmills. I predict that within 5 years there will be a skier helmet law for anyone under 18. Within 10 years, there will be a skier helmet law for everyone. And 20 years from now, on a ski slope, on a perfect day with a blue sky and perfect snow, I will irritate my friends by playing the heretic. While wearing my government mandated ski helmet, I will wish out loud that just for one run I could feel the wind in my hair.

Do read the whole thing.

Brian’s prediction hasn’t yet come to pass. No  country yet has a universal ski-helmet rule that covers everyone. However many places already mandate  helmets for children and it seems likely that some Canadian provinces will soon pass a a law forcing all skiers to wear helmets. And maybe it will then be California, or some European country, and pretty soon the rest of the world will follow. Or maybe not.

But his thoughts about “The shift” are true, not just in the paternalistic context but about anything really. And if you are thinking that shifts are merely rational reactions to updated human knowledge, I’d prefer you mull over it some more.

***

And now a more personal note. I don’t know what Brian thinks today of his rant from ten years ago. He probably believes his rant made no difference to anyone’s lives. And to an extent he is right. No law has been influenced by his opinion and most people don’t care about freedom anyway. But if he ever reads this, I’d like him to know that it did make a small difference to someone’s life about fifteen minutes ago. His rant made me happy. It made me smile, even if that smile were tempered by sadness and a tinge of hopelessness.

For to believe in individual liberty is to see your strongest moral convictions treated like dirt by ninety-five percent of the population. It is a bit like living in some country in the past where everyone else possesses slaves. When you believe something to be utterly wrong it does not help if the overwhelming majority thinks it is good.

Why did his post make me happy?

I am not happy to be part of a minority that rails against the stupid majority. Such happiness is an enemy of rational thinking. On the contrary, I’d like most other people to think similarly on this core moral issue– my dream world is one where liberty is taken for granted by everyone so that it is not even an issue; where there is no need for me to blog about it or do random internet searches.

His post made me happy because, quite simply, it gave me some kind of support. In a small way, it told me I am not alone. I can not justify this happiness except to say I am human. So thanks Brian, and all those other advocates for liberty who I have read but never met.

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I have written enough in the past about Canada’s (usually successful) attempts to muzzle free speech and monitor thought crimes and enforce some kind of bizarre right to not get your feelings hurt.

But this latest proposed law takes policing your head to an entirely different level. I understand that the proposal has been spurred by Natasha Richardson’s tragic death, but that’s what makes it all the more scary; that so many people’s natural reaction to a tragedy is to clamor for more government regulation.

Considering the fact that ski helmets are fairly useless at speeds higher than 20 mph (an impact leads to a fatal collision of the brain with the inside of the skull, something no helmet can prevent), I wonder if they will next make a rule that declares Newton’s laws of motion illegal.

(Also read: On motorcycle helmet laws and freedom)

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In London (my British friend informs me) it is illegal to ride a bicycle without wearing a helmet. I find that amusing because Londoners can jaywalk legally; so it is the precise opposite of California, where helmets are not mandatory for adult cyclists but jaywalking is illegal. Actually I think that both jaywalking  and riding without a helmet should be legal, but at least (careless) jaywalkers (sometimes) disturb cars by coming in their way and can potentially even cause other people to have accidents. A cyclist without a helmet, on the other hand, is endangering no one but himself; the probability that a cyclist ends up disrupting traffic by some stupid maneuver is not really decreased by forcing him to wear a helmet. So I am not terribly bothered by jaywalking regulations while a helmet mandate would drive me crazy. I don’t think my friend even got the argument; he was clearly arguing from the point of view of relative safety, not individual liberty.

I suppose we cannot escape the nanny-state wherever we go but some laws are more oppressive than others. To give a closely related example, American laws do mandate seatbelts while driving (unless you live in New Hampshire!) but that affects me less personally because first of all, even if you violate this rule it is virtually impossible to get caught by a cop for it and secondly, I would anyway wear a seatbelt most of the time irrespective of the law. Bicycle helmets are another matter — I do not wear them unless I am planning to ride on a busy road for an extended period of time, and more importantly a cop can see from far whether or not you are wearing one, thus making it very easy to get caught.

And you see, there is this little complication: having a paternalistic rule imposed on me offends my morals very strongly. So in short, cycling in London would either make me vulnerable to lots of fines or make me very very angry for a significant part of the day. To save my sanity, I would therefore not cycle. And I really like cycling. 

So, as I informed my friend, the London helmet rule is sufficiently disconcerting to me that I will never accept a long-term position there (of course, even without that rule, Britain is one of the most unlibertarian places in the world). Thankfully, my google searches have so far showed no evidence that I am required to wear a helmet while cycling in Switzerland. In fact I have learnt the happy news that in Denmark, Netherlands and Switzerland — which I have previously mentioned in this blog as probably the three most libertarian countries in the world from a personal issues standpoint — almost no one wears helmets while riding a bike.

It may be a small matter to most people but it’s a big deal to me: the fact that I can bike around in Zurich without going crazy makes me very happy.

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(Followup to Domestic violence and consent)

In this post, I intend to discuss and clarify some issues related to violence and consent. For the most part, I will take for granted the libertarian philosophy of non-interference in any consensual act and explore some of the ramifications of this position with regard to acts of domestic violence. Of course, a lot of people do not attach a great deal of value to the idea that governments should not interfere in the consensual private affairs of adults. I am under no impression that my arguments will change their minds and so this post is not addressed at them. My goals are much more modest; if you are favourable to legalized gambling, prostitution, sexual freedom and so forth, in short if you are something of a social libertarian, then I hope to convince you that current domestic violence laws are contrary to your principles. I will also use my discussion on domestic violence as a launch-pad to say a few things about violence and consent in general.

Why focus on domestic violence first? Well, apart from the fact that this issue is topical, there are several factors that make domestic violence different from other types of violence. Violence is generally thought of as bad and private relationships as sacred. And as far as libertarianism goes, both of these are particularly important concepts: the non aggression principle appears to simultaneously forbid violence and protect private affairs from external interference. So a discussion of domestic violence laws, which govern the realm where privacy and violence intersect, is definitely a worthwhile endeavour.

Secondly, societal as well as legal attitudes towards domestic violence cases has undergone a sea change over the last hundred years. In the early part of the twentieth century, police often refused to register domestic violence complaints. Domestic violence was viewed as a mostly private matter and even vicious physical attacks rarely resulted in jail time. Victims, usually the wives, had a hard time convincing law enforcement to come to their aid — even when they did, the abuser was usually let off very soon.

Today on the other hand, the pendulum has swing to the other extreme. Many US states follow a mandatory arrest policy, where police can arrive at the scene of a fight on a simple call from a neighbour and once they do so, they are usually bound to arrest one of the parties. The ‘victim’s’ wishes are not respected. She might tell the police officer that it was mutual, or consensual, or a family matter; he would still be arrested if the policeman finds the slightest sign of violence. Making matters worse is the current system where such cases as treated as crimes against the state rather than the victim. Thus, once charges are filed, the victim cannot ‘drop them’ — she is treated merely as a witness, it is up to the state whether or not to respect her wishes regarding the fate of her alleged abuser.

Both approaches are wrong, because they ignore the crucial ingredient that defines a crime — lack of consent.

As I wrote in my earlier post:

Theft is a crime only because it is involves takings without permission. If I take my friend’s car keys and go for a spin without asking him and he later finds out about it and gets mad, he has every right to demand legal redress. However if he is perfectly ok with my disappearing act, it would be laughable to suggest that the law should override his wishes and punish me.

Rape is prosecuted not because it involves force or sex but because one of the parties has not consented to the act. Many birthday parties in India involve birthday bumps, where the special person is hoisted in the air and roundly smacked around. It is a violent act, but all good-natured and fun. However if you give bumps to a person despite his protests and he later goes and complains to the police, you will surely be charged with at least a misdemeanour assault.

For there to be a crime, there has to be a victim. The fundamental premise of libertarian jurisprudence is that there are no victimless crimes. And it is consent  alone that determines if there is a victim. Undoubtedly, in cases like murder where the victim can no longer testify, or cases involving abuse of children or the mentally disabled, the law is perfectly justified in presuming their victim-hood. However, when two adults are involved, their is no need for the law to make such value judgements. 

What people consent to is their business. When society imposes its fiat on such a matter, it infantilizes the parties involved.

Is violence necessarily bad? Simple surgery involves violence and bloodshed. A typical response to this example might be that surgery is done at the request of the victim and it serves a good purpose. Surely violence with the intent to hurt is an entirely different matter? But what then of boxing, professional wrestling and UFC? They involve people trying their best to hurt each other. Ok, but such sports are regulated affairs. But then what about violent sex or BDSM? Should the government outlaw them?

The correct libertarian response is that violence is wrong only if it is non-consensual. And if you agree with that response and support current domestic violence laws, I think there is a significant tension in your worldview.

First of all let’s consider the case where a couple has an explicit agreement that it is ok for their fights to get physical. That does not mean they welcome or like the violence, any more than they like non-violent fights such as verbal arguments or emotional attacks. It does not mean that the person(s) getting hit does not try to stop the attacker or does not hit back. It simply means that they think that an argument leading to a slap or a shove could occur in extreme circumstances and if so, they vow not to get the authorities involved. In short they think of it as a private matter just as name-calling or emotional blackmail is generally accepted to be. To make matters more explicit and sensible, they may even agree upon a last resort ‘safe-word’, which if uttered, would compel the attacker to stop hitting, failing which consent would automatically be withdrawn by the victim and the police justifiably called upon.

I presume that most social libertarians would be okay with the above setup. Let us, however examine the above scenario in more depth.

It is worth noting that consent in the above case is not to the particular slap or shove but to a general lifestyle where it is ok to do those things. Now, suppose I am a police officer and I catch a couple physically fighting. They claim consent in the above sense. I say it is clearly non-consensual because they are trying to hurt each other, defending themselves from the other and trying to stop the other from hitting. I might even say that I heard her tell him to stop (this is different from uttering the safe word, which would be an act of last resort).

All of my arguments would however be flawed as all of those things are part of their agreement! A simple comparison with the boxing/wrestling/BDSM example might be enlightening.

This example already shows how difficult it would be to disprove a consent defence like the above; it would be as hard (and yes, as unwelcome) as trying to police a thought crime. It also shows that intent is irrelevant to such a case, as are physical evidences like bruises.

Now, most couples do not have such an explicit agreement. So let’s take a modified scenario, the one that essentially seems to have happened between Rihanna and Chris Brown.

Chris Brown hit Rihanna (it is unclear who provoked whom) and she was left with visible but not life-threatening injuries. The police came on the scene and the next day Brown turned himself over. However, Rihanna had a change of heart and forgave him. The couple reconciled and she refused to testify against him. She now wants the charges dropped and in fact, it seems that she might even testify in his defence if he is prosecuted. The district attorney and the police however, seem set to try and prosecute Brown.

Does Rihanna not wanting Brown charged make her a consenter? Indeed it does, not to the blows that Brown gave her, but to a lifestyle in which their private boundaries are extended, where hitting her is unwelcome perhaps but where she prefers it be dealt with privately by them and not by the law. In effect she is saying exactly what my hypothetical couple in the above example are saying: leave us alone. Is there a difference at all between the two cases?

Actually there is. Rihanna and Brown did not probably have an explicit agreement of that nature before the physical violence. In short this is a case of ex-post facto consent. But should that make it any less valid?

It is a general principle of ethics (and common sense) that our later views and positions, formed after more time, experience and evidence, ought to rightfully occupy a superior position vis-a-vis our earlier or more premature ones. Let me relate two examples. The first is the case where I take my friend’s car for a drive without his permission. Clearly I do so without his consent. You might say that if he knew, he would have consented. That may very well be true, but let us assume he does not know who took the car, comes home and sees the keys gone and gets very angry. However I come back soon and because I am his friend, he forgives me and we have a laugh about the whole episode. 

Or take another example, where I arrange for my girlfriend to be kidnapped (slightly violent, and obviously without consent) by some hired men. She is terrified for a while but then the kidnappers take her to the island of her dreams where I am waiting to propose to her with a diamond ring (forgive the cliches for a moment). She is overjoyed and not just forgives my daring scheme but in fact agrees to marry me instantly.

Both these are cases of ex post facto consent to what originally might have seemed as a violation to them. Most people would agree it would be ridiculous for the police to override the ‘victim’s’ wishes in either case and prosecute me. Yes, in both cases, initially there was lack of full information. However, that is hardly relevant, the crucial point is that on further deliberation, the victim changed his or her mind. And besides one could always argue that Chris Brown’s behavior after the act gave Rihanna new ‘information’ about his true nature. Thus information is not really the point here and the point is simple; in all three cases (car, island, Rihanna) one of the parties insisted in the end that she does not consider herself a victim. And if in any of these cases, the state decides to go ahead and prosecute the alleged ‘victimizer’, it means they are prosecuting a victimless crime.

There is another, pragmatic reason why if one agrees that (pre–fact) consent is a valid defence, then one should consider ex post facto consent equally valid. It is virtually impossible for the authorities to prove that consent was ex post facto if the victim claims it was not. So if Rihanna decides to tell the court that she and Brown had an agreement of the sort I described, there is no way she can be disproved beyond doubt. Right now, the police are using her bruised photograph as evidence to prosecute Brown, but that would be useless under this defence. Even any statement she might have given to the police would not really be useful, because she could always say that she said those in the heat of the moment but in reality she did not think his behavior crosses their privately defined boundary. 

The simplest and most just approach in all cases of violence by one citizen on another then is this: treat them as crimes against the person (provided the person is alive and able to articulate his or her wishes) rather than the state and drop those charges if the person does not want the accused punished. Anything else, as a commenter wrote in my previous post, is a mockery of justice. (Or at any rate, this is what you ought to believe if you subscribe to libertarian principles on social issues.)

The above arguments are mostly philosophical, grounded on individual liberty. However, there are some people who agree morally that consent, both before the act and after, ought to be an absolute defence against acts of violence but support the status quo on pragmatic grounds. They think that if the victim is allowed to drop the case, many will be intimidated to do so. But even if that were true, surely the obvious solution is to protect the victim from intimidation or reprisal! Laws that provide strong deterrence and efficient justice in the case of a violation, a system where it is easy to file cases, obtain no-contact orders and get police protection, where the victims know that the police is fighting for them, not against their wishes — will provide far more security from intimidation than one where the victim’s wishes are not respected.

A case in point is the mandatory reporting law that exists in a few states: any domestic violence injury must be reported to the police by the physician. The funny part is that women who have never been abused support the law by a 70-30 margin while among women who have been abused in the past and have thus reaped the benefit of the law, the aupport drops to 55-45. This fact and others are laid out in this paper by three medical researchers who explore the effects of such mandatory laws. Their recommendation? At the least, “the efficacy of mandatory reporting of domestic violence to police should be further assessed, and policymakers should consider options that include consent of patients before wider implementation”, they think.

The same is true for other laws of a similar nature: mandatory arrests, inability of the victim to unilaterally cancel a no-contact order, etc. Thus, even on pragmatic grounds, there is little rationale behind laws like these which do not value the consent of the alleged victim. At any rate, even if a law like that did some good, there are always alternate pragmatic solutions that preserve liberty and serve the same purpose, that is protect victims from intimidation or coercion.

And if anyone thinks I am raising too much hue and cry defending wife-beaters and other scum, all I can say is, if you  believe in a principle, you are bound to defend it in all cases, including the unpleasant ones. Freedom of speech entails defending the right to disseminate hate speech. Freedom of association entails defending the rights of bigots to not employ or serve those who they irrationally hate. And if privacy and consent are worthy principles, one must also defend the right to indulge in private consensual behavior we would not personally approve of.

Besides, if one is willing to make exceptions to these principles in such cases or if one takes the view that certain kinds of violence are (absolutely) bad or that the state can rightfully define victimhood without regard to the wishes of the ‘victim’, then governments might some day start categorizing even non-violent consensual behavior, such as prostitution, as violence against the woman and using that as justification to outlaw it. Oh wait, they already did that!

But then, the law has never really treated the consent principle with anywhere near the respect libertarians think it deserves. In most jurisdiction, one cannot consent to harm to self beyond a certain point unless the act is strictly regulated, such as sports. This has led to paradoxical situations where severely hurtful consensual behavior is sometimes allowed (think ultimate fighting, or some extreme sports) while relatively less dangerous behavior is outlawed. An excellent reference for such examples is the paper Sex is not a Sport: Consent and Violence in Criminal Law. The author, who chooses to focus particularly on examples related to sports and sadomasochism does not exactly subscribe to the libertarian principle of absolute non-interference in private matters, indeed she takes the opposing view that governments have a legitimate interest in controlling violence. Nevertheless I think it is a worthy read.

I think this passage is particularly noteworthy:

Historically, under the common law, violence, even if consensual, was illegal. Thus, consent was no defense when one engaged in an activity that could cause physical injury or death, even if the “victim” did not complain. Assaultive behavior is criminal behavior, as the wrongdoer infringes upon and threatens the state’s monopoly on the legitimate use of force. The victim is merely a witness for the prosecution. Yet, courts have carved out exceptions to this general rule on a case-by-case basis. In this section, I review the Anglo-American history of consensual violence in the sporting context, drawing primarily from English, Canadian and American jurisprudence. Although few American appellate courts have examined the doctrine of consensual violence, both the Canadian Supreme Court and the British House of Lords have taken up the issue in the last decade. Thus, American legal scholars can benefit from the experiences of our common law cousins in this area.

When discussing the issue of consensual violence, it is quite common for commentators to assume that courts use the “harm test” to decide the relevancy of consent—the more likely injury is to occur, the less likely a court will allow the activity. In 1895, for example, in the first American article to examine the issue of violence and consent within the criminal law, the Harvard Law Review summarized the doctrine of violent consent. “A game which involves physical struggle may [be] a commendable and manly sport, or it may be an illegal contest in which the participants are or may become criminals; this depends on whether it is a game which endangers life.” The premise was that the level of injury inherent to the activity is what is crucial to the law.

But courts have allowed all sorts of activities, including prize fighting and hockey, which carry a high probability of injury, and disallowed barroom brawling, which is arguably no more dangerous. In practice, the likelihood of harm is more or less legally irrelevant. What is legally relevant is the social utility of the activity itself. The law clearly distinguished between those contexts in which men competed to enhance their manliness and those contexts in which their aggression went unchecked, or inspired runaway passion by the parties or observers. Instrumental violence—that which serves a “manly” purpose—is legal, but expressive, emotional violence, which carries with it too high a risk of social unrest, is not. Thus, lawmakers have whittled down the playing field, so to speak, by legalizing only those sporting activities that promote what I call civilized masculinity.

She is right. The reason why law treats consent in such an inconsistent and muddled manner is because the majority, through the state, has always tried to outlaw behaviors they disapprove of. So the doctrine that one cannot consent to violence beyond a point (unless it is with regard to a fashionable activity) has less to do with principles and more with a desire to simultaneously preserve the state monopoly on violence, let the powerful majority have fun but keep in check deviants.

But then, I suspect I have fundamental differences with paternalists and public-interest-apologists that logical arguments cannot resolve: how can you possibly disprove someone whose axioms differ from yours? I hope to convince only those who already have a healthy scepticism of government power and a strong respect for individual liberty. And if any of them still believe that the law should recognize victimhood irrespective of consent or the victim’s wishes, I urge them to reconsider.

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This is sad.

Four members of the Final Exit Network, including its president and its medical director, were arrested Wednesday and charged with assisted suicide in the death of 58-year-old John Celmer last June at his home near Atlanta. Investigators said the organization may have been involved in as many as 200 other deaths around the country.

[…] The arrests came after an eight-month investigation in which an undercover agent posing as someone bent on suicide infiltrated the Final Exit Network, which bases its work on “The Final Exit,” a best-selling suicide manual by British author Derek Humphry.

Members of the Final Exit Network are instructed to buy two new helium tanks and a hood, known as an “exit bag,” according to the GBI. In court papers, investigators said the organization recommends helium because it is undetectable during an autopsy.

Final Exit is a book I possess and have read. I think it is a tremendously important work and, along with the eponymous network,  performs an invaluable service. As I have often stated on this blog, I view right to suicide on par with the right to life — the most fundamental right of man.

Of course, most don’t view it that way and my advice to others like me who wish to have complete control over their moment of exit is: buy those helium tanks and bags now and keep them in multiple locations. Have sensible backup plans. Don’t wait till you are so weak that you need assistance to get that stuff — for there will always be people who will fight to deny you liberty. And needless to say, before you take any irreversible decision, think long and hard.

And to those noble members who were arrested today: you were punished for doing good, for helping a man exercise his most precious freedom. You are not the first to face such injustice nor will you be the last; but the work you were doing will be carried on by others in your absence and your contributions and deeds respected and fondly remembered.

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