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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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“A child becomes an adult when he realizes that he has a right not only to be right but also to be wrong.”

Thomas Szasz.

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This post is meant to rebut some of the common criticisms of libertarianism. Many such criticisms can be found by a simple web search and are mostly variants of a few recurring themes. Typically, libertarians are accused of being utopian, unrealistic, dogmatic, immoral, simplistic, nihilistic or simply extreme. Unfortunately, it is impossible to address these claims when phrased in such generality; the situation is further complicated by the fact that most existing critiques of libertarianism are either a) too narrow b) applicable to bad arguments made by some libertarians rather than libertarianism itself, or c) poorly written to the point that it is a waste of time to even attempt a rebuttal.

One of the better criticisms that is available online is Robert Locke’s essay that appeared in 2005 in “The American Conservative”. Titled “Marxism of the Right”, it is a relatively well-written article that brings together several of the commonly levelled criticisms under one roof and seems to appeal to conservatives and liberals alike; thus it seems worthwhile to respond to it. This is what I do below.

It goes without saying that I do not speak for all libertarians, only for myself. I am defending my position (roughly, pragmatic minarchist); not that of every person who has ever lived and called themself libertarian. While I have tried to argue as broadly as possible, some of my arguments below do not exactly apply to all flavors of libertarianism. I have left a note whenever that is the case.

Locke’s statements are color coded purple and some of it is in bold for emphasis. My responses are color coded blue, some of it italicized for emphasis. For simplicity, completeness and to preempt any suspicion that I am quoting Locke out of context, his essay is retained in its entirety.

So here goes…

*****

Marxism of the Right

by Robert Locke

Free spirits, the ambitious, ex-socialists, drug users, and sexual eccentrics often find an attractive political philosophy in libertarianism, the idea that individual freedom should be the sole rule of ethics and government. Libertarianism offers its believers a clear conscience to do things society presently restrains, like make more money, have more sex, or take more drugs.

This is highly misleading. Libertarianism (being a political ideology) makes no pretense at doubling up as a code of personal ethics. There is an important distinction between the legal and the moral. It is perfectly consistent to be personally against something and at the same time advocate it should be legal. In his enthusiasm, Locke makes a mistake that is common among conservatives who accuse the ideology of immorality or nihilism.  He starts with the fact that libertarians are against government interference in private affairs and concludes that it encourages its followers to be immoral libertines. The issue is not one of morality but of coercion. Nowhere from the hypothesis that the government should stay out of private matters does it follow that the individuals themselves are freed of moral culpability.

Some might counter that it is small step from legal sanction to social approval. According to this argument, legalization of drugs and prostitution will lead to tremendous abuse and a breakdown of the moral fabric of society. This fear is however unfounded, as empirical evidence in countries where these things are already legal shows. I will expand on this later.

It promises a consistent formula for ethics, a rigorous framework for policy analysis, a foundation in American history, and the application of capitalist efficiencies to the whole of society. But while it contains substantial grains of truth, as a whole it is a seductive mistake.

There are many varieties of libertarianism, from natural-law libertarianism (the least crazy) to anarcho-capitalism (the most), and some varieties avoid some of the criticisms below. But many are still subject to most of them, and some of the more successful varieties—I recently heard a respected pundit insist that classical liberalism is libertarianism—enter a gray area where it is not really clear that they are libertarians at all. But because 95 percent of the libertarianism one encounters at cocktail parties, on editorial pages, and on Capitol Hill is a kind of commonplace “street” libertarianism, I decline to allow libertarians the sophistical trick of using a vulgar libertarianism to agitate for what they want by defending a refined version of their doctrine when challenged philosophically. We’ve seen Marxists pull that before.

Again, Locke’s enthusiasm (to tar libertarians with the brush of ‘Marxism’) causes him to gloss over the fact that little of what he says here makes sense. I presume that by “street libertarianism” he means unsophisticated arguments backed up more by conviction than data. In that case, I can assure him that proponents of his own ideology, conservatism, are no less guilty of that. However, if I were to undertake a serious criticism of conservative politics, I would attack the strongest arguments, not some stupid utterance by a straw-man. When I agitate for individual rights, I do not pretend to be nutter, so there is no reason for me to do so when I defend libertarianism. Locke will surely find it easier to refute some aspects of street libertarianism than rebut the arguments made by the folks at Reason or Cato. He must have remarkably low confidence in his own ability if the former is all he wishes to aspire for.

This is no surprise, as libertarianism is basically the Marxism of the Right. If Marxism is the delusion that one can run society purely on altruism and collectivism, then libertarianism is the mirror-image delusion that one can run it purely on selfishness and individualism. Society in fact requires both individualism and collectivism, both selfishness and altruism, to function. Like Marxism, libertarianism offers the fraudulent intellectual security of a complete a priori account of the political good without the effort of empirical investigation. Like Marxism, it aspires, overtly or covertly, to reduce social life to economics. And like Marxism, it has its historical myths and a genius for making its followers feel like an elect unbound by the moral rules of their society.

As a libertarian, I do not claim that society can function purely on individualism and selfishness; I do contend however that altruistic, collective and philanthropic enterprises (except for the measures that preserve individual liberty itself) must be voluntary. History has shown us that such enterprises are not just possible to achieve without government coercion but in fact function much better when it is so. This is an important point that I will return to.

Furthermore, Locke’s insinuation that libertarians ignore empirical studies in favor of armchair reasoning is completely false. (Locke’s own essay, on the other hand, does not contain a single piece of empirical analysis.) Libertarians have considerable data to back up their claims, some of which I will touch upon.

The most fundamental problem with libertarianism is very simple: freedom, though a good thing, is simply not the only good thing in life. Simple physical security, which even a prisoner can possess, is not freedom, but one cannot live without it. Prosperity is connected to freedom, in that it makes us free to consume, but it is not the same thing, in that one can be rich but as unfree as a Victorian tycoon’s wife. A family is in fact one of the least free things imaginable, as the emotional satisfactions of it derive from relations that we are either born into without choice or, once they are chosen, entail obligations that we cannot walk away from with ease or justice. But security, prosperity, and family are in fact the bulk of happiness for most real people and the principal issues that concern governments.

Libertarians try to get around this fact that freedom is not the only good thing by trying to reduce all other goods to it through the concept of choice, claiming that everything that is good is so because we choose to partake of it. Therefore freedom, by giving us choice, supposedly embraces all other goods. But this violates common sense by denying that anything is good by nature, independently of whether we choose it. Nourishing foods are good for us by nature, not because we choose to eat them. Taken to its logical conclusion, the reduction of the good to the freely chosen means there are no inherently good or bad choices at all, but that a man who chose to spend his life playing tiddlywinks has lived as worthy a life as a Washington or a Churchill.

As I have already mentioned, libertarians do not claim that freedom is the only good thing in life. While much of the sources of happiness, such as relationships, friendships and what we do with our spare time can be effectively reduced to freedom, some things, as Locke rightly points out, cannot. What libertarians contend, however, is that most of these things, such as prosperity, food, services and cultural provisions are best provided through the free market. Put another way, the government should limit its role primarily to the defence of freedom and the enforcement of contracts. There are two primary reasons for this.

First, costs and benefits are different for different people. Locke contends that nourishing foods are universally and objectively good for us. What he really means is that  nourishing foods are universally and objectively nourishing. Some people might be willing to eat less nourishing food simply because they are tastier. As Jacob Sullum eloquently put it — “Maximizing health is not the same as maximizing happiness.” There is no set of universal terminal values that work for everyone. Ergo, we should let people decide their own terminal values instead of having some government bureaucrats do so.

Secondly, the free market is more efficient in providing the goods that people need. Let me relate a little story to illustrate this. The other day, I took my parents to the Getty Villa, a beautiful museum in the Malibu seafront that emulates a Roman city. It does not have an admission fee. The Villa is a veritable treasure-house of ancient pottery, sculptures and paintings. People of all ages visit the place today to play, learn and enjoy. The Getty Villa wasn’t built by the government. No tax money went into its construction. It came up because of the vision of one man, a philanthropist, the late J. Paul Getty, who is also responsible for the magnificent Getty museum in Los Angeles.

This illustrates two fundamental truths. A free society tends to produce wealth. A free society also tends to have a lot of people willing to give. America between the late eighteenth and the early twentieth centuries enjoyed some of the highest levels of freedom (though stained by the terrible wrong of slavery) that the world has ever seen. There was very little regulation, and this, more than anything else, catapulted the US into an economic powerhouse. What is less well-known, however, is that nineteenth century US also witnessed more philanthropy than the world has ever seen anywhere.

So, yes, there are a lot of things beyond ensuring personal freedom and property rights that go into a worthy life. But these things, from the mundane to the sophisticated, from corn flakes to art museums, are best provided through the mechanism of freedom. Locke, if he is an economic conservative, will know this. And if so, then he is already in agreement with the libertarians, who, whatever Locke might think, make no claim about the relative value of different things, but simply state that the only thing of value that the government ought to provide and protect is individual freedom. Once this is accepted, it is clear that questions such as whether there are inherently good or bad lifestyles are not relevant to politics.

Furthermore, the reduction of all goods to individual choices presupposes that all goods are individual. But some, like national security, clean air, or a healthy culture, are inherently collective. It may be possible to privatize some, but only some, and the efforts can be comically inefficient. Do you really want to trace every pollutant in the air back to the factory that emitted it and sue?

Certain things, such as the air we breathe, are collective properties because, as Locke points out, there is no realistic way of dividing them into private units. Thus, problems relating to them affect us all and may need a collective solution. The question then becomes what is the most effective way of dealing with these problems taking into account the various issues involved.

Libertarianism is about respect for individual freedom and property rights. It isn’t about extending the concept of privatization to situations where it obviously does not apply. (Note: I am talking on behalf on minarchists here, not anarcho-capitalists, some of whom go further than me in their notion of privatization. But I doubt that even they will seriously consider privatizing air)

Libertarians rightly concede that one’s freedom must end at the point at which it starts to impinge upon another person’s, but they radically underestimate how easily this happens. So even if the libertarian principle of “an it harm none, do as thou wilt,” is true, it does not license the behavior libertarians claim. Consider pornography: libertarians say it should be permitted because if someone doesn’t like it, he can choose not to view it. But what he can’t do is choose not to live in a culture that has been vulgarized by it.

Freedom, in the sense libertarians use the word, does not mean ‘freedom to not get offended’ or ‘freedom to live in a society where people don’t see porn’. Indeed, if the word freedom were used to include such things, it would not retain any consistency. One woman’s freedom to wear a spaghetti-top could then be viewed as impinging upon her neighbour’s freedom to not live near someone who wears spaghetti tops. Of course, this is absurd, as everyone would agree. However this is precisely what happens when the word ‘freedom’ is used in a haphazard manner.

The concepts of freedoms and rights are best viewed through the lens of private property. The freedom to watch pornography in one’s home or in a business establishment is a simple corollary of property rights and freedom of contract. Locke does not make precise what he means by ‘vulgarization’. If he is talking of sexual abuse or unacceptable conduct of related nature, then the law indeed needs to step in to punish, not pornography, but, the incidence of sexual abuse. However, if he just referring to a vague (and subjective) notion of ‘immorality’, then I’d simply reply that a ‘freedom to not live in a vulgarized society’ does not exist anymore than a ‘freedom to not live near someone who wears spaghetti tops’ does.

In any case, as Locke does not give any evidence to back up his claim of ‘vulgarization’, let me provide some. Denmark legalized prostitution in the late 1960’s and experienced a drop in sexual violence in the next two decades. Several prominent studies (see, for instance, this paper by Kutchinsky) have concluded there is little or no link between legalization of pornography and sexual violence. As for the effect of such liberal social policies on intangibles like happiness, a recent study found that Icelanders are the happiest people in the planet. This would probably disturb social conservatives like Locke, as both pornography and prostitution are legal in Iceland and divorces are fairly common.

Libertarians in real life rarely live up to their own theory but tend to indulge in the pleasant parts while declining to live up to the difficult portions. They flout the drug laws but continue to collect government benefits they consider illegitimate. This is not just an accidental failing of libertarianism’s believers but an intrinsic temptation of the doctrine that sets it up to fail whenever tried, just like Marxism.

Libertarians need to be asked some hard questions. What if a free society needed to draft its citizens in order to remain free? What if it needed to limit oil imports to protect the economic freedom of its citizens from unfriendly foreigners? What if it needed to force its citizens to become sufficiently educated to sustain a free society? What if it needed to deprive landowners of the freedom to refuse to sell their property as a precondition for giving everyone freedom of movement on highways? What if it needed to deprive citizens of the freedom to import cheap foreign labor in order to keep out poor foreigners who would vote for socialistic wealth redistribution?

In each of these cases, less freedom today is the price of more tomorrow. Total freedom today would just be a way of running down accumulated social capital and storing up problems for the future. So even if libertarianism is true in some ultimate sense, this does not prove that the libertarian policy choice is the right one today on any particular question.

Furthermore, if limiting freedom today may prolong it tomorrow, then limiting freedom tomorrow may prolong it the day after and so on, so the right amount of freedom may in fact be limited freedom in perpetuity. But if limited freedom is the right choice, then libertarianism, which makes freedom an absolute, is simply wrong. If all we want is limited freedom, then mere liberalism will do, or even better, a Burkean conservatism that reveres traditional liberties. There is no need to embrace outright libertarianism just because we want a healthy portion of freedom, and the alternative to libertarianism is not the USSR, it is America’s traditional liberties.

I cannot resist the temptation of mentioning one of my favourite Milton Friedman stories here. Friedman, who was vehemently against the compulsory drafting of citizens into the army, was on a 15 person commission appointed to contemplate the future of the draft. Vietnam troop commander William Westmoreland gruffly announced during one commission hearing that he was not interested in leading an army of “mercenaries.” Friedman coolly replied, “Would you rather command an army of slaves?”

Mr. Westmoreland bristled and said, “I don’t like to hear our patriotic draftees referred to as slaves.” Friedman then retorted, “I don’t like to hear our patriotic volunteers referred to as mercenaries. If they are mercenaries, then I, sir, am a mercenary professor, and you, sir, are a mercenary general; we are served by mercenary physicians, we use a mercenary lawyer, and we get our meat from a mercenary butcher.”

Indeed, all the hypothetical scenarios Locke proposes suffer from basic moral inconsistencies. Let us go through some of his questions again. “What if a free society needed to draft its citizens to remain free?” This is contradictory, because a state (not society!) that forcibly sends its citizens to war isn’t free in the first place. “What if it needed to limit oil imports to protect the economic freedom of its citizens from unfriendly foreigners?” This argument is incredibly nativist. Whose economic freedom is being talked about here? “What if it needed to deprive citizens of the freedom to import cheap foreign labor in order to keep out poor foreigners who would vote for socialistic wealth redistribution?” Even if it is true that “cheap foreign” labourers would tend to vote for socialism, the answer is not to discriminate against them or stop immigration but simply to set constitutional constraints on governmental policies. There is a reason why America has a bill of rights. It is there to protect our freedoms from the state.

Furthermore, in most cases, there are libertarian alternatives that leads to better solutions. For instance, as this article points out, conscription reduces the efficiency of an army. Thus, even if one ignores moral considerations (that is, the intrinsic worth to freedom), a volunteer army is preferable. Locke’s words might sound convincing in theory but in reality, it is hard to find an actual example where the promise of greater future freedom justifies a significant restriction on freedom today. There are simply too many negative externalities (beyond the large, intrinsically negative cost of any freedom-restricting measure) associated to such laws.

Are there no situations that warrant a restriction of individual liberty to preserve a greater freedom? Why, of course there are. No sensible libertarian will advocate allowing private citizens to possess nuclear weapons or other weapons capable of huge destruction. However, in the overwhelming majority of ‘typical’ cases, the libertarian path is superior on both moral and consequentialist grounds.

Libertarianism’s abstract and absolutist view of freedom leads to bizarre conclusions. Like slavery,  libertarianism would have to allow one to sell oneself into it. (It has been possible at certain times in history to do just that by assuming debts one could not repay.) And libertarianism degenerates into outright idiocy when confronted with the problem of children, whom it treats like adults, supporting the abolition of compulsory education and all child-specific laws, like those against child labor and child sex. It likewise cannot handle the insane and the senile.

Libertarians grant people the freedom to do whatever they want with their private lives or with each other. However it does not promise that the libertarian government will enforce all contracts private citizens draw up. For instance, some contracts might be inherently contradictory, or too vague, or simply too costly to enforce. In a libertarian society people can’t be stopped from drawing up such contracts, but the government (which would be funded by everyone) would indeed be able in certain cases to say: “You know what, this lies in the category of contracts we do not enforce.” I believe that slavery, because of its irreversible nature, does belong to the category of contracts that ought to be unenforceable. In other words, if a person willingly — or perhaps through some sense of honor or duty — promises to work without pay for another on a permanent basis, the government should do nothing; however if this person later changes his mind and decides to leave, the state will not help his “owner” get him back, nor will the owner be exempted from the force of law if he persecutes his slave and the latter decides to complain.

Regarding child sex and such issues, no libertarian supports treating a toddler like an adult. Mr. Locke has either been hanging out with the wrong libertarians or has severely misunderstood what libertarianism has to say about children’s rights. Libertarians believe that on a lot of issues, parents are in a better position than the state to take decisions about the child. They also believe there are a lot of absurd laws around, like the ones that send an 18 year old boy to prison for having consensual sex with his 17 year old girlfriend. However, I would be extremely surprised if there is any libertarian who seriously believes that a three year old has the capacity to consent to sex. (Note: There have been some libertarian documents, like the ‘children’s rights’ section of the poorly phrased 1992 platform of the Libertarian party, which have called for abolition of all children-specific laws. The reasoning behind them was to reduce government interference in family matters and hand over control to the guardian or parent. While I sympathise with that view, I do not personally endorse doing away with underage laws, nor I suspect do most other minarchists.)

As far as the mentally ill are concerned, many libertarians believe that there is no ground for involuntarily committing such people unless they are a danger to others. However nothing prevents such people from making advance arrangements, perhaps in the form of a living will, that specifies how they should be treated if they are later deemed to have lost certain mental capacities.

It is also worth noting that to an extent, mental illness is a social construct. Some might counter that science has progressed and it is possible to biologically identify those who are mentally ill as opposed to those who are merely eccentric or different. However, all science can do is point out biological differences, not give an answer to how much biological difference counts as ‘acceptable eccentricity’ and how much as ‘mental illness’. The latter remains a social construct. Only a few decades ago, homosexuality was officially recognized as a mental illness and indeed modern science suggests there is probably a biological (and genetic) basis that identifies homosexuals. If, today, we respect their right to be left alone, what prevents us from doing the same about those who are depressed or mildly schizophrenic or bipolar or otherwise abnormal (but no danger to others)? Of course, someone who is mentally equal to a toddler does not deserve to have the same rights as an adult. However, not all cases are this clear cut — there is a huge grey area in the middle. For cases that fall there, libertarians, rightly, prefer to err on the side of freedom.

Libertarians argue that radical permissiveness, like legalizing drugs, would not shred a libertarian society because drug users who caused trouble would be disciplined by the threat of losing their jobs or homes if current laws that make it difficult to fire or evict people were abolished. They claim a “natural order” of reasonable behavior would emerge. But there is no actual empirical proof that this would happen. Furthermore, this means libertarianism is an all-or-nothing proposition: if society continues to protect people from the consequences of their actions in any way, libertarianism regarding specific freedoms is illegitimate. And since society does so protect people, libertarianism is an illegitimate moral position until the Great Libertarian Revolution has occurred.

Locke is a brave man to defend the war on drugs — possibly the most absurd, pointless and expensive effort ever conceived by a government. The utter failure of current drug policy on every front is well documented, see for example this website. Let me however focus on just one aspect of Locke’s position, namely his contention that there is no empirical evidence that legalization of drugs will not lead to massive abuse. He is perhaps unaware of countries such as the Netherlands where certain drugs, such as marijuana are easily available and can be legally consumed in “coffee-shops”. From whatever I can tell, the Dutch are doing perfectly fine. In fact, according to a recent survey, they are two times less likely than Americans to try marijuana and eight times less likely to have cocaine.

Indeed, all drugs were legal in the US before 1914. As a result most of them were easily available, for recreational as well as medicinal use. However, the percentage of addicts in society was less than it is now. For addicts who wished to stop taking drugs, treatment and rehab were easily available and there was no fear of legal sanction. Most importantly, there was negligible criminal involvement in drug trade. What the “war on drugs” has done is cause tremendous social and economic harm without any observable gains.

Thus, Locke is profoundly wrong in his claim that there is no empirical evidence. Evidence abounds; he only needs to open his eyes.

And is society really wrong to protect people against the negative consequences of some of their free choices? While it is obviously fair to let people enjoy the benefits of their wise choices and suffer the costs of their stupid ones, decent societies set limits on both these outcomes. People are allowed to become millionaires, but they are taxed. They are allowed to go broke, but they are not then forced to starve. They are deprived of the most extreme benefits of freedom in order to spare us the most extreme costs. The libertopian alternative would be perhaps a more glittering society, but also a crueler one.

There are three obvious counter-questions.

Is it morally justified to limit everyone’s freedom simply because some people might ruin themselves through their exercise of liberty?

Even if the answer to the first question is yes, is a universal restriction of freedom the only way to ensure a certain amount of social security?

I will let readers answer the first question for themselves. The answer to the second is, however, an unambiguous no. There are simply too many alternatives to enforced government regulation — private philanthropy, privately funded social security, insurance, libertarian paternalism that preserves choice — that would substantially reduce the number of people ruined by bad choices without necessitating blanket regulations that affect everyone else.

Lastly, would a libertarian state really be crueler than Locke’s conservatopia? Locke clearly favours retaining (perhaps strengthening) the laws against victimless crimes that we presently have. These, laws, in modern USA, have created an environment where a woman is driven to suicide for doing nothing worse than help adults have consensual sex in exchange of money and where a good man faces the prospect of spending the rest of his life in prison for helping alleviate the pain of the sick and the dying. Aren’t these things much more cruel than what would happen in a more libertarian system?

Empirically, most people don’t actually want absolute freedom, which is why democracies don’t elect libertarian governments. Irony of ironies, people don’t choose absolute freedom. But this refutes libertarianism by its own premise, as libertarianism defines the good as the freely chosen, yet people do not choose it. Paradoxically, people exercise their freedom not to be libertarians.

The political corollary of this is that since no electorate will support libertarianism, a libertarian government could never be achieved democratically but would have to be imposed by some kind of authoritarian state, which rather puts the lie to libertarians’ claim that under any other philosophy, busybodies who claim to know what’s best for other people impose their values on the rest of us. Libertarianism itself is based on the conviction that it is the one true political philosophy and all others are false. It entails imposing a certain kind of society, with all its attendant pluses and minuses, which the inhabitants thereof will not be free to opt out of except by leaving.

It is true that no purely libertarian government has ever existed. The same, however, has been true of every socio-political system at some time in history. Indeed, freedom of expression in the sense we enjoy it is an extremely recent invention. There is a basic resistance to any kind of change; that does not mean the change is impossible.

More pertinently, most of the freedoms that libertarians advocate today have all existed some time or the other in history, just never simultaneously. The American economy was virtually free of regulation in the nineteenth century. Drugs were legal before 1914. Prostitution, free speech, homosexuality and pornography are legal in much of the world today. Anti-discrimination laws didn’t exist in the private sphere till forty years ago.

Unfortunately, while citizens are extremely rational and well-informed in economic choices, they are less so while voting (for a detailed analysis, see Bryan Caplan’s “The myth of the rational voter”). This is not a failing of libertarianism, but a common trait of all political ideologies. I believe that much of the resistance to libertarianism can be traced to a profound ignorance of what the ideology entails and what its consequences will be.

Lastly, Locke is not wholly accurate in saying that the inhabitants of a libertarian system will be forced to endure the minuses even if they don’t want to. If they find less freedom more to their taste, they will be free to enter into (certain) contracts with the government that would take away some of their freedom. For instance, an alcoholic will be free to voluntarily sign himself into, say, a three year contract, stipulating that it would be illegal for him to drink during that period. This has already been tried with considerable success in some American states. People who are worried that they might make bad choices when their mind deteriorates will be free to draw up living wills that stipulate certain conditions under which they might be entered into a conservatorship or involuntarily committed. In essence, people who wish to live in a manner similar to the way things are today will be able to do so to a considerable degree, while preserving choice for those of us who choose greater liberty.

And if libertarians ever do acquire power, we may expect a farrago of bizarre policies. Many support abolition of government-issued money in favor of that minted by private banks. But this has already been  tried, in various epochs, and doesn’t lead to any wonderful paradise of freedom but only to an explosion of fraud and currency debasement followed by the concentration of financial power in those few banks that survive the inevitable shaking-out. Many other libertarian schemes similarly founder on the empirical record.

A major reason for this is that libertarianism has a naïve view of economics that seems to have stopped paying attention to the actual history of capitalism around 1880. There is not the space here to refute simplistic laissez faire, but note for now that the second-richest nation in the world, Japan, has one of the most regulated economies, while nations in which government has essentially lost control over economic life, like Russia, are hardly economic paradises. Legitimate criticism of over-regulation does not entail going to the opposite extreme.

Consider the greatest libertarian economists of the last century — Milton Friedman (born 1912), Friedrich Hayek (born 1899). Does Locke really believe that these people earned their fame by analyzing economics that took place before 1880?

I can only conclude that Locke has never read a single serious work of libertarian economics. Let me recommend that he buy a copy of “Capitalism and Freedom” and study it. He will benefit from it.

As for Locke’s example of Russia, I am utterly confused. What point is he trying to make? Russia suffers from a severe lack of individual freedom in both the social and economic spheres and its economic system is essentially a conglomerate of government-sanctioned monopolies. Nothing could be more unlibertarian.

Libertarian naïveté extends to politics. They often confuse the absence of government impingement upon freedom with freedom as such. But without a sufficiently strong state, individual freedom falls prey to other more powerful individuals. A weak state and a freedom-respecting state are not the same thing, as shown by many a chaotic Third-World tyranny.

Libertarians endorse a strong system of law and order because it is of paramount importance to ensure that the freedoms they advocate are not violated by individuals. Without that, all other liberties are useless. To insinuate, as Locke does, that libertarians favor a weak state that allows powerful individuals to ride rough-shod is a huge distortion. In fact, Locke is misrepresenting the libertarian position in exactly the same manner Naomi Klein, the left-wing author did in her book “Shock Doctrine” where she blamed the problems of South American dictatorships — which were perversely unlibertarian nations — on their enforcement of libertarian-esque economic doctrines. In reality, their problems can be traced to a lack of freedom and an absence of law and order.

Libertarians are also naïve about the range and perversity of human desires they propose to unleash. They can imagine nothing more threatening than a bit of Sunday-afternoon sadomasochism, followed by some recreational drug use and work on Monday. They assume that if people are given freedom, they will gravitate towards essentially bourgeois lives, but this takes for granted things like the deferral of gratification that were pounded into them as children without their being free to refuse. They forget that for much of the population, preaching maximum freedom merely results in drunkenness, drugs, failure to hold a job, and pregnancy out of wedlock. Society is dependent upon inculcated self-restraint if it is not to slide into barbarism, and libertarians attack this self-restraint. Ironically, this often results in internal restraints being replaced by the external restraints of police and prison, resulting in less freedom, not more.

This contempt for self-restraint is emblematic of a deeper problem: libertarianism has a lot to say about freedom but little about learning to handle it. Freedom without judgment is dangerous at best, useless at worst. Yet libertarianism is philosophically incapable of evolving a theory of how to use freedom well because of its root dogma that all free choices are equal, which it cannot abandon except at the cost of admitting that there are other goods than freedom. Conservatives should know better.

This is precious. Libertarians attack self-restraint? Nothing could be further from the truth. In a paternalistic society, the government has the authority to restrain individuals for actions it deems inappropriate; thus such a system is the very antithesis of self-restraint. Libertarians do not treat adults like children but as autonomous individuals; in doing so they encourage personal responsibility and teach people how to properly use the freedoms they have been granted. If anything, libertarianism preaches that personal morality or social pressures are sufficient forces to motivate self-restraint in a grown up population.

“The smallest minority on earth is the individual. Those who deny individual rights, cannot claim to be defenders of minorities.”  ~ Ayn Rand.

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Comments welcome!

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The posts on this blog are mostly socio-political commentary from a libertarian perspective which might lead regular readers (if any exist) to falsely conclude… 

It is almost 2 am now. Having spent the last two hours reading old posts on “Overcoming Bias” and other excellent blogs (some of which, like this one, I just discovered), I am fatigued. Yes, those things are important. Yet, if I were to make an informed guess, I’d predict that my degree of passion for political matters will one day become similar to those of EY who writes:

I started my career as a libertarian, and gradually became less political as I realized that (a) my opinions would end up making no difference to policy and (b) I had other fish to fry.

…that my biggest fish are reflected by what I blog about. But people are mortal, all political theories imperfect, all systems of government temporary. Isn’t is obvious then that math is of far greater value? 

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Another hard hitting article about the insane war on drugs by Jacob Sullum at Reason Hit and Run.

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How English is turning into a language native speakers will soon not understand.

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Women took oaths of virginity, lived as men.

(Link via The Volokh Conspiracy)

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