The Tension Between Law & Liberty

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Tom Rogers
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The Tension Between Law & Liberty

Post by Tom Rogers » Tue May 01, 2018 11:01 am

One thing I have noticed about almost-all libertarians is that they believe that laws that restrict freedom are sequentially incompatible with maximal freedom. We might regard it as a maxim: the more freedom-restricting laws, the less freedom. This maxim is usually tacitly expressed in discussions about cannabis and abortion and similar issues pertaining to private and commercial conduct. It is generally believed by the majority of libertarians that the state should have no involvement in such matters (if there is to be a state at all).

On the face of it, that position is a sequitur and seems cogent and logical, but I would dispute that it is - or rather, to put it a different way, I would dispute any belief that human nature reflects the maxim, even if the maxim itself is impeccably logical.

That might seem strange. How can we maintain maximum freedom while having freedom-restricting laws like the criminalisation of cannabis use and supply and restrictions on non-medical abortion? Surely in a truly free society, such laws would be abolished?

Part of the answer is that it depends on what you think 'freedom' is. As I have said elsewhere, if freedom is merely the dissipation of energy, then it makes sense that a legal environment of maximal freedom would involve simply doing what you like with the only condition that you do not harm others. On the other hand, if freedom is defined as, say, the best use of one's capacities and abilities, then an entropic ultra-liberal society could be seen as hostile to freedom in some ways.

I take the latter view: what could be described as a Non-Entropic Theory of Freedom, in that I believe true individual freedom - 'natural freedom' - comes from a recognition that there must be formal repression of harmful conduct, reflecting the physical feedback of Nature. Therefore I think that repressive laws can be compatible with libertarianism. There are two reasons for this, which I will express here very simply:

1. First, a modification of Mills harm principle to include self-harm.

2. Second, the assertion that repressive laws can help maintain true (natural) freedom, while overly-permissive laws tend in the long term to erode freedom by allowing individuals too much freedom-of-action.

The first reason is quite abstract and I don't want to go into it now. I will probably elaborate on it in a different thread.

The second reason is what I would like to concentrate on here, as it involves a debate over how we understand law. On the face of it, the second reason represents a contradiction, but my point is that there is a difference between, on the one hand, natural freedom in which we are bound by physical feedback about the consequences of our actions, and on the other hand, a sort of artificial state of freedom - which might be described as libertinism - in which permissiveness itself becomes a goal without regard to feedback.

You will say that, again, my view embodies a contradiction in that libertinist individuals must suffer feedback. I accept that may be inexorably true sometimes - for instance, an illicit drug user suffers health problems and overdoses - but my point about this goes back to how libertarianism does not always accommodate how human nature expresses itself sociologically.

Libertarians usually assert that the result of maximally-permissive freedom is that those who make bad choices suffer the consequences, with only the safety net that the rest of society voluntarily provides to rely on; but I would argue that what actually happens is that as a result of this ultra-permissiveness, an artificial society is created in which people exist in a bubble that shields them from consequences. This arises due to what I would describe as the tendency for permissive societies to socialise consequences, maybe as a result of a 'social' or herd-like capacity in human nature. For example, if cannabis use and supply is freely allowed, there will then be incentives for the state and maybe the private sector to provide help and solutions to rescue those users from the consequences of their own choices. I would argue this will result in a situation where the productive subsidise the unproductive. In consequence, harmful and anti-social conduct is the degrading force of Entropic Freedom and causes such societies to spiral into collapse.

In order to maintain freedom, I would argue for a non-entropic arrangement, in which the law has a central role in punishing certain behaviour and encouraging everybody to live to their full capacity. This requires a more sophisticated approach that takes into account the influence of human behaviour on individual freedom.

In an attempt to be clear about what I am saying:

(i). I am not suggesting or calling for an authoritarian society. All I am saying is that libertarianism needs to take into account behaviour. You can't just have a minimal legal order and expect people to behave themselves, and you can't expect that poor behaviour among some will not impose costs on the productive majority. That said, the legal order I envisage would be much more limited in scope than at present and would operate within the framework of a minimal state.

(ii). I do not wish to discuss the pros and cons of cannabis or abortion and whether and to what extent they should be allowed. That is not the purpose of the thread. I merely mention those issues as they are good working examples of the general principle.

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Re: The Tension Between Law & Liberty

Post by Physiocrat » Tue May 01, 2018 1:07 pm

Tom Rogers wrote:
Tue May 01, 2018 11:01 am
For example, if cannabis use and supply is freely allowed, there will then be incentives for the state and maybe the private sector to provide help and solutions to rescue those users from the consequences of their own choices. I would argue this will result in a situation where the productive subsidise the unproductive. In consequence, harmful and anti-social conduct is the degrading force of Entropic Freedom and causes such societies to spiral into collapse.
If such services were provided by the private sector how would this burden society as a whole? Unless of course you're thinking that if such people didn't get themselves into such a situation to begin with charity wouldn't be necessary and that money could be used else where to increase the philanthropists standard of living.
Tom Rogers wrote:
Tue May 01, 2018 11:01 am
(i). I am not suggesting or calling for an authoritarian society. All I am saying is that libertarianism needs to take into account behaviour. You can't just have a minimal legal order and expect people to behave themselves, and you can't expect that poor behaviour among some will not impose costs on the productive majority. That said, the legal order I envisage would be much more limited in scope than at present and would operate within the framework of a minimal state.
Hence the option of physical removal. While I think you're right that some Libertarians describe their position in terms of maximal freedom others treat it really as just an answer to the question of political philosophy, when is physical force justified. Taking the latter view all non-coercive acts can be justified to reduce social harm. For this reason I would expect that in a free society you'd have different locales with differing sets of non-coercive rules which were tailored to that community but other communities would have different rules. Within each locale it would be quite homogeneous but heterogeneous between locales.
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Re: The Tension Between Law & Liberty

Post by Tom Rogers » Wed May 02, 2018 10:12 pm

Physiocrat wrote:
Tue May 01, 2018 1:07 pm
Tom Rogers wrote:
Tue May 01, 2018 11:01 am
For example, if cannabis use and supply is freely allowed, there will then be incentives for the state and maybe the private sector to provide help and solutions to rescue those users from the consequences of their own choices. I would argue this will result in a situation where the productive subsidise the unproductive. In consequence, harmful and anti-social conduct is the degrading force of Entropic Freedom and causes such societies to spiral into collapse.
If such services were provided by the private sector how would this burden society as a whole?
This is the crux of the problem as I see it with the libertarian mindset. I disagree with this belief that the costs of poor behaviour can be entirely individualised. I think it more likely that such costs are socialised and therefore become the burden of the productive. Your own question tacitly concedes this point, actually. (Note: For present purposes, I won't care to define what, in my opinion, is 'poor behaviour' and what and who is 'productive'. Obviously here I am discussing the problem in very generalised terms).

Let's say we criminalise all non-medical abortion. This exposes everybody to natural feedback. Unless the woman wants to exercise her ultimate sovereignty and kill herself, she must pay a price for her promiscuity: go through perhaps an unwanted pregnancy and childbirth. This also perhaps imposes costs on men which in the past resulted in families. Contrast this with the present situation, where non-medical abortion is permitted in virtually all cases up to a given point in the gestation cycle. That means the population is being denied a valuable form of natural feedback and another effect is that families are less important. This situation is construed as 'freedom', whereas I regard it as licence: not true freedom, but a mockery of it.

The cannabis example I find more difficult to grapple with. I see the logic in the arguments put forward by libertarians - especially that by legalising recreational drugs, the responsibility is placed on the individual. The argument has its attractions and presumably in a libertarian society there would be no or minimal regulation to speak of, drug users relying on actions for civil product liability. The concern is, whether through regulation or pressure from the courts, legalised drugs would become softer in their effects and would be manufactured and packaged in a user-friendly way that would control and diminish the adverse effects on the user, in effect becoming a soma for flimsy-minded people. That would be a bad outcome in terms of freedom. Under general prohibition, there are no significant pressures to soften the effects of drugs because they are illegal in the first place, so those who partake in illicit substances are making a real choice: between, on the one hand, the risks of breaking the law and the risks to their health, and on the other hand, avoiding those risks and pursuing their potential. Though counter-intuitive, I would argue that legalisation or decriminalisation of drugs diminishes freedom, whereas prohibition protects it.

I agree that freedom is the liberty to do as you please, but that can only work within natural constraints. If instead you allow a situation where people can make artificial choices that allow them to avoid or defer consequences, then they are not truly free, they are instead living in a state of dependency.
Physiocrat wrote:
Tue May 01, 2018 1:07 pm
Unless of course you're thinking that if such people didn't get themselves into such a situation to begin with charity wouldn't be necessary and that money could be used else where to increase the philanthropists standard of living.
I suppose I must concede that the 'philanthropist' will often be guided by a profit motive, and even when not, will be motivated by some other form of self-interest. I assert that you can't entirely individualise costs, but I accept that there is profit in misery. However, my point is that even when there is such profit (or other reward) in philanthropic-type activity, it is still non-productive activity.
Physiocrat wrote:
Tue May 01, 2018 1:07 pm
Tom Rogers wrote:
Tue May 01, 2018 11:01 am
(i). I am not suggesting or calling for an authoritarian society. All I am saying is that libertarianism needs to take into account behaviour. You can't just have a minimal legal order and expect people to behave themselves, and you can't expect that poor behaviour among some will not impose costs on the productive majority. That said, the legal order I envisage would be much more limited in scope than at present and would operate within the framework of a minimal state.
Hence the option of physical removal. While I think you're right that some Libertarians describe their position in terms of maximal freedom others treat it really as just an answer to the question of political philosophy, when is physical force justified. Taking the latter view all non-coercive acts can be justified to reduce social harm. For this reason I would expect that in a free society you'd have different locales with differing sets of non-coercive rules which were tailored to that community but other communities would have different rules. Within each locale it would be quite homogeneous but heterogeneous between locales.
Yes, here I agree with you. I quite like Nozick's concept of a 'utopia of utopias', for instance.

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Re: The Tension Between Law & Liberty

Post by Millennial TM » Wed May 02, 2018 10:39 pm

Indeed, the answer seems to be pluralism or secessionism. It seems like a lot of people in the Miseian fold are turning this way. The atomised individualist secular republic turns out to be not all that appealing to many people. I just pray that this outlook never gets titled 'post-libertarianism' or something ugly like that.

I expect there will still be large cosmopolitan "multicultural" centres in the ideally decentralised future, trading districts etc, but communities would be more diverse (and probably more exclusionary) from core to periphery.
Last edited by Millennial TM on Wed May 02, 2018 10:50 pm, edited 2 times in total.
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Re: The Tension Between Law & Liberty

Post by Jon Irenicus » Wed May 02, 2018 10:47 pm

Agreed on those points. I’m fond of secessionism.
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Re: The Tension Between Law & Liberty

Post by William » Thu May 03, 2018 12:01 am

I can't speak for the libertarians in here, but I think most of us with a libertarian or liberal bend tend to view liberty as something within civilization. We may pick liberty as often as possible if given a choice, but the view is more in line with people like Locke and Smith rather than the Rousseau maxim "man is born free, but everywhere is in chains". This is probably the exact opposite premise embedded in the ideas of thinkers like Rousseau, Foucault, or Marx of liberty that a normal liberal will have.

The correlation between liberty and civilization is high, some of us (such as myself) tend towards liberty even in non utility maximized scenarios and view it as ab above utilitarian value. Nevertheless, that value has taken place within the development of civilization and is part of the inherent grammar and rules of such a thing. When push comes to shove I would certainly say there are limits, politics, pragmatic concerns, externalities and the like...I would just tend to not look towards them if they could be avoided.

Perhaps an example of this for the more Rothbardian styled libertarians (something I am not) would be that they have a concept of Natural Law. So in this point of view there really isn't a tension between law and liberty methinks, and it shows how one flows from the other. I can't speak too much in that point of view, but hopefully that illustrates that most aren't thinking in terms like that.
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Re: The Tension Between Law & Liberty

Post by Clayton » Thu May 03, 2018 1:03 am

Tom Rogers wrote:
Tue May 01, 2018 11:01 am
That might seem strange. How can we maintain maximum freedom while having freedom-restricting laws like the criminalisation of cannabis use and supply and restrictions on non-medical abortion? Surely in a truly free society, such laws would be abolished?

Part of the answer is that it depends on what you think 'freedom' is. As I have said elsewhere, if freedom is merely the dissipation of energy, then it makes sense that a legal environment of maximal freedom would involve simply doing what you like with the only condition that you do not harm others. On the other hand, if freedom is defined as, say, the best use of one's capacities and abilities, then an entropic ultra-liberal society could be seen as hostile to freedom in some ways.
Law is the natural ally of liberty. The entire purpose of the political edifice is to maintain a perpetual class of exceptions to law, specifically, exceptions to the principle of mutuality (what is good for the goose is good for the gander). The political edifice is a system of privilege where privileges are exceptions to universal law that pertain to certain people, offices and roles. The system of royal privilege is a system where privilege inheres in certain persons, persons that have happened to have been put in the seat of exceptional privilege by God himself ("divine right of kings"). All other privileges enjoyed by the aristocracy, in turn, flow from this central fount of honor (the monarch). Democratic and parliamentary systems of government did not alter the basic principle of privilege, they only changed the way in which privilege is assigned - not by God to an individual man or woman but, rather, by "society" to an office ("President", "Premier", "Prime Minister", etc.) The police officer, in the course of his or her duties, occupies a social role in which the laws pertaining to assault are effectively suspended (unless you happen to be very wealthy and have an excellent lawyer).

This category of a "social exception clause" is clearly connecting with something deep in the human psyche. My theory is that every social privilege is processed by the human brain as a category of the tribal chieftain (or shaman). The price of belonging to the tribe is being in good standing with the chieftain, whatever that happens to entail. So, privilege is an extension of the will of the chieftain. The human brain evolved in the Ancestral Environment where the "local neighborhood" consisted of several dozen people - rarely, if ever, a hundred or more. The social environment changed (millions, billions of "neighbors") but our brains did not. We still process the social system through the same tribal brain. This is why privilege exists.
there must be formal repression of harmful conduct, reflecting the physical feedback of Nature.
I think that you're missing the main import of the libertarian theory of law. Libertarian law theory is not antinomian, it is anti-privilege where privileges are non-rational exceptions to law. The basic principle that makes libertarian law theory incompatible with national statutory law systems is the idea of legal symmetry - either all persons or no persons are bound by any given law. There are no laws that apply to some people but not to others, to some social roles but not to others.
libertinist individuals must suffer feedback.
Libertarian law theory - specifically, propertarian theory of law - gives no special consideration to hedonic ends over any other ends. The basic axioms of propertarian law are as follows:

- The first user of a resource is the first owner of that resource (original appropriation, homesteading); we say that it is their property
- Whenever two people voluntarily exchange goods or services, that exchange is legitimate; no other form of exchange is legitimate
- No one may legitimately seize or "invade" anyone else's legitimately acquired property

From these axioms (plus a couple other academic points) flows the entire edifice of propertarian law theory. Libertine societies may or may not be compatible with propertarian law systems.
the tendency for permissive societies to socialise consequences, maybe as a result of a 'social' or herd-like capacity in human nature.
This does occur. If it is evolutionarily inefficient, group selection will result in the eradication of such systems. Note that this is not a normative statement (e.g. "social evolution"), rather, it is an objective observation about the case in fact.
For example, if cannabis use and supply is freely allowed, there will then be incentives for the state and maybe the private sector to provide help and solutions to rescue those users from the consequences of their own choices. I would argue this will result in a situation where the productive subsidise the unproductive.
Private subsidy is perfectly compatible with propertarian law theory. If you want to feed, clothe and shelter sloths and laggards, that is your choice and as long as you pay the light bill from your own pocket (rather than stealing from others through taxes), it is perfectly legitimate.
In consequence, harmful and anti-social conduct is the degrading force of Entropic Freedom and causes such societies to spiral into collapse.
Hoppe talks about the idea of certain social norms that are constitutive of free society (such as private property norms) and he argues that certain types of individuals will not be welcome in free societies, e.g. those who promote communist ideology. It's an interesting topic but it kind of doesn't matter to the question of what the rules should be. We can work out what the rules should be from both a utilitarian and deontological point-of-view and arrive at the same conclusions (see above).

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Re: The Tension Between Law & Liberty

Post by Physiocrat » Thu May 03, 2018 7:01 am

Tom Rogers wrote:
Wed May 02, 2018 10:12 pm

This is the crux of the problem as I see it with the libertarian mindset. I disagree with this belief that the costs of poor behaviour can be entirely individualised. I think it more likely that such costs are socialised and therefore become the burden of the productive. Your own question tacitly concedes this point, actually. (Note: For present purposes, I won't care to define what, in my opinion, is 'poor behaviour' and what and who is 'productive'. Obviously here I am discussing the problem in very generalised terms).
My question was not intended to be rhetorical, I was trying to tease out what you meant by imposing costs. And yes you're right, any poor behaviour of an individual imposes costs on others. The question is though what is the purpose of law (defined here as a just threat of violence against the physical integrity of their person or property), to minimise harm/promote virtue, just to protect rights (however understood) or a combination of the two. The second question is, how much effect is law in achieving their stated ends?
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Re: The Tension Between Law & Liberty

Post by FvS » Sat May 05, 2018 1:07 am

I was thinking about this recently as well. It's sort of the degeneracy argument often posed by the Right. That is, the government should play an active role in stamping out vice and promoting cultural excellence. I might argue that the threats posed by organized crime (who benefit from prohibition) outweigh whatever negative effects that would exist from individuals indulging their vices. Organized crime can be somewhat effectively removed, but it usually takes an authoritarian regime with no concern for due process. Lysander Spooner wrote a good piece, "Vices Are Not Crimes."
https://mises.org/library/vices-are-not-crimes
Lysander Spooner wrote:It is now obvious, from the reasons already given, that government would be utterly impracticable, if it were to take cognizance of vices and punish them as crimes. Every human being has his or her vices. Nearly all men have a great many. And they are of all kinds — physiological, mental, emotional, religious, social, commercial, industrial, economical, etc., etc. If government is to take cognizance of any of these vices, and punish them as crimes, then, to be consistent, it must take cognizance of all, and punish all impartially.

The consequence would be that everybody would be in prison for his or her vices. There would be no one left outside to lock the doors upon those within. In fact, courts enough could not be found to try the offenders, nor prisons enough built to hold them. All human industry in the acquisition of knowledge, and even in acquiring the means of subsistence, would be arrested: for we should all be under constant trial or imprisonment for our vices. But even if it were possible to imprison all the vicious, our knowledge of human nature tells us that, as a general rule, they would be far more vicious in prison than they ever have been out of it.

A government that shall punish all vices impartially is so obviously an impossibility that nobody was ever found, or ever will be found, foolish enough to propose it. The most that any one proposes is, that government shall punish some one, or at most a few, of what he esteems the grossest of them. But this discrimination is an utterly absurd, illogical, and tyrannical one. What right has any body of men to say, "The vices of other men we will punish; but our own vices nobody shall punish. We will restrain other men from seeking their own happiness according to their own notions of it; but nobody shall restrain us from seeking our own happiness according to our own notions of it. We will restrain other men from acquiring any experimental knowledge of what is conducive or necessary to their own happiness; but nobody shall restrain us from acquiring an experimental knowledge of what is conducive or necessary to our own happiness"?
Abortion is another matter altogether.
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