All Commentary
Friday, October 26, 2007

Liberty and Political Obedience


Last week I discussed Anthony de Jasay's claim (expressed here) that the freedom philosophy — liberalism — is precarious because it has always been rather loose, tolerant of heterogeneous components, easy to influence, open to infiltration by alien ideas that are in fact inconsistent with any coherent version of it. He specifically criticized the utilitarianism of Bentham and the Mills. (Such criticism need not deny that these three thinkers made contributions to the development of the liberal worldview. Jeremy Bentham's Defence of Usury, James Mill's Commerce Defended, and, best known of all, John Stuart Mill's On Liberty are properly included in the liberal canon.)

In light of the deficiency he has identified, Mr. de Jasay attempts no less than a reconstruction of liberalism. As he puts it, To prevent liberalism from becoming indistinguishable from socialism, unprincipled pragmatism, or just plain ad hockery, it must become stricter. It needs different foundations, and its structure must be made minimal and simple, so as to resist better the penetration of alien elements.

He proposes two basic propositions, one logical and one moral, … [that are] capable of defending its identity: one is the presumption of freedom, the other the rejection of the rules of submission that imply the obligation of political obedience (emphasis added).

Presumption of Freedom

The presumption of freedom mean[s] that any act a person wishes to perform is deemed to be permissible — not to be interfered with, regulated, taxed, or punished — unless sufficient reason is shown why it should not be permissible. This properly imposes the burden of proof on anyone who wants to interfere with another person — which is where the burden should be. Mr. de Jasay's proposition is the opposite of the trendy precautionary principle, which holds that nothing may be done until it is proved 100 percent safe. The principle of course is self-subverting. Before we adopt it, its sponsors will first have to prove it will do no harm.

Mr. de Jasay validates the presumption of freedom by showing that any alternative is absurd: [T]he presumption is not a matter of opinion or evaluation that can be debated and denied. It is a strict logical consequence of the difference between two meanings of testing the validity of a statement — namely, falsification and verification. If the precautionary principle were imposed, anyone wishing to act would face the task of falsifying not only any objections actually made, but also any that may arise in the future. In other words, he writes, the statement that a particular act would be harmful is not falsifiable. But then how can it be reasonable to place the burden of proof of harmlessness on the actor? In contrast, any specific reason that objectors may advance against the act in question is verifiable. If they have such reasons, the burden of proof rests on them to verify that some or all of those reasons are in fact sufficient to justify interference with the act.

Here Mr. de Jasay takes an unexpected turn that is likely to be controversial with libertarians. He places the presumption of freedom in opposition to what he dubs the rightsism that contradicts and undermines liberalism and that has done so much to distort and emasculate liberalism in recent decades. Rights talk permeates the libertarian canon, so this should raise eyebrows. But let's hear him out.

Rightsism purports solemnly to recognize that people have rights to do certain specific things and that certain other things ought not to be done to them. On closer analysis, these rights turn out to be the exceptions to a tacitly understood general rule that everything else is forbidden, for if such were not the case, announcing rights to engage freely in certain acts would be redundant and pointless. The silliness that underlies rightsism and the appalling effect it has on the political climate illustrate how far current liberal thought has drifted away from a stricter structure that would serve the cause of liberty instead of stifling it in pomposity and confusion.

This is a point worth pondering. When some Americans in the late eighteenth century demanded that a bill of rights be added to the newly proposed Constitution (in fact the second U.S. constitution), defenders of the Constitutional Convention's handiwork responded that a list of rights, although necessarily incomplete, would be taken to be exhaustive. Advocates of a bill of rights countered by proposing what became the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

That seemed to solve the problem. Except that it didn't. The courts have not used the amendment to defend unenumerated rights. Conservative legal scholars claim not to know what it means. Robert Bork famously said it was as if the framers had obscured the text with an ink blot. So despite that language, the Bill of Rights has been regarded as exhaustive. Conservatives glibly parry privacy claims by noting that the word privacy appears nowhere in the list.

Things, then, have worked out pretty much as Mr. de Jasay suggests. Rights are seen as a few islands in a sea of prohibitions. But pushing for recognition of the Ninth Amendment has its risks. Once people start excavating that mine, they are liable to dig up all sorts of rights no libertarian would like. Most Americans already think they have a right to a minimum wage, health care, and education. Be careful what you ask for.

For this reason, I am drawn to Mr. de Jasay's simpler approach, although it will be hard to kick the rights habit. Instead of defensively proving that we have the right to life, liberty, and the pursuit of happiness, let's start demanding that those who would interfere with freedom prove their case beyond a reasonable doubt. Let them be on the defensive for a change.

Rejecting the Rules of Submission

Mr. de Jasay's second proposition involves rejection of the rules of submission to political authority — the obligation of all in a community to submit to the decisions of only some of them. We take it for granted that this is the way things must work. But why are you obligated to strangers beyond simply leaving them alone? (In this connection, see Roderick Long's Liberty: The Other Equality [pdf].)

If a general rule of submission is necessary for governing — and it may well be — then the legitimacy of government, any type of government, turns out to be morally indefensible, Mr. de Jasay states, boldly going where logic takes him. This is strict liberalism, after all, and it is a useful thought experiment to wonder how many legitimate state functions could be transferred to civil society. However, he invokes the realities of our social condition in considering what further conclusions to draw.

To those who see government power as indispensable to social stability, Mr. de Jasay points out that noncoercively adopted customs play an critical role in creating spontaneous and orderly cooperation. Unlike a law that depends on enforcement, a convention is thus self-enforcing, he writes. He credits David Hume and F.A. Hayek in this matter, then adds, We owe the rigorous explanation of the self-enforcing nature of conventions to John Nash, and more recent developments in game theory show that conflict-ridden social-cooperation problems formerly believed to be 'dilemmas' requiring state intervention in fact have potential solutions in conventions.

The hitch is that people are used to looking to government to solve every problem. Hence their capacity for helping themselves (and one another) through peaceful — that is, voluntary — customary processes has atrophied, Mr. de Jasay writes. He believes that This reality limits strict liberalism’s practical agenda. …[I]t is hardly worth the effort to advocate the abolition of the state. It is worth the effort, however, constantly to challenge the state's legitimacy. The pious lie of a social contract must not be allowed to let the state complacently take its subjects' obedience too much for granted…. The best that strict liberalism can do is to combat this [democratic] state intrusion step by step at the margins, where some private ground may yet be preserved and where perhaps some ground may even be regained.

Observing today's dismal political-economic landscape, it is easy to think that this modest, though by no means easily achieved, agenda is all that strict liberals can hope to win. But if that's all we aim for, we'll never know if we could have gotten more.


  • Sheldon Richman is the former editor of The Freeman and a contributor to The Concise Encyclopedia of Economics. He is the author of Separating School and State: How to Liberate America's Families and thousands of articles.