All Commentary
Friday, June 1, 1973

“Permissiveness” or Liberty?


Mr. Wilson is a student of the freedom philosophy and a freelance writer in Etobicoke, Ontario.

Traditionally, there has been one principle with which men have been able to judge lawmaking since the advent of liberalism (in the original sense of that word). It was the principle enshrined in the American constitution and emulated, in part or in whole, by all nations seeking to follow America’s revolutionary lead. It was the principle that guided men like William Graham Sumner, Stephen J. Field and Herbert Spencer in their respective intellectual arenas. It was a principle simultaneously legal, political and philosophic — the principle of liberty.

Although still the best and only real guide to such subsidiary concepts as justice and legality, liberty is no longer the yardstick against which law is measured. Other concepts have replaced it:

the “public interest,” the “general welfare,” and a range of the moment pragmatism designed to fit such goals. These may seem like esoteric and ethereal changes. But they filter down to — and confuse — the layman in such concepts as “permissiveness.”

Eminent economists have decried the forcing of military and political labels on the market economy — “robber barons,” “trade wars,” and the like. We should similarly object to a spurious analogy with the art of childrearing (of all things!). Permissiveness and its opposite, discipline, are terms describing a parent child relationship. They have no place in a discussion of the free market.

They do however take on some importance in the economic and legal morass of welfarism, socialism, any breed of statism in proportion to the degree of power it exerts. Why?

“Parens Patriae”

Western law treats the state as a protector of liberty and arbiter of justice. But this is not the only conceivable relation of the state to its citizens. “From Roman law comes the idea that in some circumstances the state should relate to the citizens as the parent to his child,” a doctrine known as “parens patriae.”¹

This is not a liberal or libertarian policy. “Under the doctrine of parens patriae, certain types of social relations are excluded from those governed by Anglo American, democratic principle. Further, it is recognized as legitimate that, in some circumstances, people may be treated as stupid children, and the government as their wise parent. The exemption of some men, and some governmental functions, from even minimal standards of competence and responsibility threatens to undermine traditional English and American political institutions. Yet, without them, there can be no open society, and no personal liberty. In brief, to whatever extent we bestow the power of parens patriae on the government, to that extent we grant it despotic powers. Nor can we expect that such powers, once granted to specific agencies, will remain localized. On the contrary, the process will spread, and unless halted, will envelop the state.”2

Interventionism

Yet it is precisely this parens patriae relationship that interventionism creates. When the state seeks to feed, clothe, house or otherwise satisfy the desires of its citizens by legislative fiat — what relationship can it be assuming save that of the prosperous and benevolent parent?

But, as Dr. Szasz notes, with the parental gift comes parental discipline. We may still profess pained amusement when (for instance) the Soviet Union, as it did recently, bans bridge clubs as “immoral” and restricts bridge playing to “consenting adults in private.” We should remember however that this kind of schoolteacher mentality is nothing more than parens patriae — and that the banning of bridge clubs is a grotesque minor symptom of the disease that bans private enterprise.

Parens patriae is a concept that Anglo American law has not fully accepted. Parens patriae and the Constitution are not at all comfortable together. But the ideals and assumptions of laymen have changed to such an extent that “permissiveness” is allowed to become a national issue.

Special Privileges

“Permissiveness” assumes parens patriae.

“Permissiveness” can only obtain if the state is an omnipotent granter of permission to its children, the citizens.

One consequence of this particularly universal assumption is that moral issues are argued in legal terms. The mentality of the bureaucrat has been characterized as a belief that “whatever is not illegal, should be compulsory.” We run into variations on this theme practically every day.

“Have you heard about the Amish children,” goes a typical question, “taken off to public schools against the wishes of their parents?”

“Yes,” the libertarian answers, “and I disapprove.”

“Oh? You mean you’re against education?”

— and so on. The layman considers it paradoxical to support education but oppose forced education, to oppose pornography and censorship simultaneously, to oppose drug abuse vehemently but to advocate repeal of the laws. (I choose these issues simply because they are the ones to which the “permissiveness” question is usually applied, not because they are in any way central to libertarianism.) In short, it is considered paradoxical for the libertarian to uphold the freedom to make mistakes.

This is where “permissiveness” intrudes. The “permissive” lawmaker would sanction such vices as drinking, pornography and the rest of the current issues. The “disciplinary” legislator would do away with those indulgences of which he disapproves. In either case, the right of the state to grant permission is considered obvious and a priori. Thus the advocate of limited government can be made to sound more libertine than libertarian — as if opposing prohibition and advocating drunkenness were one and the same thing.

Given this confusion of moral and legal values, some might still be prompted to ask: Is the free market morally “permissive”? Does it encourage licentiousness and avarice or rather the more traditional values?

Market Neutrality

Enemies of the market system attribute its productive power to the petty materialism of producers, and condemn it for catering to the “base” desires of consumers. The answer has been made that, on the contrary, capitalism and the free market “reward” only productive activity and not the unproductive vices. Either way, it should be obvious that capitalism qua economic system is based on producing marketable items, and this marketability depends on the value judgments of the buyers. If there is a market for pornography, it is not the fault of pornographers “coercing” the public. “Mankind does not drink alcohol because there are breweries, distilleries and vineyards; men brew beer, distill spirits, and grow grapes because of the demand for alcoholic drinks. The capitalist who owns shares in breweries and distilleries would have preferred shares in publishing firms for devotional books, had the demand been for spiritual and not spirituous sustenance.”3 Since the free market may only serve and does not dictate personal values — since it can in no way duplicate the legal state of affairs we call parens patriae —then not even in this realm can the word “permissiveness” have any application.

Misplaced Faith

Perhaps we should have more confidence in mankind and less faith in the benevolence of omnipotent legislators. Free men may make mistakes, and bear the brunt of the consequences, but this is no mark against them. Free men have also been competent to build the huge and complex industrial civilization that bureaucrats seek to control. The truth is that individual men are much better able to judge their own interests than lawmakers, whose decrees must be tailored to fit everyone equally. “Laissez faire means: let the individual citizen, the much talked about common man, choose and act and do not force him to yield to a dictator.”4 If we consider a given man’s actions immoral (and so long as he is not initiating force or fraud) we may tell him so; we should not consider it our duty to “protect” him or his customers at the point of a gun. Perhaps the best way for a libertarian to illustrate moral virtues is by living them.

At any rate, it would be poor policy to accept the implicit doctrine of parens patriae. The free market is not “permissive” because it has no permission to grant; sovereignty is in the hands of the individual. Questions of moral judgment do not become matters of government policy.

We are either free men or wards of the Parent State, one or the other. The two are not compatible. But if we must choose, let us do so openly; not under the smuggled implications of a word like “permissiveness.”

 

—FOOTNOTES—

1 Thomas S. Szasz, Law, Liberty and Psychiatry (New York: Macmillan, 1963), p. 151.

2 Ibid.

3 Ludwig von Mises, Socialism p. 446

4 Ludwig von Mises, Planning for Freedom (South Holland, Illinois: Libertarian Press, 1962), p. 49.