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Sunday, May 22, 2011

Primum Nil Nocere

Indeed, this is central to my point:

[T]he sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others...The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

I accept John Stuart Mill's formulation of the Harm Principle, in addition to the three essential liberties (conscience, expression and uniting) he defines, as axiomatic and work from there as I consider the role of government and society in our lives.  On Liberty to my mind serves as a proxy for, and improvement of, the preceding seminal treatises of Locke and Humbolt or other original libertarian thinkers--much like reading Hawking whilst still appreciating Einstein and Newton or Kepler.  Mill's work for me is also a complement to the thoughts, writings and deeds of Thoreau, Gandhi and King.  

There's an explicit balance in such a construct: we have inalienable rights, but so do other members of society, thus we cannot in our exercise of liberty impinge on others'.  That inherently entails limits on what we as free beings can rightfully do, no matter how absolute you view the primacy of the individual over community.

I quoted Publius (my money's on Hamilton writing Federalist 63, but other analysis indicates it was Madison) in a recent discussion abouth the 17th Amendment:

[L]iberty may be endangered by the abuses of liberty as well as by the abuses of power...

It's clearly a legitimate exercise to debate what constitutes "abuse" of liberty, or "harm" and so on, but not even the most absolute individualist can assert that one has unlimited rights to do anything in the name of liberty.  As Oliver Wendell Holmes said: The right to swing my fist ends where the other man's nose begins.

Heck, even Mill himself observed:

No one pretends that actions should be as free as opinions. On the contrary, even opinions lose their immunity, when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act.

What's more, I think it's incontrovertible that our rights necessarily come into conflict with others' in the natural course of living in society--not every day or in overly contentious fashion necessarily--and we therefore require some mechanism to resolve such conflict.  That's pretty much why we incorporate some form of government in the first place, though we obviously can debate the extent of its power to mitigate social problems, too.

I'm fairly certain that (most) traffic laws, for example, are not an infringement on my Dog given rights; we need some regulation of behavior on the roads for everybody's safety.  Laws against murder, with measures for enforcement and sanctions?  Not sure the stauchest ibertarians could argue against those given the Harm Principle.

We could go on and on.  Laws against fraud.  Laws against drunk driving.  Laws against pollution.  

What about a popular government creating agencies to ensure food and drugs will not harm people?  Makes perfect sense to me as I don't personally have the time, energy or skillset to assess the quality and safety of such things, and uniform standards help us as consumers.  By the same token, however, do I as an individual not also have the right to make an informed choice if I'd prefer to buy local, unregulated products?  I don't think these are mutually exclusive and in fact perfectly exemplify the kind of liberty we have celebrated since Locke.

More debatable (perhaps) is something like the Energy Independence and Security Act of 2007 which, among other things phases out most inefficient incandescent lightbulbs by 2014.  This upset Congressman Ted Poe (R-TX2):

Madam Speaker, I have a Constitution here and, like most Members of Congress, I carry it with me. I've read it through and through, but I don't see anywhere in the U.S. Constitution that it gives the government the power to control the type of light bulbs used in Dime Box, Texas or any other place in the United States. 

I'll set aside his other remarks about the greater expense of alternative bulbs (which are ultimately cheaper) and whatnot, and simply focus on his trenchant analysis about permissibility.  The main problem is that he conflates individual liberty with corporate regulation.  Congress does, in fact, have the power to regulate commerce, and since corporations have no rights (Citizens United notwithstanding), clearly legislation dealing with the manufacture and sale of light bulbs is not injurious to the Constitution.

But what of individual freedom?  Is it not impeded by such a law?  I'm not entirely convinced it is.

It's not like Congress is denying people lighting choices.  Myriad varieties of bulbs, including incandescents, are still available to consumers with various price points, environmental advantages (and defects), etc, so nobody is being forced to purchase a particular type.  Nor are any fines or other sanctions are levied against individuals for using such bulbs (perhaps stockpiled as I know some people are doing).

Furthermore, the Harm Principle comes into play from where I sit.  We have a global energy and environmental crisis at hand, and while we need to find ways to generate cleaner electricity, we also must reduce consumption (which actually provides a bigger bang for the buck than increasing supply).

I won't go so far as to say if you use incandescent bulbs you're destroing our son Sam's future, but our collective consumption patterns mean that it's almost the case without too much hyperbole.  So if our behavior will cause long-term harm to our children, some way to change that behavior is warranted as far as I'm concerned.

And really, if manufacturers decided not to make any more of your favorite incandescent bulbs, is that an attack on your freedom?  That's essentially what has happened: there was significant corporate support for the law in question because companies wanted some uniform standards as they moved forward with creating better products.  So color me unsympathetic to cries of tyrannical overreach because an inefficient and archaic technology is going the way of the dodo.

On a related note, it is of interest to me when those who decry regulations of industry as attacks on indivual liberty are the same folks who want to, say...deny civil rights to GBLT people, or allow discrimination against black people, or control women's bodies.  It seems that they invariably also equate taxation with slavery and/or theft (offensively absurd on its face).  They act as though liberty--unique among all aspects of the human condition--should be absolutely cost-free, ignoring both the self-evident truth that society and popular government in general helps protect freedom and the long history of acknowledging that some revenues are necessary to do so (see Locke, Smith, Vermont's Constitution).

Doing no harm to others is a great starting point for being a free individual, but you can't stop there and expect to have a civil society, or liberty, for very long.


May 22, 2011 | Permalink


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As long as the usurpation of the IV, V, VI Amendments goes unaddressed, We the People cannot properly estimate or endorse any assessment of a purported need for self-protection.

We do not need to reinvent the wheel, even if new technologies tempt or permit us to do so. We already have a foundational framework that improved upon the Magna Charta and has yet to be fully realized in its 21st Century potential iteration. If anything, new technologies should facilitate a rather more rigorous and engaging 360 implementation of Due Process. No short cuts. No substitutions. Anything less than 360 invites deception in assessment of risks.

Posted by: zm | May 23, 2011 7:42:04 AM

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