Junior Ganymede
We endeavor to give satisfaction

Notes towards a definition of freedom, part 6

July 02nd, 2017 by Vader

I would like to resume my exploration of the meaning of freedom by contrasting the approaches to criminal and civil law advocated by Freemen and Consumers.

Let me start by restating my working definitions of freedom, civil liberty, and Freemen and Consumers. Freedom I have defined as the ability to make meaningful and consequential choices. Civil liberty is the set of social constructs we erect in support of freedom. A Freeman is one who prizes the ability to make consequential choices, while a Consumer is one who prizes the ability to make choices without consequences.

I find myself reflecting on the paradox that is the law in a classical liberal society.* A classical liberal society is dominated by Freemen, who prize the ability to make consequential choices. Law has the appearance of being a system for restricting choices by altering their consequences. How can law be reconciled with freedom in order to yield civil liberty?

We gain some insight by reasoning in the rabbinical mode, by considering hypotheticals at the limits of our legal concepts. At one extreme, we have the small child who is inclined to impulsively dash into a busy street. It seems clear to me that a parent who permits her to do so is acting unjustly. At the other extreme, we have the investor who, after carefully considering the prospectus, chooses to invest considerable resources in a risky and speculative, but honest, business venture. It seems equally clear to me that a regulator who forbids him to do so is also acting unjustly. What differentiates the two? The obvious answer is that the child does not understand the consequences of his action, while the investor understands the risk he is taking and is prepared to accept the consequences.

This further suggests that a legal system constructed in support of civil liberty should clearly distinguish between those who are capable of understanding and bearing the consequences of certain choices, and those who are not. This is reflected in our laws governing minor children. Minor children have only limited power of contract, do not exercise full civil rights, and are subject to having almost all their choices overruled by their parents. The two glaring exceptions to this otherwise sweeping parental authority, abortion and birth control, are as fine an illustration as I can hope to find of the confusion and spiritual blindness of our day. These exceptions are not made because these choices are uniquely inconsequential, or unusually well understood by children; quite the opposite. They are extended to children in support of a political ideology in which children are viewed as nuisances.

This system is imperfect, as any human system is bound to be. Many 18-year-olds are ill-prepared to understand or bear the consequences of the choices suddenly given to them on attaining majority, while some 16-year-olds are exceptional individuals who are better prepared to exercise their powers of choice than many a mature adult. My  understanding of the cognitive development of young adults (particularly in the area of higher judgment)  leads me to believe that the system might be significantly improved if the age of automatic majority was considerably higher — perhaps as high as 30 years of age — but parents had considerable discretion to emancipate their children at an earlier age, based on their own assessment of the child’s maturity and judgment.

This assumes competence on the part of parents themselves, and so such a system is susceptible to begetting a subculture of dysfunctional families where children are (de jure or de facto) emancipated at far too young an age. I believe the growing underclass in our society, so ably described by Charles Murray, “Theodore Dalrymple”, and others, is such a subculture, full of children who have been prematurely emancipated de facto by absent or dysfunctional parents. Nor is the problem restricted to the underclass, though it may be more painfully apparent there; consider the phenomenon of the latchkey child, and the implications a study I ran across some years back showing that a disproportionate percentage of teenage pregnancies among children of middle-class parents are conceived between three and five in the afternoon. I believe that a classical liberal society cannot exist without institutions that strongly support responsible parenting and intact families; and that such institutions require transcendence, traditionally provided by the churches and their auxiliaries, which no secular government can effectively provide.

However, one could at least set a minimum age for de jure emancipation, recognizing that parents have a duty to supervise their children. This might be set at the traditional age of majority, 18.  Thus, a child could be emancipated by her parents any time between the ages of 18 or 30 without the intervention of the court. Exceptional cases, such as the precocious child under 18 or the severely cognitively impaired or mentally ill person over 30, could  continue to be considered by the court for early emancipation  or permanent guardianship, as they are now.

Let us now consider the intermediate case, in light of the criteria of understanding and being prepared to bear the consequences of a choice.  My thoughts on attaining majority recognize that there is no sharp dichotomy between those capable of understanding a choice and those who are not. The law nevertheless requires bright lines wherever possible, and the law of majority is an attempt to create such a bright line. Are there other bright lines that ought to be drawn?

One fairly clear and almost entirely uncontroversial bright line drawn by our laws is that of fraud. I suggest that a good working definition of fraud, in the present context, is that it is the presentation of a choice in such a way that the chooser is led to believe he understands the consequences of his choice, but the actual consequences have been deliberately concealed from him. By this definition, fraud began in the Garden of Eden and has been a diabolical specialty ever since. It is also clearly a violation of freedom as I have defined it, since a choice whose consequences are misrepresented loses much of its meaning.

This is not to say that there are not gray areas in fraud, as there are in almost every area of law in which we struggle to establish bright lines. For example, how much advertising is fraudulent? How does a ban on fraud interact with protections for free speech? If I profess to believe that cinnamon will help control diabetes, a claim found baseless in carefully conducted studies, am I committing fraud? I think most Freemen and many Consumers would judge the case by whether the belief is sincere, and perhaps this is the best we can do. It establishes a mens rea requirement that builds on a long tradition in the law. Some might also suggest judging by whether the promulgator stands to gain from voicing his claims, but I think this reduces to a judgment of his sincerity. (We assume that someone making a claim from which he stands to make no obvious gain is more likely to be sincere.)  On the other hand, if the use of cinnamon for diabetes were found to do actual harm, I think most Consumers and many Freemen would change their judgment and support legal sanctions for its promulgation, even if the promoters appear to be sincere. But, on the gripping hand, the promotion of dietary supplements is protected by the DSHEA Act, which establishes a very low regulatory barrier to marketing dietary supplements.

I make no claim to being able to come up with a clear rule to all such dilemmas (though I abhor DSHEA as an exemption granted to a politically well-connected special interest.) I believe that the notion that fraud involves willful deceit is an important element, probably more important than the nature of the harm done (though this obviously is important once it is established that fraud has taken place.)  I am inclined to believe that it is unjust to prohibit someone from taking a dietary supplement if they insist on doing so even after being fully informed of the best scientific conclusions on its efficacy (which, in almost every case I’m acquainted with, is that the supplement does no good and sometimes does harm.) But what of the case of the abuse of psychotropic substances?

I think almost all would agree that prohibiting people from drinking coffee, on the grounds that it contains the psychotropic substance, caffeine, would be unjust.** On the other hand, our laws would not be what they are if there was not substantial support for the prohibition of viciously addictive psychotropics that substantially inhibit the user’s ability to make meaningful and consequential choices.  I do not think there is any significant constituency for legalizing driving while intoxicated (though there is, and always will be, debate on the criteria for judging a person intoxicated.) In the latter case, the distinguishing feature is that the abuse takes such a form as to pose a clear and present danger to others.

I suggest that we have already discovered three axioms for formulating laws consistent with civil liberty, to which I will add a fourth that has been implicit all along: I suggest that the bedrock principle of law under a classically liberal society is the presumption of lawfulness, or, as Constitutional scholar Richard Epstein expresses it, the presumption of liberty. Although I find the latter phrase felicitous in many ways, Epstein is using a slightly different definition of liberty, and I think the presumption of lawfulness better expresses what I am after here.  It is the notion that whatever choices are not explicitly forbidden are legal; and our choices on what to explicitly forbid should be governed by the presumption that choices ought to be permitted, except where there is a clear principle, based in theory and experience, for requiring their prohibition.

Let me digress to make a brief observation. Epstein’s book has the distinction of being one of the two books (along with The Federalist) that I am most likely to recommend to others even though I have never finished it myself. I found this too painful; the clarity and reasonableness of his thinking makes too sharp a contrast with the reality of what law and government have become in our day. I do not agree with Epstein on all points (I think he mistaken on gay marriage, though I also think he at least sees that it is problematic) but he is a man I could profitably argue with.

The other three axioms joining the presumption of lawfulness enunciate clear cases where theory and experience tell us that certain choices must be restricted or prohibited. These are that we may restrict the choices of the young or the cognitively impaired when it is clear they cannot understand the consequences of their choices; we may prohibit fraud, defined as willfully and knowingly misrepresenting the consequences of a choice offered to another; and we may prohibit choices that pose a clear and present danger to others. My original example of the latter was drunken driving, but we may add all manner of violent crimes and recklessness long recognized and punished by the common law. I suggest that Freemen and Consumes are both broadly in favor of these axioms, but with important differences in specific application, which I will explore in a future post.

Let me propose three more axioms, plausible but suspect, which deserves their own posts. These are that that we may restrict choices that involve asymmetric information; we may restrict choices that involve duty to another; and we may prohibit choices that carry substantial external costs. My initial judgment, based on theory and experience, is that we should probably reject the first of these tentative axioms but adopt at least part of the second and third. A fuller exploration awaits future posts.

* I acknowledge that we now live in a palimpsest of a classical liberal society. Like all philosophical ruminations, mine deal with an ideal that does not exist in the real world. Unlike many philosophical ruminations, mine deal with an ideal was very nearly realized in the not far distant past.

** I speak here of the civil law. I have no problem with the Mormon prohibition on drinking coffee or tea, which is a religious prohibition voluntarily accepted.

Comments (3)
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July 02nd, 2017 15:21:04

July 3, 2017

The fact that I am currently unable to assume the risk in any meaningful context is one of the most galling facts about our current society. Regulations choke everything, but Regulation is only the younger brother of Tort. Back in the day, assumption of the risk was a tort doctrine that barred recovery if the injured party “assumed the risk.” the doctrine was abused and the law swung hard in the other direction. There now is basically nothing that one can assume the risk for knowing for sure that the courts will later respect that choice. Courts mostly take the view that everyone is a Consumer and/or that no choice that leads to bad consequences is a choice that someone informed would have made. The default judicial anthropology is one in which taking risks and being daring for almost any reason is irrational. Consequently, tort-adverse companies won’t let you do anything either.

I liked your discussion of later emancipation. Good notions. Probably more important, however, is our laws failure to distinguish between Freeman and Consumer. Because its a disaster to treat Consumers and Freemen, we treat Freemen as Consumers.

One other thought: to a certain degree, making bad choices and taking the consequences is what converts people into Freemen.

July 3, 2017

“One other thought: to a certain degree, making bad choices and taking the consequences is what converts people into Freemen.”

Put differently, making choices while ignorant and immature is what makes one wise and mature.

July 3, 2017

I wrote a long section on strict liability and its unhappy genesis in the Cutter incident, but decided to save it for a later post. I’m glad you bring up assumed risk; I think it’s a better illustration of the point than strict liability.

How we learn to be wise and mature falls into the category of how we teach young people, which I’ve ruminated on at some length in these posts. There is room for much more rumination.

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