Monday, October 6, 2008

On legislating from a Libertarian perspective

Regular readers will note that I have been struggling with Dr. Tal Scriven's Wrongness, Wisdom, and Wilderness, Toward a Libertarian Theory of Ethics and the Environment for about a week now.

It's heavy sledding: Scriven writes in that both lean and obtuse manner of modern philosophers, but the ideas beneath are very intriguing.

Scriven proposes that within the social contract for the creation of governments it is only philosophically ethical for a government to take action to prevent harm rather than to provide benefit.

[We could go around and around on what consitutes harm in this sense, which Scriven freely admits, but let that wait for a second.]

On that basis, he provides a four-point checklist that should be applied to any new law:

However, at this point we may formulate the harm principle in terms of the following conditions, which are individually necessary and jointly sufficient to justify the enforcement of a social proscription:

1. The proscription must be made reasonably clear.

2. The proscription must be capable of universal promulgation within the jurisdiction of the proscription. Morever, it must be reasonably well promulgated within that jurisdiction.

3. The type of action (or inaction) proscribed must be shown to pose a serious danger of harm.

4. The harm associated with the type of action (or inaction) proscribed must not be outweighed by the pleasures associated with that type of action (or inaction) and the harms associated with proscribing it.

Again, the burden of proving that all of these conditions obtain is on the
state, not the individual....

It should be obvious that this principle poses a test that is far more demanding than those routinely suggested by legislators' arguments even in fairly libertarian countries like the United States.

Maybe it all should be obvious, but let me try to re-state his four requirements for a law to be ethically justified under a libertarian philosophy in something approximating plain English:

1. The law must be clearly and unambiguously written.

2. The law must be universally publicized.

3. The law must prohibit an action (or an inaction) that can be demonstrated to pose serious harm to individuals.

4. The law may not be enacted if either (a) the pleasure (or good) associated with the action/inaction outweighs the harm; or (b) if prohibiting such actions/inactions creates a greater harm than leaving it alone.

Two further clarifications:

1. Scriven defines harm pretty narrowly:

Harm should include not only physical pain but also death and severe psychological suffering.

2. Action/inaction. As Scriven describes it, the definition of action would be pretty simple: bludgeoning someone to death with a hammer is an action causing harm [whether the need to cause that harm could later be justified or not].

Inaction comes from the Bad Samaritan principle, which holds that people should be held accountable for their failure to provide an easy rescue. The example Scriven uses is this: you are sitting in a chair within arm's length of a pool wherein a small child is drowning. You could easily reach out and pull the child to safety at no risk or even great inconvenience. If you do not, you have by inaction allowed harm to occur. [This is obviously a much stickier situation for many libertarians, who see potential for extensive State intervention over the definition of easy rescue, but Scriven would argue that it's still not ethical or acceptable in a Libertarian society to allow that child to drown.

While not agreeing with everything that Scriven writes, I find him to be an intriguing thinker, and I believe he is pointing the way to serious principles and discussions that the modern libertarian movement--however constituted--should be considering.

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