Freedom, Government and Rights

Freedom, Government and Rights

Arguments about freedoms, state legitimacy and rights are very common, so knowing how to make them well and respond to them effectively is important. While last week dealt with some strategic tips for getting value frameworks accepted without huge amounts of analysis, this week focuses on some useful standard analysis that can be used and then applied in differing circumstances.

Contents:

Preamble: Rule Utilitarianism

1. Individual Freedom

a. Why is freedom valuable?
i. Objective Value
ii. Knowledge of value
b.How to question the value of freedom
i. Irresponsibility
ii.Probabilistic Claims
iii. External Effects

c. Conclusion

2. What should the state do?

a. How to argue that a state should not act

b. How to demonstrate the state’s capability to act
i. Social Contract
ii. Continuing Benefit (or: “You Didn’t Build That”)
iii. Moral Arbitrariness
iv. An important note on the above arguments

3. Should the State Grant Rights?

a. General Justification of Rights

b. Responding to Rights Arguments

c. Rights Discussion

Preamble: Rule Utilitarianism

As we discussed last week, utilitarianism is a moral framework that judges the worthiness of an action on the basis of whether it advances overall utility.

Rule utilitarianism is similar; it too aims for the maximum amount of utility. It differs in saying that, sometimes, this is best achieved by following a specific rule rather than making a case by case assessment. For example, we might generally feel it is wrong to punish the innocent for crimes they did not commit. However, there may be individual circumstances where it would be beneficial – for example to act as a strong deterrent to others. An act utilitarian might claim this was acceptable. A rule utilitarian would argue that a world where the rule “the innocent should not be punished” would be preferable to a world where the innocent could be punished. There are several ways to justify this:

- Incapable or Biased Assessor – the person making the assessment on a case-by-case basis when deciding what to do may be incapable of making the decision (perhaps having inadequate or asymmetric information). They may also be biased, believe that they should be exceptions to a rule, and prefer to advance their own interests.

- Reliance on the rule – the existence of a rule may allow people to predict how a Government will act, which can help them plan their behaviour and may be comforting.

- Mutual protection of rights – it might be that it would be beneficial for a majority to deny a minority a certain right. However, if this was possible, a differently constituted majority may deny a differently constituted minority you are part of a similar right. By ensuring the rights apply to everyone, the possibility of this situation is limited and groups are protected.

1.Individual Freedom

“Freedom” is a word with such overwhelmingly positive connotations that it is rare to see a justification of it as a value. There are some debates where justifying individual freedom is vital for one side; for example, THW allow consensual cannibalism, or THW legalise euthanasia. How then can we justify things such as this, which may seem counterintuitive, by using arguments about freedom?

1. Why is freedom valuable?

The simplest justification of freedom is that people value things differently. This is simple to argue; if someone makes a claim about something like consensual cannibalism being ‘objectively bad’, the following two responses are relevant:

1. Objective Value

First, that value is never objective. Consider your family photographs; they are probably of significant value to you, but may be of limited value to somebody who doesn’t know you or your family. Or, in the euthanasia debate, if it is argued that the end of a life is always wrong, you can argue that the only value life can have is subjective; each person will value their continued life differently.

1. Knowledge of Value

Secondly, you can argue that the only person who knows what is valuable to them is that individual. As you are the only person who experiences your life, only you can tell what you do and do not value. Similarly, no other individual can calculate risks for you. For example, if arguing “THW Legalise Duelling”, you can argue that nobody but you knows how much you value your health against how much you value a glorious death. As another individual or Government can’t assess these values, you can argue they should leave this to the individual.

A note on making this argument; it’s probably a good idea in your speech to justify why a certain thing might be valuable (or not valuable), and to then tell the judge that because it’s possibly valuable to some people and we don’t know how valuable, we should allow individuals to decide. For example, in the debate about duelling, you might want to give some reasons about why a glorious death might be valuable (the most awesome argument ever), some reasons why life or health might not be valuable, and then claim that as it’s a complicated area, individuals should choose.

If you are trying to link this claim to Governmental action, you can add that it is hard for the Government to assess people’s values. For example, if they act on the basis of people’s stated preferences, people have an incentive to overstate their desires,so any measurement is inherently biased. For example, if the Government decided to choose whether or not to legalise gay marriage by asking how much people did or didn’t want it, everyone asked has a huge incentive to say that it’s the most important issue in the world to them. Furthermore, revealed preferences (where you determine value by seeing how much people tend to spend on it now) is only descriptive and doesn’t tell you how those values may change over time – or possibly even be influenced by the policy.

1. How to question the value of freedom?

While freedom is generally seen as a good, we can see from the motions suggested above and the bans on things like drugs that we do limit it frequently. Why is this?

1. Irresponsibility

If a team argues that people should be absolutely free, you can respond by arguing that it is possible that an individual may not be best placed to make decisions about themselves, and that we should allow the state to take over. This can be justified on the basis that a person is not fully aware of all the risks or consequences of the action discussed. When arguing this, you should explain a) what the risks or consequences are, and why this is a problem (i.e. why the risks and consequences matter), b) explain why individuals are not fully aware of these, and c) explain why a Government is a better actor (perhaps probabilistically, using the claim discussed at ii. below) than the individual.

A good example that shows that freedom cannot be an absolute is children; no team will agree that a child should be free to take drugs. So you can show that in principle we can limit freedom where the risks and consequences of an action are better understood by Governments; now we just need to show that this is true in the motion being discussed.

1. Probabilistic Claims

We can reinforce the above argument by observing that even if there are some individuals who can make a decision adequately with full understanding of the consequences, laws have to operate on a probabilistic basis. For instance, in some cases, theft may be justifiable – perhaps taking a pen from a bank to save the time and effort it takes in acquiring one at minimal cost to the bank. It is still obviously preferable to have laws against theft.

This can be applied to individual liberty. So, with drugs, it may be that some people take drugs fully understanding the consequences and risks of their actions. However, others may not - so the restriction can be justified on the basis that it protects the majority. As the majority may not have thought about it or do not know the risks (because of imperfect information), we cannot say they have meaningfully consented to the harms of drug taking.

Note that this is an applied form of rule utilitarianism; we say that drug takers are generally poor assessors of whether or not drug taking is good. They often lack information about the harms of drug taking. Furthermore, they are often biased, believing that they are better capable of controlling themselves on drugs and better capable of avoiding addiction. So it is preferable to have a rule banning drug taking.

1. External Effects

Lastly, we can argue that freedom of the individual should be limited for the good of society. The choice may benefit an individual, but that choice may cause harms to others (sometimes known as externalities) who do not consent to the harm, and are not compensated for it. So, in the example of drugs, the drug taking of an individual may make the area unsafe (either by making the drug-taker unsafe to others, or by attracting criminals to the area). We can see this principle in play in large numbers of Government policies, from laws against violent crime to limits on pollution.

1. Conclusion

As we can see from the above, arguments for absolute liberty can be easily defeated. However, arguments that freedom is valuable can be effective in their qualified form; that, in certain circumstances, individuals have a better understanding of their preferences from a Government and so allowing individuals to express their preference may maximise overall utility.

2. What Should the State Do?

The question of when a state can take away the liberties of its citizens is often important in debates. Additionally, judges frequently have strong intuitions that certain liberties are important; in such cases, the analysis below needs to be robust to overcome those intuitions.

1. How to argue that a state should not act

Note that the approaches in this section should only be argued where the consequences of the policy in individual situations appear to be good. If that is not the case, it is best to argue against state action by saying that it will make people poorer / less happy etc. However, if making an argument that even though a policy might increase utility in some situations, it should still not be followed, the arguments below can be used.

Firstly, the argument made at the start of this worksheet about freedom is often a useful starting point. State action will inevitably leave individuals with a narrower range of choices, and therefore potentially limit their ability to make the choice that best advances their interests. This is a useful framing device to show that when states can’t guarantee they have a proper understanding it’s populace’s values, it may limit their ability to make optimal choices.

Secondly, a claim can be made that some limits on freedom, such as taxation, might amount to something equivalent to theft. You can argue this by saying that labour is the essence of a person’s efforts, and as it is an aspect of themselves, to take this away from them amounts to taking a part of another person; it is occasionally compared glibly to slavery. This is a weak argument for the reasons set out below; I do not encourage you to make it and it is only here for reference.

Thirdly, teams sometimes claim that to do anything that uses some aspect of an individual or their happiness amounts to instrumentalisation (i.e. use) of them, and that is illegitimate. For example, a mandatory organ donation policy might be said to instrumentalise an individual, as it treats them as a means to an end rather than an end in itself. You can argue that this is a problem as it denies that person from being considered as important in some way.
This argument too is subject to the criticisms below. Additionally, it can be observed that often the alternative in the debate instrumentalises another group to the extent that it fails to maximise their interests.

Finally, the most nuanced argument arguing that state action is illegitimate. This argument considers the word “illegitimate” to mean “a policy the state should never consider or use”, or another common formulation, “not part of the toolbox of Government.” It is therefore a rule utilitarian argument thatargues the world would be a better place if a rule was adopted whereby the Government never used the policy.

The argument can be made using the criticisms discussed in the preamble; arguing that the assessor lacks information, is biased, or that being able to rely on the rule would be helpful. So, for example:

-In a debate about restricting Freedom of Speech, you can argue that it is illegitimate to restrict Freedom of Speech should because the Government usually cannot tell if the idea is a good or a bad one (especially before it hears it) and it may be biased against ideas it strongly disagrees with.Furthermore, the citizenry may rely on the idea of absolute free speech; it may foster an open attitude to ideas and politics, and provide security to know that their ideas will not be silenced.

-In a debate about sanctions, you might argue that sanctions are illegitimate because a Government can almost never tell if they are to be effective, the need for some sort of action may bias Governments in favour of acting, and a policy of never using them fosters a friendlier international community. You’d probably still lose, though.

1. How to demonstrate the state’s capability to act

If any of the above arguments are or might be run strongly, it is worth justifying, at least briefly, the legitimacy of a Government policy. This can be done in the following ways.

1. Social Contract

Warning: Social contract arguments used to be quite fashionable but are now very unpopular. I hate them, and find them incredibly unsatisfying. However, it you analyse it a bit, teams can get bogged down trying to respond to it.

The starting point for this argument is to consider a state of nature (i.e. a world without a government) where there is a war of all against all, and life is nasty, brutish and short. We have therefore contracted with a sovereign power (a Government) to remove us from the state of nature, and so we submit to its rules to benefit from the improvements in our lives. Therefore, the impositions are voluntary and legitimate.

The problem with this is apparent; the extent to which this can be described as consent is limited. If the state of nature is so bad, then we don’t really have a choice. And realistically, we never agreed to live in our country, we were just born here.
Furthermore, it’s unclear that we can meaningfully ‘opt-out’ of Government. Nowhere in the world has absolutely no laws, and so we have no realistic alternative.
Lastly, remember that the comparative in a debate is never “state of nature” versus “government” – it’s the distinction between two slightly different forms of government.

1. Continuing Benefit (or: “You didn’t build that”)

This argument, however, is very powerful.

You can start by observing that rights don’t exist outside the state; the state is necessary to facilitate rights such as freedom of speech, and other liberty-maximising institutions. Furthermore, the state has a significant role in the success of individuals; they build the roads that get goods to factories and employees to work, they educate the workforce with public education, and they uphold private contracts using the force of law. They protect the populace from foreign invasion with an army, and prevent theft and other crime with a police force. More broadly, they create other rights-giving and enterprise-advancing institutions; they protect property, print money and uphold a system where both are considered valuable and you can rely on money being accepted in exchange for goods and services instead of bartering. Lastly, they uphold a constitution that gives the citizenship some rights.

So, you can show that something like tax is not theft; property rights are defined and upheld by the state. All taxation does is changes what it means to hold property. Property is an institution made up by the state to advance the interests of society. If you have a way of changing the institution (such as redistributive taxation, flat taxation etc.) that advances the interests of society further, it is a legitimate and desirable change.

You can try to take this argument one step further. You can argue that where a state creates an institution that fosters something bad – such as the institution of property advancing inequality – the state is acting immorally, in that it prefers the interests of some to the interests of others. Therefore, the most moral action is to make the institution benefit everyone (using whatever practical steps are necessary to do so).

1. Moral Arbitrariness

This argument can stand on its own, but may also work as a piece of the previous argument.

It can be argued that individuals have no moral claim to their talents; that is, all their talents and abilities are a product either of their genes or their social circumstances. That is even true of an invidivual’s desire to work hard. But because a person cannot claim to have “earnt” these talents, they cannot claim to deserve them. Therefore they cannot claim that you deserve a system that rewards you on the basis of those talents either.