From the moral and political value of liberty flow all general rights.

A person X has a general right to do action of type A if and only if people other than X shouldn't interfere with X's doing A.

But what is the correct limitation of liberty and general rights?  What types of action should be restricted?

In particular, when in principle should the State interfere with X's doing A?

Problem: Burke: the "oppression of the minority"
Tocqueville: the "tyranny of the majority"

Consider the enormous power of the modern State.

DOES THE STATE OPERATE WITH THE RIGHT VALUE ASSUMPTIONS?

Mill's Solution: The Harm Principle

The State may restrict liberty only to prevent harm to others

Self-regarding acts: affect only the agent(s)

Other-regarding acts: affect others

The harm principle protects self-regarding acts from interference. It creates a sphere of liberty:

Who is an agent of an action? Someone who, with respect to that action, is

1. free (not coerced)

2. mature (competent to choose)

3. informed (knows what he/she is doing)

Answer: Count an act as other-regarding if there is risk or damage to others. That is:

1. it violates a distinct and assignable (specific) obligation;

2. it renders agent incapable of performing a specific duty to others.

In sum:

We may restrict an act by law if it violates someone's rights.

Otherwise, it may be punished at most by opinion.

All have the form: Interfering with liberty is harmful. (Utility is the ultimate appeal, according to Mill. Libertarians (for example, Locke) hold liberty to have intrinsic value, independent of utility.)

1. Individuality is crucial to happiness

a. making people fit a mold harms them

b. limiting experimentation harms others who might learn from it

c. limiting available choices harms everyone

2. Bumbling: Government interferes wrongly

a. Each person cares most about his/her good (Public choice: bureaucrats act for their own good, not the public good)

b. Each person knows most about his/her good (Market efficiency: bureaucrats can't know enough to make wise choices)

3. Costs: Even when it promotes a person's good,

a. Interference is expensive (police, courts, jails)

b. Interference is often redundant; people would usually have promoted their own good anyway

1.  Intrinsic value: paternalism is immoral (as conflicting with liberty)

2.  Instrumental value: paternalism promotes immorality (corruption, etc., as black markets, ets., are created by paternalistic laws).

Paternalistic laws restrict a person's freedom for his/her own good

Kinds of (putatively) paternalistic laws:
 

"Morality"	Health/Safety	Economic
sexual behavior	drug use	blue laws
divorce	helmet	minimum wage
adultery	seat belts	Social Security
polygamy	vaccinations	unemployment insurance
polyandry	suicide	working hours
prostitution	self-mutilation	sin taxes
sodomy	building codes	gambling
pornography	voluntary euthanasia	usury
surrogate mothers	jaywalking	working conditions
	professional licensing
	hazing

Many of these have other, nonpaternalistic justifications as well. Examples?

Which of these laws, in your opinion, are legitimate exercises of government power?

Possible justifications for paternalistic laws:

Preconditions of agency

1. lack of coercion: incest, child labor, minimum wage, working hours and conditions, usury, voluntary slavery

2. maturity (competence): incest, laws restricting addictive drugs, confinement of mentally ill, suicide, self-mutilation, voluntary euthanasia

3. knowledge: professional licensing, drug laws, vaccinations

Arguments against the Harm Principle

Other possible justifications for paternalistic laws: (together with possible applications)

4. Offense to others: sexual behaviors, pornography, offensive speech

5. Harm to agent or others: sexual behaviors, pornography, gambling, blue laws, drug use

6. Harm to social cohesion: sexual behaviors, gambling, surrogate motherhood, drug use, suicide, jaywalking, hazing, voluntary slavery, offensive speech

7. Exploitation: prostitution, polygamy & polyandry, pornography, surrogate motherhood, minimum wage, working hours and conditions, usury, voluntary slavery

8. Insurance against weakness of will: helmets, seat belts, vaccinations, Social Security, unemployment insurance

9. To expand freedom by expanding the range of choices available: voluntary slavery, sexual behaviors, suicide, minimum wage, regulations

10. Character formation (Confucius, Aristotle)

a. A good society requires virtuous people, which

b. requires formation of good habits, which

c. requires paternalistic laws to guide people

(Laws are not just for adults; they are also to mold children into virtuous adults.)

11. Pluralism (compare Ross's ethical pluralism)

a. Liberty is one value among others (social order, happiness, prosperity, morality, religion, strength, peace, civility, dignity, courage)

b. Sometimes, other values take precedence over liberty

c. Liberty in groups is power; without other goods, it is dangerous

12. Tradition (Confucius, Burke)

a. Respect for tradition engenders good character traits (dignity, gravity, humility, caution) needed for making proper choices

b. Tradition is itself the product of reasoned choices

c. Tradition is the best guide to making choices that conform to our nature
 

The complete text of On Liberty is online at gopher://gopher.vt.edu:10010/02/122/1.