Libertarianism, Paternalism, and Pot

by Russell Arben Fox on August 14, 2014 · 14 comments <span>Print this article</span> Print this article

in Politics & Power

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[Cross-posted to In Medias Res]

From 2003 to 2005, we lived in Craighead County, Arkansas, while I taught at Arkansas State University. Craighead was a dry county, having voted many years ago to prohibit the sale of alcohol in its borders. Despite numerous efforts by restaurant owners and others over the years, that public decision remains in place today.

As a bunch of Mormon teetotalers, this instance of prohibition didn’t bother my family and I at all, not did it appear impact our social circle in any noticeable way. (At faculty get-togethers, it was common for one or another graduate student, having received prior assignment, to show up at some point during the festivities with a duffel bag full of wine and beer for those who chose to imbibe.) I’m grateful for it all the same, though. Primarily because it gave me an up-close chance to talk to people about, and think about, what it means when one segment of the general population–a population that is, despite what some may think of rural northeastern Arkansas, every bit as affected by the larger commercial and pluralistic world as any distinct group of 100,000 people (70,000 of whom live in the city of Jonesboro, where ASU is located) anywhere in the USA is likely to be–comes to a collective judgment which effects the whole population. In other words, when a local majority (in this case, a union of white and African-American conservative Baptist church-goers) democratically turn their moral and religious judgments into law.

This issue is back on my mind this week, because of a couple of recent events. One took place this past Tuesday here in Wichita, when the backers of a petition (one of whom was me) to greatly reduce the criminal penalties attached to the possession of small amounts of marijuana gathered during a meeting of our city council to urge them to put the issue on the ballot, despite having fallen a few dozen signatures short in our initiative effort, and despite concerns over state and federal authority and the wording of the resolution. The other took place online, when my old friend Damon Linker published a challenging article which argued that the success which libertarianism has enjoyed in the United States is almost entirely the result solely of a rise of non-judgmental moral “libertinism”:

Americans now inhabit a world in which increasing numbers of individuals find it difficult, if not impossible, to imagine submitting to rule by any authority higher than themselves on moral and religious matters. Sure, people continue to accept that one will be judged harshly and punished for violating another individual’s consent (the only libertarian moral consideration). But beyond that? Don’t be ridiculous. Who are you–who is anyone–to judge my behavior?

Damon used as an example in his piece the case of a young woman at Duke University who has achieved some small  fame for performing in pornographic films as a way to pay for her education, a career which she has defended in part in libertarian language. This in turn prompted a long online debate between Damon and various libertarian interlocutors, revolving around the frustration one libertarian writer felt at being put into a position of not only not judging, but in fact embracing as a positive act of liberty, something that she considered deeply unwise:

As a libertarian, I want pornography and even prostitution to be legal, if reasonably regulated. But as a survivor of hookup culture, I can’t even implicitly condone rampant, publicized promiscuity (which even on camera and for money constitutes rampant promiscuity nonetheless). Keeping your experiments in sexual growth small and private helps to limit their potential to damage both yourself and our normative socio-sexual frameworks. I want to live in a community where people understand and respect that we are all sexual creatures, enjoy their sexuality in pro-social or at least benign ways, and limit it otherwise. Such a hypothetical community does not treat the decision to perform in pornography (and then talk about it all over the internet) as just one unimpeachably empowering life choice among many.

The heart of the argument which followed was basically this: does standing for the principle of individual pluralism and freedom (which is, however you justify it, the position shared by all varieties of libertarianism) necessarily make it inconsistent to refuse to endorse, or in fact to judge negatively and wish to oppose, various choices that people make with their liberty? In other words, can supporting libertarianism as a political ideology be separated from supporting the choice to be a moral libertine?

This argument might not appear to have anything to do with our argument over the decriminalization of marijuana here in Wichita, but in my mind the two issues were connected. There are, of course, a large range of legal and political issues at play in our local debate (all of which influenced the ultimate decision of the city council–which was to instruct a member of their staff to work with the petition-gatherers to re-write the proposed ordinance and seek to obtain enough signatures to try again on a later ballot–much more than I think the should have). You have the question of state and federal jurisdictions over drug laws, the precedents established (or have they been?) by Colorado and Washington, debates over recreational vs. medicinal marijuana use, disputes over the rules which govern citizen petitions, etc. But hidden within all that is a familiar question (one which I’ve staked out a position on before): when you are dealing with an issue or a matter which involves consequences that would be experienced solely by the individual making the choice (and yes, despite the talk one often hears about marijuana being a “gateway drug,” the real costs of decriminalization, or even legalization, are widely recognized to be simply a–possibly minimal–increase of marijuana usage, with attendant effects upon vulnerable users…but not a crime wave or social breakdown), then on what basis, if ever, should judgments be allowed to turn into prohibitions? Most libertarians allow that, of course, you ought to be able to organize and express yourself in which ever way you want–but can that organizing, and judging, turn paternal?

Something I wrote in the aforementioned discussion may be helpful here. One could say that there are at least two, overlapping but non-identical, ways in which the refusal to exercise prohibitive judgment over another person’s choices could be formulated along libertarian lines, theoretically speaking. In one case, it’s for Hayekian reasons: generally speaking, you should refrain from developing one’s judgments in the direction of paternal action because you just don’t know enough to be able to speak knowledgeably about another person’s choices (particularly their moral, personal, religious, or sexual ones). That’s a powerful argument, one which I’ve taken more and more seriously as I’ve worked through the pseudo-anarchic positions developed by the scholar James C. Scott. However, I don’t see this as necessarily requiring that those in the libertarian camp have to support libertinism, because strictly speaking it leaves open the sort of local, contextual possibility that, in this particular case, at this particular time, some hypothetical person actually might know enough to be able to speak authoritatively about what another person is doing with their life. In the other case, though, the connection is strong, because you’re thinking in Lockean terms, not ones of epistemology but of property. Here, the demand that one not act paternally towards another arises not from the fact that you don’t know enough to judge another’s choices, but from the belief that you have no right to do so, because they own themselves (their rights, their conscience, their sense of self), and you don’t. This is a pretty reductive analysis, I know, but I think it perhaps helps explain why, given our rights-obsessed culture and Lockean intellectual inheritance here in the USA, we so often see a cross-over from a concern with personal liberty, to a refusal to countenance any negative judgments of, much less prohibitions regarding, behaviors or choices which some segment of the population (even a local majority) considers bad or wrong.

As someone who philosophically favors communitarian accounts of our actions, values, and needs much more than individualist ones, the question of prohibition comes easier for me. I don’t think there are, or at least don’t think their necessarily ought to be, any near-absolute philosophical roadblocks in the way of local communities democratically trying to define themselves, at least as regards matters which don’t come close to broadly accepted fundamental liberties. Buying a beer or smoking a joint don’t qualify in either case. So why is it that I am basically supportive of what the church-goers in Craighead County are trying to maintain, while in the case of Wichita I’m actively involved in trying to gain signatures and drum up support for a possible effort to challenge state and federal laws in regards to cannabis?

It’s in part because I’ve learned from Hayek, as well as from Scott; I’ve learned that large bureaucracies and entrenched laws too often stifle the sort of exploratory action which might enable people to understand better their own needs, to say nothing of the fact that such institutional structures too often punish, at great personal and social costs, all sorts of individuals who have worked out what their own needs are, and who attempt to get around those structures. Of course, that’s just a highfalutin’ and theoretical way of talking about those who find themselves robbed of the ability to find a job or participate in society because of stupid choice made when they were young, or those who are convinced (rightly or wrongly) that cannabis is something they desperately need for medical reasons. In other words, I’ve read their stories (probably most particularly here), learned about their situations, and come to greater appreciation of how this prohibition, at this time, is doing more harm than good. As always with me, it’s a context thing.

I’m still willing to defend particular paternalisms; I think any healthy community should, for the sake of preserving social norms and preventing the (I think) ultimately damaging (in both a personal and civic sense) glorification of ever-multiplying, never-judged choices. Defending one’s collective moral and cultural identity, and what it can achieve, is too important to be sacrificed to the cult of individual liberty. But if my communitarian ideas have changed at all over the past several years (and they have), it is that I know understand that a defense of norms and traditions–especially prohibitory, paternal ones–has to be able to constantly respond to the changing, pluralistic flow of information all around us. In this case, well, marijuana isn’t a drug I have any interest in, or would ever want any of my kids to use. But it isn’t, by any means, the worst thing they could do to their bodies (plastic surgery very like would be worse!), and if there people in my community that are being unnecessarily harmed by this prohibition, then I ought to recognize that the judgment I make as parent, in this case at least, is probably as far as I ought to allow my paternalism to go.

{ 14 comments… read them below or add one }

avatar Brian August 14, 2014 at 3:51 pm

Here is a recent fairly vigorous defense of paternalism from Anthony Esolen:
http://www.catholiceducation.org/articles/apologetics/ap0500.htm
Upon reading it I’m sure some will nod their heads and some will lose theirs.

“if there people in my community that are being unnecessarily harmed by this prohibition”
And just how many people tip the scales in your reckoning? Surely there are ways to calibrate society’s response short of full legalization. Personally I for darn sure want society to back up my message to my kids that smoking pot is not a legitimate lifestyle choice. But I realize I’m radically out of step with the times–I also think legalized gambling is abhorrent and the sign of a truly depraved society. Give me Fiorello LaGuardia and his sledgehammer for slot machines any day over the vile grasping moral midgets who run today’s pink police state.

avatar Russell Arben Fox August 14, 2014 at 4:33 pm

Brian,

That piece by Esolen is really solid; I liked it, even if his understanding of human nature leads him to phrase things in a way, or to a degree, that I wouldn’t. His comment…

The advocates are really advocates. They presume that the role of government is to grant to individuals as much leeway or license as possible to pursue the gratification of their desires, and to do this without examining the nature of those desires, their moral effect upon the human person, or the injury they may do to the common good. Whatever I want gains a prescriptive claim for legality simply because I want it, and all other considerations must be at best secondary.

..captures exactly the attitude that I don’t want to associate myself with, the hard libertarian idea that, because you “own” yourself, your own desires become some kind of prima facie argument which nearly trumps all contextual concerns about society, decency, virtue, etc. Because, of course, we can’t possibly violate the absolute right of the self-owner, can we?

And just how many people tip the scales in your reckoning? Surely there are ways to calibrate society’s response short of full legalization.

I don’t know how many people it would take, or what sort of harms they would need to be experiencing, to change my mind back to what it used to be (which for a long time was the full prohibitionist position). This is all contextual, I think, and dependent how we learn, over time, to deal with what we know or think we know about how personal choices affect society and vice versa. I’m with you on most forms of legalized gambling (especially state lotteries, which strike me as nothing more than a sneering tax on the poor and the weak-willed), and frankly find it delightful that we’ve managed to stigmatize smoking as much as we have (I wish we could be as successful–as successful, frankly, as Craighead County has been–in stigmatizing alcohol consumption). What I see with marijuana, though, is a situation today where I think my own strong personal opposition to its use as a lifestyle choice needs to cease taking the form of supporting those laws which criminalize it in such a way as to do real harm to both folks in pain or neighborhoods trying to build themselves up in the face of the invasive reality of the war on drugs. In fact, I want to see those laws changed. Such a change wouldn’t change my discouragement of its use, though of course personal discouragement will be limited in maintaining a social norm in the absence of the public support which laws provide. I suppose I’ll just have to say that, given the context we are in now, I’m willing to see that social norm decline a little if I have good reason to believe that other social harms will decline as well.

avatar Andrew August 14, 2014 at 6:32 pm

A lot of writing here to make a simple point.

“I may disagree with what you say, but I will defend to the death your right to say it”

becomes

“I may disagree with what you do, but I will defend to the death your right to do it.”

It’s an incredibly elementary extrapolation. Legislating morality is not moral unless you are a parent legislating your children. The rest is nonsense, teetotalers be damned.

avatar Andrew August 14, 2014 at 6:40 pm

I should add that by legislating morality I am referring to morality that does not limit another’s freedom. The libertarian ideal.

Albeit I do have an affinity for subsidiarity. But the most local community is the family and 99% of legislation ought to reside in it.

Anything above and beyond this is 100% religious imposition by the mob. Always. If the Protestant teetotalers ever wind up enchained by Islam it will be an ironic bit of tragedy indeed.

avatar Robert August 14, 2014 at 8:45 pm

Andrew’s utterly silly ideology and anti-religious bigotry here gets at the heart of the problem. So long as our national imagination is bound by Locke–and the only recognized authority is the individual, the state, and (in the case of minors) the family–real human living-together isn’t possible. The soft policing of social taboo and community expectation are abolished and we’re left with only the force of law. And it’s a 1 or a 0.

avatar Russell Arben Fox August 14, 2014 at 9:26 pm

Andrew,

Legislating morality is not moral unless you are a parent legislating your children. The rest is nonsense, teetotalers be damned.

I have to say that I disagree almost 100% with this, at least on the level of principle. I am less willing to defend moralistic prohibitory legislation than I perhaps once was in the past, in part because I’ve come to recognize the complexities in understanding the received information which guides our judgments, but that chastening has in no way led me to believe that morality must somehow be localized in the family and in no other sphere. As Robert I believe rightly observes above, without recognizing the place of morality in the social and community sphere, we leave ourselves in the condition of disconnected individuals who can only be tyrannically herded or nudged with incentives; without moral connection and affection, I think we are rendered incapable of substantive self-government. I want to defend that, and so that means I have to defend the idea that there is a legitimate moral reality to what we express–and, yes, sometimes regulate or tax or require or prohibit (hopefully in a democratic way!)–together.

avatar vera August 15, 2014 at 7:57 pm

You should then be happy with Colorado’s law which specifies that any local community — county or town — can choose to opt out of regulating marijuana, and maintain local prohibition. Gunnison is one such place that has opted out, because it wants to maintain a small college town atmosphere. I am in full support, even as I am a vociferous opponent of the drug war. (And by the way… Colorado is facing, um, having to shut down a number of prisons! Aw!)

Stigmatizing alcohol consumption? Surely you jest; this in the day when doctors are recommending a glass of red wine a day?! :-)

avatar Andrew August 16, 2014 at 5:28 pm

You are free to advocate your version of morality, to live by it, and thereby to be a witness to it and example of it. Chivalrous and upright exemplary conduct does not require enforcement at the barrel of a gun, otherwise its adherence is not genuine and therefore not truly moral to begin with. No, the true gold standard way to live and interact speaks for itself and cries out for adherence and discipleship; but imposing it, however good it is, embitters the hearts of the losers of freedom.

I find it both sad and ironic that my comments were taken as anti religious bigotry.

If God knows the ideal morality, yet provides allowance for you to wander off that path, what does that say about God’s opinion on violently enforced morality? Moral enforcement actually implies that the state possesses greater wisdom than God. But I’m the anti religious bigot… how sad.

avatar eric August 16, 2014 at 8:42 pm

I say localists and traditional conservatives who want to critique the cult of liberty without coming across as moralistic would do well to look at Brownson’ s explanation of barbarism in American Republic. In his terms, the barbarism is treating political authority as a private right, while civilized law sees it as a public trust. Thus he gives the example of feudalism (at least in its most primitive form) as barbarism, as the power to rule was just an extension of having land and other property, so that authority became a private right like ownership. The genius of the American Republic in his thought is not to put individual freedom as the prime value, but to remove authority from the realm of private individual rights and put it back as a public trust. In his thinking extreme individualism, what today we would call libertarianism, is a return to barbarian, except instead of one strong man claiming the private right each individual is a little tyrant.

Thus Brownson was able to be in favor of abolition, but was also, in the terms stated above, able to distance himself from the liberalism of the abolitionists as a party.

avatar vera August 17, 2014 at 8:33 am

Andrew, if a community decides together how they want to local customs to be, that is not “at the barrel of a gun”. Now, a tribal community did have the option to ostracize and even kill an offender, but this was done only in rare and very serious cases (usually the usurpation of power). Mostly, a community’s morality was enforced by peer pressure. It actually works very well.

When you grow communities past the size where peer pressure works, then you gotta scramble for laws. Jefferson dreamed of political neighborhoods of 500, the size of a small tribe. I say, it should be smaller, the size of a band. Self-organization requires small units nested up.

avatar Owen Jones August 17, 2014 at 11:36 am

I am part of a very paternal religious tradition. It is also maternal. As St. Paul advised the Corinthians, we address our priests as “Father.” We address our Bishops as “Despota.” We refer to the Church as our Mother and the Mother of God as also a necessary part of our salvation.

In my experience, very few people know what they need or what is best for them. The people I have met (or myself, at certain times in my life) who were absolutely convinced that they knew what they needed and what was best for them were seriously deluded.

That anyone “needs” marijuana strikes me as probably one of the more absurd statements that have popularized the legalization movement.

That I am the owner of my own mind and body and that therefore no one can exert any control over it through law or custom certainly flies in the face of experience. I did not control my birth. I will not have control over my death. I did not control what family or culture or period of history I was born into. My decisions in life, in a more or less “free” society are influenced by myriad factors. The notion that somehow I am or can be or should be in control of my own destiny is not only a philosophical absurdity but flies in the face of reality as we all experience it. Yet America is founded on precisely this assertion.

Wherever you have a human controller you have an ideology, as Eric Voegelin pointed out. This is not, as libertarians assert, a negation of freedom. Control is not the same as a lack of freedom. Nor is freedom simply the lack of external restraint or coercion, since internal factors enslave people all the time.

Perhaps it’s time to have a discussion about essentials. What does it mean to be human? What does it mean to be free? What is true freedom? Is it a Good? If so, how do we acquire it?

I see very little in 18th Century Enlightenment thought that provides answers to these important, necessary questions, or even guidance about how to go about addressing them.

My religion teaches me that I become free by living by Faith and obeying God’s commandments, regardless of or in spite of my external circumstances. This is not an excuse for total passivity in the face of political or economic oppression. It is a matter of essentials and priorities.

But also as a practical matter, if we place our faith in God, we will intuitively understand that the state is not God and we will resist the temptation to surrender our liberties to the state in exchange for its paternal protection.

avatar Art Deco August 26, 2014 at 3:26 pm

Legislating morality is not moral

Hate to break it to you, but we legislate little else.

avatar Art Deco August 26, 2014 at 3:27 pm

“I may disagree with what you do, but I will defend to the death your right to do it.”

You’ll take a bullet for me? Gee thanks, Andrew!

avatar Tony August 27, 2014 at 9:22 pm

Jumping in here.

I am a great believer in liberty, and that is why I reject libertarianism. Its definition of liberty is strictly a negative: it is a permission slip. There is no substance to it; it views the virtues as at best useful for securing a very broad permission slip; it does not see the essential connection between virtue and liberty. Thus it rejects both the wisdom of the Jews and Christians and the wisdom of the great pagan statesmen and philosophers. Cicero would condemn it as pernicious, Plato would condemn it as a lie.

Now then, if we admit that liberty is the aim for the human soul, a great good never fully attained by any person upon earth, then we have to ask various corollary questions, and here we may find some adventitious agreement in policy, not principle, with the libertarian. If the virtues liberate, it follows that they must have a field for action; we cannot realize our full humanity unless we have the practical daily go-ahead, the “freedom” in a strictly customary or legal sense, to develop our virtues. We cannot become prudent unless we are given the opportunity to be imprudent. We must grow into the full stature of a moral agent. The law clears the arena. It is not neutral with regard to good and evil — it cannot be. Every single law has a moral arrow to it. The law is a teacher. But the law is not a dictator. The law aims at the common good. Its generality makes it unsuitable for directing the ordinary affairs of most people. It acts as a guard rail more than as a spur. It should allow much, tolerate some evil, prohibit sometimes, and very rarely compel.

That said, it is illogical to say that the law must be neutral with regard to certain moral questions (these days, those that have to do with sensual delights), when neutrality is impossible. If I say, “I shall remain neutral as regards the morality of two men who consent to fight one another to the death,” I have made a choice, regardless of the comforting form of my words. I’ve chosen a society in which people can kill one another apart from self-defense. It doesn’t matter whether I happen to choose to duel or not. If I say, “I shall remain neutral as regards to people walking in the nude in public,” I have made a choice. It’s for a very different public square than what we (still) have now. It doesn’t matter whether I happen to wear clothes in public or not. It will have become a different world.

The libertarian, in principle, claims neutrality but actually delivers us over to the most dissipated, unscrupulous, foolish, selfish, and ambitious among us. In other words, the libertarian robs us of our best hope for liberty.

That’s as I see it — and I might add that I am an inveterate hater of large states and the disgusting regulatory regime, whereby businessmen and bureaucrats jolly one another, with their hands in the other’s pockets.

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