Tuesday, April 22, 2008

Autonomy, Tolerance & Gems from Einstein

I've written here previously about Walter Isaacson's biography of Albert Einstein on the topic of Einstein's fierce independence and individual autonomy. In Einstein's words:

-"Blind respect for authority is the greatest enemy of truth." (p.67)

-"Long live impudence! It is my guardian angel in this world." (p.73)

-"[Some part of genius is due to a measure of] incorruptible skepticism and independence." (p. 83)

-“When teaching history, there should be extensive discussions of personalities who benefited mankind through independence of character and judgment.” (p.6)

-"It is important to foster individuality, for only the individual can produce the new ideas." (p.7)

Isaacson sums, "[Einstein's] success came from questioning conventional wisdom, challenging authority, and marveling at mysteries that struck others as mundane. This led him to embrace a morality and politics based on respect for free minds, free spirits, and free individuals. Tyranny repulsed him, and he saw tolerance not only as a sweet virtue but as a necessary condition for a creative society." (p.7)

Monday, April 14, 2008

Progressive Liberty in the Commons - What is "Progressive" and what is "Liberty"?

A persistent conundrum for those of us with libertarian sympathies is that individual freedom and the common-good seem, almost by definition, to be mutually exclusive.

So how can a concerned individual justify individual liberty when we understand the dynamics of some groups, where individuals acting in their own self-interest make decisions that when combined with the similar self-interested decisions of other individuals tend to despoil the environment (or, beyond environmental issues, where individual aggressive impulses that when combined with similar impulses of others lead to moblike or warlike behavior)?

We may recall that this was the scenario illustrated in Garrett Hardin's classic 1968 essay, "Tragedy of the Commons," in which Hardin concluded that personal self interest, unchecked by any limiting factor, may lead to environmental destruction: "The rational man finds that his share of the wastes he discharges into the commons is less than the cost of purifying his wastes before releasing them. Since this is true for everyone, we are locked into a system of 'fouling our own nest,' so long as we behave only as independent, rational, free-enterprisers." (I explore the issue of the commons and formal property regimes in a 1999 book chapter entitled "Common Property and Natural Resource Management: A Michigan Perspective," which appears in the book series "The Economics of Legal Relationships" (vol. 5)).

"Progressive Liberty" is an attempt to reconcile the seemingly contradictory concepts of individual liberty and the common-good.

Looking first at the "Liberty" part, an excellent place to start is with the "harm principle" enunciated in J.S. Mill's 1859 classic "On Liberty":

"[There is but] one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, … that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others…. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign." (I discuss Mill's harm principle in greater detail in a 2005 Willamette Law Review article entitled "Reviving a Natural Right: The Freedom of Autonomy").

Yale professor Ian Shapiro suggests, “think of the harm principle as operating in two steps. When evaluating a particular action or policy, the first step involves deciding whether the action causes, or has the potential to cause, harm to others. If the answer is no, then the action is in the self-regarding realm and the government would be unjustified in interfering. Indeed, in that case the government has a duty to protect the individual’s freedom of action against interference from others as well. If, however, the answer to the initial query is yes, then different considerations arise. We are then in a world in which harm is being committed willy-nilly, and the question is: What, if anything, should the government do about it? In this regard, a more accurate summation of the harm principle than the more famous formulation already quoted [is]: ‘As soon as any part of a person’s conduct affects prejudicially the interests of others, society has jurisdiction over it, and the question whether the general welfare will or will not be promoted by interfering with it becomes open to discussion. But there is no room for entertaining any such discussion when a person’s conduct affects the interests of no persons besides himself.’” (Shapiro, The Moral Foundations of Politics p.61).

So this is where the "Progressive" part of Progressive Liberty comes in. As Shapiro states, society has jurisdiction over a person's conduct when that conduct prejudicially affects, or harms, the interests of others. In this case it is open to discussion through the democratic process whether the common good will be promoted by regulating the individual's conduct (liberty). Through progressive legislation, then, the society strikes a balance.

It is important to re-emphasize Shapiro's point, however, that short of the point at which a person's conduct affects the interests of no persons besides himself , "there is no room for entertaining [memorializing into law] any such discussion." "Liberty" prevails and the individual's autonomy cannot be touched by government.

This last point is crucial, in light of government's unceasing, inexorable, and perhaps-inevitable tendency to interfere inappropriately in individual conduct. (I propose a judicial standard of review to address and counteract this overreaching tendency of government in a 2007 article in the Louisiana Law Review entitled "Government as Liberty's Servant: The 'Reasonable Time, Place and Manner' Standard of Review for All Government Restrictions on Liberty Interests").