The Independent Institute
What is the proper role for government in society? Traditionally, things considered important have been presumed to be a government concern. But what are the limits to this public sphere? Should government be limited to protecting individual rights, such as the right to private property, under a uniform rule of law? Or should government have a broad scope, including such tasks as regulation of advertising, firearms control, warning about the dangers of alcohol and tobacco, and providing universal health care?
Table of Contents
Should Government Power Be Unlimited?
For more than a century, Americans have expanded their conception of the accepted bounds of the public sector, the realm of political decision-making and coercive governmental action. Today, the public sector effectively comprises virtually every concern of every group large or vocal enough to attract attention. Politicians evaluate the various proposals according to whether supporting them will advance their interests and elicit approval by the electorate, and policy analysts evaluate such programs according to calculations of aggregate costs and benefits. In his carefully argued new book, Private Rights and Public Illusions, Tibor R. Machan (Professor of Philosophy, Chapman University) rejects both types of appraisal, because neither recognizes the need for moral values in the treatment of individuals in society. Machan brilliantly demonstrates that our political and legal institutions must rest upon an unshakable moral foundation rooted in the Jeffersonian tradition of individual human rights. Any other approach necessarily produces a society of predation by some against others, where moral values are sacrificed for the benefit of a special governing class and their constituents.
But much more than a philosophical inquiry, Private Rights and Public Illusions is a searching examination of the welfare state, business regulation and deregulation, professional ethics, occupational health and safety codes, pollution controls, advertising, labor policy, and other aspects of modern political economy. Especially pernicious, for example, is preventive legislation that restricts the liberty of innocent citizens in order to prevent some possible harm. Because the precautions are forcibly imposed on citizens, human dignity and public morality are undermined. By imposing prior restraint, governmental paternalism supplants self-responsibility. Citizens are controlled by the state as if they were incapable of leading successful moral lives.
A good legal system, says Machan, prevents all unjustified violence or coercion (aggression against non-aggressive persons). It thereby provides an individual with the opportunity to exercise his choice-making capacity and leaves the responsibility for achieving success to that person. Because no one may be forced to serve as a means for the attainment of another person s ends, individuals must be free to make their choices of peaceful conduct.
The ethical foundation that underlies such a legal system is individualism, or ethical egoism. Although incorrectly considered amoral and heartless by some, in reality this ethical system establishes a firm standard for human dignityan unwavering public morality that protects and supports every person s natural rights to life, liberty, and the pursuit of happiness. Unlike the positive or welfare rights often proclaimed nowadays, these negative rights can be exercised simultaneously and harmoniously by every member of a society, better promoting social cooperation, economic productivity and individual flourishing. A major theme of Private Rights and Public Illusions is that there is nothing noble or morally worthwhile in forced giving.
The U.S. Constitution and the Declaration of Independence, with its parallels to the phrases of John Locke, stress individual rights. But the common law, which retained the medieval notion of the police powers of the sovereign, expressed the paternalistic idea of the supremacy of government. Thus, our legal heritage contains conflicting elements. To our detriment, the paternalistic, morally indefensible aspects of this tradition are becoming increasingly embodied in government bureaucracy at the expense of the morally defensible, classical liberal tradition.
Machan examines three contemporary arguments favoring government paternalism and regulation. The first, associated with the philosopher Gregory Vlastos, denies the existence of any absolute or natural human rights to liberty and maintains that there exist competing rights to happiness that in special circumstances may take precedence. Relying on this idea, one may urge, for example, that wealth be redistributed from the affluent to the needy. But what circumstances qualify as special and thereby justify such forced redistribution? The theory offers no clear answer. The mere feeling of dismay and concern for the needy will not make such taking a morally good thing, Machan argues. There must instead be a sound moral foundation for such action.
Another argument, expounded by the philosopher Alan Gewirth, defends what has been called the supportive state by positing that all persons possess rights to freedom and to well-being. This argument fails, says Machan, because it does not distinguish between values only others can produce for usfor example, negative freedom, or their abstaining from intruding upon usand values that almost all adult persons may be expected to produce for themselves, such as food and shelter, even if sometimes with great difficulty. To claim a right to well-being is to impose burdens on others who are innocent of any wrongdoing toward the claimant and thereby to treat one moral agent as an instrument for carrying out anothers purposes.
A third argument, popularized by the philosopher John Rawls, holds that one has a right only if the exercise of that right improves the lot of the worst off in society. This argument places great weight on mere happenstance, supposing that both the successful and the unsuccessful have little control over their conditions. It denies that differences of outcome may result from meritorious differences of effort and acquired skill. Yet, having denied that we can earn moral credit through successful efforts, it then exhorts us to earn moral credit by achieving the Rawlsian conception of justice. By both denying and affirming that we have moral responsibilities the fulfillment of which makes us deserving of certain rewards, this argument collapses in self-contradiction.
None of the theories employed to justify the coercive redistribution of wealth can withstand criticism. In Machans words, there is no justification for the government of all of the people to become an essentially private collection and dispersal agent for a select group. To provide the conditions in which diverse people can lead successful lives, that is, the conditions under which each can do the best that is possible given his own attributes and circumstances, a society needs not welfare legislation and governmental regulation but the equal protection of all citizens from those who would violate another s natural rights.
In our time, the deprivation of natural rights often receives approval because it has been allegedly validated through democratic processes. But since no public election has been contracted for, no such election can justify the denial of basic human rights. In contrast, elections of members in an organization or shareholders or partners in a firm is contracted among the parties involved and hence binding. Certain decisions may be popular but not morally permissible. As aptly expressed by the Declaration of Independence, rights to life, liberty, and the pursuit of happiness are not alienable. Although an election may, directly or indirectly, appear to sanction the destruction of such rights, all persons continue to possess them equally. Natural rights are not granted, and hence are not revocable by society or polity. Each person therefore retains his natural rights even when the legal authorities disregard them. The legality of slavery in eighteenth-century America, for example, in no way effaced its immorality, that is, its violation of natural rights.
Do Our Public Policies Have Firm Moral Foundations?
Having clearly expounded and defended the foundations for natural rights, Machan then examines a variety of contemporary public policies in the light of such ideas. Firstly, Machan maintains that one cannot easily distinguish civil liberties and economic liberties, and he defends the concept of substantive due process. Noting how the Commerce Clause of the Constitution has been employed to justify virtually all sorts of economic intervention, he indicates that repeal of this clause ought to be considered. While economists and policy makers generally base their judgments on calculations of or guesses about overall public welfare, defenses of business regulation always have a normative as well as a positive aspect. Usually the value of liberty and the moral rights of individuals receive little or no weight. Consequently, public policies routinely result in the violation of the natural rights of the citizens.
Although many have claimed that a laissez-faire society results in a harsh outcome for all but the captains of industry, this supposition does not accord well with either philosophical necessity or historical experience. Nothing in principle prevents people in a laissez-faire system from lending a helping hand to the unfortunate or the helpless, and historically, when something approximating the minimal state existed, many such hands reached out and established the most effective systems to aid the disadvantaged. Clearly, the record of the political coercion of welfare statism is dubious at best. People do not fall into widely separated classes of winners and losers; rather, they occupy a long continuum of outcomes, with most in the great middle, and many individuals are constantly changing their places in the array. Although today few commentators have the courage to say so, some [people] are careless, negligent, lazy, slothful, overcome with a greed that sabotages their prudence, or otherwise victims of their own character flaws. Not everyone has a valid claim to our compassion, and, in any event, forced compassion is counterfeit morality.
Machan disputes not only the philosophical arguments in favor of the welfare state but also the attempts to base it on aggregate cost-benefit calculations. The idea of the worth and rights of the individual, he writes, simply cannot find a place in the standard utilitarian cost-benefit analysis favored by many economists. Each person has his or her unique value not reducible to the preferences of others, a value that will not show up in a cost-benefit calculation. Even if a valid aggregation of individual utilities were possible, it would be wrong to override any individuals natural rights in order to carry out a project whose aggregate benefits allegedly exceeded its aggregate costs. The concepts of morality and justice must always trump those of imposed utility.
Virtually all government regulation of business violates the natural rights of citizens. Not even popular regulations such as those of the Food and Drug Administration can be justified. Why should anyone make the decision for others as to what kind of risks they may assume? The conclusion reached in Private Rights and Public Illusions is simple and clear: Government regulatory activities are wrong, improper, indeed immoral. They injure persons in their capacities as members of certain industries, professions and commercial associations by making them bear burdens even though they have done nothing wrong. Moreover, regulations are inherently redistributive of wealth and counter-productive as they cartellize markets, drive up costs, foster discrimination and impoverish the disadvantagedhardly a morally desirable end state.
Machans ethical evaluation leads him to oppose the licensing of professionals as another form of prior restraint; to regard the Occupational Health and Safety Administration as not merely a nuisance to business or an inefficient form of regulation but as morally unjustified and deserving of abolition; and to condemn currently enforced anti-pollution regulations, for which he would substitute a standard of strict liability adjudicated in the courts. The free market capitalist approach . . . to problems with the environment and ecology, he concludes, often yields stricter measures than those championed by most environmentalists.
Machan opposes placing any requirement on advertisers except that they not be fraudulent, for insisting that they tell the whole truth implies the improper ethical view that one should devote himself to bettering the lot of others. He further shows that commercial speech deserves as much civil liberties and property rights protection as any other speech.
Finally, in an extensive investigation of national labor policy, he finds that the Wagner Act and its amendments all constitute an intrusion into the free contractual agreements between market agents. Moreover, these laws, which are exercises of the national police power justified on collectivist utilitarian grounds, have created far more problems for employees, employers, and the general public than they have solved.
In Private Rights and Public Illusions, Tibor Machan has carefully examined the morality of a wide range of contemporary government policies and found them unacceptable on ethical groundsguilty of violating natural human rights. Anyone who recognizes the unavoidable moral aspect of policy-making should carefully read and ponder the arguments of this powerful and provocative new book.
In Private Rights & Public Illusions, Tibor Machan constructs the best moral and philosophical case for deregulation and small government I have ever read.
Tibor Machan is a Research Fellow at The Independent Institute and Professor of Philosophy at Chapman University.