Three Approaches to Defending Liberty

A standard argument for government regulation or prohibition of private sector activities runs as follows: Individuals or businesses are doing something harmful and/or immoral. Therefore, the government must step in and ban it, or at least regulate to restrict it. A standard libertarian response (also sometimes used by liberals) is that, in a free society, people often have a “right to do wrong.” Maybe it’s wrong to engage in racist speech. But the government should not enact hate speech laws because even evil racists have a right to self-expression. My GMU colleague Bryan Caplan points out that this is often not the only or the best strategy for defending liberty:

Libertarians often highlight “the right to do wrong.” We are often morally obliged to tolerate the wicked and foolish behavior of others….

Fruitful as this insight is, however, it is often superfluous. If a law forbids actions that are good, or persecutes beliefs that are true, critics might as well start attacking the law by defending the merit of the violations. If the law persecutes creationists, it makes sense to appeal to freedom of belief. If the law persecutes evolutionists, on the other hand, it makes more sense to make the alibertarian argument that evolution is true.

Lately I’ve been reading the classic arguments in favor of regulation of reproductive technology. They usually take the rights-based position as their main foil. They’ll propose a ban on human cloning for the greater good, and libertarians will object, “You’re violating human rights.” On reflection, though, defenders of reproductive laissez-faire can do a lot better. Artificial insemination, in vitro fertilization, surrogacy, and yes, cloning deserve an affirmative defense. Here’s an outline:

1. Creating new human life is almost always good.

2. Voluntary exchange is mutually beneficial for the participants.

3. Third parties are also better off, at least on average.

When Leon Kass proposes a ban on human cloning, for example, the most obvious reply is, “Cloning creates human life. What kind of a monster would want to stop that?” When feminists say it’s “exploitation” to hire surrogates from the Third World, the obvious reply is, “The women we hire earn money that they need to buy extra food for their families.”

As Bryan emphasizes, many of the targets of government regulation can be defended on the grounds that their effects are on balance good. I adopted this strategy in my rebuttal to the standard claim that we must ban organ markets in order to prevent “exploitation” of the poor. I argued that organ markets actually benefit poor sellers, and that in any case the beneficial effect of saving thousands of lives greatly outweighs any possible harm caused by exploitation. This consequentialist argument against regulation is sometimes stronger than the “right to do wrong” argument because it requires less in the way of agreement on fundamental principles of morality.

There is also a third strategy of arguing in favor of liberty: pointing out that even if the activity we propose to ban is indeed harmful or immoral, government regulation and prohibition is likely to cause greater harm and immorality. Government power has systematic flaws that severely limit its ability to improve social outcomes relative to the private sector. This type of argument is, in my view, the strongest case against the War on Drugs. Using illegal drugs is often bad for your health and many people believe that it is immoral. But prohibition causes much greater harm and immorality by undermining the War on Terror, weakening family values, stimulating corruption and organized crime, and destabilizing societies such as Colombia and Mexico. Focusing on the flaws of government action is often a better argument for liberty than either of the others, because it doesn’t require either moral consensus on values or proof that the targeted activity actually has beneficial effects. Often, such arguments show that government action will make things worse even in terms of the regulators’ own professed values. For example, many of the advocates of drug prohibition are conservatives who care intensely about fighting terrorism and promoting family values.

None of the three pro-liberty arguments necessarily prove that regulation and prohibition are always undesirable. But defenders of liberty should consider all three, and should avoid relying too much on the traditional “right to do wrong” approach. For their part, advocates of regulation and prohibition should take note of all three as well, and avoid the standard fallacy of assuming that the case for government action has been established merely by proving that some private sector activity is harmful or immoral.

UPDATE: The original version of this post was probably overly ambiguous as to whether I am arguing that the second and third approaches to defending liberty are logically superior to the “right to do wrong” argument, or merely that they are more likely to persuade skeptics. So let me point out that I believe that both are often true: the two alternatives to the right to do wrong claim are often (though by no means always) both more logically sound and more likely to persuade.