Mr. Vivek Punia
This article explores the idea of ‘self-ownership’, the extent to which an individual can have autonomy over his mind, body and resources and the justifications given for taking away a portion of such liberty.
Robert Nozick summed up the libertarian opposition to distributive justice in his book Anarchy, State and Utopia[i] by stating that individuals have “rights so strong and far reaching, they raise the question of what, if anything, the state may do”. He then states that “only a minimal state, limited to enforcing contracts and protecting people against force, theft, and fraud, is justified. Any more extensive state violates persons’ rights not to be forced to do certain things, and is unjustified”.
Libertarianism found expression in 1980s with the leading libertarian economist Milton Friedman serving as advisor to Republican President Ronald Reagan and Conservative British Prime Minister Margaret Thatcher. This approach opposes (i) moral legislations which impose notions of virtue; (ii) redistribution of income or wealth as that infringes upon individual liberty; and (iii) paternalistic legislations by the state which dictate what risks individuals can take with their bodies and lives. Right-wing liberalism and Neo-liberalism support laissez-faire economic policies and absolute freedom in entering into contracts with respect to one’s body and resources till the time it does not adversely affect any third party. These arguments find regular expression in the behaviour of citizens through tax evasion, never ending debates on the decriminalisation of homosexuality and abortion and are centred around a single query: how much of ourselves do we own?
THE JUSTIFICATIONS FOR PARTING WITH LIBERTY
The right of the state to ‘own us’ or to regulate our behaviour can be traced back to a hypothetical conscious decision that all citizens took, in the words of Thomas Hobbes, a decision to enter into a “social contract” thereby agreeing to forego with a part of our liberty in exchange for protection of our body and property. Parting with a portion of liberty is also justified on the ground of distributive justice, i.e. working towards an egalitarian society which is imbibed with the notions of virtue and morality which the ‘State’ or majority considers to be a part of its unique identity and essential for its survival. The State guarantees life and liberty, but with certain restrictions, which the State can impose in accordance with its notions of what it considers morally permissible and justified for the well being for the majority of its citizens.
THE OPPOSING ARGUMENTS
Let’s analyse the opposing arguments with respect to three major points on which both sides differ:
(i) Redistribution of income or wealth: The libertarians argue that taxing in accordance with one’s wealth so that the same can be used to support and uplift those living in penury is against all notions of free will. Libertarians stand for absolute freedom in one’s decision making with respect to what one wants to do with his resources. Robert Nozick in Anarchy, State and Utopia while agreeing with this approach imposes two qualification, first, there is no illegality in the initial holdings (your resources are not illegally acquired) and second, the exchange of such resources takes place legally in a free market. If these conditions are met, then the state has no power to force you to depart with any part of them as that would be infringing upon your liberty. The libertarians argue that wealth is either acquired through birth i a wealthy family or through the use of skills and entrepreneurship in a legal way to gain that position and hence they can do whatever they want to with their resources.
The opposition argues that the argument that if one is born with a silver spoon in his mouth and can do anything that he wants with such spoon, then a beggar born with nothing also did not chose his parents and hence cannot be blamed for his destitution. To reduce the adverse effect that this random lottery of birth produces, the State is justified in taking a proportion of its citizen’s wealth to provide better living conditions for the needy. They argue that if the wealthy somehow end up becoming destitute, then they would expect the same paternal treatment from the State. They argue that utilizing resources for feeding, clothing and providing education to those who need it is more important than spending them on leisurely activities or goods purely made for an ostentatious display of wealth.
The libertarian argument has not found favour with a majority of the population as the income inequality and wealth distribution continues to rise. The positive effects that a progressive tax system can have on the social and economic conditions of a country can be seen in action in the Nordic countries (Norway, Denmark, Sweden and Finland) where the welfare model involves significantly higher direct and indirect tax rates which are spent on infrastructure, healthcare, education and various social schemes such as the Unemployment pension schemes, Social assistance plans and Family assistance scheme which have resulted in significantly lower income and economic inequality.
(ii) Moral legislations which impose notions of virtue: Libertarians oppose the imposition of majority’s views on the minority who oppose it. The debate on legalising homosexuality and same sex marriage has been raging on for decades and the Libertarians argue that one’s sexuality is an individual’s choice and till the time the act in consensual, the State cannot impose notions of morality in accordance with the convictions of the majority who have nothing to gain or lose out of the sexual preference of any other citizen. Another major bone of contention is the legal status of prostitution. Libertarians argue that till the time prostitution takes place between two consenting adults and no third parties are harmed, the State has no business in terming it as immoral.
The arguments against moral legislations are generally based on religion. In many countries where Christianity and Islam are the dominant religion, legalising homosexuality is opposed on the ground that their religious texts term the act as “sinful” or “punishable”.
The notions of virtue and morality that were imposed on the population before the advent of democracy were meant to extract obedience out of the public by inducing the fear of sacrilege and divine punishment in order for the aristocracy and religious institutions to obtain and hold onto political power and capture economic resources. With the advent of democracy, advancement in science and constant expansion of liberalism as an economic and social philosophy, the tight control of religious institutions has been withering away.
(iii) Paternalism by the State: Libertarians oppose laws that curtail absolute free will in deciding what an individual wants to do with his body till the time the act does not have an adverse effect on any other individual. For example; if a person wants to drive his motorcycle dangerously on an empty road without wearing a helmet, the State has no business in prescribing the mandatory use of a helmet as the individual can chose to take such risks with his body till the time he does not harm others. Another example would be that of assisted suicide or euthanasia.John Stuart Mil described best this argument in his book ‘On Liberty’[ii] as “Over himself, over his own body and mind, the individual is sovereign.”. Michael J. Sandel in his magnum opus ‘Justice: What’s the right thing to do?’[iii] gives another example of this dilemma between absolute ownership of one’s body and restrictions put on this notion by the State. He argues that if the libertarian logic is to be believed, then an individual should be free to sell his organs even if it means losing one’s life in the process. He gives an example of the libertarian argument which says that if a person living in penury wants to sell one of his kidneys to a person willing to purchase it for the asking price, then there should be no restrictions on this transaction as this simply another form of an agreement to sell and purchase.
The opposition to this argument is based in fact, on the word ‘paternalism’. The opponents argue that the State in fact plays the role of a father who looks after his family and protects them from any unwanted harm irrespective of the fact that the subjects might want to voluntarily undertake this harm. They argue that the ultimate aim of the State is the protection of its citizen’s life, even if it means preventing an individual from harming himself. The ideal of protecting human life is generally based on religious doctrine in which human life/birth is valued infinitely and seen as an opportunity to achieve ‘salvation’ (also known as ‘nirvana’, ‘moksha’ and by other names in various religions). Another argument advanced for this paternal treatment is the belief that all members of a society ideally have to contribute towards the upkeep and advancement of the social fabric, law and order of their society and hence harming one’s body does not in any way contribute towards this objective.
Legalising some form of euthanasia and assisted suicide in some countries across the worlds has given legitimacy to the libertarian argument. The argument in favour of euthanasia and assisted suicide does not necessarily stem from the notion of absolutely owning one’s body but from the argument of compassion and dignity. Assisting terminally ill patients or patients in a permanently vegetative state in terminating their life helps them in expediting their deaths and cutting short their pain and agony. ‘Paternalistic’ laws continue to dominate an individual’s life in any civilized nation as a huge majority of the population still believes in preserving and respecting human life.
THE BALANCING APPROACH
The quest for the answer as to who owns an individual is never ending and the arguments without any conclusion. Ultimately it is seen that the notion of liberty and freedom depends upon the telos that a society sets itself. The telos of the society is inevitably linked to the religious beliefs of the majority of the population. The telos of a society might be to establish the rule of law in accordance with its religious texts which might be incompatible with notions of democracy and freedom of life and liberty as is the case in many Islamic countries. The telos of another society might be to achieve social and economic egalitarianism as is the case in Nordic countries and hence high tax rates might me easily acceptable as that help in redistribution of wealth equally and promote free welfare schemes for education, health, shelter, etc. Telos of a society/nation also goes through change as the culture/socio-political conditions within that society/nation changes with time. Homosexuality was seen as taboo till some decades back. A section of the society even termed it as a mental illness. With the advancement of science and loosening grip that religious institutions hold over the behaviour of the people, homosexuality has been accepted increasingly throughout the world. Since humans are social beings it can be safely concluded that an individual cannot have absolute freedom with what he chooses to do with his resources and body, but the quantum of liberty that he will have to give up will depend on the social, religious, cultural and economic conditions of the society/nation he is a part of.
Mr. Vivek Punia is an associate in the office of Justice G.P. Mittal (retired).
[i] Robert Nozick, Anarchy, State and Utopia, New York, Basic Books, 1974.
[ii] John Stuart Mill, On Liberty, Pengin Books, England, 2006.
[iii] Michael J. Sandel, Justice: What’s the right thing to do?, Penguin Books, England, 2009.