Debate: Legislation vs Individual Freedom

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Should the state have a substantial role in the lives of its citizens?

Background and context

This debate may focus on a few specific cases where the boundary between public and private life is unclear, or it may act as a theme within another topic. As a general reference point this question is vital in any social policy debate, often national, but also in some instances with reference to supranational bodies. It is vital to draw a distinction between legislation (coercive and enforceable) and advice (counsel), i.e. between denial of the right to do something (take a drug e.g. heroin or cocaine, driving over the speed limit) and warnings about its potential effects (e.g. smoking). This is a dynamic case as the law changes (e.g. wearing seatbelts on coaches has changed from advice to a legal requirement in the UK). Naturally many of the areas are hard to enforce; there are non-governmental or private alternatives; so this topic forces an artificially strong divide between a nanny and a night-watchman state. Or, in the words of John Stuart Mill, the debate focuses on the need for a rule or principle ‘as to what things are fit to be done by a government’, for the alternative is that ‘the interference of government is, with about equal frequency, improperly invoked and improperly condemned’. Some examples are standard to this case: smoking, drug consumption, and age restrictions on drinking. But these can be widened to include new ones where the actions of one party may have an impact on a third-party, or on the person themselves in the long run: pollution, or censorship of films and books (theatre censorship only ended in the last century). Law will vary internationally with regard to the free expression of opinion: for example, Holocaust denial is a crime in Germany. John Stuart Mill’s On Liberty is bound to be discussed in this debate; as a short text, it is worth reading carefully. Mill distinguishes between sovereignty over mind and body, calling for greater freedom of thought than freedom of action. However, this is not on the grounds of pur

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Argument #1

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Yes

It is part of human nature to be curious, but this is not a licence for free self-abuse by people at long-term cost to themselves. The state has the positive duty, as well as the right, to protect its citizens.

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No

Denial of the right to try is an infringement of the basic human right to act - a fundamental human right, as it fulfils our nature, which has the innate potential to choose.

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Argument #2

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Yes

Freedom of thought, and broadening of mental horizons, are still possible without harm to others or to oneself, for example via literature. Relativism has devalued the hierarchy of choice so that libertarian freedom is all that is currently valued; not every opinion is equally acceptable.

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No

Denial of freedom of actions is also denial of freedom of belief and thought; whereas the right to choose creates an innovative culture of mental liberty in which enquiry is encouraged. It is only through the clash of opinions and choices, even false ones, that progress is made.

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Argument #3

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Yes

To argue that the individual is ‘only harming themselves’ is specious. There are always potential side-effects on others, for emotional distress is caused even when physical harm is (apparently) absent. People have a duty of care to their society, and not just to themselves.

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No

The first duty is of society to the individuals that make it up. There may be a need for the state to intervene when the rights of two individuals clash, but this need not be by pre-emptive legislation - ex post facto (after the event) legal remedies are a better solution, if harm has been caused.

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Argument #4

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Yes

Governments have a higher duty to their citizens than merely minimal laissez-faire protection of negative or perfect rights. The development and protection of the individual are also vital to social welfare, by enforcement of imperfect obligations. In particular, citizens should be restrained from actions that are potentially harmful and irreversible because they undermine their capacity to choose freely in future, e.g. addictive activities such as drug-taking and smoking, boxing with its potential for brain damage.

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No

Governments are elected to provide minimal assurances of law and defence, but beyond that a heavy burden of proof must rest with the proposition in each instance of intervention - privacy should be maintained as far as possible.

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Argument #5

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Yes

Individuals do not have the information available to them that professionals can give to the government - either through time, imperfect communication or publicity, or by inclination. There is no second chance with regard to self-harm - governments must educate their citizens, particularly younger ones.

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No

Individuals are more likely to take advice (as opposed to mere denial) with regard to dangerous activities if professionals, or a friend rather than the state, warns them of the risk. It is the responsibility of families to protect their children. The proposition’s case is the elitism of those who know better - but better does not necessarily mean intervention is justified.

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Argument #6

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Yes

Laws may be repealed over time when social pressure demands it; but the tyranny of the majority should not be accepted. The state must take a lead in defining social praxis.

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No

What is currently considered socially acceptable is continually changing, and legislation by its very nature drags behind this.

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Argument #7

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Yes

The law provides a case for a remedy, for example in the case of pollution - many individuals will be deterred from an action by the fact that a law exists against it.

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No

Such legislation is absurdly difficult to enforce, so time and money will be wasted passing and enforcing it.

Motions:

• This House believes that government is so good, everyone should be made to have more of it
• This House loves the long arm of the law
• This house wants nanny now!

In legislation, policy, and the real world:

See also

External links and resources:

• Center for Policy Studies
• US Civil Liberties Union
• Liberty UK
• Transnational Radical Party
• Libertarian Alliance
• The Artists Alliance
• FOREST
• ASH

Books:

• On Liberty and Other Writings : John Stuart Mill
• Political Innovation and Conceptual Change : T. Ball
• Regulation, Crime and Freedom (Collected Essays in Law) : J. Braithwaite
• Wilful Liberalism: Voluntarism and Individuality in Political Theory and Practice : R.E. Flathman