Freedom, Government and Rights
Arguments about freedoms, state legitimacy and rights are very common, so knowing how to make
them well and respond to them effectively is important. While last week dealt with some strategic tips
for getting value frameworks accepted without huge amounts of analysis, this week focuses on some
useful standard analysis that can be used and then applied in differing circumstances.
Contents:
Preamble: Rule Utilitarianism
1. Individual Freedom
a. Why is freedom valuable?
i. Objective Value
ii. Knowledge of value
b. How to question the value of freedom
i. Irresponsibility
ii. Probabilistic Claims
iii. External Effects
c. Conclusion
2. What should the state do?
a. How to argue that a state should not act
b. How to demonstrate the state’s capability to act
i. Social Contract
ii. Continuing Benefit (or: “You Didn’t Build That”)
iii. Moral Arbitrariness
iv. An important note on the above arguments
3. Should the State Grant Rights?
a. General Justification of Rights
b. Responding to Rights Arguments
c. Rights Discussion
Preamble: Rule Utilitarianism
As we discussed last week, utilitarianism is a moral framework that judges the worthiness of an action
on the basis of whether it advances overall utility.
Rule utilitarianism is similar; it too aims for the maximum amount of utility. It differs in saying that,
sometimes, this is best achieved by following a specific rule rather than making a case by case
assessment. For example, we might generally feel it is wrong to punish the innocent for crimes they
did not commit. However, there may be individual circumstances where it would be beneficial – for
example to act as a strong deterrent to others. An act utilitarian might claim this was acceptable. A
rule utilitarian would argue that a world where the rule “the innocent should not be punished” would
be preferable to a world where the innocent could be punished. There are several ways to justify this:
- Incapable or Biased Assessor – the person making the assessment on a case-by-case basis
when deciding what to do may be incapable of making the decision (perhaps having
inadequate or asymmetric information). They may also be biased, believe that they should be
exceptions to a rule, and prefer to advance their own interests.
- Reliance on the rule – the existence of a rule may allow people to predict how a
Government will act, which can help them plan their behaviour and may be comforting.
- Mutual protection of rights – it might be that it would be beneficial for a majority to deny a
minority a certain right. However, if this was possible, a differently constituted majority may
deny a differently constituted minority you are part of a similar right. By ensuring the rights
apply to everyone, the possibility of this situation is limited and groups are protected.
1. Individual Freedom
“Freedom” is a word with such overwhelmingly positive connotations that it is rare to see a
justification of it as a value. There are some debates where justifying individual freedom is vital for
one side; for example, THW allow consensual cannibalism, or THW legalise euthanasia. How then can
we justify things such as this, which may seem counterintuitive, by using arguments about freedom?
a. Why is freedom valuable?
The simplest justification of freedom is that people value things differently. This is simple to argue; if
someone makes a claim about something like consensual cannibalism being ‘objectively bad’, the
following two responses are relevant:
i.
Objective Value
First, that value is never objective. Consider your family photographs; they are probably of significant
value to you, but may be of limited value to somebody who doesn’t know you or your family. Or, in
the euthanasia debate, if it is argued that the end of a life is always wrong, you can argue that the
only value life can have is subjective; each person will value their continued life differently.
ii.
Knowledge of Value
Secondly, you can argue that the only person who knows what is valuable to them is that individual.
As you are the only person who experiences your life, only you can tell what you do and do not value.
Similarly, no other individual can calculate risks for you. For example, if arguing “THW Legalise
Duelling”, you can argue that nobody but you knows how much you value your health against how
much you value a glorious death. As another individual or Government can’t assess these values, you
can argue they should leave this to the individual.
A note on making this argument; it’s probably a good idea in your speech to justify why a certain
thing might be valuable (or not valuable), and to then tell the judge that because it’s possibly
valuable to some people and we don’t know how valuable, we should allow individuals to decide. For
example, in the debate about duelling, you might want to give some reasons about why a glorious
death might be valuable (the most awesome argument ever), some reasons why life or health might
not be valuable, and then claim that as it’s a complicated area, individuals should choose.
If you are trying to link this claim to Governmental action, you can add that it is hard for the
Government to assess people’s values. For example, if they act on the basis of people’s stated
preferences, people have an incentive to overstate their desires, so any measurement is inherently
biased. For example, if the Government decided to choose whether or not to legalise gay marriage by
asking how much people did or didn’t want it, everyone asked has a huge incentive to say that it’s the
most important issue in the world to them. Furthermore, revealed preferences (where you determine
value by seeing how much people tend to spend on it now) is only descriptive and doesn’t tell you
how those values may change over time – or possibly even be influenced by the policy.
b. How to question the value of freedom?
While freedom is generally seen as a good, we can see from the motions suggested above and the
bans on things like drugs that we do limit it frequently. Why is this?
i.
Irresponsibility
If a team argues that people should be absolutely free, you can respond by arguing that it is possible
that an individual may not be best placed to make decisions about themselves, and that we should
allow the state to take over. This can be justified on the basis that a person is not fully aware of all
the risks or consequences of the action discussed. When arguing this, you should explain a) what the
risks or consequences are, and why this is a problem (i.e. why the risks and consequences matter),
b) explain why individuals are not fully aware of these, and c) explain why a Government is a better
actor (perhaps probabilistically, using the claim discussed at ii. below) than the individual.
A good example that shows that freedom cannot be an absolute is children; no team will agree that a
child should be free to take drugs. So you can show that in principle we can limit freedom where the
risks and consequences of an action are better understood by Governments; now we just need to
show that this is true in the motion being discussed.
ii.
Probabilistic Claims
We can reinforce the above argument by observing that even if there are some individuals who can
make a decision adequately with full understanding of the consequences, laws have to operate on a
probabilistic basis. For instance, in some cases, theft may be justifiable – perhaps taking a pen from a
bank to save the time and effort it takes in acquiring one at minimal cost to the bank. It is still
obviously preferable to have laws against theft.
This can be applied to individual liberty. So, with drugs, it may be that some people take drugs fully
understanding the consequences and risks of their actions. However, others may not - so the
restriction can be justified on the basis that it protects the majority. As the majority may not have
thought about it or do not know the risks (because of imperfect information), we cannot say they
have meaningfully consented to the harms of drug taking.
Note that this is an applied form of rule utilitarianism; we say that drug takers are generally poor
assessors of whether or not drug taking is good. They often lack information about the harms of drug
taking. Furthermore, they are often biased, believing that they are better capable of controlling
themselves on drugs and better capable of avoiding addiction. So it is preferable to have a rule
banning drug taking.
iii.
External Effects
Lastly, we can argue that freedom of the individual should be limited for the good of society. The
choice may benefit an individual, but that choice may cause harms to others (sometimes known as
externalities) who do not consent to the harm, and are not compensated for it. So, in the example of
drugs, the drug taking of an individual may make the area unsafe (either by making the drug-taker
unsafe to others, or by attracting criminals to the area). We can see this principle in play in large
numbers of Government policies, from laws against violent crime to limits on pollution.
c. Conclusion
As we can see from the above, arguments for absolute liberty can be easily defeated. However,
arguments that freedom is valuable can be effective in their qualified form; that, in certain
circumstances, individuals have a better understanding of their preferences from a Government and
so allowing individuals to express their preference may maximise overall utility.
2. What Should the State Do?
The question of when a state can take away the liberties of its citizens is often important in debates.
Additionally, judges frequently have strong intuitions that certain liberties are important; in such
cases, the analysis below needs to be robust to overcome those intuitions.
a. How to argue that a state should not act
Note that the approaches in this section should only be argued where the consequences of the policy
in individual situations appear to be good. If that is not the case, it is best to argue against state
action by saying that it will make people poorer / less happy etc. However, if making an argument
that even though a policy might increase utility in some situations, it should still not be followed, the
arguments below can be used.
Firstly, the argument made at the start of this worksheet about freedom is often a useful starting
point. State action will inevitably leave individuals with a narrower range of choices, and therefore
potentially limit their ability to make the choice that best advances their interests. This is a useful
framing device to show that when states can’t guarantee they have a proper understanding it’s
populace’s values, it may limit their ability to make optimal choices.
Secondly, a claim can be made that some limits on freedom, such as taxation, might amount to
something equivalent to theft. You can argue this by saying that labour is the essence of a person’s
efforts, and as it is an aspect of themselves, to take this away from them amounts to taking a part of
another person; it is occasionally compared glibly to slavery. This is a weak argument for the reasons
set out below; I do not encourage you to make it and it is only here for reference.
Thirdly, teams sometimes claim that to do anything that uses some aspect of an individual or their
happiness amounts to instrumentalisation (i.e. use) of them, and that is illegitimate. For example, a
mandatory organ donation policy might be said to instrumentalise an individual, as it treats them as a
means to an end rather than an end in itself. You can argue that this is a problem as it denies that
person from being considered as important in some way.
This argument too is subject to the criticisms below. Additionally, it can be observed that often the
alternative in the debate instrumentalises another group to the extent that it fails to maximise their
interests.
Finally, the most nuanced argument arguing that state action is illegitimate. This argument considers
the word “illegitimate” to mean “a policy the state should never consider or use”, or another common
formulation, “not part of the toolbox of Government.” It is therefore a rule utilitarian argument that
argues the world would be a better place if a rule was adopted whereby the Government never used
the policy.
The argument can be made using the criticisms discussed in the preamble; arguing that the assessor
lacks information, is biased, or that being able to rely on the rule would be helpful. So, for example:
-
In a debate about restricting Freedom of Speech, you can argue that it is illegitimate to
restrict Freedom of Speech should because the Government usually cannot tell if the idea
is a good or a bad one (especially before it hears it) and it may be biased against ideas it
strongly disagrees with. Furthermore, the citizenry may rely on the idea of absolute free
speech; it may foster an open attitude to ideas and politics, and provide security to know
that their ideas will not be silenced.
-
In a debate about sanctions, you might argue that sanctions are illegitimate because a
Government can almost never tell if they are to be effective, the need for some sort of
action may bias Governments in favour of acting, and a policy of never using them
fosters a friendlier international community. You’d probably still lose, though.
b. How to demonstrate the state’s capability to act
If any of the above arguments are or might be run strongly, it is worth justifying, at least briefly, the
legitimacy of a Government policy. This can be done in the following ways.
i.
Social Contract
Warning: Social contract arguments used to be quite fashionable but are now very unpopular. I hate
them, and find them incredibly unsatisfying. However, it you analyse it a bit, teams can get bogged
down trying to respond to it.
The starting point for this argument is to consider a state of nature (i.e. a world without a
government) where there is a war of all against all, and life is nasty, brutish and short. We have
therefore contracted with a sovereign power (a Government) to remove us from the state of nature,
and so we submit to its rules to benefit from the improvements in our lives. Therefore, the
impositions are voluntary and legitimate.
The problem with this is apparent; the extent to which this can be described as consent is limited. If
the state of nature is so bad, then we don’t really have a choice. And realistically, we never agreed to
live in our country, we were just born here.
Furthermore, it’s unclear that we can meaningfully ‘opt-out’ of Government. Nowhere in the world
has absolutely no laws, and so we have no realistic alternative.
Lastly, remember that the comparative in a debate is never “state of nature” versus “government” –
it’s the distinction between two slightly different forms of government.
ii.
Continuing Benefit (or: “You didn’t build that”)
This argument, however, is very powerful.
You can start by observing that rights don’t exist outside the state; the state is necessary to facilitate
rights such as freedom of speech, and other liberty-maximising institutions. Furthermore, the state
has a significant role in the success of individuals; they build the roads that get goods to factories and
employees to work, they educate the workforce with public education, and they uphold private
contracts using the force of law. They protect the populace from foreign invasion with an army, and
prevent theft and other crime with a police force. More broadly, they create other rights-giving and
enterprise-advancing institutions; they protect property, print money and uphold a system where
both are considered valuable and you can rely on money being accepted in exchange for goods and
services instead of bartering. Lastly, they uphold a constitution that gives the citizenship some rights.
So, you can show that something like tax is not theft; property rights are defined and upheld by the
state. All taxation does is changes what it means to hold property. Property is an institution made up
by the state to advance the interests of society. If you have a way of changing the institution (such
as redistributive taxation, flat taxation etc.) that advances the interests of society further, it is a
legitimate and desirable change.
You can try to take this argument one step further. You can argue that where a state creates an
institution that fosters something bad – such as the institution of property advancing inequality – the
state is acting immorally, in that it prefers the interests of some to the interests of others. Therefore,
the most moral action is to make the institution benefit everyone (using whatever practical steps are
necessary to do so).
iii.
Moral Arbitrariness
This argument can stand on its own, but may also work as a piece of the previous argument.
It can be argued that individuals have no moral claim to their talents; that is, all their talents and
abilities are a product either of their genes or their social circumstances. That is even true of an
invidivual’s desire to work hard. But because a person cannot claim to have “earnt” these talents,
they cannot claim to deserve them. Therefore they cannot claim that you deserve a system that
rewards you on the basis of those talents either.
It may also be helpful to observe that whether or not a skill is considered valuable is determined by
both the state and social experience; there’s nothing inherently valuable about being very good at
hitting a cork ball with a willow bat, that skill’s value is socially defined. And yet, it is a skill that is
highly rewarded (in some places).
This argument allows you to get past the idea of individual liberty and argue for some highly
redistributive policies that may conflict with individual liberty.
iv.
An important note on the above arguments
While the above arguments give you framework to argue that a policy may be beneficial, they don’t
demonstrate that a policy is in fact beneficial. So, while it may be true that the able can’t claim to
deserve a system that benefits them, it may be that a system that benefits the most able is the best
system for all members of society. It may even be the case that we should act as though talents
aren’t morally arbitrary so as to incentivise the able to deploy their skills.
Also note that when we describe a skill’s value as being socially defined, we are essentially just saying
“people like it”. The value of Beethoven’s 9th Symphony is socially defined; that doesn’t mean we
shouldn’t incentivise people like Beethoven (i.e. nobody) to write brilliant Symphonies.
Note though that all these framework arguments do is place you in a position to argue about their
practical consequences. I suggest that you learn how to make the framework arguments well, and
then ensure your arguments about practical consequences are detailed and well argued. For example,
while the argument at iii. above allows you to claim that favouring equality is legitimate, it doesn’t
explain why equality is a good thing for all society. That’s something you need to establish separately.
3. Should the state grant rights?
Why is it that the state generally allows people to say what they think? Could it not just judge each
statement case-by-case, and then allow some but not others?
a. General Justification of Rights
Hopefully the preamble and the discussion above has given you some ideas for this. Rights are
generally valuable because they ensure that Governmental power is not abused in situations of
limited knowledge or bias, they provide security and allow people to rely on them, and they reassure
people in a state that their rights would be mutually protected when they are a minority.
So, note that a justification of rights does not only need to explain why the thing being protected is
valuable, but instead why it cannot be advanced by a case-by-case assessment by a Government.
b. Responding to Rights Arguments
As the above implies, to respond to a rights argument you can either argue that the thing being
protected is actually harmful, or, you can claim that the thing is best advanced on a discretionary or
case-by-case basis. This will differ by circumstance.
c. Rights Discussion
Right to Vote
Bodily Autonomy
Free Association
Freedom of Speech
Right to Privacy
Free Religion
Parental Rights
Property Rights
Right against Torture