Machan's Little Libertarian Encyclopedia

[Author's Note: Most of these chapters are very brief and thus mainly suggestive pieces, so if there are any questions, objections or other responses, please do not hesitate to air them with me.]

Introduction

It will help us defend libertarianism if we have a clear enough idea of what it is. As with all normative theories, libertarianism has several versions, even though the tenets of the political position are not very complicated to lay out. I have gone over the following lines with several other libertarian political theorists and have not found major objections voiced against it.

Libertarians uphold the sovereignty of each adult individual in social life. They distinguish themselves in the political arena in most western countries from both the Left and the Right because, on the one hand, the Left is inclined primarily to impose restrictions on individuals pertaining to their economic or material actions, while the Right embarks upon imposing on individuals when it comes to their spiritual or mental actions. Both Left and Right enlist government for the purpose of regimenting certain aspects of the individual's life, whereas the libertarian sanctions only those laws or rules that aim at keeping everyone's sovereignty, at protecting individual rights to life, liberty and property.

For example, many conservatives in the USA endorse the war on drugs as well as a closer unity between government and church, bans on prostitution, gambling, pornography and other vices. It is mostly concerning the crafting of people's souls that the Right enlists the government's coercive powers, although since body and soul aren't ever sharply divided, this often involves regulating people's economic activities as well (e.g., when Sunday blue laws prohibit commerce in liquor).[1]

The Left, in turn, wants heavy government regulation of the economy — minimum wage laws, anti-trust crusades, etc.[2] They want progressive taxation and government efforts to equalize and redistribute wealth, not simply protect the integrity of market and other voluntary transactions and interactions. Here, too, a sharp division between the economic and the spiritual is impossible, so the Left is often involved in regimenting people's talking and thinking (e.g., when it supports government bans on hate speech or racial discrimination in commerce) while the Right will often support blue laws to protect people from moral degradation. In the particular area where their philosophical focus is, the Left and Right both want government intrusion. Ayn Rand noted this a long time ago - she suggested, thereby, that metaphysics has a good deal of impact on public policy. (The Right's idealism and the Left's materialism tend to dictate what is to be controlled.)

In non-Western countries and cultures these distinctions aren't so germane. In the context of such societies the libertarian seems almost beyond the pale for considering individual rights the bedrock of justice, given how prevalent groupism — tribalism, ethnic or religious solidarity, nationalism and the like — tends to be.

The libertarian sees the function of the legal system and authorities as, first and foremost, to protect individual rights. In that respect the libertarian is more loyal to the (original) vision of the American republic than are any other political movements afoot now. Republicans, Democrats, Socialists, conservatives, liberals, communitarians, Islamic, Christian, Hindu or other religious fundamentalists and the rest all seek to impose ways of private conduct, often claiming that there does not even exist a sphere of legitimate privacy in human life.

The US Declaration of Independence states, in contrast, that all men are created equal and endowed by their creator with certain unalienable rights, amongst which are life, liberty and the pursuit of happiness. Libertarians believe that they flesh out this document more accurately, consistently and completely than do democrats, republicans, socialists, communist, communitarians or any other political faction in this society. Why? Because if we really do have the right to our lives, for example, then the legal system should protect us against all efforts on the part of either criminals, foreign aggressors or the legal authorities themselves as to how we ought to live. All paternalistic intervention, even for the sake of improving some aspect of our lives, are not tolerable — bans on drug abuse and smoking in private places or regulation of employment. Adults are off limits as far as regimenting their lives, actions and goals is concerned. That is what having an unalienable right to life, liberty and the pursuit of happiness comes to, nothing less. A proper legal order has as its primary goal to protect these rights.

Take the particularly controversial case of the libertarian position that no one has the authority to prevent you from committing or seeking assisted suicide. Now that's fairly radical. Many find it objectionable because they think we either belong to God or to some group and, thus, aren't authorized to decide what happens to us and what should be done about it.

Libertarians hold that one's right to life comes to being the authority to decide what happens to one's life and that if someone who can assist with suicide is invited by one to help, prohibiting it is unacceptable. The right to life, according to libertarianism, means that you, not other people, should be the one who makes decisions about your life, including whether to delegate to someone else who is willing the authority to help with ending it.

Rights are principles identified in the field of political theory that spell out "borders" around us. In order to cross those borders, those inside must provide those outside with permission.

Just consider the right to private property, as we normally understand it. If it is your car, somebody else who wants to use it must ask your permission. You are the one who is to make that decision. If you want to refuse permission you have the authority to do so, others do not. If you wish to sell it, that, too, is up to you and whoever is willing to meet your price.

Similarly, if it is your life, somebody who wants to do something to it must gain your permission — as when you authorize a physician to perform a risky operation or a cabby to drive you to the airport. On the other hand if, for example, you don't want to go into the ring with a world champion boxer who wants to fight you, that, too, is properly up to you, not somebody else.

If you want to smoke, drink, take drugs, climb mountains or go skiing, provided no one's rights are violated by such actions, you need no one's permission. That is what is so fundamental about libertarianism. Individuals are the ones who are sovereign, not the legal authorities and not even the majority of the people.

Sovereign means you rule yourself. Nobody rules you. Sovereignty is that condition under which somebody has the fundamental right to self-governance and others must ask permission before they intrude on this government. The consent of those who are to be governed is necessary before government by others than oneself can commence. That is because their lives are their own, not someone else's — the family's society's, nation's, race's, ethnic group's, gender's or humanity's. Even if you misgovern yourself. If you waste your life away.

People may offer you advice, write editorials directed at you, send you letters, try to talk with you — in short, they may approach you in peaceful ways. But they have no authority to take over the governance of your life.

Even democracy — meaning many, indeed, the bulk of the people — does not void this individual sovereignty. Why should it? After all, the majority is composed of individuals, and if alone they aren't authorized to intrude on your life, together they aren't either. Democracy is a method, mainly, of selecting administrators of various, including governmental, tasks. Or it is a method which can be used to reach decisions if all those affected have agreed to its use, as in the Rotary or Lions Club.

One must authorize — delegate authority to — legal administrators to do certain things. Only then do they acquire proper authority — as opposed to mere power — to do them. If the authority was not given, then the officials lack it and must stay out of your life (educational, commercial, scientific, religious, or anything else) as well as your actions — that is what having the right to liberty means.

I am free in the political sense if I can take various actions without interference by other people. (There are other senses of "freedom" but they are not relevant here.) If I want to pursue a life of productivity, creativity, art, science or education, I may embark on those pursuits and no one may prohibit me from doing so. If others are needed by me for these pursuits, their consent is required. And if I choose not to embark upon such pursuits but, instead, choose to be idle, lazy, imprudent, neglectful toward myself and my best interests, including making contributions to my community, that is also something I have a right to do. I am not to be placed into involuntary servitude to others or to myself. Voluntary association is essential to free men and women.

One reason why so many people cower at certain points from the libertarian position is that they think that when one's freedom is misused then some kind of governmental, forcible interference is justified. So that, for example, you want to pursue a life of laziness, drug addition or debauchery, then they think this may be forcibly prevented. But this is wrong.

The libertarian says that with the authority to run your life goes the risk that you may mismanage your life. It's up to you. Once you reach the age of reason, once you are an adult, once you are no longer in a state of dependence — upon the wisdom, insight or guidance of your parents or guardians — you are in charge of your life and community with others must be voluntary on all sides.

The legal authority within a given jurisdiction is no more than a kind of referee. It's only concerned with maintaining peace and the maximum absence of violence against individual rights, and with no one abridging those rights with impunity. That means that if someone's rights are violated, the culprit at least gets punished for the deed. Neither the legal authorities nor anyone else can always prevent the violation of rights. Just like a referee in a basketball court who cannot always prevent the players from misbehaving. But once they have misbehaved, adverse consequences follow — they must get penalized for it. So similarly, the function of the legal authority, as the libertarian sees it, is to protect against and penalize violators of individual rights.

As adults we all have equal status — not economically, not in terms of our beauty, our background or how nice our parents are but in terms of our rights. "All men are created equal" does not mean that we are created equally wise, smart, wealthy, lucky or beautiful. It means that we are all equally in charge of our lives.

That's why the Declaration of Independence could be used so as to criticize the Constitution of the United States, which tolerated slavery. Because in the Declaration there was no tolerance of slavery. The Declaration was not a political instrument as the Constitution was and still is, wherein a lot of compromises were and are still being made. The Declaration articulated an unblemished vision of a free society. It is to secure our unalienable rights to life, liberty and the pursuit of happiness that government — the agency that administers the law — is established within human communities. It is not established to do anything else. Not to manage a post office, build monuments, run AMTRAK, conduct Aids prevention programs, maintain parks, forests and beaches or undertake the education of children but to secure the basic rights that individuals have.

The question can be raised of course, do people really have these rights? That's the controversial political question. Once we have correctly identified the rights it pretty much follows that the only time that someone may use force, which is what the legal authorities — courts, police, military, bureaucracy — are professionally trained to do, is in defense of those rights. What if those rights are a fiction, a myth?

A lot of the people maintain that the rights spoken of in the Declaration of Independence are contrivances. They argue that human beings do not really have such rights and that they were invented only because they serve certain special class interests. Indeed, almost all college professors construe basic individual rights to life, liberty and property as 18-century myths thought up to serve certain special economic interests. Marxists, especially, think that but even those who are not Marxist have embraced this view. And they hold that in time we will see that these principles of liberty are obsolete, temporary fictions.

When you hear it said that for Cubans socialism may be a sound system, you are hearing political relativism. It says that for certain people, related to their special historical situation or particular economic or technological development, it is okay for some dictator like Fidel Castro to basically run their lives. They are not intelligent enough, or developed enough, or wise enough yet to be self-governed.

A lot of government officials at the 1996 Vienna Human Rights conference, from Africa and Asia, protested the United Nation's endorsement of the very idea of basic individual rights because, they said, that those ideas do not apply to their society. And there is widespread agreement with this idea on the part of many people in university philosophy, political science and history departments. Is there an answer to that? Well there is, at least the way that the libertarian sees it.

There are certain things that stay stable or steady for human beings as long as there is a human race. As long as those in the 5th century BC were part of the human species, as were those in the 19th, are those in the 20th or will be those in the 23rd century that fact, of our mutual humanity, will have certain ethical and political implications. So some principles of ethics and politics will be universalizable, apply throughout the human species, including that each individual is a sovereign about his or her life.

Of course, not all thinkers through all historical periods have stressed the importance of individual sovereignty. But this does not mean that individual sovereignty was not right back then or is unimportant, only that many thinkers paid little attention to it. There may be many reasons for that. For example, given that these thinkers were part of a class of people who benefited from treating many others as if those others could be used against and not permitted to follow their own will, this is not surprising. Pointing out to the world that every individual is equally important is not always to one's vested interest.

But, given the fact of some permanent features of human nature, it is true, among other things, that no human being should be made to serve the will of another human being against his or her choice. In other words, that slavery, whether it is full-scale, partial or even minimal, has always been and will always be wrong when it comes to human beings. It is no excuse that in the 1900s or in Athenian Greece science, economics, sociology or politics were different, so it was okay to have slaves. No, it was wrong then and it was wrong a 150 years ago and will always be so, as long as those slaves are human beings or have the characteristics of human beings, free will and moral responsibility over their lives.

That is the kind of universal position that the libertarian embraces. Not that all principles are like that, so widely universalizable. For example, how you should dress or keep clean or even rear your kids will change, based on technological, agricultural and other developments. The answers to various particular, special questions are not the same as they were 200 or 3200 years ago. These answers depend a great deal on the vehicles we drive, the kind of dwellings in which we live. Given these changes, it would be silly to maintain that there is a fundamental principle concerning those details — how we should furnish our apartments. Those matters depend too much on what are variable aspects of human life. They include a great deal of what makes up various different and equally valid human cultures.

But there are basic principles to which people elude when they say that certain values or principles of conduct do not change. The reason why the libertarian thinks this is right is that human beings do remain fundamentally the same throughout all those technological and related changes. No matter what the changes, our humanity remains intact. This is the implicit idea underlying all those human rights watch groups that go from country to country, examining whether institutions like slavery or torture exist. They don't care whether it's China or Burundi or the USA or Canada. These human rights watch groups consider certain practices and policies to be inexcusable because of our fundamental humanity.

Underlying the idea of these rights to life, liberty and the pursuit of happiness — or property — is the fact of our human nature. And this nature is understood as involving as a basic fact our creativity, our need to take initiative in life, and the corresponding moral responsibility we have for living our lives properly (whatever that comes to). For us, unlike for the rest of the animal world, there are very few instincts on which we can rely to guide us in our lives. We must discover how to live and flourish. That's why we need education — we are not born with sufficiently detailed genetically built-in programs that guide us through life the way in which geese, cats or even the higher mammals are who do the right thing nearly automatically. We must learn that we have very few built-in measures that sustain our lives. We have to learn everything — how to eat talk, walk, drive and the many, many far more complex tasks that amount to living human lives.

Nearly everything we do to live reasonably successful lives has to be learned by us. So we either make good use of our minds or we don't. That's the point. Human beings have the capacity to get themselves going or to fail to do so. This is fundamental to them all. Unless they are thwarted in this task by governments, criminals or invading armies, they are free either to pay heed or not to. And the right condition for their human lives is when others do not prevent this for them. Nature isn't always so accommodating but other persons can and ought to be. It is right for us all not to be intruded upon in our efforts to think through the problems that face us and to reach solutions to those problems. It is only such a community of others that is suitable to us all, when we unite on a voluntary basis.

By no means does this mean that community life is alien to us, quite the contrary. People flourish best among other people. But only if these other people do not thwart their freedom. We not only have the right to but definitely should form clubs, churches, associations, corporations and thus embark on the solutions of all of our problems and the attainment of our aspirations in the company of other persons. But only if this does not involve coercion, compulsion, the violation of these other persons' sovereignty.

Conservatives like George Will and liberals (or as they are now often called, communitarians) unite against the libertarian, however, on grounds that his view of human beings is too narrow. Will joins Sandel, claiming that "much damage is done when we define human beings not a social beings - not in terms of morally serious roles (citizen, marriage partner, parent, etc.) — but only with reference to the watery idea of a single, morally empty capacity of 'choice.' Politics becomes empty; citizenship, too."[3]

But this is a bogus criticism, repeated since Hegel and Marx by all those who would forcibly twist the lives of people to a vision to which they have not given their consent. Of course, human beings are "social beings." But this does not mean what Marx meant by it, namely, that "The human essence is the true collectivity of man." Rather it means that human beings live and flourish most in the company of others. But this is something they must do by choice when they reach maturity. For the social options available to them are numerous, some suitable, some not. And they are responsible for making the right choice about what kind of social unions they will partake in.

F. A. Hayek made this point as follows:

"That freedom is the matrix required for the growth of moral values — indeed not merely one value among many but the source of all values — is almost self-evident. It is only where the individual has choice, and its inherent responsibility, that he has occasion to affirm existing values, to contribute to their further growth, and the earn moral merit."[4]

And Hayek also argues that "The growth of what we call civilization is due to this principle of a person's responsibility for his own actions and their consequences, and the freedom to pursue his own ends without having to obey the leader of the band to which he belongs."[5]

Yes, human beings are properly held responsible for assuming various social roles in life — in their marriages, families, polities, etc. — but this responsible is empty if not chosen by them but imposed by the likes of Will and Sandel. What will so cavalierly and callously regards a "morally empty capacity of 'choice'," is, in fact, the absolutely indispensable prerequisite of the moral life.

In all these matters we may or may not win the prize of success. There is no guarantee. That is one of the reasons that a libertarian proposes a non-utopian form of community. Such an arrangement does not promise to solve all of our problems. It rests on the recognition that free men and women might not solve their problems or might do so inadequately, incompletely. They may just decide to sit there and fiddle their thumbs and watch Jerry Springer all day long. There is plenty evidence and common sense to support this view. There is no guarantee that people will do the right thing if they are free.

Yet, it is more likely that they will discover what the right thing to do is if they are free. More so than if they are regimented around by others who have their own lives to attend to and, in any case, ought to mind their own business.

When government tells us what the minimum wage ought to be, how to run our business, what requirements we should meet to become doctors, psychologist, chiropractors, government is addressing an area that we should address in our voluntary cooperative groups. Not addressed by means of petty or major tyrannical policies by people who wield guns. That is a fundamental notion concerning public policy, according the libertarian. Based on it and various details we learn from all fields of knowledge we learn, also, peaceful ways of dealing with, for example, cloning, education, drug abuse, child raising, mental health, diseases and all kinds of issues with which life confronts us.

There are numerous issues not covered by libertarianism and left for other fields than politics to address. But there is at least one point implied by libertarianism for all areas of social life: Coercion is not suited for any of it.

You have to fill in a lot of details in order to learn the implications of the fundamental principles of physics for dealing with a particular area of the physical world. Similarly, in politics the basic principles do not tell us everything. They provide a basic framework within which we are required to solve our problems. That means that if we are going to solve problems in society, the only thing that is utterly forbidden is for me to violate your right life, liberty and property.

Within that broad framework I can consult with you, we can get together and find all sorts of solutions from biology, chemistry, zoology, physics, from everywhere and embark in solving our problems. We may never, however, use coercion, the violation of basic individual rights.

Only within a framework of voluntary association may human problems be addressed by us, according to libertarian political philosophy. Once you adhere to that, there is, of course, still a whole lot of work to be done so as to flourish in life. Because simply being free of the intrusions of others is not enough to live right — it is just a precondition. You have do useful, productive, creative, imaginative and other proper things with your freedom.

The libertarian, as such, does not have an answer as to how to solve all human problems. We have all the special disciplines and professions for that. The libertarian has answers to our political question: How should we treat each other in a community? With full, uncompromising respect for one another's rights. No violation of those rights is permitted. That prominent and widely championed objective of economic equality — actually equality with respect to most matters of value to people — is not one that suffices to trump the right to individual liberty, including the liberty to obtain and keep valuable stuff. For one, such equality is not attainable — those imposing it as it must be imposed, by force, will never be equal to those on whom it is imposed. But even when attainable, it is worthless if obtained via the violation of individual rights.

This should provide some idea as to what libertarianism amounts to and why it makes sense to many people.

Notes:

1. Conservatives aren't united so much on doctrine as on ways to think about normative matters. They hold that how we decide our institutions, laws, practices should be grounded on tradition, what has worked in the past, what has been tried and found true.

2. The Left in America, often called "liberals," does endorse a doctrine, mainly concerning the role and scope of government in the lives of the citizenry, which is supposed to be extensive and broad, mainly so as to enable folks who aren't doing well in life to flourish.

3. George Will, "What Courts Are Teaching," Newsweek, December 7, 1998, p. 98.

4. F. A. Hayek, "The Moral Element in Free Enterprise," in Mark W. Hendrickson, ed., The Morality of Capitalism (Irvington-on-Hudson, NY: The Foundation for Economic Education, 1992), originally written for The Freeman, 1962.

5. F. A. Hayek, "Socialism and Science," in Chiaki Nishiyama and Kurt R. Leube, eds., The Essence of Hayek (Stanford, CA: Hoover Institution Press, 1984). P. 118.

Chapter 1: Right to Bear Arms

Arms are weapons with which to physically overpower others. There are justified and unjustified cases of overpowering others. Self-defense is clearly a case of the former, aggressing upon another, robbing, murdering, raping, assaulting or kidnapping another would be cases of the latter. Not all guns are but most can be arms.

A principle of the legal system of a free society that is directly derived from the existence, respect for and protection of individual rights is due process. No one's conduct may be banned or regulated without it being very probable that such conduct amounts to rights violation.

Ownership of arms by no means implies their unjustified use. The display of arms, in certain circumstances, could, however, constitute a probable cause for being disarmed. If one aims a bazooka from one's front yard at a neighbor's home, especially one with whom one has had some sort of acrimony brewing, that could qualify. In such a case an injunction against the use, perhaps even ownership, of the weapon in question could be justified.

Barring any such circumstance, ownership of arms is akin to ownership of anything else, a case of the exercise of the right to private property, which in a free society would not be violated.

There are those who advance certain kinds of utilitarian arguments against gun ownership and purchase by citizens without any criminal record or similar valid impediments to such ownership. Some probability does exist that arms will be misused more if their ownership is not prohibited than otherwise. Of course, this is true for implements other than weapons.

In a free society the task of law enforcement would be, in part, to stand guard against the misuse of any weapons or other implements, provided such guardianship does not itself violate individual rights. Furthermore, in the absence of the right to private property as applied to arms, the government and criminals would be the only segment of society that would have free access to them. That also creates a likelihood of the successful illicit use of arms. So the utilitarian case is mixed, even if that were all about which we needed to be concerned. Indeed, the empirical data appears to demonstrate that when ordinary, non-criminal people have their right to bear arms respected and protected, violent crime, which includes shootings, go down in frequency, while the increase of restrictions has been accompanied by a rise of such crimes. In any case, however, rights trump utility, since rights are derived from our very nature as human beings, while that is of utility is extremely unstable, dependent on fluctuating needs and wants. In the US the federal Constitution, accordingly — in the 2nd Amendment of its Bill of Rights — bans government control of private arms. The people are said to have the right to bear arms, not only because, as argued here, they have the right to private property in general but also because it is likely that when government bans weapons for the citizenry, its power over the citizenry grows and is likely to be exercised more freely. Indeed, many measures of the government constitute invasions, violations of individual rights, and in justice citizens ought to be disarmed when coping with these. Not that armed resistance need be their first recourse in the face of such rights violation. However, whatever recourse they do take, it is useful to have their actions backed with the fact that they could defend themselves against an out of control state.

Some have argued that no absolute right to owning guns can be justified. Indeed, they have held it against libertarians that they lack flexibility in these matters and insist on an artificial absolutism. Yet this is not a very convincing point at all. Those who champion a fully free society are not mindless dogmatists, merely principled. And being principled means, essentially, that the default stance on any issue is a basic principle, in this case that of individual liberty. If, as already noted, it can be shown that a clear and present danger exists from someone's ownership of arms, in a free society legal avenues would exist to meet this eventuality. But the first option on the books would be for no one to prohibit anyone else from owning and using arms unless this involves the violation of another's rights.

A full defense of the right to private property and gun ownership would need to address more fundamental matters, of course. But in the present context those fundamental matters are not at issue. The question is how various public policy matters must be reconciled to the truth of basic libertarian principles. Banning guns does not succeed and, is furthermore, shown to be counterproductive. It seems, in addition, to be a grab for power rather than some safety measure imposed by benign politicians and bureaucrats.

In most societies there are now immense public realms, under the administrative authority of governments. Thus, for example, most primary, secondary and higher education establishments are administered by governments. In the course of such administration various policies appropriate to the management of the school in question may be instituted and these will, in the last analysis, amount to government regulation. A ban on weapons in the schools, then, may seem like a case of government violation of the 2nd amendment, although that is by no means clear cut. Instead, this is the result of government having inserted itself into this essentially non-public activity in society which has gained it a foothold in directing people's lives.

In a fully free system, wherein government would only do its proper activities, namely, secure our rights to life, liberty and the pursuit of happiness (property), no bans on guns by government would exist. However, the innumerable private institutions throughout the community could establish rules of their own, including those that would regulate the use of arms. That kind of system, with its built in provision for a plurality of solutions to diverse problems — which contrast with the insufferable habit government has of using the "one size fits all" approach — would be in force in a free society.

Chapter 2: Abortion

The topic of abortion concerns the killing of what would under normal circumstances become a human infant — indeed, the dispute is about when this occurs. In fact the topic concerns when exactly a human being comes into existence, at conception (whereby all abortions would be homicide, or later, in which early ones would not be homicide).

Just to clarify, "pro-life" and "pro-choice" are both misleading labels. They are not at all descriptive. Pro-lifers are not actually supporting life per se — for they are not opposed to killing non-human life, nor killing human beings in self-defense or as punishment. Pro-choicers often want to defend the right to choose in very limited spheres. They oppose government interference in whether a woman continues her pregnancy but not, say, whether she should consume drugs.

Strictly put, libertarians can have no position on abortion as libertarians. This is because the libertarian holds only that whenever a human being comes into existence, killing it in other than self-defense must be prohibited. But some hold that in the first stage of pregnancy pregnant women carry not a human being but a potential human beings, akin to the relationship between a caterpillar and the butterfly it will become or a sapling that will grow into a tree. Some others hold that immediately after conception a human beings comes into existence. But libertarians have no theory as libertarians concerning which of the above view is right. For that one needs to enter into matters that are pre-political.

Here is how the pro-choice position would have it: The claim that a human being exists at conception or prior to the formation of the cerebral cortex seems impossible. Here is why: At conception only a "pre-embryo" exists. As biologist F. M. Sturtevant points out, this "consists of the trophoblast, and a few cells comprising the embryoblast." Indeed, he continues, "before day 14, when the embryo can first be said to exist, the embryoblast can develop into an embryo proper, a tumor, a hydatidiform mole, a choriocarionoma (i.e., cancer), twins, or triplets, or, in at least two-thirds of the cases, nothing at all (due to genetic defects)." As Sturtevant puts it, "until the primitive streak appears at day 14, there is no human individual." This implies that nothing with a distinctive identity even as a potential human being exists at that stage. Even after the second week an infant human being (unborn child) does not exist. Something that can become one, of course, does.

Does a human life exist at this point? "Human life" can mean any live element of a living thing, according to which usage any part of the being that will probably turn out to be or has become a human being can be considered living — an appendix, a limb, or any organ one clearly has the option to donate (such as an extra kidney). Even after brain death, for example, the organs that may be transplanted will be live human organs, exhibiting or manifesting human life.

Whether abortion, however, is homicide, let alone murder, depends on whether what is being killed is a human being not just human life. If killing human life alone constituted homicide, than destroying or killing a living human organ, after the death of the human individual whose organ it used to be, would amount to homicide.

Unless it is established conclusively that what is killed via abortion is a human being, the claim that homicide has been perpetrated via abortion is not proven.

Those who embrace the pro-life position hold, in contrast, that since from the moment of conception there is something that can only be classified as having a human identity, one that will last until its death, the being that emerges in however indeterminate way after conception is, in fact, a human being. Some, mainly those who hold certain religious beliefs, argue that at the point when egg and sperm unite, ensoulment occurs — the new entity gains its distinctive humanity, which is to possess a nature with dignity and moral significance.

Libertarians as such need to decide public policy and law based on which of the above arguments, in one or another of their nuanced form, is sound. One thing, however, about the libertarian's political perspective seems to favor a secular rather than theological approach to the topic of abortion or, indeed, any other topic. This is that rationales for any public policy in a free society need to be accessible to citizens as such. It would be sectarian and thus biased to rest public policy on elements of a given faith, one that is the province of only those who have been graced to hold it but not to those who have not been so graced.

Yet even among secular theorists that are both pro-life and pro-choice advocates. The pro-life view has several versions and besides what I have sketched earlier there is the consideration that treating the zygote or embryo as if it where a child is logically more prudent than the opposite course. Since we do not know when precisely the cerebral cortex develops in a fetus, the point at which a "rational animal" would emerge, it is prudent to treat the fetus as fully human from the start of pregnancy.

Pro-choice advocates reply that to be a human being requires a brain that enables something to think, to form ideas, theories, principles, etc., namely, the cerebral cortex. In the fetus this portion of the brain fully develops near the 24th week of pregnancy. The nearly born, just as babies, however, can and often do think, albeit at the very minuscule level, just embarking on the formation of some ideas — so partial birth abortions, so called, could only be performed in case the mother's life is in serious danger from carrying to full term. But this view implies, if true, that it is unfounded to accuse someone of homicide who has an abortion — or performs one-before the 24th week of pregnancy. To punish such a person for murder or even manslaughter is unjust and laws must prevent such actions. It is comparable to punishing someone for simply not believing something that is false, namely, that the fetus is a human being.

Some hold that a human being does not exist until society can recognize its independent existence, which would be after its birth. They stress that the traditional assignment of birth to emerging from the mother's womb indicates powerfully that it makes little sense to construe any pre-born stage as fully human.

Others argue, with specific appeal to libertarian concerns, that the pro-life position implies extensive law enforcement presence in the lives of couples. This is because if at conception a human being comes into being, then its rights would require protection from the legal authorities, something that would require intrusive monitoring of, for example, the results of all sexual intercourse. Were parties using protection? Did a human beings result? Moreover, if miscarriages occur, whether these come about through negligence or even malice aforethought would be of public concern. Gaining the information to make sure no one has been wrongfully killed would involve intrusiveness that libertarians generally abhor.

It needs to be noted that even if one holds that all abortions that are not homicide, they may not be morally unobjectionable. They must then be legally tolerated, however, because otherwise innocent people would be punished.

The libertarian awaits a resolution of this controversy. Without that, no libertarian stance can be definitive. Banning abortions prior to the 24th week or so of pregnancy may be unjust for libertarians, since it protects no one's right to life, liberty or pursuit of happiness but punishes those who refuse to carry on with a pregnancy, period, which is itself a severe rights violation. But if it is a gray area we face here, perhaps prudence requires that no abortions be allowed, lest we risk killing an innocent child.

Chapter 3: Capitalism

Capitalism is the political economic system in which the institution of the right to private property, that is, to own anything of value (not, of course, other human beings, who are themselves owners), is fully respected. There is dispute about the label, of course, mostly because its definition is often a precondition of having either a favorable or unfavorable view of the system.

By itself capitalism is an economic arrangement of an organized human community or polity. Often, however, entire societies are called capitalist, mainly to stress their thriving commerce and industry. More rigorously understood, however, capitalism presupposes a type of legal order governed by the rule of law in which the principle of private property rights plays a central role. Such a system of laws is usually grounded on classical liberal ideals in political thinking. These ideals may incorporate positivism, utilitarianism, natural rights theory and/or individualism, as well as notions about the merits of laissez-faire (no government interference in commerce), the "invisible hand" (as a principle of spontaneous social organization), prudence and industriousness (as significant virtues), the price system as distinct from central planning (for registering supply and demand), etc.

Put a bit differently, "capitalism" is the term used to mean that feature of a human community whereby citizens are understood to have the basic right to make their own (more or less wise or prudent) decisions concerning what they will do with their labor and property, whether they will engage in trade with one another involving nearly anything they may value. Thus capitalism includes freedom of trade and contract, the free movement of labor, protection of property rights against both criminal and official intrusiveness.

The concept "freedom" plays a central role in the understanding of capitalism. There are two prominent ways of understanding the nature of freedom as it pertains to human relationships. The one that fits with capitalism is negative freedom, namely, the condition of everyone in society not being ruled by others with respect to the use and disposal of themselves and what belongs to them. Citizens are free, in this sense, when no other adult person has authority over them that they have not granted of their own volition. In short, in capitalism one enjoys negative freedom, which amounts to be free from others' intrusiveness. The other meaning of freedom is that citizens have their goals and purposes supported by others or the government so as to prosper. Under this conception of freedom one is free to progress, advance, develop, or flourish only when one is enabled to do so by the efforts of capable others.

In international political discussions the concept "capitalist" is used very loosely, so that such very diverse types of societies as Italy, New Zealand, the United States of America, Sweden and France are all considered capitalist. Clearly, no country today is completely capitalist. None enjoys a condition of economic laissez-faire in which governments stay out of people commercial transactions except when conflicting claims over various valued items are advanced and the dispute needs to be resolved in line with due process of law. But many Western type societies protect a good deal of free trade, even if they also regulate most of it as well. (The extent of such regulation in the United States of America alone, thus the divergence from pure capitalism, is chronicled in Jonathan R. T. Hughes, The Governmental Habit, 2nd edition [1990].) Still, just as those countries are called "democratic" if there is substantial suffrage — even though many citizens may be prevented from voting — so if there exists substantial free trade and private ownership of the major means of production (labor, capital, intellectual creations, etc.), the country is usually designated as capitalist.

The most common reason among political theorists and economists for supporting capitalism is this system's support of wealth creation. This is not to say that such theorists do not also credit capitalism with other worthwhile traits, such as encouragement of progress, political liberty, innovation, etc.

Those who defend the system for its utilitarian virtues — its propensity to encourage the production of wealth — are distinct from others who champion the system — or the broader framework within which it exists — because they consider it morally just.

The first group of supporters argue that a free market or capitalist economic system is of great public benefit, even though this depends on private or even social vice, such as greed, ambition, exploitation. As Bernard Mandeville, the author of The Fable of the Bees, put it, this system produces "private vice, public benefit." Many moral theorists see nothing virtuous in efforts to improve one's own life. They believe, however, that enhancing the overall wealth of a human community is a worthwhile goal.

Those who stress the moral or normative merits of capitalism say the system rewards hard work, ingenuity, industry, entrepreneurship, and personal or individual responsibility, and this is all to the good. This alone makes the system morally preferable to alternatives. Yet, another reason given why capitalism is not only useful but a morally preferable system is that it makes possible the exercise of personal choice, something that would be obliterated in non capitalist, collectivist systems or economic organization.

The most influential critic of capitalism is the 19th century German thinker and social activist Karl Marx. He did not oppose capitalism but argued that it occupies only a specific period of humanity's development. Capitalism, as Marx saw it, is the adolescent period of humanity, as it were. Socialism is the young adulthood, while communism is full maturity. Marx believed that supporters are wrong to assume that the system has universal relevance and validity. Instead, Marx held, the system must be accepted as a temporary fact of the life of humanity — two or perhaps four hundred years long.

Capitalism's defenders have argued, in response, that the system that is, economic liberty — is best suited to human beings because human nature is reasonably stable over time. Human beings, in turn, tend always to be motivated by self-interest or they will always want to be rewarded for their work and will not likely develop into creatures who are loyal primarily to humanity or society, never mind their self interest.

Others have responded to Marx by claiming that not only is his position untenable but actually morally despicable. The vision of human life Marx champions cuts directly against what is best about human beings, namely, their individuality, uniqueness and resulting multifaceted creativity, that is, their often single minded vision. Capitalism accords more with the idea of human excellence exemplified by the great artists, scientists, industrialists of the world, not the vision exemplified by members of a stagnant commune. Capitalism is feared only by the lethargic or cowardly, who do not prefer the hustle bustle of nature, including human life.

Capitalism is an economic organization based on some very limited rules or principles. People are at liberty to do everything other than intrude on the sovereignty of other human beings and their authority to make peaceful use of what they own. As such it is a system said to be well suited to human nature, whereby one may embark on various tasks and do well or badly at them but avoid intruding on others. This is best done when one's own sphere of authority — one's private property rights — is clearly identifiable.

Although capitalism is commonly understood in economic terms — "capital" refers to a vital category of economic resource, namely, what a person or firm has available to use in some enterprise — in fact it is dependent on certain non-economic elements of community life. The basic rights to life, liberty and property, when established, maintained and protected in a legal system, make capitalism possible, although not necessary. If one has the right to one's life, one may exercise this right by offering to spend this life, at least in part, on other people's projects, provided one's terms are met. If one has the right to liberty, one may exercise this by embarking on economic pursuits. And the right to private property is clearly indispensable for purposes of trade — one cannot do that without owning what might be traded. As Abraham Lincoln observed: "...but even these [the US Constitution and the Union] are not the primary cause of our great prosperity. There is something back of these, entwined itself more closely about the human heart. That something, is the principle of 'Liberty for all' — the principle that clears the path to all — gives hope to all — and, by consequence, enterprise, and industry to all."

Although some would reduce all aspects of life to economics, in fact, however, it has several dimensions of which the economic is just one. Capitalism is the economic order of a free society, free in the sense that such a society respects and protects each individual's rights to life, liberty and property.

Chapter 4: Censorship

Strictly speaking, unless the government prohibits or regulates publications or other types of expression of ideas, there is no censorship in a community. However, since most societies contain numerous social organizations that are at least partly the province of government administration, especially primary, secondary and higher educational institutions, indirect censorship is also possible.

For example, if a public high school publishes a student paper and the administration regulates or prohibits what can be published, a kind of censorship occurs. If the high school were a private institution and its administrators spelled out guidelines concerning what may be published and how, this would be more or less sensible internal editing. But since a public high school is administered by the school board, which is an arm of the government, its guidelines, while often sensible enough, cannot escape being censorial. The same goes for such semi-public enterprises as Public Broadcasting Service, National Public Radio, and, especially, the Voice of America, an arm of the US Information Agency. Since there is no fair competition with such organizations, their funding from taxes makes their existence immune from the full force of the free market (that is, the choices of consumers) what they elect to exclude from their array of offerings may be said to have been censored, even if that is far from the intent of those in charge.

Another example of indirect censorship came to light in early 2000. The Clinton White House had tried to negotiate a deal with the commercial TV networks concerning the content of TV entertainment. The proposal, kept from the public for some time, was to trade some mandatory public service messages television stations must air (it is one price extracted from them for their license to broadcast) in return for their inserting anti-drug abuse messages into the story lines of television programming directed to kids. The carrot for this had been for the networks to save money by not having to air the unpaid ads.

During a roundtable discussion on PBS-TV several news reporters discussed this topic and while two of them objected not just to the secrecy but to the substance of the deal, two others found fault only with the secrecy while finding the idea of the deal quite palatable. The argument in support went this way: The networks are using public airwaves, the electromagnetic spectrum that had been nationalized on the floor of the US Senate back in 1927 (giving rise to the establishment, at first of the Federal Radio and later the Federal Communications Commission); this empowered the federal government to call some of the shots as far as the use to which the networks will put the signals that travel via the spectrum; so the FCC, and by some perverse extension the White House itself, is authorized to impose terms of usage on network television. QED.

We have here a way government intrudes, via indirect censorship, on the free society via the process of making something public that never should have been made so. Why should government own the airwaves? There is no rational, moral justification for this, although many rationalizations have been cooked up. It is socialist governments that characteristically nationalize important resources in the countries which they rule. Socialism is the political philosophy according to which individuals do not even exist but are only dependent parts of the larger whole that is society.

Private property is anathema to socialism. The institution of the right to private property is a concrete, practical implementation of individual rights. It makes the free exercise of religion, of freedom of speech and expression possible for individuals. They can thus act independently of the wishes of others, should they so choose, including of the wishes of the government which in such a society has as its proper role the adjudication of disputes about conflicting rights claims. Beyond such adjudication, and the associated legal processes, governments in a free society are supposed to refrain from running the various tasks people may wish to embark upon, including providing entertainment in return for payment or advertising time.

The beginning of the corruption of the proper role of government is the transformation of a system of private property rights into a system of public ownership of valued resources for example, the electromagnetic spectrum that in American had been nationalized in 1927. When this commenced, the rights of individuals begin to be eroded and government begins to set various agendas for society.

In democratic systems this can only be done if a sizable enough constituency supports these agenda. If the rights of individuals are not firmly respected and protected, the public realm can be increased by way of congressional acts and even presidential edicts. Having nationalized the airwaves, the government can impose various conditions for its use and even undertake underhanded deals that would use the broadcasters as propagandists for various goals deemed to be important.

In the USA and many other Western societies, there is a fairly strong tradition of government not exercising its power over the printed media. Radio and television, however, are another matter entirely. In the USA, as noted above, broadcast television and radio are not privately owned. They must obtain a license from the federal government in order to gain permission to operate.

The print media does not face this constraint and is, therefore, more plausibly considered free of all censorship. Thus broadcasting tends to operate with the permission of the state and while such permission is often quite open, programming tends to seem to be uncensored, especially regarding the discussion of ideas. (Even there, however, such measures as the equal access law tend to discourage discussion since high costs are imposed on broadcasters who must invite opposing views at their own expense.)

Cable television or narrow casting tends to be free of federal control. But because many of these services are regulated locally, given, for example, special monopoly status and protected from full blown competition (except from satellite services), they too face a measure of government involvement that can issue in certain kinds of programming restrictions. In some communities, for example, there are restrictions of adult programming to certain times of the day.

In a fully free society government would no more be permitted to exercise power over any kind of expression of ideas, opinions, artistic preferences, and the like than it is permitted to govern religious expression. A complete separation of state and media, akin to the current nearly complete separation of state and religion, would be the status quo.

Some problems do face the theory of total separation, however. One of them is whether any libel and slander laws would exist in such a society. Some argue that because people own their reputation, if others make false charges against them, this constitutes an invasive act, a violation of property rights, in effect. But there are those who find it highly doubtful that anyone owns his or her reputation, given that what other people think of someone is up to those other people and thus cannot be owned. There is also the issue of whether patent and trademark laws constitute some type of grant of monopoly or a valid recognition of ownership based on first creation.

Still, apart from such borderline cases, no government control of the media would be permitted in a fully free society. In other words, since the legal authority would have as its sole task to secure the basic rights of individuals, and since individual have a basic right to liberty, which includes freely expressing themselves in forums they own or have permission from the owner to make use of, the legal authority would have no basis for embarking on any kind of censorship.

Basically, then, the surest protection against censorship is having the laws focus on the protection of individual rights, especially the right to private property. In socialist systems, in contrast, government owns everything and this gives them total de jure control over what is done with the resources available. Without government providing the materials, books, journals, magazines, newspapers, and the various electronic media are unable to function. IF the resources are to be secured, government can set terms and this basically means nothing gets aired that government considers unsuited for dissemination.

The problem in welfare states, where governments own a sizable portion of the resources needed to live various lives, to carry out various projects, governments can also steer various activities in directions they favor. And the larger the public sector, the more of this "guidance" is likely, including in the content of the media.

Chapter 5: Collectivism

Collectivism includes the various sociopolitical systems that envision human communities as cohesive, even single units, ones with a certain common purposes or goal, akin to how teams or orchestras have such common goals. Harmony, cooperation among all, and progress toward the assigned objective are seen as the great attributes of such collectivist systems — socialism, communism, fascism and the like.

In the case of some animal species collectivism is the norm. Bee hives and ant or termite colonies are such. Their natural and healthy state is absolute solidarity. Other species tend toward collectivism, although it may not be essential for the survival of every member to be united with some group of its kind. Wolves run in packs but can carry on alone, as well, in some circumstances. So the individual wolf is not always a specie-being, what Karl Marx called humans: "The human essence," he said, "is the true collectivity of man."

But collectivism falls pray to the fallacy of composition. It involves lumping individuals into a huge group and ascribing to them capacities, even faculties that only the individual members can have. "Society says," "We decided," "America is violent." Strictly, none of these claims could be true because, to start with, society has no mind and mouth with which to say anything. Nor are we able to decide anything — you may, I may and so may others and together we may reach the same conclusion, including leaving some to do it for us. That is the only sense in which "we" have decided.

Ordinarily it is well enough appreciated that such expressions among to linguistic short cuts. "America is violent" is supposed to mean, usually, that most folks in America are willing to deploy violent means to solve problems. Unfortunately, the care necessary to keep this in mind is not always diligently enough exhibited.

Accordingly, such theorists as Karl Marx explicitly argue that humanity is "an organic whole." It is a conscious being in the process of development, with communism its final stage. (Marx talks of the age of ancient Greece as humanity's childhood!) How so, if humanity has no convictions, thoughts, memories, imagination, intentions, purposes or any other attributes that individual human beings do? Why is this kind of thinking even plausible?

The reason is that in some contexts human groups nearly become a whole. A close-knit acrobatic team, for example, or orchestra or choir clearly exhibits attributes that come close to incredible single-mindedness. A jamming jazz ensemble not only works as a single musical unit but embarks on the kind of spontaneous innovation that we would usually expect only of individual human beings unencumbered by the baggage of having to please and cooperate with others. But no, sometimes people unite so well, fit so perfectly, and have a sense of one another's rhythm that it almost looks like individuality has disappeared.

Yet it is precisely individuality that makes such harmonious cooperation possible among members of that acrobatic team, orchestra or choir, and where failures come from, as well — for example, when someone fails to pay close heed to what is needed to keep the unity intact. The complex activities such groups undertake together require the utmost concentration on the part of individual members.

More than even that, when we consider carefully the composition of such groups we note that there is usually a critical mass beyond which they cannot function well. A jazz group can jam but not, say, a swing band — too many people, for one. The same is true with teams and choirs and other human ensembles.

But there is, perhaps, an element of inspiration and hopefulness that is spurred on by witnessing the beauty of harmonized human activities, sometimes to the point of wishing to see it extended globally. When someone like Karl Marx envisions humanity itself acting like an organic whole — as a goal-directed, integrated biological self-propelled organism - he extrapolates from that musical ensemble to all of humanity, convinced that what is possible for the small group could be, indeed ought to be, realized throughout the entire species. So he seriously proposes that we are specie-beings, organisms that belong to the species and form a unity with it all.

Of course, Marx realized that this isn't so at the present and hasn't been so ever. But his vision of its vague beauty formed for him a standard of humanity's health and well being, to be achieved in the future and used to judge the present.

The big problem with this vision is that the individuality of every human being can extend to embrace only so many others, after which the fit will be forced and, indeed, must be coerced when its realization is attempted.

Human beings are essentially individuals, as well as geared to moderate social entanglements. Voluntary choice reaches out to form only so many social relations. Our emotional make-up does not prepare us to be intimate members of the entire world society, not even of a country. Despite what President Reagan said, America is not a family, nor is Ireland or Iran. Families are sized in just the way that with some attention and vigilance their members can stay close to one another — celebrate birthdays or weddings, mourn the dead, attend to the sick.

If we were the kind of collective beings Marx and other champions of collectivism imagine us to be, we would dry up emotionally. We would lose our capacity to love intimately, to care to be close. We would have to spread our emotional energies way beyond what they are capable of. Just think: circles of friends and families are reasonably sized, so that one is not always torn between sadness about someone's mishap and joy about someone's good fortune. But if we had an intimate relationship with everyone who is part of humanity, nothing could be felt toward others because it would be canceled out by opposite feelings every time.

The kind of community that fits human beings varies a good deal — some are much more gregarious than others. And it must be left to choice to discover how much intimacy is right — how many communities we can honestly join.

The individual's right to choose freely whether to belong to this, that or another group is the best moderator of our social capacities. Sure, we can over or underestimate what we are capable of in this as in many other regards. But in the long run it is best to leave it to each of us instead of having some visionaries impose on us an impossible and ultimately destructive social dream.

Chapter 6: Conscription

Conscription is coerced military service, the draft. It requires from young people, mostly men, under penalty of law, the giving up of a portion of one's life, for rudimentary compensation and some reasonably good benefits. In time of military conflict this could amount to requiring someone to sacrifice his life on terms other than his own.

During the presidency of Richard Nixon the draft had been abolished in the USA, with only a feint shadow of it lingering on the law books, the requirement of registration. But instead of championing the completion of the job, namely abolishing registration, some politicians — and Republicans, to boot, such as Senator Strom Thurmond — are enthusiastically and self-righteously favoring bringing back the draft.

The reasoning is not unlike all those in defense of this institution, namely, that "our nation faces a critical problem of manning our Armed Forces...." Actually, however, no such need could ever justify coercing another person to serve anyone. Sensing that this is going to be a difficult sell, another approach to justifying the draft has been advanced: "The obligation of mandatory service forces the alignment of self-defense and national defense, of self-interest and national interest."

No doubt there is much to be said for aligning self-interest and national interest — indeed, any bona fide national interest has also to be in one's self-interest, given how one is a citizen of the nation! But there is a huge flaw in the equivocation between military conscription and the moral responsibility to defend oneself.

No moral obligation may justifiably be forced on a person. One cannot be made to do the right thing, one must do it of one's own free will. The only exception to this is when the right thing involves not violating other people's rights. Then these other people may resist, which is why the criminal law is largely justifiable and why it is also justifiable to force people to refrain from aggression.

In general, a free society is distinguished by virtue of the establishment of a legal system that protects everyone's right to life, liberty and pursuit of happiness. These rights — which the US Declaration of Independence calls "unalienable," meaning, "incapable of being lost by anyone" — are nothing if not a major moral obstacle against such measures as military conscription. Such a public policy would be nothing short of enslaving young men and women for portions of their lives. That means their rights to life and liberty would be violated head on.

So in a free society the defense of the country, as any other professional service, must rest on a volunteer military. That is almost a defining attribute of such a community, namely, that its various good deeds must be pursued through consent and by means of coercion, "mandatory service."

Politicians who champion conscription need to come to grips with this fact: one may not achieve good ends by evil means. And it would be evil to defend the freedom of American citizens by means of robbing some of those citizens of their freedom. That, as Sherlock Holmes would put it, is elementary.

The trouble is that recruiting young people for the military in times of relative peace is difficult, especially when government spends its resources on thousands of projects it shouldn't embark upon at all. It requires vigilance on the part of those who believe in military readiness. Given that the vigilance with which a country must be defended should not include making laws to impose involuntary servitude upon US citizens but of the effective advocacy of and ample support for those who would provide defense readiness.

Moreover, as with most professional services, this one, too, can be secured via the free exchange. Government often needs to have things built for it, such as court houses or police stations, and to do this it hires people from the free market and pays them to do the task at hand. Without court houses the legal system would suffer, yet the skilled labor required to build those building may not be conscripted. The talent and work needed are hired to do that important job.

Citizens in a free society must secure services they value without violating the rights of others. In such a society, the most civilized of human communities ever conceived, worthy goals must be achieved by means of argument, not coercion, however impatient one might be about going about things that way. Another person's having basic rights to his or her life, liberty and pursuit of happiness means, in part, that if one wishes to enlist that person's support for some task, one needs to be convincing in one's arguments, meet the terms set by potential service personnel and refrain from bullying people to follow one's lead.

This may appear to be contradicted by such legal instruments as the subpoena. Arguably, however, the only valid use of subpoena is when the pursuit of justice in court cannot continue without a particular person's or organization's input. Since everyone in a civil society is committed, by definition, to the pursuit of justice, to withhold oneself from testifying under such circumstances would be to go back on one's own word or oath of citizenship. However, when a vital service can be obtained from anyone and without even the hint of coercion, that is the alternative that is appropriate for a community of free men and women. No one in particular is needed to defend a country from foreign aggression. Any able person fits the job description.

There are, furthermore, certain practical benefits to banning conscription: the case for going into some military operation must be made more convincingly than otherwise, lest the conflict be pursued without a military. It is little wonder, then, that some politicians do not favor the volunteer approach to securing military service. They do not like it that ordinary citizens would have a significant say about whether a military operation or war ought to be conducted.

Furthermore, if a country is as just as it can be, the probability of making the case for its proper defense to its citizens should be considerable, unless those citizens are in some respect perverse, in which case not being defended against outside aggression is the consequence they must live with.

In a free society patriotism is a matter not of blind habit and simple familiarity but of commitment to principle. That commitment is not some empty slogan, not a case of "my country right or wrong," but a concrete devotion to act justly and to insist that all elements of society comply with the principle in question. In a free society that means, clearly, that in the very pursuit of justice, justice itself must be deployed. No one's rights may be violated in defense of a community that sees the respect and protection of rights as indeed the paragon of justice.

It is also important to keep in mind that a free society has very little for government to embark upon, military defense of the community being perhaps the most important function. There would be little to consume whatever resource government can secure to fund its various (but by comparison to existing systems very few) activities. Thus, having rid itself of a great many expensive projects, the vital service provided by the military would not be difficult to pay for.

It is interesting that no one ever advocates conscripting police officers, yet, it seems to be analogous to the idea that military personnel ought to be forced to offer their services. Part of this problem may be one of communication, of course: it is a bit more difficult to sell people the idea that their work may be needed in some foreign country than selling them on the idea that local crime conditions must be addressed.

No such obstacles serve, however, to justify anything like coercing young men and women into the military. Those who are convinced that a military operation is needed or that a stand by military is vital to the safety and security of the citizenry must come up with good, convincing reasons to achieve their goals. No shortcuts in this effort, involving the violation of the basic rights the military is sworn to protect, must be tolerated.

In the context of contemporary understanding of how government functions, the points raised against invoking conscription might best be put in terms of the requirement of due process. Just as police officers must not deploy unnecessary force in fighting crime, just as courts must obey principles of justice as they conduct trials, just as prison wardens need to make certain that the inmate's rights are protected, so the more general body politic must not lose sight of the fact that it is the securing the basic rights to life, liberty and the pursuit of happiness that government, including the military is all about, a process that must itself do justice to that objective.

Chapter 7: Democratic State

Democracy (people's rule) is a process by which some decisions are made and in the context of politics it means the kind of system that depends upon the right of participation of the citizenry in public affairs. (The scope of the public realm is, thus, crucial to where democracy may properly be deployed.)

What grounds democracy as a just mode of political decision-making is that citizens have the ultimate authority concerning certain matters in the polis — i.e., their organized community. And the reason they do have this ultimate authority is that they are, as adults, equal in their status vis-a-vis the stake they have in their political institutions, their laws, public policies, foreign relations, etc.

That they have this equal status hinges on certain extra or pre-political matters, to be discerned by way of reflection upon human nature and proper human relations. For now I'll simply note that as I understand political matters, they arise from the moral fact that each individual adult human being has as his or her task in life to choose to live it rationally, to flourish as a rational animal. Since this task for adults can only be achieved if they are not subject to another's will — in which case it is that other's rational choice that would be the ruling principle of one's life — in communities human beings must be sovereign. From this it follows that they must have a say in their own political fate, ergo, democracy.

In any case, democracy is derivative of what human beings are taken to be as they find themselves within a community that aims at justice, a polity. Based on Thomas Hobbes' ideas, democracy is recommended because all of us are equal in being composed of matter-in-motion, lacking any significant, fundamental differentiating attributes. Hobbes held that nothing justifies differentiating some people from others (indeed, if one were to be fully consistent, anything from anything else, at the metaphysical, fundamental level of being.)

A somewhat different reason for democracy arises from the Lockean view. For John Locke we are all equal and independent in the state of nature, i.e., prior to the formation (that is, apart from) civil society. Adult human beings begin as embarking on a human life. In this they are all equal. The life of each individual is to be governed by the laws of nature (which is revealed by one's reason, if one but consults it). So we are all endowed with natural rights, which spell out for each of us a sphere of sovereignty or personal authority or jurisdiction. There are no natural masters or natural slaves (although there may be borderline cases of defective or crucially incapacitated persons). If this is kept in clear focus, one will realize that a human community starts with no one superior or inferior regarding the issue of the authority to make law and to govern. Thus, democracy, a process, morally required by the right to take part in deciding political issues or the right to give consent to be governed. It is not a process that is applicable to everything one might want to influence, however. There is a proper sphere of democracy.

Some propose that democracy is unlimited — only the fact that people will things to be one way or another matters. Some interpreters of Locke have claimed this — e.g., Willmoore Kendall and his followers — as well as some liberals, e.g., Benjamin Barber, and some conservatives, e.g., Robert Bork. They tend to view democracy as a sort of nature community decision-making process to which everyone is naturally obliged to submit.

Yet, for Locke the justification for government lies in the need for the protection of natural rights, a protection not easily obtained (except by the strong) in the state of nature. So Locke sees the protection of everyone's natural rights as the proper purpose of government. Since establishing, maintaining and protecting government is itself a form of human activity that can be done well or badly, it must be guided by principles. These are our natural rights. The creation, development and operations of government may not encroach upon those rights, lest its proper role in a human community be undermined.

In any case, unless democracy is itself guided by norms — unless the people express and implement their will without violating anyone's rights - it becomes self-defeating. First, there is the problem that such a process is in violation of the rights of innocents who would be made victims of the use of arbitrary force. Second, unlimited democracy can, as noted earlier, undo democracy itself. If democracy, for example, is applied too broadly, it can lead to its abolition — the majority can vote itself out of power. Third, we could democratically vote to exclude some people from the voting process without proper (constitutional?) limits to the process. If by the democratic process the rights to life, liberty or property could justifiably be abrogated or violated, those taking part in the process no longer can act freely and independently. The majority can threaten their free judgments.

We can extend this analysis now to the realm of contemporary politics in Western democracies. Let's focus on the general situation in the United States of America today. Most people who invoke democracy to justify the myriad of public policy measures that violate individual rights do so only when it supports their agenda. Thus, it is OK to use democracy to rob the rich — it appears to make it valid public policy instead of theft. But if the poor or blacks or women or workers turn out to be outnumbered, then democracy is deemed to have gone too far. The reason is that democracy by itself is never enough for justice. There must always be some specification of those proper goals for which democracy is appropriate. The task of democratic political theory is, in part, to identify those areas of public life that should be subject to democratic decision making.

What are those areas? And why are they the ones?

Alone or with others, a human being may not do some things to other human beings. No one or group may take over another's life and property. That would amount to Murder, assault, kidnapping, battery, rape, or other forms of aggression. The mere fact that the numbers of those who take part in doing the act constitutes a majority makes no difference to the wrongfulness of the act, nor that a democratic procedure has been followed. Without the consent of those whose rights are to be violated such a process is unjust. It is wrong to steal on one's own as well as with the support of millions. It is wrong to enslave, to place others into servitude when they refuse, etc., no matter whether by oneself, with the minority or with the majority. Nor is it proper for majorities empower certain people, their political representatives, to carry out such deeds.

Chapter 8: Equality

The US Declaration of Independence tells us that the founders took it to be self-evident that "all men are created equal." Ever since critics of the idea of the free society have complained that this is nonsense because, in fact, we are quite evidently not all created equal. Indeed, they stress, the truth is we ought to be equal — it is only fair and just. So the role of force in society is not mainly to repel criminal conduct but to make us all equal in all important respects. The kind of equality critics of the American political tradition want is, for starters, impossible. In trying for it one immediately destroys any hope for it, since the enforcers will always be unequal to those at whom their force is targeted.

The only equality worthy of concern, because it is both possible and just, is the kind the Declaration mentions. We are supposed to have been created equal in the respect of possessing the unalienable rights to life, liberty and pursuit of happiness. In other words, we are all rights possessors (except some rare, crucially incapacitated people). That doesn't mean we are equal in our height, fortune, intelligence, looks or talents. Nor, especially, are we all equally well off or even ought to be.

The point of the Declaration's limited egalitarianism is to stress that a distinctive element of human social life is that despite all clear and undeniable differences among human beings, there are some basic principles we ought to respect and protect, namely, our fundamental rights as agents of our choices, ones that in society require this respect and protection. Moreover, when governments are instituted among us, the protection of individual rights is due to each member of society.

Any kind of broader egalitarianism is impossible. That is not, however, how many famous thinkers would have it. Consider the late Isaiah Berlin, who said that "The assumption is that equality needs no reasons, only inequality does so....If I have a cake and there are ten persons among whom I wish to divide it, then if I give exactly one tenth to reach, this will not, at any rate automatically, call for justification: whereas if I depart from this principle of equal division I am expected to produce a special reason."

Yet the case does not prove anything about equality, only about what is expected of one who sets out to divide things among a group, such as what parents do among their children, coaches among team mates, teachers among members of their class and so on. This is because, first of all, a duty exists to care for, train, and teach (respectively) the members of the group in question, not because the axiomatic value of equality as such. If, in contrast, one gives Christmas gifts differentially, depending, say, on how close one is to the recipient, such giving requires no justification at all, it's taken for granted. Even as one distributes candy on Halloween night, doing it unequally requires no justification; it depends on the age and other apparent attributes of the kids who come to one's door.

Experiences confirm these counter-examples everywhere. Evading them just leads toward undermining that one kind of equality among human beings that is possible and politically right, namely, the equal respect and protection of our rights, one that rests on the prior importance of fulfilling promises or compacts made between the people and their governments!

In any case, throughout nature, including human social life, ranking is unavoidable. No matter how much one might wish for it, there will always be better and worse cases of human conduct, institutions, products, and so forth. Not even those who preach full egalitarianism can stick to their "principles."

As an example, consider that famous liberal institution, National Public Radio and its various programs. (In England the BBC would serve as a case in point.) The sheer limitation of time faced in all programming requires selectivity and the elitism NPR practices belies its bleeding heart egalitarianism. The same is true of academic moral philosophy, which is dominated by egalitarian sentiments and ideas. Yet, in practice, academic moral philosophers are very picky about whom they will admit into their ranks. Such academic stars as John Rawls and Peter Singer are all housed in very highly ranked institutions, despite all their self-proclaimed egalitarianism. And if it were not they, it would be some others. It is impossible to adhere to egalitarianism, period.

We can look elsewhere for even better confirmation of the impossibility of the sort of egalitarianism championed by socialists and welfare statists. Consider how even non-commercial organizations select artists on the basis of some standard — my local non-commercial jazz and blues station constantly features favorites and lists the more renowned artists who take part in various public performances. The symphony in the region must select orchestras and compositions that will be featured. Museums have only so much space available to devote to featured artists. Scholarly journals cannot publish all papers submitted to them. Star systems abound everywhere. So what is available to us is not the kind of impossible egalitarianism socialists and other sentimentalists preach. Rather what we can aspire to is to rank on the basis of valid standards, ones that are difficult to identify but nonetheless our responsibility to discover and apply.

The rest of nature is differentiated mainly by reference to power or fitness for physical survival. Where human beings are different is not in being fit to be cut down to an equal status (on all vital fronts) but in the capacity to make as sure as possible that when they rank, they do it justly, based on merit, desert, competence, achievement and such and that in any case none have their basic rights violated.

Chapter 9: Fascism

Fascism is a political system based on the view that some inspired ruler should lead a human community so that as a whole that community would flourish. Fiercely anti-individualist, fascism is different from other collectivists systems by lacking any theoretical plan for public policy and leaving this up to the particular leader. Some fascists, accordingly, will rule with an iron fist, others with great laxity. One will impose a planned economy but leave artists unperturbed, others will clamp down on the humanities only to leave the economy substantially on its own.

The idea behind fascism is akin to a simple version of Plato's idea of the philosopher king who because of an unfailing attention to important matters, will know how to rule best. But unlike Socrates's support for this approach to governing human communities, at least in the ideal realm, fascists do not view it as feasible to offer a full justification for why a particular person ought to rule, nor why such a person ought to impose certain edicts. That is because the leader governs by inspiration, by virtue of having an ineffable personality and character, one that invites admiration and followers on an intuitive, non-rational level.

There is a version of fascism rarely identified, namely, the leadership of, for example, certain Native American tribes. The means of grasping how one ought to rule a tribe are often mystical, not explainable to members of the tribe. The chief rules by means of inspiration and trust, not rational understanding.

Fascist societies can very tremendously and still remain fascist — Spain's Franco, Argentina's Peron, Chile's Pinochet and Italy's Mussolini were all fascists leaders but exhibited different tendencies. Their common attribute was to have ruled with complete authority and without any need to explain themselves.

It is arguable that there is a democratic version of fascism, whereby the sheer will of the majority of those who vote suffices to produce public policy, without any need for further justification. Some Western societies exhibit this approach to forging public policy and law, although sometimes the approach is challenged when those championing it do not get their way. At that point demands for justification in terms other than the sheer will of the people are called for.

One reason fascism is appealing to some has to do with certain romantic aspects of the system. In the wake of scientism and the rationalism of certain strands of the Enlightenment, there emerged the post-modern attitude that had its first inkling in Existentialism, namely, to reject theory, to undo the grip a certain narrow rationalism and positivism has had on the modern mind. Since much of that is reductionist, dethroning human beings from their exalted status as the only animal close to the divine, there has been a reaction against it and fascism is the politics of that reaction.

Granted that scientism and reductionism fail to do full justice to the nature of human life, the fascist post-modern, anti-Enlightenment and anti-individualist stance is arguably extreme and quite unnecessary. Human life can be seen in its rich dimension without introducing ineffable elements, ones that cannot in principle be grasped by rational understanding. If that is what is embraced, however, there is a price to pay, namely, mass subservience to supposedly superior leadership. And, in this respect, the threat it greatest to liberty, since, to quote Lord Acton, "power tends to corrupt; absolute power corrupts absolutely." Of course, defenders of fascism will reply that while Lord Acton may have been right about ordinary persons, this insight does not apply to the great-souled leader. It is fair to say that history teaches the opposite - all of us are susceptible to the corrupting influence of unlimited power.

The genesis, moreover, of the appeal of fascism, this element of romanticism in the most Enlightenment era, is the result of the misapprehension of the reductionism that accompanied that era. Passion and reason are not enemies, choice is not a violation of science — all have a place in this vast, diverse universe in which human life is played out.

Accordingly, government, too, needs to justify itself, especially given the tools that it claims to require so as to carry out its task, namely, physical coercion or its threat. Fascists leaders would seem to try to avoid having to gain the consent of the governed by claiming that there is no rational mind to appeal to, it is all an Enlightenment myth.

Chapter 10: Humanism

In modern times humanism has been associated with Karl Marx and one of his teachers, Ludwig Feuerbach. The latter was an atheist who believed that it wasn't God who created man but the other way around. Since, however, this left no one to command us to do the right thing, an alternative source of morality was proposed by Feuerbach, namely, humanism.

A humanist argues, not unlike Socrates did, that ethics or morality rests on an understanding of human nature. What is right and wrong depend on what kind of beings we are. Because of our free will, we, unlike other animals, are capable of doing violence to our own nature. But we ought to choose to follow it, instead.

As it happens, Marx, who took quite a few of his ideas from Feuerbach, held a collectivist conception of human nature. "The human essence," he said in his famous essay "On the Jewish Question," "is the true collectivity of man."

So the desire to find ethical guidance from an understanding of human nature came to the advocacy of an out and out collectivist morality. If, as Marx held, we are specie-beings, so that our flourishing or development in life must be achieved together, in concert; if individuality is a myth and collectivity the norm, then humanistic ethics and politics will, accordingly, be collectivist.

The two most emphatic humanists of this kind were Karl Marx and August Comte. They both thought the only a secular understanding of human affairs made sense but they also embraced a conception of human nature that left little room for the fact of individuality.

As a result most humanists have been socialist or something close to that and have found capitalism anathema to human nature. This is unfortunate because although flourishing among others is an essential attribute of human life, the essential individuality of human beings cannot be denied. Even engaging in arguments testifies to this, let alone the incredible diversity evident throughout history and the globe. Indeed, it is arguable that the most genuine humanism is individualism.

The issue of humanism is vital for several reasons. Although fundamentalist religions will always be part of human life, there is also a growing awareness that ethics and morality, including our sense of justice, must gain a footing apart from theology or religion. The reason is that faith is ineffable, ultimately. It is too personal, too subjective, and thus it tends toward schism rather than harmony. Whereas the humanist idea that an understanding of human nature, based on science and ordinary human reason, holds out promise. Ethical ideals, if they are part of the human world, need to be ascertained in such a way that everyone who but consults his reason can grasp them. Such a replacement for more religious approaches to ethics, now that the world has become so small, is a welcome idea.

However, if humanism remains wedded to collectivism, it may turn out to be a false and dangerous alternative to religious based ethics.

Chapter 11: Individualism

Individualism is the view, put briefly, that human beings are identifiable as a distinct species in the natural world and have as at least one of their central attributes the capacity to be unique rational individuals. Whatever else, then, is central about being a human being, it includes that each one, unless crucially debilitated, has the capacity to govern his or her life by means of the individually initiated process of thought, of conceptual consciousness.

Furthermore, excelling as such an individual human being is the primary, proper goal of each person's life. A just political community, in turn, is one that renders it possible for this purpose to be pursued by all (or as many as is realistically possible).

As the novelist-philosopher Ayn Rand put the point — following similar observations by Aristotle and Thomas Aquinas — adult persons are "beings of volitional consciousness." This involves, among other things, the crucial capacity to choose to embark upon — to initiate — a process of (thoughtful) action.

If we are the type of entity that can be a causal agent, the initiator of its behavior, this serves as a crucial basis for individuation: different human beings will be able to and would actually choose to exercise their conscious capacities and direct their ensuing actions differently. Putting it more simply, if we have free will, our diverse ways of exercising it can make us unique. So even if there were nothing else unique about different persons, their free will could introduce an essential individuality into their lives. (This is something that will have a major impact on the social sciences, on psychology and psychotherapy, and, of course, on ethics and morality.)

Yet different people are also uniquely configured, as it were, as human beings; thus they can face different yet equally vital tasks in their lives. Our fingerprints, voices, shapes, ages, locations, talents, and, most of all, choices are all individuating features, so we are all unique. This is the crux of the individualist thesis. Nonetheless, since we are all such individuals, we constitute one species with a definite nature possessed by each member. This may seem paradoxical: one of the defining attributes of the human (kind of) being is the distinctive potential for individuality, based on both diversity and personal choice.

The position has certain implications that are very close to what is usually thought to follow from a somewhat different, often labeled "radical," individualism. These implications are the existence of the libertarian political ideas and ideals of individual rights to life, liberty, and property. We might call the earlier version of individual "atomistic" or "quantitative," while the latter "classical."

Atomistic or radical individualism is distinct. It is usually linked to Thomas Hobbes and his nominalist and moral-subjectivist followers. Its most basic, ontological thesis is that human beings are numerically separate bare particulars. Their individuality is quantitative, not qualitative, primarily consisting of their being separate entities, not of their capacity and willingness to forge distinctive lives of their own.

A problem some see with the neo-Hobbesian individualist tradition is that it implies that political norms are ultimately subjective — usually taken to be mere preferences. For Hobbes, to start with, "whatsoever is the object of any man's appetite or desire, that is it which he for his part calleth good: and the object of his hate and aversion, evil." So the classical-liberal polity is itself, by the tenets of such individualism, no more than some people's preference, one that others may not share, quite legitimately. As some critics have put the point, in terms of the Hobbesian individualist position liberty is just one among many different values people desire. This political tradition has, thus, been vulnerable to the charge of arbitrariness, of resting simply on preferences that some people — for example, the bourgeoisie, capitalists, or white European males — happen to have.

Even in Hobbes's time there were other versions afoot, usually linked to Christianity. By the tenets of a Christian version, each person is a unique child of God, thus uniquely important and not to be sacrificed to some purpose of the tribe or state, for example. This, at least, is one path to the conclusion that a just political community must make room for the sovereignty of the individual human being — one's ultimate and decisive role in what one will do, be it right or wrong. Another path is the secular, neo-Aristotelian view in terms of which while human beings are rationally classifiable as such, one of their essential attributes is that they can and usually choose to be unique. So, in contrast to Marx's claim that "The human essence is the true collectivity of man," the classical individualist holds that "The human essence includes the true individuality of every human being."

In the radical individualist tradition a major libertarian element is the subjectivity of values. Accordingly, free market economists have tended to reject all government regimentation of social affairs, seeing them as driven by subjective preferences that cannot be known to anyone other than those who hold them. Such a view has served to undermine all efforts to impose values on individuals.

The classical individualist position argues that values are objective but also most often idiosyncratic and require free choice to give them moral significance. This, too, prohibits government imposition of values but not for skeptical reasons. And it enables one to defend the political value of liberty is more than simply one of many subjective preferences.

As far as free markets are concerned, one main reason they function more successfully than statist alternatives is that in a free market individual aspirations, goals, preferences, values and such have a major impact on what will be produced. This, in turn, results in a more prosperous society than one where such individual goals and so forth are trumped by various so called public interest considerations that, in fact, are no more than the interest of vocal groups of individuals overriding that of others. Even the famous calculation problem identified by Austrian economists makes more sense if individualism is true. The reason governments cannot allocate or price goods and services properly is that such resources are ultimately (albeit objectively) valuable for individuals, not collectives.

The individualism that underpins much of libertarian political economy has vital implications for public policy. In the law, for example, the position of criminal culpability gains support from it. The rejection of collective guilt or pride in social theory also has its support. In environmental public policy it makes clear sense of the ubiquitous phenomena of the tragedy of the commons, suggesting that human beings must have an individual stake in caring for resources before those resources can be expected to be well cared for. Public officials, since they can only represent a very general public interest — to secure the rights of individuals — have no clear cut guide to policies of resource preservation and conservation.

Libertarianism is seen by most to rest on some version of individualism, although there are exceptions. Some believe that the betterment of society as a whole is what requires an individualist social and legal policy, even though there is nothing ultimately true about individualism. If, however, it is treated in public policy as if it were true, the results will be advantageous to the entire community. (Karl Marx held a view akin to this, claiming that for at least a stage of humanity's development, namely, capitalism, the illusion of individualism was very useful since it inspired a great deal of productivity.)

Still it is difficult to see how libertarians can avoid being also individualists. This is especially true of those who stress the need for the protection of basic human rights in the Lockean individualist position.

Chapter 12: Progress

In some realms progress means the creation of more and more efficient means by which to achieve worthwhile objectives. So we find that in the area of technology progress has been nearly undeniable (although some argue that with each improvement of the means to reach one worthy objective, the attainment of some other worthy objective has been impeded).

In the field of philosophy there have been some notable champions of the idea that not just humanity's journey in history but that of reality itself is taking a progressive course. The future, on the whole, is always an improvement over the past, not just technologically but ethically, aesthetically, politically and so forth. Hegel and Marx are obvious examples of progressivism but John Stuart Mill and Herbert Spencer are also likely candidates.

In contemporary science fiction the idea is commonplace that humanity is always lurching ahead and only through unnatural influences does it ever regress. There are detractors even here, one's who hold that the future will be worse than the past has been.

In particular there is a good deal of thinking that see the future improved by means of genetic engineering and other artificial means, to the point that some envision human beings improved intellectually and even morally. Arguably, however, such a picture challenges the idea that those who would embody these improvements would still be human beings. This is because one of the most well entrenched conceptions of human nature is that we are all capable of both good and evil, regardless of our levels of intelligence. So while progress may be possible in one or another special region of human life, the idea that humanity in its essence might somehow become upgraded is likely to be wrong.

What is likely is that progress of the fundamental sort that motivates the works of optimistic science fiction writers can take place only in the course of an individual's life. Someone may become a better and better person, yes, although even there nothing is guaranteed. Certainly one can improve skills and techniques, play an instrument, play a sport better and better up to a point. Although the inevitability of death and old age seem to place a limit before everyone's progress.

When one is inclined, as have been Hegel and Marx, among others, to treat humanity (even reality) as a developing organism, the idea of holistic progress comes naturally to one's mind, since the organisms with which we are familiar, including ourselves, do undergo progress. But the extrapolation is probably mistaken. Progress of the kind that would in the future remove the necessity for individual effort, for vigilance and tenacity is not likely to be possible.

In general the kind of progress that is reasonable to strive for in human communities has to do with individual self-improvement, some measure of improvement on the system of laws, and the overall deployment of technologically improved means for doing what is important to people. None of this, however, can reasonably be guaranteed or expected and regress, stagnation, as well as progress, are always a possibility.

Chapter 13: Government Regulation

In the USA there are two well known legal principles that are invoked to give government regulation of business legal justification. They are the federal constitutional provision of the interstate commerce clause and the common law provision of the police power of government.

Article I, section 8 of the US Constitution contains the provision that Congress has the power to regulate interstate commerce. The colonies had engaged in various mercantilist economic practices — imposing duties on imported goods, restricting trade, etc. — and this needed to be stemmed.

The police power, in turn, is a legacy of feudalism where the king is responsible for how communities are shaped. This had been imported into American law from England and other European countries.

As to the moral or philosophical support for government regulation, there are essentially four arguments for it: the creature of the state argument we already met with, advanced by Ralph Nader and his followers; two types of market failure argument invoked by, among others, John Stuart Mill and John Kenneth Galbraith; positive rights to provisions argument advanced by such political philosophers as Alan Gewirth and John Rawls; and the judicial inefficiency argument proposed by the Nobel Laureate economist Kenneth J. Arrow.

Creature of the State: The first argument states that corporate commerce is a creature of government itself — it was brought into existence by acts of the British mercantilist government so as to enhance the wealth of the country. Since government created them, it is authorized and indeed ought to regulated them to accord with the public purpose. Clearly, morally, if one has created something, one is responsible for it and may do with it what is reasonable, responsible.

Market Failures: Although the free market is generally a good provider of goods and services, sometimes it is inefficient. For example, this happens when public services such as the provision of electricity or water is involved. There competition involves duplication and thus inefficiency in the use of resources. So companies should be made into monopolies or taken over by the state. Throughout the world this view has led to the abolition of free markets in some industries and the institution of extensive government regulation of prices, wages, labor relations, etc.

Others have gone further and said government must correct the unwillingness or inability of markets to provide certain values — for example, public libraries, which the market will not furnish. Government regulation, then, is but the legitimate effort of a government to remedy what the market ought to but fails to achieve. We know what these are through the vote. The underlying idea here is utilitarianism — the central obligation of the state is to secure the greatest happiness of the greatest number and when the market fails to achieve this, government must step in with its remedial regulatory policies.

The Positive Rights argument: Some hold that we have basic human rights not only to not be killed, assaulted, or robbed (to life, liberty and property, that is) but also to be provided with various goods and services from other persons around us. The positive right to health care, social security, public education, unemployment compensation or safety and health protection at the work place are examples. Government is established among us to secure all these rights and government regulation must be instituted so as to adjust private endeavors so that these provisions will be forthcoming. The argument is really dependent for its force on the theory of positive rights.

Judicial Inefficiency: Some social problems that privatization cannot solve, namely, some kinds of pollution. When A pollutes the air mass and B suffers as a result of this, neither can A find B so as to secure permission, nor B find A to launch lawsuit. So there is neither a market nor a judicial solution available to the parties. Ergo, government must take over and regulate the sphere of judicial inefficient human endeavors. (This is not so much an argument for government regulation of business as one for government administration of what some view as unavoidably public spheres.)

What about these arguments, then?

Companies are not state created: A fact of history does not establish a moral claim. States used to establish churches and printing presses, yet few defend their authority and responsibility to do so in Western countries, seeing that they should never have done so in the first place. It was learned that the state's sovereignty meant the sovereignty of some people over the lives of other people and so the idea developed that, instead, individuals ought to be recognized as sovereign. And if individuals are sovereign, there is no justification for regulating their lives, be it in commerce, religion, romance, or athletics.

Market vs. Political Failures: The argument that because some inefficiency may occur in the market, we ought to place the matter into the hands of government ignores individual rights and state inefficiency. When an industry is taken out of the market, competition ceases. Work stoppages or strikes can shot down the entire industry leading to restrictions on the free movement of laborers. That too high a price to extract for efficiency and, indeed, far more inefficient than occasional duplication of facilities and resources.

As to the values the market does not always provide, it is once again dubious to suppose that government will supply them in the right proportion, according to a sound set of priorities, effectively, without enormous cost at some other point of the social order. Libraries are now nearly obsolete, except for a few people who could probably be helped much better without building them. Government response to political sentiments expressed in the voting booth is extremely risky since such sentiments are merely voiced, not reconciled with one's budgetary restrictions. Furthermore, the creation of the common pool or valued resources creates a tragedy of the commons, whereby people recklessly overuse resources and create, as is quite evident, huge debts and deficit spending by the state.

The Myth of Positive Rights: We do not have positive rights — because we are not owed servitude from our fellow citizens. Yes, our parents and some next of kin have some responsibility to help us reach maturity. But thereafter we must secure what we need and want by way of voluntary exchange, not government protection of positive rights. These rights are impossible to protect consistently, anyway, and are certainly their protection makes protecting negative rights — our rights to life, liberty and property — impossible. If doctors have the right to liberty but patients the right to be healed, what if the doctor chooses to attend the graduate exercise of his or her daughter but someone in the neighborhood has a right to be healed? Whose right prevails? And one what basis is that going to be decided, now that the system of rights has been corrupted?

Restoring Judicial Efficiency: What of the troublesome case of judicial inefficiency? The problem is not helped at all by government regulation — it merely produces discontentment and injustice. Government cannot rationally decide which firm or individual ought to dump harmful wastes on to others' bodies and properties. It cannot establish collective priorities for individuals who are diverse and may flourish in utterly different ways.

Even in public spheres dumping may not be undertaken when no permission can be obtained, unless the result does not increase the prevailing risk of harm to individuals. When manufacturing firms pollute, they utilize other people who did not give their permission for their own purposes. They avoid the full cost of their activities by stealing the resources of others, sometimes even others' lives.

The way to control pollution, then, is to invoke a strict enforcement of personal autonomy and to privatize as much as possible. In areas were this is difficult, a policy similar to what must be done in case of highly communicable diseases needs to be implemented, namely, quarantine.

Generally, government regulation assumes that some people happen to be superior in intellectual and moral gifts than others and that they can be identified and it is wise for them to assume superior powers of the rest of us.

When the government — any branch, any level — regulates, it practices a form of tyranny. It is not the sort we usually dub by that term, ones we know via Soviet (Stalinist) or National (Hitler's) socialism. Those were massive, totalitarian tyrannies.

The kind where government keeps nagging people in nearly every profession (except those protected by the First Amendment's prohibition of regulation) is more petty, less dramatic, less dire. But it is tyranny, nevertheless.

The reason is actually quite simple: government regulation aims to prevent mishaps by forcing people to act in ways government experts believe are safer, fairer, less difficult to understand than what government believes life should be. It is what we might call a form of preventive justice, by exactly the means that the criminal law prohibits — as noted before, a kind of prior restraint.

Crime fighting does not permit restraining people because they might behave harmfully, injuriously, dangerously. Everyone can, even if they will not, choose such behavior. But the law is supposed to punish people only if they have been proven to act harmfully, hurtfully. It is not supposed to second guess how people might behave and then restrain them, not in a free society.

Government regulation of industry, transportation and various other professions amounts to treating people as if the government were our parent who needs to make sure we do not run risks. But the government is not made up of superwise people, gods, who have the authority to guide what we do in life. Tyrannies do that and they are politically evil. Government regulations are evil, too, in less dramatic ways.

Proponents of government regulation think government must prevent bad things from happening, even if our rights are violated thereby, and the cost is of secondary significance. They see government as upholding principles of justice when it regulates people's activities who have done nothing harmful but merely could do so.

In a free society it is only once harm is done to others — or when there is a clear and present danger of such harm being done — that government has the authority to act against people's plans, purposes, wishes. The mere possibility of harm is no justification for government action.

Machan, who teaches at Chapman University in Orange, California, advises Freedom Communications, Inc., on public policy matters. His most recent book is Initiative — Human Agency and Society (Hoover Institution Press, 2000). His email address is Tibor_R._Machan@link.freedom.com.