Olson on Rights and Ethics

Mark Olson of Pseudo-Polymath has a post about rights and ethics in competition that I must respond to more fully than I already have in the comments on his blog. To begin with, I must take issue with his characterization of the dispute:

The two extreme positions on such laws lie between the Libertarian/Rights based stance of feeling that the law should provide complete license with regard to what is allowed between consenting adults and the Liberal/Conservative/Ethics based stance which holds that laws should support and agree with the ethical values we "should" hold (Liberals and Conservatives differ somewhat on what those ethics might be).

As I explained in a comment on his blog, I think this is a false dichotomy. The libertarian/rights position is an ethical position. That position (my position) maintains that it is immoral to deprive another person of his right to self-determination unless his behavior is harming another person against their will or depriving them of their right to self-determination. It is an unjust and illegitimate exercise of authority. So this is not simply a matter of "rights" vs "ethics"; there are objective ethical conclusions on both sides.

He then goes on to make the case for what he terms the "ethics" position and to argue that the rights position only makes sense in a world in which men are all perfectly moral on their own:

If men were not men, but of sterner (or finer) stuff the Rights based position would be clear. But alas, we are not made of such stuff being neither angels or demons. If men would base their actions not on outer societal pressures but on inner ethical ideals carefully thought out and reasoned, then the Law would be mostly unnecessary. It would serve mainly as a guidepost to adjudicate and set down the rules for how a society might navigate between men when their ethical imperatives were in conflict. But a world such as that is unreal. It is an ivory dream fashioned by men in towers...

The Ethics position is one where it is felt that society needs to assist in providing an ethical framework for its citizens. It is felt without that, men are not strong enough be ethical and moral creatures without external guidance.

The answer to this argument, in almost precisely the same terms, was given by Thomas Jefferson two centuries ago when he wrote, "Sometimes it is said that man cannot be trusted with the government of himself. Can he, then, be trusted with the government of others? Or have we found angels in the forms of kings to govern him?" The problem with Olson's argument is that governments are of course run by the same fallible men upon which he bases his argument for the need of laws mandating personal morality. Surely if I am not capable of making my own decisions, I am even less capable of making decisions for others. I would argue that the non-existent ivory tower position here is the one which maintains that we have a perfect measure for personal morality that allows us to use the power of the state to coerce uniformity of opinion and behavior. Again, Jefferson has the answer: "The care of every man's soul belongs to himself. But what if he neglect the care of it? Well what if he neglect the care of his health or his estate, which would more nearly relate to the state. Will the magistrate make a law that he not be poor or sick? Laws provide against injury from others; but not from ourselves. God himself will not save men against their wills."

The only objective standard by which we can draw the line between a just law and an unjust law is the place that Jefferson himself drew it, at the point where the actions of one person harm another against their will or deprive them of their equal rights. In his first inaugural address, Jefferson said: "A wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government, and this is necessary to close the circle of our felicity."

Indeed, one need only look at Jefferson's words in the Declaration. Governments are instituted not to enforce a moral code but to secure the rights of the individual, among which are the rights to life, liberty and the pursuit of happiness. One man may pursue happiness by living in a nudist colony, another may do so by living a life of Christian piety, a third by writing outrageous fantasy novels. As far as the government is concerned, there is no difference between any of these choices. None are within the purview of the government or within its legitimate sphere of authority unless their behavior injures another person or deprives them of their equal right to pursue happiness.

Governments are instituted among men not to decide which of these decisions is better or more ethical. Governments are instituted among men only to secure the right of each person to determine for themselves what is most conducive to their happiness, intervening only to protect one from another, not from the consequences of their own choices. This is the essence of a free society. If fallible men are not capable of governing themselves in this way, the fact that governments are run by men is a powerful argument against giving to government the authority to regulate such conduct.