Chad Perrin: SOB

21 February 2008

libertarian paternalism, and the question of legal maturity

Earlier today, Ogre sent me a link to an article about the UK’s plan to make people get licensed to smoke. I read this incredible (not in a good way) article with something akin to creeping disgust. The idea, in short, is that smokers would have to buy a permit from the government for £10 every year to be allowed to purchase cigarettes.

I suppose some might think that cigarette taxes and permit programs like this are justified as long as there’s a national healthcare system to pay for everyone’s hospital use and the like, since smokers are more prone to health problems, making it only fair to charge them extra. Aside from the fact that it being only fair to charge people who get sick more often more money to pay for the healthcare system sounds like an argument for privatized healthcare, there’s another problem with this argument. I’ll present it in bullet-points for the attention span impaired:

In other words, smokers aren’t just paying their own way — they’re subsidizing everyone else’s healthcare, too. I guess picking one underrepresented group to gouge for all they’re worth is one way to make a system solvent that would otherwise probably collapse under its own fiscal weight. It’s certainly a very democratic solution — let the two wolves and one sheep vote on what to have for lunch. Remember that in the UK sheep can’t legally get guns to contest the vote.

Reading this sort of article might make some US citizens feel better about living in the US: for all the problems our government has with the concept of “life, liberty, pursuit of (happiness|property)”, at least we aren’t in the UK. Right? We’re still a bastion of freedom, comparatively speaking.

My thoughts run somewhat differently. This doesn’t make me feel any better about the US — it just makes me feel worse about the rest of the world. That the US may still be the most free industrialized nation on the planet is very, very depressing — considering the level of freedom “enjoyed” here.

Okay, so to the reason I started typing up this entry at SOB in the first place — here’s a quote I found “interesting” from the article:

Le Grand said the proposal was an example of “libertarian paternalism”. The government would leave people free to make their own decisions but it would “nudge them” in the right direction.

My first reaction to this should be predictable. Here it was, in IM conversation with Ogre:

Me: WTF is this “libertarian paternalism” crap?

Ogre: well, he’s british.

Ogre: I’m not surprised to find out he literally doesn’t know the definition of “libertarian”

In a general sense, Ogre has a point. It seems like quite a few people from a certain subset of industrialized nations suffer that same handicap. After some thought, however, I came to the conclusion that maybe Julian LeGrand really does know what he’s talking about in this case. What he said can, in fact, make some sick kind of sense, if you tilt your head to the left, squint your eyes, and pretend you’re a willfully ignorant right bastard with an overweening, unjustified sense of self-importance. I’ll try to explain.

First, on the subject of children:

I can’t think of a really supportable libertarian argument that three year olds, in the real world, should generally be allowed to make all their own decisions without interference. If the kid wants to touch the hot burner on the stove, one should not take a libertarian hands-off approach to parenting and just say “That’s a bad idea, but it’s your decision.” Completely aside from the fact that your authoritarian government would throw your ass in jail and give your kid to a crack-smoking three-dollar whore running a foster home for the government handouts, that’s just a damned cruel way to raise a child. “Go ahead — lose a finger, kiddo. Maybe you’ll learn something from the experience.”

There are a number of different answers to the question of how one determines that a human being has reached a level of maturity suitable to making one’s own decisions amongst libertarians (and others, though “others” generally have a less encompassing notion of what “making one’s own decisions” actually means, obviously — so they don’t count). Probably the most common is to simply not think about it, and to accept the idea of letting government set an age limit arbitrarily for various types of (at least nominally) “adult” decisions. Some (like me), on the other hand, consider this a ridiculous approach — it ignores people who mature more quickly, and people who are still essentially children at age 30, to set some arbitrary chronological criteria for “adulthood” like “I’m eighteen, so I’m mostly an adult, except for that whole alcohol thing.” My take is that adulthood should consist of a combination of a legal test and assumption.

Think about it: a legal “minor” in the United States is barred from making all sorts of decisions for him or her self. A legal “minor”, say fifteen years of age, cannot just walk out of the house one day and get a job in a chemical plant, rent an apartment, and live parent-free, generally speaking. The exceptions involve either flying under radar (doing so “illegally”, in other words) or legal emancipation.

A minor can sue for emancipation. This involves a lengthy court process whereby the “child” proves to some legal standard that he or she is, in fact, possessed of the maturity of an adult. This then releases him or her from the fetters of parental oversight, granting recognition to a nontrivial degree as a legal adult — though some things are still reserved to age, of course. Can’t have an arbitrary measure of “adulthood” with complete exceptions — parents’ groups would be up in arms over fourteen year olds suing for emancipation so they can go get drunk at a fraternity house party. We all know how influential these parents’ groups can be when it comes time for getting elected to office.

Perhaps, then, the answer is to treat the matter of adulthood entirely as a matter of legal rights and responsibilities possessed by the individual. If parent and child effectively agree on an age of emancipation, no legal involvement is necessary — unless something happens to the “child” in question, and criminal negligence on the part of the parent in freeing the “child” from parental control is determined to be a factor in the unfortunate event. If they disagree, an emancipation proceeding may be necessary to determine whether the “child” is in fact entitled to emancipation, and whether the parent is in fact freed from legal parental responsibility. The whole thing could be run on an “innocent until proven guilty” basis, and may even be wildly successful at reducing the number of 23 year olds who do insane things that get people killed, while allowing the particularly perspicacious to get out from under the yoke of parental oppression at an earlier age. Good parents, too, would be rewarded while bad parents might substantially be made better. Nice how eliminating arbitrary limits and giving people the freedom to enjoy their rights can make the world a better place.

So . . . what does this have to do with cigarette purchase licensing in the UK and the term “libertarian paternalism”?

Simply put, the key is in the word “paternalism” and a more common term for the same sort of governmental behavior: “nanny state”. It’s possible — if you tilt your head to the left, squint your eyes, and pretend you’re a willfully ignorant right bastard with an overweening, unjustified sense of self-importance — to imagine that you’re a libertarian while charging £10 annually for a license to smoke, even if you understand what the word “libertarian” means. The key is in the definition of “adult”.

One might simply assume that, to some degree, all people are children unless they meet some arbitrary, government enforced criteria — and that one may cease to be an adult in old age, as well as growing to be an adult at a younger age, and possibly even have fluctuating levels of adultness over the course of a life. If that’s your basis for determining adulthood, government suddenly has a responsibility to monitor one’s adulthood, and to act to some degree as a parental unit. This basically turns my above-described solution to emancipation on its head, assuming childhood with the state as ultimate guardian, rather than assuming adulthood when all involved individuals mutually agree. It’s assumption of guilt — which is normal for the British criminal “justice” system, anyway.

If you’re going to use arbitrary measures like whether or not someone has reached the age of 18 for “allowing” some “adult” decisions, one may as well use other arbitrary measures. Why not an annual license? Perhaps, being older than 18, you have the “adult” decision-making ability to determine whether you should have the “adult” decision-making ability to purchase cigarettes — and paying £10 proves you have enough disposable income to support your habit and the idea that you’re a self-sufficient adult! It’s hopelessly meta, and terribly illogical, of course — even if it can be a dangerously attractive train of thought for the weak-minded. It doesn’t require that one fundamentally misunderstands the concept of “libertarian”, though. It just requires that one be a willfully ignorant right bastard with an overweening, unjustified sense of self-importance.

That, or maybe a garden-variety idiot.

All original content Copyright Chad Perrin: Distributed under the terms of the Open Works License