How free should we be?

On Independence Day a few years ago, I pondered, “What the American Experiment means to me.” I concluded:

…the American Experiment is, to me, about liberty: the liberty to live your life as you see fit and to pursue happiness in your own way, as long as it doesn’t impede anyone else’s pursuit. 

This is nothing more than my less eloquent restatement of the philosopher John Stuart Mill’s famous “Harm Principle.” In his 1859 essay On Liberty, Mill argued that “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”

In my meager defense, I would note that this wasn’t an original argument even in 1859. Back in 1785, Thomas Jefferson—the primary author of the Declaration of Independence which we celebrate today—wrote: “The legitimate powers of government extend to such acts only as are injurious to others.”

Freedom vs Negative externalities

This principle sounds simpler than it is. The economist Tyler Cowen recently asked the economist Joseph Stiglitz: “Do you favor the deregulations of the current YIMBY movement — allow a lot more building?” Stiglitz replied:

No. That goes actually to one of the themes of my book. One of the themes in my book is, one person’s freedom is another person’s unfreedom. That means that what I can do . . . I talk about freedom as what somebody could do, his opportunity set, his choices that he could make. And when one person exerts an externality on another by exerting his freedom, he’s constraining the freedom of others.

If you have unfettered building for instance, you don’t have any zoning you can have a building as high as you want. The problem is that your high building deprives another building of light. There may be noise. You don’t want your children exposed to, say, a brothel that is created next door. In the book, I actually talk about one example. Houston is a city with relatively little zoning, and I have some quotes from people living there, describing some of the challenges that that results in.

For this, Stiglitz has drawn a degree of ire from “free marketeers”—among whom I include myself—and he certainly overstates his case: “[O]ne person’s freedom” is not always, or even often, “another person’s unfreedom.”

But it is also true that there are situations where one person’s exercise of their freedom—their “pursuit of Happiness” as Jefferson put it in 1776—does impede somebody else’s. These acts are “injurious to others” and are acts to which “[t]he legitimate powers of government extend.”

What economists call “negative externalities” do exist and the example of property and zoning illustrates this nicely. A negative externality occurs when someone who gains all the benefits of an action does not bear the full costs of it. So, while cranking “The Nile Song” all the way to 11 at 3am might be my idea of fun, my neighbors might not agree. They are bearing some of the cost of my “pursuit of Happiness” and this is “injurious” to them and, so, it is subject to “[t]he legitimate powers of government” like a noise ordinance.

Likewise, if I build a multi-storey development right next to small houses which have stood there for over a century, blocking out their light completely, my “pursuit of Happiness” is “injurious” to the residents of those small houses. It can, then, be said to be subject to “[t]he legitimate powers of government” like zoning laws.

It is not sufficient simply to say that what I do on this side of the property boundary is my business and what you do on that side is yours. And, in truth, nobody really believes this, however many such poses are struck on social media. Few, I hope, would agree that a person who owns property next to a school should be free to open a brothel there, as in Stiglitz’ example. But if you agree then you have conceded the principle that there are limits to what one person may do in their “pursuit of Happiness,” even with their own property, and what we are left to debate is where those limits are.      

Negative externalities vs Freedom

The setting of these limits is the stuff of politics, but we must be careful. If one looks hard enough, one can find negative externalities and an excuse for government intervention almost anywhere.

Prohibition is a good example. The Temperance campaigners who brought us the disastrous prohibition of alcohol argued that it was required for the benefit of both the drinker and society as a whole. Clearly, the former argument would fall foul of Jefferson’s statement of the “Harm Principle:” You can be as “injurious” to yourself in your “pursuit of Happiness” as you like.

Recognizing this, perhaps, the heirs to the Temperance campaign who argue now for the continued prohibition of marijuana lean less on the argument that the user is injured by the consumption of marijuana and more on the argument that society is injured via negative externalities. Legalization of marijuana is said to increase crime, road accidents, and depress the economy generally. So, while legalized marijuana is also said to increase drug use and lead to more suicides, these arguments would not meet Jefferson’s “Harm Principle” criteria, and the modern prohibitionists use those arguments that do, via negative externalities.

Staying with the subject of bodily autonomy and medical freedom, the arguments in favor of COVID-19 vaccinations were couched less in terms of the benefits to the individual—again, you can be as “injurious” to yourself in your “pursuit of Happiness” as you like—and more in terms of the benefit to society as a whole of “slowing” or “stopping” the spread of the virus. Because of such alleged “injurious,” negative externalities from consumption/non-consumption, the question of what substances—marijuana or COVID vaccines—an individual is allowed to put into his or her body can become subject to “[t]he legitimate powers of government.”

Freedom first

What is a policy maker to do? What principle to guide action can we draw from this?

On the one hand, it would be absurd to deny that negative externalities exist, and, consequently, that there are areas of individual action which are subject to “[t]he legitimate powers of government.” Even a libertarian might concede this if it stops me waking them up with Pink Floyd at 3am.

But, on the other hand, it is also true that, as the poet John Donne wrote in 1624:

No man is an island,

Entire of itself;

Every man is a piece of the continent,

A part of the main.

Many of the actions we routinely take impose some externality—big or small, positive or negative—on somebody. If we subject all of these to “[t]he legitimate powers of government,” we are left with the government micro-managing our lives. What, then, of the “liberty” which Jefferson listed before the “pursuit of Happiness” 248 years ago today? American conservatives are, after all, in the unusual position among conservatives globally of the tradition they seek to conserve being one of liberty.  

The best I can offer is that we should always look skeptically on claims for government action to remedy negative externalities; our default position should always be for liberty; the burden of proof should always rest with those who would restrain it; and they should always have to clear a pretty high bar to do so. Maybe this sounds a little fuzzy, but then life often is.  

Happy Independence Day to you all.