Friday, September 22, 2017

Reasons to tolerate

Libertarians, by any way of measuring, are a small minority.  The supposed “libertarian moment” of the 2016 election ended with about 3% support for the libertarian candidate.  A libertarian-led politics is not coming any time soon.  Nor is, for that matter, an egalitarian politics, or even a utilitarian politics.  Indeed, our politics shouldn’t be strictly libertarian, or egalitarian, or utilitarian, or anything else.

We often see political campaigns – on the right and the left – promise a “political revolution” in one form or another, led by the ideals of some moral-political theory. These tend to run aground in democratic polities for a fairly simple reason: most people disagree with them.  We have a diverse range of views of what constitutes a good life, and what people take to be the right moral system.  Indeed, the point of politics is to find ways for people to get along even though they disagree about important moral issues.  Liberalism is in part a set of tools for managing this sort of political diversity.

Classical liberals have a rich set of tools to support a robust account of tolerance.  The most obvious tool is the non-aggression principle.  Put simply, we don’t get to force people to do what we’d like them to do.  This is usually taken to be a bedrock principle, but it’s not hard to see how this might have developed pragmatically.  For instance, there is the fact of diversity: people disagree.  So one response is to tolerate others.  Pragmatically, this may be a good move, especially for those with minority views, like libertarians.  Tolerance ensures that you’re not dominated by some stronger political coalition.  Even if we think about a historically more-or-less equal power balance, like Democrats and Republicans in the United States, tolerance is a good idea.  Otherwise, the two parties would just take turns oppressing the other.  Rather than subjecting themselves to that kind of abuse, sensible people can decide to mutually disarm. This only takes us so far, though.  After all, another approach to dealing with the fact of diversity is to try and eliminate it, if you think you have the power to do so.

So then, what’s a more interesting, and perhaps more sustainable way of grounding toleration?  Classical liberalism has another approach, which is to show us that diversity is more of a strength than a problem to be solved.

Libertarians, egalitarians, and utilitarians (amongst others) don’t merely disagree about what sorts of policies we ought to favor.  Their disagreements run far deeper than that.  They disagree about what the world is like, and what we should be measuring when we talk about what makes a policy better or worse.  Where libertarians are worried about a robust set of negative rights that prevent interference from others, egalitarians are worried about more equal distributions of resources.  Utilitarians are concerned with increasing social welfare, even if it comes at a cost of equality or in the scope of negative rights.  Each of these political philosophies comes with a perspective on the world – these perspectives help to make them very sensitive to evidence that’s salient to their way of looking at the world, but largely ignore other sources of evidence.  To put it in a more mundane setting, if Alice is a committed vegan, she doesn’t care about the subtle differences between cuts of beef.  It’s all something that she wouldn’t eat.  Bob’s calorie obsession might make sense given his weight-loss goals, but Carol is a struggling student and is a lot more worried about prices.  She doesn’t have the energy to devote to worrying about calorie counts when she’s trying to stay within a tight budget.  Even when looking at the same things in the grocery store, each of them would group the products differently, because they are all paying attention to different features of the foods (whether it is vegan status, caloric content, or price), and not paying attention to others.

Hayek noticed this in the context of markets.  Central planners fail and markets succeed not merely because the “calculation problem” of how to best allocate resources for production is too hard, but because central planners don’t even know what resources are at our disposal, and what uses we could put them to.  Markets help us discover what our resources are, what uses we can put them to, and how we can engage in production.  Markets create incentives for all of us to contribute little bits of knowledge into a whole that none of us could conceive of our own.  Competition, thus properly understood, isn’t just pitting two strategies against each other in a static market, but coming to learn more about the marketplace and taking advantage of this knowledge.  Diversity is a boon to markets, because diversity is instrumental in this process of discovery.

Precisely this insight can be brought to bear in our political life.  Our social and political lives are far more complex than our market lives – why would we think that a central planner, whether that came in the form of a single person, or a single way of thinking embodied by a perspective and its attendant political philosophy, could do a good job of determining the right rules or policies for governance?  No political theory captures everything that we have reason to care about – the world is far too messy.  Instead, we need a competition amongst various perspectives, bringing new insights to bear on how we can piece together the rules for living together.

This way of thinking, which I develop in considerably more detail in my recent book, Social Contract Theory for a Diverse World: Beyond Tolerance, suggests that we have a self-interested reason for not just tolerance, but a positive interest in fostering a more diverse society. All of our perspectives are limited, but creating a political environment where many different perspectives compete helps us discover a better set of rules for all of us to live by.

Ryan Muldoon is an Assistant Professor of Philosophy at the University at Buffalo.  He is the author of Social Contract Theory for a Diverse World: Beyond Tolerance (Routledge).



Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/23/reasons-to-tolerate/

Sen. Casey returns a blue slip for Stephanos Bibas

I blogged a while back on the good news that University of Pennsylvania Law School professor Stephanos Bibas was nominated to fill a judgeship on the U.S. Court of Appeals for the 3rd Circuit. Having flagged the nomination before, I thought I would add the good news that Sen. Bob Casey (D-Pa.) reportedly has returned a blue slip on the nomination.

As far as I can tell, the Bibas nomination hasn’t gathered any particular opposition. The American Bar Association gave him a unanimous well-qualified vote, its highest rating. A law-professor letter gathered lots of big-name signatures, and if you scan through the list of names, you’ll see that most of them are on the political left (including some, I think it’s fair to say, on the pretty far left). A Supreme Court practitioner bigwig letter also had some good bipartisan support, including from Seth Waxman and Donald Verrilli.

I realize that different readers will have different views about what the Senate should do with respect to President Trump’s judicial nominations. It’s a political process, and I don’t claim to know all the politics behind all of the different nominations. But in a rational world, the Senate would confirm Bibas. I’m glad to see that it seems to be on track to doing so.



Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/22/sen-casey-returns-a-blue-slip-for-stephanos-bibas/

Libertarian property rights and the Lockean sufficiency proviso

John Locke’s Second Treatise of Government (1689) contains a defense of private property that makes use of the idea of labor-mixing. In §27, Locke writes: ‘[…] for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.’ The ‘at least’ clause has become known as the ‘Lockean proviso’. It is usually understood as specifying a limit to labor-based acquisition of private property.

Since libertarians care a lot about private property and its justification, the Lockean proviso has been an important tenet in libertarian theories of justice. In fact it has become common to distinguish ‘right-libertarian’ and ‘left-libertarian’ theories of justice according to their stance on the Lockean proviso. Right-libertarians either reject the Lockean proviso or endorse very weak interpretations of it, while left-libertarians endorse some egalitarian interpretation of the Lockean proviso (which allows appropriation until one has one’s equal share of natural resources or as long as the appropriation is compatible with equality of opportunity for welfare).

In between right- and left-libertarianism, there is room for moderate interpretations of the proviso, and in particular for a sufficientarian interpretation, a sufficiency proviso. It is remarkable that this option has rarely been defended. The resulting theory of justice can be called ‘moderate libertarianism.’ In my article in the Routledge Handbook of Libertarianism, I make a case for moderate libertarianism, so understood. I argue that moderate libertarianism has advantages over both left- and right-libertarianism because it better coheres with the most plausible rationale for endorsing a libertarian theory of justice in the first place.

What is this rationale for endorsing a libertarian theory of justice? It starts with the rather trivial fact that persons are purposive beings. They have the capacity to pursue all kinds of projects. Almost all projects require external resources, and they require being able to count on one’s resources. For that reason, persons as project-pursuers need the opportunity to acquire private property in external resources in one way or another. Following Eric Mack, one can take this to establish a ‘natural right to the practice of private property’. Together with the idea of self-ownership, this natural right can be regarded as the core of a libertarian theory of justice. Note that the project pursuit rationale for libertarianism does not rely on the moral force of Lockean labor-mixing. Rather, private property as a practice is justified as being responsive to persons as project pursuers.

The point of my article is not to defend the project pursuit rationale for libertarianism. What I aim to show is that if one embraces a libertarian theory of justice due to the project pursuit rationale, then one should also embrace a sufficientarian proviso. The basic idea is simple: Without sufficient resources, people are unable to live their lives as project pursuers. Because this is so, a libertarian who advances a libertarian theory of justice because s/he cares about people as project pursuers must also care about everyone actually having sufficient resources for living a life as a project-pursuer. This is why some sort of sufficientarian proviso should be incorporated into a libertarian theory of justice.

In my article in the Routledge volume, I spell out why a sufficiency proviso is superior to the Lockean provisos advocated by left-libertarians like Hillel Steiner or Michael Otsuka and to those advocated by right-libertarians like Robert Nozick and Eric Mack. Here, I will limit myself to presenting some more details about the sufficiency proviso as I conceive it.

First of all, my sufficiency proviso does not apply to specific acts of appropriation, but to the practice of private property as a whole. The practice of private property is justified because private property is necessary for living as a project pursuer, but it can only be justified under condition that it actually enables everyone to live as a project pursuer.

Second, the sufficiency proviso does not unconditionally require us to bring everyone above the sufficiency threshold. The proviso only prescribes that the practice of private property should be designed in a way that makes sure that everyone has sufficient resources to live as a project pursuer, if this is possible without undermining the point of having a practice of private property in the first place. This admittedly does leave quite some room for disagreement about when the point of having a practice of private property is undermined, yet I think this is unavoidable.

Third, the sufficiency proviso does not require that everyone must have sufficient resources left for initial appropriation. What counts is not that everyone can initially acquire things, but that everyone can come to own and use sufficient things. It does not matter whether one gets property via free exchange, gift, or initial appropriation.

Fourth, libertarianism as a theory of justice is silent on the institutions that are most appropriate to meet the sufficiency proviso. It seems natural to think that the proviso speaks for some welfare state institutions, maybe in the form of a guaranteed basic income, maybe in some other form. But the sufficiency proviso need not vindicate welfare state institutions. One can also try to argue that an anarchist society would satisfy the sufficiency proviso.

In the end, I hope that my article can show that moderate libertarianism with its sufficiency proviso is an attractive and interesting variant of libertarianism that is worthy to be more fully explored and discussed.

Beginning in October 2017, Fabian Wendt will be a Research Associate at the Smith Institute for Political Economy and Philosophy at Chapman University. His book Compromise, Peace and Public Justification: Political Morality beyond Justice was published last year by Palgrave Macmillan. This year, he won the Sanders Prize in Political Philosophy.



Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/22/libertarian-property-rights-and-lockes-sufficiency-proviso/

Thursday, September 21, 2017

Richard Posner’s ‘bats––– crazy’ new book

Judge Richard Posner surprised the legal world with his unexpected retirement from the bench. Subsequent media reports indicate that disputes with his colleagues on the U.S. Court of Appeals for the 7th Circuit helped spur his decision. Most notably, Judge Posner was particularly concerned with the treatment of pro se appellants by the court.

Within weeks of his retirement, Judge Posner released a new, self-published book: “Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments.” If you think that’s an unusual title, wait until you see what’s inside.

Judge Posner has never been one to worry too much about traditional constraints on judicial behavior. Freed of the federal judicial ethics requirements, he lets loose. In the course of chronicling his disputes with other judges about how to deal with pro seappellants, and providing extensive background information on how pro se litigants are treated by various federal appellate courts, Posner also dishes extensively, but sometimes the only target he hits is himself.

Over at CA3 blog, Matthew Stiegler is unsparing in his critique of the book. In a summary and review, he writes that “Posner has made a terrible mistake in publishing this book. It is bats––– crazy.” As Stiegler notes, Posner not only recounts his disputes with his former benchmates in excruciating detail, but he also has chosen to publish all manner of material, including memos written by staff attorneys and email correspondence among the judges.

At its heart, this book is a baffling, disjointed blow-by-blow of Posner’s many recent battles with Seventh Circuit Chief Judge Diane Wood, the quite-unintentional hero of the tale.

The primary battle arose from Posner’s demand that he be allowed to re-write all his circuit’s staff attorneys’ memos and draft opinions before they went to his fellow judges. This is a ludicrous idea. Posner thought it “uncontroversial” and he was “surprised” when it was met with first silence, then uniform rejection. When Wood told him so, Posner “angrily” threatened to reveal staff counsel work product he deemed not good enough. When he was told that doing so would violate the judicial code of conduct, he resigned, and now he has self-published everything — memos and drafts by staff counsel peppered with his acid edits, emails between the judges, the whole trainwreck.

And why did Posner anoint himself as filter between the staff attorneys and his colleagues? Largely, he says, because “uniquely among this court’s judges, [he had] a deeply felt commitment to the welfare of the pro se litigants.” But, by his own account, he only “became interested in the staff attorney program in the late winter/early spring of this year (2017).” And in his preceding three and a half decades on the court, “I’m pretty sure I’d never even discussed it with another judge.” Deeply? Uniquely?

It gets worse. Posner chooses to reveal the initial panel vote in a still-not-yet-decided appeal that he identifies by name. The other two panel members plan to affirm, he tells us. (Posner disagrees, so we get two paragraphs summarizing and quoting from the dissent he would have filed.) What compelling reason led him to include this stunning disclosure in a book ostensibly about pro se’s and televising arguments, when this case has nothing to do with either? Because “I’ve decided to note two recent clashes with colleagues.” This is not Posner-being-Posner, this is madness.

It’s almost as if Posner decided he should go out of his way to confirm his critics’ harshest assessments of his character and fitness for the bench. Insofar as the book is emblematic of how Judge Posner began to see his job, it provides ample evidence that his retirement came none too soon.

Richard Posner will go down in history as one of the most prolific and influential legal thinkers of his generation, the contents of this latest book notwithstanding. Nonetheless, I cannot see how publishing this volume will help his reputation as a judge.



Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/21/richard-posners-bats-crazy-new-book/

Court rejects Feminist Majority Foundation’s demand that public university block access to Yik Yak

That’s what happened Tuesday, in Feminist Majority Foundation v. Univ. of Mary Washington (E.D. Va.). In 2014-2015, several members of Feminists United — a University of Mary Washington club affiliated with the Feminist Majority Foundation —

spoke out about different campus happenings that implicated issues important to their organization, such as sexual assault and violence against women. [Footnote: One such happening involved the men’s rugby team. At a party that included some members of the men’s rugby team, a student filmed partygoers performing a derogatory chant that advocated for violence against women, including rape, murder, and necrophilia. The student provided a copy of the recording to UMW, and told a member of Feminists United about the chant. One member of Feminists United mentioned the chant in a newspaper opinion piece about why UMW was not a “feminist friendly campus.” After hearing nothing about the team’s punishment, Feminists United continuously followed up with the administration on what action UMW planned to take against the rugby team. Eventually, UMW punished the team by suspending men’s rugby activities indefinitely, and by requiring all members to participate in sexual assault training. The plaintiffs disagree with how UMW handled the situation.]

In response, some people who used the Yik Yak social media application “began posting insulting and derogatory yaks about Feminists United and its individual members,” such as “these feminists need to chill their t––s” and “I f–––––– hate feminists and sour vaginas.” After Feminists United reported this to the university administration, the posting escalated, with some of the Yik Yak posts “includ[ing] threats of physical and sexual violence,” as well as general insults (political or otherwise), and “some mention[ing] members of Feminists United by name” or “include[ing] a member’s location on campus so that people could confront her in person.” In response, “UMW organized some ‘sharing circles’ to discuss Yik Yak at UMW,” and also provided police protection to some of the threatened students. But Feminists United asked that the university also “disable Yik Yak on campus and ban Yik Yak from UMW’s wireless network,” something the university rejected “because of First Amendment concerns.”

Feminists United, its members and the Feminist Majority Foundation “filed an administrative complaint with the Department of Education’s Office of Civil Rights … alleging that UMW violated Title IX ‘by failing to adequately address the sexually hostile environment created by persistent online harassment and threats.’” They held a news conference and then the university in turn issued a public statement:

On June 8, 2015, President Hurley sent a letter to the FMF …, responding to some of the allegations in the OCR complaint. Hurley published this letter with various news outlets. In the letter, Hurley detailed UMW’s actions in response to Feminists United’s concerns and explained the First Amendment concerns involved with banning Yik Yak. He commented that some of the yaks “were certainly offensive and alarming in isolation, but must be placed in context.” Anonymous Yik Yak users continued to post hostile and harassing comments about Feminists United and its members after the publication the June 8 Letter and throughout the summer of 2015.

The court didn’t discuss whether some of the posters could be prosecuted for their speech, or expelled or suspended if they were students (though I expect that they could be, if the speech contained true threats of violence against particular people, and if they could be identified). But it held that the university’s refusal to try to block Yik Yak didn’t violate Title IX’s ban on sex discrimination:

[T]he Title IX discrimination claim fails because the harassment took place in a context over which UMW had limited, if any, control — anonymous postings on Yik Yak. [Footnote: Further, because users post anonymously, UMW may not have had control over the harassers …] Nevertheless, UMW attempted to take some action, such as holding sharing circles to discuss the issue of cyberbullying} Further, when a yak targeted a member of Feminists United specifically and made her feel unsafe attending meetings on campus, a UMW police officer attended the meetings.

While UMW did not take the specific action requested by the plaintiffs, Title IX does not require funding recipients to meet the particular remedial demands of its students. This holds true especially where some of the actions requested — such as banning Yik Yak from the campus wireless network — may have exposed the university to liability under the First Amendment.

The court also rejected the argument that the June 8 letter constituted forbidden retaliation:

To state a claim for Title IX retaliation, the plaintiff must prove that a funding recipient retaliated against her because she complained about sex-based discrimination. Examples of forms of retaliation recognized by courts include adverse employment actions where the plaintiff worked for the funding recipient, and adverse educational actions, such as expulsion. The Supreme Court has recognized retaliation as a form of discrimination in part because retaliation “is easily attributable to the funding recipient,” distinguishing retaliation from cases based on the recipient’s deliberate indifference to reports of harassment by third parties.

Here, the only action that UMW took after the plaintiffs filed their OCR complaint was President Hurley publishing the June 8 Letter. Through the June 8 Letter, however, UMW, through Hurley, took no action against the plaintiffs. Hurley simply responded to the OCR complaint. This does not rise to the level of a retaliatory action.

And the court rejected the claim that UMW’s action (or inaction) violated the equal protection clause: There was no allegation that UMW was acting out of discriminatory animus, and any sexual harassment claims under the equal protection clause failed for the same reasons as the Title IX claims.

* * *

I think this is quite right, and I think that a contrary result — holding UMW liable for failing to block Yik Yak — would have violated the First Amendment.

I do think that the threats on Yik Yak are classic examples of thuggery aimed at suppressing speech (here, the Feminist United students’ speech); and the nonsubstantive personal insults, while themselves constitutionally protected, should be condemned — both because they are rude and empty, and because they tend to deter people from participating in debates. If people, left, right and center, know that speaking out will yield a massive campaign of insults, many might be deterred from speaking, whether those insults are just personal slurs, or substance-free and hyperbolic charges of “feminazi” or “fascist.”

Nonetheless, a public university can’t block otherwise available student access to an entire privately operated communication platform, just because a few students are using that platform in ways that are rude, harmful to public debate, or even outright criminal. Such a block is a classic prior restraint — here, an attempt to categorically block all use of a communications mechanism in order to prevent some users’ misuse — and that’s true for forums opened on government property (such as government-run wireless networks) and not just for speech on private property. In the words of one such government property case, Southeastern Promotions, Ltd. v. Conrad (1975),

Behind the [prior restraint doctrine] is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.

And certainly Title IX shouldn’t be read as requiring or even pressuring universities, public or private, to institute such prior restraints.



Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/21/court-rejects-feminist-majority-foundations-demand-that-public-university-block-access-to-yik-yak/

Libertarianism vs. meritocracy

The American Dream is a meritocratic ideal.  Our national ethos is that no one should be guaranteed prosperity, but all citizens should have an equal opportunity to pursue it through their merit.  What a person can become should turn only on his or her intelligence, effort, skill, and the like—and not arbitrary features, like race or parental wealth.  That way, if a social hierarchy emerges, it is a “natural aristocracy”—as Thomas Jefferson put it—filled by “virtue and talents”, not “wealth and birth”.

This description of a just economy appeals to Americans across ideological lines.  And it is, by my lights, correct.

But it is not a libertarian ideal.  If we followed libertarian principles and implemented libertarian policies, we would create a very different economy than the one so many Americans desire.  We would create an economy in which merit was not taken seriously.

Consider the lamentable state of opportunity in the United States today.  Our economic mobility is among the worst in the developed world.  Children who are born rich stay rich.  Others, no matter their merits, cannot escape the trap of poverty.  Note that this is not because genetics determine economic outcomes; they do not.  Instead, birth into wealth provides social advantages, like access to elite education, as well as brute inheritance.  The wealthiest 1% of American households inherited, on average, $3 million.  This is no coincidence.

Unequal opportunity is incompatible with meritocracy.  Whether you are rich or poor ought to turn on your merits—not your parents’ merits, or their parents’ merits.

What are the remedies for unequal opportunity?  We can provide high-quality education and health care to poor and middle-class children, and break up the intergenerational passage of wealth and influence.  These policies are desirable not only on grounds of justice but of economic efficiency as well: Educated citizens are more productive, and less likely to engage in damaging activity, like crime.

Yet these policies are anathema to libertarians who demand “the abolishment of the Internal Revenue Service and all federal programs and services not required under the U.S. Constitution”.  They would eliminate Medicaid and the Children’s Health Insurance Program, as well as all public support for education.  At a time when we should be leveling the playing field, libertarian economic policies would make family circumstance an even more decisive determinant of prosperity.

At the same time that we have neglected equal opportunity, our economy has become less responsive to merit.  We still reward innovators like Bill Gates and Steve Jobs—and rightly so—but we increasingly enrich executives who make no economic contribution at all.  Dick Fuld, the former CEO of Lehman Brothers, made half a billion dollars for driving his storied firm into the ground and helping to crash the American economy.  No merit, but an enormous reward.

We discriminate against best-qualified applicants because of their race or gender.  We pay people more if they are pretty.  We allow executives, like Fuld, to gain control over their own salaries, and so they make more than they deserve given their merits.  And our labor markets are overrun with nepotism (anyone on the job market today will testify to the overwhelming importance of “networking”).

These are all injustices from the meritocratic point-of-view.  Hiring and salaries should purely be functions of merit.  It is unjust to deny a meritorious woman a job on account of her sex.  It is unjust to deny a meritorious man a job in order to promote “diversity”.  The same goes for discrimination on the basis of race, appearance, sexual tastes, religion, and all the rest.  Merit, and merit alone, is what ought to count.

In contrast, libertarians regard these features of our economy as unproblematic.  Firms allegedly are at liberty to discriminate, in hiring and compensation, however they like.  Under libertarianism, there is no moral requirement to hire, promote, or reward meritorious people.  As a result, even competitive libertarian markets may be inefficient.

Now I do not want to overstate the differences between these two theories of economic justice.  Meritocracy and libertarianism have much in common.  First, they both reject the egalitarian’s call for equal economic outcomes.  Second, they believe that markets are the right way to organize economic activity, thereby promoting broad prosperity.

And third, both meritocracy and libertarianism endorse an ethic of personal responsibility.  But we must ask how much responsibility there can be in a society in which a person’s wealth is predetermined by his parents’ wealth; failure gets rewarded; and gender and race—rather than merit—determine who gets jobs and who does not.  As philosopher Joshua Preiss puts it, “in the political and economic status quo, preferred libertarian policies … undermine the ethic of personal responsibility that Americans from across the ideological spectrum value and many conservatives and libertarians celebrate”.

Instead of pursuing libertarian policies, we should redouble our efforts to make the American Dream a reality.  This requires that we establish equal opportunity and ensure that citizens are judged strictly on their merits.  That is responsible, and efficient, and just.

homas Mulligan, a faculty fellow at Georgetown University’s Institute for the Study of Markets and Ethics, is the author of Justice and the Meritocratic State. Before coming to academia, he served in the US Navy and the Central Intelligence Agency.



Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/22/libertarianism-vs-meritocracy/

Libertarianism and medicine

People are entitled to make intimate and personal decisions about their own bodies and health. This is why physicians are required to comply with the doctrine of informed consent. Physicians must refrain from misleading, tricking, coercing, or forcing competent adult patients to undergo treatments that they do not consent to. Even when overriding a patient’s medical choice would make her better off on balance, or would improve her health, physicians still must refrain from paternalistic interference.

The libertarian approach to medicine holds that the same principles that prohibit paternalistic interference in clinical contexts also prohibit paternalistic interference by public officials. For example, just as it would be wrong for a physician to coercively compel a patient to use a recommended drug, it is also wrong that public officials currently enforce prescription requirements that coercively prevent patients from using drugs against the advice of their physicians. Just as it would be wrong for a physician to override a severely ill patient’s decision to refuse potentially lifesaving care, it is also wrong when public officials override severely ill patients’ decisions to try potentially lifesaving therapies by restricting access to unapproved drugs.

As I argue in Pharmaceutical Freedom, the same principles that support the doctrine of informed consent also support rights of self-medication. In addition to the fact that coercive paternalism violates people’s rights, paternalistic interference with people’s medical choices is also likely to have bad consequences on balance because people generally know whether a choice is in their overall interest better than a physician or public official would. To the extent that people don’t know if a choice is in their interests, it is better to educate them about the risks of their choices than to make decisions on their behalf.

These reasons against paternalistic interference by physicians are also reasons against coercive public health paternalism. And these arguments not only weigh against prescription and approval requirements for pharmaceuticals, they also support people’s rights to use recreational drugs or deadly drugs. Arguments for self-medication are libertarian in the sense that libertarians support all policies that respect individual liberty. But non-libertarians should also support rights of self-medication if they support the doctrine of informed consent and object to paternalistic policies that potentially do more harm than good.

The libertarian approach to medicine is distinctive with respect to other policies though, particularly policies that relate to markets. Libertarians’ commitment to individual freedom extends beyond a commitment to respect for bodily rights, which many people share. Libertarians are also committed to economic freedoms such as freedom of contract and occupational freedom. It is for this reason that libertarians like Milton Friedman oppose occupational licensing requirements in medicine. And libertarians also ought to oppose policies that require health workers to perform procedures that they oppose for moral reasons. The same goes for employer mandates to provide birth control, nor should employers be required to provide their workers with health insurance because these policies violate people’s freedom of contract.

More generally many libertarians are skeptical of the claim that people have rights to health care in the first place, so they will reject most coercive policies that aim to promote people’s health. But even if people were entitled to health care, libertarians generally favor markets over mandates as a way of promoting people’s health. For example, libertarians point out that market-based policies such as organ and blood plasma markets could promote overall health and well-being. Other libertarians support a universal catastrophic coverage plan paired with policies that remove existing distortions in the health care market, such as the tax-deductibility of employer sponsored insurance.

Current approaches to pharmaceuticals and healthcare fall far short of libertarian approach to medicine.  But we have made progress since the twentieth century. For example, physicians are now morally and legally committed to comply with the doctrine of informed consent and many liberals reject coercive paternalism by public officials. In these ways, the moral foundations for a more libertarian approach to medicine and public health are implicit in ethical principles that many people already accept.

Jessica Flanigan is an assistant professor of Leadership Studies and Philosophy, Politics, Economics, and Law (PPEL) at the University of Richmond, where she teaches ethics. Her research addresses the public health policy, feminism, and business ethics.



Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/21/libertarianism-and-medicine/