The Principles of Actionable Harm

I prefer — as a minarchistic libertarian (a radical-right-minarchist, to be precise) — an accountable, constrained state to the the condition of anarchy. The latter, in my view, leads to warlordism and thence to despotism. But the state must be held to its proper realm of action, namely, dispensing justice and defending the nation. Its purpose in doing those things — and the sole justification for its being — is to protect negative rights (including property rights) and civil society. Specifically:

1. The state should not act — or encourage action by private entities — except as it seeks to deter, prevent, or remedy an actionable harm to life, liberty, property, or the pursuit of happiness (hereinafter “liberty”).

2. An actionable harm to liberty is one that

a. arises (or would arise) from the commission of an overt act by any person or entity, domestic or foreign; and

b. contravenes (or would contravene) socially evolved norms of behavior that are encoded in law; and

c. inflicts (or would is inflict) actual harm on a person or persons — as opposed to feelings (e.g., hatred, envy) that may arise from one’s personal disapproval or jealousy of another person’s  actions, success, etc. (Actual harm may include such things as stress, fear, and loss of privacy, when deliberately inflicted upon a person.)

3. Except in the case of punishment for an actionable harm, it is also an actionable harm to bar an adult (as that term is generally understood by society) from

a. expressing his views regarding societal norms and governmental acts (voice); or

b. voluntarily move to a place of his choosing (exit).

(Having voice doesn’t mean getting your own way. Nor are you deprived of exit if you choose neither to leave nor to acquire the wherewithal to leave.)

4. An actionable harm to liberty may be immediate (as in the case of murder) or credibly threatened (as in the case of a conspiracy to commit murder). But actionable harms extend beyond those that are immediate or credibly threatened. They also result from actions by the state that strain and sunder the bonds of trust that make it possible for a people to coexist civilly, through the mutual self-restraint that arises from voluntarily evolved social norms. The use of state power has deeply eroded such norms. The result has been to undermine the trust and self-restraint that enable a people to enjoy liberty and its fruits; for example:

  • Affirmative action and other forms of forced racial integration deny freedom of association, prolong racial animosity, impose unwarranted economic harm on those who are guilty of nothing but their skin color, and generally deprive persons of liberty and property without due process of law.
  • The authorization of abortion, which suborns infanticide and invites euthanasia of the infirm and elderly.
  • The legal enshrinement of gay rights leads to the suppression of speech — in the interest of “political correctness” — and the enforcement of reverse discrimination — at the expense of the majority of citizens who have done nothing worse than eschew and condemn a “lifestyle choice” with which they happen to disagree, as should be their right.
  • The cynical efforts of pandering politicians to appeal to the “Latin community” by supporting “amnesties” for illegal immigrants, whose presence imposes heavy economic costs on Americans and further undermines our already strained commitment to limited government.

5. An expression of thought cannot be an actionable harm unless it

a. amounts to defamation; or

b. would directly obstruct governmental efforts to deter, prevent, or remedy an actionable harm (e.g., divulging classified defense information, committing perjury); or

c. intentionally causes or would directly cause an actionable harm (e.g., plotting to commit an act of terrorism, forming a lynch mob); or

d. purposely — through a lie or the withholding of pertinent facts — causes a person to act against self-interest in an economic transaction (e.g., misrepresenting a product, inflating a corporation’s statement of earnings); or

e. purposely — through its intended influence on government — results in what would be an actionable harm if committed by a private entity (e.g., the taking of income from persons who earn it, simply to assuage the envy of those who earn less). (The remedy for such harms should not be the suppression or punishment of the harmful expressions; the remedy should be the enactment and enforcement of restrictions on the power of government.)

6. With those exceptions, a mere statement of fact, belief, opinion, or attitude cannot be an actionable harm. Otherwise, those persons who do not care for the facts, beliefs, opinions, or attitudes expressed by other persons would be able to stifle speech they find offensive merely by claiming to be harmed by it. And persons who claim to be offended by the superior income or wealth of other persons would be entitled to recompense from those other persons. (Those who claim harm because they are offended by the speech or wealth of others fail to understand that such claims can be reciprocated by those whose speech they would suppress or whose wealth they would confiscate.)

7. It cannot be an actionable harm to commit a private, voluntary act of omission (e.g., the refusal of social or economic relations for reasons of personal preference), other than a breach of contract or fiduciary responsibility. Nor can it be an actionable harm to commit a private, voluntary act which does nothing more than arouse resentment, envy, or anger in others. It is incompatible with liberty for the state to judge, punish, or attempt to influence private, voluntary acts that are not otherwise actionable harms.

8. By the same token, it is incompatible with liberty for the state to judge, punish, or attempt to influence private, voluntary acts of commission which have undesirable but avoidable consequences. For example:

  • Government prohibition of smoking on private property is anti-libertarian because non-smokers could choose not to frequent or work at establishments that allow smoking.
  • Other government restrictions on the use of private property (e.g., laws that bar restrictive covenants or mandate “equal accommodation”) are anti-libertarian because they (1) diminish property rights and (2) discourage ameliorating activities (e.g., the evolution away from cultural behaviors that play into racial prejudice, investments in black communities and black-run “accommodations”).
  • Tax-funded subsidies for retirement and health care are anti-libertarian because they discourage hard work, saving, and other prudent habits — habits that would lead to less dependence on government, were those habits encouraged.

9. It is also incompatible with liberty for the state to make and enforce distinctions among individuals that have the effect of penalizing some persons because of their age, gender, sexual orientation, skin color, ethnicity, religion, income, or wealth. (This is also a way of saying that the playing field ought to be level for straight, white, religious, Anglo-Saxon, males under the age of 40 — or a person having any of those traits — and that the possessors of material means should not be penalized because of their position relative to the poorest among us.)

10. The proper role of the state is to enforce the preceding principles. In particular,

a. to remain neutral with respect to evolved social norms, except where those norms deny voice or exit, as with the systematic disenfranchisement or enslavement of particular classes of persons; and

b. to foster economic freedom (and therefore social freedom) by ensuring open trade within the nation and (to the extent compatible with national security) open trade with (but selective immigration from) other nations; and

c. to ensure free expression of thought, except where such expression is tantamount to an actionable harm (as in a conspiracy to commit murder or a campaign of harrassment); and

d. to see that the laws which protect liberty are enforced swiftly and surely, with favoritism toward no person or class of persons; and

e. to defend liberty against its enemies, foreign and domestic.

The principles of actionable harm aren’t rules for making everyone happy, they are rules for ensuring that each of us is able to pursue happiness without impinging on the happiness of others.

The principles of actionable harm should apply only to citizens and legitimate residents of the United States. Those who would do us harm must be treated differently — often summarily and harshly — if we are to retain our liberty.

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