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. This leads to warlordism and thence to despotism. But the state must be held to its proper realm of action, namely, dispensing justice and defending citizens. Its purpose in doing those things — and the sole justification for its being — is to protect negative rights (including property rights) and civil society. (For more about the proper role of the state, go to “Parsing Political Philosophy” and under the section headed “Minarchism,” see “The Protection of Negative Rights,” “More about Property Rights,” and the “Role of Civil Society.”)

Specifically:

1. An actionable harm — a harm against which the state may properly act — is one that deprives a person of negative rights or undermines the voluntarily evolved institutions and norms of civil society.

2. The state should not act — or encourage action by private entities — except as it seeks to deter, prevent, or remedy an actionable harm to its citizens.

3. An actionable harm 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 property rights and freedom of association, prolong racial animosity, and impose unwarranted economic harm on those who are guilty of nothing but the paleness of their skin.

Abortion suborns infanticide and invites euthanasia of the infirm and elderly.

The legal enshrinement of gay rights leads to the suppression of speech and the denial of freedoms of expression and association, at the expense of citizens who have done nothing worse than refuse to recognize a “lifestyle choice” of which they disapprove, as should be their right.

State recognition of gay marriage undermines heterosexual marriage — an essential civilizing institution.

Amnesties for illegal immigrants impose heavy economic costs on Americans and enlarge the constituency for big government.

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

a. is defamatory; 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; 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 ability of government to act as it does.)

5. 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 those persons who claim to be offended by the superior income or wealth of other persons would be entitled to recompense from those other persons. (It takes little imagination to see the ramifications of such thinking; rich heterosexuals, for example, could claim to be offended by the existence of persons who are poor or homosexual, and could demand their extermination as a remedy.)

6. 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. A legitimate state does not judge, punish, or attempt to influence private, voluntary acts that are not otherwise actionable harms.

7. By the same token, a legitimate state does not 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 illegitimate 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 public accommodation) are illegitimate 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 public accommodations).

Tax-funded subsidies for retirement and health care are illegitimate because they discourage hard work, saving, and other prudent habits — habits that would lead to less dependence on government, were those habits encouraged.

8. It is also wrong for the state to make and enforce distinctions among individuals that have the effect of advantaging some persons because of their age, gender, sexual orientation, skin color, ethnicity, religion, or economic status.

9. Except in the case of punishment for an actionable harm, it is an actionable harm to bar a competent adult from

a. expressing his views, as long as they are not defamatory or meant to incite harm (voice); or

b. moving to a place of his choosing (exit).

(As a practical matter, voice is of little consequence if the state’s power of the lives and livelihoods of citizens has grown so great that it cannot be undone except by revolution. Further, exit becomes meaningless when the central government’s power reaches into every corner of the nation and leaves persons of ordinary means with no place to turn. In the present circumstances, it follows that the state daily commits actionable harms against citizens of the United States.)

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 mount a campaign of harassment); and

d. to see that just laws — those enacted in accordance with the principles of actionable harm — are enforced swiftly and surely, with favoritism toward no person or class of persons; and

e. to defend citizens against predators, foreign and domestic.

* * *

The principles of actionable harm are not 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 state should apply the principles of actionable harm only to citizens and legitimate residents of the United States. Sovereignty is otherwise meaningless; the United States exists for the protection of citizens and persons legitimately resident; it is not an eleemosynary institution.

By the same token, those who would harm citizens and legitimate residents of the United States must be treated summarily and harshly, as necessary.

* * *

Liberty and Society

This is the first installment of a series that explores the true nature of liberty, how liberty depends on society, how society (properly understood) has been eclipsed by statism and its artifacts, and how society — and therefore liberty — might re-emerge in the United States.

The typical libertarian — like the one who commented on my post “Not Guilty of Libertarian Purism” — will say something like this:

Liberty is simply defined as “do what you want, constrained only by the harm to others.”

This is just a restatement of John Stuart Mill’s “harm principle,” which first appears in Chapter I, paragraph 9, of Mill’s On Liberty:

[T]he 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.

Mill himself reveals the emptiness of his formulation in paragraphs 11 through 13:

[11] …I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of man as a progressive being. Those interests, I contend, authorize the subjection of individual spontaneity to external control, only in respect to those actions of each, which concern the interest of other people. If any one does an act hurtful to others, there is a primâ facie case for punishing him, by law, or, where legal penalties are not safely applicable, by general disapprobation. There are also many positive acts for the benefit of others, which he may rightfully be compelled to perform; such as, to give evidence in a court of justice; to bear his fair share in the common defence, or in any other joint work necessary to the interest of the society of which he enjoys the protection; and to perform certain acts of individual beneficence, such as saving a fellow-creature’s life, or interposing to protect the defenceless against ill-usage, things which whenever it is obviously a man’s duty to do, he may rightfully be made responsible to society for not doing. A person may cause evil to others not only by his actions but by his inaction, and in either case he is justly accountable to them for the injury….

[12] But there is a sphere of action in which society, as distinguished from the individual, has, if any, only an indirect interest; comprehending all that portion of a person’s life and conduct which affects only himself, or if it also affects others, only with their free, voluntary, and undeceived consent and participation. When I say only himself, I mean directly, and in the first instance: for whatever affects himself, may affect others through himself; and the objection which may be grounded on this contingency, will receive consideration in the sequel. This, then, is the appropriate region of human liberty. It comprises, first, the inward domain of consciousness; demanding liberty of conscience, in the most comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological. The liberty of expressing and publishing opinions may seem to fall under a different principle, since it belongs to that part of the conduct of an individual which concerns other people; but, being almost of as much importance as the liberty of thought itself, and resting in great part on the same reasons, is practically inseparable from it. Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow: without impediment from our fellow-creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong. Thirdly, from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived.

[13] No society in which these liberties are not, on the whole, respected, is free, whatever may be its form of government; and none is completely free in which they do not exist absolute and unqualified. The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental and spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.

The latter two paragraphs (12 and 13) would seem to satisfy the typical libertarian. But they are as empty of content as the bald statement of the harm principle in paragraph 9. What Mill does in paragraph 11 is to pour content into the harm principle — content that the typical libertarian would find abhorrent, for its statism if not for its utilitarianism. The discussion of liberty in paragraphs 12 and 13 cannot be understood without reference to Mill’s restrictive definition of harm in paragraph 11.

To put it another way, liberty — “do what you want, constrained only by the harm to others” — is an empty concept unless it rests on a specific definition of harm. Why? Because harm is not a fixed thing — like the number 1 or your house — it is a vague concept that has meaning only when it refers to specific types of act, which then may be judged as harmful by some and unharmful by others. But until harm is defined and agreed through mutual consent (explicit or implicit), liberty lacks real meaning.

My goal in this post is to outline the social conditions that conduce to actual liberty, that is, a kind of liberty that could be found in the real world, given the nature of human beings as self-centered, quarrelsome, often aggressive individuals, as well as loving, cooperative, and generous ones. (Social behavior, in this context, includes what is usually called economic behavior, which is just a kind of social behavior.) I will try to be realistic (rather than pessimistic) about the degree to which liberty is attainable.

I begin with my definition of liberty, which is

peaceful, willing coexistence and its concomitant: beneficially cooperative behavior.

That may seem just as vague as the harm principle, but it is not. The harm principle is meaningless without an agreed definition of harm. My definition is operationally meaningful, in itself. It says that liberty is found wherever there is peaceful, willing coexistence and beneficially cooperative behavior. Why? Because a society which meets those conditions is a free society to its members, who (by definition) prefer it to alternative conditions of existence. Among other things, they must be agreed about what constitutes harm and how it should be treated.

It is now only(!) a matter of describing the kind of society in which there can be peaceful, willing coexistence and beneficially cooperative behavior. Going from broad characteristics to narrow ones, this is such a society:

1. “Society” has many meanings. This one rings truest:

an enduring and cooperating social group whose members have developed organized patterns of relationships through interaction with one another.

The “organized patterns of relationships” will include rules about behavior (a moral code). On the negative side, the rules will specify (if only tacitly) what is allowed, what is not allowed, how transgressions should be treated, and how certain mitigating circumstances figure into judgments about and the treatment of transgressions. On the positive side, the rules will specify (if only tacitly) expectations about how certain members of society should treat others (e.g., respect for elders, voluntary aid to those in need, mannerly behavior of certain kinds). A society, in other words, is inseparable from its moral code.

2. Mutual trust, respect, and forbearance allow differences within a society to be resolved through voluntary means, according to its moral code (1).

The means will include compromise; not every member of a society will agree with every rule, the way in which rules are enforced, or every resolution of differences, but every member of society will accept them. When a member of society can no longer compromise his preferences with the enactments of society, and has voiced his discontent to no avail, exit is his only option. Exit, at this stage, is exit from a society, as defined in 1. Unlike the situation that pertains when a person can no longer abide the rules imposed on him by a distant and unrepresentative government that controls a large geographic area, exit from a society need not require physical exile.

3. Mutual trust, respect, and forbearance (2) depend, in turn, on genetic kinship and cultural similarity.

Human beings are, at bottom, tribal creatures. This is a fact of life that cannot be erased by wishful thinking: “Why can’t we just all get along with each other?”

4. The voluntary institutions of society (civil society) inculcate and enforce a society’s moral code (1), foster mutual trust and respect (2), and help to preserve cultural similarity (3).

The institutions of civil society include families, friendships, neighborhoods, churches, clubs, markets — and interconnected circles of them. Enforcement of the moral code, up to a point, is by voluntary observance (for fear of the social and physical consequences of non-observance. Where unacceptable behavior persists or is egregious, it is dealt with by civil institutions, including ad hoc groups organized for the purpose of controlling, confining, and punishing behavior is uncontrollable through the usual means. Those means include intra-familial punishment, physical retaliation, social signalling (ranging from expressions of approval and disapproval to ostracism, at the extreme). The means, themselves, are encompassed in the moral code.

5. A society’s moral code (1) and culture (3) evolve by trial and error, through the operation of the institutions of civil society (4).

The members of a society perceive that certain behaviors enable the society to thrive, and that others do not. Thriving is a matter of social and economic success, of the attainment of outcomes that the members of society find pleasing, and which they seek to promote by encouraging the behaviors that are consistent with pleasing outcomes and discouraging the behaviors that work against those outcomes. These signals — pro and con — are transmitted through the institutions of civil society (4) and thus become part of the society’s culture (3). Observance of the signals is essential to the maintenance of mutual trust and respect (2).

To summarize: A society coheres around genetic kinship, and is defined by its common culture, which includes its moral code. The culture is developed, transmitted through, and enforced by the voluntary institutions of society (civil society). The culture is the product of trial and error, where those elements that become part of received culture serve societal coherence and — in the best case — help it to thrive. Coherence and success depend also on the maintenance of mutual respect, trust, and forbearance among society’s members. Those traits arise in part from the sharing of a common culture (which is an artifact of societal interaction) and from genetic kinship, which is indispensable to societal coherence.

If the foregoing description is correct, there is one aspect of society — and one only — that a society cannot “manufacture” through its social processes. That aspect is genetic-cultural kinship. To put it another way, it is unlikely that a society’s membership can be drawn from more than one genetic grouping (or cluster), of which there may be dozens. Throw in cultural differences, originating in the geographic separation of otherwise genetically close populations, and the number of distinct genetic-cultural groupings must be very large indeed.

Though it is possible that an occasional outsider can be accepted into a society through acculturation and acceptance, because of bonds that develop between the outsider and insiders, it is far less likely that a society will welcome significant numbers of outsiders. This contention is borne out by the checkerboard and tipping models of voluntary racial segregation:

[E]ven when every agent prefers to live in a mixed-race neighborhood, almost complete segregation of neighborhoods emerges as individual decisions accumulate. In [Thomas Schelling’s] “tipping model”, he demonstrated the effects which emerge when people have varying levels of perception as to acceptable levels for other ethnic groups in the neighborhood. The model shows that members of an ethnic group do not move out of a neighborhood as long as the proportion of other ethnic groups is relatively low, but if a critical level of other ethnicities is exceeded, the original residents may make rapid decisions and take action to leave. This tipping point is viewed as simply the end-result of domino effect originating when the threshold of the majority ethnicity members with the highest sensitivity to sameness is exceeded. If these people leave and are either not replaced or replaced by other ethnicities, then this in turn raises the level of mixing of neighbours, exceeding the departure threshold for additional people. Domino and tipping models were suggested to be explanatory factors for white flight in the 1960s US. Schelling also noted that in different societies, people have residential preferences, for factors other than ethnicity, such as age, gender, income levels.^[41] In 2010 Junfu Zhang found support for both the checkerboard model of residential segregation as the only stable spatial arrangement (arrangement not subject to tipping effects), and for tipping effects, showing how these lead to integrated residential areas being irreversibly tipped into complete segregation.^[40]

This is “wrong,” in the “liberal” and left-libertarian view of the world. That view is not based on what can be, given the nature of human beings, but on what ought to be: a desirable but unattainable ideal (see nirvana fallacy).

I will next consider several possible objections to my model of a society’s essence and workings. This series will close with a blueprint for the restoration of society and liberty. The first sequel is “The Eclipse of ‘Old America’ “; the second is “Genetic Kinship and Society“; the third is “Liberty as a Social Construct: Moral Relativism?”

Rethinking the Constitution: “Freedom of Speech, and of the Press”

UPDATED 07/21/11

My complete re-thinking of the Constitution is here. This post focuses on the much-abused First Amendment, specifically, “freedom of speech, and of the press.” Contrary to the current state of constitutional jurisprudence, these “freedoms” do not comprise an absolute license to “express” almost anything, regardless of the effects on the social fabric and national defense.

One example of misguided absolutism is found in Snyder v. Phelps, a case recently and wrongly decided by the U.S. Supreme Court. This is from “The Burkean Justice” (The Weekly Standard, July 18, 2011):

When the Supreme Court convened for oral argument in Snyder v. Phelps, judicial formalities only thinly veiled the intense bitterness smoldering among the parties and their supporters. At one table sat counsel for Albert Snyder, father of the late Marine Lance Corporal Matthew Snyder, who was killed in al Anbar Province, Iraq. At the other sat Margie Phelps, counsel for (and daughter of) Fred Phelps, whose notorious Westboro Baptist Church descended upon Snyder’s Maryland funeral, waving signs bearing such startlingly offensive slogans as “Thank God for IEDs,” “God Hates Fags,” and “Thank God for Dead Soldiers.” A federal jury had awarded Snyder nearly $11 million for the “severe depression” and “exacerbated preexisting health conditions” that Phelps’s protest had caused him.

In the Supreme Court, Phelps argued that the jury’s verdict could not stand because the First Amendment protected Westboro’s right to stage their protest outside the funeral. As the Court heard the case on a gray October morning, Westboro protesters marched outside the courthouse, informing onlookers that God still “Hates Fags” and advising them to “Pray for More Dead Soldiers.”

Amidst that chaos, the Court found not division, but broad agreement. On March 2, 2011, it held that Westboro’s slurs were protected by the First Amendment, and that Snyder would receive no compensation, let alone punitive damages, for the emotional injuries that he had suffered. Chief Justice John Roberts wrote the Court’s opinion, speaking for all of his brethren, conservatives and liberals alike—except one.

Justice Samuel Alito rejected the Court’s analysis and wrote a stirring lone dissent. “The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.” Repeatedly characterizing Westboro’s protest as not merely speech but “verbal assaults” that “brutally attacked” the fallen Snyder and left the father with “wounds that are truly severe and incapable of healing themselves,” Justice Alito concluded that the First Amendment’s text and precedents did not bar Snyder’s lawsuit. “In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims. . . . I therefore respectfully dissent.”

There is more:

Snyder v. Phelps would not be the last time that Alito stood nearly alone in a contentious free speech case this term. Just weeks ago, as the Court issued its final decisions of the term, Alito rejected the Court’s broad argument that California could not ban the distribution of violent video games without parental consent. Although he shared the Court’s bottom-line conclusion that the particular statute at issue was unconstitutional, he criticized the majority’s analysis in Brown v. Entertainment Merchants Association as failing to give states and local communities latitude to promote parental control over children’s video-game habits. The states, he urged, should not be foreclosed from passing better-crafted statutes achieving that legitimate end.

Moreover, Alito’s opinions in those cases followed a solo dissent late in the previous term, in United States v. Stevens, where eight of the nine justices struck down a federal law barring the distribution of disturbing “crush videos” in which, for example, a woman stabs a kitten through the eye with her high heel, all for the gratification of anonymous home audiences….

The source of Alito’s positions:

[T]hose speculating as to the roots of Alito’s jurisprudence need look no further than his own words—in public documents, at his confirmation hearing, and elsewhere. Justice Alito is uniquely attuned to the space that the Constitution preserves for local communities to defend the vulnerable and to protect traditional values. In these three new opinions, more than any others, he has emerged as the Court’s Burkean justice….

A review of Alito’s Snyder, Brown, and Stevens opinions quickly suggests the common theme: Alito, more than any of his colleagues, would not allow broad characterizations of the freedom of speech effectively to immunize unlawful actions. He sharply criticized the Court for making generalized pronouncements on the First Amendment’s reach, when the Court’s reiterations of theory glossed over the difficult factual questions that had given rise to regulation in the first place—whether in grouping brutal verbal attacks with protected political speech; or in equating interactive Duke Nukem games with the text of Grimm’s Fairy Tales; or in extending constitutional protection to the video of women illegally crushing animals. And Alito was particularly sensitive to the Court’s refusal to grant at least a modicum of deference to the local communities and state officials who were attempting to protect their populations against actions that they found so injurious as to require state intervention….

The ability of the press to undermine national defense with impunity was established in World War II and was ratified the Iraq War. Here is one example, from 2005, courtesy of Winds of Change:

Today’s New York Times provides intimate detail on the charter flights used by the CIA to ferry prisoners across the globe. The names of the charter companies are disclosed. The types of aircraft flown are revealed. The points of departure and destinations of these flights are stated. There is even a picture of one of the charter craft, with the identification number of the aircraft in full display. All of this is extremely valuable to al Qaeda members who may have an interest in rescuing, or if deemed appropriate, conducting a suicide attack against suspected extraction flights. A successful attack resulting from this story can endanger the lives of CIA, security and civilian personnel involved in these missions, as well as deprive the intelligence and military communities of valuable information that can be gained from interrogations….

What exactly is the purpose of the New York Times in reporting on sensitive issues such as these? Do they even care about the consequences of making such information pubic? It appears the editors of the New York Times feel that breaking a titillating story about sensitive CIA operations is much more important than national security and the lives of those fighting in the war. All to our detriment.

Ann Coulter reminds us of other examples:

[I]n 2006 the Times published illegally leaked classified documents concerning a government program following terrorists’ financial transactions; … in 2005 it revealed illegally obtained information about a top-secret government program tracking phone calls connected to numbers found in Khalid Sheikh Mohammed’s cell phone….

If the Times‘s reporting is not “aid and comfort” to the enemy, what is? As I wrote here:

The preservation of life and liberty necessarily requires a willingness to compromise on what — in the comfortable world of abstraction — seem to be inviolable principles. For example:

The First Amendment doesn’t grant anyone the right to go on the air to compromise a military operation by American forces…

The NYT article about a CIA operation being conducted in support of an authorized war amounts to the same thing. The right to publish cannot be absolute and should not exempt anyone from a charge of treason.

A general and compelling case against the current reign of absolutism is made by David Lowenthal in No Liberty for License: The Forgotten Logic of the First Amendment. My copy is now in someone else’s hands, so I must rely on Edward J. Erler’s review of the book:

Liberty is lost when the law allows “freedom of speech, and of the press” to undermine the civil and state institutions that enable liberty.

See also “The Constitution: Myths and Realities“.

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