Monday, January 12, 2015

When can governments restrict our freedom?

Photo Credit: Matthew Powell via Flickr
Roger Crisp points us to the restrictions placed on high-speed gambling machines in the UK, aiming to reduce the socially detrimental impacts that the activity can have on the lives of individuals and their families.

He notes that this might conflict Mill's famous "liberty principle" (alternatively referred to as the "harm principle"):
The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of action of any of their number, is self-protection. 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 (On Liberty, ch. 1, para. 9).
This is widely held to be a foundational principle of the political liberalism. But limiting individual's ability to gamble is clearly a limitation of their freedom, and is not obviously justified by protecting others (by which restrictions on, e.g., gun ownership obviously could be justified). So should we permit such laws?

Crisp says we may, because of the harms that "problem gambling" can have on the families of individuals who fall prey to this vice. Certainly, it's true that families can be affected by the poor choices of its members, and we can see how such regulation could benefit and protect families from serious losses and harms.

But Crisp also writes:
The gambler may respond that we don’t seek to prevent people taking risks in other enjoyable activities which may have seriously detrimental effects on their families, such as dangerous sports or smoking cigarettes. If I’m allowed to race motorbikes at high speed, or smoke 80 Rothmans a day, why should I be prevented from placing £100 bets if that’s what I want to do?
Though I'm unfamiliar with relevant UK law, American law certain does limit motorcycle speed, enforce helmet laws, and seek to disincentivize tobacco use through heavy taxation. So gambling restrictions, when fully appreciated for the harms that problem gambling can cause (I hesitate to use the term "gambling addiction" because it's controversial, though I think the term is probably apt), might easily be seen in a similar light.

As Crisp notes, restrictions on these other activities can likewise be justified through appeal to the interests of family members. This is a good point, often under-discussed in "personal freedom" discussions--but this is because the role of the family in liberal democracies is often neglected in political philosophy and discourse. This is a deficiency Harry Brighouse and Adam Swift seek to rectify, as I hope to discuss in the future.

Though perhaps straying from the original intent of the liberty principle, Crisp's justification fit's within Mill's framework, because it justifies the restriction on liberty via harm to others. But there's another justification for such restrictions, which I have tended to favor.

Essentially, the claim is that restrictions on liberty do not merely come from government-imposed limitations. They can come from norms of society, that might (say) discourage or incentivize not wearing a helmet on a motorcycle, or from chemical addictions, such as the nicotine in tobacco that makes it difficult to quite smoking. We might then, in fact, promote liberty by using regulation to discourage or limit dangerous activities, access to addictive substances, or the risk of substantial gambling losses.

This argument works very differently from Crisp's. Crisp is arguing that the government can limit our freedom to gamble because it protects out families from harm. In contrast, I claim that regulating gambling activities is not in fact a limitation of liberty, but a promotion of it. Both are consistent with accepting the Mill's liberty principle. (Alternatively, some choose to reject the principle.) Though these arguments might seem to be at odds, they could both be correct to a certain extent, and work in tandem.

Formulating what is and isn't a restriction on freedom is difficult, and may be endlessly controversial, so any regulations that seek to remedy these must be provisional, open to adjustment, and reasonably limited in scope. Further, they ought to be subjected to democratic oversight, as well as to judicial appeal in the case of discrimination against minorities. But I think we can legitimately justify such apparent "restrictions," and it's plausible that we're obligated to do so.

This justification avoids some of the problematic features of Crisp's justification by appeal to the harms suffered by family members. For example, why should individuals with limited or weak family ties be obligated to follow such restrictions? Others might question whether familial values can legitimately ground restrictions on liberty at all, since it is commonly believed that the family is purely a domain of "private" concern. This is almost certainly wrong, but in justifying these regulatory measures, it's best to appeal to the least controversial means available.