Liberty Does Not Require Permission

Paul Meany

Most arguments for government intervention put the cart before the horse. They begin by asking whether a restriction might be useful rather than whether anyone has the right to impose it.

Liberty should be the default, and government intervention the exception. The classical liberal ideal of the presumption of liberty puts the burden of justification on those who would restrict freedom, not on those who wish to exercise it. The presumption of liberty rests on the moral equality of individuals. No person is naturally entitled to rule another; therefore, restrictions on peaceful action require justification.

A useful way to understand the presumption of liberty is through the more familiar presumption of innocence. In criminal law, the accused does not have to prove that they deserve to remain free. The state must prove that it is justified in punishing them.

The presumption of liberty extends a similar principle beyond the courtroom. People should be free to act unless there is sufficient justification for restricting them. The burden of justification rests on those who would interfere with individual liberty. The presumption of liberty does not mean people may do whatever they please regardless of the impact on others. It is a presumption in favor of people doing what they please with their own lives, consistent with everyone else’s equal freedom to do the same.

Consider two political systems. In the first, individuals may act unless their conduct is prohibited for a sufficiently strong reason, adhering to the presumption of liberty. In the second, individuals may act only after the government has decided to permit them: a presumption of power. These two political systems represent opposing conceptions of the relationship between individual rights and political power.

In the first system, the government possesses limited authority over people who are otherwise free. In the second, people possess particular permissions issued by a government whose authority is nearly unlimited. If the law tells you what you cannot do, you rightfully assume everything else is allowed. If the law tells you what you may do, you might start to assume everything else is forbidden.

All too often, the government is assumed to have a rightful role unless a special case can be made for liberty. If power is the default and liberty the exception, there is no principled limit to what the government may claim the authority to do.

People frequently ask whether individuals should be “allowed” to start a business, build a home, consume a product, enter a profession, educate their children, employ someone, or express an unpopular opinion. But the word “allowed” treats the state as the prime mover of human action and the individual as a petitioner seeking temporary access to a privilege.

Without the presumption of innocence, anyone accused of wrongdoing would face the impossible task of disproving an allegation. The same problem arises when the burden of justification is placed on individuals to defend their liberty. It is impossible to demonstrate that your choices will produce no risk, offend no moral conviction, disrupt no existing business, or create no consequence that someone might later describe as a social cost. The burden of proof cannot be laid on the individual because an individual cannot reasonably disprove every hypothetical harm, any more than you can demand an individual definitively prove the Easter Bunny does not exist.

But the presumption of liberty is not absolute. A presumption can be overcome, but it must be overcome with an argument that gives a decisive account of why the power being exercised is justified. The more severe the interference, the stronger the justification necessary.

Without the presumption of liberty, the mere identification of a social problem becomes sufficient to justify government intervention. Individual rights would exist only to the extent that political authorities graciously chose to respect them—a dangerous arrangement, given how rarely rulers throughout history have resisted the temptation to expand their power.

People develop judgment by making choices and living with the consequences. They discover their talents by attempting things whose value cannot be proven in advance. Individuals grow through countless experiments in living. Some fail, some succeed, and a few transform the world.

A permission-based society suppresses this process because officials naturally demand evidence before allowing experiments whose evidence can exist only after they have been attempted. Individual liberty allows the evidence to come into existence. As John Stuart Mill argued, liberty allows individuals to engage in “experiments in living” whose value cannot always be known in advance. The presumption of liberty is inseparable from social progress because it protects not only the choices we already understand, but also future possibilities that no committee, legislature, expert panel, or political majority has yet imagined.

Critics sometimes object that the presumption is indiscriminate. Why should trivial liberties receive the same initial protection as profound ones? But that indiscriminateness is precisely the point: A presumption of liberty cannot depend on political authorities deciding in advance which freedoms are important enough to deserve protection.

The freedom to write a scholarly book may appear nobler than the freedom to open a business selling fidget spinners. But a free society cannot be built solely from liberties that the high-minded consider dignified. Liberty must protect how people live their daily lives. Once political authorities are empowered to decide a hierarchy of freedoms, liberty has already ceased to be the default.

The presumption of liberty is a necessary corrective to the widespread assumption that government intervention is both necessary and legitimate across a broad range of human activity. We are not raw material for political projects. Our lives are not public resources waiting to be allocated and directed toward a higher purpose. We do not owe the state or anyone an explanation for every peaceful choice we make. Individual liberty provides both the foundation and the highest aspiration of legitimate government. Power requires justification; liberty does not.

Source: https://www.cato.org/blog/liberty-does-not-require-permission