The statue of Freedom in the capitol, Washington DC
We are required by law to wear seatbelts in cars and crash helmets on motorbikes, to refrain from smoking in public indoor areas, from injecting heroin and smoking marijuana—all in the interests of our health, well-being and safety. Such laws imply that the government knows best what is in our interests, and has a duty to act accordingly.
Is this always right? Consider a more recent and apparently more anodyne matter. In the last budget, the Chancellor announced that pensioners will be able to dispose of their savings as they see fit, a reversal of current policy in which pensioners’ savings have to be deployed in a prescribed manner.
Critics claim that people in general are not good at making long-term plans, and that their pension plans should therefore be arranged by professionals. Freeing pensioners to dispose of their savings at will, say the critics, is in effect imprisoning them in the consequences of their ignorance and short-sightedness. Current policy protects them against this; the Chancellor is now permitting them to make bad choices just where he should be doing the opposite on their behalf.
What is at stake in this quarrel? The answer is: liberty. When the authors of the Federalist Papers were debating whether to add a Bill of Rights to the new United States Constitution, Alexander Hamilton objected that drawing up a list of positive rights would imply that they were the only ones to which citizens were entitled, whereas the absence of prohibition left open the whole field of what Isaiah Berlin later called “negative liberties,” defined as absence of constraint. Pertinently, Berlin declared himself wary of “positive liberties”—those permitted or (worse) enjoined constitutionally or by statute—on the grounds that they are in the interests, as decided by those who know best, of those destined to enjoy them.
Once our legislators are endowed with the power to decide what is in our interests, it is not long before they begin to exercise them. We think it is a joke to say that sugar will soon be the new heroin, to be proscribed as injurious to health—but laws on the size of soft drink bottles in New York (a way of limiting corn syrup intake by the American obese) are a staging post on the way thither. It…