I yammer on a lot about liberty in these pages, and sound the alarm when I think it is threatened. For all of that, though, I’m not an extreme libertarian; limitations on liberty are necessary for a well-functioning society. I just don’t like to see it limited beyond necessity, and I don’t like policies whose unintended consequences include creating conditions that necessitate further limitations.
So what constitutes a meaningful limitation of liberty?
Imagine the following curious scenario. You live in a world with a strict system of laws: everything that is not explicitly permitted is forbidden. (Don’t worry about how the laws are enforced; let’s say there is some automated monitoring system in place that operates with 100% effectiveness, and the punishment is swift and harsh.) Imagine further that you are the only inhabitant of this world.
Now let’s add a further curious stipulation: everything that you choose to do during the course of your life is on the list of permitted acts. (Since this is just a thought experiment, lets say that our law-enforcement bot is able to look back in time, and program a list of everything you will choose to do during your life into its list of what isn’t forbidden.)
A strange situation! It will seem to you as if there are no restrictions whatsoever on your liberty. But that’s hardly the case: the list of forbidden acts is in fact infinitely larger than the list of what’s allowed: it’s just that you’ll never notice. The list of what you can do is so tightly shrink-wrapped around what you will ever want to do that there’s no apparent problem.
Now let’s say we add a second individual, a perfect clone of you. Do the laws have to change? Well, yes, they do, a little: while almost all of the individual acts you’ll chose will be the same, in the interest of harmony and justice there will be some acts that will have to be forbidden, namely those acts that impinge unfairly on the other person. Spinning around firing a machine gun in all directions, or eating all of the other person’s food, for example, might need to go onto the “forbidden” list. But beyond accommodations of that sort, the laws won’t have to change that much, because, being perfect clones, you both will be inclined to toward pretty much exactly the same actions. So even though the list of forbidden acts is infinitely larger than the list of what’s permitted, you’ll both still have a sense of enjoying almost perfect liberty.
OK: so far we can describe the legal system of our little world according to the following meta-rules:
1) Acts that impinge on others in harmful or unwelcome ways are forbidden.
2) All voluntary acts that happen to be chosen by any individual during his or her lifetime are explicitly permitted, except where proscribed by 1).
3) Every act that is not voluntarily chosen by someone is forbidden for all.
What we see then, is that 3) is starting to lose whatever relevance it ever had. Even though 3) puts on the list an infinitely large collection of forbidden acts, and therefore in principle constitutes a gigantic limitation of liberty, it is not a meaningful limitation, because we never notice it. What limits liberty in a way we will actually feel is 1).
So: what factors might increase the effect of 1)? Well, if we imagine our little world to be populated with clones of ourselves, odds are that since we’ll be doing almost exactly the same sorts of things, the effect will tend to be muted. But increasing the number of copies of ourselves will surely have an effect; there will be more of us going after finite resources, etc., and so some new laws will have to be added to the blacklist to keep things running smoothly (you can’t take more than a certain share of a resource, etc.).
Here’s another way to increase the limiting effect of 1): instead of populating our little world with clones of ourself, we use near-duplicates. Now, because the list of acts we’ll voluntarily choose is going to start to diverge, the ways your acts can “impinge on me in harmful or unwelcome ways” is going to increase. For example, in a world of clones we’ll all want to be awake at the same time, and sleep at the same time; but now you might like to sleep during the day and play the drums on your porch all night while I’m trying to get some rest. Meanwhile I might like to render animal bones into glue in my spare time, while you don’t like the smell. So we’ll need some new additions to the forbidden list. Because these are voluntary acts that would have been permitted in our original setup, I’m going to feel the difference. These are meaningful limitations of liberty. But most of the time we’ll still keep out of each other’s way, because as near-duplicates we are going to engage in pretty much the same behaviors. I like to have parties on Friday night, but so do you. I like to sit on the beach in the nude, but so do you. And so on. So all of this is permitted, and our liberty is only minimally affected.
It’s important to pause here to remember also that under 3), there are uncountable numbers of things that are NOT permitted, simply because they are not things that any of us would choose to do. But as we mentioned above: 3), though it makes by far the biggest contribution to the forbidden list and therefore is the biggest actual limitation of our liberty, makes no meaningful limitations, because it doesn’t prevent us from doing anything we’d ever want to do anyway. It is negligible. In our world of clones or near-clones, although our list of permitted actions is actually very tightly constrained by law under the effect of 3), we don’t notice, and so don’t care.
The point of all this? The only restrictions of liberty that affect us in any practical sense are restrictions of the liberty to do those things that we would ever want to do anyway. Because in the real world we don’t have the time-traveling omniscience of the law-bot in our toy world, we don’t know in advance the full list of what the members of our society might want to do, so we try to make more general rules that we think will suffice to grant us all the liberties we need. And course, our thought-experiment world includes that strange proviso 3), where everything that nobody would ever want to do is prohibited. But as we have seen, 3) has no meaningful effect; the real action comes from 1) and 2). Take away 3), and what you have left is a society that, because it seeks to prohibit only that “which impinges on others in harmful or unwelcome ways”, would probably flatter itself as being quite “free”.
Now let’s go a little further: instead of near-duplicates of ourself, we populate our kleine Welt with total strangers who are as unlike us as they could possibly be, in all the ways you can imagine: political views, social customs and rituals, diet, living arrangements, religion, and so on. This is going to dramatically increase the effect of 1); a great many things that were previously permitted will no longer be. We should note that it is also the case that more will be permitted under 2), because there will be a greater variety of voluntary choices being made — but those new additions to the permitted-actions list brought about by those who are maximally unlike us won’t have much of an effect on increasing our liberty in a meaningful way, because most of them will not be actions that we ever would have chosen in the first place, or will choose even if they become available to us.
From all this, then, we can conclude that in our little thought-experiment world, liberty — meaningful liberty, the kind that actually affects people’s lives — is maximal for a single individual, reduced a little for a small group of exactly similar individuals, reduced somewhat more for a small group of highly similar individuals, reduced further for larger groups of highly similar individuals, and reduced more and more as the heterogeneity — the diversity — of the population increases.
What about the real world?
