Permissiveness or Liberty; R. Wilson

the "public interest," the "general welfare," and a range-of-the-mo ment pragmatism designed to fit such goals. These may seem like esoteric and ethereal changes. But they filter down to - and confuse - the layman in such concepts as "permissiveness." Eminent economists have de cried the forcing of military and political labels on the market econ omy - "robber barons," "trade wars," andthe like. We should sim ilarly object to a spurious analogy with the art of child-rearing (of all things!). Permissiveness and its opposite, discipline, are terms describing a parent-child relation;. ship. They have no place in a dis cussion of the free market. They do however take on some importance in the economic and legal morass of welfarism, social ism, any breed of statism in pro portion to the degree of power it exerts. Why? 349 350 THE FREEMAN June "Parens Patriae ll Western law treats the state as a protector of liberty and arbiter of justice. But this is not the only conceivable relation of the state to its citizens. "From Roman law comes the idea that in some cir cumstances the state should relate to the citizens as the parent to his child," a doctrine known as "par ens patriae."!

This is not a liberal or liberta rian policy. "Under the doctrine of parens patriae, certain types of so cial relations are exclud'ed from those governed by Anglo-Ameri can, democratic principle. Fur ther, it is recognized as legitimate that, in some circumstances, people may be treated as stupid children, and the government as their wise parent. The exemption of some men, and some governmental func tions, from even minimal stand ards of competence and responsi bility threatens to undermine tra ditional English and American political institutions. Yet, without them, there can be no open society, and no personal liberty. In brief, to whatever extent we bestow the power of parens patriae on the government, to that extent we grant it despotic powers. Nor can we expect that such powers, once granted to specific agencies, will 1 Thomas S. Szasz, Law, Liberty and Psychiatry (New York : Macmillan, 1963), p. 151.

remain localized. On the contrary, the process will spread, and unless halted, will envelop the state."2 Interventionism Yet it is precisely this parens patriae relationship that interven tionism creates. When the state seeks to feed, clothe, house or otherwise satisfy the desires of its citizens by legislative fiat - what relationship can it be assuming save that of the prosperous and benevolent parent? But, as Dr. Szasz notes, with the parental gift comes parental dis cipline. We may still profess pained amusement when (for instance) the Soviet Union, as it did recent ly, bans bridge clubs as "immoral" and restricts bridge-playing to "consenting adults in private." We should remember however that this kind of schoolteacher mentality is nothing more than parens patriae - and that the banning of bridge clubs is a grotesque minor symp tom of the disease that bans pri vate enterprise.

Parens patriae is a concept that Anglo-American law has not fully accepted. Parens patriae and the Constitution are not at all com fortable together. But the ideals and assumptions of laymen have changed to such an extent that "permissiveness" is allowed to be come a national issue. 2 Ibid.

1973 "PERMISSIVENESS"· OR LIBERTY? 351 Special Privileges "Permissiveness" assumes pa rens patriae. "Permissiveness" can only ob tain if the state is an omnipotent granter of permission to its chil dren, the citizens. One consequence of this partic ularly universal assumption is that moral issues are argued in legal terms. The mentality of the bu reaucrat has been characterized as a belief that "whatever is not il legal, should be compulsory." We run into variations on this theme practically every day. "Have you heard about the Amish children," goes a typical question, "taken off to public schools against the wishes of their parents ?" "Yes," the libertarian. answers, "and I disapprove." "Oh ? You mean you're against education ?" - and so on. The layman con siders it paradoxical to support ed ucation but oppose forced educa tion, to oppose pornography and censorship simultaneously, to op pose drug .abuse vehemently but to advocate repeal of the laws. (1 choose these issues simply because they are the ones to which the "permissiveness" question is usu ally applied, not because they are in any way central to libertarian ism.) In short, it is considered paradoxical for the libertarian to uphold the freedom to make mis takes.

This is where "permissiveness" intrudes. The "permissive" law maker would sanction such vices as drinking, pornography and the rest of the current issues. The "disciplinary" legislator would do away with those indulgences of which' he disapproves. In either case, the r'ig ht of the state to grant permission is considered obvious and a priori. Thus the advocate of limited government can be made to sound more libertine than liber tarian - as if opposing prohibition and advocating drunkenness were one' and the same thing. Given this confusion of moral and legal values, some might still be prompted to ask: Is the free market morally "permissive"? Does it encourage licentiousness and avarice or rather the more tra ditional values? Market Neutrality Enemies of the market system attribute its productive power to the petty materialism of prod uc ers, and condemn it for catering to the "base" desires of consumers.

The answer has been made that, on the contrary, capitalism and the free market "reward" only pro ductive activity and not the unpro ductive vices. Either way, it should be obvious that capitalism qua eco nomic system is based on produc352 THE FREEMAN June ing marketable items, and this marketability depends on the value judgments of the buyers. If there is a market for pornography, it is not the fault of pornographers "coercing" the public. "Mankind does not drink alcohol because there are breweries, distilleries and vineyards; men brew beer, dis still spirits, and grow grapes be cause of the demand for alcoholic drinks. The capitalist who owns shares in breweries and distilleries would have preferred shares in publishing firms for devotional books, had the demand been for spiritual and not spiritous sus tenance."3 Since the free market may only serve and does not dic tate personal values - since it can in no way duplicate the ·legal state of affairs we call parens patriae then not even in this realm can the word "permissiveness" have any application.

Misplaced faith Perhaps we should have more confidence in mankind and less faith in the benevolence of omni potent legislators. Free men may make mistakes, and bear the brunt of the consequences, but this is no mark against them. Free men have also been competent to build the huge and complex industrial civili3 Ludwig von Mises, Socialism (Lon don: Jonathan Cape, New Edition, 1951), p.446. zation that bureaucrats seek to control. The truth is that individ ual men are much better able to judge their own interests than lawmakers, whose decrees must be tailored to fit everyone equally. "Laissez-faire means: let the in dividual citizen, the much talked about common man, choose and act and do not force him to yield to a dictator."4 If we consider a given man's actions immoral (and so long as he is not initiating force or fraud) we may tell him so; we should not consider it our duty to "protect" him or his cus tomers at the point of a gun. Per haps the best way for a liber tarian to illustrate moral virtues is by living them.

At any rate, it would be .poor policy to accept the implicit doc trine of parens patriae. The free market is not "permissive" be cause it has no permission to grant; sovereignty is in the hands of the individual. Questions of moral judgment do not become matters of government policy. We are either free men or wards of the Parent State, one or the other. The two are not com patible. But if we must choose, let us do so openly; not under the smuggled implications of a word like "permissiveness." ~ 4 Ludwig von Mises, Planning for Freedom (South Holland, Illinois: Liber tarian Press, 1962), p. 49.