On Recapturing Liberty; R. Foley, Jr.

Ridgway K. Foley, Jr. ON RECAPTURING LIBERTY B,E'tV.AB,D'0 ~pprehenSion of • LIberty w·" .r I YIeld :n~ater creativity of lif:. freer Way HUMAN HISTORY reflects man's tale as a continuing epic scramble be tween the concept of freedom and the human tendency to coerce others. Parallel to this combat ap pears mankind's skirmish with na ture, his never-ceasing attempt to overcome his frailty and to improve his material and spiritual lot in life. These dual endeavors are not wholly separate battles; they are related aspects of human action. Free men devise better ways to cope with the relentless problems of living posed by finite and sometimes irrational men inhabiting an infi nite and ever orderly universe. The material advancement and human betterment marking the first cen tury of American history bear dra matic witness to this truth. ConMr. Foley, a partner In Souther, Spaulding, Kinsey, Williamson & Schwabe, practices law in Portland, Oregon.

304 versely, slaves tend to live poorly, produce fewer results, exhibit more pettiness and contentiousness, and think less creatively than persons enjoying relative freedom. The op pressed possess no incentive for im provement, thereby limiting the creative endeavors of society to the narrow perimeters of the master's mind. History consists primarily of un ending constraints garbed in vary ing guises. ~~Man's inhumanity to man" conveys a warped picture of reali ty, for restrictions often flow from humane creatures possessed of the best of intentions coupled with gross myopia. American citizens currently ex perience substantiall~ less liberty than their forefat~ers, and each passing generation sinks more rapidly into the mire of bondage. Concomitantly, every moment witON RECAPTURING LIBERTY 305 nesses an almost imperceptible but inexorable erosion of the worth of the individual and his ability to combat the external world. In the battle of freedom versus coercion, the latter is winning handily.

Mankind has learned to control flood, famine and pestilence; it has also developed expertise in control·· ling those human actors who seek different creative alternatives, who make disparate choices, and who think outside the traditional chan .. nels. The recapture of liberty merely refers to a return to a condition of greater individual choice and less governmental coercion; it does not imply a conservative reversion to some prehistoric Golden Age, for it envisions an incessant movement toward ever increasing freedom once the foothold of the past has been regained. Reflection envisions our task as that of surmounting a progressive stairway of three steps of increasing depth and difficulty: (1) Recognition that a problem exists and .awareness of the nature of that problem; (2) Comprehension of the theoret·· ical solution to that problem. by application of the philo so·· phy of human freedom; (3) Implementation of the solu·· tion by a program of action calculated to apply the theoretical cure to the exist·· ing problem.

This paper examines the stairway to greater creativity and a freer life. It does not purport to exhaust the analysis, but rather to introduce the subject and illuminate the way for others to follow, each person impres sing his or her own unique and indi vidualistic imprimatur upon the task. I. Cognition of a Problem Few reflective persons would dis agree with the declaration that problems beset the current world. A cursory glance at one's surroundings reveals a host of upsetting and perplexing worries attending man kind in general and creative man in particular. Examples include: • The reduced military prepared ness of relatively free and Christian nations, a reduction which threatens the very survival of lib erty. • A paralyzing and demoralizing condition of depression and hyperinflation, illuminating gross misallocations of choice and re sources, as well as destroying the compass used by the average citizen to plan his affairs.

• The rapid increase in violent and senseless criminal conduct, dis playing an utter disregard for the sanctity of human life and property. • An ineluctable breakdown in the traditional values and spirit of sympathy, cooperation and neigh306 THE FREEMAN May borliness, and the concomitant de velopment of contentiousness and litigation-mania. • A growth of a series of counter cultures which feature drug addic tion, sloth, slovenliness, theft, and sexual promiscuity in place of self reliance, pride and creativity. • An enveloping state which wit lessly creates problems out of sup posed cures and endlessly regulates and oppresses the individual into a mere pawn of little repute and no inherent value. The list of concerns appears boundless. One should accept the foregoing as illustrative rather than exhaustive. The mere fact that cer tain thinkers place greater em phasis upon one problem to the ex clusion or diminution of others should not detract from the exis tence of all competing concerns.

The Specter of Subjugation A startling fact is that the most severe and depressing problems as sailing mankind today deri ve not from his combat to survi ve in the external world but rather as the result of man's aggression against, and oppression of, his neighbor on this planet. War, monetary chaos, crime, and societal disintegration stem not from natural forces but germinate in the hearts of individ ual actors. Thanks in large part to a past century of relative freedom, man today fears disease, flood, famine, pestilence, fire and earthquake less than ever before but he should quake at the specter of subjugation at the hands of his art ful fellows, practiced as they are in the art of harassment, maltreat ment and abuse. However, past advances against natural forces do not herald con tinued headway in this regard. His tory repeats only if conditions re main static; liberty forms a most salient causal condition for human development; demolition of freedom means reduction both in material and spiritual satisfaction and in the tools useful in jousting with the uni verse. Citizens in the United States have lived well in the past fifty years despite increased depreda tions by the state. This wellbeing has produced a narcotic euphoria, a belief that good things will continu ally appear; in fact, we have lived as parasites off the results of relative freedom practiced during the first century of American history, and the horizon portends a significant decrease in the goods, services and ideas emanating from our predeces sors.

The enumeration of Hproblems" conceals the reality that the con cerns recited, and others too numer ous to mention, emerge from a sin gle, multifaceted problem, the sinis ter tendency of man to coerce others. Inflation, wars, bondage, regulation, 1979 ON RECAP'I'URING LIBERTY 307 taxation, crime, looting, all partake of common roots; figuratively, they represent various aspects of the same edifice, as the walls, windows, and chimney of a tall building. We deal with many features of a single problem; once we accept this fact, the more likely we will emerge vi(~ torious from the fray. Reduced to simple and basic terms, man's problem today remains identical to that which has hindered and challenged men from the times of Moses and Socrates: A predile(~ tion to power. Men enjoy subjective values. Each actor can pursue his destiny by applying his dynamic subjective value scale to the orderly world in which he resides. Applica tion of these preferences may take one of two wholly distinct pathways: choice or power. One may coerce, or create. He may achieve his ends by the use of force and the coercive application of power against his fel low citizens, depriving them of their choices based upon their subjective values, or he may cooperatively apply his skills to the voluntary achievement of ends he deems im. portant. He cannot combine both at titudes, for the coercive aspects will overwhelm the creative.

II. The Solution: A Philosophy of Freedom Surprisingly few individuals even care to mount that halting first step, and a relatively small portion of those who attempt the climb master any but an uneasy balance and a stilted posture thereon. Yet the sec ond step offers an even more grand challenge, for it compels one to de duce an answer to the problem posed on the first foothold: How to solve the multifaceted dilemma of man's tendency to employ power to con quer human choice? Here, as elsewhere, man enjoys alternatives, the ability to choose between competing courses of con duct. He may choose a world domi nated by force or he may· choose a world ruled by choice. Man posses ses all of the frailties of a finite nature. One characteristic of this finity appears in his thrust for power, his tendency to trample the rights and longings of other in habitants in a relentless surge to his own goals. Yet, another trait coexists with this dark side of human nature: Man possesses the ability to improve, to cooperate, to choose, to achieve, to improvise, through voluntary social action.

Man will solve many of the aspects of the puzzle besieging him if he selects the contract in place of the bludgeon. Given this state of affairs, mas tery of the philosophy of freedom becomes imperative. Allow me to suggest six basic postulates upon which liberty rests: (1) Personal freedom, (2) individual responsibil ity, (3) private property, (4) a mar308 THE FREEMAN May ket economy, (5) limited govern ment' and (6) subsidiarity. Each postulate contains a wealth of subis sues for enlightenment, considera tion and discussion. I mean in this regard to merely touch upon each axiom in passing, leaving a detailed study for another time. Personal Freedom. The doctrine of personal freedom forms the touch stone for any study of the philosophy of liberty. Freedom means naught without individual liberty of action and freedom of choice. Talk of social or group freedom descends into meaninglessness: Such phrases merely provide a euphemism for coerced action substituting the sub jective values of the leaders, or those enjoying power, in place of the value preferences of individual actors. The essence of personal freedom resides in the major premise that it is both morally propitious and pragmati cally efficacious that each individ ual human being remain able to seek his own destiny without the aggressive intervention of mankind.

Individual Responsibility. The concept of individual responsibility refers to the reverse side of the ttper_ sonal freedom" token: One, cannot exhibit meaningful freedom unless he remains ever willing to abide by the natural consequences of his choice freely exercised. We inhabit a world where action produces consequence by the inexorable grinding of natural law. Individual responsi bili ty marks the willingness and ability of the actor to accept the results of his acts rather than shunt ing the consequences onto the shoulders of his neighbors who did not make the choice in the first instance. Private Property. One who ac cepts the premise of a personal right to free choice and action must logi cally and necessarily defend the concept of private property against its many and varied invaders. A right to live one's life apart from the aggression of others rationally in cludes the right to produce, main tain,· and transfer all value created, whether in the form of goods, ser vices or ideas. One repetitive aber ration in the modem world concerns the person who decries state imposed theology while applauding governmental regulation of produc tive pursuits. Freedom of speech, of religion, of press, and of association mean little where individuals or groups, by legally-sanctioned power, can control meeting houses, news print, sound trucks and billboards.

Market Economy. Again, both moral and material reasons support the voluntary exchange or market system of transfer: Such an institu tion produces more and better goods, services and ideas at a lower cost, 1979 ON RECAPrURING LIBERTY 309 and such a system harmonizes with the fundamental doctrines of per sonal freedom, individual responsi bility, and private property; they thrive in no other garden. Whether mislabelled ((free market," ((free trade," or ((free enterprise," the market economy imposes no limita tions upon the nonaggressive trans fer of created value between willing individuals and groups. Limited Government. The theory of limited government lends political support to the economic doctrine of a voluntary market. In order to effect a society which dis plays personal freedom, individual responsibility, private property and a market system of exchange, cer tain governmental preconditions must exist. On the one hand, the state must not impose strictures upon free nonaggressive action, be it in the form of regulation, taxation, subsidies, rules or orders, for to do so would amount to a denial of the tenets stated. On the other hand, the state must exert some force and apply some sanction, in its role as the repository of community power, lest the baleful nature of mankind discussed in the first section of this article take precedence. Community action must tread deftly between the quagmire of restraint and the nightmare of anarchy. The proper role of the state rests in the restri(: tion and punishment of initiallyaggressive human action-the pre vention of force and fraud-and in the peaceful settlement of otherwise insoluble disputes between citizens by means of orderly and established rules of law.

Subsidiarity. Finally, the doc trine of subsidiarity provides a means of governmental decision making appropriate to the limited government idea. Subsidiarity merely refers to the normative rule tha t no higher or more general organ of government will issue a rule or determine an order when the same task can be accomplished by a lower and more specialized form of government. The limited govern ment theory presupposes that the state which governs least, governs best, while subsidiarity expresses the proposition that the government nearest the affected society, governs best, in regard to those matters which deserve state attention. Properly understand, these six principles of freedom provide the basis for comprehension of the philosophical foundations of liberty. In addition, once explained, theyes tablish grist for the explanation of such related doctrinal disciplines as natural law, natural rights, sovereignty, police power, state ac tion, public interest, society, diffu sion of risk, justice, egalitarianism, and choice.

310 THE FREEMAN May Furthermore, these same six prin ciples exhibit the additional virtue of truth-they reflect the orderly reali ty of the universe. One can deny their existence but he cannot thus obscure their validity. One can disparage their efficacy, but he must stand willing to pay the natural law cost exacted for his denial of truth. A controlled economy will necessarily produce fewer and shoddier goods, services and ideas than a voluntary market; those who promote national health insurance, wage and price controls, or unreasonable restraints against market entry must accept the fact that their action, if success ful, will insure a health care crisis, unemployment, and unhealthy monopolies in the examples cited. One disobeys natural laws or denies natural rights only at a cost univer sally imposed; few recognize that toll and fewer still can accept the result of their conduct.

III. On Implementing the Solution However difficult the first two steps on the stairway to liberty, the final run affords a more intense and testing challenge yet. This third plateau consists of the question of appropriate action: in a phrase, how to spread the concept of liberty to others, assuming that one has at least partially surmounted the is sues of the problem and the solution. The key word in this endeavor is consistency. Freedom can only be achieved by reason, never by force. Liberty and power exist as antith eses and alternatives; thus, one who loves liberty cannot effectively or justly employ power to accomplish the nemesis of power-freedom. Consider the inquiry in the light of fundamentals: Force and freedom pose a contradiction of terms. I can not impose my subjective value structure upon an unwilling recipi ent without depriving him of his freedom of choice and action, even if his uncontrolled conduct would cause him harm in my considered opinion. Were it otherwise, good in tentions would forever justify inter position of force-and that marks the precise problem confronting the modern world!

An example may clarify the point. Health care poses a real concern to many citizens; good health affords a pleasant life, as much as nutrition, air, water, attire and shelter. The common solution to allocation of re sources for health care appears to consist of massive doses of govern mental funds alternated with an even greater degree of regulation. Yet, the government possesses only such goods, services or ideas as are coercively appropriated from pro ducing citizens. Compulsory Sharing Federal funds represent value removed from creative citizens by means of compulsory taxation; state 1979 ON RECAPTURING LIBERTY 311 regulation represents deprivation of free action or removal of choice of alternatives from some human ac·, tors. Thus, this common solution fails to accord with the most basic principles of liberty. It denies per·, sonal freedom and choice, individual responsibility, private property"

voluntary market solutions, and limitations on government action. In addition, it really supplies no solution at all, but actually inten·, sifies the ailment. Compulsion drives producers from the market" misallocates resources, incurs an. excessive handling charge, reduces the quality of the service, and. penalizes producers. Nevertheless, some followers of the freedom philosophy propose to alleviate their condition by a. force ful attack upon the problem and the common solution. One cannot im prove matters by introducing rifles in place of syringes. Talk of violent revolution, coup d' etat, and insur rection fails to accord with the prin·, ciples of freedom to the same extent as the ((common solution": I cannot force you to be free at sword point. All manner of directives emanate from the assembly halls and. execu·, tive mansions across the land each. day, most of them aimed at the cure of real or feigned ills, none of them.

effective to correct the malaise. In deed, the application of power neces .sarily magnifies the subsisting cause in place of effecting a cure. Deep truth prevails in the old say ing, ((There is no problem on earth that the meddling of a politician will not make worse." If forceful means provide an inapt device to implement the freedom solution, we must repair to an alter native source. The alternative to power is freedom. Implementation of the freedom philosophy requires use of freedom principles to effect the goal of liberty. In brief, we can achieve a voluntary society only by acting in conformity to the basic principles outlined in the second section of this essay. One must use persuasion, contract and example instead of imposition, status and re quirement. No Blueprint Available, for Freedom Is Unpredictable Those who seek a blueprint for action in these words may be sorely disappointed.·1 know the principles, not the particulars. I know how lib erty can be recaptured, not the de tails of the encounter. The curious and convincing feature of liberty remains its open texture; a free soci ety consists of myriad human actors voluntarily seeking their personal ends in an orderly and rational world; .one cannot predict the direc tion of free action,. only that it will harmonize most nearly with the In finite Truth of the universe .

However, adherence to consistent tenets of liberty does not necessarily 312 THE FREEMAN May compel one to sit idly by while the state mulcts him of his created val ue. The precise manner selected by any particular person to advance the course of human freedom de pends upon that individual's choice, which in turn depends upon his per sonal value structure and perception of truth. I cannot propound a battle plan and command all who would join me to repair to my banner, for to do so would be a compromise of the very principle of choice, of funda mental human action. Each of us must choose his path, learning from others and constantly evaluating his principles, his strategies, and his successes or failures. Nevertheless, this reticence to prescribe philosophical or political medication in absolute terms need not deter one from suggesting some effective procedures. Light a Candle. One who learns the problem and the solution well may practice the conveyance of his wisdom in a disarmingly simple manner: He may live his life consis tently with the principles espoused.

No form of communication exceeds that of an exemplar. Think what could be wrought if literally thousands of citizens refused to ac cept social security or medicare checks, or failed to employ Htax payer identification numbers," or opted not to cast a ballot to either of two unholy thugs seeking an office. Explanation of Action. The sec ond aspect of activism builds on the foundation of the first. Once the actor learns to light his candle in the darkness, he must develop skills at communication, for the light will attract others interested in his con duct and its underlying rationale. Few individuals possess substantial skill in comprehending the philoso phy of freedom, and fewer still exhibit much aptitude in explica tion; it represents a subject deserv ing of attention and nurture. Accept a respectful caveat: Be ware of preaching and forceful ex position. Most listeners and readers shy away from the effusive and em phatic proponent who literally or figuratively grasps his hearer's lapels and seeks to shake the truth into him. Infinitely greater success attends those who live a consistent life and explain their action calmly and without hyperbole when asked.

Exercise the Franchise Wisely. Many misguided souls view the elec toral process as the answer to our prayer: ulf only we could elect our guys, everything would straighten out." Political figures, however, par take of the identical frailties affiict ing mankind, and exhibit all the glaring defects of character which mar the nature of man. Indeed, since politics rests upon power, political action generally seems inimical to liberty. Politicians lust for power, 1979 ON RECAPTURING LIBERTY 313 WHEN it is time to vote, apparently the voter is not to be asked for any guarantee of his wisdom. His will and capacity to choose wisely are taken for granted. Can the people be mistaken? Are we not living in an age of enlightenment? What! are the people always to be kept on leashes? Have they not won their rights by great effort and sacri fice? Have they not given ample proof of their intelligence and wisdom? Are they'not adults? Are they not capable of judging for themselves? Do they not kno'w what is best for themselves? Is there a class or a man who would be so bold as to set himself above the people, and judge and act for them? No, no, the people are and should be free. They desi"reto manage their own affairs, and they shall do so.

But when the legislator is finally elected-ah! then indeed does the tone of his speech undergo a radical change. The people are re turned to passiveness, inertness, and unconsciousness; the legis lator enters into omnipotence. Now it is for him to initiate, to direct, to propel, and to organize. Mankind has only to submit; the hour of despotism has struck. We now observe this fatal idea: The people who, during the election, were so wise, so moral, and so perfect, now have no tendencies whatever; or if they have any, they are ten dencies that lead downward into degradation. FREDERIC BASTIAT, The Law thus insuring that the worst and most defective of men will place their names on the ballot, in place of the righteous who generally do not wish to substitute their judgment for that of their fellowman. Thus, the polling place offers small solace to one who desires to reinstitute liberty. This is not to say that a lover of freedom should boycott the ballot, although that choice certainly rep resents his prerogative. On occasions, a refusal to vote may consti tute the highest form of citizenship; on other, all too seldom, instances, one may actually exercise his fran chise in a meaningful manner by voting for one who truly believes in liberty.

Furthermore, too many of us equate the ballot box with election of men-governors and presidents, senators and representatives-rath er than the decision of issues. In some political units, the voter enjoys 314 THE FREEMAN participation in the political process by means of a direct election system, normally consisting of the initiative, the referendum and the recall. Here, the devotee of freedom can utilize the franchise for two discrete pur poses, both completely harmonious with the principles of liberty: He can propose legislation which expands freedom of choice and removes re strictions on nonaggressive human conduct, he can sponsor repeal of constraining laws, or he can cham pion recall of venal officials. In so doing, the actor employs the ballot box to secure freedom in a nonag gressive manner and, even if unsuc cessful, he may attract and persuade interested, like-minded persons to his banner.

Fight for Your Rights Nonviolently. Recall the proper functions of the state: Prevention and punishment of aggressive force and fraud, and settlement of other wise insoluble disputes. The dis pute-determining process involves the administration of a common sys tem of justice and, hence, a court procedure. The state, its servants, and its proponents may be answer able to your summons in a judicial atmosphere. It is perfectly consis tent with the principles of liberty to commence an action, suit or proceeding at law or in equity to determine and thwart a violation of your rights. As with the direct legislative . process, even a substantive loss in the courts may amount to a tactical victory for persuasion· and common sense. A jural system provides the appropriate atmosphere for a non violent and nonaggressive resolu tion of crucial issues on a rational basis. It does not possess perfection, being peopled with finite creatures, but it represents the best process developed in human history.

Epilogue Mastery of the problem besetting the world we inhabit can develop from the tripartite process put forth in this essay. The answer is not easy because of the complexity of the in quiry and the human resistance to the solution offered by the philoso phy of freedom. The fractious side of human nature causes not only the problem but also the hostility to the solution and the ineffectiveness of the implementing devices. Yet hope exists precisely because of the real ity of human nature, for man dis plays a higher facet as well as a sin ister visage. Appeal to this bright er aspect represents the means of regeneration of mankind and the mode of the recapture of liberty. @) A REVIEWER'S NOTEBOOK JOHN CHAMBERLAIN In Defense of the Corporation IN the now distant Nineteen Thir ties Senator Joe O'Mahoney of Wyoming carried on a one-man crusade for the federal chartering of corporations. I remember his ex pounding on his favorite thesis that the corporation was a special crea ture of the state, a fictitious entity with no inherent rights of its own.