Sunday, November 2, 2014

Law, Legislation and Liberty - LEGISLATION THAT PUTS CHOICE - WHERE CHOICE BELONGS - WITH YOU

READING TIME: 10 MIN

All legislation should be viewed through the lens of the two freedoms, as in law there are "legal tests" there should be "law creation tests". The two freedoms test would ask the questions "have we reduced or expanded individual choice?" and "have we facilitated action?".  

Two Freedoms:

The First Freedom - The absence of coercion.

If you believe as I do, that the assurance of personal sovereignty is the most fundamental right - innate in our humanity and that government’s paramount focus should be the protection of personal liberty, then you will accept the wisdom of giving the first freedom priority over all other considerations in the creation of legislation. In legislation, the first freedom is best satisfied by government engaging in the creation of legislation that commits government to inform people, rather than to control people - educate rather than regulate.

The public is best served by having in government, deeply enshrined, a clear direction to protect by informing the individual, so they may respond to their environment as they see fit within their own good judgment. To the extent knowledge is applied under decree from central authority - is the extent to which imperfect response to local stimulus occurs, to the extent knowledge is applied at the point of action - is the extent to which better outcomes will occur.

Decree governance rarely provisions solution tailored to the multitude of actions the populous encounters or undertakes, requiring the populous to adjust actions in accord with circumstance rather than decree (law), thereby requiring them to move outside the law – a little at first and then as much as is required to effect the action they want. This reality effects the erosion of credibility of law and makes government a “micro manager”. As no central body can anticipate every human eventuality, the practical requirements of life push people outside the law and having been forced by practical concern outside the law they become vulnerable to coercive intervention from corrupted officials or competitive actors. The relevance of law is diminished and state authority is appropriated for self-interest, in this phenomena the justice in government falls with only its authority remaining. This is a toxic circumstance, as it leads to the corruption of government and, having been driven into the minutia of human actions government becomes increasingly costly and complex.


Government must seek to develop an institutional adversity with respect to regulation and prohibition, when they fall in conflict with the choice of a reasoned person. Governments' historical roots extend from a modality of direction through control, as was necessary perhaps in antiquity with the masses having greatly reduced intellectual capital relative to the contemporary population. Today, however, the masses are well educated and capable of self-governance. Governmental paternalism has become outmoded and unnecessarily stifling to the populous’ choice. 

By having the first freedom, the absence of coercion, the paramount focus in devising legislation – government removes itself from the enforcement of morality; this removes bias from governance of one moral position over another, allowing a truly secular society to emerge. Canadian society has as a foundation a set of Christian morays; and for the most part they have served us well. There are aspects of the application of Christian morality as applied by government that generates immorality, these aspects are in effect the product of conflicting programing that flows from the Christian narrative into society and by extension government. The errors that emerge from this reality have been on repeat since Christianity appropriated government to further its interests. By allowing the first freedom to lead governance, over time, the positive aspects of the Christian influence will gain prominence and the negative aspects will subside; and this reality will extend to all perspectives – the best of all moral origins will emerge.       

The following is an example of some typical language one encounters in government legislation and an example of how wording may be changed to express the importance of personal choice.

2.3 The purpose of this Act is to protect and promote the health and safety of the public and encourage accurate and consistent product representation by prohibiting and regulating certain activities in relation to foods, therapeutic products and cosmetics.

This time with liberty in mind

2.3 The purpose of this Act is to protect and promote the health and safety of the public and encourage accurate and consistent product representation, by collecting pertinent information in relation to foods, therapeutic products and cosmetics for distribution to the citizenry and then by regulating certain activities in relation to foods, therapeutic products and cosmetics, in a manner that recognizes a reasonable person's sovereign right to utilize foods, therapeutic products and cosmetics according to their own judgment.

This wording shifts the role of government away from prohibiting, to the role of informing. To support the efficacy of this assertion, that extending more judgment to the individual in the context of extremes is rational, consider the following; Arsenic is widely available but rarely eaten as there is a general knowledge that Arsenic is harmful, so reasonable people refrain from consumption based on information as opposed to regulation, so the scientific information pertaining to harm is a de facto prohibition.

Regulations requiring labelling stating Arsenic's presence are all that is required for the safety of the public. Vitamin C, on the other hand requires judgment in consumption; there are a wide range of views throughout health literature as to varying doses and their affects. Conventional medicine in my view recommends too low of a dosage; I take under consideration the government recommendations and choose to consume a higher dose. I also disagree with my doctor on the proper dosage for Vitamin C. As an informed individual, I personally make a choice as to the risk and benefit of a given dosage, and choose to consume a higher dosage than all the conventional bodies recommend. That is my right.

There is an endless array of examples of government intruding on the individual for any number of reasons, and very rarely are they valid. The first freedom’s focus in this case would provide a circumstance where the government extends judgment to the individual by setting the priority to inform rather to prohibit or regulate. There is a continuum of consideration, Arsenic is clearly accepted by people as a substance that one should avoid taking, and rational people avoid it. Vitamin C requires people to inform themselves regarding its use and exercise judgement, Alcohol carries an affect that some desire. By committing to informing people of the potential benefits and harms the government achieves a better outcome by relying on rational people to exercise judgment at the point of consumption.   

It is important to note that the legislation that emerges under the more liberal “purpose” may end up looking similar to the legislation that falls out of the more authoritarian “purpose”, the difference however, is the spirit is dramatically changed – putting government in its rightful place – subordinated to people as opposed to subordinating people.    

The Second Freedom - The provision of base resources – knowledge and access to “capital”

The satisfaction of the second freedom is difficult as it is often over exerted, extending government into the realm of personal choice. The addressing of the second freedom must have at its core the avoidance of intrusion on the first freedom. The second freedom should only be exercised in matters of human concern related to minimum standards and personal liberation in the context of societal advancement. At the end of slavery in USA, slaves were freed to a circumstance lesser than they experienced under slavery – free but physically worse off.  There was an obligation on the part of government to provide the means and ability to exercise their new found liberty – through basic sustenance and education. The second freedom’s valid application only extents to the point of execution, insomuch as it draws on the resources of society at large. There is an important distinction to be made with respect to government reasonability, slaves absent knowledge were completely ill equipped to function – too often in modern society the second freedom gets extended to include extravagant elements of life.        

In Sweden the government changed the pension plan from mandatory mass contribution to a pool, to one of mandatory contribution of an individual to a single account. The Swedish government did an excellent job of mitigating intrusion on the first freedom and attending to the second freedom in the execution of this plan. The government assessed the portion of the pre-accumulated pension attributable to one individual and provided choice as to how that individual could manage their own pension amount. The individual could choose to self-direct the funds or they could choose a number of plans the government provided. While people were under some coercion to participate, the Swedish government mitigated this intrusion through the provision of choice.  

We are all permitted to purchase alcohol and as a result a few become afflicted with alcoholism. Policy relating to this issue requires an ex post facto response. The first freedom is rightly extended and then for the few who are proven incapable, via judicial review, then the second freedom is actuated - mitigation programs. This stands in contrast to what is often the approach where the right of a sound individual to exercise good judgment is impaired by legislation designed to administer the actions of those of poor judgment.    


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