Travelling North

Article – Opting Out


Opting out

Sometimes, you want to comment on something but can’t quite express your comments clearly. I have been battling over the issue of choice – so rather than prolong the agony, here is a ‘work in progress’.

One of the foundational elements of the libertarian approach concerns choice, having the freedom to choose what you want. These choices are to be made in the free and open market. Indeed, libertarians argue we should seek to maximise what is in the marketplace in order to ensure that we are allowed to choose what we want in almost every aspect of our lives, and to allow the market to distribute resources in the most efficient way possible. This is an approach that has some weighty antecedents. John Stuart Mill wrote on the right to on liberty and to “framing the plan of our life to suit our own character, of doing as we like, subject to such consequences as may follow, without impediment from our fellow creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong”. Many have written on the operations of the market, from Adam Smith on ‘an invisible hand’, his way of describing the way in which businesspeople pursuing their self-interest nonetheless bring benefits to the wider society, right through to the Chicago school of economics in the 20th Century demonstrating the ways in which the market is, indeed, so efficient.

To make choices raises a number of issues, however. Many of these issues have to do with how we ‘see’ choices: on many occasions our choices are ‘framed’ and we are ‘nudged’ (to use the title of an excellent book on this topic by Thaler and Sunsteini) to choose one alternative over another. Marketing, product placement, associations, recommendations, these and many other factors influence our preferences. However, while such issues deserve attention, on this occasion I want to focus on the policy issues that arise when we examine the right to make choices.

There are many situations where we make choices just to suit our needs. Some years ago, I used to have some fun with my business school students on this issue, asking them a question: “what’s the difference between Microsoft and the Australian Public Service?” It was one of those silly questions that you ask when you are looking for a very specific answer: in this case, the answer I was hoping to hear was, “Very little!” Each offers you a deal, and the only difference is in the details of the deal, and hence which of the two you prefer.

Microsoft appeals to the nerdy side of your character. “Would you like to work with other nerdy people on nerdy projects? Would you like to earn a lot of money? Well, join us, work hard – 24 hours a day, seven days a week, and make sure eat, live and love within the company walls, and you will earn a lot. After a few years leave, and do whatever you would like, because you will be rich!” The Australian Public Service appeals to the security side of your character. “Would you like to have a job that is guaranteed for life? Well join us, work short hours, don’t get paid a lot, but have income security and a good pension – and the only challenge you will face as you look out of the window every morning is how you are going to fill up your afternoon!”

The question was partly just fun, illustrating the differences between an entrepreneurial leading edge business and the bureaucracy of a government department. However, even considering choices like these, how we approach our decisions is revealing. In many cases, we choose without giving much thought to the fact that our choice may be constrained by all sorts of rules and requirements. In the case of employment, that is obvious: there is a thicket of legislation affecting employment processes, work conditions and treatment of staff. Similarly, constraints often sit behind choices that seem, on the surface, just to be business transactions. You want to go on a river cruise on the Rhine. Well, that seems a good idea, with travel, food and drinks and excursions included. However, how many of us carefully read the fine print. You want to take up a cable television offer this week – again, do we read all the terms of the agreement we are asked to sign? You want to fly to Washington – but I wonder how many of us have taken the trouble to read through those minutely printed pages of conditions that are attached to the ticket.

That last example is quite revealing, because we certainly know about some of the terms and conditions – mainly those the government imposes on air travel. There are rules about what we can carry on to the plane, about congregating in the cabin and so on. We also assume there are a number of conditions that the airline has to follow to do with refueling, use of air traffic procedures, hours staff can be in the cockpit, etc. – again, these are rules set by various government agencies, on our behalf, that are intended to enhance the safety of air travel. Of course, Mill had allowed for the fact that we might be constrained in our choices if otherwise our actions can cause harm to others – and many of the rules about air travel are concerned with exactly this issue. However, in raising the issue of harm to others, Mill leaves some interesting questions on the table. Is it always clear that what we propose to do impacts adversely on others? Who makes that decision? Are there any other limits on our right to make our own choices about how we live?

In relation to the question of ‘harm to others’, we seem to have ceded decision making to governments. This has created a highly contested area. Government legislation that is introduced to ‘look after’ the interests of citizens often becomes a touchstone for debate between libertarians and communitarians. The government introduces legislation requiring motorcycle or bicycle riders to wear a helmet. The libertarian objects: it is for me to decide if I am at risk in riding my bike, and to choose to wear a helmet or not. The communitarian argues that there is a cost to society caused by accidents – medical care, psychological damage to family members, and so on. Many of us are quite happy that determining whether an action causes harm to others is a contested area: we should constantly debate what is meant by harm to others, how this relates to specific situations, and the extent to which there should be rules introduced on this basis. Mill has set a measure – harm to others – but it will always be contextual, dynamic, and important to review.

However, as to the third of the questions his examination of liberty raises – whether there are any other limits on our right to make choices about how we live – and here there is more to be said.

In the example of air travel, the small print we often fail to read can become important if something goes wrong. We feel aggrieved when the experience is not quite what we expected: the airline cancels a flight, and we have to wait a day to get another – at our expense! We complain, and then we are told that we should have read that ‘fine print’: a suggestion that often increases rather than diminishes our annoyance!! It would seem that some of these constraints on our choices are not because of ‘harm to others’: rather, they are protections – in this cases for the business, protecting it from financial ‘harm’, rather than protecting us. We entered into a contract, but we because we didn’t give the arrangement close attention it required, we failed to understand what that contract specified.

The advocate of the free market would say caveat emptor, let the buyer beware: it was all spelt out, but you were too lazy to take the trouble to understand the nature of the deal! Milton Friedman has been one of the leading voices in explaining the virtues of the market, and he explained that transactions should be transparent – all the information should be available to both parties. He also made a very interesting comparison between government and the marketplace: “The characteristic feature of action through political channels is that it tends to require or enforce substantial conformity. The great advantage of the market, on the other hand, is that it permits wide diversity. It is, in political terms, a system of proportional representation. Each man can vote, as it were, for the colour of tie he wants and get it; he does not have to see what colour the majority want and then, if he is in the minority, submit.” Accept the contract when you are making a choice, and reflect on the fact that you could choose what you wanted.

Friedman is skating over a couple of issues here. First, in arguing that government requires (or enforces) ‘substantial conformity’, he is also implying there is something better about a system of proportional representation. Well, it may be good that minority voices get heard in the legislature, but it is still the case that the majority (whoever actually forms ‘the government’) will still do what it wants and the minorities will have to submit! Voting for a minority party only gets you their representation, but it certainly does not mean you will also get the benefits of their proposed policies (and yes, they may be in a coalition in order to allow a group to form government, but there will still be some outside the coalition)

Rather more important in his praise of the benefits of the market is the implication that anyone can buy a tie of the colour he wants, (or a scarf of a colour she wants, for that matter). In the world of goods and services, infinite choice does not exist. What is offered in the market – to a significant extent – reflects the preferences of the majority. Of course, if you are wealthy you can commission someone to make the tie or scarf you want: for the less wealthy, you have to choose among what is being offered, and if your preferences are not in the mainstream, bad luck. Choices are far from free, but constrained by what is on offer at a price you can afford, and the contractual conditions surrounding your purchase.

So far we have focussed on business transactions. However, we also make choices about those with whom we associate, and how we spend our time with other people. Suppose we decide we would like to become a member of a tennis club. As with business transactions, we may not read the rules very carefully. However, we are probably quite sensitive to the conventions and standards of behaviour that characterise this club. How do people dress – on and off the courts? Are mobile telephones banned in some areas? Is conversation in the clubhouse maintained below a certain level? And so it goes on. In fact, these issues about culture and norms can turn out to be very important: they may constrain the desirability of what is on offer, and they may constrain our subsequent participation.

Of course, conventions are important in business transactions, too, and they may or may not be covered in the rules. We want to travel somewhere, and decide to use an interstate bus line. There they are again, a whole lot of rules and conditions in small type on the pages after the ticket. Do we read those? Often not, but we do have some general ideas about what might be part of the important standards of behaviour those rules could cover: no smoking on the bus; no consumption of food or drink; no loud talking; no parties!!

So far we have been considering situations where are able to make a choice. Some choices are made for us, of course. Some are determined at birth. Most of us grow up to find we are part of a family, with all that this entails. However, we later learn that what constitutes a family can be very different from one person to another, and the rules and requirements of our situation may be very different from those faced by another person in his or her family!

Simply by being born we find we are citizens of a specific nation. As a result, we have to accept the authority of the government of our country to legislate about things we may not do (while we are able to vote for leaders, this does not mean we can vote to have none!). However, unlike the case of being born into a particular family, as we grow older, we may make a conscious choice to leave one country and seek to become a citizen of another.

The issue of living in a country and have to accept its government is a particularly interesting one. This is well illustrated by the case of Hutt River Province in Australia. Resorting to Wikipedia we discover:

“The Principality of Hutt River, previously known as the Hutt River Province, is the oldest micronation in Australia. The principality claims to be an independent sovereign state having achieved legal status on 21 April 1972, although it remains unrecognised except by other micronations. If considered independent, it is an enclave of Australia. The principality was founded on 21 April 1970 by Leonard George Casley when he and his associates proclaimed their secession from the state of Western Australia, in response to a dispute with the government of Western Australia over what the Casley family considered draconian wheat production quotas. Casley and his associates resorted to International Law, which they felt allowed them to secede. The government of Western Australia determined it could do nothing without the intervention of the Commonwealth. The Governor General of Australia stated that it was unconstitutional for the Commonwealth to intervene in the secession. In correspondence with the governor-general’s office, Casley was inadvertently addressed as the “Administrator of the Hutt River Province” which was claimed to be a legally binding recognition. Casley styled himself His Majesty Prince Leonard I of Hutt to take advantage of the British Treason Act of 1495 which allowed that a self proclaimed monarch could not only not be guilty of any offence against the rightful ruler, but that anyone who interfered with his duties could be charged with treason. Although the law in this matter has since changed, the Australian Constitution prevented its retrospectivity and the Australian government has not taken any action against Hutt River since the declaration. ………

In 1976, Australia Post refused to handle Hutt River mail, and following repeated demands by the Australian Taxation Office (ATO) for the payment of taxes, on 2 December 1977 the province officially declared war on Australia. Prince Leonard notified authorities of the cessation of hostilities several days later. The mail service was restored after a court case deemed that Hutt River stamps and coins were legal within the Principality and the tax requests also ceased. Hutt River residents are still required to lodge income tax forms but are classed by the ATO as non-residents of Australia for income tax purposes; thus income earned within the province is exempt from Australian taxation. The province displays documents supporting that no tax is paid but the ATO cannot verify the provinces tax status, as they can’t by law comment on the affairs of individuals. The province levies its own income tax of 0.5% on financial transactions by foreign companies registered in the province and personal accounts. While the principality does not pay taxes, the Australian government’s current official position is that it is nothing more than a private enterprise operating under a business name.”

While this story might seem more than faintly bizarre, Leonard Casley seems to have successfully seceded from of Australia, and Hutt River Province is now a major tourist attraction in Western Australia. There are many other such micronations: 59 are listed in Wikipedia, varying from the absurd (like Hay-on-Wye which was declared a separate kingdom as a publicity stunt), through to more serious endeavours (like Hutt River Province). However, their existence is always challenged, and, more to the point, (and somewhat paradoxically), those who secede seem to simply replace the nation they left with another. I wonder what Thomas Hobbes would think? In The Leviathan, he argued that we created government to help us drag ourselves above a life that was otherwise “solitary, poor, nasty, brutish and short”. Now we secede from being governed to enjoy a better life – by being governed by someone else!

As we examine making choices to do something, it becomes clear that the act of exercising choice means that we are entering into a contract – formal or informal. Unless we take the effort to be fully informed, that choice may well involve accepting a whole lot of conditions that are not to our benefit. When we make a choice, we give up a bit of our freedom, and sometimes that cost can be quite high.

A rather different perspective on the right to make choices comes if we move from looking at choices to do something, to making choices not to do something – ‘opting out’ as it were. At first glance, it would seem that opting should be easy. Let us suppose I was a member of my high school alumni. One day I discover that the alumni body has decided that its principal role should be to raise funds for my old school, to cover the costs of equipment which the government is no longer willing to meet. I do not want to start paying money for these purposes – I believe we should be pressuring the government to meet its obligations, not meekly accepting them. In this case I can choose to opt out, and I resign from the alumni association.

Perhaps a better example is that I like to drive. However, the government in my state has introduced a set of new rules about requirements for driving (they have determined that it is illegal to drive using a hands-free telephone or listening to the car radio). I have decided I will no longer drive. I am choosing to escape a whole set of regulations and requirements that infringe my liberty in ways that I am unwilling to accept.

Rather than considering hypothetical choices to opt out, we can look at some real examples. For example, Jehovah’s Witnesses have opted out of using blood transfusions, and they “request nonblood alternatives, which are widely used and accepted by the medical community. We do this because of the Bible’s command to “keep abstaining from . . . blood.”” They go on to argue: “While we refuse blood for religious rather than medical reasons, many have acknowledged that this refusal has helped the Witnesses to avoid contracting many costly and fatal diseases such as AIDS and hepatitis.”

This decision has led to many conflicts between doctors and members of the Jehovah’s Witnesses, especially over the medical care of children. While this is a very specific matter on which they step away from common practice for the rest of the community, the Amish, another group that has chosen to opt out, have rejected participation in many facets of contemporary American life. Resorting to Wikipedia, we see:

There are a number of distinctive practices shared by most of the Old Order Amish, the largest Amish group, (while some other smaller Amish groups have adopted practices which are either more progressive or more restrictive). Members usually speak a German dialect called Pennsylvania Dutch (Deutsch). High German is used during worship. They learn English at school. Formal education beyond Grade 8 is discouraged, although many youth are given further instruction in their homes after graduation. With very few exceptions, Old Order Amish congregations do not allow the owning or use of automobiles or farm tractors. However, they will ride in cars when needed. They do not use electricity, or have radios, TV sets, personal computers, computer games, etc. In-home telephones are not normally allowed. Some families have a phone remote from the house. Most Amish groups do not collect Social Security/Canada Pension Plan benefits, unemployment insurance or welfare. They maintain mutual aid funds for members who need help with medical costs, dental bills, etc. They do not take photographs or allow themselves to be photographed. To do so would be evidence of vanity and pride.

Generally speaking, these practices of the Amish are regarded as ‘quaint’ and a tourist attraction. Their criteria for opting out seem to raise less problems for most other people when compared to the Jehovah’s Witnesses attitude to blood transfusions, (although the prohibition of photography does cause a great deal of consternation at times).

How does all this affect me? Is there a limit on the things that I can choose not to do? Can I opt out of contributing to the government’s medical care system? Here is an illuminating example where it seems the key question is not what the state should provide, but what freedom of choice is left to the individual. This was the issue that the US Supreme Court was asked to consider in looking at the Obama Health Care proposals: can the Federal Government require that people take out medical insurance. As that judgement made clear, the Constitution (and hence the Supreme Court) cannot determine the morality or the appropriateness of legislation – that really is a matter for lawmakers. What the Supreme Court can do is see whether or not the Constitution permits particular kinds of law – in this case, as they saw it, a form of taxation. This decision made it quite clear that this is a very different requirement than that often called the ‘broccoli’ argument – that the state can make you do things because they are good for you, like eating broccoli! Yes, people can be taxed, and yes, if they fail to pay a tax, they can be fined. In that sense the ‘individual mandate’ is legal, it is within the actions permitted by the Constitution. This was a very interesting, and important, line of clarification, setting out what the state (the nation in this case) can do, and what freedom is left to the individual. It seems I can’t opt out of taxes – even if I might think them immoral! Would Mill have accepted the right of the government to tax individuals?

Finally, I have to ask if opting out is doing something that is rather more serious than has so far been identified – by opting out, is this a way of ignoring my responsibility to others. Can I opt out of caring for others?

Peter Singer has been a forthright advocate of the view that we should recognise we have a responsibility to everyone else. He begins this extract from his book ‘How are we to live?’ by quoting one of the women interviewed by Carol Gilligan in her book ‘In a Different Voice’:

““I have a very strong sense of being responsible to the world, that I can’t just live for my enjoyment, but just the fact of being in the world gives me an obligation to do what I can to make the world a better place to live in, no matter how small a scale that may be on.”

This could have been said by many people I have known, people working for greater overseas aid to poor nations, to allow farm animals the elementary freedom of being able to turn around and stretch their limbs, to free prisoners of conscience, or to bring about the abolition of nuclear weapons. ……..

These people take the broader perspective that is characteristic of an ethical life. They adopt – to use Henry Sidgwick’s memorable phrase – ‘the point of view of the universe’. This is not a phrase to be taken literally, for unless we are pantheists, the universe itself cannot have a point of view at all. …….

People who take on the point of view of the universe may be daunted by the immensity of the task that faces them; but they are not bored, and do not need psychotherapy to make their lives meaningful. There is a tragic irony in the fact that we can find our own fulfillment precisely because there is so much avoidable pain and suffering in the universe, but that is the way the world is. The task will not be completed until we can no longer find children stunted from malnutrition or dying from easily treatable infections; homeless people trying to keep warm with pieces of cardboard; political prisoners held without trial; nuclear weapons poised to destroy entire cities; refugees living for years in squalid camps; farm animals so closely confined that they cannot move around or stretch their limbs; fur-bearing animals held by a leg in a steel-jawed trap; people being killed, beaten or discriminated against because of their race, sex, religion, sexual preference or some irrelevant disability; rivers poisoned by pollution; ancient forests being cut to serve the trivial wants of the affluent; women forced to put up with domestic violence because there is nowhere else for them to go; and so on and on. How we would find meaning in our lives if all avoidable pain and suffering had been eliminated is an interesting topic for philosophical discussion, but the question is, sadly, unlikely to have any practical significance for the foreseeable future.”

Singer’s comments are almost overwhelming, as he is arguing that my freedom to do as I choose should be limited by the fact that I have obligations to everyone – to our common humanity. If there are people who are suffering harm, then I have an obligation to try to help them, even though that harm is not a result of my actions. This resonates with the Christian view that the first responsibility we have is not to ourselves, but to others, and that to serve others is the first step towards salvation. Rather than Mill’s limitation on our freedom being the harm we cause to others, Singer is saying our liberty only exists insofar as we recognise our obligations to others first.

A libertarian would say that we can choose to help others, but that choice is ours to make: it is not a choice that can be made for us – by the government in particular. Singer is arguing that we have no choice in this, that we have an ethical obligation to try to reduce pain, suffering and all the other afflictions that face our fellow human beings. It is a communitarian ethic, expressing a sentiment that has been repeated by thinkers time and time again, in stark contrast to the selfishness of the libertarian ethic. It is taking Mill to task, and saying our liberty will always be constrained as long as there is a world in which the same liberty is not available to everyone.

Is our common humanity important, and should it be a constraint on our freedom of choice? Perhaps we should finish with John Donne. In an elegy written in 1642, he expressed a ‘communitarian’ perspective both elegantly and succinctly:

No man is an island,
Entire of itself.
Each is a piece of the continent,
A part of the main.
If a clod be washed away by the sea,
Europe is the less.
As well as if a promontory were.
As well as if a manor of thine own
Or of thine friend’s were.
Each man’s death diminishes me,
For I am involved in mankind.
Therefore, send not to know
For whom the bell tolls,
It tolls for thee.

Does being a libertarian mean you choose to no longer be involved in mankind? Can you make that choice without denying your membership of the human race?

Note: Richard H Thaler and Cass R Sunstein, 2008, Nudge: Improving decision about health, wealth and happiness, New haven and London: Yale University Press

November 2012

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