Libertarian Law: The “Even If” Principle
by DataPacRat


Attribute to L. Neil Smith’s The Libertarian Enterprise

“The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.”
—H. L. Mencken

One of the trickier lessons of liberty is that it’s opponents aren’t always complete idiots.

If an authoritarian tries to pass a law increasing their authority at the expense of civil liberties, it would be so much easier to oppose if such a naked power-grab was the only justification for it. Unfortunately, any such law that has a chance of being passed, and thus needs to be fought against, will also come along with some appealing justification for it, such as promoting decency, providing security for the homeland, or the perennial favorite, protecting the children. Most often, those who support the law really do believe that they’re trying to do good.

There is one single reason to oppose such laws – but it’s a form of reasoning that has often fallen by the wayside, especially when ‘news’ agencies try to drum up sales by turning every issue into a battle between two equal sides. And that is that even if the reasons given are good goals, and even if the law will accomplish those goals, then the harms done to the basic civil liberties that allow society to function mean that those laws should be opposed by whatever means are available.

Libertarians do apply this principle regularly in some cases, particularly when fighting restrictions on the right to self-defense and its corollary, the right to bear arms. Even if keeping kids from shooting themselves is a good goal, and even if limiting citizens’ access to guns would accomplish that, it’s so important that the citizens be able to check government power by having the option to overthrow it if all lesser remedies fail, and such laws inevitably result in such harm being done to that citizen power, that they should be opposed on principle.

However, it appears to be much rarer for the same reasoning to be applied to other fundamental rights. For example, another vital aspect to civil society is for people to be able to say what they think is true, and why, and discuss the merits thereof – including when they think the truth is that their rights are being trampled on by a corporate or government agent. Laws that were passed with the justification of enforcing copyright are now being used to censor such opinions outright, without even the fig-leaf of being applied to copyright violations. Thus, in order to ensure freedom of thought and freedom of speech, such laws need to be opposed, even if enforcing copyright is a good idea and even if such laws accomplish that task.

(On a less firmly-established note, I seem to be developing the notion that the right to life is the primary right from which all other rights derive, and all other rights are subsidiary to it; and that it’s at least arguable that those societies which ensure that all members have equal access to the necessities of life, regardless of economic status, are closer to libertopia than they are attributed in common libertarian opinion. If this line of reasoning holds up, then ensuring that every person enjoys the right to life to the fullest can be sufficient justification to support such a system, even if there are good arguments against it.)

I’m always open to any errors I make being corrected; but until I do figure out where I’m wrong, I have to proceed on the assumption that I’m at least generally right. This makes for a certain mental discomfort, when I find that I’ve worked out an idea that’s contrary to the position of someone whose opinion I highly respect, such as El Neil. I know that the view on copyright here is not the view that he takes – but having seen some of the more egregious examples of valid opinions and important truths being suppressed with the tools developed to support copyright, I find that I simply can’t offer my support for the idea of allowing a government to have the power to create those tools, even if copyright itself is a good idea. I respect the truth, and so I intend to support authors’ moral rights. I respect other people, and so if I make an agreement with them where they assume certain things about copyright, I will try to abide by both spirit and letter of such agreements. And I have enough of a sense of self-preservation to avoid getting myself thrown in jail for flagrantly violating copyright laws (unless I’m engaging in civil disobedience where that’s the whole idea). But until any errors in my reasoning are corrected, I now find myself fully opposed to copyright laws.

Thank you for your time,

Cory Doctorow’s recent speech, “The coming war on general computation”

EFF’s article “2001 in Review”

Webcomic “Get Your Censor On”

From the Stanford Law Review Online, “Don’t Break the Internet”

The use of copyright tools to censor the Megaupload song, and then censor a news report about the initial censoring, as reported at biongbiong among other places

The article “Copyright Regime vs Civil Liberties”

An article on a blog being censored for over a year with no due process at techdirt.com

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