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Good laws create freedom, not a nanny state

14 October 2015

Good legislation creates greater freedom, rather than impeding it, argue Paul Griffiths and Roger Magnusson.

Plastic man being squashed in vice

​Australia is facing a push from Libertarian politicians and market fundamentalists to roll back health legislation. But reducing the power of democratic governments to legislate for health is no way to increase freedom.

Senator David Leyonhjelm​ has organised a Senate inquiry into the "nanny state". The terms of reference of the inquiry relate mostly to public health, including sale and use of tobacco, nicotine, e-cigarettes, marijuana and alcohol, and bicycle helmet laws.

The senator is a Libertarian, a political philosophy that sees government as an external force that intrudes into our lives. Libertarians believe the less we are subject to the law, the greater our liberty. But this is a mistake. The citizens of a democracy are not free because there are fewer laws than in a dictatorship. If the next supreme leader of North Korea decided to have very few laws, and allowed his people to smoke, drink, take drugs and ride without bicycle helmets, those people would still be slaves. 

Citizens in a democracy are free because it is they, and not a dictator, who make the laws they have to obey. Good laws create greater freedom. For example, if the Australian government acts decisively to reduce domestic violence, this intrusion into the private lives of Australian families will free a huge number of people from "domestic tyranny", a phrase invented by the Libertarians' favourite philosopher, John Stuart Mill.

Libertarians accept government intervention to reduce domestic violence because of Mill's "harm principle" – the law can restrict choices that harm other people. But when our choices only harm ourselves, Libertarians believe the law has no place interfering. Like modern Libertarians, Mill opposed drug prohibition. He fiercely criticised both early attempts to restrict the sale of alcohol in Britain and early Chinese efforts to control the trade in opium. While laws designed to restrict working-class access to alcohol only grew stronger, Chinese citizens' right to buy opium was enforced by the Royal Navy in the Opium Wars, much to the benefit of British trade. Mill's arguments for individual freedom served in practice to defend the abuse of freedom by the powerful.

Leyonhjelm's inquiry could potentially have the same effect. Front-of-pack nutrition labels and warnings about drinking while pregnant are seen as overreaching intrusions by the nanny state; their fatal flaw, apparently, is that they provide consumers with truthful information. In practice, it is not the freedom of the individual, but the commercial interests of big retailers that Libertarians succeed in defending.

Modern libertarians are proud defenders of the rights of advertisers, and Australia's plain-packaging legislation for tobacco has been widely condemned as an exercise in nanny-statism. But Mill thought that one of the few cases in which freedom of speech might legitimately be restricted was advertising harmful drugs. While he was sure that educated and informed citizens could make better choices for themselves than any government could make for them, he recognised that those who make a living supplying drugs will use any means to blind people to their harms. The state might need to intervene to ensure citizens are not primarily getting their information about drugs from those who sell them. He took the same view of advertising by gambling firms and pimps. Clearly, we still have something to learn from Mill.

While it is possible for democratic governments to overstep the mark and unduly restrict individual choice, Australia's health legislation is a poor candidate for Libertarian criticism. Accurate information about the risks and harms posed by consumer products increases freedom by helping people understand their options. Yet all Libertarians can see is a patronising elite insisting they know best and demanding everyone conform to their middle-class lifestyle. 

When our elected representatives pass laws to restrict the activities of British American Tobacco, they are not legislating away our freedom – any more than the people of China would have lost their freedom if they had successfully resisted British opium.

Professor Paul Griffiths is a professor of philosophy in the University of Sydney's Charles Perkins Centre. Roger Magnusson is a professor of health law and governance at Sydney Law School.