Criticism of Jasay's Argument for the Presumption of Liberty

[Solid_Choke]

I recently stumbled across a reconstruction of Jasay’s argument for the Presumption of Liberty by Gerard Radnitzky. I would appreciate any criticism of the following argument:

An individual has a basket of feasible acts, his option space. This set can be divided into two subsets: the set of acts admissible in society S (at time t) and the set of acts inadmissible in S. Let us assume that x claims that act A is admissible, i.e., that there are no objections to his performing A, and that x’s claim is opposed by an individual y. Where is it rational (for the law makers) to place the burden of proof—on the potential actor or on the objector? (Problem P). The possible objections consist of laws and conventions in good working order. (Concrete cases have of course to be subsumed under the type cases described in the laws or implied in the conventions.) There are two clear-cut cases: (i) The list of objections considered relevant in S is explicit, hence finite; and (ii) The list is “undenumerably” large, (denumerably infinite), open, a fuzzy set. Type (ii) cases are probably the only ones which matter in real-life situations. With respect to the list of objections (e.g., harming others) even in the context of law the expression ‘harm’ allows interpretation, likewise ‘breach of contract’. Cases have to be subsumed under specific laws, most laws turn out to be twistable to some extent, and in addition to laws the list of inadmissible actions in practice includes conventions, customs, etc., the breach of which leads to informal sanctions like, e.g., ostracism.
In cases of type (i) the problem P (where to place the burden of proof) is a matter of efficiency in practice cost-benefit assays, higher/lower transaction cots to achieve a given purpose. The longer the list, the more costly it is for the actor to prove his case, i.e., to falsify the objector’s, claim. By contrast, unless he is acting frivolously, the potential objector has in mind a particular item on the list of objections. Hence for him the costs of verifying his claim are negligible.

In cases of type (ii) problem P is a matter of logic and the asymmetry between verifiability and falsifiability is decisive. (Verifiability and falsifiability are logical relations between sets of sentences.) The objector’s claim is verifiable, whereas it is not falsifiable, i.e., it is logically impossible to falsify the objector’s claim. Hence it would be unreasonable (to say the least) to place the burden of proof on the actor. Moreover, placing the burden of proof on the actor has a built-in invitation to object to proposed courses of action because objections cost little. The result are that “extravagant claims of harms and rights by third parties get leverage and bargaining power” (162), the litigating society.

In the type (i) case we assume that the denumerably finite list is consistent. Unless an inconsistency has been deduced we are entitled to do so—this is good enough for mundane purposes. With respect to type (ii) it should be remembered that laws are twistable. Hence the consistency of the system may be doubted. When a glaring inconsistency has been shown, attempts are made to improve the system.

In summary, Jasay’s argument in favor of liberty (property, and innocence) is incontrovertible. It does not have recourse to any (genuine) value judgment, i.e., to a sentence that is subjective and hence cannot have a truth value. It is a matter of logic. Does an argument in favor of liberty presuppose a preference for liberty? No. Constructing an argument is an exercise in logic. That it comments and recommends liberty is merely its illocutionary force.

Is this argument valid? Are any of the premises false or highly uncertain?

[scineram]

The whole argument makes little sense to me.

[Solid_Choke]

The whole argument makes little sense to me.

Which parts needs clarification (or elaboration)? I realise that some of the above may be difficult to follow without any training in logic or epistemology, but I was hoping more people would atleast attempt a critique of it.

[Solid_Choke]

Damn…not even an attempt at criticism or a request for an explanation?

[scineram]

What does exactly admissible action mean? And how are objections divided in two? What makes an objection explicit, and what makes one fuzzy?

[Solid_Choke]

What does exactly admissible action mean?

Imagine a set of feasible acts. A feasible act is one that is within your ability to perform. Jumping up and down is a feasible act, and so is punching someone in the face. An example of an act that isn’t feasible would be flying around the room by flapping your arms or travelling faster than the speed on light by sprinting. There is subset of feasible acts that violate conventions against torts like murdering someone or stealing their property. Conventions are rules that spontaneously emerge from the interaction of persons and become Nash equilibria. All of the actions remaining in the set of feasible acts after you remove all of the acts that violate conventions are called liberties. Liberties are admissible, because they do not violate conventions. All other acts are not admissible.

I GTG, I’ll answer the second question if I can get back on later tonight.

[JohnnyFive]

For me the timing of this topic is perfect as I have been mulling this over for practically every waking second in the last few weeks. I must admit that I have not been fully able to come to a clear picture, but I’ll jump in with some thoughts anyway.

For me it has been helpful to draw the analogy with innocence/guilt. It is a legal norm to have to prove guilt rather than innocence because you might say that innocence is a background condition. You are innocent until you have committed an unlawful act, by definition. If you apply that to liberty, you might say that you are free to commit a feasible act by definition, unless coerced.

If a crime has been committed and a policeman investigates, when he knocks on the neighbour’s door he does not demand that they prove themselves innocent, because to do so may be impossible if for example they were on their own in their house at the time. The burden of proof is on the police officer to prove the neighbour’s guilt.

In the same way, if a man is jumping up and down on the spot, and a passing woman says to him “I command that you stop jumping up and down”. The man who is jumping up and down should rightly expect that the burden of proof is on the woman to justify why he should desist. There are a potentially infinite number of ways in which the man could prove his liberty, therefore if he begins listing them, say for example he says “well how about natural rights?” the woman may be able to falsify that doctrine, and perhaps he brings up argumentation ethics, and again she can falsify it. No matter what the man brings up, the woman can falsify it. But no matter how many arguments the man brings up, the falsifications can NEVER prove that she is justified in her coercion, because the n+1 argument may be valid, ie the argument that the man did not bring up. However if you place the burden of proof the other way round, and ask the woman to prove that her coercion is justified, it only requires her to state a single logically correct argument for her to justify her coercion.

[EdmundCarlyle]

de Jasay’s argument makes perfect sense to me - it is irrational to ask a person to prove a Universal negative; i.e. that there is no reason they should not be interfered with.

I believe there is some substance to one critique of this leading to anything clearly libertarian, which comes from Jan Narveson. As Narveson observes in his essay “Anthony de Jasay on Liberties and Rights” in Ordered Anarchy: Jasay and His Surroundings,

In turn, the mark of obligation or duty is cost—but cost that is imposed on the bearer of the obligation, rather than voluntarily accepted by him. In doing what is a duty, we refrain from doing what might be advantageous or otherwise attractive; the cost of duty is essentially opportunity cost. It is wrong to say that if a duty is purely negative, that is, if it is simply a duty to avoid doing something rather than a duty to do something, then it has no cost. What is true is that it is usually very easy to comply with such duties, because you can comply with them without doing anything at all. Since doing something does take trouble and time, this makes it appear that there is no cost. But as we have seen, that is not relevantly true. Inevitably, there is an opportunity cost in suppressing the impulse to invade and destroy. It’s just that it’s a cost worth paying, socially speaking. And for this reason, we talk quite correctly of a right to liberty, which is a genuine right, as much as any that we incur by making specific agreements with others. More, really—for it underlies all the others. There can’t be any thought of making the kind of ordinary transactions with each other, commercial and otherwise, that we so routinely do if we cannot meanwhile rely on not being knifed in the back, carried off in a sack, pushed into a ditch, or any other major alteration of our courses of action.

The duty to refrain from imposing costs on others is, by definition, the flip side of this right. Jasay tends to talk as though the duty to avoid these evil activities is self-subsistent. I disagree. The duty is founded on the right, not vice versa. Why should we agree with me on this matter instead of him (if, as I doubt, he really thinks that)? Why think that the right is in some sense the foundation of the duty, rather than vice versa?

de Jasay’s argument is sufficient to make a case for presumption of innocence - and liberties - for arbitration (real arbitration, obviously fiat is not subject to critique except instrumental). On the other hand, I think some contractarian case is necessary to flush out these as positive rights - which can be imagined as pertaining to insurance contracts, community contracts, etc.