Thursday, January 25, 2007

Hair nets, Ear plugs, and libertarian paternalism

From the "this has been kicking around for awhile" file: The Volokh Conspiracy with several links to part of the debate on "libertarian paternalism."

I actually had a thought about the notion of libertarian paternalism in a very different sort of context last week, as I made a pickup at a local dairy plant. The lab where I'm employed picks up samples for quality control everyday at this plant. Before entering certain parts of the plant you are bombarded with warning signs. One reads, "Ear protection required beyond this point." The other reads, "Hair nets required beyond this point." I've walked past the signs numerous times without thinking, but last week, for the first time, it occurred to me how different these requirements are. (And for the purposes of this discussion, let's assume their are laws that require hair nets and ear protection.)

On one hand, you have the ear plug requirement. This is purely a worker safety requirement, to supposedly prevent workers from damaging their hearing while working with loud equipment. Libertarians can question the logic of such a requirement on several levels. First, employers have an interest in not having their workers go deaf. and more importantly, workers themselves are in the best position to decide whether or not they want to use ear protection- they have to deal with the noise level every day. Having some government official telling workers when they have to wear ear protection takes away the right of workers to make this decision for themselves.

The hair net requirement, on the other hand, is not for the protection of the workers- rather it is for the protection of consumers. No one, after all, wants hair in their milk. Libertarians can, and do, argue against such laws, explaining that in the absence of regulation, the market itself will solve these problems. But before looking at the possibility of market solutions, let's look at the difference between hair nets and ear plugs. The key difference is the element of individual choice. An ear plug regulation takes away freedom from those in the best position to decide whether or not they need ear plugs. And more importantly, if any mistakes are made, they costs are borne by the individuals making the decisions. When it comes to regulations designed with the consumer in mind, the public is who would be hurt by contaminated milk, and they have only indirect power to determine the milk company's policies. They are far removed from the decision making process, but bear the brunt of any mistakes in the milk production process.

To go back to the libertarian argument, libertarians will argue that should government health regulations be abolished, private health associations would arise that would set standards and provide the public with information about the health of various products and facilities. Of course, this is merely replacing the system of public regulation with a system of private regulation. Of course, while this may be a worthy goal, this tells us that certain regulations designed to protect consumers are not bad in and of themselves.

In some cases, legal regulations may actually be preferable to purely private requirements. (Of course, you could make the requirements of a private health association legal binding on those looking for association approval, but then you're talking about a system in which legal regulations are essentially passed in a different manner than today.) If you buy contaminated milk, you can make bring a suit for fraud or negligence against the milk producer. Having regulations in place promotes judicial efficiency by specifying what industry standards are, limiting the need for any searching judicial inquiry, and more importantly, having regulations in place keeps the judges from having to make legal decisions about what industry practices should be in the first place. Regulation provides a framework for resolving legal disputes that are bound to arise in any modern society.

This discussion delves a a bit from the law professor discussion, but it's meant to. Any real debate over "libertarian paternalism" is basically the same debate libertarians tend to have over and over and over again. It's a question of how small government can be and how little government can do - the macho debate as to who's the purest libertarian.

Personally, I find such discussions counter-productive. Who cares whether or not there can be such a thing as a "libertarian paternalist." For libertarians to be any sort of effective political force they need to focus on the easy things first and pick away at the bloated government one step at a time. The distinction I've made here is important. No one, libertarians included, thinks a milk company should be able to sell contaminated milk as "fresh milk." Discussions of the legal mechanisms to prevent this are important, but not as important as restoring the power of choice to the American people. Surely, all libertarians can agree on the importance of restoring choice to the American people- and the notion of individual choice is one that can be understand by those who aren't libertarians.

More importantly, getting rid of ear plug type regulations is a simple matter of putting individuals back in control of their own lives. Changing the legal mechanisms which ensure that people aren't poisoned or defrauded is going to be a bit more difficult and it can't just be done over night.

As someone who cares deeply about libertarian principles, I think these distinctions are imperative today. If we were to have a truly libertarian society at some point in the future, there's going to be a lot to fight out later on- public schools and public roads, along with everything I've mentioned above. But we'll never even get to these arguments, if we can't chip away at a system that infringes on our individual right to make choices about our own lives. It's a matter of priorities and a question of whether or not you want being a libertarian to actually mean something.


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