Freedom, Government and Rights

Arguments about freedoms, state legitimacy and rights are very common, so knowing
how to make them well and respond to them effectively is important. While last week
dealt with some strategic tips for getting value frameworks accepted without huge
amounts of analysis, this week focuses on some useful standard analysis that can be
used and then applied in differing circumstances.
Contents:
Preamble: Rule Utilitarianism
1. Individual Freedom
a. Why is freedom valuable?
i. Objective Value
ii. Knowledge of value
b. How to question the value of freedom
i. Irresponsibility
ii. Probabilistic Claims
iii. External Effects
c. Conclusion
2. What should the state do?
a. How to argue that a state should not act
b. How to demonstrate the states capability to act
i. Social Contract
ii. Continuing Benefit (or: You Didnt Build That)
iii. Moral Arbitrariness
iv. An important note on the above arguments
3. Should the State Grant Rights?
a. General Justification of Rights
b. Responding to Rights Arguments
c. Rights Discussion
Preamble: Rule Utilitarianism
As we discussed last week, utilitarianism is a moral framework that judges the worthiness
of an action on the basis of whether it advances overall utility.
Rule utilitarianism is similar; it too aims for the maximum amount of utility. It differs in
saying that, sometimes, this is best achieved by following a specific rule rather than
making a case by case assessment. For example, we might generally feel it is wrong to
punish the innocent for crimes they did not commit. However, there may be individual
circumstances where it would be beneficial for example to act as a strong deterrent to
others. An act utilitarian might claim this was acceptable. A rule utilitarian would argue

that a world where the rule the innocent should not be punished would be preferable to
a world where the innocent could be punished. There are several ways to justify this:
- Incapable or Biased Assessor the person making the assessment on a case-bycase basis when deciding what to do may be incapable of making the decision
(perhaps having inadequate or asymmetric information). They may also be
biased, believe that they should be exceptions to a rule, and prefer to advance
their own interests.
- Reliance on the rule the existence of a rule may allow people to predict how a
Government will act, which can help them plan their behaviour and may be
comforting.
- Mutual protection of rights it might be that it would be beneficial for a majority
to deny a minority a certain right. However, if this was possible, a differently
constituted majority may deny a differently constituted minority you are part of a
similar right. By ensuring the rights apply to everyone, the possibility of this
situation is limited and groups are protected.

1. Individual Freedom
Freedom is a word with such overwhelmingly positive connotations that it is rare to see
a justification of it as a value. There are some debates where justifying individual
freedom is vital for one side; for example, THW allow consensual cannibalism, or THW
legalise euthanasia. How then can we justify things such as this, which may seem
counterintuitive, by using arguments about freedom?
a. Why is freedom valuable?
The simplest justification of freedom is that people value things differently. This is simple
to argue; if someone makes a claim about something like consensual cannibalism being
objectively bad, the following two responses are relevant:
i.

Objective Value

First, that value is never objective. Consider your family photographs; they are probably
of significant value to you, but may be of limited value to somebody who doesnt know
you or your family. Or, in the euthanasia debate, if it is argued that the end of a life is
always wrong, you can argue that the only value life can have is subjective; each person
will value their continued life differently.
ii.

Knowledge of Value

Secondly, you can argue that the only person who knows what is valuable to them is that
individual. As you are the only person who experiences your life, only you can tell what
you do and do not value. Similarly, no other individual can calculate risks for you. For
example, if arguing THW Legalise Duelling, you can argue that nobody but you knows
how much you value your health against how much you value a glorious death. As
another individual or Government cant assess these values, you can argue they should
leave this to the individual.
A note on making this argument; its probably a good idea in your speech to justify why a
certain thing might be valuable (or not valuable), and to then tell the judge that because

its possibly valuable to some people and we dont know how valuable, we should allow
individuals to decide. For example, in the debate about duelling, you might want to give
some reasons about why a glorious death might be valuable (the most awesome
argument ever), some reasons why life or health might not be valuable, and then claim
that as its a complicated area, individuals should choose.
If you are trying to link this claim to Governmental action, you can add that it is hard for
the Government to assess peoples values. For example, if they act on the basis of
peoples stated preferences, people have an incentive to overstate their desires, so any
measurement is inherently biased. For example, if the Government decided to choose
whether or not to legalise gay marriage by asking how much people did or didnt want it,
everyone asked has a huge incentive to say that its the most important issue in the
world to them. Furthermore, revealed preferences (where you determine value by seeing
how much people tend to spend on it now) is only descriptive and doesnt tell you how
those values may change over time or possibly even be influenced by the policy.
b. How to question the value of freedom?
While freedom is generally seen as a good, we can see from the motions suggested
above and the bans on things like drugs that we do limit it frequently. Why is this?
i.

Irresponsibility

If a team argues that people should be absolutely free, you can respond by arguing that
it is possible that an individual may not be best placed to make decisions about
themselves, and that we should allow the state to take over. This can be justified on the
basis that a person is not fully aware of all the risks or consequences of the action
discussed. When arguing this, you should explain a) what the risks or consequences are,
and why this is a problem (i.e. why the risks and consequences matter), b) explain why
individuals are not fully aware of these, and c) explain why a Government is a better
actor (perhaps probabilistically, using the claim discussed at ii. below) than the
individual.
A good example that shows that freedom cannot be an absolute is children; no team will
agree that a child should be free to take drugs. So you can show that in principle we can
limit freedom where the risks and consequences of an action are better understood by
Governments; now we just need to show that this is true in the motion being discussed.
ii.

Probabilistic Claims

We can reinforce the above argument by observing that even if there are some
individuals who can make a decision adequately with full understanding of the
consequences, laws have to operate on a probabilistic basis. For instance, in some cases,
theft may be justifiable perhaps taking a pen from a bank to save the time and effort it
takes in acquiring one at minimal cost to the bank. It is still obviously preferable to have
laws against theft.
This can be applied to individual liberty. So, with drugs, it may be that some people take
drugs fully understanding the consequences and risks of their actions. However, others
may not - so the restriction can be justified on the basis that it protects the majority. As
the majority may not have thought about it or do not know the risks (because of
imperfect information), we cannot say they have meaningfully consented to the harms of
drug taking.

Note that this is an applied form of rule utilitarianism; we say that drug takers are
generally poor assessors of whether or not drug taking is good. They often lack
information about the harms of drug taking. Furthermore, they are often biased, believing
that they are better capable of controlling themselves on drugs and better capable of
avoiding addiction. So it is preferable to have a rule banning drug taking.
iii.

External Effects

Lastly, we can argue that freedom of the individual should be limited for the good of
society. The choice may benefit an individual, but that choice may cause harms to others
(sometimes known as externalities) who do not consent to the harm, and are not
compensated for it. So, in the example of drugs, the drug taking of an individual may
make the area unsafe (either by making the drug-taker unsafe to others, or by attracting
criminals to the area). We can see this principle in play in large numbers of Government
policies, from laws against violent crime to limits on pollution.
c. Conclusion
As we can see from the above, arguments for absolute liberty can be easily defeated.
However, arguments that freedom is valuable can be effective in their qualified form;
that, in certain circumstances, individuals have a better understanding of their
preferences from a Government and so allowing individuals to express their preference
may maximise overall utility.

2. What Should the State Do?

The question of when a state can take away the liberties of its citizens is often important
in debates. Additionally, judges frequently have strong intuitions that certain liberties are
important; in such cases, the analysis below needs to be robust to overcome those
intuitions.
a. How to argue that a state should not act
Note that the approaches in this section should only be argued where the consequences
of the policy in individual situations appear to be good. If that is not the case, it is best to
argue against state action by saying that it will make people poorer / less happy etc.
However, if making an argument that even though a policy might increase utility in some
situations, it should still not be followed, the arguments below can be used.
Firstly, the argument made at the start of this worksheet about freedom is often a useful
starting point. State action will inevitably leave individuals with a narrower range of
choices, and therefore potentially limit their ability to make the choice that best
advances their interests. This is a useful framing device to show that when states cant
guarantee they have a proper understanding its populaces values, it may limit their
ability to make optimal choices.
Secondly, a claim can be made that some limits on freedom, such as taxation, might
amount to something equivalent to theft. You can argue this by saying that labour is the
essence of a persons efforts, and as it is an aspect of themselves, to take this away from
them amounts to taking a part of another person; it is occasionally compared glibly to
slavery. This is a weak argument for the reasons set out below; I do not encourage you to
make it and it is only here for reference.

Thirdly, teams sometimes claim that to do anything that uses some aspect of an
individual or their happiness amounts to instrumentalisation (i.e. use) of them, and that
is illegitimate. For example, a mandatory organ donation policy might be said to
instrumentalise an individual, as it treats them as a means to an end rather than an end
in itself. You can argue that this is a problem as it denies that person from being
considered as important in some way.
This argument too is subject to the criticisms below. Additionally, it can be observed that
often the alternative in the debate instrumentalises another group to the extent that it
fails to maximise their interests.
Finally, the most nuanced argument arguing that state action is illegitimate. This
argument considers the word illegitimate to mean a policy the state should never
consider or use, or another common formulation, not part of the toolbox of
Government. It is therefore a rule utilitarian argument that argues the world would be a
better place if a rule was adopted whereby the Government never used the policy.
The argument can be made using the criticisms discussed in the preamble; arguing that
the assessor lacks information, is biased, or that being able to rely on the rule would be
helpful. So, for example:
-

In a debate about restricting Freedom of Speech, you can argue that it is

illegitimate to restrict Freedom of Speech should because the Government
usually cannot tell if the idea is a good or a bad one (especially before it hears
it) and it may be biased against ideas it strongly disagrees with. Furthermore,
the citizenry may rely on the idea of absolute free speech; it may foster an
open attitude to ideas and politics, and provide security to know that their
ideas will not be silenced.

In a debate about sanctions, you might argue that sanctions are illegitimate
because a Government can almost never tell if they are to be effective, the
need for some sort of action may bias Governments in favour of acting, and a
policy of never using them fosters a friendlier international community. Youd
probably still lose, though.

b. How to demonstrate the states capability to act

If any of the above arguments are or might be run strongly, it is worth justifying, at least
briefly, the legitimacy of a Government policy. This can be done in the following ways.
i.

Social Contract

Warning: Social contract arguments used to be quite fashionable but are now very
unpopular. I hate them, and find them incredibly unsatisfying. However, it you analyse it
a bit, teams can get bogged down trying to respond to it.
The starting point for this argument is to consider a state of nature (i.e. a world without a
government) where there is a war of all against all, and life is nasty, brutish and short.
We have therefore contracted with a sovereign power (a Government) to remove us from
the state of nature, and so we submit to its rules to benefit from the improvements in our
lives. Therefore, the impositions are voluntary and legitimate.
The problem with this is apparent; the extent to which this can be described as consent is
limited. If the state of nature is so bad, then we dont really have a choice. And
realistically, we never agreed to live in our country, we were just born here.

Furthermore, its unclear that we can meaningfully opt-out of Government. Nowhere in

the world has absolutely no laws, and so we have no realistic alternative.
Lastly, remember that the comparative in a debate is never state of nature versus
government its the distinction between two slightly different forms of government.
ii.

Continuing Benefit (or: You didnt build that)

This argument, however, is very powerful.

You can start by observing that rights dont exist outside the state; the state is necessary
to facilitate rights such as freedom of speech, and other liberty-maximising institutions.
Furthermore, the state has a significant role in the success of individuals; they build the
roads that get goods to factories and employees to work, they educate the workforce
with public education, and they uphold private contracts using the force of law. They
protect the populace from foreign invasion with an army, and prevent theft and other
crime with a police force. More broadly, they create other rights-giving and enterpriseadvancing institutions; they protect property, print money and uphold a system where
both are considered valuable and you can rely on money being accepted in exchange for
goods and services instead of bartering. Lastly, they uphold a constitution that gives the
citizenship some rights.
So, you can show that something like tax is not theft; property rights are defined and
upheld by the state. All taxation does is changes what it means to hold property. Property
is an institution made up by the state to advance the interests of society. If you have a
way of changing the institution (such as redistributive taxation, flat taxation etc.) that
advances the interests of society further, it is a legitimate and desirable change.
You can try to take this argument one step further. You can argue that where a state
creates an institution that fosters something bad such as the institution of property
advancing inequality the state is acting immorally, in that it prefers the interests of
some to the interests of others. Therefore, the most moral action is to make the
institution benefit everyone (using whatever practical steps are necessary to do so).
iii.

Moral Arbitrariness

This argument can stand on its own, but may also work as a piece of the previous
argument.
It can be argued that individuals have no moral claim to their talents; that is, all their
talents and abilities are a product either of their genes or their social circumstances. That
is even true of an invidivuals desire to work hard. But because a person cannot claim to
have earnt these talents, they cannot claim to deserve them. Therefore they cannot
claim that you deserve a system that rewards you on the basis of those talents either.
It may also be helpful to observe that whether or not a skill is considered valuable is
determined by both the state and social experience; theres nothing inherently valuable
about being very good at hitting a cork ball with a willow bat, that skills value is socially
defined. And yet, it is a skill that is highly rewarded (in some places).
This argument allows you to get past the idea of individual liberty and argue for some
highly redistributive policies that may conflict with individual liberty.
iv.

An important note on the above arguments

While the above arguments give you framework to argue that a policy may be beneficial,
they dont demonstrate that a policy is in fact beneficial. So, while it may be true that
the able cant claim to deserve a system that benefits them, it may be that a system that
benefits the most able is the best system for all members of society. It may even be the
case that we should act as though talents arent morally arbitrary so as to incentivise the
able to deploy their skills.
Also note that when we describe a skills value as being socially defined, we are
essentially just saying people like it. The value of Beethovens 9 th Symphony is socially
defined; that doesnt mean we shouldnt incentivise people like Beethoven (i.e. nobody)
to write brilliant Symphonies.
Note though that all these framework arguments do is place you in a position to argue
about their practical consequences. I suggest that you learn how to make the framework
arguments well, and then ensure your arguments about practical consequences are
detailed and well argued. For example, while the argument at iii. above allows you to
claim that favouring equality is legitimate, it doesnt explain why equality is a good thing
for all society. Thats something you need to establish separately.

3. Should the state grant rights?

Why is it that the state generally allows people to say what they think? Could it not just
judge each statement case-by-case, and then allow some but not others?
a. General Justification of Rights
Hopefully the preamble and the discussion above has given you some ideas for this.
Rights are generally valuable because they ensure that Governmental power is not
abused in situations of limited knowledge or bias, they provide security and allow people
to rely on them, and they reassure people in a state that their rights would be mutually
protected when they are a minority.
So, note that a justification of rights does not only need to explain why the thing being
protected is valuable, but instead why it cannot be advanced by a case-by-case
assessment by a Government.
b. Responding to Rights Arguments
As the above implies, to respond to a rights argument you can either argue that the thing
being protected is actually harmful, or, you can claim that the thing is best advanced on
a discretionary or case-by-case basis. This will differ by circumstance.
c. Rights Discussion
Right to Vote

Bodily Autonomy

Free Association

Freedom of Speech

Right to Privacy

Free Religion

Parental Rights

Property Rights

Right against Torture