Is There a Presumption in Favor of Liberty?

And on What Thought Experiments Actually Do

Almost all plausible characterizations of liberalism will agree on giving the value of liberty (or freedom) particular importance. On the most extreme versions, only liberty matters. On more moderate accounts, liberty is important enough to generally trump all other considerations, with nonetheless significant limits and exceptions. On even more moderate (and some would say not really liberal) views, liberty is one of the most important values and must be balanced with other very important considerations such as equality or welfare. Of course, this is far from settling what liberalism really is since we can then argue about the kind of freedom we are talking about (positive, negative, or even Republican), how it is justified, and so on. Let’s agree at least however that you’re a tentative liberal if you think that liberty is a very weighty value in the process that determines your reflective equilibrium.

Once we agree that freedom is important, we can ask why this is so. Why would a moral agent think that freedom matters so much that, for instance, it justifies that we do not interfere with people who participate in the practice that we find disgusting (thus trumping values like dignity or purity) or dangerous (thus trumping a value like welfare)? There are obviously many ways to answer this question. One is to proceed along the lines of Stanley Benn, Gerald Gaus, and other public reason liberals in arguing that there is a presumption in favor of liberty according to which, except one has a valid (i.e., shared or intelligible) and decisive reason to interfere with someone else, the default option is to leave others act as they please. More precisely, except Ann can provide a (public) reason that is intelligible to Bob (and eventually to others) to interfere with Bob’s business, the presumption is that Bob is free to do what he wants. This presumption itself does a lot in the justificatory work and so we may ask what is its basis. In his book A Theory of Freedom, Stanley Benn asks us to imagine a case where the presumption in favor of liberty seems to follow naturally:[1]

“Imagine Alan sitting on a public beach, a pebble in each hand, splitting one pebble by striking it with the other. Betty, a casual passerby, asks him what he is doing. She can see, of course, that he is splitting pebbles; what she is asking him to do is to explain it, to redescribe it as an activity with an intelligible point, something he could have a reason for doing. There is nothing untoward about her question, but Alan is not bound to answer it unless he likes. Suppose, however, that Betty had asked Alan to justify what he was doing or to give an excuse for doing it. Unlike explanations, justifications and excuses presume at least prima facie fault, a charge to be rebutted, and what can be wrong with splitting pebbles on a public beach?

…

Suppose Betty were to prevent Alan from splitting pebbles by handcuffing him or removing all the pebbles within reach. Alan could now quite properly demand a justification from Betty, and a tu quoque reply from her that he, on his side, had not offered her a justification for his splitting pebbles, would not meet the case, for Alan’s pebble splitting had done nothing to interfere with Betty’s actions. The burden of the justification falls on the interferer, not on the person interfered with. So while Alan might properly resent Betty’s interference, Betty has no ground of complaint against Alan.”    

To start, note that the situation that the situation described is “a-institutional” in the sense that it is said that Alan has property rights over the pebbles or the beach. So, if Betty is not justified in interfering with Alan, it’s not because of an ex-ante institutional setup. The case described is rather akin to a kind of “state of nature.”[2] The case is described in such a way as to trigger what is presumably a widely shared and deeply rooted intuition: it is prima facie wrong to interfere with someone’s action unless one has a reason for that. In the paragraph immediately below the above quote, Benn describes a similar situation but where this time another character (Desmond) is tearing the legs off crabs. Now, not only one is probably justified to ask this person to give a reason for what he’s doing, but one may also have a reason to stop him from continuing his activity. It might not be clear if this reason is decisive, i.e., whether it trumps the presumption in favor of Desmond’s liberty, but we have a clear case where it is arguable that liberty can be defeated by other considerations.

The bottom line of Benn’s thought experiment is nonetheless that in Alan and Betty’s case, it is very difficult to find any justification for Betty’s interference. That seems to indicate that, indeed, we should presume that individuals are free to do what they want. Or does it? In a very recent article, Jason Brennan and Christopher Freiman dispute the relevance of Benn’s thought experiment, especially in the context of public reason liberalism.[3] To be clear, Brennan and Freiman don’t argue that there is no such presumption (they remain agnostic in the article) but that this specific way to defend it fails. They draw a list of more or less absurd variants of Benn’s scenario and argue that they lead to different conclusions. Here are a few examples:

2. Alf is smashing pebbles on Betty’s beach. She expects visitors to behave in normal ways.  

6. Alf has made the pebbles into a swastika pattern.

8. Alf is smashing a baby instead of pebbles.

18. Alf is smashing himself with pebbles and Betty is worried he is on drugs or having a mental breakdown.  

29. Alf is smashing pebbles on the beach, as he does every day. But he is able-bodied and there is a severe shortage of soldiers needed to defend his country from the Nazi invasion.

Note that all these variants depart from the initial case. Variant 2 takes within an institutional setting where Betty has property rights on the beach. Variant 8 is a dramatic version of Benn’s alternative case of Desmond. Variant 18 introduces standard considerations about self-harm and whether or not they justified paternalistic interferences. Variants 6 and 29 suggest that being at war or using one’s freedom to promote unacceptable ideologies may eventually justify interferences.

What do these counterexamples demonstrate? Not a lot actually, in my view. They show, obviously, that if you change the story by introducing a new consideration (one owns the beach, one is harming a human being), you may defeat the presumption in favor of liberty. Even hardcore libertarians may eventually admit that in some extreme cases, freedom has limits. So, this is not very interesting. Brennan and Freiman acknowledge this but argue that the 35 variants they propose indicate that the presumption is easily defeated. Two answers to this. First, of the 5 variants I’ve displayed above, only number 8 obviously licenses interfering with Alf. Regarding the other four, it is fairly debatable whether interference is justified and which kind of interference (for instance, it would arguably be wrong to hit Alf just because he is on your beach). So, contra Brennan and Freiman, these examples indicate that the presumption in favor of liberty is not so easily defeated.[4]

Brennan and Freiman have a more interesting and stronger argument against the relevance of Benn’s thought experiment. The argument is actually twofold. First, it is not clear that in the thought experiment, it’s the presumption in favor of liberty that does the trick. It may be suspected that another consideration is relevant, for instance, a presumption against harming people or thwarting their “innocuous desires.” Second, it seems fairly easy to construct similar thought experiments where you happen to have a similar presumption in favor of every natural duty or value. Consider for instance Peter Singer’s famous child-drowning thought experiment. It seems to establish a presumption in favor of beneficence. Arguably, we can construct cases supporting a presumption in favor of, say, equality. Suppose that Alan and Betty both need to receive a kidney urgently but that unfortunately, only one is immediately available. But giving the kidney to one, you almost surely condemn the other. Suppose that Alan and Betty are identical in all relevant characteristics (same age, same general health, no children, …). In this case, there is a strong presumption in favor of equality that justifies allocating the kidney by a fair coin toss.[5]

I think this is a valid and strong objection. There is in principle always the possibility to construct a thought experiment that suggests that some particular consideration is especially weighty or decisive. And, I’ve just illustrated, it is even possible to imagine cases indicating that there is a presumption in favor of a given value or duty. That says a lot about the epistemic relevance of thought experiments that are explicitly designed to play the role of – to borrow Daniel Dennett’s famous expression – “intuition pumps.” Benn’s thought experiment, exactly like Singer’s, operates at the level of our intuitions and, in a way, of our emotions. We are easily led to put ourselves in Alan’s shoes and to empathize with him so that we can feel the resentment that he must feel when Betty unjustifiably interferes with his activity. We should not expect these intuition pumps to offer a decisive, and even less logical argument in favor of a conclusion. They are there to stimulate our thinking and to push us to look for something (a set of principles, a consistent theory) that can strengthen the intuitions triggered by the thought experiment. In other words, Benn’s story is a cog in the machinery that leads to a reflective equilibrium. Without it, the machinery may stop working, but the cog by itself is useless.

Hence, I think that Brennan and Freiman’s critique is unfair. They acknowledge that public reason liberals have other, more principled arguments for the presumption in favor of liberty, but they fail to explicitly address the role that thought experiments like Benn’s can play in the overall philosophical argument. They are right that these experiments don’t demonstrate anything, but they are wrong that they should not be used at all. Indeed, Benn’s thought experiment becomes far more convincing once you relocate it within the more general philosophical argument that he and Gerald Gaus in particular have developed to claim that “natural liberty” is the default option in the process of public justification.[6] Benn, Gaus, and others actually argue for the presumption in favor of liberty based on the idea that it results from a proper recognition of a person’s agency capacities. As moral agents, persons have goals, values, and a conception of the good that they must pursue. To be a moral agent is to be animated by such goals and values. Now, any interference thwarts such agency capacities and therefore undermines one’s status as a moral agent. As soon as everybody publicly acknowledges that everybody has this status, to treat one as a moral equal entails justifying any interference with them. This justification requirement following from the public acknowledgment of everyone as moral agents is at the roots of the presumption in favor of liberty but also, at the more practical level, of the jurisdictional rights that delineate persons’ private spheres.[7] The use of thought experiments like Benn’s makes sense only in the broader context of this general theory of public justification. That indicates that Brennan and Freiman are wrong to claim, as they do at the beginning of their article, that public reason liberalism is “the presumption of liberty plus the public justification principle.” Actually, the presumption of liberty follows from a particular account of public justification based on a specific theory of moral agency, and thought experiments are only there to elicit our intuitions in favor of the whole package.

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[1] Stanley I. Benn, A Theory of Freedom (Cambridge ; New York: Cambridge University Press, 1988 [2008]), pp. 87.

[2] Gerald Gaus quotes and uses Benn’s hypothetical scenario many times in his writings, especially in Gerald Gaus, The Order of Public Reason: A Theory of Freedom and Morality in a Diverse and Bounded World, Reprint edition (Cambridge New York, NY: Cambridge University Press, 2012), p. 345

[3] Jason Brennan and Christopher Freiman, “How Not to Argue for the Presumption of Liberty,” Inquiry 0, no. 0 (n.d.): 1–25.

[4] The interested reader may look at the 30 other variants in Brennan and Freiman’s paper. Only in a few of them does interference appear to be strongly justified.

[5] E.g., John Broome, “Fairness,” Proceedings of the Aristotelian Society 91 (1990): 87–101.

[6] Brennan and Freiman address another part of this philosophical argument in the last section of the paper, where they criticize a moral psychology experiment conducted by Gaus and Shaun Nichols, Gerald Gaus and Shaun Nichols, “Moral Learning in the Open Society: The Theory and Practice of Natural Liberty,” Social Philosophy and Policy 34, no. 1 (July 2017): 79–101.

[7] For instance, Eric Mack uses a similar account to defend the claim that persons have a natural right of property. Eric Mack, “The Natural Right of Property,” Social Philosophy and Policy 27, no. 1 (January 2010): 53–78.