TCS Daily

Do Straw Noses Break?

By Micha Ghertner - May 4, 2004 12:00 AM

One reason bullies and domestic abusers pick on smaller, weaker victims is because these victims can't fight back. Likewise, those who construct and attack straw men during an intellectual battle of the wits do so because straw men can't fight back. As bastardized doppelgangers of the real thing, straw men don't even exist.

Douglas Kern constructs such a straw man in his recent TCS article, The Libertarianism of Broken Noses, about abusive domestic relationships and the failure of libertarianism to properly address them. Kern accuses libertarians of ignoring the importance of culture as a bulwark against domestic abuse and implores us to "prefer churches, benevolent societies, and all of Burke's 'little platoons' over naked individualism." Of course, Kern doesn't actually name any specific libertarians who would disagree with this sentiment. Instead, his target is the abstract, unnamed, and easily-demolished libertarian made of straw.

Kern tells an appalling story about a woman whose fiancée beat her on the night before their wedding. The justice of the peace not only agreed to marry the couple, despite the very visible signs of physical abuse, but had the gall to laugh at the woman and exclaim, "Lord, he thumped you good last night!"

Does Kern think libertarians approve of the behavior of this judge? I certainly don't, and although I speak only for myself, I doubt many other libertarians do either. Even apart from the misogynistic views expressed by the judge, any first year law student surely knows that contracts -- including marriage contracts -- are invalid if signed under duress.

But suppose the woman truly wanted to marry this abusive man, and made clear that the decision was hers and hers alone. Then would it be okay for the judge to interfere with her decision -- to supplant her choice with his own? If so, why stop at physical abuse? What if the judge, in his supreme wisdom, believes that the woman is making a big mistake on grounds other than abuse? Perhaps she is marrying for the wrong reasons, for financial stability or social status and not for love? Perhaps, based on the judge's prior experience with similar cases, he knows that the marriage will end in failure in less than a year or so, like so many marriages do.

Surely, libertarianism must be rejected as woefully inadequate if it "presumes that rational people will make wise choices," as Kern claims it does. People are far from universally rational, let alone universally wise. Only a fool would claim that people don't make mistakes, especially when it comes to questions of love and marriage. Yet again, Kern's constructed straw man makes for an easy one-two knockout.

Yet if we can't trust people to make decisions affecting their own lives, how can we trust government officials to make these same decisions for them? Are judges, politicians, and bureaucrats cut from a different cloth than the rest of us? If the judge from Kern's story is any indication, judges can be just as abusive and just as misogynistic as anyone else. What do we accomplish by transferring the ability to make important life decisions from flawed individuals to flawed figures of authority?

Far from accomplishing anything desirable, paternalism of this sort can be tremendously destructive. Economists have long recognized why, on grounds of efficiency alone, economic decisions should be made by individuals rather than a centralized authority. Individuals have "knowledge of their particular circumstances of time and place," wrote Friedrich Hayek in his seminal article, The Use of Knowledge in Society. "[T]he ultimate decisions must be left to the people who are familiar with these circumstances, who know directly of the relevant changes and of the resources immediately available to meet them." It would be impractical if not impossible to communicate all of this local, decentralized knowledge held by millions of people to a central authority and expect this authority to make better use of this knowledge than the people themselves.

Just as economists recognized how paternalism can lead to unintended and undesirable consequences, so too, lawyers, therapists, and social workers are beginning to recognize some of the unintended consequences of mandatory arrest and prosecution in domestic violence cases. As Linda G. Mills, a professor of law and social work at New York University, argues in her recent book, Insult to Injury: Rethinking our Responses to Intimate Abuse, these policies disempower women by depriving them of any say in the handling of their cases, further degrading them as weak, ineffectual pawns in the maintenance of their own lives. Even more disturbing, policies of mandatory arrest and prosecution can discourage women from coming forward. Mills estimates that "as many as half of women in abusive relationships stay in them for strong cultural, economic, religious, or emotional reasons." Women are less likely to come forward and get help for their abuse if they know that doing so will lead to the arrest and prosecution of someone they still care deeply about. Instead of helping people who presumably can't help themselves, paternalistic laws aimed at domestic abuse can add insult to injury by hurting the very people they were intended to help.

In order to preserve a culture of liberty, Kern argues, we must be willing to protect people from themselves. An odd statement about liberty, when we consider that Kern's "enlightened paternalism" has been used to justify everything from the War on Drugs ("I know what you should put into your body better than you do") to Social Security ("I know how much you should save for your retirement better than you do") to the repeal of Bush's tax cuts ("I know how to spend your money better than you do"). Indeed, it is difficult to think of a government program that isn't ultimately justified by an enlightened sense of paternalism. If this is what is necessary to preserve a culture of liberty, the mind reels at what would be necessary to preserve a culture of tyranny.

Micha Ghertner is a student at the Georgia Institute of Technology, studying economics and philosophy. He is a regular contributor to His recently wrote for TCS about The Purpose of Pain.


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