Liberty Commentary

A legal presumption of competence

by Wendy McElroy, iFem

A core principle of the Nanny State is that people do not know their best interests and must be treated like children with the State acting as guardian. Indeed, that’s where the word “nanny” comes from. The Nanny State proceeds from the presumption that you are incompetent to administer your own life. Even fully-functioning adults are deemed unable or unwilling to make wise decisions and, so, the state rushes in to fill the void with extensive regulation of every individual’s personal health and safety.

How much transfat or salt can be in your fast food burger? You are too obese, too nutritionally ignorant, too addicted to McDonalds to be trusted. Should you smoke, drink, or chow down on sweets? Of course not! But if you do, then, like a good parent, the State will force you to bear the cost of irresponsibility by uber-taxing your minor vices and imprisoning you for the major ones.

The “wise parent” list scrolls on and on: wear a helmet while bicycling, don’t use saccharine, no public nudity, don’t loiter in parks, monitor your words to coworkers, don’t download porn, take a urine test at work, don’t drive too fast, take only approved drugs and only in the prescribed fashion, strap on your safety belt, pay a tax for the error of fast food, no smoking in public places, register your handgun, don’t use incandescent bulbs, recycle, homogenize all milk, buy health insurance. . . . And, recently, Maine was pushing to eliminate sex-specific bathrooms because separate “men’s” and women’s” rooms discriminate against your gender rights. Yes, where you take a piss is now a matter of state to be debated by legislatures, and all because they want to protect you. Happily, Maine has backed away from politicizing toilets.

Since adolescence I’ve known the state is not there to protect me or be my wise guide; I have to protect and guide myself. And, in that process, my mistakes are more valuable than the ‘wisdom’ doled out by bureaucrats or civil servants; my mistakes are what I learn from.

I did not gain this knowledge through reading or a high school debate society. I ran away from home when I was 16-years-old and lived on the streets for as short a period as I could manage, sleeping in an unlocked church at night to keep from freezing. I was always cold, I was always afraid, but I was lucky. In short, at 16 I was prime protection material; I was the sort of social problem about whom Sunday newspapers run human interest stories that touch the heart and and with by declaring “there oughta be a law!”

The opposite of “there oughta be a law” was true. I called myself lucky because I was 16-years-old and, so, I was legally able to work; I was lucky because the law did not ‘protect’ me. I had a legal presumption of competence that gave me the option of taking a minimum wage job in a safe, warm place where I could earn enough to rent a room in a safe, warm boarding house.

But what if I had been 15-years-old and unable to legally work? What options would I have had then? I could have begged on the street or worked illegally and, so, been entirely marginalized; I could have stolen or sold my body for sex, and ended up in jail. All of these options would have placed me in conflict with the police and placed me outside of ‘respectable’ society into which I may have never integrated again. The child labor laws meant to protect me could have destroyed my life.

Inevitably, Nanny Staters will respond, “The government would have protected you if you had let it. There were social safety nets, like foster care, just waiting to help a 15-year-old.” In short, they claim the Nanny State works just fine; I was the problem. The ‘waywardly independent’ are blamed for their own misfortunes.

Those who make this claim vastly overrate both the availability and the quality of public assistance. Note: I am not arguing for more tax-funded aid nor for more caring civil servants. Trillions of dollars and millions of bureaucrats have done nothing to stem the rise of homelessness and the other social problems they allegedly solve. Instead, those social problem have turned into lucrative industries that have little to no connection to helping people, rather like public schools that produce illiterate and innumerate children. Moreover, industries like child protective services constitute the main barrier to private charities that do a much more efficient and humane job.

A bit of reality needs to be injected into questions like “why do runaways and other homeless so often prefer to sleep on the street rather than be ‘sheltered’ by government?” I can only speak for myself but I think my reaction was a common one, or a common mixture. The only voluntary encounter I had with the subspecies of humanity known as “social worker” guaranteed that I would never willingly “turn myself into the authorities.” Literally, I had to stand my ground in order to get a bed in which to sleep because I might have frozen outside; the clerk had to choose between housing me for one night or calling the police. When I did go to the second floor of the facility, I found dozens of empty beds. She clearly would have preferred me to freeze rather than fill out forms; only because the police call would have also required forms was I allowed to stay.

And, yet, people remain baffled by those in need who refuse government assistance. Part of the reason is that those people have never had to deal with Nanny State bureaucrats from a position of utter vulnerability. Civil servants process human beings as though they were slabs of meat; their goal is to reduce the meat to a number on paperwork that can be filed away. There is no more humanity in the various “welfare industries” than there is efficiency in postal workers, kindness at the DMV, or concern for dignity at airport screenings.

Add to this scenario another factor. Kids on the street are often there because every authority figure in their lives has betrayed them. Runaways know that being dependent means being utterly vulnerable. When social workers tell them that being thrown into the system is for their own good, it only adds the insult of being considered “stupid” while they are being set up for institutionalized abuse. People on the street are not stupid about ‘the system’. They rub shoulders with the system every day; they know its daily realities far better than well-meaning people who pass a law and never give the homeless another thought other than how to avoid the scruffy fellow sitting on the curb.

And, yet, it is important to remember that Nanny Staters who support child labor laws usually have good intentions. They want to prevent exploitation so that kids have happy childhoods, good schooling, and fall asleep safely in their own beds. But those weren’t the choices I confronted. And, had I been 15-years-old, all that the well-intented laws would have accomplished would have been to narrow down my choices to ones that made me a criminal or utterly dependent upon the kindness of strangers. Their laws would have eliminated my best chance to survive and emerge intact: the ability to trade my labor on the open market and, so, take care of myself.

The preceding is not merely a rant against the Nanny State. It is prelude to arguing for what I call “the presumption of competence,” Some while ago I read this phrase in connection with criminal law. In a criminal case, if a defendant asserts mental incompetence as a defense, the burden of proof is upon him or her to prove it; otherwise, the default position for the defendant is a “presumption of competence.” That phrase immediately called to mind one that is a close parallel: the presumption of innocence. The latter phrase describes a requirement for due process by which the government has to prove the guilt of a criminal defendant beyond a reasonable doubt before it can impose punishment. The default position for the criminal defendant is a presumption of innocence.

Historically, the presumption of innocence has been one of the most important guarantees of justice for the individual against the overweening state. I was intrigued by whether or not “a presumption of competence” could serve the same function. That is, if people are protected from state aggression by being considered innocent until proven guilty, then perhaps they could be similarly protected by being considered competent until proven otherwise. (I mentioned this briefly in a reflection in June’s Liberty; indeed, this article results from a request to expand the argument hinted at in the reflection.)

To restate: A “presumption of competence” means that every adult is presumed competent to make his or her own choices as long as those choices do not interfere with the equal, peaceful right of others.

(I specify “adults” because I want to avoid the complexity of “children’s rights.” If a presumption of competence were to become entrenched in the law and society, then the age of competence would obviously become an important point. But until undisputed adults are accorded this presumption, it is premature to introduce the complication of children.)

In some circumstances, adults cannot be presumed competent; an obvious case is a man in a coma. The comatose man would retain his natural rights and, so, no one could properly aggress against him but someone would have to assume guardianship in order to make the choices that keep him alive. In many cases, the man arranges that guardianship himself by previously giving someone a power-of-attorney or its equivalent. But for a functioning adult — that is, for a person who maintains his or her own life, whatever quality of life is chosen — the bar to prove his or her incompetence should be so high as to be insuperable. The legal assumption of competence for anyone who handles daily life without committing violence or fraud should be unassailable.

Another way to state the foregoing is that a third party should never interfere with the peaceful choices of another merely to be useful; interference can be justified only when it is necessary to preserve life. The distinction between “useful” and “necessary” is crucial. Almost every measure passed or proposed by the Nanny State is sold on the basis of “usefulness.” The measure will make you healthier or happier or more secure. Next to nothing that is passed or proposed serves to safeguard life and equal liberty. Some measures are packaged as “necessary” — for example, creating no-smoke environments. But granting a correlation between smoking and a heightened risk of cancer at some undisclosed point does *not* mean that every puff is life-threatening. At most, puffing away is risky behavior in much the same category as crossing a busy intersection, skiing, driving in the snow, or a thousand other common activities. The objective of the Nanny State is not to save your life or liberty but to redefine its own role in society so that it runs the daily lives of people who are competent to run their own.

When the Nanny State usurps the right to make decisions for you, it is placing itself in a position of unsolicited guardianship over your life. But the usurpation involves much more than this. A comatose man retains his natural rights; a third party cannot properly aggress against him. By contrast, the Nanny State is quite willing to imprison and confiscate the property of those who disrespect its guardianship; it is willing to aggress against those pursuing their own peaceful choices. And, so, the Nanny State claims more than mere guardianship; it claims the right to
control and to punish your choices. It claims ownership.

And this is what the conflict between the Nanny State and the individual comes down to. Not whether X or Y choice is the correct one to make but who owns the person making that choice.

Libertarianism is based on self-ownership. This is the claim of jurisdiction that every human being rightfully has over his or her own body simply by virtue of being human. Self-ownership underlies all other rights. Indeed, if you don’t own yourself, then it makes no sense to speak of freedom of conscience or belief, freedom of speech or association, or to lay claim to the products of your labor. If you do not have jurisdiction over what is under your skin, then you cannot claim anything.

There is a word to describes the situation in which another party claims ownership over the body of another: it is “slavery.” As such, the Nanny State is misnamed. Although it would like to project the image of a wise guardianship of children — a sort of stern Mary Poppins who uses a “spoonful of sugar to make the medicine go down” — a more accurate image is that of a slave owner. One hand of the Nanny State may be wagging an admonishing finger at you but the other hand is holding a whip at-the-ready.

The presumption of competence short-circuits both. Productive people who are occupied with what Henry David Thoreau called “the business of living” do not take well to the state lecturing them like a priggish maiden aunt. People who believe in their own competence do not submit to the lash or the laws which the Nanny wishes to wield.

NOTE: the preceding article is in the current issue of Liberty Magazine.