Pushing the Libertarian Envelope

I’m always interested in new libertarian attacks on paternalism. Often these are premised on the rejection of the idea of probabilistic harm. For example, here’s a proposal to legalize drunk driving from the leader of the von Mises Institute:

Bank robbers may tend to wear masks, but the crime they commit has nothing to do with the mask. In the same way, drunk drivers cause accidents but so do sober drivers, and many drunk drivers cause no accidents at all. The law should focus on violations of person and property, not scientific oddities like blood content.

We all know drunks who have an amazing ability to drive perfectly after being liquored up. They should be liberated from the force of the law . . . . Drunk driving should be legalized. And please don’t write me to say: “I am offended by your insensitivity because my mother was killed by a drunk driver.” Any person responsible for killing someone else is guilty of manslaughter or murder and should be punished accordingly. But it is perverse to punish a murderer not because of his crime but because of some biological consideration, e.g. he has red hair.

Well, I don’t think we need to consult Fred Schauer’s work on profiling to see the error in reasoning. Drunkenness is not merely correlated with poor driving but also actually causes it in many cases.

What I find so odd about the extreme libertarian vision is the refusal to recognize

a) that individual judgments can be clouded by things like alcohol (as Eskridge and Weimer show in their article “The Economics Epidemic in an AIDS Perspective,” 61 U. Chi. L. Rev. 733 (1994)) and
b) that even fully rational individual choices can add up to a rather chilling collective future.

There’s also a rather troubling formalism at work here, but that’s a topic for another post.