Is There a Right to Be Wrong?
By Tibor Machan - July 16, 2014

That freedom is the matrix required for the growth of moral values – indeed not merely one value among many but the source of all values – is almost self-evident. It is only where the individual has choice, and its inherent responsibility, that he has occasion to affirm existing values, to contribute to their further growth, and then earn moral merit.

F. A. Hayek, "The Moral Element in Free Enterprise," in Mark W. Hendrickson, ed., The Morality of Capitalism (Irvington-on-Hudson, NY: The Foundation for Economic Education, 1992), originally written for The Freeman, 1962.

The problem that I want to discuss has to do with one of those sticklers about a bona fide free society, namely, with the right to be wrong. It would seem on first inspection that that's a queer right to have. Why would one have a right to be wrong? And why would it be right to defend such a right, to stand up for it?

It's a very old issue; it predates the birth of classical liberalism. It was a puzzle to all those who had a concern for natural law, but also believed in free will, such as St. Augustine and Thomas Aquinas. Under certain versions of Christianity, for example, the only meaningful way to be a good human being is if one chooses to be. However, if one can choose to be good or to do good deeds, one can also choose the opposite. And, also, if one is prohibited from choosing to be bad, then one is also prohibited from choosing to be good, at least the good of abstaining from evil. In other words, one then has to be good as a matter of law and will be punished if one chooses to do bad or fails to do good.

If one is threatened with punishment for being bad or doing bad deeds, then why is one going to be or do good? Not, apparently, because goodness is what motivates one; one will be good because one is motivated to avoid the adverse consequences of being bad that one is very likely to suffer at the hands of law enforcers. And that doesn't make one a good human being. If the only reason that one conserves wildlife is that one is afraid of punishment, well – this may enhance environmental soundness, but it doesn't warrant some special pride on one's part for being an environmentalist. When the police question someone about a crime and only after they threaten the person with sending the INS or health department to look into his or her business do they get answers, there is no justification for considering the person to be filled with civic duty. Goodness must be achieved without coercion, period.

This is not to say that good behavior may not be produced by way of laws that require it, nor, again, that one might not have chosen such good behavior had one not been legally required to engage in it. Yet in such cases one will very likely not be clear about one's own motivation, nor will others be. And this can lead to confusions about why one is behaving well.

It is especially interesting to investigate this in the context of the First Amendment because it recognizes both our rights to free expression and to our freedom of worship. So, in both these areas Americans are protected in the right to be wrong. People, after all, often commit idolatry or worship the wrong deity; however, that's to be understood. That's to say, one's choice of religion is quite conceivably a wrong or bad choice. In journalism, too, a lot of people engage in, for example, "yellow journalism," that is to say they are journalistically irresponsible by being sensationalist, distorting the facts, quoting out of context and so forth, all of which are wrong from the point of view of how journalists ought to act. Yet no recourse is taken against them in law. This is a matter of self-regulation on the part of the journalistic profession, and on the part of individual journalists. They are counted on to be their own supervisors, their own regulators – unlike business and farming and psychology and many other professions where heavy regulations interfere with their conduct. In journalism and in religion, the U.S. Constitution prohibits government regulation – the effort on the part of government to make us do the right thing. In both of these areas prior restraint is largely legally banned.

So, we have at least two easily understood examples, at least in certain countries, of the legal right to be wrong grounded, arguably, on a basic right to be wrong that has acquired legal protection. We seem to have the right to be wrong from the point of view of journalistic ethics and the right to be wrong from the point of view of what you believe in – in matters of religion. You can be completely wrong and there can be no recourse against you. No sanctions may be applied; no police may be called to arrest you for being wrong.

This is not the same, for example, when one hires people in some business corporation; one doesn't have a right to be wrong, for example, in engaging in racial or sexual discrimination in hiring or promotion. If one is being racist, sexist, or otherwise chooses wrongly, by way of what is arguably unjustified discrimination against somebody, one doesn't have the right to do that. For such conduct one may be punished. Governments heavily regulate such matters. (It is the human resources departments of most companies that communicate to the management the government regulations that dictate to them what they may or may not do.) So, in many professions one doesn't have a legal right to be wrong, other than those that are covered by the First Amendment to the U.S. Constitution. Yet, what if we still have the basic right to be wrong? Wouldn't these state imposed regulations then be wrong, unjustified?

So let us take a look at why one might have a right to be wrong. Unless we find some good reason for this, it may turn out that the First Amendment to the U.S. Constitution is wrong and journalists, as well as ministers, not only members of other professions, ought to be regulated by governments to do the right thing. In many countries, they are. Even in England, there isn't any stringent protection of the freedom to speak out. There are much fiercer slander and liable laws in that country. In the U.S.A., if you attack a politician and besmirch his character, even falsely, you may not be arrested; you may not be fined for anything along those lines of wrongful conduct. Your rights to freedom of speech and freedom of press are protected even in the face of what is widely recognized as gross abuse. Why would that be okay?

Or, alternatively, should such a policy of protecting the right to be wrong not be confined only to journalism and religion but extended over the entire society? In other words, perhaps everyone has the right to be wrong and this right, as all others, ought to be protected? This includes people in business, medicine, farming, insurance and other professions. Perhaps the only kind of wrongful conduct that may be prohibited is the kind that involves the invasion of other people's sphere of authority, such as assault, rape, robbery, murder, while inconveniencing them with one's own bad behavior, such as gambling, unfair discrimination, prostitution, or harmful drug use are the kinds of wrongful conduct that one has the right to engage in.

Arguably, that is one prominent meaning of "freedom" in the political context. The idea is that every adult is sovereign, a self-ruler, about matters of right or wrong. In a society that embraces the idea that the first public purpose of government is to "secure our rights," it is understood that citizens are responsible to deal with human misconduct, not legal officials, except in certain limited cases already listed, such as murder, assault, burglary and so forth. They do amount to regulating people's conduct, or rather, banning some of it. The reason these exceptions are said to be is that banning these activities amounts to protecting others from having their sovereignty invaded. In other words, everyone has the right to be free but not with another person's life and estate. That kind of conduct amounts to violating another person's rights, so in such endeavors one may be stopped.

Let's go back for a minute here to where I noted that it had been recognized by many Christians that a great deal of what one does in life must be under one's own control. The risk of mismanagement – or sinning – must be accepted because otherwise right or proper conduct is not really a person's own achievement – it's not really something worthy that one has done but merely behavior that has been coerced. If I put a gun to your head and make you write a poem under the threat of your life, and it turns out to be a pretty good poem, it would be odd to compliment you (or me) for it. That's because you didn't choose to write the poem, you were forced to write it (nor did I write it). It is a bit like those people in the Wild West who danced because others shot guns off at their feet. It might be a wonderful dance, very entertaining, but it's not an accomplishment of theirs. It is something that is imposed on them by others.

Under a view of human nature that recognizes the moral dimension of human life, it is clearly very important that this realm of freedom be recognized and protected. Otherwise our moral nature isn't acknowledged. Of course, acknowledging our moral nature also entails the acceptance of the risk that we will make bad judgments and engage in bad conduct. That's just the way Libertarians, Classical Liberals and indeed a great many people in their casual outlook on life understand as flowing from our human nature, namely, the requirement of a sphere of personal jurisdiction wherein people are in charge of their own lives. If not, they are not being recognized for being human and their human dignity is denied. When people get quite old and others begin treating them in paternalistic ways, this issue often comes up by way of the question as to whether their basic dignity isn't being violated. What does that mean? It means that the paternalists do not recognize that these elderly persons ought still to manage their own lives.

There are other areas, e.g., when someone engages in massive discriminatory hiring, where a lot of people would say, "That no one has a right to do." For example, when the State of California voted to enact Proposition 14, in 1964, which the U.S. Supreme Court characterized as "authorizing private discrimination," the highest court struck down the law because, as Justice Byron R. White put it, "The right to discrimination, including the right to discriminate on racial grounds, was now embodied in the state's basic charter, immune from legislative, executive, or judicial regulation at any level of the state government." And that is exactly what having a basic right to discriminate being given legal protection entails. Justice White, then, continued in this vain: "Those practicing racial discrimination need no longer rely on their personal choice. They could now invoke express constitutional authority, free from censure or interference of any kind from official sources." This is wrong. Protecting the right to discriminate in law does not mean that racial or other forms of unjust discrimination is given constitutional authority any more than protecting the right to freedom of religion or the press means that everything done with the protection of that right gains constitutional authority, such as becoming a Satanist or practicing yellow journalism. Having a right to do X does not by any stretch of the imagination imply that X is the right thing to do.

In any case, as Justice White suggested, it might not be okay to interfere with someone who engages in irresponsible journalism, but it is okay to interfere with someone who engages in irresponsible (racist) trading practices.

Notice, right off, that this doesn't really apply consistently in the marketplace. Producers tend to be prohibited from practicing racism, sexism and bigotry in hiring, subcontracting and other aspects of trade. But consumers or customers are not so regulated. One is free to stay away from a store because one doesn't favor the storeowner's religion, politics, race or gender. One's freedom to go to the mall and look into a shop and decide, "There are two people working there who look to have Arabian ethnic origin, and I don't want anything to do with them, so I'm going to shop at another store." This is a form of discrimination generally deemed to be unjustified because the two people who appeared to have Arabic origins are unknown to the shopper. He or she has no idea whether they are decent human beings or not. They are being judged entirely on superficial traits, ones they cannot help possessing. Yet, no law prohibits such discrimination and if someone were to know about the shopper's reasoning, that person would be prevented from forcing the shopper to behave differently from how he or she wants to behave. As consumers/customers, we are mostly free to be and do wrong.

It goes further than the protection of racial or ethnic discrimination. If in chatting with one's barber or hairdresser one finds out that the barber or hairdresser adheres to politics one dislikes, one can decide that one will never return to the place of business even though their politics is right and that of the costumer's is wrong. What about that? There is no law that requires one to shop where one has irrationally, unjustifiably decided not to shop. The law, indeed, protects one's having so decided, should someone else attempt to rectify one's bad decision by forcing one to shop where one has decided not to.

So, there are some severe inconsistencies in denying people the right to be wrong. Some people are given just the sort of protection to be wrong that Justice White lamented; other people are disallowed to be wrong. Why so? Perhaps it is because it's very difficult to supervise people at the mall or the grocery store. Although there is some effort in some directions to regulate people's consumer behavior – as when producers are prohibited from trade that consumers want, such as selling certain drugs, providing the opportunity to gamble in certain locations, or engaging in prostitution. In those cases both the producer and the consumer are regulated. But in many others, even apart from what is implied by the First Amendment to the U. S. Constitution, consumers or customers have their liberty to be wrong fully protected.

Okay, we have seen that the law is ambivalent – it does and does not protect one's right to be wrong. Now let me try to defend the view that we really ought to be recognized as having the right to be wrong. Such a defense begins with the recognition of human beings as moral agents.

A moral agent has the responsibility to choose to act ethically, properly, in his or her life. For moral agents fulfilling those responsibilities is a central feature in their lives. It's not just some side issue, but one upon which it depends whether one's life is a success or failure at the most basic level. Ultimately, to have been a descent human being, who's been honest, who's been prudent, who's been courageous, who's been generous – who has done all sorts of right things in all sorts of diverse circumstances – is central to any moral agent.

Of course, there are a great many thinkers who consider morality bogus. When Enron and WorldCom executives started to be noticed for their malpractice, very few moral philosophers in the academy commented. This is because most of them would have said, based on their moral skepticism, "Look, we shouldn't hold these people responsible for having done anything wrong – who, after all, can know what's right and what's wrong." The reason that few if any emerged from the academy saying this is that for many morality is some kind of primitive set of superstitions, not anything a sophisticated contemporary intellectual would take seriously. The idea is either that people simply can't help themselves, that they are not free but impelled to do what they do by their genes, DNA or upbringing, or they simply doubt that any moral claims can be shown to be true or false. Ever since David Hume was interpreted to have argued, in the 18th century, that one cannot derive any claim about what we ought to do from any claim about what is the case, many in the field of philosophy and the social sciences have embraced moral skepticism. (What Hume actually said is that one cannot deduce moral conclusions from non-moral knowledge; but there are derivations that aren't deductions, so Hume was no moral skeptic.)

In any case, despite the fact that there is a great deal of academic, scholarly, or philosophical skepticism about morality that is bandied about, there is also a great deal of acceptance of the idea that human beings are indeed moral agents. Nearly everything said about how people should treat their environment, other animals, members of minorities and other cultures, the poor of the world, those in need of expensive drugs to fight their diseases and so forth implies that we are indeed being regarded as moral agents. We are regarded as having the responsibility and the capacity to do the right thing and reminded, very often, that we have not done this or not to a sufficiently consistent degree.

So despite the fact that theories of moral skepticism are widespread, it is also true that even those who propound this moral skepticism – the skepticism about our freedom and about our capacity to know the right thing vs. the wrong thing – tend in their own practical affairs to give credibility to the conviction that we are moral agents. They usually punish their children, they usually do complain about their friends when they get betrayed by them, they usually go on faculty committees and harangue one another for how badly they behave in the academy. But most importantly, they criticize others who fail to accept their own point of view, consider them seriously wrongheaded and suggest they ought to change their minds. It is very difficult to act and think consistently when one is a moral skeptic since human life is inherently bound up with morality.

Okay, so moral skepticism tends to stop at the scholarly door. And it is clear enough for all practical purposes that human beings are moral agents because they are faced with alternatives, some of which are good and some are bad, and they are held responsible for how they choose. In other words, not only is it the case that they have responsibilities to become successful human beings by choosing what is right. But even those who routinely consider morality bogus implicitly accept that we do have many of these responsibilities.

Now, the social preconditions for treating human beings as moral agents is the basic right to be wrong. Without that right, people cannot freely make their own moral judgments but act, rather, from fear of legal sanctions, something that obscures the moral significance of what they do. (Yes, they might have done the right thing anyway, but this is difficult to tell if they must do it.) What they ought to do and ought not to do is something that has been taken over by others – government regulators, for example. This means that in many spheres of life their own quality of moral judgment never can surface.

Even though it is true that human adults are moral agents and must be free to be wrong, the temptation to subvert this principle is very great. Accepting that people do something wrong and thus staying away from interfering with their conduct is extremely difficult.

Parents know this all too well. As children grow up and they begin taking responsibility for themselves, it is nearly impossible for their parents and intimates to simply adhere to the principle, "Okay, it's their life and so let them run it, badly or well." Nevertheless, just because something is difficult to do doesn't mean it's the wrong thing to do.

Nobody can maintain that recognizing people as free agents, recognizing their rights, and implementing that in public policy is easy. But then, most good things aren't easy. Whether you want to be a proficient pianist, newspaper editor, or philosopher, it means withstanding a lot of temptations to take short cuts.

Now, if one wants to be right about basic political philosophy and law, one has to resist the temptation to interfere with people's bad judgment, no matter how eagerly one is trying to counter it. It's not up to another person to do that for an adult. One can, of course, advise, recommend, implore, plead, or buy off. But it is morally and politically wrong to force oneself on other adults and in that way prevent them from being wrong. They have the right to be wrong, stemming from their nature as moral agents, because of their basic humanity, plain and simple.

A genuine free society is one in which everyone has the right to be wrong. This is a necessary consequence of fully recognizing our humanity fully, without exception.

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