Private Encroachments by
David Leyonhjelm, reproduced here with the author's
permission, originally appeared in
the December 2009 issue of the IPA Review under the title "Navigating
Most people accept that
some things are legitimately the responsibility of the
government while others are private matters. Indeed, this
distinction was well known to the ancient Greeks. Aristotle
described the public realm of the polis,
state, city or republic as the site
where people consent to or contest the laws, contracts,
covenants, or principles of community that govern personal
and social conduct.
The private realm was defined by the
hearth and home, remaining the place of family, comfort and
individual identity. He viewed the family as the primary and
immediate unit of society, forming the training ground for
conduct, nature, and morality.
There has always been
debate about where the border lies and the overlap between
the two, but serious encroachments into the private realm by
the government have traditionally been associated with
authoritarian regimes. Russia’s state run holiday camps,
East Germany’s network of community spies and China’s one
child policy are obvious examples, among many. In George
Orwell’s novel Nineteen Eighty-Four, party members were
monitored via cameras in the walls of their homes as the
regime sought to abolish the
family, orgasms and the sex instinct so there was nothing to
detract from love of Big Brother.
countries the encroachments take a more benign character,
frequently motivated by the same sense of superior knowledge
and desire to protect that we associate with mothers and
their children, or at least child carers. Hence they are
commonly referred to as signs of the “nanny state”.
The care of a mother for
a child is based on reality. A mother does in fact have
superior knowledge and naturally seeks to protect her child
while it is too immature to make rational choices. The
ability to make such choices and take responsibility for the
consequences is what distinguishes adulthood from childhood.
Parents recognise this by tailoring the protection they
provide to children, for example by applying warm clothing
to small children when it is cold but allowing older
children to decide for themselves.
Governments are not super
parents with superior knowledge, but public servants and
politicians acting with legal authority. Moreover, citizens
are not children who are incapable of making rational
choices and accepting responsibility. Yet there has been a
vast expansion by the government into the private realm with
the government assuming it has superior knowledge and that
adults are unable or unwilling to make the right rational
There are many views on the appropriate
relationship between governments and the governed, but two
that have particular relevance to this subject are those of
the English philosophers Thomas Hobbes and John Locke.
Hobbes believed the natural state
between people was conflict, with life being ‘solitary,
poor, nasty, brutish and short’. He considered people were
needy and vulnerable, easily led astray, with fragile
capacity to reason. The only way to avoid a perpetual state
of war of ‘all against all’, in his view, was to agree to
relinquish all rights to a sovereign who could not be
questioned. The sovereign dispensed justice and allowed such
freedoms as it considered appropriate while maintaining
Locke’s view was that people generally
got along quite well when left alone, and in the natural
state were equal and independent with a right to defend
“life, health, liberty, or possessions". However, he assumed
this was not enough, so they agreed to establish a civil
society to resolve conflicts in a civil way with help from
government. Rights were only relinquished to the extent
necessary for this to occur, and if the government ever
retained more than necessary he favoured a revolution to
restore the balance. His views were quite influential to the
authors of the American Declaration of Independence.
Hobbes’ idea of an unaccountable
sovereign has been replaced by what now passes for
democracy, but the idea that all rights derive from the
government remains relatively common. Widespread
encroachments on the private realm by governments are a
A good example of this is
assisted suicide. Even though suicide is no longer illegal
(attempted suicide remains a crime in the Northern
Territory), it is a serious criminal offence to provide
assistance or practical advice to someone else to take their
From Hobbes’ perspective
the government has every right to allow able-bodied
individuals the freedom to die while denying the same
freedom to those who are physically frail. Those who believe
the government knows best describe this as protecting
From Locke’s perspective
the government is intruding into a deeply private matter in
which it has neither the right nor the expertise. To the
extent that the government has a role in preventing
exploitation of the elderly and frail, there are options for
achieving this that do not treat rational adults as
In many cases the
government seeks to protect individuals from what it regards
as poor choices, notwithstanding the fact that those choices
are made in full knowledge of the risks and consequences.
Thus we are subjected to prohibition or heavy-handed
regulation of activities such as skydiving, bungy jumping
and the martial arts. Women’s boxing remained illegal in NSW
right up until it was adopted as an Olympic event.
Compulsory helmets for bicyclists and motorcyclists and
mandatory seatbelt laws are other examples.
The government seeks to protect us from
moral danger as well, with many prohibitions and limitations
based on particular moral values. Homosexual acts might be
no longer illegal but homosexual marriage and adoption of
children remain off limits. Prostitution may be legal but is
heavily regulated, as is pornography. Australia is
contemplating imposing a general internet filter,
purportedly to protect children from accessing pornographic
sites but coincidentally depriving adults of choice while
intruding into the private realm of parental care.
Limits on smoking,
drinking, gambling and recreational drugs are often
justified as protecting people from moral danger as well as
preventing poor choices.
The government also attempts to prevent
us from making poor choices about what we eat. It bans the
advertising of ‘unhealthy’ food and drink to children,
inferring it knows better than parents, and spends millions
itself on advertising to encourage us to eat more fruit and
vegetables, less salt, fat and fast foods, and to get more
There are indications we will see more
of this. A government taskforce has recommended far-reaching
measures to increase our physical activity and consumption
of “healthy” food, among them prohibiting ‘junk’ food, plain
packaging of cigarettes, tax breaks for exercising,
increasing obligatory exercise at school, reducing alcohol
availability, and restricting alcohol advertising and
The government also
doubts that people will ‘do the right thing’. Thus it
restricts access to vast areas of National Parks, prohibits
fishing in ever expanding areas, and prevents the removal of
trees or the clearing of scrub on private land, all on the
assumption that it knows best. It even compels us to vote,
perhaps concerned that we might prefer to go fishing or cut
down a tree instead.
Through all this, the notion that
rights belong to individuals and can only be taken away with
good cause does not apply. Instead, there is an assumption
that rights derive from the government and can be limited at
any time. Treating people as if they are incapable of
looking after themselves, including making the right
decisions for themselves and their families, is an
It is perhaps in the area
of self defence and the related subject of gun control that
the implications of this become acutely apparent.
Following the Port Arthur
shooting in Tasmania in 1996, Prime Minister John Howard
forced all State governments to adopt a regime of strict gun
laws. Howard explained his views
in a Sydney radio interview, in which he said:
will find any means we can to further restrict them because
I hate guns. I don’t think people should have guns, unless
they are police, or in the military or security industry.
Ordinary citizens should not have weapons. We do not want
the American disease imported into Australia.”
The assumption that the government is
entitled to own all the guns while the people have none is
consistent with the concept of the unaccountable sovereign.
In contemporary terms it has been interpreted as meaning
that a democratically elected government will never need to
be physically removed because it can always be voted out
through the electoral process. Hence there is no need for
the people to maintain the means to overthrow it.
The alternative view is that
democratically elected governments do not always remain
democratic or willing to be voted out. Indeed, Hitler’s
National Socialist government was democratically elected
before it declared martial law. From this perspective it is
prudent for the people to retain the means of resistance, if
only to discourage excessive authoritarianism.
However, it is in the
more immediate area of personal self defence that Howard’s
sentiments assume most relevance.
The gun laws that he instigated removed
any remaining rights to own a gun for self-defence. For all
practical purposes, and there are no exceptions in NSW, it
is now impossible to own any kind of gun for protection
anywhere, including in the home.
Most people have never felt the need to
arm themselves for self-defence, but it was at least an
option. The police would often recommend that people faced
with a realistic threat of violence consider obtaining a
permit to own a pistol. Examples included wives pursued by
violent ex-husbands, celebrities hounded by crazed fans, and
of course jewellers and owners of gun shops.
These days, politicians are protected
by armed guards at taxpayers’ expense and the well-heeled
hire armed security guards. Everyone else takes his or her
chances. Even non-lethal alternatives like pepper sprays and
mace are banned.
If a woman’s ex-husband has bashed her
half a dozen times, breached repeated restraining orders,
made threats to come and finish her off and knows where she
lives, she still cannot arm herself. If she does, she will
be the one who is arrested. Her vulnerability is the same at
home except for the fact that she is still permitted to use
whatever is at hand, and kitchen knives and screwdrivers are
so far still legal.
In theory, the right of self-defence
has not been lost. Self-defence remains available as a
defence and juries consistently refuse to convict whenever
it is established. For most people it is simply not a
Being reliant on the
government for your safety, the safety of your family and
the protection of your property is consistent with the
relationship between a child and its mother. Given that
level of dependency it is little wonder that other
encroachments seem minor, or that some people feel entitled
to transfer responsibility for their actions and losses to
the government. Being treated like a child will inevitably
lead some people to behaving like one.
But it is also true that most people do
not regard the government as wise, or agree it is entitled
to intrude into the private domain unchallenged. Public
servants are often seen as incapable of achievement in the
private sector and politicians are held in contempt. Many
would also like to think the government was answerable to
them rather than vice versa.
The problem is that individual
intrusions are not normally identified as part of a pattern.
Those who object to internet censorship, for example, will
often fail to identify with control issues facing smokers,
gays or four wheel drivers. The overweight may resent the
government hectoring them to lose weight but do not relate
to restrictions on recreational fishing. Those who are
appalled at government prohibition on assisted suicide may
approve of “tough gun laws” without recognising that they
both arise from an assumption by the government that
individuals should not have too much responsibility.
A common response by those who object
to government intrusion in a particular field is to seek to
modify the intrusion, perhaps by replacing one set of values
with another, without recognising that this is simply a
variation on the same problem. A good example is those who
argue that the law should be changed to prescribe gay
marriage. In the broader context of government control, a
better question would be to ask why the government needs to
prescribe conditions for marriage at all.
If all those who resent the intrusive
expansion of the nanny-state in a particular area were to
ever join forces with those who resent it in another, the
potential would be enormous. The private realm would once
again be private, the government subordinate to the people
and adults left to choose their own course and accept the
consequences. John Locke would approve.
Copyright © 2009-2010, David Leyonhjelm.
David Leyonhjelm is the
of the Liberal Democrat Party. (www.ldp.org.au)