Presumption of Competence

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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 what the word “nanny” means. 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, so the state rushes in to fill the void with regulation of every individual’s personal health and safety.

How much trans fat or salt can be in your burger? You are too obese, too nutritionally ignorant, too addicted to McDonald’s 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 your 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. . . . 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 — but this didn’t put the issue to rest.

Since adolescence I’ve known that the state is not there to protect me or be my wise guide; I have to protect and guide myself. In that process, my mistakes have been more valuable to me than the “wisdom” doled out by bureaucrats; 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 end with by declaring that “there oughta be a law!”

The opposite of “there oughta be a law” was true. I call myself lucky because I was 16 years old and so legally able to work. I was lucky because the law did not “protect” me

The nanny state is quite willing to imprison those who disrespect its guardianship, and confiscate their property.



completely. 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 work legally? 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 these options would have placed me in conflict with the police and placed me outside of “respectable” society, into which I might never have 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, had you let it. There were social safety nets, such as foster care, just waiting to help a 15-year- old.” In short, they claim that the nanny state works just fine; the problem was me. 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 or for more caring civil servants. Trillions of dollars and millions of bureaucrats have done nothing to prevent homelessness and the other social problems they allegedly solve. Those problems have turned into lucrative industries that have little to no connection with helping people, rather like public schools that produce illiterate and innumerate graduates. Moreover, such industries as 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 such questions as “Why do runaways and other homeless people so often prefer to sleep on the streets 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 the 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 and 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 a call to the police would also have required forms was I allowed to stay.

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 humans as though they were slabs of meat; their goal is to reduce the meat to a number affixed to 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 feature. Kids on the street are often there because every authority figure in their lives has betrayed them. Runaways know that being dependent means being vulnerable. When social workers tell them that being thrown into the system is for their own good, this only adds the insult of the kids’ being considered stupid, even while they are being set up for institutionalized abuse. People on the streets 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.

Still, 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 can 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-intended laws would have accomplished would have been to narrow my choices to ones that made me a criminal or completely dependent upon the kindness of strangers. Laws would have eliminated my best chance to survive and emerge intact, to have the ability to trade my labor on the open market and so take care of myself.

What I have just written is not merely a rant against the nanny state. It is the prelude to an argument for what I call “the presumption of competence.” Some time ago I read this phrase in connection with the 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.” The phrase immediately called to mind one that is a close parallel: the presumption of innocence. The latter phrase describes the requirement for due process according to 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 the 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 interested to see whether or not “a presumption of competence” could serve the same function. 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 that possibility briefly in a reflection in the June issue of Liberty; this article results from my growing conviction that the presumption of competence is an important concept.

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 various complexities 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, of course, adults cannot be presumed competent; an obvious case is a man in a coma. The comatose man would retain his natural rights, so no one could properly aggress against him; but someone would have to assume guardianship in order to make the choices that would keep him alive. In many cases, people manage this problem themselves by 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 proving 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 to say 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 way as crossing a busy intersection, skiing, driving in the snow, and 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 take his life — or even his property, absent legal proof that he will never again be competent to control it. By contrast, the nanny state is quite willing to imprison those who disrespect its guardianship, and confiscate their property; it is willing to aggress against those pursuing their own peaceful choices. The nanny state claims more than mere guardianship, though that is bad enough; it claims the right to control and 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 your skin and everything inside it, then you cannot claim anything.

There is a word to describe the situation in which another party claims ownership over the body of another: it is “slavery.” In light of that, the nanny state is misnamed. It would like to project the image of a wise guardian of children, and adults who are treated like children — a sort of stern Mary Poppins who uses a “spoonful of sugar to make the medicine go down.” But a more accurate image is that of a slave owner. One hand of the nanny state may be wagging an admonishing finger, but the other hand is holding a whip.

The presumption of competence abolishes 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 assert the presumption of their own competence will not submit either to the lash or to the laws that the nanny wants to wield.

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