Binding beyond the grave

There's a squabble going on at the moment over the rights and wrongs of the UK government's proposal to "presume consent" when it comes to the removal of organs from dead bodies for transplants. The Prime Minister betrayed his usual illiberal bent when discussing it (emphasis added):

A system of this kind seems to have the potential to close the aching gap between the potential benefits of transplant surgery in the UK and the limits imposed by our current system of consent.

It is a revealing thing that a person can mention, without qualification and with disparagement, a "system of consent".

Writers on the libertarian right are opposed to this idea, writers from the left seem to be less worried. In the words of the Libertarian Alliance (emphasis added):

When the law allows organs to be harvested from the bodies of the dead without the explicit prior consent of the dead, or the explicit consent of the next of kin, the State becomes effectively a cannibal.

Can the dead give consent? Are the living bound by the wishes of the dead, even if those wishes were made plain before death? If not, then it ain't your liver any more and is at the disposal of the living to use as they see fit.

I'm putting it like this because these are echoes of a much older debate. In Book One of The Rights of Man, Thomas Paine wrote:

The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies. Man has no property in man; neither has any generation a property in the generations which are to follow... It is the living, and not the dead, that are to be accommodated. When man ceases to be, his power and his wants cease with him; and having no longer any participation in the concerns of this world, he has no longer any authority...

I have deleted a passage from that quote, and I will reinsert it in a moment. It provide the context for the debate. But this removal does not distort Paine's words, and makes clearer the principle he was enunciating. It is a principle which few today apply consistently. People who feel we should not bind future generations, or be bound by those of the past, can be found on all sides of debate, but with wild variations in the way they apply these principles. Are we responsible for slavery? Are we entitled to inheritance? Should we leave nuclear waste? It is hard to find a consistent principle being applied.

Paine was writing in response to an argument advanced by Edmund Burke against the French, and by extension any prospective British, revolution. Burke was a free marketer, hated by Karl Marx and admired by Adam Smith and, much later, Winston Churchill. Unlike Smith, who detested the hereditary principle and the aristocracy, in constitutional terms Burke was very much a Tory. He was a strong partisan for the legacy of the Glorious Revolution, which established limited (by Parliament) constitutional monarchy in Britain. We still have this system of government, but without the checks and balances provided by a more powerful monarchy it has now become the exercise of unlimited, absolute power by Parliament - a very bad thing indeed in my view, but not something to be remedied by the restoration of powers to the Crown. As I've argued before, we now need government limited by constitution - a republic.

In any event, let me provide a fuller version of Paine's quote without the excisions (emphasis added):

The English Parliament of 1688 did a certain thing, which, for themselves and their constituents, they had a right to do, and which it appeared right should be done. But, in addition to this right, which they possessed by delegation, they set up another right by assumption, that of binding and controlling posterity to the end of time. The case, therefore, divides itself into two parts; the right which they possessed by delegation, and the right which they set up by assumption. The first is admitted; but with respect to the second, I reply-

There never did, there never will, and there never can, exist a Parliament, or any description of men, or any generation of men, in any country, possessed of the right or the power of binding and controlling posterity to the "end of time," or of commanding for ever how the world shall be governed, or who shall govern it; and therefore all such clauses, acts or declarations by which the makers of them attempt to do what they have neither the right nor the power to do, nor the power to execute, are in themselves null and void. Every age and generation must be as free to act for itself in all cases as the age and generations which preceded it. The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies. Man has no property in man; neither has any generation a property in the generations which are to follow. The Parliament or the people of 1688, or of any other period, had no more right to dispose of the people of the present day, or to bind or to control them in any shape whatever, than the parliament or the people of the present day have to dispose of, bind or control those who are to live a hundred or a thousand years hence. Every generation is, and must be, competent to all the purposes which its occasions require. It is the living, and not the dead, that are to be accommodated. When man ceases to be, his power and his wants cease with him; and having no longer any participation in the concerns of this world, he has no longer any authority in directing who shall be its governors, or how its government shall be organised, or how administered.

I am not contending for nor against any form of government, nor for nor against any party, here or elsewhere. That which a whole nation chooses to do it has a right to do. Mr. Burke says, No. Where, then, does the right exist? I am contending for the rights of the living, and against their being willed away and controlled and contracted for by the manuscript assumed authority of the dead, and Mr. Burke is contending for the authority of the dead over the rights and freedom of the living. There was a time when kings disposed of their crowns by will upon their death-beds, and consigned the people, like beasts of the field, to whatever successor they appointed. This is now so exploded as scarcely to be remembered, and so monstrous as hardly to be believed. But the Parliamentary clauses upon which Mr. Burke builds his political church are of the same nature.

The laws of every country must be analogous to some common principle. In England no parent or master, nor all the authority of Parliament, omnipotent as it has called itself, can bind or control the personal freedom even of an individual beyond the age of twenty-one years.[1] On what ground of right, then, could the Parliament of 1688, or any other Parliament, bind all posterity for ever?

The emphasised passage marked [1] is about as pure a description of the modern Libertarian principle as you could ask for. It asserts the primacy of the rights of the individual above those of the government to command. This notion is intrinsic to the very idea of freedom, and its breach a necessary condition for tyranny.

But it is possible here to see the difficulty of trying to transcribe old political allegiances into contemporary terms. Those asserting today, as did Burke, the right of the dead to bind the living, consider themselves to be Liberals, or Libertarians. Yet it was Paine who best enunciated the principle of individual liberty.

There are some consistencies in Britain; many who call themselves Libertarian, like Sean Gabb of the Libertarian Alliance, have argued for monarchy - in effect for Burke's idea of a permanent settlement based on the Glorious Revolution. They are indeed Tories in the old sense of the word, and Gabb even writes of the "quisling right" who have abandoned conservative principles.

But the American Libertarian Party is directly in line of descent from Paine and Jefferson (Madison disagreed on this point, and felt there was a thread of something like a contract that ran through the generations).

So to pick up on an earlier debate, while Marxists have no business calling themselves Liberals, neither does the Libertarian Right in the UK, though it does in the USA. In the UK, they are in the main pre-1900 Tories. Of course, another way to put that is to say that the Libertarian Right in the UK has every right to call themselves Liberals, because of their emphasis on free trade and economic freedom in general, and their advocacy of the rights of the individual, and so does the Marxist left because of their emphasis on the imperative to moderate the wrongdoings of corporations and to look after the poor. I said it was hard to draw lines from old political positions to those of the present day.

But to stand in line of descent from the Tories of the eighteenth and nineteenth centuries is no bad thing, provided you can restrain yourself from forming an angry mob and burning Joseph Priestly's house and laboratory, or enacting protectionist legislation that starves hundreds of thousands to death, leads to mass emigration and then back it up by leading cavalry charges into crowds of protesters. The Marxist left, by way of contrast, needs to restrain itself from murdering millions and enslaving entire continents.

The nineteenth century was a freer time than our own, with many characteristics that would appeal to a classical Liberal with a sense of the importance of individual autonomy and responsibility, as anyone who has read the opening page of A.J.P. Taylor's English History, 1914-1945 in the Oxford History of England can attest:

Until August 1914 a sensible, law-abiding Englishman could pass through life and hardly notice the existence of the state, beyond the post office and the policeman. He could live where he liked and as he liked. He had no official number or identity card. He could travel abroad or leave his country for ever without a passport or any sort of official permission. He could exchange his money for any other currency without restriction or limit. He could buy goods from any country in the world on the same terms as he bought goods at home. For that matter, a foreigner could spend his life in this country without permit and without informing the police. Unlike the countries of the European continent, the state did not require its citizens to perform military service. An Englishman could enlist, if he chose, in the regular army, the navy, or the territorials. He could also ignore, if he chose, the demands of national defence. Substantial householders were occasionally called on for jury service. Otherwise, only those helped the state who wished to do so. The Englishman paid taxes on a modest scale: nearly £200 million in 1913-14, or rather less than 8 per cent. of the national income. The state intervened to prevent the citizen from eating adulterated food or contracting certain infectious diseases. It imposed safety rules in factories, and prevented women, and adult males in some industries, from working excessive hours. The state saw to it that children received education up to the age of 13. Since 1 January 1909, it provided a meagre pension for the needy over the age of 70. Since 1911, it helped to insure certain classes of workers against sickness and unemployment. This tendency towards more state action was increasing. Expenditure on the social services had roughly doubled since the Liberals took office in 1905. Still, broadly speaking, the state acted only to help those who could not help themselves. It left the adult citizen alone.

That's pretty much a contemporary European Libertarian manifesto. That the opening three words are "Until August 1914..." shows something else as well. We are living under emergency wartime legislation, to a very great degree. It should be repealed. We are, more than any earlier generation, "bound beyond the grave" by the actions of legislators of the past, and not even they expected their legislation to be permanent.

UPDATED but I'm not going to say where... heh. Just a bit of embellishment I'll probably regret tomorrow.