Individual Responsibility; R. Foley, Jr.

Mr. Foley, a partner in Souther, Spaulding, Kinsey, Williamson & Schwabe, practices law in Portland, Oregon. 42 Man acts; this fact ineluctably attends the study of mankind. One can no more imagine a world de void of purposeful human action (given the existence of human beings) than one can conjure up a land unfettered by cause-and effect relationships or unblessed by a sun which arises in the East each day. But what constitutes human ac tion? Purely and simply, it alludes to that characteristic of personal conduct which we refer to as a choice between alternatives. Each individual confronts myriad po tential courses of conduct as he faces each appointed task. He - or someone on his behalf - must choose between those available routes to his goal. Man must choose; he cannot remain static and survive. Abdication of the 1976 INDIVIDUAL RESPONSIBILITY 43 power to choose represents as much a choice as any other course of conduct. Try as one might, man cannot avoid the awful responsi bility of that power which affects both his life and that of others.

The stark reality of the unyield ing necessity to choose and act sometimes obscures a salient point: the very power to choose and ability to affect consequences marks the difference between man and other creatures or inanimate objects. Man is man because he can knowingly choose and seek his own destiny within the constraints of his physical limitations. This special nature sets the human con dition apart from the animal world where the birds and beasts react instinctively but without rational purpose. A seal or dolphin may react to a maze or series of lights for a gourmet reward, but these mammals can never devise the sys tem nor comprehend the essential relationships which cause it to work with relative infallibility. A concomitant fact of human nature, whether termed universal truth, natural law, or reality, leads to the discussion of the concept of individual responsibility: man makes mistakes. Any objective ob server of human history and na ture recognizes that man neces sarily falls short of his aspirations.

The finest hitter in baseball lore achieved success approximately 36 % of the time; an accomplished musician manages a few "clinkers" in every performance; a proficient secretary snow-packs her typo graphkal errors. If such a low ra tio of success applies to those en deavors in which one exhibits con summate skill, how much greater the likelihood of mistake, confu sion or misdirection. in enterprises where the actor lacks mastery. In plain terms, man is a fallible, finite being prone to misj udge both means and ends and only dimly cognizant of the normative rules which govern the art of living. Man acts; by his very nature he chooses between alternatives; he errs. Addition of the ingredients analyzed yields the equation of in dividual responsibility: Each choice represents a moral impera tive: Individuals should endure the consequences of their actions, tol erating their mistakes as well as enjoying their successes. Respon sibility encompasses the attribute of accepting the results of human action without attempting to shunt these consequences unto the shoulders of other human beings.

The Essence of Personal Responsibility Two common rejoinders color the condition when human action produces untoward or unantici pated results. First, the actor seeks to diffuse his loss, or to avoid it entirely, by imposing the conse44 THE FREEMAN January quences of his choice upon other persons. Second, even when resist ing that temptation many individ uals display a selectivity in .ac ceptance of involvement; in other words, one may profess a belief in individual responsibility yet by his actions brook only a part of the output. So, we note a proclivity on the part of human beings to desire and revel in the choice-making power while circumventing the outcome of wielding that au thority. Remember the fundamental rule that action produces effect. Apostles of liberty glory in the freedom .of human action, the ability of a human being to choose between alternatives in as many instances as possible without ex ternal constraints. All too often, these same individuals ignore or avoid the necessary obverse to free action, the concept of individual responsibility for the results of that action.

Shifting the Responsibility Examples sometimes clarify a point. A may consider the oil in dustry profits excessive. To alle viate this situation, A secures in troduction and passage of a bill by Congress limiting oil producing enterprises to a return of. 6% upon their gross sales. Suchan action produces results, both ob vious and cloaked. One outfall will exist in higher energy prices to consumers by virtue of the thwart ing of investment capital and the disinclination of investors to incur substantial risks of loss for so slight a return. Existing com panies in the field will concentrate upon relatively safe explorations; production will decline while de mand remains constant or in creases; demand increases con comitantly with artificially-lowered prices to consumers; since a lower amount of the commodity appears for sale to an equal or larger num ber of consumers bidding for the goods, prices will increase as the market replies to consumer pres sure. If A truly believes in indi vidual responsibility for his ac tions, he will accept the market dictation of higher prices for en ergy products. However, if he per forms true to form of the mill run of the citizenry, A will rail at the result of his conduct and seek to shift the burden of those results to others by the imposition of wage and price controls. Price controls applied to the oil indus try will only serve to aggravate an already perilous situation: a limitation on the price charged (particularly in a period of rapid inflation) will further eliminate both investors and producers in the field, secure unnatural car telization of the industry, destroy capital formation and, if carried 1976 INDIVIDUAL RESPONSIBILITY 45 to the extreme, ,annihilate the creation of the goods. A's refusal to abide by the consequences of his choice will ultimately thrust the burden first upon the producers regulated and eventually upon all who use energy products.

favored Treatment Normally a follower of the free dom philosophy would not advo cate enactment of such obvious market intrusions as profit, wage or price controls; that kind of tomfoolery seems to be the exclu sive province of the misguided liberal who believes that state reg ulation supplies a ready and effec tive answer to all manner of hu man problems. Yet a freedom oriented individual may fall vic tim to similar if more subtle per suasions possessing the identical defect. For example, X dislikes his neighbor's use of the abutting property to grow begonias so he induces the county commission to adopt acomprehensi ve land .use plan which will prescribe permit ted uses and proscribe disfavored ones; yet when the neighbor com plains about X's use of his roof for a helioport, X secures a vari ance from the local planning board. Or Y, feeling charitable and concerned about the poor and the downtrodden, favors a program of food stamps to insure an adequate diet; yet, when the tax authorities assess the cost of welfare upon the creators of value, Y declines to pay his share and encourages the state to impose a staggered or graduated tax which will lay the burden unequally upon the popu lace so that Y defrays a lesser por tion of the cost.

Or Z, aware of the value of edu cation, may apply compulsory at tendance laws to unwilling learners yet refuse to accept the result of an expensive institution which in stills neither intellectual nor moral values in a large number of those in attendance. In· each instance propounded (and each situation merely repre sents a slight variation of a repe titious theme) ends which may receive the label "good" in the subjective value structure of many persons falter on the shoals of the means employed to reach those goals. In each instance, proponents of a subject seize power and em ploy aggressive means to compel others to comply with their dream, unaware that dreams· differ as much as human beings. In· each instance, the seeker sees his course of conduct produce disagreeable results which· he promptly reas signs to others by the use of duress and coercion. A wholly distinct situation par taking of the same evil occurs 46 THE FREEMAN January when B and Senter into a contract wherein S sells B goods on credit.

If B over-extends himself and mortgages his future, that repre sents his choice for which he should remain responsible. Yet in the current state of affairs, many purchasers and borrowers exhibit an increasingly cavalier attitude toward debt - the result of vol untary contractual relationships - and try to S'hift the burden to the lender or seller by means of default or to the consuming pub lic by means of moratoria and like restraints. Misuses of Power One must distinguish between two discrete misuses of power. The more readily apparent misapplica tion of force stems from the act of directing others to perform or to refrain from certain conduct: blue laws, usury rules, zoning or dinances all partake of this sin. The more hidden transgression lies in the use of law to disperse or avoid the risk of loss or the cost of a poor decision made with or without the aid of law. Govern mental payments to Penn Central and Lockheed, bankruptcy norms, and compulsory automobile insur ance reek of this offense.

Moreover, one should perceive that mankind does not restrict this particular propensity to the use of law or to the field of economic activity. Psychologists and psy chiatrists recognize the habit of many patients to layoff their prob lems upon others or to attribute misfortune to God, chance or the position of the stars, instead of their own poor choice. Almost everyone has seen a fellow who moans at his fate in this manner, imputing his fortuity to a con spiracy rather than the natural outgrowth of human action. At the core, the attribute forms a moral and personal problem. Freedom and responsibility truly represent two facets of the identi cal aspect of truth. Freedom pos tulates a belief that no person should initiate coercion against another, and that the use of force receives justification only to pro .. tect persons from loss of life, liberty and property caused by coercive or fraudulent means, and to adjudicate disputes which the parties cannot resolve on their own. Responsibility stands on the tenet that each citizen must ac cept the consequences of such un fettered human action without em ploying the law to ameliorate the results of his free choice. Arising from the same base, the two con cepts exhibit compatibility and an inherent relationship: A free man chooses and a responsible man ac cepts the results of his choice with out infringing upon the equivalent freedom of others.

1976 INDIVIDUAL RESPONSIBILITY 47 The Rationale for Responsibility Two separate lines of reasoning undergird the doctrine of individ ual responsibility outlined above, similar to the rationale supporting the concept of libertyJ First, recur to a pragmatic rea son: A man makes· better choices if he bears the ultimate responsi bility for his actions. He will tend to think through the problem, ap ply his best judgmental, experien tial and analytical tools, and reach the most reasoned result in har mony with his personal dynamic scale of preferences. Individual responsibility does not mean that man will not make mistakes; noth ing can entirely eliminate that problem, for to do so would amount to a reconstruction of human na ture. Individual responsibility does mean that men, singly and as a whole, will make fewer and less tragic mistakes and will more nearly reach their personal aspira tions.

Again, an example may prove instructive. History demonstrates that men adduce better choices for their largess if they maintain personal accountability for choos ing the objects of their charities. Almost all men betray the very human (natural) trait of sym pathy with those less blessed with 1 See Foley, Ridgway K., Jr., "A Ra tionale for Liberty", 23 Freeman 222-229 (April, 1973). material things. Pragmatically, both the giver and the recipient of gifts will receive a greater benefit if each remains wholly responsible for the donation than if some coercive intermediary in tervenes and designates not only donor and donee but also the amount, terms and conditions of the transfer. The prevalence of welfare abuses and the failure of the food stamp program lend poign ant testimony to this fact. Indi vidual initiative leaves the giver with a warm feeling of having helped another and the legatee with the pride which suffers no demeaning from the status of a public charge. Coerced gifting be queaths a residue of distaste on the part of each partici pan t, a claim of "right" by the receiver and a feeling of being oppressed by the donor. 2 Second, a distinct moral reason separately and wholly justifies the practice of individual responsi bility. Insofar as individual re sponsibility requires the actor to accept and live with the ramifica tions of his choice and not employ legal process to coercively shift the results to another person or group, justice and morality sup port the proposition. The san1e fundamental moral principle ap:! See Foley, Ridgway K., Jr., "Wel fare as a Right", 23 Freeman 663-671 (Nov., 1973).

48 THE FREEMAN January plies here as it does in any in stance where mankind rejects the suggestion that "rnight makes righL"3 Reduced to an a priori declaration, fundamel1talmorality condemns the initiation of force against another who persists only in minding his own business and going about his pursuits in a non aggressive way. Furthermore, a collateral propo sition of moral suasion justifies individual responsibility. even on those occasions when the actor seeks to divert the effects of his decision by nonjuraL means. If choice-making ability distin guishes mankind from other in.:. habitants, then it rationally fol lows that choice means nothing without a concomitant responsi bility for· that choice. If choosing descends into meaninglessness, then the ability to choose does not mark the actor ina different fash ion from other creatures. There fore, man must accept the effects of his causal action and cannot escape responsibility by importun ing, deception, disregard or any other means. Whether one posits the primacy of choice or deduces it from human nature or basic reality, the result remains identi cal.

In addition to the unassailable ~ See Foley, Ridg'way K., Jr., "You Can't Sell Freedom To a Starving Man" (Unpublished Manuscript). pragmatic and moral reasons dis cussed, a third support appears for many analysts. A believer in uni versal justice, whether based on religious or natural theory, must necessarily propound a belief in the essential orderliness of the universe.· Things . work in a repe titive pattern; cause-and-effect flow through the unseen mechan ism. Postulate an orderly nature of things and it requires but a small step to subsume a retribu~ tive form of justice where events finally come to rest at the feet of the doer: "As ye sow, so shall ye reap." Ultimately, those who con tribute to the fires of a raging inflation by their vote, by their deed,or by their theories· are bound to suffer the effect of the necessary cataclysm. Such a theory of natural justice necessarily im poses the normative rule that man cannot avoid the consequences of his acts ;he may defer the effect of bad choice A by a series of other poor decisions, but he will ulti mately pay the piper in regard to A.

The Misdeeds of Enterprise Responsibility One cannot adequately investi gate the doctrine of individual re sponsibility without a cursory ex amination of two related subjects: corporate and government respon sibility.

1976 INDIVIDUAL RESPONSIBILITY 49 Corporate responsibility relates to, the extent to whiC'h corporate enterprises bear an obligation for entrepreneurial action. By their very legal structure, corporations and limited partnerships render the investing entrepreneur only liable to a limited amount, gen erally the total of his investment or subscription. The justification for this special privilege rests in part upon the policy determination that venture capital cannot be pooled in sufficient amounts with out the protection of limited lia bility, .and· in part upon the con sensual or implied contractual basis that all who deal with such a business recognize, and. consent to, the limitation of liability. The former policy reason prob ably represents a historical fact although not a necessary one. One could achieve a similar limitation of liability by the judious use of insurance (written in an associa tion rather than in the corporate form) without the inconsistency bred into the law by corporate en terprise. The latter consensual rea son supplies a simplistic jllstifica tion which proceeds upon the as sumption that all men kno\v the law and assent thereto, an assump tion probably unjustified in this or any other state. Each year liter ally thousands of good faith credi tors receive naught for their goods, services, ideas or money when a. limited liability venture comes a cropper, while the princi pal owners of that enterprise re main insulated behind the corpor ate form, enjoying property pro tected from attachment for judg ment debts. In such a manner, the owners shift the effects of their actions to other persons and shirk individual responsibility.

Social Responsibility of Business Enterpr;s~ In other ways, corporations oc cupy a similar position to that of individual actors. Causal connec tion governs group acts as well as personal conduct. Shifting respon sibility and spreading of risk oc cupy considerable managerial time and effort. Postponement of con sequences, rather than total avoid ance, affects both the group and the person. Currently, some \vould advocate a concept of "social responsibility of business," implying that the business enterprise possesses some greater obligation to the commun ity beyond the sale of goods, serv ices and ideas. While such a notion merits separate treatment, suffice it to say that the sole business of business is business, to produce the best possible goods, services and ideas at the lowest possible cost and the greatest possible profit. Business enterprises owe no social responsibility outside of 50 THE FREEMAN January the common duty to refrain from the initiation of force and fraud and abiding by standard dispute settling rules.

Perhaps corporations do possess the tools to make better decisions and fewer mistakes within the perimeters of their actions. Cor porate managers and directors often own substantial expertise in their chosen field and devote a large portion of their time to anal ysis and solution of business prob lems. Often several individuals pool their efforts and talents to the answer of a particularly difficult problem and the making of a par ticularly trying choice. Yet, in final analysis, corporation deci sions are personal decisions rend ered by the individual officers and directors, and the resultant choices achieve no higher plane than the best that these finite men have to offer. The Miasma of Government Responsibility One manifestation of group re sponsibility affects both corporate and state enterprises in common, although more apparent at the lat ter level: the readiness of the in dividuals involved to evade or at tempt to shun individual responsi bility for enterprise acts. Devoid of its outer garb, this feature merely forms another facet of the individual tendency to decline acceptance for mistaken or mis guided choices.

Individuals acting in a corporate or state capacity owe precisely the same moral obligation for the con sequences of their enterprise ac tions as they do for personal con duct. One cannot repudiate respon sibility by the artifice or device of membership in the United States Army or United States Steel Cor poration. The law perverted per mits individuals to postpone effects of enterprise acts but human law cannot overcome and obviate the natural course of events. Ultimate responsibility remains and finally rests upon the back of the indi vidual decision-maker. Governmental servants and offi cials owe an even more stringent duty to make proper choices since they deal with the coercive powers of the state. It requires little in sight to recognize that one who seizes or utilizes power should do so fairly and under restraint lest that power be abused. The deci sion of otherwise insoluble disputes and the protection of life and lib erty from fraud and force repre sent an awesome task in any view; those chosen to perform these state functions must not only ac cept ultimate personal responsi bility for their activities but also exercise the highest degree of prudence a'nd foresight in handling the entrusted affairs of state.

1976 INDIVIDUAL RESPONSIBILITY 51 To the extent that the state ex ceeds the limits of its appropriate functions, the individual officials cannot escape their personal re sponsibility for their role in such action. Acceptance of the premise that restrictive state action amounts to immorality leads to the inevitable 'conclusion that the state servant bears the final obligation for that immoral conduct. After all, neither a corporation nor a government can act; artificial en tities perform only by means of individuals functioning in their stead. Both corporate and governmen tal enterprises tend to prove the natural law that one takes less care with the lives, liberties and properties of others than he does with his own. If Congressmen had to man machine guns, wars would end quickly. If Presidents had to pay the bills for housing and feed ing those unwilling to work, the budget would balance. If judges had to live next door to suspects on bail, less criminal relapse would mar the community. One can hard ly apply the term "responsible" to With You and Me governmental action where deficit spending in a year reaches $44, or $60, or $100 billions (depending on who provides the estimate), where the resulting inflation chips gaping holes in the buying power of the measure of exchange, and where taxes absorb 40% or more of the national product. Corporate officers at least often own a sub stantial interest in their enterprise and thus suffer the effects of their conduct in some regard; state offi cials normally achieve strict in sulation, if not immunity, from the consequences of their conduct since their state actions neces sarily harmonize with their own subjective values.

True fJ;eedom cannot exist in the absence of individual responsibil ity. Individual responsibility, whethe'r exercised on one's own behalf or in the employ of a volun tary or state organization, re quires the actor to accept the con sequences of his conduct without using juridical rules to shunt the natural effects unto another, un willing party. I) IDEAS ON LIBERTY FREEDOM RESTS, and always will, on individual responsibility, in dividual integrity, individual effort, individual courage, and indi vidual religious faith. It does not rest in Washington. It rests with you and me. ED LIPSCOMB JAMES E. McADOO of income their previous planning provided. It is a fair guess that very few of those who are now de pendent on the fruits of their early planning could have envisioned how little their money would buy. An income figure which might have seemed abundant twenty years ago might today be less than adequate.