On Leviathan and Public Reason: A Reply to Chartier

So I've been having a discussion with Dr. Chartier over at the LiberaLaw blog about the role of the sovereign as a source of public reason in Hobbes' political philosophy, in response to an interesting post in which he discussed how a Hobbesian account might be consistent with market anarchism. Because I am a horribly verbose person, I wrote more in response to Dr. Chartier's last comments than the comments system would allow, and I am therefore posting my thoughts here. Hopefully this is of some interest to someone!

In order to understand this, it would probably be a good idea to read Dr. Chartier's post and the comments that have already been published on it, particularly this one (since this post is directly a response to that comment).

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If I understand correctly, Hobbes sees the sovereign as existing to settle conflicts. In Dr. Chartier's post and comments, he's seemed to somewhat equated this to a notion of "preserving civil peace." And to an extent, this makes sense. With property disputes, for example, what the sovereign is being asked to do is to merely uphold some exogenous system of justice: the sovereign is just acting to make sure we maintain a peaceful environment, where we get our idea of "civil peace" from somewhere else.

But to Hobbes, this will treat too much as settled. He would likely want to say that we may disagree on what it is that even constitutes "civil peace." One person might have a desire to see all homosexuals put to death. Another person might have a desire to see his homosexual compatriots protected from this fate, and is willing to fight to defend them. Another person might want to see the bigoted guy put in the stockades for being such a jerk. Hobbes thinks that this kind of conflict is a serious problem. In the absence of any external norms and institutions to tell us who is right and who will get their way, and in the absence of any enforceable agreement between them, Hobbes thinks that the three people in our story will have no reasonable choice but to prepare for violence. So long as each relies on his private reason, they will be condemned to a state of war.

The liberal solution to this problem is the one which gives us the notion of "civil peace" that I imagine Dr. Chartier has in mind: this approach typically seeks to independently define some conception of right-of-way, so that we have a way of adjudicating disputes according to these independent norms. But Hobbes doesn't have this machinery in his system. He could say that there may be no standard of right-of-way that each of the three people in our story would accept if each relied on his private reason. The system of rights and duties that will appeal to the bigot will be seen as oppressive by the defender of the homosexuals, and vice versa. And even if they could strike an agreement, there's no guarantee that some new issue won't arise in the future to drive them apart. The only way for them to avoid the state of war, Hobbes thinks, would be to give some third party the authority to choose what constitutes the appropriate conception of "civil peace" that will underpin their society.

The problem with the limits Dr. Chartier seems to want to place on the sovereign, I think, is that it seems to be in conflict with Hobbes' desire that the sovereign have the authority to decide basically everything about how a society is going to function. If this authority is denied in areas where there could potentially be legitimate disagreements between people, then Hobbes is going to worry that conflicts will arise, where each side believes that his own private reasons are the right reasons. Hobbes wants to eliminate this possibility by giving the sovereign absolute authority to decide what's right and fair.

But all of this is drilling way further into Hobbes than I think Dr. Chartier was seeking to do. If all he wants to take from Hobbes is the idea that a government is necessary to adjudicate disputes, then none of these issues are going to be a big deal. In this case it seems to me that he's actually moving away from the substance of Hobbes' argument and actually moving closer to the sort of thing Locke was saying in chapter 9 of the Second Treatise. As Locke writes:

Thus mankind, notwithstanding all the privileges of the state of nature, being but in an ill condition, while they remain in it, are quickly driven into society. Hence it comes to pass, that we seldom find any number of men live any time together in this state. The inconveniencies that they are therein exposed to, by the irregular and uncertain exercise of the power every man has of punishing the transgressions of others, make them take sanctuary under the established laws of government, and therein seek the preservation of their property. It is this makes them so willingly give up every one his single power of punishing, to be exercised by such alone, as shall be appointed to it amongst them; and by such rules as the community, or those authorized by them to that purpose, shall agree on. And in this we have the original right and rise of both the legislative and executive power, as well as of the governments and societies themselves.

If Dr. Chartier is considering this sort of approach to thinking about government, then yes: I agree that it don't establish a whole lot about exactly what a government is supposed to do or how big it needs to be. As long as it addresses the "inconveniencies" of the state of nature, any system of government will seem to do, and insofar as a stateless, decentralized, or pluralistic system can address them, that would be fine too. But this shouldn't surprise us: this Lockean position is what underpins a great deal of the modern libertarian tradition, including Rothbard's market anarchism and Nozick's decentralized, pluralistic vision of Utopia. I should add, though, that it also shouldn't surprise us to find that we're led to conclusions very different from those that Hobbes professed.

The Yin and the Yang: An Approach to Publicizing Broadly Libertarian Ideas

I had an idea today for a new way that one might go about spreading some of our (well, at least my) ideas to the public. The idea is to use the familiar imagine of the Taijitu -- the yin yang symbol -- to offer a nuanced articulation of difficult concepts that sometimes end up being articulated sloppily with other approaches. The concept of yin yang is that mutually opposing forces can be seen as interconnected and even as interdependent, so that each gives form and substance to the other. I can immediately think of two examples of how this approach would be useful:

Unity and Separateness

On one hand, we need unity in order to have things like property rights, right-of-way conventions, procedural rules, and arguably collectivized programs where burden-sharing is important to us. On the other hand, we need separateness in order to plan and lead our own separate lives according to our own values and goals. But sometimes our best successes as communities come from living and letting live, and sometimes our best successes as individuals come from putting aside our own interests and being good neighbors. When we understand unity in the light of separateness, and separateness in the light of unity, we can achieve each more fully than we could if we pursued either on its own.

Knowledge and Ignorance

We know a tremendous amount about the world in which we live, and our knowledge can enable us to do wonderful things. But one of the most important things that we know is just how ignorant we are. A little bit of knowledge can be an extremely dangerous thing, and sometimes the wisest action is to admit that we not know for sure what would be best. Sometimes when we allow for an open-ended result, we find out that we end up with something better than we would have been able to design ourselves.

These are just two examples, and both are clearly in need of development. But I'm finding this way of thinking to be very satisfying and elegant; you pose two seemingly conflicting values against each other and show how each helps give the other its shape. And I think that as a vehicle for getting people to think about complicated philosophical issues that are integral to the advancement of liberty (like the knowledge problem, reasonable pluralism, the separateness of persons, the nirvana fallacy, etc.), it might be helpful to use this tool to explain things in a way that can resonate with anyone. Plus, I think it opens the door for a libertarianism or liberalism that is softer, more understanding, and more reflective than the kinds of views that so often come from our camp. Leave it to the notoriously wishy-washy, hand-wavy guy to come up with something like this...but I like it.

Might Our Moral Views Underdetermine the Demands of Justice?

Update: It appears that I've misrepresented Dr. Long's position in this post. With due apologies, please see the comments section for his clarification.

I

Congratulations are due to Jerry Gaus, my professor-to-be at Arizona, for winning the Gregory Kavka Prize in Political Philosophy for his essay, "On Justifying the Rights of the Moderns: a Case of Old Wine in New Bottles." In my perpetual state of playing catch-up, I'm only now reading the essay. And so far, I'm enjoying it a lot.

In this post, I wanted to hammer out some thoughts on a point that Dr. Gaus raises about reasonable pluralism about morality and justice. This point particularly caught my attention because of a conversation that I had with Roderick Long last summer about this exact subject, where Dr. Long expressed reservations about the idea that people could reasonably disagree about the demands of justice. If I recall correctly, he fully acknowledged that individuals disagree about what constitutes a good life or what values are worthy of pursuing, and that there is often no impartial way to proclaim one person's views to be "correct" or "better" than others' conflicting views. But I recall Dr. Long being skeptical of the idea that this sort of reasonable pluralism in views could extend to the realm of morality. He contended that where it can be perfectly reasonable to disagree about what constitutes "the good life," it is not reasonable to disagree about how others ought to be treated.

II

So it was with this backdrop that I wanted to discuss Dr. Gaus' arguments in "On Justifying the Rights of the Moderns." On page 94 of his essay, Gaus puts aside the idea that we can reasonably disagree on the kinds of normative considerations that are important in justifying moral claims, in order to focus on problems that arise when agree about these things. He points out, on pages 94-95, that even if we agree on what is morally relevant, we may still disagree on the relative importance of these different considerations.

If I understand him correctly, we might illustrate Gaus' point with the example I used in my essay on the rich victim problem. In that essay, I set up a scenario in which a poor guy, Jerry, needed to make a phone call in order to secure a life-changing job, but his own phone had been disabled by a fallen branch. The only way for him to get the job would be to break into his neighbor Lucy's house by smashing one of the windows in order to use her phone. But in the example, Lucy was incredibly wealthy, and while her windows were not of enormous importance to her, they were so expensive that Jerry would never be able to afford to replace them, even with his new job. The question I raised was whether Jerry would be justified in breaking in.

And in the paper, I argued that he would be. Jerry's need for the job, I took it, was of moral importance, as was Lucy's legitimate claim to her property. But I suggested that because it was critically important to Jerry to break the window, and because it would harm Lucy very little if he did so, that it would be morally permissible for Jerry to break in. But since writing that, I've spoken to a lot of people who disagree. Jerry ought not to break into Lucy's house, according to these people, even in his situation. Maybe, some of them concede, he would be justified in doing so to save his life or preserve some basic functioning, but in my story Jerry would have been fine if he hadn't been able to get the job, and so he had insufficient justification to break in.

I'll immediately point out that my argument in that paper is nowhere near as developed as it would need to be for me to go to battle on this point. I don't, for example, talk about what sort of compensation Jerry would owe (if any) even if he couldn't pay the full compensation. And that seems pretty important. But for our purposes, it'll only be important to note that in my paper, I posited a sort of "priority principle" about how moral claims should relate to each other, and other people disagreed with that priority principle even though they agreed on a basic level with my attribution of moral importance of both Jerry's need and Lucy's property claims.

This raises the possibility, which I interpret Dr. Gaus to be discussing in his paper, that perhaps even if we agree on what kinds of things have normative significance, there can still be reasonable pluralism about morality if we can reasonably disagree on priority principles.

III

But it seems like one would immediately want to say, "Well yes, there are disagreements about priority principles. But no one is denying it. No one is saying that there is no pluralism about morality; the issue would be whether or not that pluralism is reasonable. Someone like Dr. Long (if he wanted to maintain the position that you've attributed to him) would want to say that when people genuinely disagree about priority principles, it's because at least one of them is wrong." Accordingly, I'll need to provide some reason for thinking that pluralism about priority principles can be reasonable in order to settle this issue.

And here it is: I take it that the objects of our moral concern are seen as being valuable in themselves (otherwise, they would not directly be the objects of our moral concern; they would be means towards something else or "proxies" for the true objects of our moral concern). And yet, I take it that there is no objective or impartial way to determine just how valuable an end-in-itself is that would allow us to objectively or impartially compare its moral significance with other ends-in-themselves with any manner of precision (I don't claim that we can never make impartial inter-value comparisons, but only that there will almost necessarily be hazy areas -- the existence of reasonable pluralism does not entail that all pluralism is reasonable). If this is all true, then at least some reasonable pluralism about priority principles seems inevitable.

A Little Bit of Blasphemy: A Reply to Onorati

Over at the FreedomWorks blog, my good friend Joseph Onorati wrote a post in condemnation of protectionism and in favor of free trade. As you can guess, I am in general agreement with Joseph on this one. But because I am a wicked troll, I had no choice but to post a scathing counterargument on the blog. I figured it might be of interest to some of you, and I'd love to help draw attention to Joseph's work and the FreedomWorks site. So check it out!

I also wanted to offer a few counterarguments to the counterargument I presented on the FreedomWorks blog in case anyone suddenly feels uncomfortable about free trade in light of something I said there (I wouldn't want to actually make someone advocate protectionism, of course; I was just poking fun at Joseph!). So here are, as I see them, the three points which together make liberalizing trade a coherent position to advocate for in national policy debates:

1) The particular values which we might seek to promote through protectionist policies are not universally shared across the country. In fact, it's not even close. A respectful society would not impose coercive policies which are inescapably designed in a way that impoverishes the general populous in order to promote goals which are not necessarily supported by those who will be affected.

2) As Joe correctly noted, the free market -- with its power to spontaneously coordinate the pursuit of constantly changing and often competing ends without the direction of a conscious designer -- is the most powerful mechanism we know of for creating wealth and prosperity. Nothing else even comes close. So by allowing the market to function, we can be relatively confident that people will be generally better off than they will be under more consciously coordinated regimes which aim to mold society to a particular static vision.

3) Centralized decision-makers are ill-suited to making effective protectionist policies. They are subject to lobbying pressure and a set of incentives which often lead them to make decisions for reasons other than their beliefs about what would be in the best interests of the people, and even when they are acting on good intentions, they often lack the knowledge and understanding that would be necessary to carry out their plans with any degree of precision and effectiveness.

For those three reasons (and not only one of them by itself), I think it's reasonable to support free markets in national-level policy discussions. To be clear, I don't always think that's the right call for more localized and tightly unified policy-making groups. But where policies are going to be imposed in broad strokes on a country of over 300 million people, I can't bring myself to support putting any power of that sort in the hands of any bureaucrat or politician, no matter how much they want the best for the country.

Who Said Anything About Legitimacy?: A Long-Winded Reply to Brainpolice and Michael

Over on the Polycentric Order blog, Brainpolice has written up a response to my post rejecting the simple argument that taxation is theft. In the comments section of that earlier post, a fellow identifying himself as "Michaek" (which I assume to be a typo-ed "Michael") also left some remarks in disagreement with my arguments. I wanted to offer some thoughts on what both had to say, and will do so in this post. There are a number of themes running through the commenters' responses, and I will do my best to isolate them and address them separately. They are: a) There is a double standard problem in supposing that government officials can justify doing things which no ordinary person would be justified in doing; b) My goal is to offer a blanket justification for the State; c) I do not offer a coherent account of why a government should have any claim to its territory; and d) By arguing that the government has some claim to its territory, I am presupposing that the government is a legitimate institution without offering a compelling reason for thinking this.

I. There is a double standard problem in supposing that government officials can justify doing things which no ordinary person would be justified in doing

Brainpolice started his reply with the idea that our commonsense moral beliefs would lead us to condemn many of the kinds of things done by state agents if they were done by ordinary citizens. But as collective decision making power is centralized and expanded, people come to embrace a double standard between themselves and state officials. This leads them to condone actions on the part of state officials which they would decry if performed by ordinary citizens. Brainpolice therefore explains that the libertarian position is that state officials do not gain new rights as a result of their positions, and that if these rights are to be ascribed to them, the burden of proof should be on those who are invoking new rights, and not on those who simply insist that our commonsense ethical beliefs be universally applied. He writes:

...given certain nearly universal social norms (such as the shunning of murder, theft, arson, rape and kidnapping), if one wants to be consistant with those norms then one must aknowledge the degree to which the state contradicts those norms...

Now, one possible response is discussed by Lester Hunt in his essay, "Why the State Needs to be Justified":

Of course, someone might say, there is a sense in which our intuitive, pre-theoretical use of our moral ideas clashes with our intuitive, pre-theoretical application of our political ideas. When I think about myself, my next-door neighbor, or my uncle Harry, I think that, whenever any one of us promotes his or her goals by using coercion against someone who is not bothering anybody, we are doing wrong. When I think about a tax collector or an immigration official, I think pre-reflectively that they are right to go after the tax-evader and the Mexican immigrant, even though the tax evader and the Mexican are not bothering anybody. I think of the immigration official as if they were on a different plane from me, from my neighbor, from my uncle Harry. But why isn’t each way of thinking perfectly okay, on its own plane?

Like Hunt, I do not accept this kind of argument. So up front, here it is: I acknowledge that in many instances, the agents of the state do things which are completely impermissible by any coherent moral standard. The fact that they often get a pass simply because of their position is inexcusable. I don't think anything I said in my earlier post suggests that I believe that government officials deserve different kinds of treatment, but it bears repeating that moral standards are based on treating people the way that they deserve, and they don't deserve anything less when the person on the other end is wearing a uniform.

II. My goal is to provide a blanket justification for the State

This next point appears in both commenters' counterarguments, and focuses on the idea that I'm somehow trying to offer a blanket justification for "the State" or "a State." But there's an important point to be made here: I'm not trying to "prove" that any State is legitimate. What I'm saying is that in communities where the central decision-making apparatus is widely embraced, and where libertarians have moved into those communities by their own volition, it's not clear that they have a very strong case to back up their claims that they are being robbed through taxes.

Things would be very different, I think, if the members of a community generally did not approve of its government apparatus, and wanted to dissolve it. In such a situation, I think it would be reasonable for the community to ask for separation from the overarching State system, and I think that it would be appropriate for the State to grant that separation. I think it's incompatible with the attitude of respect for others' individuality and a full recognition of the fact of reasonable pluralism to seek to control of groups of others who do not want to be associated with you. In the same way, it would be inappropriate for the State to want to follow an individual out into the forest and to demand continued participation in the face of dissent, as I suggested in my original post.

But as Brainpolice points out:

...the "love it or leave it" argument is an epic fail because it presumes the legitimacy of the territorial dominion to begin with. It does nothing to explain why the state has such an arbitrary claim and why the individual must leave the state's dominion rather than the state leaving the individual's dominion.

If I think that the State should allow communities to secede without leaving their established locations, and that the justification for this applies equally to individuals, then it would remain to be explained why I don't think that individuals should be able to secede from their communities without leaving their existing land property. And on this I concede, if an individual wanted to secede from her community, it would be inappropriate for the community to demand that she stay involved, or leave the town. However, it's important to acknowledge what this would entail. The community, I think, would be perfectly justified in insisting that their new territorial boundaries be respected, and that the seceding individual confine herself to her own property. So if someone wanted to separate from the community and to live on her own without leaving her land, the community would ostensibly be justified in confining her there. It seems much more reasonable to think that a person would be best suited by simply leaving, and trading her land to someone who would like to be a part of the community.

III. I do not offer any coherent account of why a government should have any claim to its territory

But on what basis can centrally ordered communities justify their collectivistic existences in the first place? Brainpolice argues that:

...one must put foreward at least something resembling a theory or meta-theory of property in order to examine and explain the state's territorial claim and the individual's claim, and one must put foreward a theory of how states form (and not just some mythical fantasy). How did the state really acquire all this land, or didn't it? How would and individual or group manage to acquire an entire country? Endless absurdities arise in the attempt to legitimize this territorial claim.

Is it so absurd, though, to suppose that in an incorporated town or city which was established by charter (as, it is my impression, most towns and cities are), and which is populated by people who freely acknowledge their membership in their community, that the method of governance explicitly set out in the charter by which the community was established is an acceptable way for the community to administrate its affairs? It sounds like what Brainpolice is looking for is a theory of legitimate original appropriation which would allow a town or city to be considered the just holder of its territory. But as others have pointed out, there is no bulletproof theory of legitimate original appropriation for individuals, much less groups. The specific form taken by a society's institutions ultimately must be defined by the way that people choose to live together in a given community or region. Property rights give us a tool for determining who gets the right of way with regard to the use of certain resources. They allow us to say, "This belongs to me, so leave it alone." But they also allow us to say, "This is ours, and this is how it is to be used." As David Schmidtz writes in his essay, "The Institution of Property":

Private property...is the preeminent vehicle for turning negative sum commons into positive sum property regimes. However, it is not the only way. Evidently, it is not always the best way, either. Public property is ubiquitous, and it is not only rapacious governments and mad ideologues who create it. Sometimes it evolves spontaneously as a response to real problems, enabling people to remove a resource from an unregulated commons and collectively take responsibility for its management.

It seems reasonable to me that in the case of a chartered town or city, there is a pretty clear social convention which says that when the town or city was incorporated by its original settlers, the territory on which the settlement existed was to be administered as a municipality. And that's how the people who have lived in that territory ever since have chosen to live together. Surely, as I alluded to in my earlier post, there are good reasons to question whether this is really a wise way to do things. But that doesn't eliminate the fact that it's the dominant form of social organization in our present society. And once a set of institutions becomes generally accepted as the way things are done, then that's just that. There's no mysterious "social contract," to be sure, but rather a strong and widely accepted "social convention,"established by the community's first settlers and passed down to its current constituents. It's much the same principle that says that even though in America, a lot of the land people currently live on was violently expropriated from the Native Americans, today's society is governed by a set of conventions which recognize the current holders of that land as having a rightful claim to it, and that's the end of the discussion. It's just the way things are done.

IV. By arguing that the government has some claim to its territory, I am presupposing that the government is a legitimate institution without offering a compelling reason for thinking this

It's here that Michael's main objection comes to the fore:

The way I see it, the "love it or leave it" argument is circular: if we're trying to prove the legitimacy of the State, we cannot simply assume it to be legitimate. In asserting that libertarians must leave if they don't like the government, statists are assuming that the State's claim to territory is legitimate; but this is exactly what they have to prove!

So why am I starting with the idea that governments are legitimate institutions? Precisely because most people think that they are. I ask my readers to keep in mind that I'm a libertarian, and certainly don't think that the way that most societies are run is appropriate. But a whole lot of people out there think that they live in a perfectly healthy society, and that their existing institutions are just fine. Why, then, would we want to fundamentally disturb their lives by forcing them to swallow our particular brand of freedom? Ultimately, the sense in which someone is free is at least partly impacted by what he is free to do. And for a lot of people, the best use of their freedom would be to get on with their lives and not have to deal with the radical social change that would be precipitated by the dissolution of the state. To the extent that people are generally happy with the way things are, the status quo is an acceptable way to run things.

It's when people insist that everyone live the way that they want to live that I start to object. But that goes both ways! Libertarians who insist that loyal citizens must disband their governments are in a lot of ways just as bad as the statists to whom they're responding. Statists should feel no need to control the way that libertarians want to live their lives, and so if libertarians want to go establish a community somewhere according to their own ideals, that should be totally fine -- we shouldn't have to move to Somalia to do it. But libertarians also shouldn't want to control the way that statists live their lives. If the statists want to have centrally organized communities, where rents are collected in order to sponsor public programs, they should be able to do that.

So hopefully this extremely lengthy response has been helpful and thought-provoking. If not, sorry for putting you through it. I look forward to any further comments anyone may have!

If You Don't Like It, Should You Git Out?: A Reply to Fedako

Update: Please see the bottom of this post for further discussion

In his article, "Ethics and the Holidays," Jim Fedako makes a point that should be familiar to any libertarian worth her salt:

...when I advocate for the state to force my neighbor to pay for my desires, I am advocating for nothing less than theft. While I am not toting the gun, my well-armed partner, the state, is.

We've all heard it before, and we'll undoubtedly hear it again. But there's something about the whole "Taxation is theft!" thing that makes me uneasy. I mean, don't get me wrong: I think there's something very fishy about the way that societies around the world are presently organized, and I think that if we really sat down and asked ourselves how we really wanted to live with each other, we'd come up with an answer that would look a lot different than what we currently have. But there's something about simple "proofs" of our current order's evil nature that makes me uncomfortable. So in this post, I want to explore the idea that maybe things aren't as simple as the "Taxation is theft!" crowd seems to believe. I've touched on this issue before in this post and this post, but I wanted to give it a little more thorough a treatment here so I can either be done thinking about it or give myself reason to believe that I don't know what I'm talking about.

First, why might somebody think that taxation is theft? The answer is pretty simple. It's pretty safe bet that at no point in the past did any government official ever do anything productive with your land property on behalf of the government. It's also pretty certain that when your land property was incorporated into the United States government's territory, no one came over to the then-owner and said, "Hey there; would you like to sign your land over to the new State?" (That is, assuming that anyone even owned that land at the time.) The same thing is probably true of the land on which your workplace is located, and the land on which your firm's customers are located, and the land on which your suppliers are located, and so on and so forth. Aside from its declaration of sovereignty over all of that land, some might note that there is basically nothing that the government has done to generate any sort of claim to ownership of any of it.

And yet, when you get your pay check from work, you and your employer are expected to set aside a portion of your earnings to be sent to your overlords. The same thing happens when you buy something from someone else, when someone gives something to you, when you sell an ownership stake in a company, etc. If you refuse to do these things, you'll hear about it -- politely at first, and then a little more firmly, and so on until the next thing you know, you're sitting in jail for tax evasion and your relatives are ashamed that you would dare to be such a corrupt and unsavory fellow. On what grounds? Because the government claims the role of sovereign, and you'd better pay up. That sounds a lot like theft.

But we libertarians have grown accustomed to a pretty standard response: If you don't like it, then you should giiiit out! There are a number of replies to this assertion, but I want to look a little more closely at the intuition behind it, and ask, if I don't like it, should I really git out?

The first thing to notice about the "If you don't like it, you should git out!" line of thinking is that it seems to imply that you are voluntarily "in" some sort of group, and you are free to leave if you want. Usually, when we are told to git out for not liking something, it's because we're part of some organization or collection of people who are comfortable with the terms of their association, and don't want that status quo to be upset by some dissenter in the minority. Basically, the idea is, "Well we like things just the way they are, so if you want to do something different, go do it with someone else." This is the same line of thinking that leads people to confront anarcho-capitalists with the view that "If the State is so horrible, why don't you go move to Somalia?" Thieving or not, a number of people seem quite happy with their governments, and don't want their lives fundamentally altered by some overzealous social reformer trying to ram a particular conception of freedom down their throats.

In stark contrast, the "Taxation is theft!" line of thinking is predicated on the idea that your being "in" your current set of circumstances is very much not a product of your free choice. Government, it is supposed, has been forced upon you -- you are the victim of a hostile takeover! -- and in demanding to be rid of taxes, you are simply asking to be given back what was yours in the first place.

But is this really a fair appraisal of the way things actually happened? It seems to me that there is some serious room for doubt. Most of us do not live on land that was owned by our families since the establishment of the United States (or whatever country we live in). Somewhere along the line, we or someone who came before us purchased a piece of property which had been incorporated into the State, knowing full well that in doing so, we were entering into a set of arrangements with our local, state, and federal government. Between the original settlement of the land hundreds of years ago and the time we bought it (or our parents or benefactors did), there was almost certainly some expropriation, but it typically did not happen to us (or, typically, anyone we can point a finger at). In an important sense, then, we "came to the harm."

The proponent of the "Taxation is theft!" mindset may note, however, that even if everyone "came to" their relationship with the government, it nevertheless does not have a legitimate existence; its territorial claims are almost universally rooted in tacit submission at gunpoint, and so we ought to throw off the shackles of State servitude and build our future on the basis of voluntary associations. Not only is the State an illegitimate entity, they could argue, but it is the institutionalization of the violence of the many against the few. An enlightened and reasonable society would recognize that the State is evil -- a stationary bandit -- and cut it off at the roots.

But then we remember that life isn't necessarily about living in a theoretically ideal society. Jim Fedako opens his article with a perfect illustration:

It had to be the time of year. How else can I explain it? Regardless, there I sat in an inner-city recreation center, enjoying a children's holiday program when this thought disturbed the performance: I do not mind my tax dollars paying for this.

The reality is that for most Americans, this sentiment is not a strange exception. People are proud of their local public schools, professional sports teams, and state universities, though they pay out the nose for them whether or not they ever make use of their services; they laud the highway system and electricity infrastructure that is built and maintained for them with subpar quality and at exorbitant expense; they celebrate their homeless shelters and low-income housing, even if they sometimes actually perpetuate or exacerbate the very problems they were meant to solve; they take comfort in their state-run prisons, in spite of the astronomical recidivism rate, unconscionable inmate conditions, and incredible expenses; they feel safe because they know that they are protected by their police force and military, even though the majority of people targeted by both groups are innocent of harming anyone. They don't want to live in a grand social experiment; they want to live the way that they're used to living. A case could be made for their being sheep-like in some ways, but the fact remains that if you take a sheep out of its pasture, it's still a sheep.

What's more, if asked how they would want to associate with each other if granted their freedom from the government, most would probably describe a set of social institutions very much like the ones they already know. So here's a question to consider: if most people would probably voluntarily form the kinds of communities they already live in if given the choice, are we so doctrinaire as to force them to go through the hassle of actually doing that? Can't we just let them keep the institutions they already have? If we don't like it, might it not actually be best to git out?

I think the answer would be a little more clear if gitting out were easier. As it stands, gitting out doesn't simply mean going off and finding an empty space in which to set up shop, out of the way of other groups. Let's say I moved into the forest somewhere with a few like-minded people and started up a community where we could live the way that we chose to. Presumably, that would be "gitting out" in the relevant sense. But if they wanted to, government officials could show up at the gates of my new community and demand to know when we were planning on paying taxes for all the transactions going on in our town. And heaven forbid we should start trading with the outside world!

If gitting out meant that I had to find an unoccupied space where I could live without bothering anyone, I think it's fair to say that if I live in a town where most people like their existing system of governance, then if I don't like it, I should git out. But if it meant that I would have to buy a plane ticket to Somalia, then I think it's pretty fair to cry foul. Why, the ardent libertarian asks, is it fair for the State to follow my into the forest and demand that I pay it taxes, even if I want no part in it?

And it's here that the crux of the issue comes back into focus: the "statist" would respond that it's because I live "in the State's territory." In our story, I just went out into the uninhabited forest and built a new life for myself where I was not materially impacting anyone. As a Lockean might say, I enclosed unowned land out of the commons by incorporating it into my plans and goals, where no one was using it in any appreciable sense before. So on what grounds does the State have a legitimate claim to the land I just settled?

Now, I'm generally hesitant to invoke Locke because I think that the vocabulary of the Lockean homesteading framework is often too clumsy to capture the nuances of plausible conceptions of property. But this seems like it's a paradigm case of Lockean engrossment -- that is, of someone staking a claim to a part of the commons that they cannot use for any productive end. In this case, we are implicitly saying that the State has claimed an ownership title to all of the land within a particular area, even though the agents and members of the State association have not so much as seen large swaths of that land (especially if we limit ourselves to living people associated with the State), never mind put them to productive use. As John Simmons writes in his essay "On the Territorial Rights of States":

...the spirit of Locke's theory of property is, I think, consistent with allowing that modest common holdings of land can be legitimated by the exclusive use of the commons by society's members for gathering, recreation, or shared activities, independent of any "common consent" to this that other societies may have given. What the spirit of Locke's account condemns--rightly, I think--is the familiar practice of states' declaring as the common property of their members (perhaps on the grounds of their "manifest destiny") vast and unused spaces, simply to facilitate defense or future settlement and expansion.

Of course, I don't expect any arguments to be won by appeal to something Locke or Simmons said. But I do think that it's important to consider whether it's really appropriate for those who consider themselves part of, say, the United States to want to follow dissenters into the forest and demand that they pay "their share" of taxes, or else ship off to Somalia. If a group of people didn't like the way that their society was organized, and sought to independently make a new life for themselves more in line with their own ideals, wouldn't it be sort of unbecoming to insist on having an active say in the way they did things, or to demand that they continue to contribute to the causes that we believed were important but that perhaps they rejected? Wouldn't it be sort of fair to compare something like that to the United States trying to tell Canada what to do, or demanding that its citizens pay taxes to the American government? I think the reasonable and civil thing to do would be to agree to part ways peacefully, and to seek interactions on mutually beneficial terms while keeping our hands to ourselves.

So in closing, it will be useful to wrap up what's been said so far. First, I pointed out that the "Taxation is theft!" case is kind of weak when we acknowledge that people voluntarily bought the land on which they live, and knew that it had been incorporated into the State before they bought it. I further suggested that because most people living in centrally ordered communities are perfectly happy with their social arrangements, and because destroying those arrangements would likely disrupt their lives in really undesirable ways, it might be best for dissenters to try to find their own way without demanding that everyone else change on their behalf. But finally, I argued that if people want to do that, then they should be allowed to without having the other members of the State following them and demanding that they still participate in State affairs and be subject to the State's rulings. In making these points, I hope that I have shown why the extremely simple way in which the issue of taxation was addressed in Fedako's article was inadequate, and that a more reflective stance would both acknowledge the importance and legitimacy of the centrally-funded children's program he was enjoying, and insist that while those who don't like it should git out, it's important that really we let them do that if they choose to.

Update:

Please see Brainpolice's response to this post on the Polycentric Order blog, and my reply here.

Some Stillborn Ruminations on Procedural Justice in a Pluralistic Society

Anyone who pays attention to this blog (that is to say, probably none of you) will be aware that I've been having some trouble thinking about the legitimacy of enforcing justice in light of reasonable pluralism. The problem is basically this: Even if we ignore existing disagreement about the precisely correct principles of justice (which could conceivably be the product of such principles' nonexistence), I take it that there is no objectively legitimate procedure for enforcing justice such that no one could reasonably disagree with the legitimacy of having those procedures imposed upon them. (Rothbard disagreed on page 208 of Egalitarianism as a Revolt Against Nature, but since he didn't actually offer an argument...whatever.)

In his essay, "Liberal Neutrality: A Compelling and Radical Principle," Gerald Gaus suggests that legitimizing coercion requires impartial justificatory reasons -- reasons that it would be unreasonable not to accept as justifying the act in question. I agree. But if there is reasonable pluralism about procedural justice, then it's conceivable that the mere descriptive features of a set of procedures would fail to serve as impartial justification for the imposition of those procedures on someone. That is, if I hadn't personally agreed to abide by a certain set of procedures, and I didn't accept the legitimacy of those procedures (and I were being reasonable about my disagreement), then how could others justify imposing those procedures on me? In the absence of reasonable pluralism, this problem could be avoided by designing a procedure with the "correct" features, which would impartially justify imposing the procedure on people. But if people can reasonably disagree about what would be procedurally legitimate, then it might be impossible to design a system that could be impartially imposed on people.

This leads to an obvious problem. In order to have a functioning society, it seems important that there be a way to legitimately enforce justice by imposing impartial procedures on people who do things like commit crimes or destroy other people's property. As even anarcho-capitalist thinkers allow, purely voluntary settlement of disputes will not always be up to the task of ensuring that justice is served. For example, in For A New Liberty: The Libertarian Manifesto, Murray Rothbard writes:

Even if purely voluntary arbitration is sufficient for commercial disputes...what of frankly criminal activities: the mugger, the rapist, the bank robber? In these cases, it must be admitted that ostracism would probably not be sufficient--even though it would also include, we must remember, refusal of private street owners to allow such criminals in their areas. For the criminal cases, then, courts and legal enforcement become necessary.

Rothbard's understanding of libertarian ethics is not one that I share, but the points at which I depart from Rothbard in practice are typically places where Rothbard is dogmatically opposed to using force, even when I don't think it would be disrespectful of the user of force to do so (in theory, we disagree more fundamentally, but often arrive at the same conclusions). Accordingly, if Rothbard can find a plausible solution to this problem within his more rigid ethical paradigm, it will likely satisfy my requirements as well. So what does he say?

Rothbard envisions that in a society without a centrally imposed set of procedures, individuals would ostensibly maintain a membership with a court organization to help them to settle their disputes. In the event that criminal charges were brought against an individual, the court of the plaintiff party could hold a trial, and if the defendant were found guilty, she would have the opportunity to go to her own court and ask for a second opinion. If her own voluntarily selected procedure resulted in a proclamation of innocence, the two court services could seek a third opinion from an "appeals" court. Rothbard immediately acknowledges the infinite regression he's building, and points out:

But suppose Brown [the defendant] insists on another appeals judge, and yet another? Couldn't he escape judgment by appealing ad infinitum? Obviously, in any society legal proceedings cannot continue indefinitely; there must be some cutoff point.

So basically, Rothbard's answer is, "Well yea, but don't be ridiculous." And to a point, I accept that reply, but it doesn't actually address the question we're posing here. However, even though Rothbard doesn't really solve the problem with which we're grappling, he does provide an important insight: someone who's being accused of a crime needs to have in mind some procedure for establishing his innocence; to simply refuse to participate in the justice system would be unreasonable. That Rothbard takes this for granted is telling.

But to be honest, I was going to make a point about this that I'm no longer comfortable with. So I guess I'll just leave this as it is for now, and maybe come back to the issue later once I've had time to think about it some more.

It's Worth a Shot!

So apparently the Republican Party is having an identity crisis, and a bunch of Republicans have put together a website asking for suggestions about new directions for the party. I have no illusions that this will produce any noticeable change in any direction that I would support, but this might be a pretty good opportunity to get some good ideas out into the public discourse. Accordingly, I wrote out the following suggestion, titled "Focus on decentralization and pluralism":

Republicans know that the federal government can't solve all of our problems. But this has all too often come across as a view that the problems that Democrats seek to solve are not worrisome, or do not deserve to be addressed in an organized way. Standing in opposition to humanitarianism and compassion is a sure recipe for failure.

So instead, a different way of saying the same thing is to focus on decentralization and pluralism. Basically, the idea here is that the federal government doesn't need to be the one to solve social problems, and in fact it shouldn't be. Federal planners necessarily lack specific knowledge of particular circumstances in different areas of the country, and this often hamstrings their capacity to make decisions that reflect the specific needs of different communities. And as different regions of the country are often characterized by very different values, some policies which are seen to be morally necessary in some areas might be thought to be unacceptable in other areas.

By adopting a position centered on embracing differences between cultural groups, and acknowledging difficulties faced by even the most well-meaning officials, the Republican party could stake out a clear distinction between the central planning-oriented policies of the Democratic party without discounting the humanitarian elements of those policies. In fact, because a program like the one discussed here would actually promote the Democrats' goals better than would their own policies, it seems like a win-win strategy. Further, a focus on decentralization and pluralism would embody the promotion of competition and limitation of government scope that have traditionally characterized the Republican party.

If anyone actually reads this, it would be kind of cool if a bunch of people went over to the site and voted for this suggestion. It might be an effective way of getting our ideas out to the general public, and if it doesn't work, who cares? It's worth a shot!

A Polycentrist Party?

In starting, I want to make something very clear: I am very uncomfortable with the idea of participating in electoral politics (and also, that I apologize for the poor quality of the writing in this post; it's like 1 AM). I believe that a free society will always be characterized by reasonable disagreements about even the most foundational issues, and that in most cases, the proper response to this state of affairs is to work towards peaceful coexistence rather than to attempt to find some sort of consensus or majority opinion and then impose it on the group. If this is so, then a model of governance which gets everyone together for a vote, and then imposes the results on everyone, is fundamentally flawed. This, I think, is true even of groups like the Libertarian Party, which too often seems to advocate removing important mechanisms for collective decision-making from people's lives, whether or not those individuals value those mechanisms or the outcomes that they promote, on the basis of a particular view about the appropriate role of government in the lives of citizens which many of those citizens do not support. The idea of imposing a solution on everyone is objectionable, even if the solution might foster certain elements of the kind of society I might ideally like to live in.

That being said, a few things seem worth acknowledging:

1) Most people do not question or critique the institutional framework in which they live beyond the point where these issues are debated in the realm of national politics.

2) If we can all agree that violently overthrowing the government is out of the question, the likely mechanism by which institutional change will be affected will be through national politics in one form or another.

3) If we do not participate in electoral politics, it is likely that those who will participate will continue to behave in opposition to our beliefs.

4) Our government has, in recent history, been characterized by a two-party system. But one of those parties seems like it might be falling out of favor, as a particularly collectivistic and vulgar brand of Rawlsianism has seemingly taken hold, and people are increasingly moving towards the idea that a just society includes mechanisms for supporting those who are less fortunate. (I don't mean to suggest that Rawlsianism is an unacceptable view, or that a just society would not include mechanisms for promoting the wellbeing of the least well-off; my objection is to the idea that redistribution and planning by a centralized authority is an appropriate mechanism for operationalizing these ideas.) If the Republican Party falters -- particularly if this represents an increasing appeal to the more anti-intellectual and religious groups within the party's constituency -- a vacuum will be created in national politics which could potentially be filled by a third party.

Accordingly, I think we are faced with a genuine quandary. Those of us who seek polycentric solutions to life's problems are understandably hesitant to participate in electoral politics. However, if we don't participate, our goals will be very difficult to obtain. Further, we find ourselves at a peculiar point in history where it may actually be possible to affect real change, and without having to fundamentally dismantle our core beliefs in order to be heard over the roar of the traditional two-party system.

A Polycentrist Party could exist to promote the decentralization of collective decision-making away from the federal level. This would need not happen by removing government from the lives of citizens in areas where most people thing government should be involved. Rather, the Party could focus on working with state and local governments to facilitate a transition from nationally-administered programs to more polycentric ones, and from state-administered programs to programs administered at the local level (or, of course, not administered at all).

This strategy would make sense for two core reasons. First, decentralized political action would to avoid some of the most obvious knowledge problems associated with political action (how can someone make a proper decision for 300 million people?), and would encourage competition between policy-making regimes. This would enable the party to appeal to people from a range of different perspectives -- even those who see a large role for government involvement in solving social problems -- without compromising the integrity of its position. The whole idea, after all, is that we'd be trying to promote a view which seeks to accommodate different views about the ideal form of social organization without demanding a one-size-fits-all solution.

Second, and perhaps most importantly for the kinds of people who I have in mind in writing this, a decentralized system of collective decision-making would likely be more amenable to secession and division. It seems reasonable to expect that for a town, opting out of a county program would be easier than opting out of a state program, and much easier than opting out of a national program. And for an individual, or group of individuals, opting out of a town program might actually be possible, where opting out of a national or state program seems all but impossible in today's world.

So what about it? Thoughts and criticism would be greatly appreciated here.

Open and Shut: Should Same-Sex Marriage Be Legal?

Update:

Despite the rather confident tone in which I wrote this article, I now believe that I was incorrect. Please see my followup post here.

A lot of the issues we deal with in political thinking are genuinely difficult, where no obvious answer presents itself, and controversy and disagreement are nearly inevitable. But same-sex marriage is not one of them. It is entirely inexcusable that this discussion has gone on as long as it has. Here is what I take to be the crux of the problem:

1) According to some people, marriage is a sacred institution, and its sacred status is somehow linked to homosexual couples not being allowed to be married.

2) In our country, marriage is not only a religious institution, but is a distinct legal status. The fact that this legal status is only available to heterosexual adults seems to be discriminatory to homosexuals. And institutionalized discrimination is contrary to our government's founding principles.

Oh heavens? What is to be done? Watch:

3) Our government is founded on the idea that church and state should remain separated. Because marriage is a sacred institution, the state should be barred from being involved with it in any capacity. If the government wants to accord a special legal status to cohabiting parties to certain kinds of contracts, then fine. It can't be "marriage," because that's a sacred institution. It would be like according a special status to people who have been Bar Mitzvah-ed. Not allowed.

See how easy that was? Good. Now we can all go home.

Check Out My New Article on the FEE Website!

My article on pluralism in education has been posted on FEE's website. Take a look if you get a chance!

Just a personal note: This was my first experience having one of my articles edited, in this case by Sheldon Richman, and it was really interesting to see the kinds of changes he made. You'll notice that my usual wishy-washy style is absent in the article: pretty much all of the "I think"s, "It seems to me"s and "perhaps"es have been removed. The result is, I think, more direct and to the point. But I think that some of the softness that I try to infuse into my writing is gone, with the result that I sound a little more like Bastiat than I'm used to. I don't think it's necessarily a bad thing, but it's certainly something I'll have to get used to!

Law and the Knowledge Problem, a First Glance

Update at the bottom of the post

Here's an interesting quote from Hayek's essay, "The Results of Human Action but not of Human Design," from his book, Studies in Philosophy, Politics and Economics:

"...the natural law concept against which modern jurisprudence reacted was the perverted rationalist conception which interpreted the law of nature as the deductive constructions of 'natural reason' rather than as the undesigned outcome of a process of growth in which the test of what is justice was not anybody's arbitrary will but compatibility with a whole system of inherited but partly inarticulated rules" (101).

This does seem like a relatively accurate positive assessment of how law has evolved over time. But it does beg the question, then, of whether or not a centralized attempt to administer justice, which would rely on some understanding of what people will accept as just, would be akin to trying to plan an economy. The idea, in other words, is that if our recognition of justice relies on a partly inarticulated set of internalized rules, and those rules change over time and are sometimes contradictory, then the acceptability of any legal judgment will be in some some sense bound to the circumstances in which that attribution was made, and will necessarily fail to reflect the unanimous will of the people. If that's true, then it would seem almost impossible to determine what would be the proper standard of justice within a society at any given time, and so would be impossible to administer justice "properly" in much the same way as it's impossible to allocate resources "properly" through a centralized method of planning.

To make my case, I'll draw on a number of different quotes which I think paint a better picture of the issue than I might be able to do myself (especially given the "reason as I go" approach that generally characterizes these posts). First, from the beginning of David Schmidtz's book, Elements of Justice:

"I have become a pluralist, but there are many pluralisms. I focus not on concentric "spheres" of local, national, and international justice nor on how different cultures foster different intuitions, but on the variety of contexts we experience every day, calling in turn for principles of desert, reciprocity, equality, and need. I try to some extent to knit these four elements together, showing how they make room for each other and define each other's limits, but not at the cost of twisting them to make them appear to fit together better than they really do. Would a more elegant theory reduce the multiplicity of elements to one?" (4).

I jump over to the beginning of Rawls' Justice as Fairness: A Restatement:

"...I believe that a democratic society is not and cannot be a community, where by a community I mean a body of persons united in affirming the same comprehensive, or partly comprehensive doctrine. The fact of reasonable pluralism which characterizes a society with free institutions makes this impossible. This is the fact of profound and irreconcilable differences in citizens' reasonable comprehensive religious and philosophical conceptions of the world, and in their views of the moral and aesthetic values to be sought in human life" (3).

And with that, I jump back to Schmidtz, a few pages later:

"In effect, there are two ways to agree: We agree on what is correct, or on who has jurisdiction - who gets to decide. Freedom of religion took the latter form; we learned to be liberals in matters of religion, reaching consensus not on what to believe but on who gets to decide. So too with freedom of speech. Isn't it odd that our greatest successes in learning how to live together stem from agreeing on what is correct but from agreeing to let people decide for themselves?" (6).

And back to Hayek, this time in his essay, "The Use of Knowledge in Society":

"The peculiar character of the problem of a rational economic order is determined precisely by the fact that the knowledge of the circumstances of which we must make use never exists in concentrated or integrated form, but solely as the dispersed bits of incomplete and frequently contradictory knowledge which all the separate individuals possess" (519).

He continues:

"In ordinary language we describe by the word "planning the complex of interrelated decisions about the allocation of our available resources. All economic activity is in this sense planning; and in any society in which many people collaborate, this planning, whoever does it, will in some measure have to be based on knowledge which, in the first instance, is not given to the planner but to somebody else, which somehow will have to be conveyed to the planner. The various ways in which the knowledge on which people base their plans is communicated to them is the crucial problem for any theory explaining the economic process. And the problem of what is the best way of utilizing knowledge initially dispersed among all the people is at least one of the main problems of economic policy--or of designing an efficient economic system" (520).

And more:

"Today it is almost heresy to suggest that scientific knowledge is not the sum of all knowledge. But a little reflection will show that there is beyond question a body of very important but unorganized knowledge which cannot possibly be called scientific in the sense of knowledge of general rules: the knowledge of particular circumstances of time and place" (521).

Just like how attributions of justice are contingent on a set of partly inarticulated rules, economic actors make their decisions according to their personal interpretations of circumstances, in light of their own value systems. And as they are inarticulated and often contradictory, they cannot be aggregated to form a "social" standard. Hayek writes:

"...the sort of knowledge with which I have been concerned is knowledge of the kind which by its nature cannot enter into statistics and therefore cannot be conveyed to any central authority in statistical form" (524).

So we've sort of gotten to the point I'm trying to make. Basically, if society's acceptance of certain things as just is, as Hayek says, based on compatibility with an internalized, partly inarticulated set of rules, and if these sets of rules are subject to reasonable pluralism and continuous flux, then it's as impossible to get law perfectly right through central planning as it is to get an economy perfectly right through central planning. But then the question becomes, so what? In looking at the economy, Hayek writes:

"We cannot expect that this problem will be solved by first communicating all this knowledge to a central board which, after integrating all knowledge, issues its orders. We must solve it by some form of decentralization" (524).

But is this the right answer for law? That's something I'll have to leave for another day.

Update:

Hahahahahahahaha! So this post was written in a sort of "Ah hah!" moment while reading Hayek's "The Results of Human Action but not of Human Design," causing me to jump up from the book and hammer out the above. Turns out that if I had kept reading, I would have discovered Hayek making a nearly identical point in the essay itself. So I'd almost say to forget about this post and go pick up the book.