Arbitrary Legality Makes Bad Laws

Recently, out of curiosity, I scanned the daily jail log for Curry County. I had never done so before and probably won’t do it again. Afterward, I felt guilty and was ashamed of myself.

I learned something interesting, though. Half of the people — five out of 10 — booked into the jail that particular day weren’t even accused of having done anything wrong; only things that have been arbitrarily declared illegal.

What’s the difference?

An act that violates an individual’s life, liberty, or property is wrong; a real crime, whether or not the law considers it a crime. These acts are wrong in and of themselves. The Latin term for this is “mala in se.”

Those booked into the jail that day and accused of having actually harmed someone were claimed to have either harmed others physically or to have violated someone’s property rights. Your main responsibility as a human is to respect the rights of others, so I have no sympathy for anyone who chooses to violate others.

This is assuming they actually did what they are accused of, which isn’t necessarily a reasonable assumption to make these days.

The other half of those jailed weren’t even suspected of harming anyone. The only justification for caging them was that they had offended the government in some way. Either they refused to identify themselves to a government employee, didn’t have the required permission papers, had forbidden substances, or tried to avoid being apprehended and kidnapped by an armed government employee. This makes these inmates political prisoners, not criminals. Even if I believed in punishment and imprisonment instead of justice, I wouldn’t believe these people deserved it. They are the real crime victims.

I understand why government would like for you and me to think of those things as crimes, but they aren’t They can’t be. Instead, these acts are “crimes” only because someone wrote legislation designating them so — a made-up rule with no ethical foundation. “Crimes” only because government employees say so. The Latin term for these acts is “mala prohibita.”

If you get aroused by punishing others, you probably don’t care. “It’s the LAW! It has to be obeyed,” you might insist.

Still, if you want your laws to be respected, you’ll first need to make them respectable. A good beginning is to get rid of all those laws based on nothing but the empty opinions of politicians.

This would eliminate all of your counterfeit mala prohibita “laws.”

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Banning Real Progress

Begging government to ban vaping makes as much sense as begging government to ban car brakes.

No, vaping isn’t totally safe. It’s safer than smoking.

Your car having brakes won’t make driving totally safe. But it’s still safer than driving without brakes.

Banning, or heavily regulating, either one is going backward. Kind of like banning (or heavily regulating) suppressors.

That doesn’t mean I want government to mandate vaping as an alternative to smoking– it should be a personal choice. You do your life, I’ll do mine.

As a tangent– I’m always shocked at the amount of dishonesty involved in trying to fool people into joining the prohibitionists (or any statist cause, for that matter).

I saw a “public service” [sic] ad against the JUUL vapers recently, where the woman was horrified that the JUUL “contains as much nicotine as 20 cigarettes!” What is this, standard-capacity magazine hysteria aimed at a different tool?

I’m supposing you don’t get all the nicotine the device contains in one inhalation. Even if you did get all the nicotine in one sitting, wouldn’t it be just like chainsmoking 20 cigarettes? I’ve seen smokers do that (OK, I didn’t count, but you know what I mean). How many cigarettes come in a pack? 20 or 25? Are you going to shove them all in your mouth at once and smoke them together? I guess you could, but I don’t think there’s a way to get the entire contents of nicotine from a JUUL in the amount of time it would take to smoke one cigarette– unless you broke it open or something. But it sounds scarier to lie. Scared people are lemmings you can lead to cry for the privilege of being governed harder. So that’s what prohibitionists do.

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Are You Being Played?

I suspect Scott Adams has been playing his listeners. I’ve suspected this for months, but have only discussed this with one person. Until now.

I’ll go ahead and tell you now what I think has been going on.

I believe he is using the technique of “pacing and leading” to get his “conservative” listeners to change their minds on “climate change” (and a few other topics as well). He plays the neutral “voice of reason” with his audience who seems to mostly be Right Statist, but he is much more Left Statist than he lets on. (I so dislike using the terms “Left” and Right” in political discussions, since there’s really only Statist or not. Yet sometimes it seems necessary to examine the interplay between these mirror images.)

Back when he first started discussing the topic, I got the distinct feeling this was what he was doing. In spite of his protests of “I’m just looking at the argument– I don’t know because I can’t know. I’m not a climate scientist.” it seemed to me he was going to take the alarmists’ side when it was all said and done. He gave clues to that effect. Because he is a government supremacist, after all.

And this is the general arc of what I’ve watched happening.

He started off leaning slightly to the skeptical side. So as to agree with the listeners he was (apparently) wanting to influence. Pacing them. He has been slowly and carefully moving slightly more to the alarmist side since then. Two steps forward and one step back. Leading them to where he seems to want them to go.

He has straight out said he uses persuasion (and hypnosis) techniques in his writing and podcasting. He has described these techniques and pointed out examples when they are used by others. Then he uses the techniques on his listeners. He’s doing it right in the open. I believe his intent is to influence his listeners to move away from Right Statism toward Left Statism– maybe to bring them to a center position.

Can I prove it? No. He would say I’m mind reading and there is no written or stated evidence that this is what he wants to do. As I’ve said before, since I can’t read minds I am left with reasoning out what someone is thinking by their actions. I could be wrong, but I doubt it. The future will tell.

I still listen to Scott because I find him interesting and because I still find it informative to get insight into the workings of the statist mind. But I try to mentally vaccinate myself against his persuasion while doing so by knowing what he’s doing. Who knows if I’m protected sufficiently.

Years ago, when I first started reading his Dilbert blog, he once claimed to be “libertarian, but without the crazy stuff“. I pointed out that the “crazy stuff”, as he defined it, is also called consistency. Consistency, based in principles. Things which get in the way of a full-on embrace of statism. Once you believe it’s OK to govern others and use government violence to force others to do what you want and stop them from doing what you don’t want them to do, there seems to be nothing that’s too far to justify. This is the road he travels. He expects you to follow. And he may be tricking people into following him.

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Dan Moller’s Governing Least

Michael Huemer’s The Problem of Political Authority is definitely my favorite work of libertarian political philosophy.  Dan Moller’s new Governing Least, however, is definitely now my second-favorite work of libertarian political philosophy.  The two books have much in common: Both use common-sense ethics to argue for libertarian politics.  Both are calm, logical, and ever-mindful of potential criticisms.  Both strive to persuade reasonable people who don’t already agree with them.  Both are packed with broader insights.  And despite these parallels, both are deeply original.

So what’s most original about Moller’s position?  Instead of focusing on the rights of the victims of coercion, Moller emphasizes the effrontery of the advocates of coercion:

[I]n my account libertarianism emerges from everyday moral beliefs we have about when we are permitted to shift our burdens onto others. In fact, my account intentionally downplays the role of rights, and is motivated by doubts about what we may demand of others, rather than outrage about what others demand of us.

The effrontery is most blatant when you speak in the first person:

Imagine calling a town hall meeting and delivering the following speech:

My dear assembled citizens: I know most of us are strangers, but of late I have fallen on hard times through no fault of my own, by sheer bad luck. My savings are low, and I don’t have friends or family to help. Now as you know, I’ve previously asked for help from you as private citizens, as a matter of charity. But unfortunately that hasn’t been sufficient. Thus, I’m here now to insist that you (yes you, Emma, and you, John) owe me assistance as a matter of justice. It is a deep violation if you don’t work additional hours, take fewer vacations if need be, live in a smaller house, or send your kids to a worse school, in order to help me. Failing to do so is no less an injustice than failing to pay your debts.

Moreover, calling this an injustice means that it’s not enough that you comply with your obligations by working on my behalf. No, I insist that you help me to force your fellow citizens to assist me. It doesn’t matter if these others say to you that they need the money for their own purposes, that they prefer worthier causes, or if they’re just hard-hearted and don’t care. To the extent you care about justice, you must help me to force these others to assist me whether they wish to or not, since that is what is owed me in light of my recent bad luck.

Could you bring yourself to make this speech?

The fundamental objection to Moller’s position, he thinks, is to claim that governments have “emergent moral powers.”  But Moller firmly denies this.  Governments are just groups of people, so they are morally obliged to follow the same moral principles as everyone else.  While this may seem like libertarian question-begging, there’s nothing uniquely libertarian about it:

It is notable that many who wish to block rights-based objections to state action are nevertheless eager to enter their own moral objections to what the state does. Many of those unsympathetic to attacks on taxation rooted in individual rights also portray the absence of welfare provisions or various immigration policies as “unconscionable.” There is nothing inconsistent about this; the one set of moral claims may be right and the other confused. But the objection then cannot be based on the emergent moral powers of the state. We cannot both reject appeals to individuals rights on the general grounds that morality has nothing to tell us about what may emerge from government institutions, and then do just that, substituting our own preferred brand of interpersonal morality. Once we notice this, support for emergence should shrink drastically, since it will only come from those who think there are no policies of the state that can be rejected on fundamental
moral grounds. The non- emergence assumption per se has no particular ideological leanings.

But doesn’t common-sense morality admit that rights to person and property are not absolute?  Of course; exceptions abound.  Moller sternly emphasizes, however, that these exceptions come with supplemental moral burdens attached.  In his “Emergency” hypothetical, for example, you steal $1000 under duress.  What then?

I propose the following non-exhaustive list of residual obligations for cases like Emergency:

Restitution: although I didn’t do wrong, I must repay the $1,000 if possible, perhaps in reasonable installments.

Compensation: to the extent you are otherwise harmed by my actions, I should attempt to compensate you. For instance, if I smashed your windows getting in or forced you to incur some loss because you had to come home at short notice, I must compensate you at some reasonable rate.

Sympathy: it is incumbent on me to convey, if not an apology for my (permissible) actions, at least sympathy for the harm I have caused you. (“I’m very sorry I had to do that” would be the natural if slightly misleading phrase.) I cannot offer a Gallic shrug at your distress and announce, “I did nothing wrong— it’s your problem” as you survey the wreckage of your home. To do so would exhibit a serious character flaw.

Responsibility: my obligations are not just backward looking, but forward looking. If I can reasonably foresee that some action of mine will put me in the position of facing an emergency that will then render it permissible to harm you, I must take responsibility to avoid such actions if possible. I should not think that I have less reason to take responsibility because I can avoid harms by transferring them to you instead. And failing to take responsibility weakens my claim to impose costs on others when the time comes.

A related principle is worth mentioning as well:

Need: my warrant for harming you depends on how bad my situation is. I cannot harm you if I am doing fine already merely in order to improve my position still further. I may be permitted to take your $1,000 to avert a physical threat, but not in order to make a lucrative investment in order to get even richer.

The political implications are expansive, starting with:

A welfare state justified in virtue of overriding reasons to promote the good of the beneficiaries incurs these residual obligations. Flouting them amounts to unfair burden- shifting. What would it look like actually to satisfy them? For starters, if I were the beneficiary of some emergency medical procedure that a third party compelled others to contribute to— say a state agency— I would be obligated to
repay those charged for my benefit, possibly with some compensatory surcharge. If unable to pay, I would be required to pay in installments, with the agency keeping track of my income and tax records to ensure that my repayment were in line with my means…

Moreover, in repaying, my attitude toward my fellow citizens ought to be one of gratitude for coming to my assistance, as opposed to viewing these services as entitlements due to me as a matter of citizenship. This may seem curious: by hypothesis, the services I received made it past the threshold, meaning that the wealth transfers involved were permissible, and since I am repaying, they won’t
even be net transfers in the long run, barring misfortune. Depending on how badly I needed aid, aiding may even have been obligatory on a third party. Why should I express gratitude for others fulfilling their duties? Consider the Gallic shrug— that supreme expression of indifference at someone else’s misfortunes, while disclaiming all responsibility for rectifying them, frequently encountered
in Parisian cafés. Why shouldn’t I shrug my Gallic shrug at the rich complaining about their tax bill, and point out I merely got what I was entitled to, as would they in a similar situation?

This complaint would be apt if appropriate moral responses were a function solely of whether our acts are required or permissible. But there are all kinds of inappropriate moral responses even when what we have done is permissible or when what the other has done was required. If we are to meet for lunch and an urgent business affair obtrudes itself, I may be permitted to skip our lunch, but
I shouldn’t treat putting you out lightly. What makes a Gallic shrug a vice here is that beneath the outer layer of permissibility there remains an inner structure whereby you have been harmed for my sake, which ought to be a source of concern, leading to some appropriate expression of regret if I am a decent person.  And the same is true in the case of welfare services. This is easy to ignore because
of the opaque veils of state bureaucracy. But behind the faceless agency lie people who are harmed for the sake of benefiting me.

Governing Least manages to be at once readable and dense.  And though you can’t tell from the passages I just quoted, Moller also repeatedly appeals to and grapples with cutting-edge social science.  What, for example, should philosophers think about Greg Clark’s work on the long-run heritability of social status?  Moller’s take will surprise many of you.

Last question: Why do I still prefer Huemer to Moller?  Intellectually, because Huemer’s appeal to individual rights is just more clear-cut than Moller’s objection to “burden-shifting.”  Furthermore, Huemer focuses on the broader case for libertarianism, while Moller self-consciously focuses on opposition to the welfare state.*  And while Moller’s book is beautifully written and well-organized, Huemer’s is stellar on both counts.

Thus, if you’re only going to read one book of libertarian political philosophy, I still say you should read The Problem of Political Authority.  If you’re willing to read two such books, however, read Governing Least.  I loved it.

* Moller: “I also ignore the many noneconomic causes that libertarians have sometimes taken up, like free speech, gay marriage, and drug legalization. This is the fun part of libertarianism and requires little heroism to defend. Many disagree with such policies, but few think their sponsors cruel or ungenerous, while resistance to the welfare state and programs intended to foster economic equality evoke precisely that response.”

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Pangolins

Nobody asked but …

Once again, I have anecdotal evidence about humanity that is very dreary.  Mark Twain said, “Always do right.  This will gratify some, the rest will be astonished.”  The reason for astonishment seems to be that there are damned few who are compelled to do right — much fewer always to do right.

Take, for instance, the sad tale of the pangolin.  Statists will insist that we need states to prevent the illegal trade in pangolin scales, and consequently the extinction of the species.  I would ask, “How’s that working out for you?”

The thing is that it would be a long time before logic and order corrected the ills of the state — if ever.  But there is also the thing that statists are clueless about statism being necessary THOUGH evil.  Statism is useless AND evil.  Statism is wrong AND evil.  There is nothing that government does which non-government can’t do.

— Kilgore Forelle

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“Intellectual”

“Intellectual” is not a dirty word. It disturbs me how often it is used as one.

On the other hand, many of those who are called “intellectuals”– particularly “public intellectuals”– are really just government extremists and elitists. They may have degrees and positions, but their position on issues is anti-intellectual. They follow the religion of statism and worship the god of government.

It is not rational to be a statist. It is vulgar to believe people should be governed by others, and to use politics as a tool for this purpose. Any illiterate punk might believe the same thing, but without claiming the “authority” to force everyone to go along.

They believe they know better how to run your life than you do. And they are willing to use government violence to prove it.

These people may be clever. They may be smart in some ways. But their ignorance and emotionalism overwhelm their intellect. They betray their own intellectualism with their belief system. They’ve decided which is more important to them, personally. And it’s a shame.

Think of all the good they could have otherwise done if they are really as “intellectual” as they are made out to be. The world is poorer for having lost their contributions. When you side with darkness and ignorance– with statism– your intellect, if any, becomes a net negative to society.

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