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.”

Open This Content

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.”

Open This Content

The Most Controversial Belief

Because I’m both a Libertarian and a loudmouth, I’m frequently hit with questions about libertarianism (and the Libertarian Party). Recently this one came up:

“What is the most controversial belief of Libertarians?”

Could it be our support of immigration freedom (and, generally, freedom to travel)?

Or our demand for separation of school and state?

Perhaps our hard-line support for gun rights?

Or our stand for legalization of all drugs?

How about our advocacy for keeping the government out of the sex lives of consenting adults (including marriage, and including sex for pay)?

Or our belief that who you do or don’t do business with — including for healthcare and retirement — is your decision and no one else’s to make?

My answer: It’s all of those, and others. But it really boils down to one issue.

The most controversial belief of libertarians (and partisan Libertarians) is the belief that you’re generally both more entitled and more qualified to run your life than someone else is.

Who considers that belief controversial? “Mainstream” politicians and their supporters.

Why do they consider that belief controversial? Because they consider themselves entitled and qualified to run your life for you, whether you like it or not. And, of course, to bill you for the costs of their supervision.

Politics isn’t persuasion. Politics is force.

Whether the issue is immigration, or education, or self-defense, or drug use,  or sex, or commerce, or, heck, what color you paint your house or how long you let the grass on your lawn grow, the political approach is not to present an argument and trust you to make the right decision. It’s to decide “for” you, then beat you down if you disobey (or fail to pay them for their services).

Libertarianism — even the “political” variety — isn’t really very political at all. It’s anti-political. As one fun meme puts it, libertarians are “diligently plotting to take over the world and leave you alone.”

Libertarians only recognize one valid constraint on your actions: A universal, mutual constraint against aggression, also known as initiation of force.

The simple version, courtesy of Matt Kibbe: Don’t hurt people, and don’t take their stuff.

When you throw the first punch, or pick someone’s pocket, or otherwise forcibly interpose yourself between someone else and that someone’s life, liberty, or property, you’re not running your own life. You’re trying to run theirs.

And that’s the only thing libertarians agree you should be stopped from doing or penalized (in a manner consistent with restitution, not “punishment”) for doing. Even if it’s “for their own good.”

If you’re down with that idea, congratulations: You’re a libertarian.

If you’re not down with that idea, I hope you’ll think it through more carefully.

Open This Content

Basketball

Nobody asked but …

I love basketball.  I love it from the women’s grade school level, in which I used to coach, to the Olympic level with NBA and other international superstars.  Why?  I love it for the same reason as I do rugby.  The games are models of chaos.  They are models of life.  They are models of anarchy.

A great deal of hoopla has been raised about the end of the semi-final NCAA Tournament game between Auburn and Virginia.  Of course, the Final four weekend is attended by a mob of muckrakers, gamblers, and self-appointed analysts.  This gaggle of elites sweep through the sporting meccas on an annual circuit, this week in Minneapolis for the Final Four, next week in Augusta for the Masters.  They will cram the after-contest tavern scene, shouting observations over one another.  The topic du jour is a couple of calls made or not made by referees.

The thing we forget here is that basketball is chaos.  Certainly it has rules and hierarchy and officials, but these exist only to define the confines of the chaos — and sometimes, as in the case of dribbling, to induce chaos.  They are fundamental, just as are the dimensions of the court or pitch.  But nevertheless it is chaos.  If basketball were not chaotic, who would watch?  It is because the unexpected can happen that we aficianados are hooked.  In a basketball game there are a conglomeration of convoluted, complex, confounding collisions of chance encounters.  There is free will and determinism.  The stochastics of ten players, three referees, two coaching cohorts, and a howling spectatorship, cannot be fully described.  Each of the entities is operating both dependently and independently.  Each of the entities has competencies and incompetencies, and each property for each entity varies with time.

Was there a double dribble?  Probably.  Such a thing happens throughout a game.  Did events occur before, after, and during the double dribble, dependently and independently?  Most certainly.  Was there a double dribble, in appearance or in fact?  Historians will disagree.

— Kilgore Forelle

Open This Content

Sorry, Scott: “Climate Change” is a Power Grab

On a recent podcast, Scott Adams almost had a meltdown when confronted by the evidence that many of his listeners believe “climate change” hysteria is all about a power grab by those promoting it. He says this means people have been hypnotized by the media they get their news from.

There’s a flaw in his belief: I don’t partake of the “news”, and the “news” I accidentally get exposed to is from all over the statist map. I also don’t know whether AGCC is real, whether it is a net negative, or anything else about it– other than the fact it doesn’t justify violations of life, liberty, or property by any government.

Yet I do know he’s wrong to deny “climate change” is about a power grab, and here’s why.

He makes the mistake of insisting that someone show him the one person who is seeking to consolidate his or her power using the excuse of “climate change” through something like the “new green deal”. That’s looking for the wrong thing.

Every “law” increases government power. This means any new “law”– no matter what it’s about– is a power grab for the whole collective known as “government”. Any individual who has hitched their wagon to that coercive collective is going to gain power with each new “law”. Of course, any individual connected to government, who lusts for power, is going to advocate for something which will increase government power and will, therefore, increase the individual government cog’s power. Maybe not to the point of that one person being the King of Earth, but enough to cause that person to advocate for the new “law”. In the hope of gaining power. That’s a power grab.

It’s neither mysterious nor a conspiracy theory. It’s human nature and the nature of the political means.

Open This Content

Awareness Often First Step Towards Liberty

People are often their own worst enemies. They listen to those they should ignore or laugh at while they ignore (or laugh at) those they should listen to. It’s always been the same.

Harriet Tubman, the 19th Century abolitionist, is quoted as saying, “I freed a thousand slaves. I could have freed more if only they knew they were slaves.”

It’s the libertarian’s dilemma. People don’t like to notice their chains even when that’s about all it would take to break them. It’s too painful to admit they aren’t as free as they should be, so they don’t.

No one can free you; it’s up to you to free yourself. If someone takes the chains off of you, unless you make up your mind to be free you’ll help put the chains back on the first time you get a little scared or hungry.

You’ll enslave yourself because you fear immigrants you imagine taking jobs you don’t have and don’t want.

You’ll enslave yourself to keep a neighbor from doing things they want to do but you don’t want them to do. Even when they don’t violate you in any way, you’ll violate yourself just to control them.

If it makes you angry to be told you aren’t nearly as free as you imagine; that your liberty is systematically violated every minute of your life by those who tell you how free you are, here’s another quote you need to hear; this one from Johann Wolfgang von Goethe: “None are more hopelessly enslaved than those who falsely believe they are free.”

Your body is yours; no one has a higher claim to it. If you can be prohibited from ingesting something — whether it’s sugar, Cannabis, or bacon — you aren’t free. If you can be forced to act against your interests when doing what you want wouldn’t violate anyone, you aren’t free.

The property you’ve gotten through mutually consensual arrangements with others is yours. If anyone else can claim your property — through such government actions as taxation, licenses, eminent domain, or even property codes — you aren’t free.

If you won’t work to be free — to throw off your chains — when it would be relatively safe and easy, what will you do when it becomes hard? Will you resign your children’s children to an intrusive, controlling police state?

If you go along to get along today, you’ve already answered the question.

You’ve chosen chains over scary liberty.

Open This Content