Governing Least: A Litany of Insight

Dan Moller’s Governing Least is packed with random insights and philosophic wit.  Some highlights:

Why so much political philosophy sounds desperate:

Only those already unsympathetic to utilitarianism are likely to be swayed by Rawls’s brief observations. Those who begin their political philosophy by defending the morality of rights don’t so much preach to the choir as exorcize the elect.

Why so much political philosophy sounds so blind:

The reason France does not require aid is not because some external group took pity on the French, but that they were able to generate exponential economic growth themselves. This makes it puzzling that philosophers write long books about aid without mentioning economic growth, and generally seem to imply that the path to escaping poverty lies through individual altruism. Why ignore the only mechanism that has ever succeeded in lifting millions of people out of poverty when thinking about poverty?

A great explanation of the Theory of the Second-Best:

Suppose that a company enjoys monopoly powers that we cannot immediately remove under the present regulatory regime, but that one of its upstart rivals enjoys a market- distorting state subsidy which we can remove. It is a fallacy to infer that market efficiency will be improved by at least killing the subsidy— the reverse may well be true— just as it is fallacious to reason that if our military lacks both bombs and bombers the second- best solution is at least to build the bombers.

Why predictable outcomes can co-exist with abundant opportunity:

The data on intergenerational mobility or its absence is sobering, to say the least. In the United States, sometimes this leads commentators to call into question the traditional self- conception of America as a “land of opportunity.” It’s hardly a land of opportunity if outcomes are determined at birth, runs the criticism.

Let us consider this reasoning in more detail. The critic seems to reason as follows: If there were anything like equality of opportunity, then we couldn’t predict outcomes at birth, but we can, and so the land of opportunity is a myth. Let us assume the standard to meet here isn’t exact equality of opportunity for every single citizen. Could there still be reasonably high levels of opportunity despite outcomes— including bad ones— being highly predictable from the start? The critic seems to assume the following principle:

Predictability defeats opportunity: if we are able to specify social outcomes with a high degree of accuracy in advance, then the people in question cannot enjoy much opportunity.

Why accept this principle? What is it that connects predictability and opportunity? The obvious answer is that we think we know enough about people to be confident that if they did enjoy opportunities, they wouldn’t exercise them in a way that leads to bad social outcomes. The fact that we know that Smith will end up poor in all likelihood suggests that he is powerless to avoid it, since if he were capable of influencing the outcome, then he would. This amounts to another, deeper principle:

Predictability is evidence of incapacity: the fact that we can predict poor social outcomes is evidence that those who experience them lack a capacity for avoiding them.

Another way of putting the matter is that a fixed proportion of poor outcomes might be bad, but it wouldn’t be bad for reasons of diminished opportunity, since it might be the case that there are going to be winners and losers in anything resembling a free society, and as long as everyone has a fair shot at being a winner, things aren’t so bad. (No doubt more would need to be said about what “losing” amounts to for us to feel reassured.) What is terrible about predictability is that the losers aren’t just random, but never had a chance. Because predictability is evidence of incapacity, we know that those with poor outcomes never had a chance to succeed, and a fortiori they lacked anything like an equal or reasonable opportunity for success.

The problem is that it isn’t true that predictability, in itself, is evidence of incapacity, that outcomes are beyond our control. I don’t want to deny in the end that certain forms of incapacity do play a role in social outcomes, but how much is far from settled, and by opening with the assumption that predictability implies incapacity, we go wrong from the start. The fundamental confusion is between the epistemic question of what we can say about the future and the metaphysical question of what people are able to do at a given time in given circumstances. There are various fancy examples to illustrate this in the free- will literature, but for our purposes we can stick to some everyday examples:

Rope line: at the airport, we predict with great confidence that people will walk along a particular circuitous path— the one laid out by the velvet ropes. Nevertheless, the passengers are free to step over the ropes any time they like. It’s just that hardly anyone does. Predictability here doesn’t imply incapacity, it’s just that the passengers all have reason to exercise their freedom in a certain way.
Victim-blaming is (often) question-begging:
[I]t sounds mean to claim that people generally have a capacity to influence social outcomes when thinking about the poor, a bit like victim-blaming. But such a denial would involve insisting that something like the following claims are generally true (readers are invited to imagine these in the mouths of their own children facing unfavorable social circumstances, such as a lousy school system):
• “I can’t help it that I skipped class.”
• “It wasn’t possible to do my homework.”
• “I had no control over whether I had children.”
• “There was no way I could have worked this past year.”
It is important to acknowledge that for some people, these statements will be true. Mothers have children due to rape, classes go unattended because of gunfire or violence in the school, recessions destroy employment opportunities even for those who are highly qualified and persevering and willing to accept low wages. The point isn’t that all poor social outcomes are blameworthy, but that most (not all) people can exercise an enormous amount of influence over whether they lead a decent life in the developed world, even when ignorance or other internal impediments bar the way.
Governing Least is so packed with insight that I could easily have made this post three times longer.  Read it and see for yourself!
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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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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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Steve Silverman: Jury Nullification – What It Is, and How To Use It (29m)

This episode features an interview of activist Steve Silverman of FlexYourRights.org by Tom Woods, host of the Tom Woods Show. They discuss the principles and applications of jury nullification, when juries refuse to convict on the basis that the allegedly violated law is unjust. Purchase books on jury nullification on Amazon here.

Listen To This Episode (29m, mp3, 64kbps)

Subscribe via RSS here, or in any podcast app by searching for “voluntaryist voices”. Support the podcast at Patreon.com/evc or PayPal.me/everythingvoluntary.

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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.

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Pardoning Assange Would be the First Step Back Toward Rule of Law

On April 11, the ongoing saga of journalist and transparency activist Julian Assange took a dangerous turn.  Ecuador’s president, Lenin Moreno, revoked his asylum in that country’s London embassy. British police immediately arrested him — supposedly pursuant to his “crime” of jumping bail on an invalid arrest warrant in an investigation since dropped without charges but, as they admitted shortly thereafter,  actually with the intent of turning him over to US prosecutors on bogus “hacking” allegations.

The US political class has been after Assange for nearly a decade.

In 2010 WikiLeaks, the journalism/transparency service he founded, released information revealing US war crimes in Iraq and Afghanistan, as well as State Department cables exposing — among other things — Hillary Clinton’s attempts to have American diplomats plant bugs in the offices of their UN counterparts (Clinton, at one point, tried to raise the possibility of having him murdered for embarrassing her so).

In 2016, WikiLeaks released Democratic National Committee emails — provided by an as yet unidentified whistleblower — exposing the DNC’s attempts to rig the Democratic presidential primaries in Clinton’s favor.

At no point has Assange been credibly accused of a crime. He’s a journalist. People provide him with information. He publishes that information. That’s an activity clearly and unambiguously protected by the First Amendment.

Even if Assange was a US citizen, and even if his activities had taken place in territory under US jurisdiction, there’s simply no criminal case to be made against him.

So they’re manufacturing one out of whole cloth, accusing him of “hacking” by asserting that he assisted Chelsea Manning with the technical process of getting the 2010 information to WikiLeaks.

But once again: Assange is not a US citizen, nor at the time of his alleged actions was he anywhere that would have placed him under the jurisdiction of the United States.

Even if he did what he’s accused of doing, the current state of affairs is the equivalent of the city government of Chicago asking Norway to extradite a French citizen on charges of not cutting the grass at his villa in Italy to the specifications of Chicago’s ordinance on the subject.

There are certainly criminal charges worth pursuing here.

The US Department of Justice should appoint a special counsel to probe the Assange affair with an eye toward firing, seeking the disbarment of, and prosecuting (for violations of US Code Title 18, Sections 241, Conspiracy Against Rights, and 242, Violation of Rights Under Color of Law) the DoJ bureaucrats who hatched this malicious prosecution.

The first step in the process, though, is for US president Donald Trump to pardon Julian Assange for all alleged violations of US law on or prior to April 11, 2019.

Assange is a hero. Time to stop treating him like a criminal.

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