Checks And Balances?

Michael Huemer explains why “checks and balances” cannot reasonably be expected to limit government:

“Americans are taught that they live under a system of ‘checks and balances’, whereby the executive, judicial, and legislative branches of government each restrain the others from abusing their power. This idea derives from Montesquieu, who influenced the framers of the American Constitution. 45 Thus, the judiciary has the power to strike down unconstitutional laws, thereby serving as a check on the power of the legislature. The executive branch has the power to appoint judges, which the legislature must approve; thus, the executive and legislative branches act to ensure the integrity of the judiciary. The legislature has the power to impeach the president, and the legislature may thus check the power of the executive branch. And so on. No branch of government is supreme, and each has important powers over the others.

This theory is missing one crucial element. That is an account of why each branch of government should be expected to use its powers to prevent the other branches from abusing their powers rather than, say, to assist the other branches in abusing their powers or to prevent the other branches from carrying out their legitimate functions. Again, it does not matter what our theory labels as the proper function of government officials. What matters is the incentive structure. Do the three branches of government each have an interest in ensuring that the other branches function properly without overstepping their constitutionally prescribed bounds?

Perhaps the theory is that the three branches are to some degree in competition with each other, such that no branch wishes to see the others become too powerful. 46 Neither Montesquieu nor the American founders, however, clearly explain why this should be thought to be the case. The legislature makes laws, the judiciary interprets the laws and determines when they have been violated, and the executive enforces the laws. Now suppose that the legislature passes laws that extend beyond the matters that the Constitution authorizes it to regulate. By this I mean, not laws that infringe upon the powers of the other branches of government, but laws that infringe upon the liberties of the people. In what way would this render the executive or judicial branches worse off? If anything, the latter two branches should be expected to expand. The more laws there are to enforce, the larger the executive branch will have to be. Likewise, the more restrictive the legal regime is, the more cases the courts will have to try and thus the larger the judiciary will have to be. If each branch wants to be larger and more powerful, there is some reason to think they should make common cause . There is, at any rate, no obvious reason to think they should each try to prevent the others from infringing upon the freedoms of the people.”

Huemer, Michael (2012-10-29). The Problem of Political Authority: An Examination of the Right to Coerce and the Duty to Obey (pp. 226-227). Palgrave Macmillan. Kindle Edition.

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Moral Judgment Under Uncertainty


If a law is unjust, one may break it. But it is not the case that if one merely believes a law to be unjust, one may break it; it depends upon whether one’s belief is correct.

There are many cases in which we cannot tell whether a law is just or unjust; justice is a difficult subject . What ought we to do then? In cases where we do not know whether the law is just, we will simply not know whether it is permissible to break that law. I can say nothing here that will cause readers to be able to know in all cases what is just or what they ought to do. My only advice for such situations is that one do further research on the topic (perhaps in the ethical and political philosophy literature) and then exercise one’s best judgment.

To some, this view will be unsatisfying. A more satisfying view would be one that provides a simple, more or less mechanical rule for what to do in all cases. For instance, if we could say , ‘When in doubt, always obey the law’, many would find this a more satisfying position than the position that we sometimes cannot tell whether we should obey the law or not.

But satisfyingly simple and convenient rules are not therefore correct. In particular, there is no reason to think that whenever there is doubt as to the justice of a law, it is better to obey than to disobey that law. Suppose a soldier has been ordered by his government to fight in a war. The soldier is unsure whether this order is just, because he is unsure whether the war itself is just. Nothing in this description of the case enables us to infer that it would be right or good for the soldier to fight in the war. If he fights, he may be participating in mass murder. We do not know enough to say whether this is the case. The crucial information we would need, before we could advise the soldier as to what he ought to do, is a piece of moral information: we need to know whether the war is just. The fact that this knowledge may be difficult or even impossible to obtain does not prevent it from being the relevant and necessary knowledge for addressing the question at hand, nor does it enable some other, more easily knowable fact to settle the question. It simply is the human condition that our ethical questions frequently have no easy answers.

Huemer, Michael (2012-10-29). The Problem of Political Authority: An Examination of the Right to Coerce and the Duty to Obey (pp. 170-171). Palgrave Macmillan. Kindle Edition.


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Common Sense Morality vs. Common Sense Political Philosophy

Huemer contrasts common sense morality with common sense political philosophy:

My attitudes toward common sense might seem inconsistent. On the one hand, I consider the most widely shared ethical intuitions reasonable premises on which to rely. On the other hand, I claim that some very widely shared political beliefs are fundamentally mistaken. The claim that there are some legitimate governments is not very controversial; nearly everyone, whether on the left or the right of the political spectrum, takes that for granted. Why, then, do I not accept the existence of legitimate states as a starting premise, just as I accept common sense beliefs about personal ethics?

One reason is that I have never shared other people’s political intuitions, if that is what they are. I share most of the normative intuitions of my society, such as that one must not steal from, kill, or otherwise harm other individuals (except in certain special cases, such as self-defense); that one should generally tell the truth and keep one’s promises; and so on. But it never seemed to me that there were people with the right to rule over others, and it never seemed to me that anyone was obligated to obey a law merely because it was the law.

My intuitions are not entirely idiosyncratic. In contemporary political discourse, there is a vocal minority who advocate drastic reductions in the size of government . Often, they defend their views in practical terms (government programs don’t work) or in terms of absolutist claims about individual rights. But I think these arguments miss the main issue. I believe the true, underlying motivation is a broad skepticism about political authority: at bottom, the advocates of smaller government simply do not see why the government should be permitted to do so many things that no one else would be permitted to do. Even if you do not share this skeptical attitude, I would caution against simply dismissing the intuitions of those with differing ideologies. Human beings are highly fallible in political philosophy, and clashes of intuitions are frequent. Objectivity requires each of us to give serious consideration to the possibility that it is we who have the mistaken intuitions.

Those who begin with an intuition that some states possess authority may be brought to give up that intuition if it turns out, as I aim to show, that the belief in political authority is incompatible with common sense moral beliefs. There are three reasons for preferring to adhere to common sense morality rather than common sense political philosophy: first, as I have suggested, common sense political philosophy is more controversial than common sense morality. Second, even those who accept orthodox political views are usually more strongly convinced of common sense morality than they are of common sense political philosophy. Third, even those who intuitively accept authority may at the same time have the sense that this authority is puzzling – that some explanation is required for why some people should have this special moral status – in a way that it is not puzzling, for example, that it should be wrong to attack others without provocation. The failure to find any satisfactory account of political authority may therefore lead one to give up the belief in authority rather than to give up common sense moral beliefs.

Huemer, Michael (2012-10-29). The Problem of Political Authority: An Examination of the Right to Coerce and the Duty to Obey (pp. 16-17). Palgrave Macmillan. Kindle Edition.

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Bryan Caplan Foreshadows The Problem Of Political Authority in 1996

It can be fascinating to see how certain ideas evolve over time. I  found a usenet post from 1996 containing the following essay by Bryan Caplan, partly based on his conversations with Michael Huemer.  It foreshadows Huemer’s two most recent books.

The main thrust of the piece is an early version of the metaethical theory that Huemer fully develops in Ethical Intuitionism.

The conclusion almost reads like a brief synopsis of The Problem of Political Authority: (more…)

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How Libertarianism Trumps The State Without Relying On A Theory Of Property

Numerous critics of libertarianism today claim that it must rely on an unsupportable (or at least controversial) theory of property rights.

Huemer explains why this isn’t so:

“One might think the rejection of property rights leaves the way open for taxation: since taxpayers have no right to ‘their’ wealth, the seizure of some of that wealth will no longer appear as a rights violation. But by the same token, the state will have no right to that wealth either, and thus citizens do no wrong by withholding it. Meanwhile, there are the harms the state coercively imposes on those who fail to pay taxes, and these would seem to be prima facie injustices. In short, the defender of taxation must hold that the state, rather than the taxpayers, is justly entitled to the tax revenues that the state collects.”

Huemer, Michael (2012-10-29). The Problem of Political Authority: An Examination of the Right to Coerce and the Duty to Obey (p. 146). Palgrave Macmillan. Kindle Edition.

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If You Think Government Is Needed To Regulate Corporations…

“Many find the anarcho-capitalist vision a troubling one, chiefly due to a distrust of corporations. I will just make one suggestion for reflection. Imagine that someone proposed that the key to establishing social justice and restraining corporate greed was to establish a very large corporation, much larger than any corporation hitherto known—one with revenues in the trillions of dollars. A corporation that held a monopoly on some extremely important market within our society. And used its monopoly in that market to extend its control into other markets. And hired men with guns to force customers to buy its product at whatever price it chose. And periodically bombed the employees and customers of corporations in other countries. By what theory would we predict that this corporation, above all others, could be trusted to serve our interests and to protect us both from criminals and from all the other corporations? If someone proposed to establish a corporation like this, would your trepidation be assuaged the moment you learned that every adult would be issued one share of stock in this corporation, entitling them to vote for members of the board of directors? If it would not, is the governmental system really so different from that scenario as to explain why we may trust a national government to selflessly serve and protect the rest of society?”

Michael Huemer

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Bryan Caplan on Huemer’s New Trousers

I agree with Bryan Caplan that many readers may initially think that Huemer brings nothing new to the philosophy of liberty, that he is merely rehashing arguments they are already familiar with – but in this they will be wrong. Caplan writes:

“When people criticize The Problem of Political Authority, I often want to quote John Maynard Keynes on Huemer’s behalf:

Thus those who are sufficiently steeped in the old point of view simply cannot bring themselves to believe that I am asking them to step into a new pair of trousers, and will insist on regarding it as nothing but an embroidered version of the old pair which they have been wearing for years.

Huemer’s “new pair of trousers” is a libertarianism designed to be plausible to non-libertarians as well as libertarians.

How does he make his brand of libertarianism plausible to non-libertarians? He starts with moral premises most non-libertarians already accept, argues methodically and transparently, and generously considers a wide range of objections. When social science is relevant, Huemer appeals to mainstream economics, political science, and psychology – not the heterodox approaches that libertarians love so well. While I don’t expect The Problem of Political Authority to make millions of converts, it as broadly convincing as a reasoned argument for an unpopular conclusion can be.

How does Huemer make his brand of libertarianism plausible to libertarians? He escapes objections to rights-based libertarianism by turning the “Non-Aggression Axiom” into a “Non-Aggression Presumption.” He escapes objections to consequentialist libertarianism by taking this Non-Aggression Presumption seriously. The result is a position immune to all of the standard counter-examples to rights-based and consequentialist libertarianism.

As a free bonus, Huemer dulls the urge consequentialist libertarians often feel to stretch the truth, to make stronger claims about the benefits of libertarian policies than the evidence warrants. Thus, libertarians who oppose a war with Iran don’t need to confidently assert, “This war will clearly make matters even worse.” We should just stick with what we really know: “We shouldn’t murder thousands of innocent people unless we have strong reason to believe doing so will make matters vastly better. And we don’t have a strong reason to believe this.”[9]

When libertarians want to appeal to a broader audience, they usually dial down their rhetoric and their radicalism. The Problem of Political Authority dials down the rhetoric, but leaves the radicalism intact. Libertarians don’t need Aristotelian metaphysics, exceptionless moral axioms, or heterodox social science to call the entire status quo into question. Michael Huemer shows that common sense, common decency, and careful observation are more than up to the job.”

– Bryan Caplan, Plausible Libertarianism: Philosophy, Social Science, and Huemer

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