What I find most striking and notable the wake of the San Bernadino massacre is how much the anti-gun and anti-immigrant arguments have in common.
Here we are at the end of what essentially amounts to an apologetics guide to dealing with a particular type of heretic. That is, as devout libertarians, we have a burning zeal to reach the heathen masses. And some of the heathen are more heathen than others. The law-and-order cult is a particularly virulent form, and it not only has a long history to it, but it also has some of the most vocal advocates in today’s political culture, especially at a grassroots level.
So, let me take a break from the dispassionate analysis for a moment and suggest that, to some degree, resorting to insults and ridicule may be one of the stronger strategies. Just to clarify, I’m not suggesting that anyone engage in ad hominem attacks as ordinarily understood. Something like, “You support the cops only because you’re such a pathetic coward,” is not going to be effective, even if the person in question happens to be a pathetic coward. One can be a pathetic coward and justifiably fear and detest the police, too.
But shaming and ridicule serve a useful function when they’re focused on identifying both how poorly the position is defended and how disgusting many of its conclusions are. For example, people often reference Godwin’s Law as some kind of prohibition on comparing anyone’s ideas to those of the Nazis. But obviously, if someone were to explicitly say, “Hey, let’s round up Jews and gypsies and homosexuals, brand them, and then ship them off to detention centers,” then clearly they should be compared to the Nazis and rejected and shamed for the same reasons.
What libertarians recognize better than anyone is that outright slavery, a la antebellum South, and today’s world, where people can spend decades in prison for possessing a plant (or selling a book; RIP Irwin Schiff), is on a continuum, not a distinctly different type of existence. So, when you hear people advocate forcibly tattooing undocumented immigrants when they are arrested by the border patrol or ICE, it’s appropriate to call out the fascist nature of that act, even if you know the person saying it won’t support gas chambers and so on.
But that kind of comparison takes the right kind of person, the right kind of target, and the right set of circumstances to be really effective and not make one sound like an unhinged extremist (more so than usual). More likely to hit home is to key in on aspects of the traditions that the law-and-order crowd are happy to associate with and then point out how they’re constantly on the wrong side of that history. For example, the rhetoric of the British officials prior to the War of Independence is pretty standard law-and-order stuff, and it almost perfectly mirrors how modern-day conservatives talk about respect for the police, respect for the law, respect for authority in general, and so on. Probably those who are more adept at marketing will come up with better means, but I’ll just suggest referring to such arguments as Redcoat logic. Work within the system, don’t resist authority, submit to all orders immediately and without question, and generally just make sure that you know your place.
Of course, this is exactly what was said to the colonists even as they were doing the exact opposite. Point this out relentlessly. Force them to disavow their heritage if they want to hold on to this mentality. Make it clear how much they have betrayed their own country’s history and turned the nation’s founders into traitors and scofflaws. They’ll resist this, but unfortunately for them, the history is pretty clear here.
Another way of getting at this is to take their own rhetoric about the 2nd amendment and get them to see where it leads. For conservatives of the Tea Party variety, the 2nd amendment is a bulwark against a corrupt government. Its intent is to empower ordinary people to physically resist and threaten the power of the (federal) government if necessary. And if the 2nd amendment were ever in jeopardy of being overturned (which it’s clearly not, nor will it be anytime soon, but they continually believe that it is, so this is perfectly legitimate speculation and nowhere near unrealistic from their perspective), ask them what would justify resisting gun confiscation at that point. Most of them will ‘Like’ comments that imply (or outright state) that anyone coming to get their guns will pay the ultimate price for doing so. Ask them how that fits with the rest of what they supposedly believe about the law and about their duty to comply with it at all times, no matter what. This is very likely the one time they will have to admit to an exception. That admission is a key to undermining the rest of what they think on this question.
The line of thought here is that Authority generates Order, and Order allows for the protection of important attributes of society (Sanctity) while also allowing for Liberty, provided that Liberty doesn’t conflict with any of the other three. So, Liberty ends up dead last and always subordinate in relation to other commitments. The real problem here is the causal understanding of how these elements relate. Liberty ends up as an afterthought, something that you perhaps hope to get but that really has to wait for everyone else to get theirs first. That’s nowhere near how LnO advocates would normally present themselves. Get them to realize that they’ve placed Liberty as a consequence, rather than a foundation, of a healthy society.
Finally, you will occasionally run into people who openly recognize that what they’re advocating is a form of ‘might makes right.’ Not so much that they actually believe that might makes right, but that they realize that that is how things work, practically, and so, they have adjusted themselves to that world and are willing to figure out how things work best without getting deluded by some idealized view of the world. These people are actually some of the easiest to deal with, even if you can’t convince them to change their mind. They’re honest enough to recognize that the legal system and law enforcement in general amounts to bullying, and they don’t attempt to apply any shiny moral veneer to it. It stinks, but it stinks less than all the alternatives.
These people are at least potentially open to being shown an alternative. They don’t have an emotional investment in how things are. They aren’t going to go through any life-shattering crisis if it turns out that the apparatus of arbitrary forces we live with doesn’t actually hold society back from the abyss. Encourage them, don’t insult them, don’t try to shame them. Praise them for their honesty. And then give it time for them to open their eyes a bit.
Please feel free to share any success stories or any lessons on what not to do as you try to apply these ideas in the wild.
Thanks for reading.
Lynette is watching a youtube of Michael Crichton explaining to an audience of college students why the environmental movement looks like religion from an anthropological point of view.
During Q&A a student asks a 21st century question:
“What caused you to be so prejudiced towards this religion?”
Matt Zwolinski has a recent article in the Washington Post wherein he asserts that it’s insulting to even suggest that poverty is often the result of personal failings. He starts by noting that many Americans have a problem with the idea of the government taking money form them to hand to others with no strings attached:
Too often in the United States, welfare comes with strings attached. Yes, Americans are willing to help the poor; but they aren’t quite willing to trust them. After all, a lot of Americans still believe that people fall into poverty because there’s something wrong with them. Poverty is the material reflection of an internal moral failure.
And so, many of us believe that whatever aid we give to the poor should not be a “handout.” It must be conditioned on the poor correcting the personal failings that got them into poverty in the first place. We’ll help you take care of your children, but only if you get a job. We’ll help you buy food, but only with food stamps that we know you can’t spend on alcohol or tobacco.
So now one would naturally expect that Zwolinski will explain why this thinking is wrong, why it’s simply not the case that moral failings contribute to poverty, and thus no justification for thinking aid should be rendered conditionally. No such argument is made in the article.
Is there any reason to think that moral failings contribute substantially to poverty? Bryan Caplan makes a persuasive case that they do.
When someone asks for your support, it’s natural to wonder, “Why do you need my support in the first place?” Some answers are better than others. If your friend asks you to pay for his lunch, “I was just mugged” is a better reason than “I already spent my whole paycheck on beer.” If your girlfriend misses your birthday, “My car and phone both broke down” is a better reason than “I forgot.” If a co-worker goes home early and asks you to cover for him, “I have the flu” is a better reason than “I want to play Skyrim.”
The key difference: If there are reasonable steps the person could take – or could have taken – to avoid his problem. Your friend didn’t have to spend all his money on beer. Your girlfriend could have put your birthday on her calendar. Your co-worker could wait to play Skyrim. These steps may not be appealing, but they are reasonable. There are grey areas, but you can usually tell which is which.
I propose to use the same standard to identify the “deserving” and “undeserving” poor. Thedeserving poor are those who can’t take – and couldn’t have taken – reasonable steps to avoid poverty. The undeserving poor are those who can take – or could have taken – reasonable steps to avoid poverty. Reasonable steps like: Work full-time, even if the best job you can get isn’t fun; spend your money on food and shelter before you get cigarettes or cable t.v.; use contraception if you can’t afford a child. A simple test of “reasonableness”: If you wouldn’t accept an excuse from a friend, you shouldn’t accept it from anyone.
If I sound harsh, notice: by my standards, many of the poor are clearly deserving: low-skilled workers in the Third World, children of poor or irresponsible parents, the severely handicapped. Still, on reflection, many people we think of as “poor” turn out to be undeserving.
Let’s start with healthy adults in the First World. Even the least-skilled full-time jobs pay more than enough for adults to comfortably support themselves. In the U.S., the average income for janitors is about $25,000/year; the average for maids is about $21,000. A household with one janitor and one maid averages $46,000, enough to put them at the 96th percentile of the world income distribution – and well above the U.S. poverty line. Even Americans below the poverty line typically possess a long list of luxuries that the Kings of France would have envied: 80% have air conditioning, nearly three-quarters own a car, two-thirds have cable or satellite t.v., one-third have a plasma or LCD t.v. My point isn’t that all healthy adults in the First World do enjoy such living standards, but that there are reasonable steps they can take – or could have taken – to do so.
Caplan further points out that even if you have a more expansive view of the proper role of government, than libertarians do, “…you should still see a big difference between forcing taxpayers to help starving kids, and forcing taxpayers to help irresponsible adults.”
Zwolinski has debated these points with Caplan on the web, offering:
[T]he mere fact that there is a valid moral distinction to be made does not entail that we want our public policies to make it. It is, after all, difficult to discern between the deserving and the undeserving – maybe especially for governments, but for private charities too.
But Caplan points out it’s really not all that difficult to make such distinctions.
But on reflection, distinguishing the deserving from the undeserving poor is no harder than a thousand other moral distinctions we routinely make. Here are three plausible approaches:
1. Asking “Who is poor through no fault of their own?” The leading answers, of course, are (a) children whose parents can’t or won’t take care of them, and (b) severely handicapped adults. The common thread is that both groups have such low productivity that they even if they work hard, they won’t be able to support themselves. It’s tempting to add people who are too old to work, but we should resist temptation. They could have provided for their own retirement if they’d saved responsibly and prudently bought insurance.
2. Asking “Who is poor by their own fault?” The leading candidates are (a) unemployed adults who could at least find a low-paid, unpleasant job, (b) people who lose their jobs for tardiness, absenteeism, or insubordination, and (c) people who abuse alcohol and drugs. If the poor want subsidized health care rather than income, we should add smoking, obesity, and unsafe sex to the list of behaviors that make them undeserving.
3. Asking, “Who is poor because their rights have been violated?” Crime victims, slaves and former slaves, people punished for breaking unjust laws, and would-be immigrants are all good candidates. Two caveats: (a) In most of these cases, the victimizer should certainly be first in line to help, and (b) We should exclude cases where victimization could have been avoided or heavily mitigated by prudent behavior or buying insurance.
And Caplan explains why this matters:
…if you think reasonable people could disagree here, it’s an argument against forced charity. There’s always a presumption against initiating the use of force against a peaceful person. “Any morally reasonable person would agree that I’m forcing you to help the deserving poor” at least arguably overcomes this presumption. “Who knows whether the people I’m forcing you to help are deserving?” does not.
Zwolinski wants your money to be handed to other individuals. Are they deserving or your help? He simply characterizes the very question as insulting:
Paternalism isn’t just ineffective; it’s insulting. It presumes that the poor are incapable of managing their own lives. And it requires a great deal of invasive and degrading snooping on the government’s part to ensure that the poor are living up to the demands we’ve placed on them. Cash transfers, in contrast, give recipients the resources and responsibility to take charge of their own lives.
Here he seems to be saying that handing individuals unearned cash makes them behave more responsibly, but I see little reason to assume this is so. Or perhaps he means that they’ll have to take responsibility for their own lives because there will be noting more forthcoming from the public trough? Well 1) then simply removing the trough would make them take responsibility, and 2) it’s hard to credit the idea that proponents wouldn’t push for ever more benefits when poverty persisted in many families due to poor decisions. Suppose a family of five is given a BIG of $30,000 per year, which would put them just above the poverty level. To minimize paternalism they are handed a check for the full $30K on January 1st. Further suppose that by the 4th of July some significant number of families have little or none of their BIG cash remaining, due to decisions that didn’t work out well, and so face 6 months well below the poverty line. So, now what? I don’t believe that the BIG proponents aren’t coming back for another bite at the apple. I don’t believe the offer to simply *replace* the current welfare system is credible.
Reaching the end of Zwolinski’s article we find, oddly enough, that he isn’t really promoting a BIG any more because even he sees that it probably isn’t viable. Instead he says the government should just move toward such a system by turning existing welfare benefits into cash grants. Now would be an awkward time to mention that such steps fail to produce the supposed crucial benefit of a BIG – eliminating the perverse disincentive to work that the existing welfare programs create – and thus converting such programs to cash benefits really shouldn’t count as moving toward a BIG. In any case, he doesn’t mention that.
So the whole thrust of his argument in this article is just that all inconveniences currently entailed in receiving public assistance should be removed because it’s simply insulting to hold that existing poverty in the US could be significantly due to poor choices.
It seems clear to me that Caplan is correct, that most American adults can avoid poverty by simply making reasonable choices, and that those who fail to do so should be at the bottom of the list for even private charity. I oppose state welfare, but even if you believe it’s necessary you should still see how criminally wasteful (where public funds are concerned) it is to fail to discriminate between who is likely to use such money wisely and who is not.
Caplan summarizes his argument:
1. Claims about desert and poverty are meaningful. Asking, “Does he deserve to be poor?” can be rude, but that doesn’t mean the answer is “No.”
2. A person deserves his problem if there are reasonable steps the he could have taken to avoid the problem. Poverty is a problem, so a person deserves his poverty if there are reasonable steps he could have taken to avoid his poverty.
3. Common sense can usually resolve whether reasonable steps to avoid poverty were available to a particular person. A good rule of thumb: If you wouldn’t accept an excuse from a friend, you shouldn’t accept it from anyone.
4. The fact that a person deserves his poverty does not imply that it is morally wrong to help him.
5. However, the fact that a person deserves his poverty is (a) a strong moral reason to give him low priority when weighing how to allocate help, and (b) a strong moral reason not to force a stranger to help him.
6. The fact that a person does not deserve his poverty does not imply that it is morally wrong not to help him.
7. However, the fact that a person does not deserve his poverty is (a) a strong moral reason to give him high priority when weighing how to allocate help, (b) an extra moral reason for individuals morally responsible for his poverty to cease and remedy their wrongful behavior, (c) a moral reason to force these morally responsible individuals to cease and remedy their wrongful behavior, and (d) a plausible though not totally convincing moral reason to force strangers to help the deserving person if the benefits heavily outweigh the costs.
And further, I’d say the fact that welfare recipients have to jump through some inconvenient and unpleasant hoops to receive money that has been coercively extracted from others is generally a feature, not a bug. It’s an incentive to make better decisions.
One of Hoppe’s fundamental claims on immigration is that Americans are currently subject to substantial forced integration, as defined in Hoppe’s article On Free Immigration and Forced Integration (which Lew Rockwell cites as “the original, revolutionary Hoppe article on immigration”):
“…if the government admits a person while there is not even one domestic resident who wants to have this person on his property, the result is forced integration…”
I gather there are roughly twelve million illegal immigrants in the US. My first observation is that they seem to overwhelmingly reside on private property with the apparent consent of the property owners. Hoppe is claiming that many of them would not be welcomed by a single domestic property owner but are only here because the government prevents property owners from excluding them.
I don’t claim to be an expert in relevant law, but Nolo.com says it is legal to discriminate in housing on the basis of legal eligibility to work (which would allow the exclusion of illegal immigrants), except in California and New York City.
I’m also not an expert in the demographics of immigration, but this chart indicates that perhaps roughly 25% of the 12 million illegal immigrants live in California and NYC. Those are certainly significant populations but note that 75% of illegal immigrants live where property owners have the legal right to exclude them, thus indicating the consent of the owners for these immigrants to reside on their property. In this light there appears to be no forced immigration of illegal immigrants outside of CA and NYC.
Is there forced integration of illegal immigrants in CA and NYC? In a narrow but important sense there almost certainly is. In the absence of discrimination law which prevents property owners in CA and NYC from asking about employment eligibility it seems highly likely that some property owners would exclude illegal immigrants, and thus those property owners are subject to forced integration on their property.
Such forced integration is unjust and should be abolished, but notice that this is a far more narrow sense of forced integration than Hoppe actually posits, by his definition forced immigration exists when there are no property owners willing to voluntarily house a give immigrant.
So does Hoppean forced immigration exist in America? I see no strong evidence that it does. Surely some property owners in CA and NYC would exclude some illegal immigrants if they were legally allowed to do so, but that hardly means such immigrants would not be able to find a single property owner in the US willing to take them. Surely the overwhelming majority of illegal immigrants in CA and NYC are residing there withe the voluntary consent of the owners as in the rest of the country, and there’s little reason to think the rest couldn’t find other owners willing to voluntarily house them.
In this article Hoppe fails to make any persuasive case that forced integration, as he defines it, is actually happening in America.
Even though we’ve shown that LnO advocates are really ethical subjectivists of some sort, it’s clear that they have a very different self-perception. They are the most vocal critics of both moral and cultural relativism. (Libertarians are generally opposed to both kinds of relativism as well, but it’s easy for non-libertarians to miss this because there is such a wide gap between what libertarians consider immoral and what they think should be unlawful. So, libertarians can look like moral relativists to those who see little or no gap between those two categories.) They have no problem criticizing other cultures and expressing grave concern that their own national culture will become contaminated or perverted by excessive tolerance for differing views and values.
But a funny thing happens when asked about their own national history. Suddenly, things don’t sound so convincing. Is slavery bad today? Sure, obviously. Was it bad that George Washington not only owned slaves but actively sent out bounty hunters to catch and retrieve runaway slaves? Well, that was a different time, and you need to realize the context, and he did a lot of great things, and you really show your ignorance when you… blah, blah, blah. Suddenly, the conservative sounds exactly like the stereotype of the typical relativist liberal, making excuses for the practices of a different culture or refusing to pass judgment on anyone except those interested in passing judgment.
But is it simply a bias regarding the past? Not really. To see this, compare the assessment of the Holocaust and of the Japanese internment camps in the US during World War II. In general, you will find very few Holocaust apologists in the LnO crowd. (And those who are will probably identify as explicit racists or race-realists or something similar, so it has little to do with the LnO mindset itself.) Nor would they defend the idea of simply locking people up because they’re Jewish, homosexual, atheist, or some other similar trait. But when they examine the Japanese internment, we get a very similar tale as in the slavery case. “You have to understand the context of those times. They were acting based on the information that they had. It was credible that there was a threat, and this was a reasonable and humane way of dealing with it. Even if it turned out later to be incorrect, we weren’t there. It’s too easy to pass judgment on people when you know more than they did.” And so on.
So, it seems that there’s something else going on besides some irrational bias in favor of the past. It also seems to align with geography and national identity. (For example, abortion is almost always wrong and inexcusable, but killing the unborn is unproblematic if they happened to be living in Hiroshima or Nagasaki or Tokyo at certain specific dates in history.) Is there some logic to this? Not strictly, but it’s not entirely random, either. What it reflects is mostly unspoken commitments that most LnO advocates either take for granted or don’t even consciously acknowledge as the basis for their beliefs.
Moral psychologist Jonathan Haidt has proposed a 6-base model for moral decisions that he believes provides the best explanation for the disconnect between conservatives and liberals when they discuss political matters.
Briefly, the 6 bases are: 1) Care/Harm; 2) Liberty/Oppression; 3) Fairness/Cheating; 4) Loyalty/Betrayal; 5) Authority/Subversion; 6) Sanctity/Degradation
Haidt believes that liberals value (1) and (2) primarily, with relatively little regard for the others, while conservatives value all of them more equally. (And he sees libertarians as valuing only (2), with almost no regard for the other five.) I think that Haidt’s interpretation is somewhat inaccurate, but I won’t spend a lot of time on that here. The main point is that LnO advocates tend to be persuaded by the conservative biases, and this helps to explain their apparent inconsistency in evaluating the morality of various policies across time and geography.
For example, the conservative concern for Care/Harm is informed by their commitment to Loyalty, a sense of the value of the in-group as opposed to the out-group (with conservatives typically viewing the in-group in terms of national heritage and patriotism), and also by their commitment to the value of Authority, which we’ve clearly seen in earlier parts of this series leads them to view authority figures as semi-divine. Thus, their understanding of what counts as a harm is almost always weighted by these other value commitments. And so, they can be appalled if a foreign national beats one of their countrymen, but be not at all disturbed if a domestic authority figure beats a belligerent citizen to death. The Harm assessed in each case is very dependent on the perception of who is part of the in-group and who has legitimate authority. If you make the foreign national a police officer, then they end up having to decide which moral consideration trumps the other, but this just shows how flexible their understanding of Harm can be.
Another interesting example is how they view Liberty/Oppression. In general, their commitment to Liberty is in tension with their commitment to Authority, and it is also biased by Loyalty, similarly to how they view Harm. So, they give a lot of lip service to Liberty, especially as a reflection of how they perceive America as a land of freedom and overthrowing Oppression, but it’s very easy for Authority concerns to trump any particular expression of Liberty. The biggest struggle should be in their attempts to justify the founding of the United States. The colonists engaged in extremely disruptive acts that directly challenged Authority and made it nearly impossible to establish order, as conservatives would typically define it. Smugglers were considered heroic, and public officials were terrorized, or even killed, by the irate colonists. Yet, we typically hear the most praise for early Americans from conservatives because their commitment to national Loyalty is so strong, it is impossible for them to mount any serious critique of that history.
Finally, their strong commitment to Sanctity tends to make it difficult for conservatives to recognize the tremendous differences between current social institutions and those of the past. For example, the myth that marriage as a social institution existed pretty much unchanging for thousands of years, right up until about a decade ago when suddenly, out of nowhere, same-sex marriage became a serious proposal. The reality of how dramatically different current marriages are from even a century ago seems inconceivable to them. The idea that a stable social arrangement, one that has some presumed blessing from God even, is actually rather malleable and changeable over time is a shocking claim. Yet, we’ve already shown that they have no such qualms about embracing laws as they change repeatedly over time. So, here we see that other commitments can actually trump their views on Authority, in the right context.
(I should note here that liberals actually have strong commitments to the various bases, and Haidt seems to not recognize this as clearly as I think he should. For example, liberals are actually quite strongly focused on Sanctity. It just takes a different form, usually related to the environment and nature or to certain social concepts like Equality. They also have their own conception of the In-Group, but it tends to be more intellectual or class-based, rather than restricted by geography. And they tend to invest Authority in experts, particularly scientists and doctors, rather than law enforcement, though they do view entities like the UN and the ICC as particularly important, too.)
So, what’s the upshot of all this? We understand the LnO mentality a bit better by seeing that it’s driven by a lot of complex commitments, many of which are not explicitly acknowledged or recognized by those who have this view. And we can see that there is going to be a lot of inconsistency, both in terms of application to specific events and in terms of consistency across individuals holding this view, as each person has to make those judgments about what commitment trumps what or what commitment reinforces/weakens another one.
I think that most LnO advocates would ideally view themselves as moral realists. They would resist any suggestion that they engage in “situational ethics,” which is one of the worst things they can accuse someone else of doing. So, here is where I want to show that they don’t have to give up their basic moral commitments in order to embrace moral realism. Or, to put it another way, since they probably already believe they’re embracing it, here’s a better way of understanding the relationship between your commitments so that you don’t end up looking like the relativists you constantly accuse others of being.
There are really three commitments in (potential) conflict here: Liberty, Authority, and Loyalty. As a libertarian, it’s not going to be any great surprise when I suggest that Liberty take priority. But I don’t think this is that hard a case to make. The founding of the United States was really a story of placing Liberty above both of the other two: the colonists actively defied British authority (in the name of a Higher Authority, whether you want to cash that out as God or as inalienable human rights or something else), and they rejected claims by British officials that they remain ‘loyal’ to King George and to the commonwealth that they were citizens of, instead choosing loyalty to their respective colonies or other relevant groups.
So, this is not some strange idea. It’s just one that gets conveniently set aside as a historical exception or extreme circumstance rather than any kind of guide to future action. There are indications that these ideas have sticking power, though, as the TEA Party explicitly references an act of anti-corporate-state violence, something that was clearly not lawful and not promoting “Order” or “Authority” or “Loyalty” as it was understood at the time. The key may be tapping into that sentiment and asking people to view that rebellious attitude as more than a temporary excess or a kind of ‘lifeboat’/emergency response, but rather a mindset that should inform how they view government authority vs individual authority.
There is a natural appeal in a consistent moral framework, so it’s not difficult to convince people that consistency is good. It’s difficult when they feel that they must have some kind of balancing mechanism to decide between multiple valid, but inconsistent, commitments. They would be happy to find some consistency between them. But failing that, they aren’t necessarily ready to jettison any of them. The key is presenting a way to accommodate those concerns, not to tell them that those concerns are invalid.
I will go into more detail in the next and final portion of this series, where I’ll talk about what kinds of strategies might be most effective at convincing LnO advocates to re-assess their position and find a more consistent way of understanding (and embracing) Liberty as a primary value rather than a derivative one.
As an ex-catholic it seems to me the teachings of Jesus are on their face flatly incompatible with advocacy of any coercive government policy.
I’d really love to hear the Pope, Cardinals, and Bishops explain Christ’s position on the jailing of peaceful dissenters (and the killing of them if they sufficiently resist), something fully implicit in nearly every economic prescription they put forward.
Irwin Schiff may well die in prison for peaceful dissent on taxes. I cannot reconcile approval of such policies with the teachings of Jesus as the Roman Catholic church taught me. Yet such enforcement is necessary for the economic policies these men prescribe.
Well that just makes it seem like we could go on one of our notorious sprees at the drop of a hat, now doesn’t it?
Deal with it.
Now that we’ve identified the Law-and-Order (LnO) position as a variant of Ethical Subjectivism (ES), let’s see what the inherent weaknesses of that meta-ethical position are. Whatever is true of the more general theory should also be true of the specific form we see in LnO theories. What is particularly interesting about the LnO position is that it manages to combine the weaknesses of several variants into one.
A. Circularity and Infinite Regress
A theory of obligation or justice should be able to tell us something about the nature of what we’re obligated to do or what counts as justice. One big problem with ES is that we have to define what is ‘good’ or ‘just’ in terms of itself. So, for example, if the law is just, by definition, then what is ‘justice’ itself? Answer: whatever the law says it is. If it’s not obvious why that’s a problem, consider this example.
A baseball umpire is supposed to declare which pitches are counted as ‘strikes’ and which as ‘balls’ so that the other players can determine when a particular batter is supposed to step down and allow the next one up to bat (or when the inning is at an end). But is a particular pitch a strike or ball because the umpire says it is? Or does the umpire call those pitches strikes or balls because they *are* a strike or ball? If the former, then we can’t really know what a strike or ball *is* in itself. (This also leads into the ‘infallibility’ problem below.) But if it’s the latter, then we are recognizing that there is something else, outside of the umpire’s judgment, that is supposed to be causing (or at least, significantly influencing) the umpire’s declaration.
So, we could then talk about how a strike is defined in terms of what boundary markers the ball is passing through, and that a ball is similarly defined as the negation of that definition. And we can understand that an umpire could make a mistake in calling something a strike that is really a ball, and vice versa, without encountering any logical paradox along the way. And even for those who would generally say that the umpire should be deferred to, even if it appears that a mistake was made, the idea of an external, objective standard that such calls can be measured against does not strike any baseball fan as problematic.
This is why Leslie Nielsen’s ridiculous umpire calls in The Naked Gun are so funny. If everyone took ‘ball’ and ‘strike’ to merely consist in what the umpire says they are, then there would be nothing particularly absurd about him making whatever calls would please the audience the most.
The infinite regress issue comes up this way. If we say that:
[x is just] = [the law says that x is just]
then, this implies that:
[the law says that x is just] = [the law says that [the law says that x is just]]
And the chain of inference can be extended indefinitely in this way.
B. Approval-based Justice
Of course, people may try to get out of it by suggesting that the law is just because it is declared so by the legislature or by The People. This either resolves back to the circular argument (such as, when the legislature simply says that ‘justice’ is whatever the law says it is) or it leads to identifying justice as mere approval. So, compare the following two statements:
- The legislature and/or The People approved of forbidding inter-racial marriages at one time
- Marrying someone not considered the same race was unjust or otherwise immoral until recently
The first seems trivially true (unless you’re deeply ignorant of American history), while the second seems obviously false to most people. So, grounding justice in terms of either the approval of elected officials or of The People, however defined, seems to lead to contradiction pretty quickly.
The other main problem with an approval-based view is that it’s extremely difficult to explain where disagreements about justice come from. If justice is simply a question of what the law says, then the proposition “this law is unjust” becomes nonsensical in the same sense as “this geometric figure is a square-circle.” At best, people can disagree about what the law is, in fact, saying. So, it becomes a pedantic exercise in legal exegesis. And here, we might see a glimmer of some objective analysis, where specific court decisions are cited, specific principles of legal analysis are invoked, and where specific facts may come into play in determining the ‘right’ application of a law. It sounds like people are indeed grappling with the definition of a strike as it matches some reality.
And yet, if the Supreme Court puts forth a judgment, but they get some aspect of the process just described wrong, it doesn’t matter in terms of what counts as ‘lawful,’ and those who are committed to the LnO position do not generally advocate that the judgment is invalid or should not be treated as a lawful judgment. So, it begs the question, what was it that they were debating beforehand? What standard were they appealing to if any such consideration would ultimately give way to the decision handed down, regardless of its content? And why abandon that standard post-judgment if it appears that the judgment itself has little or no connection to it?
One might say that the analysis was not so much about discovering something apart from the judgment, but rather, it was an attempt to influence the judgment in a certain direction. In that sense, one might count legal briefs as prayers. Not that we can know the divine will, but we hope to influence it through persuasion. But in that case, it’s not clear how to distinguish such arguments from wishes, dressed up in some formal language that satisfies some ritualistic function only.
I don’t think any of those ways of characterizing the various debates that take place is at all satisfying to those who participate, nor accurate to how they think of themselves and their activities. Yet, their position makes it difficult, if not impossible, to characterize it any other way.
C. Distinguishing pragmatic from moral
Let’s suppose that you disagree with the schedule that is used by the garbage trucks and want it changed. Instead of coming by on Tuesday and Friday, you think Monday and Thursday make more sense. There are various steps you would have to take in order to bring about this change. Those might include writing to your local city council, contacting a representative of the sanitation department, distributing a petition in your neighborhood, taking out a newspaper ad, making a speech in a public park, and so on. There are many ways that you can attempt to make this change. All-in-all, though, this is a relatively minor thing that you’re attempting to do, even if you think it’s a good idea.
Now consider if you disagree with the laws that govern abortion. There are a series of steps you would have to take in order to bring about that change, too. But they really don’t differ at all from what I’ve already mentioned. The only difference between the two cases will be the relative passion of the people involved in the issue and the particular groups you would have to coordinate with, but in practical terms of what methods you would use, they’re identical.
And in both cases, if you end up losing, you do the same thing. You abide by the existing law and decide whether it’s worth it to try changing it again. Or if you decide to break the law, you expect to be either fined or jailed or both for your efforts. And as far as the LnO position goes, you’d be in the wrong in both cases, and that’s true even for those who believe that abortion is a very serious moral wrong, but think trash pick-up days are entirely arbitrary.
So, we end up with a theory that makes it impossible for those who *do* recognize deep moral differences between various activities to actually treat them as different by their very own theory of justice. Imagine that we were looking in on an alien society that had a similar philosophy. We have no context for understanding their moral concerns and want to learn what they might be by studying their legal system. How would we be able to draw any conclusions from such an examination? Would the number of regulations for a particular topic be a clue? Would the relative stability or instability of various laws be a clue? I think it would be nearly impossible to tell the difference on that basis alone.
And that means, the LnO position commits one to treating moral commitments the same way as purely pragmatic concerns. If those who advocate LnO had relatively mild sentiments about morality and about its impact on society, that might be more understandable. One might expect that pure utilitarians wouldn’t be too troubled with such an approach. But that is not the typical profile for LnO advocates.
As alluded to above, one consequence of the subjectivist view is that it generates the absurd conclusion that laws are inherently just. One easy way to see this is to consider the following:
- It is unjust to take unjust actions
- It is wrong to disobey the law
Imagine that you are committed to both (a) and (b). Now imagine that the law commands an unjust action or forbids one to take action where inaction would be unjust. It would be impossible to live by both commitments. If you obey the law, you’d be committing an unjust action. Whereas, if you do what is just, you’d be disobeying the law, which is wrong. So, what is the proper course of action when faced with an unjust law?
There are two main answers given, neither of which are particularly convincing.
The first answer is that one should obey the law, even an unjust law, and work within the system to change it if you believe that it is unjust. Thus, if inter-racial cohabitation is illegal, then you should not attempt to break those laws but should, instead, seek to get them changed, even though you may live your entire life and not see such a change. Likewise, if you are a government official (or a jury member entrusted with passing judgment), you have a duty to enforce the laws, even the ones you consider unjust, as long as you remain in your position. So, if someone is on trial for breaking an unjust law, and you, as a juror, believe that they did, indeed, break that law, then you have a duty to vote for conviction.
One can understand this position a bit better if one considers the difference between act- and rule-utilitarianism. One acts in such a way such that the long-term, systemic good is served, not what serves the short-term, particular good. So, quite literally, some individuals must be sacrificed for the greater good because it leads to Order. It seems that such a system should be re-named then. Instead of a Justice System, we should simply refer to it as the Order System or similar.
The second answer is that one can break unjust laws, but that one is never justified in evading or otherwise failing to face the punishment attached to such disobedience. So, if a law were passed that forbid certain religious speech, then it would be fine to break that law, provided one did not resist when the police came to arrest you for it and that you did not attempt to escape jail if convicted. (I’m unclear whether it would be permissible to plead Not Guilty and attempt to avoid conviction, under this view, but I can imagine it going either way.)
What’s puzzling about this view is the idea of separating punishment from the law itself. Imagine a world with no penalties attached to any law. There are a million regulations and plenty of laws against theft, murder, fraud, drugs, prostitution, pornography, paying workers below a living wage, selling trans-fats, and so on, but absolutely no consequence for violating such laws. Would that even count as a legal system? It seems that there is no real meaning to a law apart from what consequence it entails.
But even if we could imagine such a thing, it doesn’t really make sense on its own terms. For example, you could imagine the following law:
It is illegal to preach a sermon on any day of the week besides Sunday, and anyone doing so will be imprisoned for 5 years.
By the above understanding, it would be fine to break this law, but it would not be fine to avoid the 5 years in prison.
But we can imagine this variant:
No one who preaches a sermon on any day of the week besides Sunday shall fail to submit to the police and reside in prison for 5 years thereafter. Anyone failing to abide by this will be imprisoned for 5 years.
Now, this is also an unjust law, and it has a penalty attached. And so, if you disobeyed the first, the second would get you since, for whatever reason, you can only dodge the first part of the law.
But then imagine the following two variants:
- No one who preaches a sermon on any day of the week besides Sunday shall fail to submit to the police and reside in prison for 5 years thereafter. There is no penalty for breaking this law.
- Harold Green must not resist being taken to prison for 5 years. The penalty for breaking this law is to be taken to prison for 5 years.
Now, in (a), we have the toothless law problem as above. You’re free to break the unjust law, and then, nothing happens. And in (b), you can apparently resist, but you also can’t resist. Or perhaps you get to resist once, but not twice. Or perhaps you can resist the initial arrest, but you can’t escape from prison. I’m not sure what the best reading would be, but the point is, it’s absurd no matter how you slice it.
Separating punishment from the law is to misunderstand what the law is. It’s an incoherent view that only serves to offer a rather poor version of protest to take place, as long as it’s not actually disruptive. In other words, go ahead and break laws you don’t like, as long as you agree to go to jail for it. And again, it means that there’s no way of distinguishing just from unjust laws in terms of how we treat them. The law is to treated as infallible at all times.
So, just briefly, these are the main failings of Subjectivism, and ones that show up in various ways in the LnO position.
- The Problem of Horrifying Laws – Any law, no matter its content, must be treated as valid and binding
- The Problem of Disagreements about Justice – There is no coherent account of what it is that people are disagreeing about when they debate laws
- The Problem of Arbitrariness – It is implausible to attach moral obligation to the arbitrary decisions of bureaucrats and politicians
- The Problem of Fallibility – It is implausible that one can believe that politicians are routinely wrong in their moral judgments and also believe that what they command is just
In Part 4, I will argue that LnO advocates generally reject Ethical Subjectivism in their daily lives and in their attitudes towards moral concerns and that they would more naturally be inclined towards some version of Moral Realism.
What’s surprising about the law-and-order position is that those holding it have a relatively strong disposition for moral realism (if not full-blown, at least in the spirit of it) but end up having to embrace ethical subjectivism. They will ridicule ‘situational’ ethics, where moral judgments vary by factual context, and yet propose that moral judgments vary by arbitrary legal contexts. They talk about fairness and inalienable rights, yet see no problem granting special powers and privileges to police and military that routinely override such rights. (Compare, for example, principled positions on abortion that allow for no exceptions, even in the case of rape of a minor, with the support for military actions such as the Hiroshima and Nagasaki atomic bombings, where unborn children were most certainly killed, and other minors were either killed or horribly mutilated.) So, what leads them to these mismatched positions, and why do they not feel the tension between them?
One motivation is the embrace of a Hobbesian view of society where people have no inherent capacity or motivation to peacefully cooperate. Even in situations where we stipulate that people are sufficiently motivated, they view the lack of central enforcement of laws (or rules, more generally) as making it impossible for people to peacefully resolve disputes. Without any clear guide, everyone will propose their own standard, none of which will be accepted by everyone else. Thus, conflict will increase at every turn, and society itself will crumble into some version of the war-of-all-against-all.
Whatever will save us from this horrible fate? Well, that’s a fairly familiar tale—at least, familiar to most market anarchists—by now. (Every dispute requires a third-party, and (obviously) it must be the same third-party every time (judicial). We require a set of rules that are public and agreed on, subject to change, but relatively stable (legislative). And enforcement of such decisions must be capable of overwhelming any resistance that might be offered by those who dislike the results of the other two processes (executive). There are variations, but that’s the general pattern.)
So, the real issue here is that agreement, even if it’s agreement to abide by arbitrary rules, is better than honest disagreement. Order is better than justice as an organizing principle. Or perhaps more accurately, order is a prerequisite for justice to emerge. And that means we are abandoning free market principles in order to save the free market—except replace ‘free market’ with ‘justice (system),’ and we see the foundation laid. The only difference is that Bush’s line about markets was perceived (wrongly) as a temporary deviation from some core principles, whereas this understanding of how laws work is the norm. It’s not a temporary condition on the way to something better.
Let’s very briefly go over the main features of moral realism (MR) and ethical subjectivism (ES) to see where the real tension is. Both MR and ES are meta-ethical views, which means, they are talking about what it means to have an ethical rule, not spelling out which ethical rules are true. So, the view that abortion is wrong, except in cases where the mother’s life is at stake, is an ethical position, but it’s one that could be held by either a moral realist or an ethical subjectivist. (It could not be held by a nihilist, but that’s only because they can’t hold that any action is morally wrong, not because they have a special belief about abortion.)
Both MR and ES agree that moral statements are meaningful. This sets them apart from non-cognitivists who maintain that “murder is wrong” is akin to nonsense. They also agree that there are at least some true moral statements. This sets them apart from nihilists because nihilists think that “X is wrong” is saying something, but it is just always false.
Where they diverge is on the question of what is the truth of moral statements dependent. For ES, it is dependent on the attitudes of a person or persons; MR rejects this. So, ES may ground it in individual perspectives (usually called moral relativism) or in cultures (cultural relativism). Two other alternatives that are less popular ground it in either a divine being or in an idealized human observer. The divine version, usually called Divine Command Theory, is the ultimate version of “because I said so.” To illustrate the difference, here is what a prohibition against rape is really saying, according to each version mentioned:
MR – slavery is always wrong, regardless of what anyone thinks about it
ES (individual) – slavery is wrong for me, but I can only speak for myself
ES (cultural) – slavery is wrong in this country now, but it wasn’t always that way (and that’s fine)
ES (DCT) – slavery is wrong for now because God says so, but it may have been right in the past, and it may be right again in the future
ES (IOT) – if someone were aware of all relevant facts about the world and had no prejudices or biases, they would conclude that slavery is wrong
To be clear, very few people actually express themselves in these ways. But these are the core of how they implicitly think about moral truths.
What I propose is that the law-and-order position is best understood as a hybrid of the ES (cultural) and ES (DCT) positions, where the state is a stand-in for ‘God.’ (One interesting difference is that ordinary people can become part of the ‘divine’ order. So, we’re dealing with some kind of panentheistic God perhaps.) But it’s worse than that because even those who make up the divine institution can disagree amongst themselves or act in contradictory ways. It might be more accurate to say that there are many gods, and all must be obeyed, even if this is impossible.
For example, a police officer may attempt to detain a person for an unlawful reason. Or they may try to detain a person for a lawful reason, but they apply the law in an unreasonable way. Or they may try to detain a person for a lawful reason and do so in a reasonable manner. The law-and-order position would assert that the duty of the potential detainee is identical in all those cases. Regardless of the legality and proportionality of the officer’s actions, the potential detainee has a duty to immediately and fully comply with all orders. Failure to do so poses a potential threat to the officer, even if the officer is acting unlawfully, and this means that any amount of force can (and should) potentially be used to enforce the detainment, including lethal force.
This attitude was on full display in the case of Eric Garner when a group of police officers attempted to detain a man known to them as a seller of loose cigs, the sale of which was seen as cutting into the tax revenue collected locally. The cigarettes would sell for anywhere from 50 cents to 75 cents a piece, and this was sufficient reason for the police to forcibly detain Garner. Having been harassed in this way several times previously, he decided to not cooperate. As a result, the police officers, working as a team, murdered him in broad daylight by choking off his airway, and they were even filmed doing so. (It was portrayed in the media that his death occurred later on during the ambulance ride perhaps, but it’s clear from the medical evidence and the behavior of medical personnel in the video that he was dead within moments. More disturbing and chilling is the total lack of concern expressed by either the police or the medical personnel during the incident.)
After this incident, there were many justifications given by law-and-order supporters, which mainly focused on Garner’s role in causing his own death. Specifically, his failure to immediately submit to the officers’ orders presented them with the imminent collapse of society itself. In the event that they had failed to completely subdue Mr. Garner, it would send a clear message that the law could not be enforced. Immediately following this revelation, chaos and anarchy would result as people decided to break any law at any time for any reason, knowing that there would be no consequences. The legislature would also shut down, knowing that their pronouncements were mere theater, and likewise, all judges, prosecutors, and other prison officials would simply walk off the job, realizing that they had lost all ability to regulate the behavior of others.
This may sound like some great sarcastic comment on my part, a bit of exaggeration or hyperbole to mock the position of others. But really, what I’ve said is almost literally the fear that was expressed by law-and-order advocates. Failure to subdue Garner would have been a slippery slope that would literally dismantle the entire fabric of law and society itself. This sounds fantastic, but it’s truly how they think about these things.
Never mind that laws are broken by almost everyone, just by the nature of regulation. Never mind that laws are enforced very selectively and have been for a very long time. Never mind that laws are enforced in contradictory ways quite often. For whatever reason, none of those features are enough, but a man who sells 75-cents worth of contraband is enough to bring down the whole house of cards if he’s not snuffed out.
So, we are to think of the police (and other relevant bureaucrats) as gods walking amongst us, or at least, avatars of the divine. What is right depends ultimately on the attitude and opinion of any/all of these gods, moment to moment, regardless of any other constraint.
This is a strange hybrid of Divine Command Theory and Cultural Relativism. In the next section, I will look at the general category of Ethical Subjectivism and point out the key weaknesses that any version of it faces. After that, I will return to the law-and-order position and apply those insights to its specific features.
Post-script: In case any readers think I am foolishly exaggerating when I say that the law-and-order position puts the police in the role of divine agents, or divine persons even, consider the following recent statement by a Texas sheriff:
Mark Penman was a hardcore libertarian who was funny as hell. He committed suicide in July of 2001. Earlier that year he had given me permission to republish his articles at No Treason. I downloaded his entire web site after his death, and when his site went dark some time later I resurrected it within NT’s domain so people would still have access to it.
Having recently brought NT back I was looking into whether I should put Penman’s site back up. Happily, I see that someone else has already restored the entire site at http://laissezfirearm.info/
I know many libertarians who think there is really no such thing as a left libertarian; I’m not one of them.
For instance, Charles Johnson (aka Rad Geek) is certainly a man of the left and certainly a libertarian. I’ve read his posts for years and he says many wise and reasonable things with which I fully agree. Sometimes though, his leftist commitments have him saying things I can make no sense of.
From an article Rad wrote with Roderick Long:
When radical feminists say that male supremacy rests in large part on the fact of rape—as when Susan Brownmiller characterizes rape as “a conscious process of intimidation by which all men keep all women in a state of fear” (Against Our Will, p. 15)—libertarians often dismiss this on the grounds that not all men are literal rapists and not all women are literally raped. But when their own Ludwig von Mises says that “government interference always means either violent action or the threat of such action,” that it rests “in the last resort” on “the employment of armed men, of policemen, gendarmes, soldiers, prison guards, and hangmen,” and that its “essential feature” is “the enforcement of its decrees by beating, killing, and imprisoning”, libertarians applaud this as a welcome demystification of the state. Libertarians rightly recognize that legally enacted violence is the means by which all rulers keep all citizens in a state of fear, even though not all government functionaries personally beat, kill, or imprison anybody, and even though not all citizens are beaten, killed, or imprisoned; the same interpretive charity towards the radical feminist analysis of rape is not too much to ask.
I don’t think the attempt to parallel “all men keep all women in a state of fear” with “all rulers keep all citizens in a state of fear” works at all.
A “ruler’ in this sense is a ruler by choice. All such rulers intend to rule, they all freely choose to engage in unjustified aggression, whether they understand it to be unjustified aggression or not.
Can we reasonably say that all men freely choose to keep all women in a state of fear? I didn’t choose to be a man, nor do I think the fact that I’m a man commits me to keeping all women in a state of fear.
When Rad says, “…libertarians often dismiss this on the grounds that not all men are literal rapists and not all women are literally raped”, I find the use of the word “literal” particularly striking. He could have simply said not all men are rapists and not all women are raped, but that would not really suit his analogy to government functionaries. When an IRS agent, or some other state functionary, directs you to do something as a legal part of his job you are under the threat of force to comply, so each such individual directs violence against you in a very real sense.
If his analogy is sound it would seem that Rad, a man, considers himself *some* sort of rapist, or at least someone who keeps all women in fear by invoking violence against women.
I’n that case it seems fair to ask Rad what sort of rapist he considers himself to be, and why he chooses to keep all women in a state of fear.