Law and Order, Part 3

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.

D. Infallibility

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:

  1. It is unjust to take unjust actions
  2. 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:

  1. 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.
  2. 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.

E. Conclusion

So, just briefly, these are the main failings of Subjectivism, and ones that show up in various ways in the LnO position.

  1. The Problem of Horrifying Laws – Any law, no matter its content, must be treated as valid and binding
  2. The Problem of Disagreements about Justice – There is no coherent account of what it is that people are disagreeing about when they debate laws
  3. The Problem of Arbitrariness – It is implausible to attach moral obligation to the arbitrary decisions of bureaucrats and politicians
  4. 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.

Law and Order, Part 2

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:

Texas Sheriff Says You Have To Obey the Police Because Their ‘Authority Comes From God’


Still Locked, Loaded, and Liquored-Up

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


What Sort Of Rapist Are You?

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.

– from Libertarian Feminism: Can This Marriage Be Saved?

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.

Seven Habits Of Highly Affective Libertarians


1. Be A Dandy

For unfathomable reasons, many find foppishness disarming. A disarmed individual is a pliable individual.

2. Focus On Style Over Substance

Substance can often be divisive, but Style never goes out of fashion.

3. Hug It Out

Gentle physical contact can induce a mild, warm, emotional haze in others which makes it easier to to bypass their critical faculties.

4. Tell People You Admire Them (Even When You Don’t)

The gentle lubricant of fawning flattery will often predispose others to accept whatever you say. It sounds silly, but it works wondrously.

5. Steer Inconvenient Arguments Offline

When posting online you may sometimes find that certain objections from others make your own argument look bad. When you see this starting to happen, make every effort to entice critics to present their full argument to you at length in private conversation – where others need not be disturbed. Listen attentively to their concerns while lavishing attention on any sore spots to help them get it out of their system. Critics become far less disagreeable during a soothing intellectual refractory period.

6. The Charm Offensive

Integrate all of your affective tactics into a unified coherent campaign. Each verbal flourish and rhetorical caress should ideally seem to flow naturally from a single enchanting pool of serene wisdom.

7. Remember: It’s Not Really About Libertarianism

In truth, few find libertarianism attractive, but the charm offensive of a consummate dandy has it’s own rich rewards.


Welcome to No Treason: The Next Generation.

Aside from a reboot in 2012 that lasted about six months, No Treason has been dormant and mostly unavailable for seven years. But now we’re back, and this time it’s for all the marbles. Or something.

Not only are we back, but we have fresh blood (Or is it fresh meat?): We are pleased to welcome Nathan Byrd as the first new blogger at No Treason in many years. (We would appreciate it if you held off on telling him what happened to all the other bloggers, at least for a while. (He’s so *new*…))

Byrd already has two articles ready for you perusal: Taxation As Penalty and Law and Order, part 1. I know what you’re thinking: “Part 1?” That’s right, he’s doing a series! Is this great or what?

I therefore invite the fans of No Treason to welcome our newest blogger as only they can, and I’m reasonably confident he may survive the process.

Make it so.

Law and Order, part 1

In recent years, there has been a greater awareness of the dynamics of the police, especially in relation to race, but also in regards to the militarization of the police over time and perceived abuses of police authority.  Sites like CopBlock, FilmingCops, TheFreeThoughtProject and others routinely collect and display audio/video, news stories, and public records that document these incidents.  Others are a continuation of efforts going back decades, such as Radley Balko’s ‘The Agitator’ blog.  (Balko is also the author of ‘The Rise of the Warrior Cop’ (2014).)

Libertarians are not new to this discussion by any means, and there are other political groups that have weighed in on these issues for many decades, even centuries.

The response from liberals and conservatives tends to follow certain predictable patterns.  The liberal response is a familiar “more regulation, better demographic representation, federal oversight of state and local police abuses,” while the conservative response tends to either deny that a problem exists or to blame victims of abuse (either individually or collectively, or both, depending on the circumstance), or even to suggest that the police are actually too weak.  (One can easily see the parallels to attitudes towards military action, though that’s not the direct subject of this series.)

What I want to focus on in this series is the particular attitude expressed by many conservatives about the role of law, of authority, of obedience, and of order.  In brief, there are several core beliefs that can be loosely described as a ‘law and order’ mentality.

1. Without law, people would act as they saw fit.

2. This would lead to chaos.

3. We need laws. (Derived from 1 and 2)

4. Fortunately (or providentially), we are a nation of laws.

5. Law is meaningless without enforcement.

6. Enforcement requires enforcers (which means, people invested with enforcement authority).

7. Disputes of law must take place in courts.  (Derived from 1 and 2)

8. Therefore, every citizen has a duty to submit to the authority of enforcers, even in cases where the enforcers are not actually obeying the law.

There are some unstated assumptions in here, as will be obvious to most libertarians who have dealt with Hobbesian arguments.  For example, it’s assumed that having law requires having a single source of law, a single enforcer of law, and a single interpreter of law.

Note also that this argument makes no reference whatsoever to the content of the law.  It does not require that the law be just.  In fact, it is often difficult to understand the concept of an ‘unjust law’ in this view as it is almost reduced to a contradiction in terms.  Justice is viewed as that which promotes order, and since laws promote order (and are very nearly treated as the only source of order), an unjust law would be something that both promotes and detracts from order.  At best, one could talk about a ‘bad’ law or an ‘ineffective’ law.

Of course, the natural counter-examples to this idea would be familiar ones that even conservatives readily acknowledge: the Fugitive Slave Law and the Nazi Jewish regulations.  In both cases, it seems obvious that no one had a duty to obey (or enforce) those laws, and indeed, it’s easy to view those who resisted them as heroes.

This is not a very effective way of casting doubt on the ‘law and order’ mentality, though, as they tend to simply dismiss such examples as outliers that should not be used as a basis for critiquing laws in general but, rather, oppressive regimes.  Similarly, pointing to North Korea or the Stasi does not seem to cause any doubt in their minds.  Perhaps the specter of anarchy and chaos is so apparent, and the distance between present circumstances in the West and those in North Korea so great, that this does little to unsettle their position.

Alternately, one can try to defeat this approach by embracing it.  Specifically, one could argue that the way that the police operate is actually against the Constitution and not a faithful representation of its principles.  (For example:  Unfortunately, this approach requires convincing them of certain principles of Constitutional interpretation, and that may prove at least as difficult as any other approach.

Yet another method is the historical appeal, since conservatives are rhetorically wedded to the founding of the country and cannot easily dissociate themselves from the stated principles and actions of its founders.  Thus, one can show that many of the founders were, in fact, law breakers and saw no duty to comply with British law when it was deemed unjust.  In fact, it can easily be argued that the tradition of dissent and disobedience is far more American than that of compliance and obedience.  Most of the arguments listed at the beginning here are those that we see coming from the British officials at the time, not the American colonists.  And thus, the ‘law and order’ approach appears to be a Redcoat tradition, not a truly American one.

I think that can be a promising approach, but it can also be dismissed on various grounds.  Unfortunately, those grounds tend to be nativist, race-/culture-realist, or some other equally disturbing version.  The only good result of that response is that it exposes some of the underlying, unstated beliefs.  But ultimately, it tends to reduce to typical liberal-vs-conservative arguments over crime and race.

What I’m proposing to do instead of the approaches mentioned already is the following:

In Part 2, I will show that the ‘law and order’ argument is a subtle variation of the Divine Command Theory of ethics.

In Part 3, I will look at the broader category of Ethical Subjectivism, of which Divine Command Theory is an example, and what its key weaknesses are.

In Part 4, I will argue that most ‘law and order’ advocates would ordinarily reject Ethical Subjectivism and instead embrace some version of Moral Realism.

In Part 5, I will conclude by adapting the conclusions of Parts 3 and 4 to show that ‘law and order’ arguments put their advocates in a difficult position where embracing ‘order’ as an ultimate societal value is a genuine threat to the realization of other core values and beliefs that they hold and have even greater desire for society to embrace and reflect.

Taxation as Penalty

“That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create;”
– Chief Justice Marshall, McCulloch v. Maryland (1819)

“Government taxes what it wants less of.”
– Commonly heard modern-day version

The first statement is generally true, while the second is generally not true, or at least, there is no necessary connection between the two things. Yet, the second is often stated as either a summary or a consequence of the first. Where is the difference exactly, and why do people who think they’re similar make this mistake?

First, why is the original statement true? Well, it’s mostly true, not strictly, axiomatically true in some lock-step logical manner. It’s true, to the extent that it is enforceable, because if taxation is increased to 100% on some product or activity, then there is no economic reason to produce that product or engage in that activity. A tax of 100% on income of any kind would effectively be slavery. (The history of tax revolts shows that you don’t need anywhere near a 100% tax rate to make taxation unenforceable. But there is as long a history of actual slavery, too.)

So, it’s easy to see that taxation can destroy an economic activity. Tax blueberry muffin income at 100%, and you won’t get very many blueberry muffins sold anywhere.

When we look at the second statement, though, we’ve moved from a statement about power and cause-and-effect to one about goals. In short, the first statement is one of means, and the second is one of ends.

Consider the story in The Seven Samurai (1954) by Akiro Kurosawa where a band of raiders plans to take most of the harvest of a local village. The first statement above could be re-stated as such: “The raiders have the power to destroy the village by taking all their food (or enough that they starve anyway).” But the second statement, similarly re-stated, makes little sense: “The raiders want the villagers to produce less food.”

Of course, it may be that the raiders are a combination of opportunistic and sadistic and would really like to see the villagers dead. But it’s easy to imagine that the raiders would be quite happy to have the villagers continue to produce food, even at a higher level, so that they might return season after season and steal from them. This makes perfect sense as a long-term plan, and if anything, the raiders should be quite happy to see the villagers produce more food than ever if that were possible.

Consider another story, that of Robin Hood, wherein a tyrannical usurper taxes the local populace mercilessly. As Rothbard says, the government is a gang of thieves writ large, and there is no essential difference between the two stories in that sense. And again, we don’t see the villainous king wishing for the population to have less income necessarily. He may wish it to the extent that a poorer population is less capable of fighting back, but this must be balanced against the fact that a starving population is not a great tax base, either. All else equal, he wants the tax revenue to increase.

Again, we see that the second statement is not necessarily true, even in cases where taxation is heavy-handed and vicious.

So, why does it seem like such an obvious conclusion to many?

At least partly, it stems from the idea of Pigouvian taxation of externalities. The actions of some (wrongly) impose costs on others. Taxing those actions will thereby reduce (or eliminate) those actions and thus reduce (or eliminate) the costs put on others. Here we have a clear connection between means and ends; taxes are the means, reduction of an activity is the end.  And with this connection, it’s easy for some to then view that means as essentially connected to that end. If you tax something, you must want less of it. Otherwise, why would you tax it? Don’t you know what that gets you?

Thus, for example, corporate taxation is intended to limit the number (and/or the power) of corporations. Taxing capital gains is intended to limit speculation. And so on.

While it’s possible that an individual politician has exactly that intent in mind, I don’t think it’s at all obvious that one implies the other. After all, there are many ways to limit an activity. Regulation is an obvious one. The number of doctors is limited primarily by the monopoly of the AMA and other enabling legislation, not by imposing a tax on doctors. The same goes for immigration, teaching, and so on.

Another reason for the conclusion is that most people assume that political planners intend most, if not all, of the consequences of their plans.  To take an action is to intend the consequences of that action.  But there are at least two problems with this.  One, government policies routinely result in unintended consequences.  In fact, this is unavoidable, not a matter of incompetence or lack of interest in forming good policy.  Two, politicians and bureaucrats have their own set of incentives that have little to do with the stated purposes of whatever legislation they put into place.  (Was the PATRIOT Act written by and voted for by patriots?  Of course not.)

To highlight this second point, consider the role of regulation.  In general, regulation can be thought of as a version of taxation because it imposes costs and can quite easily destroy an activity, either through an explicit ban or through the accumulation of indirect costs.  And so, people also tend to associate regulation with the desire to limit an activity.  However, regulation often tends to concentrate power in an industry, making it easier for certain dominant corporations to keep out rivals.  Often, the regulations are written and promoted by the industry itself in support of this end.  (Obamacare was primarily a gift to the insurance industry, even though it was portrayed as a way to rein in the power of the same industry.)

So, in conclusion, the fact that someone wants to tax something tells us very little indeed about their attitude towards it.  It’s theoretically possible that the intent is to destroy some activity, but given the array of other means available, the presumption should be the opposite until/unless some positive evidence is provided.  Just like regulation, both the intent and the result may be counterintuitive.

A Parliament of Whores?

[Originally published at on December 17, 2001]

Robert Vroman makes some good points about the unfairness of comparing government to the Mafia, but I find it even more offensive when government officials are likened to whores.

It’s terribly unfair to compare government officials to whores. It slanders whores. What have whores ever done to deserve being compared with government officials?

The oldest profession is an honorable one. Whores do honest business trading value for value. Can government officials honestly say the same? P.J. O’Rourke meant to criticize government when he called it a Parliament of Whores, but consider how much better off we would all be if government officials were as virtuous as whores.

If government officials were as virtuous as whores they wouldn’t force their services on you. Whores take no for an answer. If you tell a whore you’re not interested in her services she moves on and looks for someone who is. Try telling your government officials you’re not interested in the services of government. Do they move on? No, they slap you with a bill.

If government officials were as virtuous as whores they wouldn’t bill you for services you didn’t request. Whores never announce “From now on I’ll be providing you with a new service, and here’s how much you owe me for it.”

If government officials were as virtuous as whores they wouldn’t start from the premise that you’re born owing their business something. A whore will never argue “Everybody needs to get laid so it’s only fair for everyone to pay their share.”

If government officials were as virtuous as whores they’d never bill you for services they provided to somebody else. A whore won’t tell you “The guy down the block can’t afford my services but I serviced him anyway. Here’s how much you owe for it.”

If government officials were as virtuous as whores they would never need to know the depth of your pockets. Next time you’re filling out an income tax form remember that a whore’s price doesn’t depend on how much money you made last year.

Because that’s not the way an honest profession operates.

A Parliament of Whores? We should be so lucky.

Libertarian vs. Libertine

There is a temptation for libertarians to make an illogical leap from “Vices are not crimes” to “Vices are not wrong”, and too many succumb to the temptation.

There are many things one should not do that nevertheless should not be viewed or treated as crimes.

Generally, one shouldn’t lie. It would be wrong to tell your spouse you were working late when you were actually at a strip club or out playing poker. It’s not a crime, but it’s wrong.

Identifying a situation where lying would be justified is quite beside the point; the point is we can identify circumstances where lying is wrong, though not a crime.