Libertarianism and legal authority

October 30, 2009

Reason magazine hosted this debate between Kerry Howley, Todd Seavey, and Daniel McCarthy.

There is no way I’ll be able to summarize the discussion here. Rather, I’ll focus on one issue in particular: how libertarians ought to evaluate “social norms”; and, more broadly, whether a libertarian qua libertarian ought to be evaluating social norms at all. Call the “purely political libertarian” position the view that a libertarian, qua libertarian, has no intrinsic reason to criticize social norms — only legal norms, when they violate natural rights.

The phrase “social norm” is part of a distinction, which may not itself be tenable (indeed, part of this discussion is intended to clarify and ultimately criticize this distinction.) I contrast social norms with legal norms. Roughly, a legal norm is a norm that is enforced by a legal authority, e.g. the government. A social norm, for our purposes, is one that is enforced in some other way — through frowns against transgressors, social stigma, ostracization, and so on.

As should be clear, this distinction is meant to be an exhaustive one: if a norm is enforced by a legal authority, it is a legal norm. If it is enforced in some other way, it is not a legal norm.

This distinction depends on what sense we can give to the term “legal authority.” Indeed, making sense of that term is where all the action is, as I see it. Let’s run through some possibilities:

  1. A legal authority is that entity which is in the position of being able to establish laws.
  2. A legal authority is that entity which successfully claims a monopoly on the use of physical force in a given territory.
  3. A legal authority is that entity which is generally perceived or accepted as that which has the right to establish norms in a given territory.

Things get fuzzy as we go along, but I think (1) is clearly vacuous, or else it presupposes the acceptance of something like (2) or (3).

What about (2)? I think many libertarians will accept (2), but they shouldn’t. The reason goes back to H.L.A. Hart’s criticism of Austin’s version of legal positivism. For example, the mafia can successfully claim a monopoly on the use of physical force, and start issuing directives. But people would not call the mafia a legal authority — nor would the mafia itself, think of itself as a legal authority. Nor, in fact, would most people think that the mafia was “making law” as it issued directives, despite the fact that those directives would be backed up with threats of violence.

That leaves (3), which has the drawback of being fuzzier than (1) or (2). But only a little. What (3) brings to the table is the idea that public perception of an institution has a role to play in determining whether that institution is a legal authority or not. At a minimum, it must be generally believed that when the putative legal authority establishes a new norm, this also establishes a reason, independent of its coercive backing, for citizens to adhere to that norm. This is how we can say — as people do say — that a person has a legal obligation, e.g. to join the army if the draft is called, even if the person is able to escape to a jurisdiction where that norm has no chance of being enforced against him.

Hart and others talk about “the internal point of view.” On this analysis, what distinguishes the mafia from a genuine legal authority is not only a matter of differences in the ability to inflict physical force. There is a psychological component as well: people, by and large, think the legal authority has the right to set down new norms. If this perception is eroded (which it can be), the authority of the law can be lost. In short, the government can become the mafia, when its dicates no longer gain acceptance from the internal point of view.

This point has ramifications for how we should understand the relationship between social norms and legal norms. One might put it this way: the gap between social and legal norms cannot be that great, because whether a society continues to accept the legal authority from the internal point of view will depend, at least in part, on the content of the norms the legal authority establishes.

If I’m right, and there is a conceptual relationship between legal norms and social norms, then it follows — I think — that libertarians cannot be indiferent to the operating social norms. This may seem to be a trivial point, but I think there is more to it.

Consider a state in which the legal system is tightly connected to social norms, i.e. the gap is small, and the government keeps it small. The social norms could have virtually any content one likes; the result, I maintain, would be very un-libertarian. This is because people typically endorse social norms that “go beyond” natural rights, or the libertarian minimum. There are several reasons to think that this will almost always be the case, but here is one: social norms that emerge spontaneously will often replicate, even perpetuate, existing relations of superiority and inferiority. Social norms with a religious source will function to stabilize and expand the dominance of that religion.

It is highly unlikely, I submit, that social norms will naturally converge with libertarian ones.

One might ask: why is this a problem? As long as social norms remain social norms, enforced only through ostracism and frowns, why should libertarians be concerned?

Answer: because there is a conceptual relationship between social and legal norms. Even if the gap between social and legal is rather large, it can’t be too big. Some of those social norms will inevitably feed into the content of legal norms. The size of the gap that people will tolerate will itself be the result of one or more social norms. Call this norm a “connecting norm.”

Now suppose one wishes to convert this non-libertarian society into a libertarian utopia. How should one proceed? One way is to change the connecting norm: broaden the gap. But another way is to oppose and undermine the restrictive social norms that make the absence of a gap such a problem in the first place.

Both strategies have a place. Libertarians who push a natural rights agenda are trying to broaden the gap. But socially liberal libertarians seek to undermine social norms that, when converted into law, result in un-libertarian outcomes. My opinion is that the attempt to broaden the gap will ultimately be futile: the desire people have to see their norms implemented in law is too great, and too natural, for this strategy to have any long-term success. The legal system itself tends to re-enforce the connecting norm.

On the other hand, undermining the restrictive social norms that result in oppressive legislation has worked fairly well. People are more tolerant than they used to be, and this results in less oppressive legislation, even though the gap itself is hardly wider than it used to be.

Thus, I think the purely political libertarian position is ultimately untenable. Conservative social norms must be attacked and undermined even before they become law. We must anticipate patterns of oppression before they develop, and support pluralism and tolerance even in the social sphere.

A note of support for Dr. Dawg!

October 29, 2009

Not that anyone is reading this blog, but I’m going to go on the record and offer my unqualified support to Dr. Dawg.

A while back, a conservative blogger who goes by the name Raphael Alexander said something very stupid about Dawg. I will not repeat Raphael’s comment here, as I do not wish to participate in the attack on Dawg any further, even inadvertently.

Suffice to say, Dawg is a good guy, and the accusation Raphael made about him was both heinous and completely unsupported. Raphael was given multiple chances to apologize and retract the comment, but did not do so.

And so Dawg initiated legal proceedings.

If you want a good indication of Raphael’s culpability, note the reaction of those with legal backgrounds who probably agree, ideologically, more with Raphael than Dawg, like Jay Currie or even Ezra Levant.

Utter silence, as far as I can tell. No one from a legal background is standing up for Raphael Alexander because his position is completely indefensible.

He should have posted on apology to Dawg at the very top of his blog. Instead, he’s demonstrated malice by deleting comments from Dawg in which he asked for an apology, and by posting confidential legal documents.

Meanwhile, Raphael’s less informed but supportive commentators have done nothing but throw vile ad hominem attacks at Dawg, or (in one hilarious case) relied on chicanery in an attempt to show that what Raphael said about Dawg was really no different from what he (Dawg) has said about others.

I’m hoping Dawg’s lawsuit, if things go that far, will give some of these people reason to think twice before defaming an ideological opponent in the future.

As a matter of fact, I am probably one of those who disagrees with Dawg, ideologically, more than I disagree with Raphael. Fortunately, I’ve reached the stage where I don’t need to agree with someone ideologically to respect him or her as a person. And I do respect Dawg — almost have to respect him, as he’s a fellow academic.

But I also like his blogging work. His blog attracts a colorful cast of characters, including conservatives like Jay Currie, libertarians like me, left-liberals, and even an all out Marxist. I can’t think of any other place on the Internet — literally — where people of such diverse viewpoints can get together to discuss the issues.

It just doesn’t happen. Every other blog or discussion board is one sided, and the heavy club of moderation is typically employed to ensure the conversation stays that way.

(I’m looking at you, Pandagon, Democratic Underground, Free Republic, etc.)

And what’s odd is that Dawg is able to preserve this spirit of toleration despite being on the far-left himself (and no, that’s not meant as a pejorative.) That makes his blog important. Or at least important to me, as someone who believes both in reasonable disagreement and the possibility that respectful discussion can, sometimes, overcome that disagreement.

Thus, I support Dr. Dawg in his legal action. First, I support that action on its own merits, as Raphael’s comment was truly odious. But, in addition, I feel like I’m standing up for a good guy — not at all how I feel when I find myself defending the speech rights of people like Marc Lemire.

Good luck, Dr. Baglow. If I wasn’t an impoverished grad student, I’d kick a few bucks your way (and I might do that, anyway.) Since I am one, this post (likely to be unread) will have to do.

The Liberal Dialectic

October 27, 2009

This is a work in progress, etc.

Suppose the relationship between liberal practice and the moral justification of liberal institutions works something like this:

  • Liberal practice comes first. In order for J.S. Mill, Locke, etc. to formulate and publish their ideas, an “atmosphere of liberty” must already exist — whether it’s de facto, or enshrined in law.
  • Liberal theorists take notice of liberal practice. In On Liberty, Mill writes that, “In England, from the peculiar circumstances of our political history, though the yoke of opinion is perhaps heavier, that of law is lighter, than in most other countries of Europe.”
  • But liberal practice is haphazard, unprincipled. As Mill writes, “There is, in fact, no recognised principle by which the propriety or impropriety of government interference is customarily tested. People decide according to their personal preferences.”
  • The task, then, is to ground liberal practice: liberal practice must be put in terms of a scheme, which relates the different liberties that happen to be protected to each other.
  • In the process, liberal practice is also justified. At the center of the scheme, there is a principle, or a value, or at least some central, organizing idea, which according to the theorist we all have reason to accept.
  • Once the principle is adopted, the current scheme can itself be criticized: it may not include all the liberties it ought to include.
  • Or the scheme may not formulate the liberties in a robust enough fashion; there may be exceptions (obscene speech is prohibited, even though people generally have the right to speak. The organizing principle “irons out” these exceptions.
  • This process does not happen instantaneously; it takes a while for liberal practice to catch up. Even the theorist who initially formulated the scheme may not be able to see its outer limits.
  • At the same time, new liberal theorists may notice flaws in the central principle: it may simply not be as obvious or simple as its originator, e.g. Mill, thought. Hence, a new principle (e.g. the principle of neutrality) may come to replace the old principle at the heart of the liberal scheme.
  • In this way, the cycle can begin anew, and new liberties may come to be incorporated in the liberal scheme.
  • What propels this dialectic is the publicity condition. We abandon a central principle when we believe that it could be reasonably rejected by other citizens.
  • The ultimate end of the liberal dialectic is a liberal scheme in which the central principle is literally acceptable to everyone.
  • However, if we accept radical value pluralism, then this end can never be reached: some reasonable people will have reason to reject any scheme.

I believe this description of the liberal dialectic both explains and undermines liberal practice. At any given time, liberals will point to their central principle as the principle that best fulfills the publicity condition. At any given time, other forces in society will seek to modify liberal practice precisely because they do not accept the principle.

This process, this jostling between interest groups and ideologies, has no natural stopping point. The justification of liberal practice is an ongoing project, which can never be completed.

Legal positivism and the enforcement of rules

October 23, 2009

The Huffington Post is the source for this story, which got me thinking about Phillip Soper’s book, The Ethics of Deference. While I haven’t finished this challenging treatise, I’ve been reading it with a group of colleagues and some of the objections it raises to Hart-style legal positivism came to me while I was reading about Kimberly’s plight.

As per the HuffPo story, Kimberly is a six year old girl who lives with her grandparents in a retirement community. Kimberly came to reside with them after her mother, a drug addict, lost custody. According to the by-laws, no one under the age of 18 can live in this community. Mediation between the home owners association (HOA) and the Stottlers, Kimberly’s grandparents, gave the latter a year or so to find a buyer for their house.

That was about four years ago. Since then, the housing market tanked, and the Stottlers haven’t been able to sell the place. Now the HOA’s patience has worn out, and they’re seeking to enforce the by-law that prohibits children from living in the community.

The law is on the side of the HOA. I don’t think there is any question about that. Courts have upheld the legality of age discrimination when it comes to retirement communities, essentially carving out an exception in anti-discrimination law. That exception may or may not be morally justified (many of the people commenting at the Huffington Post seem to think it’s not justified.)

Thus, the rules give the HOA the legal right to evict Kimberly, and the HOA wants to exercise that right. It expects the courts to uphold the rule, and the sheriff to enforce it, if that becomes necessary.

As Hart-style positivist would say, that’s consistent with the HOA accepting the rules governing this community from the “internal point of view.” More importantly, on Hart’s view, what distinguishes a legal system (properly so called) from a mere system of coercion is the fact that the officials in the system also accept the rules “internally”, and do not view themselves merely as men with guns making threats.

I have a hard time believing that everyone really is adopting the rules which give the HOA the right to evict a six year old girl from the internal point of view.

One might put it this way: if Kimberly is evicted, she will likely end up in foster care. No one is really disputing this. Her mother is not legally fit to look after her, and she has few relatives, with none (besides the grandparents) stepping up to the plate.

By almost any moral assessment, a world in which Kimberly is removed from the care of her grandparents and placed in foster care is worse than a world in which Kimberly remains with her grandparents. This is not to say that not enforcing the by-law is without moral cost. It is merely to say that, on any plausible moral view, those costs are outweighed by the ones that will occur if Kimberly ends up in foster care.

I will assume, for the sake of argument, that just about everyone accepts this assessment of the relevant moral considerations. Even the HOA would likely accept the judgment.

Enforcing the law, in this case, means producing a world that is quite a bit worse than the one that would obtain if the law was not enforced. If the judge upholds the HOA’s rights, the result will be, all things considered, quite bad.

The law is a coercive system, no doubt. But normally that coercion also happens to produce at least passably good outcomes; or, at least, a reasonable person could judge that the outcomes are good. In this case, I am suggesting that nobody could reasonably think that the outcome the law will produce will be a good one. Locking up a murderer is, morally speaking, defensible. Evicting a six year old girl is, morally speaking, hardly defensible at all.

So what is going on, then? If everyone agrees that taking a six year old away from loving guardians and placing her in a foster home is bad, how can it be that everyone — or the legal officials, anyway — are viewing the rule that is going to cause this to happen from the internal point of view?

Option 1: Adopting a rule from the internal point of view is not the same, conceptually or phenomenologically, as judging that the rule is, all things considered, a good, just, or right rule. One can think that a rule is bad, but still think that oneself, and everyone else, ought to obey, apply, and enforce it.

Option 2:  No one, except maybe the HOA, really thinks this rule, on its own, ought to be enforced. Rather, they recognize that the rule is part of a system of rules, and that the system itself is, all things considered, morally justified. If this rule were the only one in the system, no one would think it ought to be enforced. People accept this rule internally only because they believe it is part of a system of rules that is morally justifiable.

I realize this two options are a bit fuzzy. Originally, I was going to go with Option 1, but I’m not sure Option 1 helps in this case. Enforcing the law in this case will produce such a morally pernicious outcome, and refusing to enforce it would cause so little harm, that only a belief in the moral justification for this particular rule would be adequate to explain its enforcement. If “internal acceptance” is something other than a judgment of moral justification, it will be inadequate to explain adherence to the law in this case.

I’ve ruled out, in advance, any explanation that upholds the moral justification of the particular rule. That leaves option 2.

Option 2 is weird, but there is something to it. We can all imagine a judge who believes the drug laws are stupid and morally indefensible, but believes it is his moral duty to apply those laws when a case comes before his court. To explain this, one might suggest that the judge’s practice depends on a belief that the system, in itself, is morally justified.

More to come. I’m genuinely puzzled.

Should gays be legally permitted to give blood?

October 3, 2009

I’m stealing this topic from Raphael Alexander, a conservative blogger.

At issue is this: Kyle Freeman, a gay man, has donated blood some 18 times as of 2002. Before a person is permitted to donate blood, he/she must answer a questionnaire provided by Canadian Blood Services, the entity in charge of managing the nation’s bloody supply. The questionnaire is designed to screen out individuals from high risk groups, like intravenous drug users.

One of the screening questions, only provided to males, asks if the would-be donor if he has had sex with another man, even once, since 1977. If the answer is yes, the person is not permitted to give blood.

Freeman was able to donate blood only by giving a false answer to this question. When Canadian Blood Services discovered the deception, they tried to sue him for “negligent misrepresentation”, prompting Freeman to launch his own lawsuit.

Freeman’s suit is based on the equality provisions set out in the Charter of Rights and Freedoms. His argument is that, by excluding gay men from the donor pool, Canadian Blood Services is unlawfully discriminating against them.

I think a good case could be made that the blanket exclusion of any male who has had sex with a man is too broad, and runs afoul of anti-discrimination law. However, that’s not really the issue in this case. As the lawyer for Canadian Blood Services  said,

“At the heart of this claim … is the question whether a person who seeks to donate blood to Canadian Blood Services … has a legal duty to tell the truth when asked a question about his or her personal sexual history and whether that duty exists whether or not the person sincerely believes that the questions are necessary or justified or even discriminatory.

The argument being made here turns on deeply contentious issues in the philosophy of law. In order for a person to have a legal duty to perform some action, there must first be a valid law which commands him to act in that way. Canadian Blood Services alleges that a valid law exists compelling individuals to provide truthful answers to the questionnaire. But if the law isnt valid, then Freeman had no legal duty to provide truthful answers.

One can imagine a legal positivist and a natural lawyer squaring off on this issue.

Positivist: whether or not the questionnaire is discriminatory is immaterial. What matters is that a valid law was passed, one that compels individuals to answer the questionnaire in a truthful manner. By lying on the questionnaire, Freeman did not fulfill his legal duty.

Natural lawyer: if the questionnaire discriminates in an unjust manner, then it never should have been used in the first place. The law cannot compel individuals to participate in manifest injustice, and any law which purports to oblige individuals to do so is not really a law at all. Therefore, Freeman had no legal duty to tell the truth in this case.

The difficulty for Freeman — and the natural lawyer — is the tenuous relationship between the unjust practice, the discrimination, and the act of truthfully answering the questionnaire. It would be different if the law in question itself commanded unjust action. If the “law” required Freeman to engage in unjust/discriminatory behavior himself, then the natural lawyer could claim that the law itself was invalid, and that therefore it could not generate a legal obligation.

However, in this case, the legal obligation to tell the truth on the questionnaire only enables unjust discrimination. It does not cause it. The direct causal agent responsible for the discrimination is Canadian Blood Services, although obviously it is only able to discriminate because of the information gathered through the questionnaire.

At the same time, I think the natural lawyer might have a ready response: if one is certain that an entity will act unjustly on the basis of the information provided, can one be legally obligated to provide that information? Or doesn’t the validity of the law depend at least in part on the overall contribution the law makes to an unjust practice?

Suppose a regime enacts a law to collect income tax. At the time the law is enacted, the intention of the regime is to use the tax revenue to provide food for starving orphans. Arguably, the law would be valid, and one would have a legal obligation to pay one’s taxes.

But suppose it turns out that a portion of the revenue will be used to construct concentration camps for racial minorities? At that point, compliance with the tax law would, on the whole, contribute to injustice, which might be enough to undermine the validity of the law itself.

Obviously, I doubt the legal arguments in this case will move to this level of analysis. A pity!

Shouldn’t pro-choice vegetarians be willing to eat fetuses and infants?

October 3, 2009

An argument I’m toying with here.

A creature is entitled to moral consideration only if it possesses sentience. Sentience is somewhat mysterious, but pro-choice individuals generally believe that fetuses don’t possess sentience, which is why they have no claim to moral consideration.

In contrast, many animals do possess sentience (cows, etc.) For this reason, many vegetarians believe animals have a claim to moral consideration, and therefore ought not to be killed merely for the pleasure of humans.

Thus, fetuses are not sentient, and therefore not entitled to moral consideration; cows are sentient, and therefore are entitled to moral consideration.

Premise: If x kills a being worthy of moral consideration without good reason, then x has committed a grave moral wrong.

Premise: If x kills a being that is not worthy of moral consideration, then x has not committed a grave moral wrong.

Premise: In most cases in modern societies, there is no good reason to kill animals for food.

Premise: Therefore, the killing of sentient animals for food is a grave moral wrong.

However, a fetus is not a sentient animal. Therefore, killing a fetus is not a grave  moral wrong.

It follows, then, that killing a fetus for food is also not a grave moral wrong. This doesn’t mean that there aren’t other reasons that stand against killing and eating fetuses (aesthetic, practical, etc.) But it does mean there is nothing morally wrong with chowing down on a fetus, at least absent further assumptions.

Therefore, pro-choice vegetarians should at least be willing to eat fetuses, in a way they aren’t willing to eat cows and other sentient animals. Certainly, they could not condemn someone who chose to eat a fetus. The practical reasons that oppose eating fetuses in most circumstances are insufficient to ground the hostile reactive attitudes we usually deploy against those who mistreat beings worthy of moral consideration.

Arguably, infants also lack sentience, although the case is more difficult to make. For similar reasons, then, pro-choice vegetarians should at least be willing to consider eating infants; and, given the choice, they should probably be more willing to eat human infants than they are to eat cows.

Lindsay Graham is pretty good here

October 3, 2009

But when will he come out of the closet?