The Just vs. the Good

The Curmudgeonly Clerk has been blogging away about libertarianism, claiming that libertarians do in fact want to legislate morality, but won't admit it.

I think that Bainbridge's post suggests that libertarianism has its limits?even among its supposed adherents. I suspect that few, if any, persons are true libertarians in moral matters. The libertarian no-harm principle simply fails to account for intuitional moral misgivings that each of us possess and that serve as the foundational assumptions of our respective worldviews. Libertarians frequently attempt to sidestep such when-push-comes-to-shove moments by denying that an activity "x" is, in fact, harmless. But, ultimately, we are all legislating our morality. Some people are just more honest about it than others.

Many others have responded to this assertion, including Will Baude, Tim Sandefur, Professor Bainbridge, Chris Lawrence, Will Baude again, and the Clerk himself again.

I believe the key to moving this discussion forward involves a division of concepts. The Clerk cites the "no-harm principle" as the guiding axiom of libertarianism, which leads to the conclusion that morality is, in fact, legislated by libertarians. Although I am guilty myself, people often use the terms ?morality?, ?justice?, ?ethics?, and ?harm? interchangeably to the point of meaninglessness. However, there is a clear distinction between them, especially between ?morality? and ?justice?.

Randy Barnett makes this distinction in The Structure of Liberty when he defines justice as follows (p 15).

Justice is a concept ? a concept that is used to evaluate the propriety of using force. We resort to justice to tell us how persons ought to act, not generally as a natural law ethics may do, but specifically when they seek to use force against others

Thus, the concept of justice answers questions such as, ?Ought one individual enslave another??, ?Ought one individual rob another??, and ?Ought one individual be able to shoot another when threatened by the other first?? Each of these normative questions deals with the use of force. The liberal conception of justice provides a basic set of rules which give order to society.

The concept of morality seeks to find which actions within this order an individual can use to pursue excellence, human virtue, and integrity. Thus, questions such as ?Ought a car salesman use bikini clad models to sell cars??, ?Ought one arrive on time for a meeting with a friend??, and ?Ought a person have sexual relations with another person of the same sex?" fall under the broad concept of morality.

Many others have broadly made this the same division, although describing it in different terms. Barnett describes natural rights? theorists distinction between perfect rights and imperfect rights (p 301). Failure to respect the former was enforceable, whereas failure to respect the latter was not. He also mentions philosopher Lon Fuller?s similar distinction between two moralities - the morality of duty and the morality of aspiration (p 305). Austrians, such as Murray Rothbard, say that human ends are subjective but that rights are objective.

The division between justice and morality lies at the heart of the separation between the state and civil society. Most minarchist libertarians espouse a minimal state whose only realm is justice, to prevent individuals from using initial force against each other. Morality is left to be the burden of the free individuals comprising civil society. Most libertarians I know are not libertines who view the world through an amoral lens. Rather, we demonstrate our moral disgust in ways that do not involve using force against those whose actions we disapprove of, and recognize that shunning, boycott, avoidance, ostracism, and simply shouting loudly from our rooftops make our moral outrage known without infringing on anyone else's sphere of justice.

The distinction between morality and justice has significant ramifications for the state's role in regulating human relationships, which I will write about in a follow-up post.

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- quote "The concept of

- quote
"The concept of morality seeks to find which actions within this order [=justice] an individual can use to pursue excellence, human virtue, and integrity."
- end quote

To me your argument seems completely the wrong way around. You say that morality deals with the stuff that justice leaves open to debate. Justice deals with "big" issues, like murder, robbery and slavery. As if the wrongness of those concepts are universal truths. (Which they are not.) And morality deals with trivial issues like bikini's, punctuality and homosexuality.

Clearly this is nonsense.

Justice is no more than the aggregated moral code of a society. Prevailing morality *leads to* justice. According to the morals of most people in society it is wrong to steal. Also, according to the moral code of most people, it is right to create laws that tell everyone in a society how to behave. (We call this democracy.) Finally, according to the morals of most people it is acceptable to bring to justice (using force if necessary) those individuals that do not abide the laws. Therefore, logically, justice is defined by morality. And putting someone in jail for stealing is therefore justice. Not because of some universal truth, but because of morals!

The moral codes of people keep changing over time. After all, they are only ideas of what's right and wrong. (Richard Dawkins would call them memes.) And since morality in society keeps changing, so does justice. Only a few years ago putting someone in jail for being a homosexual was called justice by the majority in society. Now it isn't. Thank heavens for relativism in morality and justice.

?Ought one individual

?Ought one individual enslave another??, is not a moral question? I'd say ethics and justice cover subsets of morality. In the context of discussing libertarianism libertarians tend to focus almost exclusively on those subsets. But any argument for an ethical principle or a priniciple of justice is a moral argument.

"The division between

"The division between justice and morality lies at the heart of the separation between the state and civil society. Most minarchist libertarians espouse a minimal state whose only realm is justice, to prevent individuals from using initial force against each other. Morality is left to be the burden of the free individuals comprising civil society. "

The minarchy is legislating some moral principles, though not all moral principles. And minarchists must do injustice by their own principles properly understood to legislate those moral prinicples. To prevent individuals from initiating force against each other individuals must initiate force.

To me your argument seems

To me your argument seems completely the wrong way around. You say that morality deals with the stuff that justice leaves open to debate. Justice deals with "big" issues, like murder, robbery and slavery. As if the wrongness of those concepts are universal truths. (Which they are not.) And morality deals with trivial issues like bikini's, punctuality and homosexuality.

Clearly this is nonsense.

Clearly you have overlooked the salient point of my post. The difference between justice and morality is not 'big issues' vs 'small issues' or 'important stuff' vs 'trivial stuff'. Rather, the difference is between the "oughts" that encompass the use of force and the "oughts" that encompass voluntary relations.

Justice is no more than the aggregated moral code of a society. Prevailing morality *leads to* justice. According to the morals of most people in society it is wrong to steal. Also, according to the moral code of most people, it is right to create laws that tell everyone in a society how to behave. (We call this democracy.)

Now you have hit upon something very crucial: democracy ain't all it's cracked up to be, eh?

The moral codes of people keep changing over time.

If you are using "morality" the way I define in the post, then I agree. The "oughts" encompassing voluntary relations do in fact change over time, and this is a good thing because, as you say, homosexuals aren't being thrown in jail today. My follow-up post will deal with the changing nature of morality. Stay tuned!

Yet, I submit that "justice" does not change over time. Otherwise, you could say that slavery was just, while it was occurring. Or that carting people off to concentration camps was just, because hey, for "most people it [was] acceptable" as you defend above. Note that both of these examples deal with the use of force, unlike the example of homosexuality, which dealt with voluntary relations.

In fact, the specific act of throwing a homosexual in jail based on a moral judgment is clearly unjust.

Jurgen, Don't be so quick to

Jurgen,

Don't be so quick to call it nonsense, until you have at least read Barnett's formulation of the argument.

It's been a while, but if I recall correctly, Barnett's use of the term justice was in relation to natural law principles which determine how we must interact with each other in a society if we wish to achieve desirable ends. Whereas his understanding of morality, or as he calls it, natural law ethics, is only those rules which govern personal actions which do not directly effect others. In this sense, justice is public, reserved for interpersonal conflicts, whereas morality (or ethics) is private, reserved for personal conflicts.

You can read Barnett's argument here: "A Law Professor's Guide to Natural Law and Natural Rights"

The minarchy is legislating

The minarchy is legislating some moral principles, though not all moral principles. And minarchists must do injustice by their own principles properly understood to legislate those moral prinicples. To prevent individuals from initiating force against each other individuals must initiate force.

You know I agree with you.

"Rather, the difference is

"Rather, the difference is between the "oughts" that encompass the use of force and the "oughts" that encompass voluntary relations."

Morals encompass *everything* that people feel free to have an opinion about. This includes what is and what is not justice. To me it sounds like you're trying to say that rain is different from water. In my view rain *is* water, and justice *is* a (moral) opinion about the application of morals (whether by using force or not).

"Now you have hit upon something very crucial: democracy ain't all it's cracked up to be, eh?"

No disagreement here.

"Yet, I submit that justice does not change over time. Otherwise, you could say that slavery was just, while it was occurring."

A big disagreement here. By definition, if justice follows from morals, then justice changes over time. Claiming that something is "justice" or "injustice" is, IMO, not different from claiming something is "good" or "bad". And so far, no philosopher has proven to me that good and bad (or justice and injustice) are about universal truths.

My dictionary says that justice is "compliance with some ethical standards". (A free translation from the Dutch dictionary I have.) So there we have it! There is no truth embedded in justice. Only opinions, quite often aggregated in the form of laws.

And yes, this implies that one cannot say that slavery was just or injust *as a fact*. I can only say that *from my personal point of view* slavery back then was injust. And so was the holocaust. To my standards I really think it was. But those are my standards. And this is *not* in contradiction with someone else back then claiming that slavery or the holocaust was just. All morals (and therefore any debate about justice) depend on personal perspectives.

"Barnett's use of the term

"Barnett's use of the term justice was in relation to natural law principles which determine how we must interact with each other in a society if we wish to achieve desirable ends."

Having read Moral Theory by Mark Timmons only recently (which contains a great overview of all mainstream moral theories) I have come to understand that the Natural Law Theory was a very simple one, needed to displace the Divine Command Theory (morals based on God). But both were not particulary good theories. For example, raping would be considered 'good' by the Natural Law Theory because we are naturally inclined to do so, and therefore it must be good.

I would recommend anyone to get the aforementioned book and read about the problems with the big theories. (There are many others besides the Natural Law Theory, BTW.)

What I found most striking is that Relativism (the one I like best) has no big holes except that it doesn't automatically lead to a condemnation of things like the holocaust. Most people refuse to subscribe to a theory that leaves something like that open to personal opinion. However, I don't see that as a deficiency of the theory, but as part of human nature.

I think Spooner more

I think Spooner more succinctly said what you are trying to say: Vices Are Not Crimes.

By "crime" Spooner does not mean that which is illegal, since there is no necessary relationship between law and morality. By "crime" he means an offense against another person, a violation of their natural rights. Both vices and crimes are immoral but only crimes are offenses against others and thus force is only justified in response to crimes.

Morality doesn't change over time any more than justice does, though opinions of it obviously do.

Having read Moral Theory by

Having read Moral Theory by Mark Timmons only recently (which contains a great overview of all mainstream moral theories) I have come to understand that the Natural Law Theory was a very simple one, needed to displace the Divine Command Theory (morals based on God). But both were not particulary good theories. For example, raping would be considered 'good' by the Natural Law Theory because we are naturally inclined to do so, and therefore it must be good.

Again, I recommend you read Randy Barnett's article before you dismiss his argument. I am aware of the history and deficiencies of natural law theories, and Barnett is presenting a revisionist account, one much more in line with contemporary understanding than you might think.

What I found most striking is that Relativism (the one I like best) has no big holes except that it doesn't automatically lead to a condemnation of things like the holocaust. Most people refuse to subscribe to a theory that leaves something like that open to personal opinion. However, I don't see that as a deficiency of the theory, but as part of human nature.

I actually agree with you. Relativism seems like the most plausible theory, or rather, lack of a theory. But I think even moral relativists would be satisfied with Barnett's formulation. He is not arguing for any objective morality, but a morality based upon the facts of human nature and our desired goals.

Why would a morality based

Why would a morality based on human nature not be objective? Isn't nature independent of opinion?

"What I found most striking

"What I found most striking is that Relativism (the one I like best) has no big holes except that it doesn't automatically lead to a condemnation of things like the holocaust."

That's all?

Why would a morality based

Why would a morality based on human nature not be objective? Isn't nature independent of opinion?

Because although it is based on human nature, human nature is only part of the story. We also need human goals, which are subjective. The formulation is: given human nature, if we want to achieve certain goals, then we must abide by certain rules.

"Why would a morality based

"Why would a morality based on human nature not be objective? Isn't nature independent of opinion?"

What is human nature? The only thing I can think of is the behavior as promoted by our genes. But our genes often conflict with our (current) morals. For example: racism is primarily induced by our genes, because our genes only favor themselves and they are more likely to be found in people that look very similar. Anyone who looks or acts different from ourselves should be considered an enemy.

So, even when it was possible to base morality on human nature, many people wouldn't like the outcome.

"Morality doesn't change over time any more than justice does, though opinions of it obviously do."

This implies that morality and justice already existed before life started on our planet. Tell me, what sort of morality and justice exist on the planet Neptune at this time? I don't believe such a question makes sense. But in your view there should be an answer.

""What I found most striking

""What I found most striking is that Relativism (the one I like best) has no big holes except that it doesn't automatically lead to a condemnation of things like the holocaust."

That's all?"

Plausible theories are not meant to be pleasable.

The purpose of this post was

The purpose of this post was not to argue for objective ethics vs. subjective ethics. We did that for a week straight last month, and a perusal of the archives will take you there.

Rather, I was making a distinction that I find very useful in formulating libertarian views on ethics in an attempt to carry the discussion that originall started on The Curmudgeonly Clerk's blog forward.