Mill and Polycentric Law Redux

Joe Miller was impressed by my earlier post on J.S. Mill's pluralist angle, but now he's cooled off and has reservations. Fair enough, says I. Joe puts his finger on a very real, difficult problem:

What happens when we find some particular political arrangement to be in violation of the harm principle? What, to pick a random example, do we say when one of the private legal services offers sharia law? Fine, one might say. If people voluntarily sign up for a particular view of the law, then what business of mine is it that they do so? And I'll agree to a certain extent. For the first generation of customers, sharia law is a perfectly legitimate option. But what happens in the second generation? What shall we say about the girls who are treated as second-class citizens, who grow into women unable to act in a way that is fully autonomous? When they remain customers of sharia law (because the very law under which they already live does not allow them any independent voice), have they done so freely? Even if they actually claim to prefer sharia law, can we really believe them at this point?

Ironically, this argument is almost the same one used against naive contractarianism by Lysander Spooner in No Treason IV: The Constitution of No Authority. The problem is that I never had the chance to give or withdraw my informed consent to the system of laws I was born under, so how can they reasonably be considered binding on me? I think there are arguments that overcome this objection, but for the moment I'll accept it as valid.

But it should be obvious that this objection applies to all forms of legal order, including a fortiori Joe's preferred form of a federalist, constitutional democracy. Indeed, one of the main arguments for polycentric law is that it suffers from this problem to a significantly lesser degree than any other kind of political order: by having law provided by a multiplicity of smaller firms rather than a great big firm, the harm that any single one can potentially do is dramatically decreased due to lower cost of exit.

Weirdly, Joe comes very close to making this argument himself, in a humourous way:

Indeed, in a democracy, the state merely acts as the instrument that restricts freedom. It is society itself, however, that wields that instrument. Government in a real democracy is not some mysterious bogeyman that sneaks up in the night to steal our freedom. "The Government" consists of a bunch of individuals whom we have elected and whom we can kick out. If our government steals our freedoms, it is only because we ourselves have consented to have it stolen. My freedom to pass the bong during my gay wedding held at the walk-up abortion clinic heated by my own private nuclear reactor and guarded by M-60 wielding Mexicans who can't speak a single fucking word of English isn't threatened by some group of rich white guys who have just decided that they don't like these sorts of things. Rather, the rich white guys vote against all of these sorts of things because the rest of the damn voters don't like those sorts of things. No, it's not government that is restricting my freedom. The only army that is a real threat to me is the army of suburbanites with their well-kept lawns, their soccer practices and piano lessons, and their disdain for anything that's actually, you know, fun.

Once again I think there are very good arguments against this idealized view of constitutional democracy, but will take it as-is for the sake of argument. Taken at face value, it's an argument for, rather than against, having markets in law: in a democratic system, all that army of suburbanites has to do to ruin Joe's fun is vote, which is a very low-cost activity. Under a system where law is a private good, they would have to actually pay significant amounts of money to an enforcement agency in order to prevent Joe from enjoying his bong. It's easy to vote for nannyish policies, but how many people would care enough about Joe's personal life to shell out a lot of extra cash to keep him from having his private fun?[1]

Finally, Joe concludes:

What all of this means, then, is that Mill's arguments for what we might call individual pluralism are couched in a specific context. Mill creates a large space for individual experiments in living only because he already assumes the existence of a state that will protect individuals from experiments that violate the harm principle. Polycentrism, however, offers no such protection. My private legal system (together with my private defense agency) will provide me with whatever services that I wish to pay for. What it cannot do, however, is to protect me when my family/community/religion coerces me into signing up for services that oppress me.

One wonders what to make of this, given the preceding paragraph. Mill does assume a state framework that will protect individual rights, but that's sort of the political philosopher's equivalent of assuming a can opener. How does one make sure that a government will actually stick to the principles Mill wants it to?

In a private market for law there would indeed be no explicit commandment along the lines of Mill's harm principle applied to all firms, but the incentives of the system would be such that oppressing people would be costlier to those doing the oppressing than it currently is. Pace Joe, I would sooner put my trust in a stable system of self-interest and competition to protect me than in the hope that a monopoly supplier will behave benevolently.

1Yes, these policies get paid for through taxes anyway as it is, but there's a big difference between saying everyone's taxes should pay for my moralistic policies and actually paying up front for them voluntarily. Internalizing costs makes a big diff.

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While utility may vary in

While utility may vary in detail from person to person, all men naturally attain utility by the same means - by reason.

----Do we? I'd argue that emotion plays some part in the utility function. Perhaps emotional preference is functionally indistinguishable from rational preference, but each certainly plays a part in the establishment of utility for any given person. Whether it ought to play a part is beyond my authority to say.

That’s your “is” and it implies an ought, you ought to reason correctly since that is that is your means for achieving any utility.

---I'm gonna throw out "transaction costs" as a potentially limiting factor. In any given calculation, the transaction cost of carefully reasoning out a proper course of action might well exceed the potential value of choosing more rationally. Further, reasonable people can reasonably disagree on the implications of a given set of facts, or the relative weigh they give them.

Rand said we must ask "to whom" when we discuss value. I see no reason not to ask "to whom" when we discuss values (as in "moral"), either.

How do you propose to attain

How do you propose to attain *any* utility without reasoning properly?

I’ve also attended

I’ve also attended lectures by unembedded journalists (the only legit kind) like Dahr Jamail and Jeremy Scahill who can tell you about the reality of US control of Iraq; from unannounced, random house searches to the increase in bodies arriving at the morgue (as compared to Saddam’s time) as reported by Jamail recently at Anti-war.com

Do you think that unannounced random house searches were not occurring during Saddam's rule?

But even if a majority of Iraqis DID desire US occupation, what gives them the right to impose their wishes on all those who have died during the course of US invasion and continued occupation?

You seem to be asking, "What gives one group of Iraqis the right to defend themselves?" It seems to be an easy answer for me. If I am living under a dictator fearing that my family members could be taken in the middle of the night, I have every right to defend myself.

Then the question becomes one of collateral damage. That's a complicated moral question, certainly not one with an easy answer, nor one which the NAP contributes much to. But brushing aside the question altogether by claiming there is no right to defend oneself if there's a possibility of hurting others is also not very useful.

And from the perspective of US citizens and soldiers sympathetic to those suffering from Baathist rule, what gives them the right to sacrifice the life of some for the sake of others?

It's a moral judgement we all make. Weighing different quantities and qualities of evil is difficult, a burden. If I were in their shoes, and I thought that my actions would enable the downfall of a much greater evil than its lesser alternative, I'd take those actions.

What if you or I were the sacrificial lambs of US entry into the country?

Obviously, I wouldn't want to be anybody's sacrificial lamb. But it's more of a matter of probabilities than a sure thing. If I lived in a country with a dictator, and I thought that life would be much improved if another country invaded and overthrew that dictator, I'd weigh the chances of my getting killed in the process. Even if I had a high chance of being killed, if life was bad enough in the first place, I'd take that chance.

What makes libertarians so enamored of central planning and coercion when it’s done outside the US, yet appalled by similar tactics at “home"? Weird.

What makes libertarians so willing to fight against tyranny when it happens inside the US, yet shrug and yawn when similar tyranny happens away from their comfortable lives at home? Weird.