The Tension Between Rules and Discretion

I have to confess, I'm a bit confused by the juxtaposition of two arguments I've been hearing from the libertarian blogs lately. David Friedman has been criticiszing the failure of the Texas authorities to follow proper procedure in the FLDS case. Meanwhile, there's been criticism of these fools who took a kid away from his parents after he was accidentally served hard lemonade:

Almost everyone Chris Ratte met the night they took Leo away conceded the state was probably overreacting.

The sympathetic cop who interviewed Ratte and his son at the hospital said she was convinced what happened had been an accident, but that her supervisor was insisting the matter be referred to Child Protective Services.

And Ratte thought the two child protection workers who came to take Leo away seemed more annoyed with the police than with him. "This is so unnecessary," one told Ratte before driving away with his son.

But there was really nothing any of them could do, they all said. They were just adhering to protocol, following orders.

There's an obvious tension here, and it's not clear there's a "libertarian" answer to the problem. The rule of law (as exemplified by Friedman's writings) is great, but if you're going to bang away about the importance of procedure, you can't be outraged when "just following orders" leads to zero tolerance stupidity.

For the record, I tend to agree with Will Wilkinson about the somewhat odd libertarian positions I've been reading regarding the FLDS raid. Children are not the chattel of their parents, and a legitimate state role is protecting them from abuse. For me, one facet of freedom from abuse is "the legitimate ability to choose the life one will lead as an adult." It's not an ironclad rule and would take discretion to enforce, but life is messy like that.

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Hubble

There are probably more complicated answers, but a simple answer is that the legitimate function of procedure is to safeguard our liberties. Therefore, if the failure to follow procedure led to blatant and outrageous infringement of individual liberty, then that's a bad thing. Meanwhile, if following procedure led to blatant and outrageous infringement of individual liberty, then that's also a bad thing, and both the procedure and the person who followed it are on trial. I believe this latter point was brought up and settled when the Allies put the Nazis on trial. The common ground is the violation of rights.

Children are not the chattel of their parents, and a legitimate state role is protecting them from abuse. For me, one facet of freedom from abuse is "the legitimate ability to choose the life one will lead as an adult."

When I read Will Wilkinson on this (who you're agreeing with) it turns out that his complaint is not that parents coerce their children in the usual sense recognized universally (or almost universally) by libertarians. He writes, Political freedom loses much of its point in the absence of psychological freedom. He's making up a new kind of "freedom", or actually he's regurgitating an old concept of freedom that had been previously been pushed by totalitarians, who also went on about false consciousness, using the exact term. All while bullying his audience into agreeing with him: If you don’t worry about this, then I wonder in what sense you care about human freedom.

Maybe Mr. Wilkinson is trying to damage the last remnants of the totalitarian left by getting them to nod their heads so vigorously at what he is saying that they get whiplash.

If the principle of

If the principle of regulators/civil servants should be "maximize freedom", I don't have a problem with that per se.

But then libertarians ought not make points such as either "You're so evil, you failed to fill out form 32-C in triplicate before serving the warrant" or "OMG, can you believe the state didn't just use common sense instead of following this crazy law?" Just make the case that it's an infringment on liberty, and junk the procedural arguments.

You can't have your cake and eat it too, choosing to use lack of following procedure as an argument against a state action when that serves the libertarian agenda, or arguing that the state should disregard procedure when that yields the libertarian answer.

As far as Wilkinson, I agree he has a bit of a habit of spinning new rights out of whole cloth and bullying those who dare to disagree. But on this one I think he's right: If you are kept so isolated that you have little or no choice but to join a cult, that's an infringement.

That's right, but

If you are kept so isolated that you have little or no choice but to join a cult, that's an infringement.

It's important to discern between moral infringements and legal infringements. Not every moral wrong should have legal penalties. Parental action is one such area. As a matter of public policy it's not desirable to have government agencies with sweeping powers to intervene between parents and their children.

The case of the Eldorado cult is a fine example.

Surely you mean that in this

Surely you mean that in this particular case you think there shouldn't be action, right? Ruling out intervention in all cases dealing with "parental action" would include murder, maiming, and incest. No one in their right mind thinks the state has no legitimate interest in these activities, "parental rights" be damned.

I was only allowed to go to

I was only allowed to go to churches, to christian places of worship as a child. That is certainly not very cosmopolitan and rather cult-like, trying to trap me within the confines of only one religion.

I'd have rather gone on a record breaking 5 year hot air balloon ride around the world, helping my meteorologist parents collect data on atmospheric conditions. Oh, but wait, that's restrictive of my freedom of association too. What of being exposed to an assortment of lifestyles, associations and individuals within that formative time? True, my experience would be unique and quite possibly beneficial. After all, some of the most brilliant people in the world were isolated, unusual youth, but it wouldn't meet the psychologoical litmus test of the proper modern child.

Damn.

No, it isn't "cult-like", as

No, it isn't "cult-like", as least if the word has any meaning. I'm guessing you were exposed to regular media. You probably could go to the library and read about other cultures. Might have had friends of different religion or culture. Maybe went to school. Boy Scouts. Summer camp. These kids don't have that. They stay at the compound, get indoctrinated endlessly. It just isn't the same.

This is exactly was I was talking about, the aversion to discretion among way too many libertarians. It's just too much work for some people to separate isolationist compounds in the desert which destroy any meaningful chance of consent from the religion of over a billion people, which people continually convert into and choose to leave. It's intellectually sloppy and utterly lazy, even if it gives cute, clever shortcuts to bothering with real analysis.

I'm afraid the word "cult"

I'm afraid the word "cult" has already lost much of its meaning. The early Christians and, of course, the Jews of midcentury Germany were thought to be a cult. And if these were cults, then the word remains but its pejorative force is gutted.

Intellectual sloth

It's intellectually sloppy and utterly lazy

What's intellectually sloppy and utterly lazy is substituting insults and other bullying for actual argument. Will Wilkinson did it (I presented the quote), and now you're doing it.

It just isn't the same.

That's not an argument. If you can't explain what's so importantly different that it merits a moral distinction, then you're not really arguing, you're just stating your conclusion.

You're not thinking, you're reacting with your gut, and when other people, who have been thinking about this and have learned to distance themselves from their immediate gut reaction, don't share your gut feeling or if they do manage to rise above it, you accuse them of being "sloppy and lazy". "It just isn't the same", "that's just wrong" - these are the "arguments" of those who really have no arguments.

Humanity of yesteryear lived much more isolated lives than humanity of today. We live a lifestyle of global interconnectedness that is unprecedented in history. You seek to portray any parent who opts his family out of this highly unusual world culture as a wrongdoer who victimizes his own child, even though his family is no more isolated than millions of families have been throughout history - often by the choice of the parents. Some of the religious groups that helped to colonize North America come to mind, and they are by no means unique.

I'm guessing you were exposed to regular media. You probably could go to the library and read about other cultures. Might have had friends of different religion or culture. Maybe went to school. Boy Scouts. Summer camp. These kids don't have that.

A lot of people didn't have that, throughout history.

First of all, referring to

First of all, referring to an argument as lazy and sloppy is not an insult. Bullying it might be, though I don't think it is in this case.

But I'm not going to get involved in this any further, since your tolerance for what I consider hairsplitting and nitpicking is vastly greater than mine, and, in any case, I wasn't even trying to make a point about the FLDS, just about shaky arguments.

I do say it "just isn't the same", without proof or argument. I do not feel the need to defend it. It's as obvious to me as that a teaspoon of salt is not a heap and a dump truck full of it is. I cannot articulate why, but then I'm not a philosopher and really don't have the time to get involved with it. Call me whatever you will.

That'll be my last word on this topic, ever.

That'll be my last word on

That'll be my last word on this topic, ever.

Sad to hear, as you've had lots of good words on it.

Maybe I was too hasty

I might have been too hasty with that declaration. I stopped because I felt myself starting to lose my temper, which I occasionally do and then tend to regret.

I certainly sympathize, but

I certainly sympathize, but I didn't want you scared away from the issue (or, more importantly, the blog) when you contribute so much positive to it.

...when you contribute so

...when you contribute so much positive to it.

As is now prominently displayed in the upper-right corner.

/applause

/applause

Thanks

Thanks guys. I'm not going anywhere, I just had to back away since I hate becoming angry/emotional in these kinds of discussions.

If you can't take it

If you can't take it then don't dish it out. But if you're in denial about "intellectually sloppy and utterly lazy" then you're not going to learn.

But what is the cutoff

But what is the cutoff point? At what point does one say that you or I weren't exposed enough to other points of view? It's only a difference of degree, hardly one of kind.

I was never encouraged to explore other religions. Nobody stopped me either. But apparently one of the criticisms of the Mormon compound (made rather "compoundish" by the illegality of polygyny and simultaneous state welfare, but that's another story) is that it disposes of renegade members too easily. Seems they are able to leave after all. Even the Amish have this, called Rumspringa, though in that case it's more of an official rite of passage.

Seems they are able to leave

Seems they are able to leave after all

Oh, they're able to leave all right. The 13-year-old boys get booted from the community to make sure the sex ratios stay right for polygamy. Permanently cut off from the only family they know, not even allowed to contact them. Completely uneducated, unable to find work. Many end up addicted to drugs, unemployed and depressed, with basically no prospects.

I'm sorry, but having to go to Sunday School as a kid is more than a "degree" of difference from that.

What's the cutoff? Hard to say. Will mistakes be made if you have to think about it rather than use mechanistic rules? Yes. That's life.

The 13-year-old boys get

The 13-year-old boys get booted from the community to make sure the sex ratios stay right for polygamy. Permanently cut off from the only family they know, not even allowed to contact them. Completely uneducated, unable to find work. Many end up addicted to drugs, unemployed and depressed, with basically no prospects.

Well, what will it be? So now they apparently don't trap them? Instead, they are removed from the only family they know and put on the track to lifetime failure. Hm, sounds eerily like what happens to foster care kids.

It most certainly is a trap.

It most certainly is a trap. "Get married as a 13 year old, or go live out in the world with no skills because we've made sure you're completely uneducated" might be a "choice", but no more so than the muggers' "Your money or your life."

Yes it is. The muggers want

Yes it is. The muggers want to take your money, the parents merely failed to give you skills. You are not owed education, you are not entitled to be taught skills. Being uneducated, skilless and poor is your natural state. The mugger makes you worst off in any case, the crazy parents offer you a possibility to be slightly better off - much less than other parents, but still.

I'm sorry, but having to go

I'm sorry, but having to go to Sunday School as a kid is more than a "degree" of difference from that.

But there are many kinds of religious practices in between attending religious instruction on Sundays and being raised in the FLDS. My personal experience is Orthodox Judaism, and the many degrees of separation and seclusion from secular society practiced by different religious sects. But I am also aware that this sort of thing happens in many other religions; Islam, for example, or the Amish.

I agree with you that our inability to precisely define what constitutes a "heap" does not make the concept of a heap incoherent; our inability to draw bright lines without being arbitrary doesn't make large differences in degrees indistinguishable.

But you seem to be trivializing the difficulty of line drawing by pretending that there just is a huge, empty gap between totally benign, nearly-secular Sunday School attendance, and the FLDS. The gap isn't empty at all; there are countless intermediate examples, and we should be extremely wary when instituting a general policy of paternalist intervention if we are completely unable to identify what we find actionable about the FLDS that we don't find actionable about the Amish or Chasidim.

Another point to be made

Another point to be made about this collective punishment and wholesale condemnation of the compound is that it completely undercuts any chance of a nuanced and legitimately socially liberal way of building bridges among cultures. When an intelligent child of about 10 (the age range of the kids taken from the compound, under 1 to about 12 apparently) is wrestling with questions about his cultural heritage, attempting to balance respect for tradition and love for various members of his community with unanswered questions and cosmopolitan curiosity, it seems imprudent and rather arrogant to force the answer, especially when questions of the "good life" are far from settled in the "real world". (Certainly not in the Texas foster care system. Yikes.)

This from Chandran Kukathas in his Exit, Freedom and Gender:

The nature of such dilemmas is captured with great power in the letters of a young Javanese noble-woman, Kartini, to her Dutch friend and correspondent, Stella Zeehandelaar. Written in the early part of the twentieth century, Kartini describes both her affection for her family and people and great desire that the virtues of the Javanese will one day come to be better understood and appreciated by Europeans, and her no lessfervent desire to escape from the obligations by which she is burdened as a dutiful daughter. In these letters, one of Kartini’s most firmly expressed desires is to broaden her own education, and make education available to Javanese women. No less important to her is her longing not to be forced into marriage. Yet in the end she forsakes her opportunity to study abroad to stay with her ailing father, and agrees to a marriagearranged by custom. ‘I must not lose sight,’ she writes, ‘of my duty as a child, nor those duties which I need to fulfil towards myself especially if my fulfilment affects not justmy own happiness but also the well-being of others. The issue is now, how am I able to harmonize these two great duties which I have to fulfil and which are precisely diametrically opposed to each other?

Who will make the claim that Katrini is suffering from False Consciousness? In fact, who will make the claim that I am? And don't think yourself exempt, not for a minute...

Burn the Bridges

It completely undercuts any chance of a nuanced and legitimately socially liberal way of building bridges among cultures

I'm unabashedly pro-Enlightment, somewhat oddly for one of the (only?) theists on this website, but there you go. If a community believes in child rape, then I don't want any bridges to them, other than as an path for escape.

(And I don't want to hear about how arranged pre-pubescent marriage has been common across history. So was slavery. I oppose that too.)

Wait, are you actually

Wait, are you actually alleging child rape, i.e. pre-pubescent marriage, is at issue in this case? I haven't heard anyone make that accusation yet.

Yemen

Coincidentally, an actual case of pre-pubescent marriage (in Yemen) made the headlines recently. The newsworthy rarity apparently is not that this was a child bride, but that she sued for - and won - a divorce.

Enlightenment Values

(Conflicted) Enlightenment thinkers such as John Stuart Mill claimed to value "experiments in living", and encouraged vigorous free speech and unobstructed inquiry out of a sense of rational humility. There is no reason to dismiss out of hand the idea that some of the people being brought up on the compound will have a particularly valuable experience to relate to the world ("Well, an interesting thing my sister wives used to do that no one hear has mentioned..."), given they are, and I'll say it again, allowed to live the life they've already declared they want to live.

Speaking of free speech, the declaration "I want to go home" is as legitimate as "I disagree with the this policy".

If you're representing the Jacobin wing of the Enlightenment, well, heh, then I see where you're coming from.

Child Rape is a violation of one's property in their body, so of course that's a no-no. And it should no more be assumed to be occuring among every family in the compound than it would in Spanish Harlem.

I can imagine someone in 100 years saying "I don't want to hear about how some 13 year old doing hard manual labor is common across history. So was Slavery. I oppose that too."

I can imagine someone in 100

I can imagine someone in 100 years saying "I don't want to hear about how some 13 year old doing hard manual labor is common across history. So was Slavery. I oppose that too."

Oh, but surely this isn't different from the mugger who says : "your money or your life"... after all, the poor kid has no choice but to go work for the monopolistic capitalist pig.

Similarly, the workers have no choice but to surrender the product of their work to the capital owner, otherwise they would starve. How then is wage-slavery different from slavery?

Coincidentally, an actual

Coincidentally, an actual case of pre-pubescent marriage (in Yemen) made the headlines recently. The newsworthy rarity apparently is not that this was a child bride, but that she sued for - and won - a divorce.

Interesting. Perhaps the problem isn't pre-pubescent marriage per se, but a lack of individual rights pertaining to.