Policy Libertarianism & Nonideal Theory

I'd been meaning to comment on Jacob's insightful post on Policy vs. Structural Libertarianism for a while now. But, what with the holidays and all, it rather slipped my mind. Having seen the dreaded Policy Libertarians(TM) at Reason weigh in, I'm reminded of my earlier reaction.

It seems to me that Jacob's disdain for policy libertarianism really amounts to a dislike of what political theory types call nonideal theory. That's jargony shorthand for asking what it is that we should do given that at least some other people aren't doing what they are morally obligated to do. To take up nonideal theory is to ask whether the misbehavior of others changes my own moral requirements.

Perhaps the paradigm example here is Kant's famous murderer at the door example, wherein I must decide whether or not I'm morally permitted to lie to a potential murderer about the whereabouts of his prospective victim. For Kant, the answer is a decided No! The Categorical Imperative, after all, prohibits lying regardless of circumstances. But many (most?) of us think that the murderer's wrongdoing actually changes my moral obligation. That is, most of us hold some version of nonideal theory when it comes to moral issues.

But many libertarians (including, perhaps, Jacob) reject nonideal theory in politics, holding that current political institutions run fundamentally counter to liberty. These structural libertarians, to use Jacob's term, hold that policy changes are useless, as the underlying structure can (and usually will) corrupt even the best policies. What's needed, they argue, is wholesale change. As Jacob colorfully puts the point:

No amount of pamphleteering and blogging will make vast amounts of people act against their self-interest. Quoting Jefferson at housewives isn't going to sway them when Obama Claus is on the television offering free college educations and health insurance. Putting 51% of the country on welfare programs and then campaigning to enlarge the payments will remain a winning strategy no matter how many DVDs of "Freedom to Fascism" are printed.

For starters, let me say that I think Jacob is overstating the extent to which changing policies is difficult. (In one of his comments, Patri makes the same (mistaken, IMO) claim. After all, it's not necessary, to borrow Jacob's own example, that my pamphlets convince 51% of the country to give up their welfare programs. I need only convince 0.9% of Jacob's welfare recipients. That's a tall but doable task. Indeed, it strikes me that there's at least some recent evidence that changing policies isn't all that hard to do. I'm fairly optimistic, for example, that a simple election has changed U.S. policy with respect to torturing prisoners at Gitmo.

Now I'll freely grant that some policies are harder to change than others. It's unlikely, for instance, that Social Security is going anywhere any time soon. And it's possible that little short of a massive overhaul will dislodge it.

But Jacob's distaste for policy libertarianism, I think, amounts to a failure to recognize that however much we might want to live in Libertopia, it's arrival isn't coming any time soon. In the meantime, liberal democracy is almost certain to be nonideal (at least from a libertarian perspective.) So given that lots of people aren't going to do what we think they ought, libertarians have to ask themselves whether they prefer to adopt a Kant-like disdain for sullying the purity of their ideal theory or a (dare I say commonsense?) nonideal approach of bringing the policies that exist in our current world more closely in line with respect for liberty.

For the record, it seems to me that both policy and structural libertarians are crucial. Until the pamphleteers finish convincing that last 0.9% of the power of libertarian ideas, the chances of making any sort of libertarian-friendly structural changes are, well, rather dismal. Or, to put things another way, we need Cato to keep the state from sucking up all of The Seasteading Institute's venture capital.

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Some problems

While I don't disagree with the gist of it (i.e. that advocating policy isn't useless), I still have certain problems with this entry.

That's jargony shorthand for asking what it is that we should do given that at least some other people aren't doing what they are morally obligated to do.

You might want to clarify. As you have described nonideal theory, libertarian ethics itself is nonideal theory. Libertarian ethics does not require that there be no wrongdoing in the world. On the contrary, it specifically identifies certain acts as wrong, and it permits us to act to protect ourselves against wrong. If you give a libertarian the scenario, "you own a shop and you notice that there is a shoplifter leaving your store with your property, what then," the libertarian will not say, "oh, libertarianism presupposes that there is no shoplifting in libertopia."

To take up nonideal theory is to ask whether the misbehavior of others changes my own moral requirements.

Again, you might want to clarify, because this statement is too general to have meaning. The reason is that it all depends on how "my own moral requirements" are described. Suppose that there is some innocent person named Bob. Then the following two statements about my moral requirements are both true from the standpoint of libertarian ethics:

a) I am morally required to refrain from killing innocent people.

b) I am morally required to refrain from killing Bob.

(b) follows from (a) and the fact that Bob is innocent. But suppose that one day Bob attempts to murder you. Then moral requirement (a) remains unchanged, while moral requirement (b) changes, since Bob is no longer innocent.

So as I said, whether Bob's misbehavior "changes my own moral requirements" depends on how those moral requirements are described. So whether what libertarian ethics requires of you does or does not change as a result of the misbehavior of others depends on how the requirement is described.

The Categorical Imperative, after all, prohibits lying regardless of circumstances.

Maybe it does, maybe it does not. However, libertarian ethics does not prohibit killing regardless of circumstances. If someone is trying to kill you, then I'm sure virtually all libertarians will agree that it is permitted to kill him if that is what it takes to save your life. And if it does not prohibit killing regardless of circumstances, then presumably it does not prohibit lying regardless of circumstances. (In fact, I would go further: that aside from fraud, libertarianism does not prohibit lying even to the innocent - at least, I don't recall any libertarian ever arguing for its prohibition.)

But many libertarians (including, perhaps, Jacob) reject nonideal theory in politics, holding that current political institutions run fundamentally counter to liberty.

This realization, or a generalization of it anyway (that the institutions tend strongly to favor certain sorts of policy over others for reasons intrinsic to the structure of those institutions - specifically the incentives that the participants are faced with), is associated most strongly, not with libertarians, but with the economic analysis of government, such as the work of Buchanan, Tullock, and Arrow.

It is not doing this idea justice to identify it with a faction of the libertarian tribe, especially when you are arguing that this faction is wrong. The idea is not wrong. It's mainstream economics.

So given that lots of people

So given that lots of people aren't going to do what we think they ought, libertarians have to ask themselves whether they prefer to adopt a Kant-like disdain for sullying the purity of their ideal theory or a (dare I say commonsense?) nonideal approach of bringing the policies that exist in our current world more closely in line with respect for liberty.

This is as much a caricature as the idea that policy-focused/reformist libertarians are crypto-statists. I don’t think attempting piecemeal reform is generally a bad idea because I don’t want to sully myself; I think it’s a bad idea because I don’t think it will actually work. Even hardcore voluntaryists (which I’m not) who reject all political involvement as a matter of principle have ideas that they think will be more effective. Now, it’s entirely possible that I’m mistaken, and am foolishly rejecting our best hope for victory, but that’s quite different from a Kant-like unwillingness to follow what is obviously the most desirable course out of sheer rigidity.

The reformist approach is only “commonsense” if, among other things, one accepts the assumption that pushing back the state is actually possible today or in the near future. This is precisely what I reject. Public opinion is too hostile, both in regards to policy specifics and in its basic underlying assumptions. In such conditions, attempts at reform are largely futile. Even an occasional victory in one area will likely mean little, overshadowed by the advance of the state in other areas. It’s like responding to a broken dam by spitting into the oncoming flood. I don’t see libertarians accomplishing more than the occasional pinprick, if that, until public attitudes change, and I don’t think public attitudes are going to be changed by arguments to fiddle with this or that aspect of the overall system. Some of those pinpricks may still be worth attempting if they improve people's lives here and there, but as the core of a strategy for significant change it's hopeless.

(I am a fan of certain reformist/policy efforts that also serve an educational purpose that may further structural ends. The sort of thing the Institute for Justice does is an example; through their efforts in the courts, they call public attention to examples of how statism and regulation serve privileged interests at the expense of everyone else and hold people back from success in their everyday lives.)

I’d like to look at the example you cite, because I think it actually serves to demonstrate just how much attempts at present-day policy reform are up against.

Indeed, it strikes me that there's at least some recent evidence that changing policies isn't all that hard to do. I'm fairly optimistic, for example, that a simple election has changed U.S. policy with respect to torturing prisoners at Gitmo.

I’m less optimistic, but in any case I think there are several factors that make torture unusually low-hanging fruit:

1. Officially sanctioned torture is a new innovation. It hasn't had time to become part of the accepted background of politics (like the welfare state or the drug war), nor does it flow obviously and logically from some other well-accepted policy (like the war on tobacco.)

2. Torture is so dramatic and shocking that even people who are fairly ignorant or indifferent are likely to know about it and have an opinion, and there is no specific group with a strong economic interest in torture. Thus, the mechanisms of public choice don't come into play to preserve it.

3. The impetus behind support for torture- fear of another massive terrorist attack- is based on a single shocking event that has not been repeated, which has allowed the fear to fade somewhat. The fears and other emotions that drive support for many other things- protectionism, paternalism- are more continuous and durable.

4. Torture of alleged terrorists is not very important for the state to maintain its power or continue to function as an effective means of control and exploitation; it’s nice to have if you’re in charge, but it’s a small thing. Condemning it as immoral does not throw the state’s legitimating myths or other, more vital state powers into serious question. Serious attacks on paternalism or economic statism would do just that, especially if they’re more than pinpricks, and so meet with more resistance.

5. The nature of torture is unusually hard to conceal through the usual sophistry. People don't usually consciously think about the fact that things like laws against working for less than the minimum wage or cutting hair without a license are based on the threat of violence, and thus a violation of the rules of morality that civilized people accept in private life, whereas it's impossible to ignore the fact that torture is a violent act at odds with what is usually considered decent behavior.

In other words, torture lacks most of the key features that make most state powers so hard to dislodge. And yet, its abolition is still not a foregone conclusion!