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Questions for Will Wilkinson Concerning Autonomy and Pluralism

Will Wilkinson asserts that libertarians who oppose the government raid on the FLDS do so out of an "unreflective anti-gubmint reaction." In other words, some libertarians simply hate the state so much that they ignore the equally awful (or even worse) behavior by private actors. In fact, Will argues, this error is not merely a function of libertarianism taken too far, but is a necessary consequence of the radical libertarian anarchist position; radical libertarian anarchists must commit this error in order to defend their overall position:

the possibility of insular authoritarian brainwashing communities structured around child rape is a pretty drop-dead objection to the desirability of anarcho-capitalism.

But surely Will realizes that this isn't just a problem for libertarian anarchists, or even for radical libertarians in general. This is a problem for all liberals, of which libertarians are but a subset. As Jacob Levy argues in his must-read Liberalism's Divide, this conflict between promoting pluralism on the one hand, and protecting individual autonomy on the other, is hundreds of years old, long predating libertarianism as a movement or coherent ideology, as well as predating the major split in liberalism between market liberals and welfare liberals. The question of plurality plagues us all. (Chandran Kukathas explains how this conflict of pluralism and autonomy remains even in a world in which libertarians constitute the majority, in Two Constructions of Libertarianism.)

Will seems to recognize that, as someone who often refers to himself as a value pluralist, he has some tough questions of his own in need of answering. Will qualifies many of his arguments in these two posts with terms like "within bounds", or "pluralism has its limits", but he doesn't sketch for us an even rudimentary way to go about doing this. Underestimating or under-enforcing these limits means allowing victims trapped within illiberal sub-communities to suffer great injustices, while overestimating or over-enforcing the proper bounds leads to another sort of problem, as Will acknowledges,

If you can’t figure out how to articulate the difference, then you don’t infer that child abuse is OK. You infer that evangelical home-schooling is child abuse, too — so you’d better be able to articulate the difference.

But Will has given us no reason why, in cases of uncertainty, the default rule should be biased in favor of promoting individual autonomy over promoting pluralism. I personally would much rather take the risk of letting isolated communities victimize their own members than the opposite risk of adopting a social rule whereby those with sufficient political power are free to "reproduce their ideologies and prejudices" upon all members of society, and not just a few sub-communities within it. I might favor adopting this sort of anti-pluralist social rule if I believed that those with sufficient political power will always and everywhere share the same ideology and prejudices that I have, but this would be quite a strange thing for me as a libertarian to believe, given the fact that libertarianism itself is a view held by only an extremely small, politically weak minority.

Randy Barnett took a lot of flak for claiming that libertarianism, if understood solely from the viewpoint of natural rights, has very little if anything to say about foreign policy in general and the Iraq War in particular. I actually agree with Barnett that strict natural rights libertarianism does not necessarily prohibit preemptive military invasion against foreign regimes that systematically victimize their own citizens. Rather, my objection to Barnett is that he dismisses consequentialist libertarian objections to invading Iraq as merely a "matter of judgment or prudence about which reasonable libertarians may differ greatly." But as Barnett himself recognized in The Moral Foundations of Modern Libertarianism, prudential concerns are intrinsically connected to libertarian ideology and no less important than concerns regarding natural rights. To dismiss prudential concerns as not intrinsically libertarian concerns--as merely concerns over which reasonable libertarians may disagree--runs the risk of defining out of the libertarian movement anyone who refuses to give natural rights primacy over prudential concerns, and Barnett does not want to do this.

Questions of prudence surround not only the decision to invade Iraq, of course, but the decision to invade any foreign regime that systematically victimizes its own citizens, as well as the decision to invade any internal domestic community that systematically victimizes its own members even while it remains at peace with the outside world.

As I noted previously in The FLDS and the Iraq War, there seems to be a tension between opposition to invading Iraq and support for invading the FLDS. Of course, the FLDS is a domestic regime that (allegedly) systematically victimized its own members, while Iraq under Saddam was a foreign regime that systematically victimized its own citizens. But libertarians, especially cosmopolitan, universalist ones like Will, usually don't make such strong distinctions based on the sovereignty of nation states or the nationality of the victim; an illiberal regime is an illiberal regime no matter where it is geographically located.

Couldn't one say that, on prudential grounds, it was unwise to invade Iraq but it was not unwise to invade the FLDS? Sure, but then you must admit that the difference between Iraq and the FLDS is a difference in degree and not a difference in kind. Had the FLDS been larger and stronger relative to the U.S. government, or had Iraq been smaller or weaker relative to the U.S. government, prudence would advise us differently. Such a realist position, however, acknowledges and seemingly approves of the fact that the more powerful will follow a policy of invading the less powerful so long as the costs of invasion are not too high, which in turn gives the less powerful an incentive that they might not otherwise have had to stockpile weapons in order to discourage future invasion, ala the Branch Dividians or North Korea's claim to have acquired nuclear weapons. This increases the likelihood that conflicts between micro-societies and the macro-societies in which they live will escalate into large scale violence - a conflict that might have been avoided had the macro society chosen a policy of persuasion instead (think Radio Free Europe). Prudential decisions to invade may not be so prudential in the long run, once we consider all of the unintended second-order effects.

Will could also respond that governments are a necessary tool for solving public goods problems, and the size of various government agencies, jurisdictions, and functions must be large enough to get the job done and no larger. So it makes sense for trade agreements to be made on a continental or global level, while zoning restrictions are best made on a local level. It follows that the Iraqi people sadly fall outside the concentric public goods solving circle which the U.S. military protects, while the FLDS falls within the proper jurisdiction.

I still don't think this properly captures a distinction that libertarians are likely to respect. Why not expand the concentric public goods circle of military defense to include protecting the rights of Iraqis? The typical answer is that Iraqis don't pay U.S. taxes. But the U.S. government provides many services to people who don't pay taxes. Further, if money is the problem, just make the Iraqis pay for the intervention; after all, if we are able to confidently determine that enough Iraqis want us to invade and liberate them to make this rescue justified, then surely we are also able to confidently determine if enough Iraqis are willing to help pay to defray the costs of their own rescue.

I'll leave Will with this thought experiment: Imagine that, tomorrow, some anthropologists announce that they have just discovered an indigenous, aboriginal, primitive tribe living in some previously unexplored part of Iowa, perhaps so well-hidden by corn fields that we had never heard of them and they had never heard of us, until now.

We tell the village elders (after learning how to communicate with them) that their society is primitive compared to ours, that we have advanced technology, medicine, food production, and political freedoms, all of which lead to much longer and richer lives than they currently enjoy. We kindly invite them to join us and enjoy the fruits of the enlightenment. We even offer them special programs to help them get accustomed to a new way of life.

Despite all of these massive benefits, only a select few villagers choose to take us up on our generous offer and exercise their physical freedom to leave the village. Most of the people in the village decide that they prefer its traditional way of life, despite the alleged benefits of the outside world. Some of them are fully informed adults who are legitimately familiar with the costs and benefits associated with living in the two societies, and nevertheless prefer the thick sense of community that their traditional culture, rituals, myths, religion, sexual mores, child-raising philosophy, and gender relations all help create.

Others are not so well-informed; some are too young to make a decision for themselves, so their parents make the decision for them. Others fear that they will be punished in the afterlife by their vengeful gods if they reject the traditions of their ancestors in favor of the attractive but ultimately empty glitz and glamour of the modern world. Still others understand that the gods don't exist, but fear that the culture and traditions of their tribe run so deep and are so intimately tied to the fiber of their being that they simply cannot abandon it, whatever their own rationality might tell them; without the proper upbringing, they just don't feel prepared to handle all of the new challenges of living in an advanced society.

Clearly the children and even many of the adults are not truly free in the psychological sense, even if they are free in the physical sense to walk outside their village. Further, even if we ignore the massive suffering and loss of quality-adjusted life-years associated with a complete lack of modern medicine and food, our modern sensibilities are also deeply disturbed by many of their cultural practices: they engage in polygamy, marry off their girls at a very young age, and send many of their young boys off on dangerous, unnecessary, often life-threatening quests to hunt for native Iowan wildlife and prove their manhood, thereby thinning out the number of male competitors for women - a necessity if the tribe is to remain polygamous.

They do not teach their children to read (for they have no written language); since their tribe is the only remaining community in the world that speaks their language, it is very difficult for tribe members to communicate, even if they were allowed to, with the outside world. They ingrain into their children at a very young age an intense fear of vengeful, jealous gods, who watch their every move, will punish them severely if they deviate from the tribe's traditions, and who, above all, may not be questioned. Independent, skeptical thought is discouraged; the capacity to live independent, self-chosen lives--lives that differ from the ideologies and prejudices of their tribe--is severely curtailed. They also have a horrible sense of fashion.

Do we colonize the savages for their own good, forcibly preventing them from engaging in certain practices, on the grounds that if they knew what we know, they most likely would not have chosen that life for themselves? Or do we sadly resign ourselves to respecting their (admittedly unchosen) decision to live a life of quiet desperation, perhaps setting up institutions aimed at communicating with, persuading, and acclimating them to make it more likely that they will choose to leave of their own accord, and that as the tribe hemorrhages members, it will eventually wither away to the dustbin of history?

Given your answer to the above question, does it really matter - should it really matter to us, as libertarians or as liberals, if this tribe is indigenous to America, or if instead of Iowa it was discovered in Sub-Saharan Africa? Does it matter if not every current member of the tribe was born into the tribe? What if the tribe accepts new members? What if the tribe recruits new members? What if the tribe isn't new at all, but a throwback to older tribes - e.g. a group of like-minded, primitivist, luddite, religious fundamentalists formed an artificial tribe with all of the same characteristics as the one described above?


Make-Work Bias?

Is this an example of make-work bias? Richard finds the following Clay Shirky factoid depressing:

Wikipedia... represents something like the cumulation of 100 million hours of human thought...

And television watching? Two hundred billion hours, in the U.S. alone, every year. Put another way, now that we have a unit, that's 2,000 Wikipedia projects a year spent watching television. Or put still another way, in the U.S., we spend 100 million hours every weekend, just watching the ads.

I don't get what's depressing about this comparison. Maybe it's more depressing in context?

Time spent creating entries for Wikipedia doesn't seem comparable to time spent watching television unless we have some predetermined notion about the value of passive media entertainment versus active media/information/education creation. If you think the ultimate purpose of life is to expand human knowledge or help others to the maximum extent possible, then I suppose this might be depressing.

But I don't think either of these things need be our ultimate purpose. The fact that people would rather, and in fact do, spend more of their time entertaining themselves by consuming passive media than actively helping others expand their knowledge seems like a good thing; I would rather live in a world where people choose to and are able to play more than they work. And while contributing to Wikipedia is in some sense inherently rewarding for those who choose to do so (or else they would not do so, for free), it's obviously not inherently rewarding to enough people enough of the time compared to watching television.

Is this depressing because we would rather live in a world in which more people engaged in positive-externality producing leisure activities than other types of leisure activies? But this still tells us nothing about the relative values of externality-neutral television watching versus externality-positive Wikipedia creation.

And this assumes television watching is neutral with respect to externalities. But is it? The more television my neighbors watch, the more advertisers are willing to pay to produce television programs, increasing both the quantity and quality of the programs, all at no cost to me. Do your part for the good of society and watch more television!

And now, having spent much of the day exploring Wikipedia and other user-created online content (such as Richard's most excellent blog), I shall retire to the warm comforts of my Tivo (skipping over the commercials, of course).


50 Bullets Have a Different Normative Status When They Come From a Cop's Gun

It occurred to me, after reading some recent news items, that there is a more direct way to respond to Richard's advocacy of institutional processes and procedural guarantees. Namely, what is the government's track record in this area?

Consider the case of Sean Bell, a black man shot and killed by police on his wedding day in a hail of 50 bullets. 50! Three of the plainclothes police officers involved in the shooting were indicted by a grand jury on charges ranging from manslaughter to reckless endangerment.

The defendants opted to have Justice Arthur J. Cooperman make a ruling rather than a jury. Yesterday, Cooperman found the defendants not guilty on all charges. As Radgeek cynically observed, it is abundantly clear that "we need government cops because private protection forces would be accountable to the powerful and well-connected instead of being accountable to the people." The institutional processes and procedural guarantees inherent in the current system surely reflect a "well-ordered society... governed by the rule of law." "The outcome of [this] just institutional process -- ...a [not] guilty verdict... -- has a different normative status than the corresponding action of a neighbor who takes it upon himself to unilaterally impose his will on others."

But perhaps New York City police shooting and killing black man and getting away with it is an isolated incidents, insufficient as an indictment of the entire system.

So consider the war on drugs. Richard believes that "it's not impossible to change public opinion, especially when you have the truth on your side." Richard assumes that "if a politician tried pandering to this ignorance, they would pretty soon be called on it, and ridiculed mercilessly."

And yet Charles "Cully" Stimson, who was a local, state, and federal prosecutor, a military prosecutor and defense attorney, deputy assistant secretary of defense, and currently a senior legal fellow at the Heritage Foundation, is taken perfectly seriously while being completely nonresponsive to argumentative appeals to truth and while pandering to ignorance. The Drug War could not continue to exist if this were not the case. Exactly which institutional processes and procedural guarantees give drug prohibition "a different normative status than the corresponding action of a neighbour who takes it upon himself to unilaterally impose his will on others"? I would honestly like to know.


There Are No Procedural Moral Rights

Richard at Philosophy, et cetera objects to The Hanover Street Shoeshine Boys and similar libertarian parables on the grounds that

Mayor:thief :: juror:vigilante

In other words, Richard argues, instutional actions are sometimes justified, even though these same actions--if commited by an individual citizen--would be unjustified, because there are procedural safeguards (rule of law, trial by jury) present when an institution acts that are not present when an individual acts.

This misunderstands the purpose of the parable in two ways. Parables like Hanover are primariy used by libertarians in response to love-it-or-leave-it arguments. When a libertarian objects to, say, social contract theory justifications for the state on the grounds that she never signed any social contract, the love-it-or-leave-it response is that her continuing presence in the territory to which the state claims jurisdiction over itself constitutes consent to the social contract, and therefore justifies the state's jurisdiction. If she doesn't like the rules, she is free to leave (or change them through electoral participation).

But the love-it-or-leave-it response is entirely circular. It assumes the very thing it is attempting to prove - the legitimacy of the state's jurisdiction over a given territory. Unless we first assume that the state is the legitimate owner of the territory in question and can therefore set the rules (and if we assume that, we have already assumed our conclusion), the freedom to leave the territory is no freedom at all. Your neighbor can't come over to your house and tell you to wear a funny hat or feel free to leave, because it's not his house to begin with.

The second misunderstanding is that procedural safeguards are not moral rights. Procedural safeguards are justified on practical, epistemic grounds, not on ontological, moral rights grounds. There is nothing inherently rights-violating about vigilantism, so long as the vigilante happens to be right about who commited the crime. We may think the vigilante reckless, but not that he has violated any moral right of the person he punishes, if the person he punishes happens to have commited the crime.

Robert Nozick failed to recognize this distinction, and thought that he could justify the state on the grounds of procedural rights. Randy Barnett demonstrated Nozick's error:

Though only the innocent party may rightfully use self-defense, it is often unclear to neutral observers and the parties involved just who is innocent. As a result there exists the practical problem of determining the facts of the case and then the respective rights of the disputants. But I must stress here that this is a practical question of epistemology not a moral question. The rights of the parties are governed by the objective fact situation. The problem is to discern what the objective facts are, or, in other words, to make our subjective understanding of the facts conform to the objective facts themselves.

The crucial issue is that since rights are ontologically grounded, that is grounded in the objective situation, any subjective mistake we make and enforce is a violation of the individual's rights whether or not a reliable procedure was employed. The actual rights of the parties, then, are unaffected by the type of procedure, whether reliable or unreliable. They're only affected by the outcome of the procedure in that enforcement of an incorrect udgment violates the actual rights of the parties however reliable the procedure might be. ...

Nozick's epistemic considerations are relevant to whether one who indiscriminately takes restitution from people he's not sure are aggressors (but happens by chance to be right) is a good man. This is a question of morality, not rights. Epistemic considerations are also relevant when we realize that we are likely to aggress against innocent people and be responsible to them if we aren't careful about who we "punish." This is a practical question, not one of rights. ...

We may take as our moral goal or end a certain state of affairs. Anything which enhances this state of affairs we may do provided we don't violate certain moral side constraints on our actions. Nozick correctly argues that the protection of rights is not a moral goal since this would allow us to violate the rights of a few in order to generally enhance the rights of the many. For example, one may not torture the innocent person to gain information which will prevent the explosion of a bomb even though this would generally enhance the goal of protecting peoples rights (in this case the rights of the potential victims). Rights of individuals are moral side-constraints. We may strive to achieve our goals in any way which does not violate an individual's rights.

I would adapt this view to our discussion here. For practical and moral reasons, procedural fairness and knowledge by enforcers of the guilt of their suspects are moral goals to be striven for. Our efforts to achieve them, however, cannot violate the rights of any individual. To punish a victim for taking restitution from his actual aggressor just because he wasn't sure it really was his aggressor is a violation of that victim's right of self-defense and, therefore, a violation of our moral side-constraint. The right of self-defense, then, dictates that procedural fairness and epistemic certainty are goals, not constraints.

- Randy Barnett, "Wither Anarchy? Has Robert Nozick Justified The State?" Journal of Libertarian Studies, Vol. 1, No. 1. pp 15-21 Pergamon Press, 1977

The lesson of Hanover still stands: taxation is theft.

(Incidentally, I notice that Richard rejects the deontological notion of side-constraints in favor of some version of utilitarianism. As it happens, so do I. So Richard is free to reject this second argument, but I think the first is still valid.)


Wow. Just Wow.

Charles "Cully" Stimson, a senior legal fellow at the Heritage Foundation ("devoted to the principles of free enterprise, limited government, and individual freedom"), responds to Jacob Sullum's reasonable observation that many of our current politicians' history of marijuana and cocaine use did not turn out to be a harbinger of ruin for them (primarly because they were never caught and punished by the legal system) with this stellar piece of logic:

Imagine this:

It's 3 a.m., and a phone rings in the vice president's quarters. A Secret Service agent answers the phone, listens, and then rushes into the VP's bedroom with the phone in hand and wakes him up.

Agent (placing his hand over the mouthpiece of the phone): Mr. Vice President, the president of Xyzistan has threatened to launch a nuclear strike in 15 minutes. You must respond.

Vice president: Where is the heck is the president? Why isn't he taking the lead on this issue?

Agent: Sir, he's coming down from his heroin high. We tried to wake him up, sir, but he's out of it.

Vice president: Give me the darn phone.

Other than demonstrating a hard-on for 24-style daydreaming, I'm not sure what this has to do with the issue Stimson was asked to discuss. In a normal world, people like Stimson would be laughed out of serious company, not given space in the LA Times. How does Jacob Sullum remain sane when dealing with people like this day after day? It's enough to make a man want a stiff drink.


Quote of the day

You cannot prevent discrimination with democracy. You can only move it
from the level of individuals and organizations to nations and borders.

Writes Grant in the comments to Bryan Caplan's Quick Fix for Haiti. And a comment from Sheetwise with relevance to Seasteading:

Nobody is going to risk a dime in investment there, so where's the permanent fix? The best thing we could do for them is to convert a few cruise ships into sweatshops that pay $20 a day. Wouldn't that be cruel? We could anchor them just outside the territorial waters, and offer work to anyone who was willing to row out. After a while, we subtly hint that they could have all of this onshore if they simply get rid of, and quit supporting, the thugs that are running their country. Maybe we even sell guns in the ships store. We would then have support from all of the rich. After the revolution, we simply cruise off to the next political hell hole.

This could work for much of Africa, too. Seasteading as globalization, only better.


The Hanover Street Shoe-Shine Boys

I'm reposting this classic essay by OWK because the previous version is FUBAR

Now it wasn’t too long ago (or so I allow myself to believe), that I embraced the mantle of manhood, and went in search of my first job. I got one too. It was an acceptable job as jobs go, but it didn’t pay me all too much. It was just an honest day’s wages, for an honest day’s work pumping gas.

After my first week (which included a hard lesson on the difference between oil and transmission fluid that I’d rather not discuss) I got the object of my greedy little teen-aged desires. I got my first paycheck. When Mr. Gaston put it in my hands and said “Good work son”, I have to admit I was filled with a sense of pride at my accomplishment, but only for a moment. Pride is a fleeting thing in young men, so it was off to the bank to cash my prize as fast as my legs would get me there.

I was whistling a tune, and there was a noticeable spring in my step, as I flung open the door to the bank, and swaggered up to the teller. She counted out my $97.32 with the precision of a machine, and then with a wink offered me the customary loli-pop usually reserved for the children of customers (which I must admit took a bit of the swagger from my gait). Still though, I had my hard-earned money, and it was good.

So out the door I went. I got only three steps outside, or maybe four, when I felt a hand on my shoulder. I turned to face a man with a gun in his hand. Behind him, were dozens more. Street toughs from the look of ‘em.

“Can I help you?” I asked, doing my best to look menacing. “You sure can” he said with a smile and a flourish. Then he turned to his associate and barked “Shine his shoes Mickey”.

At that point a little rat-faced fella with a wooden box and a brush scampered up to my feet, and plopped himself unceremoniously before me. I simply stared at him. He returned my gaze with expectation, and after awhile he offered “I can’t shine your shoes if you don’t put your foot on the box”.

“But… but, I don’t want a shoe-shine” I protested, “I’m wearing sneakers”.

“It don’t really matter what you want” he shot back. “We had a vote, and decided that everybody needs a shoe-shine”. Now I was just about to smack this weasel out of my way, and go about my business, when I caught sight of the gun-toting man who started it all. “It’ll only take a minute” he said, “and it goes much easier if you cooperate”. Then he wiggled his sidearm, and smiled a wry little smile, and I knew I was licked. So I put my foot up on the box, and suffered the humiliating spectacle of black shoe-polish being slapped on one sneaker, and then the other. I bit my lip, and endured. And he was as true as his word. It really only did take a minute. So I thanked him kindly for ruining my shoes, and turned to go.

“Just a minute” I heard from over my shoulder.

I turned again at the sound of his voice, and offered a somewhat annoyed “Yes?”.

“Well there’s the small matter of payment” he declared.

“Payment?” I shot back incredulously, “I didn’t want the damned shoe-shine to begin with”.

“I thought my associate made that clear already” he said. “It doesn’t really matter if you want a shoe-shine or not”. ‘We took a vote, and decided everybody needs a shoe-shine”. So at this point I was beyond mad, but I didn’t have too many options. The guy has a gun.

“Ok” I conceded, “How much do I owe you?”

“How much was your paycheck?” he asked without batting an eye. Now I must admit that at this point I thought about lying, but the gun made me think better of it. So I lowered my head and mumbled “$97.32”.

“Calculator” he bellowed, as another of the crowd rushed forward to put a calculator in his hand. “Now lets see, that’s 34 percent of $97.32, so it comes to…. $33.08”

“Thirty-three dollars?” I yelled. “For a shoe-shine?”.

“Well ya see, its not just as simple as a shoe-shine” he offered by way of explanation. “Mickey, he needs to stay well-stocked in shoe-shine stuff, and me and the boys need equipment so we can keep order while we’re helping folks out with their shoe-shine problems” “Plus, we all gotta eat too”. “So when you take all this stuff into the picture, we figure 34 percent really ain’t all too bad” “We like to call it paying your fair share…. Plus, we voted on it”.

“Ohhhh… well since you voted on it and all” I quipped “how can I refuse”. I handed over my $33.08, and resigned myself to the fact that I’d lose a few dollars, but manage to save my skin. I turned again to go about my business, when again I felt a hand on my shoulder. “One more matter to take care of” he said curtly. “What is it now?” I asked.

“Well ya see, me and the boys, we’re kinda concerned that some folks don’t get on so well in their old age. So we come up with this system, where you give us a bit of your money to look after for ya, until ya get old.” he explained “Then we give it back to ya a bit at a time, when you need it”.

“I need it now” I answered.

“It don’t matter what ya think ya need now” he said. “We voted on it”.

“How much?” I groaned… “Only 13% of your original paycheck” was his answer.

So I coughed it up, and ran like the wind, lucky to escape with half my check and my life. I found out that day what it was like to become a man in a world which doesn’t care about what’s yours because they “voted on it”. And I found out too, the very next week, that those Hanover Street shoe-shine boys are there waiting for their “fair-share” every week. And I found out that they really DON’T care whether you want a shoe-shine or not. They voted on it.

And as the years rolled on, I tried using different banks, and different streets, but those damned shoe-shine boys are a pesky bunch. I found out that as you get older, and make a bit more money, they take a bigger “fair-share” cut. They even let you vote with ‘em if you don’t make too much of a fuss. I always vote to keep my own money, but my vote doesn’t seem to count for much.

Yeah, they offer to dust off your jacket AND shine your shoes now, but I still don’t want a shoe-shine, and I still don’t want my jacket dusted. I really don’t want them holding my money till I’m old either. (and I’m beginning to wonder if I’ll ever see that money again). It don’t really matter though. They voted on it (and they’ve got guns).


The FLDS and the Iraq War

While it is not yet entirely clearly if systematic, institutional violent coercion took place at FLDS (e.g. if the group legitimized child molestation and/or forcibly prevented exit), it is in fact entirely clear that systematic, institutional violent coercion took place in Iraq under Saddam Hussein.

And yet many of us nevertheless opposed the U.S. invasion of Iraq, not because we thought Saddam was a good person or because we denied that he committed crimes against his own people, but because using the U.S. government to intervene for humanitarian reasons (to replace a cruel dictator with “democracy”) is unwise in the extreme, for a variety of reasons. First, it would be naive to expect a government rife with massive failure in the domestic arena to achieve success with nation building. Second, the justification knows no limits; if it is proper to invade, occupy, and rebuild Iraq in our own image, why not also Iran, North Korea, or Zimbabwe? Feel free to to add in the many other reasons why you believed intervention was a bad idea.

Now, what is true in a clear-cut case like Iraq is a fortiori true in a less clear-cut case like the FLDS. As much as we may dislike the internal practices of these regimes, violent intervention is unlikely to improve things. Better to persuade peacefully with things like Radio Free Europe or pamphleteering than calling in the jackbooted government goon squads.

Chandran Kukathas has written on this inherent tension within libertarianism: “Two Constructions of Libertarianism," an article I reference frequently.

This post was inspired by Mona's FLDS post over at AotP. While you're over there, be sure to read Jim Henley's spot-on ode to Stealers Wheel:

I think libertarians are, rather, the court jesters of politics. I mean that in a good way. We whisper to Caesar that he is mortal. We caper about, turning ourselves blue if necessary, reminding everyone that government power is inescapably violent and inescapably self-interested. You’re probably not going to care, but we’re going to make you actively decide not to care. And sometimes, maybe you’ll care after all. As a class, we can be stupendously silly people, believing and saying the most absurd things. But our rulers are silly people too, in different and more malignant ways. And as fools, we have the freedom to say so.


Alternate Reality

Imagine what the world would be like if all letters to the editor looked like these, instead of the usual rogues' gallery of economic idiocy we find in most newspapers.

[Apparently the Wall Street Journal doesn't let non-paying users read or link to the previous day's letters page, so I'll just copy and paste all the responses they printed below.]

LETTERS
A Dissection of Medical Insurance Costs, Benefits; Government's Role

Jonathan Kellerman is correct that it would be better for both parties if patients paid doctors without intermediation ("The Health Insurance Mafia," op-ed, April 14). U.S. physicians earn 10% of their income from patients. In 1950, this share was about 85%, and it was 40% as recently as 1980. Meanwhile, physicians' real income from the practice of medicine has declined.

He also lets government off the hook too easily. A hospital's $20 aspirin is not the consequence of "health insurance." It is the result of Medicare's centrally-directed price-fixing and Byzantine reimbursement policy. Of course, in their role as Medicare carriers, health insurers are a party to the government's racket, but they did not invent it.

John R. Graham
Director, Health Care Studies
Pacific Research Institute
San Francisco

At the metalevel, both providers and payers are systematically ensuring that the costs of health care continue to rise at rates far exceeding the rate of inflation. Both sides have a vested interest in ensuring that this process continues. Insurance companies take the same percentage of a larger pool of money.

The system itself is invested in keeping the consumer out of the loop and uninformed about the real cost of care. The system does not want individuals making cost-benefit decisions about procedures, tests, prescriptions, or other aspects of their care as they would if they had to pay for the services themselves. Involving the consumer is inefficient for providers and undermines the role of the health-care insurance industry. It is time consuming and distracting, and forces all parties to answer too many questions about their routine practices.

John K. Connors, M.Ed., LPC

Austin, Texas

The mafia profits in precisely those sectors that are prohibited or heavily regulated by government, namely murder, theft, gambling, loan-sharking, prostitution and narcotics. The nightmare results in health insurance described by Dr. Kellerman are also due to government actions, such as malpractice awards, medical licensure, tax and labor laws, FDA requirements, and so forth. Nobody expects presidential candidates to talk about fire or auto insurance, and that benign neglect is why those industries operate just fine.

Robert P. Murphy
Nashville, Tenn.

When we see providers accepting one-third to one-half of their "list" prices, we know that list prices are way out of line. And when we are caught "out of network," just try to negotiate a reasonable fee from those providers. Today, those least able to pay are the ones charged the highest prices in many cases.

Harlan Janes
Chocowinity, N.C.

The truth is, if we could pay our doctors and hospitals at the insurance companies negotiated rates and have just catastrophic coverage, most of us would see lower cost with little increase in risk. It means I would have to pay my doctor out-of-pocket next time I go in for an exam. But chances are, he won't charge me $40,000.

Rich Van Saders
Boonton, N.J.

The problem is a complete absence of competition between hospitals, and a total lack of choice for the patient -- i.e., the consumer of what he wants or needs to "purchase."

Health care systems all over Europe are in financial and organizational trouble, and an easy and painless solution is not in sight.

Walter M. Gerhold M.D.

Osprey, Fla.

Any attempt to organize independent practitioners against the insurance mafia would be swiftly met with threats of violations of federal antitrust laws.

Dr. Kellerman speaks of a Faustian bargain forged years ago between physicians and the insurance mafia. In reality, the agreement was between the American people and their government, the former demanding unlimited, high-quality medical services for which "someone else" would pay. Those looking for still more government solutions might at long last confront the reality that they have met the enemy -- and it is them.

Michael Stein, M.D.
Evanston, Ill.

The current arcane reimbursement system has become so draconian and complex that all competition on price has ceased. No one charges less than Medicare, Medicaid or the insurance companies pay. Everyone tries to maximize their reimbursement in this budget-neutral, fixed-payment system. The only ones consistently making a profit are the insurance companies which take their profit up front and then download their costs to the patient, providers and employers.

Bohn D. Allen, M.D.
Arlington, Texas

Except for catastrophic, high-deductible plans, health "insurance" is actually health maintenance. It covers everything from routine physicals to drugs and x-rays to major hospitalizations. An analogous situation would be insurance to put gas in our cars and mow our lawns as well as to cover collisions and major house damage.

A third party pays for 86% of the health care in this country. We will continue to have runaway costs and over-utilization until patients can control and be responsible for their own health-care expenditures.

Roger Stark, M.D.
Seattle


Who Owns Your Mind?

Here's a question I've never really thought about much before: Does the mind/body problem have implications for the concept of personhood and self-ownership? That is, do the answers we give to the mind/body problem potentially conflict with or necessitate the answers we give to questions about personhood and self-ownership?

Gene Callahan writes,

I've always thought the concept of "self-ownership," so loved by many libertarians, is a little screwy: Man is not a good he owns, he is himself. To the common comeback, "If you don't own yourself, then who does?" my answer has been, "No one, just like no one owns arithmetic or the night sky.

In the comments, Brian N. objects on the grounds of dualism. If our minds (consciousness/will/ego) are distinct from our physical bodies, then Gene's criticism fails. Even if it is incoherent to say that we own our minds--since our minds are identical to our selves--we may nevertheless still own our bodies. Perhaps the phrase "self-ownership" is misleading; we don't really "own" our selves, if our selves are understood as our minds. But we do own our bodies. Maybe we should call it "self-body-ownership" instead.

Also in the comments, Stephan Kinsella raises another possible objection: To say that you own something is to say that you have the right to control it. (Stephan is not using these terms in a normative sense. Ownership here is equivalent to mere possession, i.e. the capability to control. I can legally own something--have the legal right to control--even if I am not morally entitled to control it.) Unlike (the logical properties of) arithmetic and (the emergent beauty of) the night sky--both of which we can say are owned by no one because no one controls them--human bodies can be controlled by human will, and must be controlled by human will if there is to be any human action at all.

But just because human bodies can be controlled by human will does not tells us which human wills' should have the right to control which human bodies. Stephan gives the example of a prisoner, who in some respects controls his body (he can choose to think about pink elephants, or twiddle his thumbs), but also lacks control of his body in many other ways (he cannot travel very far, nor eat when and what he wants to). Incidentally, some libertarians, such as Kinsella and Hoppe, offer reasons why the right to control a given human body should (usually) be given to the human mind--i.e. the person or self--who happens to occupy that body - essentially arguing in favor of "self-body-ownership" and against, I suppose, "other-body-ownership."

Note, though, that these justifications of the concept of self-ownership depend upon a belief in some form of dualism. Not the version of dualism which posits that the mind consists of different "stuff" than the body--a theory both materialists (who believe that the mind is an extension of the physical body) and idealists (who believe that reality is in the mind) reject, but a more basic version of dualism - a version perfectly compatible with materialism and idealism. This more basic version of dualism posits a conceptual distinction between the mind and the body, a distinction that allows us to say that the self resides in--or is identical to--the mind but not the body.

However, Brian's and Stephan's explanations of self-ownership do not seem to work for those who reject this specific distinction between mind and body. Gene seems to hold such a position, when he rejects these arguments and writes that

man does not "make use of his own physical substance," man is the union of particular physical and spiritual realities.

This claim is ambiguous. Is Gene saying that a person just is the union of both mind and brain? Or is he saying that a person is the union of mind, brain, as well as the entire non-brain physical body, even the parts of the body that aren't required to keep the brain functioning (arms, legs, etc.)? If the latter, certain difficulties immediately arise: people who are born lacking--or later in life lose--parts of their physical bodies are not really persons at all, under this theory. If particular physical realities--parts of our body that are not our brain (and not necessary for our brain to function)--are necessary for personhood, then it seems like any entity lacking these non-brain body parts is not a true person. They didn't lose the use of their limbs; their limbs were part of the union which constitutes self, so they must have lost a necessary part of self - logically necessary, not just necessary to perform certain tasks. And this is not just a problem for limb amputees; it is a problem for all of us: we are all losing parts of our bodies (and gaining new parts) every instant. My body does not consist of the same matter it did 20 years ago, or even 20 milliseconds ago.

Even if Gene's claim is the former, that a person consists of the union of both mind and brain, but not the rest of the body, it is still the case that my brain is not the same brain it was 20 years ago, or 20 milliseconds ago. To avoid this difficulty, Gene could say that a person consists of the union of both mind and a brain, but it doesn't particularly matter which brain a person has, as long as it has a physical apparatus with all of the necessary features that constitute a functioning brain (thereby allowing for a mind). So a person at time t2 is the same person as a person at time t1 if and only if both of these persons share the same mind and have some form of a physical brain, even if they don't share the same physical brain.

But what does it mean to have the same mind (even if we grant different physical implementations of brains) at time t1 and t2? I do not have the same thoughts, perceptions, memories, emotions, will and imagination that I had 20 years ago. Am I a completely seperate person from my past self? Maybe the persistence of mind over time is achieved through a single stream of consciousness. We might even grant that this single stream of consciousness can tolerate interruption through sleep or coma and yet still be considered the same stream of consciousness--the same person--upon waking up. But what about an amnesiac, whose consciousness is completely different after suffering from a brain injury? Can we still say this is the same stream of consciousness? Is it really the same person before and after the amnesia, if there is a total loss or change of memory, personality, emotion, perception and thought?

Putting these questions aside, it seems like the most charitable interpretation of Gene's statement is that a person consists of the union of both mind and brain, but not the rest of the body (except perhaps those parts of the body necessary to keep a brain functioning). This is reasonable. After all, minds can't exist on their own, just floating out there in space - minds require brains. This interpretation means we must qualify Gene's original claim that "man does not 'make use of his own physical substance'" and interpret it to mean that there is some part of man's physical substance which he does not make use of - some part of his brain (but not all parts, only whichever parts constitute self - perhaps only the parts necessary for maintaining a stream of consciousness). He does not make use of this part of his brain because he just is this part of his brain.

But this more reasonable interpretation requires adopting the self=mind+brain identity and rejecting the self=mind+brain+non-brain body identity. And if self does not include the rest of the non-brain body, then it is unclear why Gene's argument should act as a rebuttal to Brian's and Stephan's dualistic claims that we can indeed make use of, and therefore stake claim to, many parts of our physical body--our arms, our legs, etc.--because they are not essential to our personhood.

The only way to make Gene's argument work as a rebuttal to Brian and Stephan is to interpret his statement in the less charitable, less reasonable way: that a person is the union of mind and brain, as well as the entire physical body, including those parts nonessential to a functioning brain. But then we are back to the amputee objection: if my arms and legs become detached from my body, am I no longer a person, since these limbs constituted an integral part of my identity as a person (and not as a nonperson)? Can I not coherently stake a claim of ownership to my nonessential body parts, perhaps for the purposes of organ transplantation? I understand, based on Gene's argument, why I cannot coherently stake a claim of ownership to my essential body parts that constitute or are necessary for the proper functioning of my mind, and I certainly cannot transfer ownership of my self--if my self is understood as my stream of consciousness--to someone else. But it is not clear to me why, according to Gene, I cannot stake claim to--and even transfer ownership of--body parts nonessential to the existence of self.

Maybe self-ownership is a little screwy. Maybe even self-body-ownership is a little screwy. Perhaps we should adopt G. A. Cohen-style communal-body-ownership, redistributing nonessential body parts the same way we redistribute income. But even this is a form of ownership: a form of control over physical bodies, albeit communal control. In order to have any kind of human action at all, some person (or group of persons) must have the ability to control, and therefore have ownership of, at least part of the body. So it cannot be the case that each and every part of our bodies are unownable.


There Are No Asantanists In Foxholes

This is an amusing argument:

Not all Nazis were atheists, but they were all asantanists. Not all Crusaders were Christians, but they were all asantanists. Communists under Stalin, Lenin and Mao? Asantanists all. Witch-burners, inquisitionists, defenders of the faith in whatever form: asantanists. Every mass-murderer, everyone who became famous for the cruelty and inhumanity of his or her atrocities, was an asantanist. Of all the people whose names have become synonymous with injustice and evil, not one of them believed in Santa Claus. [...]

When people blame unbelief for bad behavior, what they’re really claiming is that the person’s behavior would be better if they believed. When we look at the actual behavior of believers, however, we do not find this to be the case, because the believers’ record is no better. And even if the unbeliever’s behavior was worse, how would we know which unbelief to blame for their behavior? Lack of belief in God can be linked to only some of the notable crimes of history, but lack of belief in Santa is common to all of them.

I don't think the argument in the last two sentences works, though. If, after empirical investigation, we discover that atheist behavior was worse than theist behavior, we could not use lack of belief in Santa to explain atheists' worse behavior, because there is no discrepancy in terms of asantism; after all, we just finished saying that lack of belief in Santa is common to both groups.

I do agree with the author's general point that it makes no sense to blame lack of belief as a cause of misbehavior, unless you first establish that belief is necessary for good behavior.

Read the whole thing.


Immaculate Conception: A Decent Porn Video Title

This sounds like the sort of non-apology apology people give when they don't really feel responsible for any wrongdoing but know they are expected to apologize anyway:

Benedict said the sexual abuse of children by priests has caused a "deep shame" and called it "gravely immoral behavior."

"Many of you have spoken to me of the enormous pain that your communities have suffered when clerics have betrayed ... their obligations," he told the bishops.

Responding to the situation has not been easy and was sometimes very badly handled, the pope admitted.

"It is vitally important that the vulnerable are always shielded from souls who would cause harm," he said.

Mistakes were made, he says in passive voice. It's the reverse of an "I was just following orders" excuse: some subordinates in our organization enganged in wrongdoing; the subsidiary groups responsible for oversight had great difficulty responding to the situation and handled things very badly - sometimes. But this responsibility sort of tapers off as it flows up the organizational hierarchy, and by the time it reaches me, I can only lament the actions of others, not speak apologetically on behalf of the organization as a whole, despite being the leader of it.

To be fair, I haven't and do not plan to read the Pope's remarks in the original; all of my critical comments are based solely on second-hand media summary. So it's possible that this article just did a really poor job paraphrasing the Pope's speech.

Here's something I find even more disturbing about the speech: Immediately after pseudo-apologizing for child molestation, the Pope transitioned into... wait for it... wait for it...

"What does it mean to speak of child protection when pornography and violence can be viewed in so many homes through media widely available today?" he asked.

Benedict urged the media and entertainment industry to take part in a "moral renewal."

Some might call this misdirection. I call it chutzpah.

Update: This LA Times account is a little more favorable, emphasizing "unflinching acknowledgment that the crisis was mishandled by church officials." Still, even this account falls short of a full apology - an apology that acknowledges not just isolated failures on the part of subordinates in the hierarchy, but a complete admission of institutional guilt for the organization as a whole. And it just so happens that this article mentions a victims group with exactly the same criticism:

His remarks won praise from his audience, but one victims group said they fell short. [...] Barbara Dorris of the Survivors Network of Those Abused by Priests said the pope ignored what the group maintains was a systematic practice by many senior clergy of stonewalling police and investigators to protect abusive priests.

This second article is also an even more damning indication of misdirection, rationalization, and chutzpah, by connecting the two topics of child molestation and media/social permissiveness as causally linked:

Benedict suggested that the crisis has occurred at a time when society devalues human dignity and distorts the role of sexuality through pornography and violence.

Well, no wonder all those priests molested little boys: secular, libertine society and media made them do it! Don't dare blame the sexual repression caused by celibacy and gender segregation; it's your fault we molested your kids, society, not ours.


Jackbooted Government Thugs Crackdown on Peaceful Immigrants, Paleo-Libertarians Pleased?

Absolutely shameful. Has the federal government done enough yet to squash capitalist acts between consenting (albeit, brown-skinned) adults, or does the LewRockwell anti-immigrant crowd demand even more "enforcement"? Secure the borders! Libertarians for ethnic cleansing! Viva la Ron Paul Revolución!

MOUNT PLEASANT, Texas, April 17, 2008: Federal agents arrested hundreds of people in raids at Pilgrim's Pride chicken plants in five states, the latest crackdown on illegal immigrant labor at the nation's poultry producers.

In separate sweeps Wednesday, authorities also arrested dozens of workers at a doughnut factory in Houston and the operators of a chain of Mexican restaurants in upstate New York.

The arrests at Pittsburg, Texas-based Pilgrim's Pride Corp., the nation's largest chicken producer, included charges of identity theft, document fraud and immigration violations. The company worked with Immigration and Customs Enforcement agents ahead of the raid, said Ray Atkinson, a company spokesman....

No criminal or civil charges have been filed against Pilgrim's Pride,
which has about 55,000 employees and operates dozens of facilities
mostly in the South, Mexico and Puerto Rico
, supplying the Kentucky
Fried Chicken restaurant chain and other customers.

ICE said nearly 300 were arrested, but Pilgrim's Pride officials said about 400 hourly, non-management employees were arrested.

"We have terminated all of the employees who were taken into
custody
and will terminate any employee who is found to have engaged in
similar misconduct. We are investigating these allegations further,"
Atkinson said in a statement. ...

Employers don't need to worry about getting deported if they cooperate with the police and rat out their employees, so it's no great surprise to discover which way the deck is stacked between labor and capital. And yet so-called "Progressives" continue to call for demand-side policies that punish employers who hire undocumented workers and not the workers themselves. Even if such a policy could be make to work, which is unlikely given the above reason, Progressives aren't exactly helping the workers by targeting their evil corporate masters; as Rad Geek explains,

The idea [behind demand-side policies] is to forcibly drive down the demand for immigrant labor, which means forcing willing immigrant workers into unemployment, and whitewashing this anti-worker legislation with pseudo-populist rhetoric about greedy corporations—sometimes on the implicit claim that American workers are more deserving than other workers, simply on the basis of their nationality, and sometimes on the even more outrageous claim that forced pauperism is for the immigrants’ own good.

Continuing on with the news article,

Pilgrim's Pride has had previous trouble with employees in Arkansas. In
January 2007, police arrested a manager at the company's De Queen plant
who rented identification documents for $800 to get a job there....

Wednesday's coordinated raids began at 5:30 a.m., said John Ratcliffe,
U.S. attorney for the Eastern District of Texas. He said agents went to
homes as well as the plants
...

Of course, using paramilitary tactics against peaceful civilians is standard procedure for Immigration Enforcement agents.

"I hope that the message from today's operation is clear," Ratcliffe
said. "We are intent on stopping immigration fraud and identity theft
and we will aggressively prosecute anyone who uses another person's
name or Social Security number for the purpose of working illegally in
this country."...

No unauthorized trade of goods or services, dammit! This is the fundamental principle for which Paleo-Libertarians stand.

DJs on a Spanish-language radio station told listeners to be careful
Wednesday after reporting news of the raid. After the arrests, many of
the dozens of businesses in town that cater to Latino immigrants had
few customers or none at all.
...

In Buffalo, New York, federal law enforcement officials announced the
arrest of a local businessman and 10 restaurant managers accused of
employing
illegal Mexican immigrants in seven restaurants in four
states. Authorities also arrested 45 illegal immigrants during raids in
western New York; Bradford, Pennsylvania; Mentor, Ohio; and Wheeling
and New Martinsville, West Virginia.

Authorities said the workers were forced to staff the Mexican
restaurants for long hours with little pay to work off smuggling fees
and rent.

Classic DEA logic. Engage in a War on Immigration, and then wonder why unpleasant black markets arise to circumvent government controls. Blame these black market unpleasantries on the buyers and sellers; make no connection to--and place no blame on--the restrictions themselves.

In Atlanta, a federal grand jury indicted 10 people from suburban Atlanta employment agencies on charges they placed illegal immigrants in jobs at Chinese restaurants and warehouses in six states. The agencies are accused of developing a network to "recruit and exploit" undocumented workers, said Kenneth Smith, special agent in charge of the ICE office in Atlanta.

Between October 2006 and April 2008, the agencies advertised their services and charged immigrants a fee for finding a job, without requiring any proof that the workers were allowed to work in the U.S, prosecutor David Nahmias said.

Authorities accuse the restaurants in Kentucky, New York, Pennsylvania, Tennessee, Florida and Alabama of providing housing and paid workers in cash to avoid taxes, Nahmias said.

These employment agencies exploited the workers... by recruiting them and finding them jobs. Unbefuckinglievable. Next time I go to a job interview, I'm going to ask my prospective employer to "recruit and exploit" me. I desperately want to be exploited!

In a decent world, all of the accused would be given freakin' medals for their honorable, capitalist activities. Paleo-libertarians and other supporters of the status quo system of international apartheid believe the decent thing to do is arrest, imprison, and ethnicly cleanse these peaceful, enterprising exemplars of the free market. Shame on them. They make a complete mockery of the cause of liberty.


Please Wipe My Ass For Me, State

Maybe I just haven't read enough comment threads lately, but some of these responses (presumably British) surprised me, given my perspective from this side of the Atlantic. Americans are not usually so explicit, fully aware, or forthcoming when they embrace paternalism. Instead, paternalism of this magnitude is usually couched under some other justification more palatable to actual adults - adults who don't consider themselves children, at least not publicly.

Here is the wisdom of AllyF, for example:

This is why the type of individualistic materialism advocated by the author and his friends is actually at the root of the problem. Neoliberal economics sets each of us against the other, it assumes that we should all be happy to trample on our neighbours to get to our goals. This doesn’t make us happy, however materially wealthy it might make us. When one person gets rich by making a second person poor, it damages them both. When those two people co-operate to increase both their wealth, it makes both of them happier.

Amazing. “Neoliberal economics,” i.e. free trade, apparently consists of a series of zero or negative-sum interactions in which people trample upon their neighbors in order to improve their own lot. Why the trampled-upon accept these terms willingly, enthusiastically, repeatedly--practically - no, literally begging for the freedom to trade with their own exploiters--is not explained. Perhaps they are masochists. Perhaps false consciousness is involved.

The negation of free trade, by contrast, we learn, involves positive-sum interactions of cooperation. The cradle-to-grave welfare state enables this cooperation by interfering with and ultimately preventing trading partners from voluntarily exchanging value for value with each other, thereby somehow increasing the wealth and happiness of all involved. This mechanism is not well understood or easily explained, but--trust us on this one--we know what’s best for you better than you do.

Or, consider these deep thoughts by “CharlieMcMenamin“:

My personal ‘budgetary space’ would be improved by:

- Higher state pensions & free personal care so I don’t have to pay so much to support my elderly mother;
- No university fees so I don’t have to put something away for the kids’ college fund;

That’s just two very practical examples of how a higher tax economy would benefit me. I accept, in my case - middle class, middle earner - this might simply be a way of re-distributing income & positive outcomes through out my lifetime. This won’t always be true for everyone. Some will want a high tax/ high services economy precisely to fend off the risk of falling off the gravy train due to illness, family break-up or a thousand other possibilities.

Notice how Charlie distills the core of his own argument with the concession that cradle-to-grave welfare statism improves his life by doing his saving and investing for him. He clearly understands that he is a fully grown adult asking to be treated like a child. Which wouldn’t be so bad, I suppose, if he didn’t insist that everyone else be treated like a child as well.

The world is a scary place, full of illness, family-breakups, and a thousand other possibilities. Therefore, please live my life for me because I’m too frightened to responsibly deal with life’s many challenges myself. And don't just do this kindness for me, but extend this kindness to all, despite their many protests to the contrary. They simply don't yet realize that they are incapable of living responsible, challenging, adult lives. The kindly state--an independant, external entity that does not suffer from the same human limitations we do--must live our lives for us.

[Hat tip: Will Wilkinson]


Default Rules and the Indeterminacy of Law

The problem of determining the content of default rules is a problem human societies have had to deal with for thousands of years, ever since the first human social group developed a semi-formal system of common law, in which some degree of stare decisis is respected, thereby creating institutional "memory" for the legal system, and thus an evolutionary selection mechanism "designed" to root out and "discover" successful legal rules. (Long before people were fully aware of the problem in an abstract sense, it was still a problem that needed to be - and was - addressed.) I put the preceding words in scare quotes because there was not, in actuality, any single, conscious, deliberate, intentional mind designing such a system and transmitting it to future generations, nor is there any objective reality "out there" from which to discover the "correct" legal rule - rather, individual judges make it up as they go along, basing their decisions on whichever of the many and conflicting legal rationales they may subscribe to: fairness, justice, efficiency, helping the rich, helping the poor, Divine Command theory, etc.

Whether or not a given legal rule is "successful," from an evolutionary perspective, is determined by whether or not judges, in future cases that are sufficiently similar (sufficient similarity, of course, is often the central issue being disputed), choose to respect stare decisis and adopt and reuse the previous decision, or reject it and create a new one. This decision is itself determined by whatever is in the interests of the judges, which, under certain fortuitous conditions, correspond quite closely to whatever rules are in the interests of the litigants. For example, if the structure of incentives inherent in a system is such that it is in the judges' interests to resolve disputes as quickly as possible with as little acrimony as possible, and thereby minimize social conflict, then we can expect the legal rules that result from this system to be successful from an evolutionary perspective, because all of the parties involved (both judges and potential future litigants) are content with the existing legal rules and have no reason to want to change them. Rather than reinventing the wheel whenever a new dispute arises, we can look back at previous disputes and see what worked well in the past, and then infer what might work well in the present and future. This has the added benefit of making legal systems stable, as potential future litigants come to expect what the results of any future legal dispute will be, and can plan their behavior accordingly.

Of course, just as no system of common law, no matter how well-developed it might be, can ever have the answer to every possible future legal dispute, so too no contract can ever account for every possible circumstance. Nor would most of us want such a system of common law, or such a contract, even if we could somehow guarantee that it preaddressed every possible future contingency. The advantage of indeterminacy in both contracts and the set of legal rules as a whole is that indeterminacy is more flexible and has lower transaction costs than a fully determinate system.

It is more flexible because it allows for greater fairness in dealing with unforeseen factors. For example, consider the Romeo & Juliet exception for age-of-consent laws. While an age-of-consent law without such a provision might be fully determinate since we can predetermine the outcome to any future case involving a sexual relationship between a person older than the age of consent and a person younger than the age of consent, we would consider it a great injustice if judges applied such a law blindly, without any concern for possible mitigating factors unforeseen by the law's original creators, such as when one person is just below the age cut-off and the other just above.

Indeterminacy has lower transaction costs because accounting for every possible contingency is extremely costly (besides being impossible), especially if we are concerned with fairly accounting for as many shades of gray as possible, and not just resorting to a simple, if morally outrageous, black and white heuristic. It is costly in terms of contract and initial rule formation, as well as being costly in terms of the transmission of knowledge. A sufficiently complex and lengthy rule system is nearly impossible for any single person to understand, especially if that person's source of employment is not closely connected with the legal arena. More people will unintentionally violate rules in such a system, because it would be nearly impossible to predict the legal consequences of any given action, and therefore impossible to avoid certain behaviors, if you are unaware of the existence of a legal rule prohibiting that behavior in the first place. This, of course, leads to more social conflict, and places a great burden on the legal system itself.

Of course, more social conflict leads to more legal disputes, and more legal disputes provide favorable opportunities for lawyers. To the degree that the legal profession controls or influences the structure of incentives that determine how legal rules get made, more social conflict may not be such a bad thing - for professional law producers, if not for everyone else. Currently, the part of the U.S. legal profession concerned with the production of (enforceable) laws is synonymous with the U.S. government - a monopoly by definition. It is no great surprise, then, that the structure of incentives that determines how (and which) laws are produced tends to serve the interests of the rule makers, at the expense of everyone else. This is simply what monopolies do; when faced with no competition to regulate prices and quality, monopoly firms maximize profits by extracting rents from, and at the expense of, consumers. A monopoly producer of law seeks to structure its product in such a way as to increase its own well-being (whether well-being consists of money, power, or prestige) at the expense of everyone else.

The point of all this is to establish that legal rules are not and cannot be fully neutral - there is no "right" answer to a legal conflict; it depends on what our legal rationales happen to be: fairness, justice, efficiency, helping the rich, helping the poor, etc.

To give an example, consider marriage contracts and wills. Before people get married and before people die (my inner Rodney Dangerfield tells me to stop being superfluous), they often create legal documents delineating how resources are to be distributed in the case of divorce or death. Sometimes these contracts are extremely intricate and complex, attempting to account for every possible contingency with conditional clauses like "if my wife cheats, she get nothing" or "my grandchildren will receive their portion of the inheritance only if they graduate from college."

But not every married couple signs a prenuptial agreement, and not everyone creates a will before they die. What happens then? And even for those who do sign a prenup or create a will, what if some unforeseen circumstance occurs that wasn't covered in the original document? What if, for example, one spouse kills the other spouse: Is the murderer entitled to the victim's money?

To deal with these problems, judges adopt default legal rules to address situations not explicitly covered in the original contract, assuming there was even an explicit contract to begin with. These default rules serve multiple purposes: they resolve disputes that were unaccounted for in the original contract, they define the basic terms of implicit contracts that were never explicitly written down or agreed upon (e.g. when you walk into a restaurant and order food, you are expected to pay for that food when the meal is over, even though you never explicitly agreed to this arrangement on paper), and sometimes the default rules can override even explicit, mutually agreed upon terms of a contract. For example, one default rule in contract law is the unenforceability of any contract where one party is obligated, upon threat of a fine or other penalty, to commit an illegal act. In other words, courts will not resolve disputes between contract killers and their customers, because murder is illegal.

Another default rule is that courts will not enforce any "slavery contract" - an agreement that, in exchange for some consideration, a person will willingly sell himself into slavery, under penalty of specific performance. The "specific performance" part is the key to making a slavery contract actual slavery, as opposed to just a regular, everyday employment contract that stipulates a monetary penalty if the employee chooses to withdraw his labor early (i.e. quit), before a predetermined, mutually agreed upon time.

Judges have good reason not to enforce these sorts of contracts, and it is not a violation of liberty to contract for a judge to refuse to enforce certain kinds of contracts. No one is "entitled" to their preferred form of enforcement from any and all third-party enforcers.

Unlike the cases of murder or slavery contracts, where the default legal rule prohibits potential litigants from contracting around them, in most cases default legal rules simply set, well, the default. Potential litigants are generally free (with the above exceptions) to contract around the default rule; it exists only for those parties to a contract who forget or otherwise fail to stipulate what should happen under certain circumstances.

What determines the content of default legal rules? That is to say, how did it come about that, if not stipulated otherwise, a person's property at his or her death is divided in such and such a way, with priorities given to spouse, then children, then more distant relatives? How did it come about that, if not stipulated otherwise, the bread-winner in a divorce is obligated to give their spouse consideration to maintain some semblance of their current lifestyle?

One theory to explain this latter rule is that, had the couple signed a prenuptial agreement before getting married, there more than likely would have been some consideration given for the fact that, say, homemaking is not directly compensated monetarily, and yet both homemaking and bread-winning are necessary for maintaining the sort of group-effort - a business partnership, if you will - that the marriage contract was written to create. Just as a judge will most likely split the assets of a business partnership along the lines of how much each of the partners contributed to the assets' creation, so too with alimony.

But there is no obvious reason why judges should have picked this legal rule and not some other. This legal rule may seem "more fair" than other possible legal rules distributing assets differently, but fairness is not universally agreed upon as the sole objective and motivation of judges. Part of what we mean by fairness here is that this decision seems like it would be very similar to what the litigants would have agreed to had they had the foresight to agree on a legal rule before the conflict occurred. But this just raises the same question as fairness: Why should the default rules for contractual disputes be determined by guessing what the mostly likely rule would have been had the parties explicitly addressed the issue in dispute in the original contract?

If we assume that judges are any good at guessing the results of counterfactual behavior - a shaky assumption at best - it is true that determining the default rules in this way has certain advantages, advantages that are similar to the advantages of the law being indeterminate. Default rules reduce the transaction costs of contracting, because they allow us to deal with conflicts as they occur, rather than having to predict all of the possible conflicts that might occur in the future. Many people are perfectly satisfied with the default rules of marriage and divorce, or of inheritance, and have no desire to go through the trouble of modifying the default rules through prenups and wills. Even when we might not be entirely sure what the default rules are, we can be secure in the knowledge that the judge will try to decide the case as if we did know all of the relevant factors and as if we had reached a compromise before the conflict ever occurred.

Of course, while this may be an ideal way of determining the content of default rules, it is only ideal if we make certain assumptions. In order for it to be ideal, we must value reducing transaction costs to a minimum, and we must value reducing social conflict and the quantity of legal disputes to a minimum. But there is no objective truth of the matter here. Perhaps we have other values that sometimes, or often, take precedence over reducing transaction costs and social conflict - say, maximizing liberty or minimizing inequality. Also, we have no guarantee that judges will be wise enough or virtuous enough to successfully put themselves in our past counterfactual shoes, and accurately determine what we ourselves would have agreed upon had we been endowed with the proper foresight. The closest we can get to a guarantee is a structure of incentives that make it in the best interests of judges to make their decisions according to the criteria we desire, and not according to some other standard. A monopoly provider of law, whose only regulatory mechanism is electoral democracy at least three steps removed (voters elect politicians who nominate judges), is unlikely to produce a structure of incentives that results in decisions made with litigants' interests in mind, and much more likely to produce a structure of incentives that results in decisions made in the interests of the judges, or the politicians who nominated the judges, or the lobbyists who wine and dine the politicians. or the rent-seeking interest groups who hire the lobbyists to gain concentrated benefits at the expense of dispersed costs, or...