Moral accounting and double effect

First, some necessary clarification: Let us say that an illegitimate government is one that regularly forces those who haven't previously consented to its authority to perform actions not otherwise morally required (e.g. by the rights of others.) I take it as given that, accordng to this definition, all governments are illegitimate (but not necessarily so.)

For example, assume that abolishing slavery was a good thing to do. During the Civil War, abolishing slavery required conscription and other measures libertarians would definitely reject under normal circumstances. Conscription, especially, seems an obvious rights-violation. Any government that practiced conscription would be illegitimate according to the definition just presented.

Suppose that an even more extensive violation of rights was required to abolish slavery in the United States. At what point would we say that the moral cost of abolishing slavery was too high?

In the comments to this post, Stephan Kinsella seems to suggest that the moral cost incurred during the Civil War was too high. Ridding America of slavery was a good thing to do, "aside from the cost and consequences," he writes. These costs include the deaths of half a million people, the aforementioned conscription, and presumably Lincoln's suspension of habeas corpus.

Was the moral cost of abolishing slavery too high? Fortunately, I don't need to answer that question, because just in raising it Kinsella and others have relocated to my turf. I'm perfectly willing to entertain the possibility that the good of abolishing slavery did not outweigh the evil of fighting the Civil War. When an action is known to produce more evil than good, performing that action may be unjustified. Perhaps this is one such case. 

But we've already admitted that a government that practices conscription is illegitimate -- but so is each and every other government! No government is legitimate, which means no government may impose obligations on us (e.g. to fight in a war) that we wouldn't have anyway. However, this does not mean that we should necessarily condemn all the actions of governments -- we should, I argue, condemn all and only those that it was reasonable to assume would lead to more evil than good.

In other words, once Kinsella moves away from the illegitimacy of government to the assessment of the moral cost of government action, he's accepted that there is nothing in principle preventing government actions from being morally justified. He just thinks that, in practice (and during the Civil War), government does/did more harm than good.
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Here is a thought experiment to buttress the point. Suppose one could tell a convincing sociological story about how a simple change in traffic laws would eventually lead all slave owners to voluntarily give up their slaves. Now we've already admitted that no government is legitimate. The government has no more right to set traffic laws than I do. However, I have absolutely no problem with the government changing the traffic laws in this way. In fact, I think it would be wrong for it not to do so, given the fact that it is probably the only institution with the salience necessary to unilaterally alter traffic laws.

Suppose we had good reason to believe that altering traffic laws in the required way would lead to an extra ten or so fatalities a year, at least for the first five years. Does anyone doubt that, even with this added moral cost, it would still not be morally acceptable for the government to change the traffic law?

The thought experiment presents a clear case in which an illegitimate government may act in morally justified ways, just as long as its action produces more good than evil. Really, it's just an application of the doctrine of double effect.

In response to my claim that it's good when the state protects individual rights, Kinsella writes, "Only if it does so without violating others' rights--that is, without any collateral damage, and without taxing or spending others' money. Otherwise, the action taken has both good, and bad, aspects--it's not unambiguously good." Emphasis added. I don't think that anyone is claiming that the Civil War was unambiguously good. But does an act have to be unambiguously good (in all its effects?) before it can be morally justified?

We can make Kinsella's point here even stronger: suppose a really strong man uses my head as a battering ram to break down the door of a thief's home so he can retrieve his stolen property. Assume that it would be a good thing if he got his property back, but it's not a good thing for my head to be used as a battering ram. The strong man's action is not unambiguously good. Can it be justified?

Obviously not, for several reasons: first, the strong man could have used his own shoulder to break down the door. There were other, less costly ways to attain the good end than the way he chose. Second, the moral cost of bashing someone's head in could reasonably outweigh the good of getting the strong man's property back. The strong man's action was not morally justified.

This is why arguments about whether economic forces could have rid the United States of slavery are so important. If the invisible hand had freed the slaves, that would have been a morally costless way of achieving a worthy goal. But if, as Sandefur and I seem to believe, economic forces would not have been enough to lead slave owners to voluntarily free their slaves, then it may have been justified to use other means to do so.

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On Moral Justification and Political Legitimacy

I'm keen on a distinction A. John Simmons makes (can't remember where at the moment) between moral justification (i.e. of some action) and the legitimacy of an authority (i.e. political authority.) Like any thoroughgoing Lockean, Simmons accepts that we are only under a moral obligation to obey a government if we have consented to that government.

Of course, we all have pre-political obligations. We are all obligated not to intentionally kill others who themselves haven't violated any pre-political obligations. We are all obligated not to use the property of others without permission, and so on.

The question of political legitimacy is whether a government can establish other moral obligations, beyond the pre-political. If the government tells me to do X, and X is not something I'm morally required to do anyway, what conditions must be met if the government's decree is supposed to establish a new moral obligation to do X?

The typical answer here will have something to do with consent. For example, if I have previously consented to do what X tells me to do, and X tells me to do something, then I am obligated to do this. If I've consented to obey the law, then I am morally obligated to obey the law. And so on.

The problem is that most of us haven't expressly consented to obey the government in this way, and accounts of tacit consent are fairly implausible. Thus, it appears that the government lacks the authority required to establish new moral obligations. None of us is morally obligated to obey the law, except when the law forbids us from doing something our pre-political obligations forbid us from doing in the first place.

Simmons position amounts to philosophical anarchism. According to Robert Paul Wolff, what government lacks is the capacity to make binding commands of us -- commands that we would be obligated to obey over and above the pre-political moral requirements we are all subject to anyway. To the extent that a government lacks this capacity, that government is illegitimate.

I'm a philosophical anarchist in this sense. However, while I deny the legitimacy of government, I do hold that particular acts of government can be morally justified. For example, it's a good thing when the government stops one person from inflicting violence on another. It's good that some entity exists to stop people from carrying off my property.

If Superman existed and used his super strength to protect my rights, I would also think that was a good thing, even though I would deny that I had any independent reason to obey Superman's commands to respect the rights of others. To the extent that rights violations would occur without his presence, the world would be a better place with Superman in it

We have to be careful here: it might be that Superman couldn't be trusted to use his power only to defend the rights of others. He could use his power for evil as well as for good. To the extent this is so, we might prefer a world without anyone like Superman. But this would be an "all-things-considered" judgment: we would have to compare the good a Superman might do with the evil he could do, and draw our conclusions that way.

However, this would not change the fact that when Superman (or the state) upholds the rights of citizens, then Superman (and the state) is worthy of praise. But what we would not do is condemn Superman as an evil-doer (or the state as an inherently criminal enterprise) on those occasions in which Superman/the state upheld individual rights.

Now let's look at the dispute between Timothy Sandefur and Stephan Kinsella. In reference to the Civil War, Sandefur argues that "The federal government had the right and the duty to put down the Confederate rebellion." We can set aside, for the moment, Sandefur's claim that Lincoln was duty-bound (under the U.S. Constitution) to stop the South from leaving the Union. I think he's right, but that's not what's at issue here.

The issue, rather, is how we should morally evaluate the actions of the state when it stopped the Confederate rebellion. In judging whether an action is good or not, we need a certain standard. In referring to "the ultimate values of libertarian political philosophy," Sandefur thinks libertarianism does posit such a standard. As I read his argument, Sandefur thinks it was good to quash the rebellion and Kinsella thinks it was not.

As I see it, that standard is liberty. Other things being equal, it's better when people are free than when they are not. Slavery is bad; abolishing slavery made the world a better place.

In his response to Sandefur, Kinsella takes the position that

Under my libertarianism, any pro-slavery legislator in either sorry government--or even any voter who endorsed slavery--is a criminal rights violator. Just because a libertarian does not endorse the USA's unconstitutional, immoral, criminal, unlibertarian, illegal actions does not mean we condone its enemy's actions either, as is plain to anyone with a lick of sense and a drop of honesty.

Let's accept the claim that both the United States was and is engaged in the widespread violation of individual rights. Let's also accept the claim that the Confederate government would also have been engaged in violating those same rights. Further, let's accept the philosophical anarchist's point that neither the Union, nor the Confederacy, was legitimate; neither could impose moral obligations on people apart from the obligations they would have had anyway.

Even accepting all this, as libertarians, why should we not think that it was a good thing that Lincoln acted as he did and rid the United States of slavery? This does not mean Lincoln had legitimate authority: he could not make it the case that slavery should be morally forbidden. But I take it that as libertarians we think that slavery is morally forbidden, and that ridding America of slavery was a good thing to do.

This is especially so if you think, as Sandefur does (and I agree) that economic forces in the United States were insufficient on their own to end slavery. If you think this, then you will be led to think that if someone had not acted, slavery would not have withered away on its own. In other words, in a world without Lincoln (or Superman; or the equivalent) slavery would still exist in the United States. And, I think it follows, that world would be -- in that respect -- a much worse place than the one we presently occupy.

Like Rothbard, Kinsella's position is that any state is inherently a criminal enterprise. This seems to amount to the view that nothing the state does can ever be morally justified. Even if it would be justified for you and I to use force to free our neighbor's slaves, it would not be justified for the U.S. government to forcibly free those slaves (would it even be justified in Kinsella's world for the state to pay slave owners to free their slaves? I doubt it.)

To me, this position seems absurd. Obviously, I can and should evaluate the state's conduct the same way I would evaluate the conduct of anyone else. When the state protects individual rights, that's good. When it doesn't, that's bad. And at no time does the state gain legitimate authority, in the sense the philosophical anarchist describes. But the state did not need any kind of special authority to free the slaves: morality itself provided all the justification the state needed to act in that case.