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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