Why Kant is more Libertarian than Locke

This is all a work in progress.

Broadly, justification usually focuses on the giving of reasons. The belief that p is justified if and only if there is sufficient reason to believe that p. Similarly, political justification typically involves advancing reasons to support (a) certain aspects of the political, e.g. instititions or policy proposals, or (b) the political order as a whole.

In epistemology, "justification" is what separates mere belief from knowledge (Gettier type issues shall be set aside, for the moment.) Political justification is what separates right political action from the mere exercise of force. If a given law is justified, then the government is entitled to enforce that law. Whether citizens are morally obligated to obey a justified law is something I doubt, but we can distinguish -- surely -- between a law that meets certain moral criteria, or that is intended to promote a just end, and the raw force the mugger uses to subdue his victim.

(Some libertarians are unwilling to make this distinction. But I think they do make it regardless: Take two possible worlds, both containing governments. In World 1, the government uses its power to educate citizens who could not otherwise afford an education. In World 2, the government uses its power to kill minorities. Obviously, there is something better about World 1, even if neither world is morally ideal. This shows we can distinguish between morally better and worse uses of government power.)

Justification depends on the existence of reasons. A common theme in liberal thought is that those who exercise political power must offer reasons to those against whom that power is to be exercised. These must not only be valid reasons (as justification always requires) but reasons that the subjects of political power will recognize as valid reasons.

Thus, liberal political justification proceeds from a restricted set of reasons. Not every valid reason will be recognized as such by the subjects of political power. Reasonable people can disagree about what counts as a valid reason. This restriction on reasons, rather than weakening the liberal view, gives it its strength and character, at least according to some. The laws liberals tend to worry about the most -- laws infringing on religious worship, freedom of expression, association, and so on -- are exactly the kinds of laws that can only be justified by moving outside the restricted set of reasons. Or so the argument will go.

Liberal justification, by restricting the reason set, limits what government can justifiably do. This limit carves out a domain in which individuals can govern their own lives according to the reasons they accept as valid. When government steps into that domain, it steps into it without warrant, as its justification will be unacceptable at least to those whose lives are subject to such interference.

It should be clear from this sketch that liberal justification puts limits on government precisely through its universalist aspirations. It is because the political order has to be justified to each and every person subject to its power that the result is a drastically limited government. Why this is a requirement of political justification is something of an open question.

The most direct route to this requirement, in my opinion, is through the second version of Kant's categorical imperative: we fail to treat others as ends in themselves if we exercise force against them without seeking justification; and this justification must be addressed to each and every person, since each has dignity that cannot be sacrificed in the pursuit of other ends.

Without such justification, the law simply treats some as means to the ends of others.

In my view, there is a line between Locke and Kant on this issue. For Locke, political justification requires the free consent of the governed. For Kant, political justification requires the rational consent of the governed. Since, for Kant, rational consent is always free (reason being the free part of us, the self-in-itself), one might think that there is complete convergence between the two thinkers. This is not so, for one reason: for Locke, consent can and probably will be motivated by many factors. An inept, intolerant government will fail to get the consent of the governed because it will fail to serve the interests of the governed. Government must actually serve the interests of all to be justified.

Kant accepts a dichotomy between interests and reason. But because reason by its nature demands freedom, it is the fact -- and only the fact -- that a government supports freedom that can establish rational consent. An unfree government that was very good at serving the interests of the governed might gain actual consent, but it would never gain rational consent. Reason seeks the freedom to govern itself; nothing less than this -- no matter how efficient, or good-promoting -- will be rationally acceptable.

The dignity of the person requires that the political order be justified to each and every subject. But, for each and every subject, reason speaks with one voice: more freedom rather than less.

On this point, I think Kant is more libertarian than Locke. Kant's view can explain why it is wrong to sacrifice liberty for greater welfare, for example. Locke's view allows for greater restrictions on liberty as long as they are, in some sense, Pareto-improvements on a freer baseline. Granted, there are some restrictions on what we can consent to, derived from natural law. But there is much space between the moral baseline and totalitarianism for government to restrict freedom. Kant's view doesn't have that problem because, for him, the moral baseline is identical with the moral ideal: freedom.

Kant's view also begins to allow us to rank liberties. The most vital liberties will be those most closely connected to the development and maintenance of free, autonomous reason. Freedom of speech and conscience will rank very high on such a list.

U.S. government to bring back slavery

Ah, hell.

...To begin with, the legislation threatens the voluntary nature of Americorps by calling for consideration of "a workable, fair, and reasonable mandatory service requirement for all able young people." It anticipates the possibility of requiring "all individuals in the United States" to perform such service -- including elementary school students.

The bill also summons up unsettling memories of World War II-era paramilitary groups by saying the new program should "combine the best practices of civilian service with the best aspects of military service," while establishing "campuses" that serve as "operational headquarters," complete with "superintendents" and "uniforms" for all participants. It allows for the elimination of all age restrictions in order to involve Americans at all stages of life. And it calls for creation of "a permanent cadre" in a "National Community Civilian Corps."

This was what worried me the most about an Obama presidency: forced service to the state. And uniforms? UNIFORMS!? I have an idea: the uniforms can have a giant O on the chest and "volunteers" can wear armbands emblazoned with words like "hope" and "change".

Different versions of the bill have passed the House and Senate. They need to be reconciled before the final version goes to Obama for signing. And he's said he'll sign it; indeed, it's not unfair to say that this plan is his idea.

It's kind of ironic that a black guy is poised to bring back slavery. But shouldn't he move to repeal the 13th Amendment first?

Maybe he could get some help from Ron Paul with that.

H/T: Sandefur

Stupid arguments from pro-choicers

William Saletan has another thoughtful piece on the morality of abortion in Slate. Key quotation:

So why do I keep bringing up abortion as a moral problem? Because it is a moral problem. It's the destruction of a developing human being. For that reason, the less we do it, the better. When I say abortion is bad, I'm not saying it's necessarily worse than bringing a child into the world in lousy circumstances. I'm saying it's worse than avoiding unintended pregnancy in the first place. That's why I keep pushing contraception. If you cause an unintended pregnancy and an abortion because you didn't want to wear a condom, you should be ashamed.

Of course, Saletan is not arguing that abortion ought to be illegal. We don't (and couldn't) ban all actions with bad-making features. Oftentimes, this is because passing a law banning the action would have even worse results, or because enforcing the law would involve the violation of fundamental deontic constraints (e.g. rights.)

At most, that an action has a bad-making feature is a pro tanto reason against performing that action. It is not -- or so I would claim -- even a pro tanto reason for making the action illegal (I would distinguish between bad-making features and wrong-making features. An action has wrong-making features if, for example, it would violate another's rights. Not every action with bad-making features has wrong-making features, and probably vice versa.)

However, I agree with Saletan that in most cases the fact that an action would destroy a developing human being is a reason against performing that action. It is also a reason, a moral reason, to avoid creating a situation in which the destruction of a developing human being will be a likely consequence. When such reasons are ignored -- as in Saletan's example of a person who doesn't take reasonable precautions against conception before having sex -- shame is a fitting first-person attitude to have.

So much for Saletan's argument. Looking at the forum section on his article and around the blogosphere, I see pro-choice individuals (of which Saletan is one) respond in several ways. I will deal with each response in turn.

1. Because he is a not a woman, what Saletan thinks doesn't matter.
This is an incredibly silly response, but let's unpack it a little bit. If the pro tanto reason I identified above exists, then all Saletan is doing is pointing out that exists. In that case, his gender/sex doesn't matter: there is a reason and that's that. If the pro tanto reason does not exist, then Saletan is wrong. But he would be just as wrong if he were not a man. Thus, in either case, Saletan's gender/sex is irrelevant.

I should add, this particular response -- frequently seen from pro-choicers -- is pernicious in another way. What motivates it is an argument like this: Abortion is about pregnancy. Men can't get pregnant. Therefore, men can have nothing to say about abortion.

Aside from its status as a crude ad hominem, the argument, by parity of reasoning, would exclude infertile women from saying anything about abortion. It also denies the fact that men, pro-choice or not, have a stake in the debate. After all, they have mothers, sisters, etc. Since men presumably care what happens to their female family members, laws pertaining to abortion have an indirect impact.

2. Saletan is helping out the religious right
A sound argument is a sound argument. A valid argument with true premises is an example of good reasoning, whether it is being uttered by Adolf Hitler or Barack Obama. And an invalid argument is a bad one -- again, regardless of who is speaking.

I almost feel ridiculous even addressing this kind of point, except I've encountered it personally: I will follow the arguments where they lead. If your ideological opponents take solace (warranted or not) from my reasoning, then attack my reasoning. If you can't, then you have bigger things to worry about than the feigned comfort of your "enemies."

3. Moral approbation interferes with a person's autonomy
Less one argument than a whole cluster of them. A more dogmatic libertarian than myself would just say: you're wrong, because only physical force/violence can violate a person's autonomy.

I don't want to take that route. My own position is that autonomy can be undermined in a number of ways, including the case in which one person exercises violence against another. But I don't think moral approbation interferes with autonomy much, if at all. When I say, "What you are doing is morally wrong," what I am saying is that I believe there are good reasons against performing some action.

If I am right, then you should listen to me. If you do listen to me -- after reflecting on my argument, etc -- then you've exercised your autonomy, in the fullest sense of the term. Autonomy isn't just a matter of acting on the first desire to pop into your head (otherwise, the heroin addict is the exemplar of autonomy.) Rather, autonomy requires judgment. Judgment requires a reflection on reasons. Bringing reasons to a person's attention isn't undermining her autonomy, but facilitating it.

If I'm wrong, then you shouldn't listen to me. But by finding the error in my reasoning, you're better off than you were before. Again, your autonomy hasn't been undermined.

Of course, all of this is contingent on the idea that there really are reasons that apply to people, independently of their own preferences. Someone who denies the existence of such reasons -- moral reasons -- won't comprehend much of what I've written. At the same time, I would wonder how such a person could even begin to criticize laws, e.g. with regard to abortion, as "good" or "bad" without falling back, tacitly, on the idea of moral reasons; and, more broadly, on the idea of moral truth.

There are some other pro-choice themes I'd like to address, but I'm running out of time for today. The fact is, I am pro-choice, but I get so very, very tired of people offering stupid (non-)arguments for conclusions I already endorse.

On the Liberal Narrative

The title sounds pretentious, but the topic is relatively mundane: why are some so quick to believe the worst about their ideological opponents?

Here's an example of what I mean. Benjamin Edelman of Harvard Business School publishes a study tracking pornography consumption in the United States. According to the study, people living in "red states" buy about the same amount of porn as people living in "blue states." Sometimes more. The state with the most porn subscriptions is Utah, probably one of the reddest of the red states.

New Scientist published an article discussing Edelman's study. The headline?

Porn in the USA: Conservatives are biggest consumers

I don't have the evidence to blame Edelman for that headline, although his remarks as quoted in the article suggest he endorses it. But it's a stupid headline, which the study itself does not support.

The study does not show that conservatives purchase more porn than liberals. What it does show is that people who live in "red states" purchase at least as much porn as those who live in "blue states." But we don't know anything about the people who are actually purchasing the porn. Nothing at all. Read it again: not. a. thing.

It could be that liberals who live in "red states" are buying all the porn, because living in red states leaves them feeling sexually frustrated. It could be that conservatives in blue states are buying porn because living around liberals has a corrupting influence on their sexual mores. The data supports either hypothesis as well as it supports the hypothesis that conservatives consume porn at higher rates than liberals do.

My wonderful stats prof from the last year of my undergraduate career should use this article, if not the study itself, as an example of blatant misuse of statistics.

This blog post knocks down the New Scientist article better than I ever could. Here's another idiotic article that could use the same treatment.

So our example thus far is a terrible article that draws unsupported conclusions from a Edelman's study.

Here's example 2...

Actually, where do I start? See here, here, here, and especially here, here and here. I found those links by doing a Google search of blogs, using the keywords "conservative" and "porn", limiting results to the last month or so. There are plenty more to choose from. Almost everyone uses the study as evidence of conservative "hypocrisy." Jezebel, for example:

Conservative hypocrisy is no surprise: anyone who has watched the Republican party fight off allegations of bathroom sexual encounters, child molestation, and prostitutes has witnessed the "Do As I Say, Not As I Do" philosophy that seems to sweep through the right-wing on a regular basis.

At Huffington Post, people opine in the comments about conservative hypocrisy, and is further evidence of the repressive attitudes of conservatives. "Phoenix Woman" at the well-known liberal blog Firedoglake headlines her post: "Word from the Porn Belt: Do as I Say, Not as I Do"

I could go on, but I won't. There are two things to observe in these examples:

1. The New Scientist headline is accepted completely uncritically. This is pretty strange since liberals often claim to be great at the whole "critical thinking thing", and only a little bit of that is needed to blow holes in the article.
   
2. Once accepted, it is taken as evidence of conservative hypocrisy.

Both these observations deserve further examination.

Why did liberals accept the headline so completely? The answer seems simple: they accepted it because it provided further evidence for what they already believe about conservatives, e.g. that they're all sexually repressed hypocrites.

When a study claimed to show that conservatives were more generous than liberals with their money, liberals were very quick to contest both the findings and the methods of that study. Why? Because it went against the narrative. According to the narrative, conservatives are: (a) evil, (b) stupid, (c) sexually repressed, and, above all, (d) hypocritical. The New Scientist piece provided confirmation of all of these traits.

In other words, when something confirms a person's narrative, he's more likely to accept it uncritically than if it sharply diverges from the narrative.

I've argued elsewhere that, insofar as liberals tend to espouse moral relativism, the hypocrisy charge is really the only one they can make against conservatives. After all, you can't claim conservatives have false moral beliefs unless you're prepared to admit that there is such a thing as true moral beliefs.

This makes finding evidence for the hypocrisy charge vital: it's the only item in the moral toolkit of the typical liberal.

At the same time, the hypocrisy charge doesn't stick unless you believe that conservatives don't really hold the moral beliefs they claim to hold. Otherwise, one could explain inconsistency between belief and action through weakness of will (something liberals tend not to believe in, anyway, but conservatives certainly do.)

Thus, to prove the conservative is a hypocrite, you have to believe more than this:
1. Conservative says he believes believes pornography is wrong.
2. Conservative still consumes pornography.

You also have to believe:
3. Conservative doesn't really believe what he says he believes.

As a matter of fact, liberals typically do not stop there. They will attribute all sorts of motives and mental states to their ideological opponents. Here are some common examples:

"What anti-abortion conservatives really want is to make women their property. That's why they oppose abortion."

Or: "What free market conservatives really want is for the poor to suffer and starve."

The problem is that (3) (or any of the other attributed beliefs) is very hard to prove. How do you show that a person is lying about her moral beliefs, and not just suffering from weakness of will when she doesn't act on them? The very fact that this is vital part of the liberal narrative virtually requires the manufacture of evidence, or the uncritical acceptance of inconclusive statistics. It requires the use of deceptive non sequiturs, moving from (1) and (2) to the desired conclusion without noting the gap in the argument.

I will say: conservatives have their own narrative, and hence exhibit similar traits. More on that later...

A Puzzle About Rights?

The only legitimate function of government is the protection of rights. I take this as a central tenet of most libertarian thought.

Person A's rights establish moral limits on the ways others can treat her. Rights do this by establishing duties -- to say that A has a right to phi is to say other agents have a duty not to stop A from phi-ing.

I will assume that if Person B has a duty to phi, then he has a reason to phi. Indeed, I will assume he has a special kind of reason to phi: a moral reason. Moral reasons, as I understand them, have categorical force. If an agent has a moral reason to phi, that reason applies unconditionally, regardless of whatever else is true about the agent.

Other reasons do not have categorical force. My reason to eat this peach ceases to exist if I no longer desire to eat the peach. My reason to stop smoking would cease to exist if I discovered that, through some quirk of genetics, smoking was actually beneficial to my health.

The duties that correspond to rights have categorical force. Person B has a reason (his duty) to respect the rights of person A, even if Person B would very much like to violate A's rights (e.g. to steal his stuff.)

There is much that is overlooked in this analysis, but it will suffice to make my point. Consider two possible worlds:

World 1: Anarcho-capitalism. People make use of private protection agencies to protect their rights. This process is imperfect, and rights are violated quite often.

World 2: Minimal state. The state claims a monopoly on the retaliatory use of physical force. It enforces that monopoly quite harshly. Independents who pursue vendettas against suspected murderers are dealt with in a harsh manner. However, the state is fairly good at its job, and rights-violations do not often occur.

I will assume that anarcho-capitalists will hold that when the state persecuted independents in World 2, it is violating their rights. The state has no legitimate claim to its monopoly.

The first question is: which world gets closer to the libertarian ideal, whatever it is?

The second question requires some setup.

Suppose you find yourself in charge of the state in World 2. You come to accept the anarcho capitalist argument that it is a violation of individual rights to forbid would-be independents who would like to start up their own protection agencies from doing so. Thus, you consider abandoning this restriction, and moving toward World 1.

However, you know more rights violations will occur in World 1. You also know that in World 1, you won't be the one violating anyone's rights. Your hands will be clean, so to speak.

Should you move from World 2 to World 1? If rights have categorical force, then perhaps you should: after all, your sincere desire that no one's rights ever be violated cannot justify violating anyone's rights. However, there is something strange, in libertarian terms, about deliberately creating a world in which you know rights are more likely to be violated.

One might argue that since, other things equal, your rights are more likely to be violated in World 1 than in World 2, it would be rational to resist the move from 2 to 1. But this only shows that it is not always rational to respect the rights of others.

Thus, the puzzle remains: should you irrationally move your society toward World 1, so that you no longer have to violate anyone's rights, or rationally maintain the status quo in which you, personally, have to violate the rights of a few?

Libertarianism and liberalism: what's the disagreement?

Will Wilkinson's blog has been great reading lately. Check out this post.

Wilkinson distinguishes between "big-government libertarianism" and "limited-government liberalism." Here is what I take to be the essence of the distinction:

So, “limited-goverment liberalism” starts with liberalism and then argues that libertarianish policies and institutions will best secure liberal aims. “Big government libertarianism” starts with traditional minimal state libertarianism, but moderates it to make marginally more libertarian policy politically feasible.

As he suggests, the only plausible way of interpreting "big-government libertarianism" is a form of non-ideal theory. Libertarians would like the state to look like X. Unfortunately, until everyone becomes a libertarian, the closest they can get is X*. We know what X looks like: it's either anarcho-capitalism (in which case, X is "non-existent"), or the night-watchman state of minarchism.

X*, of course, is something less ideal than either of these things, but an improvement over the status quo. We can imagine it is a state with a limited social safety net, flatter, lower taxes, and so on. Wilkinson's own example of the kind of government program you might find in X* is mandatory retirement savings accounts.

The important point to keep in mind is that X* is less than ideal; it is still unjust, and there is still a weighty moral reason (even an obligation?) on citizens to move their state toward X.

In contrast, the limited-government liberal "start[s] from a fairly typical liberal account of the state and it’s [sic] aims." However, unlike the typical liberal, the limited-government liberal believes that X* (or something like it) is the best way to meet those aims.

In practice, then, the limited-government liberal and the big-government libertarian may converge to a large degree in terms of their policy recommendations. What they do not converge on is the purpose for those policies, nor the moral status of a society in which those policies will be enacted. To the libertarian, X* remains unjust. To the liberal, X* is just, to the extent the policies actually obtain their aims.

This seems like an intractable disagreement. Fortunately, this disagreement should only have bite in X*, where libertarians will support a move to X, and limited-government liberals will resist.

Except, it isn't like that. Libertarians are likely to be unsatisfied with Wilkinson's proposal. Why? My explanation is this: In contrast to many other "isms", libertarians are generally very aware of their most basic moral principles. Consequently, they're very interested in the basic moral principles of those who aren't libertarians. A political "ism" should be judged in terms of its foundational moral principles, and not in terms of the upshot those principles have when applied to policy. At least, I think that's the idea.

To take an example, Wilkinson's liberalism accepts -- even demands -- some level of taxation, if its aims are to be achieved. Now, for most (all?) libertarians, taxation is unjust; this follows from the basic principles of libertarianism, as they are commonly espoused ("axiom" of non-aggression, etc.) Wilkinson's basic moral principles, whatever they are, allow some kind of taxation.

But no longer is this just a disagreement about policy. Rather, it's a disagreement about justice. And Wilkinson's conception of justice endorses injustice from the libertarian point of view (though not from mine!) That makes him not only wrong, but -- in some sense -- a proponent of injustice.

I mean, it's not hard to imagine what someone from Lew Rockwell Institute would say to Wilkinson's proposals.

Thus, we may have to decide between competing conceptions of justice. Famously, John Rawls didn't think there would be that much disagreement about justice in contemporary liberal democracies. That seems a bit implausible.

Instead, I've argued here that arguments about justice cannot be conducted in a vacuum -- that, in the end, we can't just talk about what's right, but also what is good. The risk is that once we say something as simple as "It is bad when children starve through the incompetence of their parents," we at least open the door to the possibility that, just perhaps, something ought to be done to prevent this bad outcome from occurring.

Even if that means some minimal form of taxation.

Libertarianism: Through thick and thin

For some time now, I've been doing most of my blogging at the Western Standard. However, this debate between Timothy Sandefur, Jason Kuznicki, and Todd Seavey piqued my interest.

The debate is strictly intra-libertarian, which is why I decided to give it attention here rather than at the WS's blog. For a while now, some libertarians -- including my friend, Peter Jaworski -- have defended a "thin" version of libertarianism. In this debate, Seavey is the representative "thin" libertarian. Sandefur and Kuznicki both criticize the thin view, in somewhat different ways.

My perspective on the debate is a bit odd, because I used to be a thin libertarian. Now I'm unsure about thin libertarianism, for many of the reasons Sandefur identifies.

First, some general remarks about the relationship between politics and morality.

1.
Politics always proceeds from some more basic moral ideas. For example, if X is good, and ought to be promoted, then (it might follow) the state ought to promote X. As Jeremy Waldron puts it, "Catholics...have a particular conception of the good, and for many that conception issues in a particular vision of law and justice, expounded (say) in the jurisprudence of Thomas Aquinas. Muslims proclaim a comprehensive religious vision, and this generates for them a particular vision of the well-ordered society."

On this model, politics are "tied to" or "generated" by particular conceptions of the good. When it comes to justifying one's vision of the political order -- and liberalism, in particular -- Ronald Dworkin calls the strategy of linking morality and politics the strategy of continuity.

The advantage of the strategy of continuity is that one's arguments about the good do most of the heavy lifting. If one can make the case that X ought to be promoted, or that X is the way people ought to live, etc., then the appropriate political order just sort of falls out as an implication of the argument. In addition, one does not need to motivate people to adopt this political vision; the motivation springs from prior moral argument about the good.

The problem with the strategy of continuity -- as Rawls saw -- is that it does not seem that disagreements about the good are always resolvable through rational argument. Instead, "reasonable disagreement" reigns: you say people ought to value this, I say people ought to value that, and that's where the argument stops, with neither of us being unreasonable for our insistence on one conception of the good over the other. Or so people who reject the continuity strategy will say.

The alternative to the strategy of continuity is discontinuity. One sharply distinguishes between conceptions of the good and politics. On this model, according to Waldron, "Particular theories of justice are not seen as tied to or generated by particular conceptions of the good. Instead, they stand apart from competing religious and philosophical conceptions. They present themselves as solutions to the various problems which disagreement about the good generates in society." Emphasis added.

According to the first strategy, every conception of the good comes with a companion conception of justice, a particular vision of what the ideal city/state would look like. According to the second strategy, one attempts to form a conception of justice that is independent of any particular conception of the good. A conception of justice with this form can be called a strictly political conception of justice.

People who have different ideas about the good will tend to disagree about politics. Therefore, to gain the consensus of all reasonable people, a conception of justice must be formulated as a separate "module", one that does not depend for its justification on any particular conception of the good. This is the essence of the discontinuity strategy, and it gets its best showing in contractarian theories like that of Rawls and Jan Narveson (although I know from personal experience the latter would not much like to be grouped in with Rawls.)

If justice is a module, distinct from any single conception of the good, where does its content come from? How do we know what justice demands? Here there are different answers. Rawls thinks the content of justice can be generated by working out the implications of certain basic ideas he thinks are already floating around in the culture of liberal democratic societies. These include the idea that citizens are free and equal, that society is a fair system of cooperation, and so on.

Whether he is right or wrong about this, one thing is clear: if this is where justice comes from, its scope is very limited. We cannot say our conception of justice is true, only that it is reasonable. And, even then, it is only reasonable for people like us, who already accept the basic ideas. Rawls explicitly disavows any attempt to link those basic ideas to a more comprehensive moral theory, like those found in the work of Immanual Kant and John Stuart Mill.

Another way to generate a "discontinuous" conception of justice is Narveson's way. For him, the content of interpersonal morality is the system of rules people would agree to, if they started from a Hobbesian state-of-nature that was devoid of moral constraints. What's interesting about Narveson's proposal is that he thinks the rules people would agree to are libertarian in character: don't worsen others; otherwise, do what you want. What makes his argument an example of discontinuity is that this basic moral rule is not an extension of any particular conception of the good. It is the right rule -- he thinks -- because anyone would accept it, almost regardless of his/her conception of the good.

2.
Narveson's view is an important jumping off point for us. I would say he is pretty much the "thin" libertarian par excellence. Consider Seavey's claim:

Libertarianism’s chief strength, then, has always been in recognizing the vast gulf between, on one hand, myriad, never-ending social complaints (along with the conflicting social philosophies built around them) and, on the other hand, the minuscule and tightly constrained range of things that rise (or, if you prefer, fall) to the level of political/legal complaints.

Continuity, to recall, doesn't really see a vast gulf between what ought/ought not to be promoted (simplicter) and what the state ought to promote/not promote. However, discontinuity -- whether in Rawls or Narveson -- does see the gulf. People reasonably disagree about what ought to be promoted. Hence, from the mere fact that X ought to be promoted (even if it is a fact), it does not follow that the state ought to promote X (Jaworski calls this the "ought/state" gap; I like that.)

Libertarianism, understood in the thin sense, is an example of discontinuity. Libertarianism must rise above conflicting "social philosophies." Its prohibitions must be based on different (firmer?) ground. Libertarian property rights, one must argue, can and must be detached from any particular conception of the good, and defended in terms acceptable to many different reasonable views about the good.

Seavey sells his argument a little short by claiming that the Taliban (to take an example) merely have a preference that people live one way rather than another. Rather, I would say that the Taliban have a deep, very comprehensive view about the way people ought to live, about what ought to be promoted. The fact that other people strongly disagree with their conception of the good is a reason to seek a political conception that depends neither on the Taliban's conception of the good, nor on a Millian conception of the good that emphasizes experiments in living.

My own view is that, taken to the logical extreme, discontinuity will almost always end up at something libertarian-like. On this, I think Narveson is correct: if what's important is identifying the norms all would agree to in a suitably circumscribed baseline situation (finding the appropriate baseline is a problem in itself, let me tell you), then the set of norms meeting this description will be small, and mostly "negative" in character: a list of "thou shalt nots", rather than "thou shalts."

One can be a libertarian without being a thin libertarian; but it certainly seems easier to be a thin libertarian.

3.
So what's the problem with thin libertarianism? The issues Kuznicki identifies are practical in nature (and not in a derogatory way.)

The problem I see here is that thin libertarianism...wouldn’t last very long. A thin libertarian state inhabited by sufficiently prejudiced people would all but instantaneously transform itself into an extension of their prejudices. Prejudiced people with full negative rights won’t just sit around muttering curses on their chosen outgroups. They will agitate for instantiating prejudice in law. If they are determined enough, they will eventually succeed. Thus, thin libertarianism is possibly very thin indeed.

I think Kuznicki is right about this. Rawls' own theory has a similar problem: once you've detached political norms from most of morality, what incentive do people have to uphold the political norms? To some extent, Rawls can handle this problem, because he thinks that, in private, different groups will be able to reconcile their various conceptions of the good to his favored conception of justice. The only groups that can't or won't be able to do this will be those with unreasonable conceptions of the good, to whom we don't have to justify ourselves anyway.

I still don't see why this should be, unless one defines the reasonable in a very question-begging way. Thin libertarians are in even bigger trouble: what motivation would a racist majority have to respect the absolute right of self-ownership of minorities? Why would they not work to chip away at it, in whatever way possible?

The worries about thin libertarianism are quite similar to the worries that drove me to a pro-14th Amendment libertarian view (a la Randy Barnett) and away from the "states's rights" libertarianism espoused by Ron Paul and people at Lew Rockwell. Racist factions at a local level, possessing plenary police power, would easily be able to pass laws stripping minorities of rights and dignity.

Rights will not be continually protected unless people agree that rights matter. But one cannot explain why rights matter without delving into the deeper moral issues discontinuity bids us avoid. This is why thin libertarianism fails.

Madison's Federalist 10 is very instructive here.

4.
Sandefur's objections to thin libertarianism are a bit more theoretical in nature. He argues that thin libertarianism -- and likely any "merely" political conception of justice -- is disingenuous. "Every attempt to create a "value free" politics fails, usually by showing that at bottom there is some normative conception about how people ought to live."

I think he's right about this. In any event, I've read a lot of stuff from liberals who defend the view in a discontinuous way, and always, always there's a deeper, more controversial moral view at work (typically, a kantian one.) Kant emphasized the overriding importance of autonomy, arguing (basically) that to fail to respect a person's autonomy was to fail to respect him as a human being.

While this kind of kantian reasoning does seem to prohibit the state from making strongly paternalistic laws, it does not -- or, at least, many believe it does not -- prohibit the state from subsidizing education, to take an example. But the point, as Michael Sandel would say, is that the kantian view is an extremely controversial one. If one's political view is an application of kantian principles, this does not show that the view is wrong; it does, however, belie the suggestion that one is getting beyond moral disagreement.

On the contrary: when one advocates kant-inspired liberalism, one is immediately mired in philosophical debate, much of it as resistant to rational resolution as the disagreements about the good these liberals claim to want to avoid.

Sandefur is also correct that one cannot treat rights as "primary moral principles." At times, Nozick seems to do this (at other times, he just takes a kantian position.) This is not just because the motivation to adhere to rights has to come from somewhere. It's also because -- and this is my point, not Sandefur's, though maybe he'd agree with it -- the application, scope, and shape of rights is always somewhat indeterminate.

Must every state protect free speech at least to the extent guaranteed by the 1st Amendment? In fact, that's a trick question: the 1st Amendment is, in some sense, indeterminate. The Founders could not have foreseen the Internet; yet "freedom of speech and the press" clearly extends to the Internet. Why?

Well, here, I think Ronald Dworkin is on to something. "Freedom of speech" is an abstract principle. Its content can be filled in once one understands that it is linked to a particular conception of the good. If "freedom", broadly construed, is important because the good life is the autonomous life, then we know just how wide the scope of that principle is.

Suppression of speech inhibits participation in the good life, because it threatens autonomy. Suppression of speech on the Internet also (and for similar reasons) inhibits participation in the good life. By the way, this isn't inconsistent with original intent jurisprudence, because, as Dworkin suggests, the Founders could and probably did intend to lay down abstract principles, at least in places.

5. Conclusion:
"Thin" libertarianism has one attractive feature thick, comprehensive libertarianism cannot match: it makes the promise of transcending reasonable disagreement about the good. But it may not be able to fulfill that promise.

At the same time, I'm reluctant to say thicker libertarianism, based on a view of the good that emphasizes autonomy, can do it, either. Autonomy is a slippery idea. Joseph Raz's version of liberalism is firmly based on a plausible interpretation of the concept, but it's not exactly libertarian in its details.

One might say: that's because Raz's conception of autonomy is too robust, too thick. We need a thinner version, like the one Rasmussen and Den Uyl present (they call it self-directedness.) For example, a thin version of autonomy might identify infringments of autonomy with acts of violence, such that the only way one can interfere with another's autonomy is if one uses violence against him or her.

That conception of autonomy would be very thin, and very congenial to libertarianism. But now the argument can now be turned back on the thick libertarian: why should we accept the thin version of autonomy? The argument simply can't be that a thin version of autonomy is more widely accepted than a thicker version. After all, that wasn't enough of a reason to accept thin libertarianism!

My concern is that a thick version of autonomy, like the one Raz espouses, will almost always lead away from a libertarian politics. Thicker versions of the concept of autonomy might imply that a very poor black person who can't get a job in a racist community is lacking autonomy.

And I'm not sure this is wrong; but if we've already accepted that the state ought to treat what will/won't promote autonomy as a reason to act, then we will also be quickly led to accept that maybe the state ought to help this person out in various ways (incidentally, Rasmussen et al. do not respond all that well to this objection in their book.)

Again, I'm not sure it is a bad idea for the state to help out the truly desperate. But it isn't a very libertarian one. To borrow a clever saying from Kuznicki, there may be no such thing as thick libertarianism, at least once one has augmented it with a plausible, thicker view of autonomy.