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.

Some thoughts on what can rightfully be considered a law

In my previous post, I didn't mean to equivocate between conceptual and substantial normative matters when I discussed what it takes for a "law" to be rightfully considered a law.

"Rightfully considered" is, in the above statement and my previous post, not a reference to the justness of a law, at least not primarily. But consider: Jones and Smith both wash up on a deserted island. Jones is much more physically powerful than Smith and hence Smith is rather afraid of him. This fear increases when Jones begins to articulate rules for Smith to follow: "Every morning, you will wake up at sunrise and gather coconuts for me. If you do not bring back four coconuts, then I will beat you."

Jones is certainly trying to give Smith a command. And suppose Smith, out of fear of being beaten, does acquiesce to Jones' demand. In fact, Smith gets into the habit of obeying Jones so much that Jones does not even have to specify that Smith will be beaten if he doesn't follow his commands.

My intuition about this story is that Jones is not making laws. In the story, he does have all the guns (so to speak) but the situation is lacking certain features that are necessary if genuine laws are to exist. These features might include:

1. Jones' commands aren't general enough to qualify as laws.
2. Jones isn't writing them down anywhere.
3. The only reason Smith is obeying Jones is because he doesn't want to be beaten. Neither Smith nor Jones actually think Jones has any real authority at all.

We can reject the first two features as being irrelevant, with the following caveat: they probably bear on the relevance of the third feature, which is where all the action is.

As for the third feature -- well, think about it. When Jones tells Smith to do something, Smith does it. But he does it only because he thinks he will get beaten if he does not. Jones' pronouncement that Smith ought to do such and such is never enough, on its own, to get Smith to believe that he ought to do such and such. Smith never takes Jones' command that he X as a reason to X.

Now there's a complicated story to be told about how Smith might eventually come to recognize Jones's authority and internalize it in a way that Jones' commands will, on their own, begin to establish reasons for him to act. But until the situation between Jones and Smith reaches the point where Smith begins to recognize Jones' commands as reasons, I do not think we can say that Jones is making law.

We might not want to say that Jones is making law even after such internalization has occurred; but we certainly can't say it before. This is what I mean, first, when I talk about what can rightfully be considered a law. The question is conceptual, in that there seem to be certain necessary conditions that must be met before we can even say that law-making exists in the first place.

Some kind of mutual recognition of one person's ability to establish, through his words alone, reasons for another person to act is probably one of those conditions. If you don't have that, you don't have law. I think Hart described this as seeing the law from the internal viewpoint. The law must be represented internally before we can say it rightly exists.

We need not fill in all the details of how such internalization might occur here. But there is one relevant question: suppose I could give some complicated sociological story (e.g. on this deserted island) about how Smith might come to accept Jones commands from the internal viewpoint. Could I give such a story in a way that would make no reference to the commands Jones was actually making?

In other words, is the continued internalization of law and authority consistent with any set of laws whatsoever? Or is it not the case that some commands cannot be given without inherently undermining the authority of the law-giver? If Jones commands Smith to kill Smith's children, is that consistent with Smith coming to internalize Jones' authority?

If you're a certain kind of moralist, you'll likely think the answer is "no." For example, if you think all agents are born having easy access to certain basic moral truths, then you'll think that those truths -- natural laws, if you like -- put a limit on the kind of authority people can come to accept. If Jones consistently commands that Smith do immoral things, Smith might still do those immoral things, but it will be extremely difficult for him to come to internalize Jones' authority. Smith will constantly face a conflict between his clear knowledge of the moral law and Jones' violation of it.

So here is where the conceptual question of what can rightfully be considered a law connects with the moral question of what the law ought to look like. In short: an egregiously unjust law is (conceptually) no law at all; and bodies that attempt to create such unjust laws undermine their authority.

UPDATE:
Timothy Sandefur's erudite and gracious response to this post and the one before is here. *sigh* There is so much I need to learn.

Some thoughts on the 14th Amendment

Timothy Sandefur has two great posts on 14th Amendment incorporation here and here. Both are well worth reading, especially if you are a libertarian. I have to admit, when I first taught philosophy of law, I did give my students a version of what Sandefur calls "vulgar incorporation." Partly this was because it was easier to teach that way; partly it was because, at the time, I didn't really understand incorporation myself (and I'm still no expert, as this post will likely indicate.)

Here is the relevant portion of the 14th Amendment:
"No state shall...deprive any person of life, liberty, or property, without due process of law."

The question is: what does due process of law require?

When I was teaching philosophy of law for the first time, I was very much taken with Justice Scalia's criticism (in his book, A Matter of Interpretation) of what is often pejoratively called substantive due process. For Scalia, all that due process of law requires of a state is that if it is going to deprive a person of liberty, it has to go through the right process, i.e. it has to pass a law, give the person who supposedly violated the law a trial, and so on.

As Scalia says (p. 24), "Property can be taken by the state; liberty can be taken; even life can be taken; but not without the process our traditions require -- notably, a validly enacted law and a fair trial." We could call Scalia's interpretation of the Due Process Clause "procedural due process."

This is not an unreasonable way of interpreting the Clause, but it is certainly not the only way to interpret it.

In contrast, the substantive due process interpretation of the Clause requires the states not only adhere to the right process, but also that the laws they pass by way of that process meet additional, more-than-formal requirements. According to the vulgar form of incorporation, these are the requirements set out in (most of) the Bill of Rights.

In other words, the idea is that the term "liberty" in the Due Process Clause of the 14th Amendment includes or incorporates within it at least some of the guarantees set out in the Bill of Rights (like the 1st Amendment), making it possible for these guarantees to be applied not only to federal action, but to state action as well. If California throws someone in jail for expressing a political opinion, federal courts would free him (and strike down California law) on 1st and 14th Amendment grounds.

Cohen v. California (1971) demonstrates this nicely. In his opinion, Justice John Marshall Harlan II wrote that "The state may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense."

As Sandefur notes, the "liberty" guaranteed in the Due Process Clause is not in a one-to-one relationship with the Bill of Rights. When a federal court is assessing the constitutionality of a state law, it is not simply a matter of determining whether, under the Constitution, the federal government would be permitted to make such a law. Things are a little more complex than that (or should be, at least.)

Sandefur writes:

Incorporation, therefore, is not an exact one-to-one ordering of state and federal law; it is an inquiry into whether the state’s action so exceeds the standards of “lawfulness” as to violate the due process of law clause—or whether it deprives a person of the privileges or immunities of citizenship—and that inquiry is guided by reference to the Bill of Rights, among other things, which lay out the standards for determining what constitutes “due process of law.”

First emphasis added. Now it's an important to ask: just what are the standards of "lawfulness"? What criteria must a "law" meet in order to be reasonably called a law? Is it just a matter of the law being written down in the right place?

I bored my students to death, I'm sure, but we did examine legal positivism, especially Austin's relatively crude version of the doctrine. For Austin (basically), a law is just a law if it is backed up by a powerful enough authority. Austin's criteria for "lawfulness" is "enforced-ness."

Thus, if we are legal positivists of this stripe, we will likely find Scalia's interpretation of the Due Process Clause fairly congenial. As long as California could enforce it, the hypothetical California law we are considering would meet the standards for lawfulness, and -- on due process grounds, at least -- the federal court could not object to it.

As I understand Sandefur's position, his claim is that a law must meet other, perhaps moral standards, if it is to be rightly considered a law. The argument seems fairly tight: if California meets the procedural standards for the making of a law, but does not meet these other, substantive standards, then it hasn't made a law at all. Thus, when it puts people in jail on the basis of that "law" it is depriving them of their liberty without due process. It would, in fact, be exercising naked coercion, might without right.

How do we know what the moral standards of lawfulness are? As Sandefur notes, answering this question requires an engagement with political philosophy. Some conservatives (like Scalia) see such an engagement as just an excuse for judges to ignore the law and impose their own views. That's certainly a danger. It's even more of a danger if one does not believe in moral truth at all.

But the important point is that the Framers of the Constitution did seem to believe in moral truth. The 8th Amendment (to take an example of Ronald Dworkin's) seems to lay down an abstract principle, rather than a specific prohibition of certain forms of punishment. We do not, I think, travel far from their vision in thinking that a concern with moral and political philosophy is essential to a proper interpretation of the Constitution.

Link

Individual right to bear arms vindicated: Ron Paul supporters dismayed

One of the neo-Confederate Ronulan cultists lovely folks at lewrockwell.com is already registering dissatisfaction with the Heller decision.

Why? Because, according to Stephan Kinsella's interpretation of the law, the Second Amendment only forbids the federal government from banning guns (actually, that's inaccurate: the claim is more that the Second Amendment and the entire Bill of Rights are "irrelevant and redundant .")

Well, isn't Washington, D.C. under federal jurisdiction, and doesn't that mean the Second Amendment would apply? Things are not so simple. He cites approvingly Kevinn Gutzman's claim that, " the District of Columbia, insofar as it behaves as a state, is properly treated as a pseudo-state by the Supreme Court."

Thus, if D.C. must be treated like a state, then the federal Supreme Court can't overturn a gun ban on Second Amendment grounds, since, as noted, the Amendment (and the entire Bill of Rights) is only supposed to apply to the federal government. QED.

The Cato Institute's Tom Palmer called this line of reasoning "just plain dumb," but, anyway, that's the argument. It's the reason why not everyone is celebrating in Lincoln-hating land today. Stephan Kinsella and others are worried that the 2nd Amendment will be applied against the states through the 14th Amendment, and that highly restrictive state gun laws in places like Chicago will be struck down next.

Let me put that point more concisely: some of Ron Paul's supporters are dismayed by today's Supreme Court decision because they think it might be used in the future to prevent a democratic mob from trampling on an individual's rights. But Ron Paul himself thinks it's just fine for such mobs to restrict a person's liberty, just so long as the mob and the individual reside in the same state.

And people wonder why I refuse to call them libertarians.

Cross-posted at the Western Standard's Shotgun blog.

Show trial in British Columbia

Ok, it's not really a trial (if only!) It's the second day of the British Human Rights tribunal's hearing into whether a prominent Canadian magazine (Maclean's) violated the B.C. Human Rights Act, exposing Muslims to hatred and contempt.

What did Maclean's do? It published an excerpt from Mark Steyn's book, America Alone. Steyn argues that a) increasing Muslim birthrates and immigration from the Middle East, combined with b) the West's own unwillingness to assert its values, and c) the flaws of the expansive welfare state, are going to lead to increasingly "Islamified" societies in Europe (and Canada, presumably.) As societies become more Islamic, they will become less liberal. So goes the argument, anyway.

I'm not as sure about Steyn's thesis as I once was. His thesis seems to depend on the idea that, at its core, liberalism is hollow -- that it could not be defended, even if liberals wanted to defend it. Either that, or he assumes that arguments are impotent to change belief, so that no one can be argued into becoming more liberal.

Either way, I have qualms. And I'm telling you about them right now, on this blog. But a few law students in Toronto decided they didn't want argue with Steyn's claims. Instead, they went to Canada's peculiar institution of human rights commissions/tribunals and made multiple complaints against Maclean's for publishing the excerpts from Steyn's book.

The gist of the complaint is that by publishing those excerpts, Maclean's unlawfully exposed Muslims to hatred and contempt. You can see the relevant portion of the B.C. Human Rights Act here.

The Human Rights Tribunal (HRT) in British Columbia started hearings yesterday. The whole thing is an absolute, incredible farce. There are no clear standards of evidence in the B.C. HRT. The three person panel overseeing the hearing (and no, they're not judges, none of 'em) is admitting blog posts and blog comments as evidence of the harmful impact of the Maclean's piece.

In other words: if some evil cretins used this blog post as inspiration for a series of hateful posts about Muslims (on Stormfront, perhaps), I could be held responsible for that.

Truth is not a defense against a hate speech complaint in Canada. Nor, apparently, is intent. All that matters is if a panel of bureaucrats ascertains that the speech in question is likely to expose someone else to hatred or contempt in virtue of their membership in a protected group.

Khuruum Awan, one of the law students who brought the complaint, seems to be making things up as he goes along. Maclean's lawyer is grilling him, fortunately, but it's not clear to me any of this will matter much in the long run. If the HRT can't find a way to dismiss the complaint on technical grounds, how can Maclean's not be found guilty, under the wording of the B.C. Human Rights Act?

Ezra Levant, facing a human rights complaint of his own, is in B.C. live blogging the show trial here.

Mainstream media is hardly giving the matter any coverage at all. Canadians don't care. They're worried that if they stand up for free speech they will be labeled as racists or American-lovers or something like that. Cowards.

Hacking the library

I'm working on a Python script to look up basic information about books using a Library of Congress call number. The purpose of this script is to make my life easier. What I'm wondering is if there is a simple database out there my script could rely on to turn the LC numbers into book data. The actual Library of Congress Online Catalog might work, but it seems very slow. In brief, what I need is a database that has the following characteristics:

• It has to be relatively easy for my script to access. Straightforward HTTP requests, hopefully. The data has to arrive in a format that is easy to work with.
  
• It has to be reliable. I'm going to be using it a lot, so it has to be online most of the time.
• It has to be fast. As mentioned, the L of C's online catalog is probably too slow for my needs.

Oh yeah, and it has to be free, too. But there's got to be something out there, right? I was thinking maybe I should just use a college library's server to do my dirty work. BGSU's server is kind of clunky and the output it generates will be difficult for my script to process properly. At the end of the day, I may end up using it, but it would be nice to find something better.

I realize this post has nothing to do with politics or the law. Or philosophy. But I DO have other interests!