Free Thoughts Blog

In the story I told last time, you’re living with your family in Montana, raising cattle, drinking their milk, and generally bothering no one. Now the government’s decided that, first, they want to levy a tax on each head of cattle to pay for road construction and, second, drinking raw milk is illegal, so you’d better stop.

The question I raised was, “Are you politically obligated to obey either law?” If so, why?

Of course, you may choose to obey one or both of the laws for reasons of prudence–it’d be more trouble than it’s worth to disobey, you’re afraid of retribution by the government’s agents, etc.–but that would mean acting based on non-political-obligation justification. Likewise, you may feel you have a moral duty to not drink raw milk (you’ve been convinced by the arguments against it), but that duty need not be political. Remember, a political obligation is one you are duty-bound to follow because of its source (the state) and your relationship to it.

Theories of political obligation fall into five general sorts: consent, gratitude, fair play, association, and natural duty. Let’s start with the first. In my introductory post, I wrote,

The consent account is perhaps the easiest. Here, you have obligations because you consented to them. You agreed to obey the law and support the state by some statement or action you took. This could mean something as obvious as saying, “I agree to obey the laws and support the state.” But it needn’t be that explicit. You might have appeared in a crowd, with an agent of the state standing up front. The agent said, “Anyone who doesn’t consent, raise your hand.” By not raising your hand, you (perhaps) consented, thus creating political obligations. In our Montana story, maybe you consented to pay for road improvements by driving on the existing roads regularly when you went into town to run errands. Maybe you consented to obey the state’s laws–including the law against consuming raw milk–when you decided to remain in the United States instead of moving to some other country where raw milk consumption faces no prohibition.

This was Locke’s preferred method and it remains perhaps the most obvious. By explicitly binding ourselves to a political authority, we agree to abide by that authority’s rules. We consciously decide to undertake a moral obligation and then are, for some period, bound by it. (It seems clear that “consent” demands awareness of consenting. We can’t become bound via consent and not know it.)

But what counts as consent? As I said above, “explicit” consent clearly does. But few of us explicitly consented to be bound to our government. Instead, if consent happened at all, it occurred implicitly. The two most obvious ways this might happen are by living within a state’s claimed borders or by participating in its political process.

Let’s start with the argument from geography. In our story, you’ve lived in Montana your whole life. Both the state government and the federal government claim authority over the region and everyone who lives within it. By staying, have you tacitly consented to the state’s rule? At first it might seem so. After all, you know the land is within the jurisdiction of the United States and that the U.S. government expects to be obeyed by those who live within it. If you don’t like it, you can always leave, right? This is the “If you’re going to live under my roof, you better follow my rules” form of tacit consent.

But if tacit consent depends on making a choice between two possible actions–one that expresses consent and one that doesn’t–then the choice itself must be meaningful. If you’d been chained to a large rock in Montana your whole life, little sense could be found in saying you’d “chosen” to remain there. David Hume extended this meaningful/non-meaningful distinction to less far-fetched imaginings when he asked, “Can we seriously say that a poor peasant or artisan has a free choice to leave his country, when he knows no foreign language or manners, and lives from day to day, by the small wages which he acquires?” Further, given that every bit of land where one could reasonably live is already claimed by some government, none of us have the legitimate option to avoid the state altogether.

Merely living on land within the border claimed by a government may yet create obligations through one of the other four theories, but it’s difficult to argue that they come via consent.

What about voting? It seems that whether voting rises to the level of tacit consent depends much on the intent of the voter. Clearly, if the voter intends to become obligated by voting, then his act of voting acts as consent. But need it? A potential voter might live in the United States but not believe he has consented to be bound to its laws. However, he knows that the outcome of the upcoming election will impact him. One candidate may favor policies leading to greater pollution. Or one may be tougher on crime, making his election a potential security benefit. So our potential voter becomes an actual voter, but not because he consents to the legal system of the United States or because he consents to the rule of either potential victor. Instead, he votes for the same reason you might decide to give your wallet to a mugger: if all probable outcomes aren’t any good, it still makes sense to try to get the least worst one.

And what about the majority of Americans who don’t vote in most elections, either because they choose not to or because they can’t (felons, for instance). Have they consent by not voting? If not voting counts as consent and voting counts as consent, then what doesn’t count? “Not voting and staying put” doesn’t get us to tacit consent, either, because then we’re just back to the “under my roof” argument.

Consent theory is a rich and complex branch of the philosophy of political obligation, one with far more nuances and sub-arguments than I can explore here. What it has going for it is that, unlike the other theories of political obligation, consent clearly works. Those who do consent to be bound are bound. The trouble with consent, however, is its stringent demands. We can explicitly consent to become bound to a state’s laws, but very few of us actually do–and what counts as tacit consent is narrow enough that it likely doesn’t pull in even a majority of citizens..

So consent succeeds as a theory of obligation in the sense that it can create obligations, but it fails as a general theory binding most of us to the actual governments that claim to have authority over us.

We must look elsewhere.

In a budget speech last week, Barack Obama accused Republicans of embracing “thinly veiled social Darwinism.” In this week’s Excursions, George H. Smith argues that the President doesn’t know what he’s talking about.

It is clear that “social Darwinism” and “survival of the fittest” were intended by Obama to evoke feelings of fear and disgust. It is highly doubtful that Obama knows anything about the history of these ideas, and it is even more doubtful that he cares. A concern for truth is not the coin of the political realm. But these expressions have long been of interest to me, mainly because the great libertarian Herbert Spencer is frequently said to have originated social Darwinism.

Read the rest—the first of two parts—here.

If politics makes us worse, why would we ever want more politics? The libertarian answer is that we don’t. By limiting the sphere of politics—by restricting the range of decisions made through the political process—we create not only a healthier and wealthier world, but also a more civil one.

But not everyone sees it this way. Some perceive the spread of political decision making as a way to further the reach of “we.” In their minds, we become more free, not less free, when as a community we decide how we should live our lives. Individual decisions, especially those made in a market context, get framed not as autonomous choices, but as coerced, undesired outcomes of giving “them” (the rich, the corporations, and so on) too much power.

This gets things backwards, however. Libertarians, too, are concerned about “we” vs. “them,” but the “them” isn’t a market process. It’s politics. Both groups, libertarians and statists, want—rhetorically at least—to internalize decision making. Both groups seek to give citizens more choice over the path of their lives and therefore increase their freedom. The difference hinges on what it means to be free.

Benjamin Constant framed these differing conceptions as “ancient” and “modern.” He defined the modern conception of liberty as

the right to be subjected only to the laws, and to be neither arrested, detained, put to death or maltreated in any way by the arbitrary will of one or more individuals. It is the right of everyone to express their opinion, choose a profession and practice it, to dispose of property, and even to abuse it; to come and go without permission, and without having to account for their motives or undertakings. It is everyone’s right to associate with other individuals, either to discuss their interests, or to profess the religion which they and their associates prefer, or even simply to occupy their days or hours in a way which is most compatible with their inclinations or whims. Finally it is everyone’s right to exercise some influence on the administration of the government, either by electing all or particular officials, or through representations, petitions, demands to which the authorities are more or less compelled to pay heed.

Ancient liberty, on the other hand

consisted in exercising collectively, but directly, several parts of the complete sovereignty; in deliberating, in the public square, over war and peace; in forming alliances with foreign governments; in voting laws, in pronouncing judgments; in examining the accounts, the acts, the stewardship of the magistrates; in calling them to appear in front of the assembled people, in accusing, condemning or absolving them.

By giving people more of a say in political decisions while at the same time taking a very broad view of what decisions can legitimately be made politically, we enhance meaningful autonomy.

Which means those who embrace the ancients’ liberty argue—contrary to my claim in yesterday’s post—that politics makes us better.

Constant had a ready reply:

But if this was what the ancients called liberty, they admitted as compatible with this collective freedom the complete subjection of the individual to the authority of the community. You find among them almost none of the enjoyments which we have just seen form part of the liberty of the moderns. All private actions were submitted to a severe surveillance. No importance was given to individual independence, neither in relation to opinions, nor to labor, nor, above all, to religion. The right to choose one’s own religious affiliation, a right which we regard as one of the most precious, would have seemed to the ancients a crime and a sacrilege. In the domains which seem to us the most useful, the authority of the social body interposed itself and obstructed the will of individuals.

Things needn’t be so bad in modern democracies, of course. We can have religious freedom and big government. But Constant is right that liberty defined as political participation is a cramped view of freedom. Giving over more of our lives to the political process means placing more of our lives at the mercy of the whims of the electorate. It means seeing democracy as an end in itself and not merely as the best, most fair way to make those decisions that rightfully belong within the political sphere.

Ancient liberty is the rule of the mob. It’s just that the mob lets you have your say before it tells you what to do.

The motley crew of theorists over at Bleeding Heart Libertarians have been having a fascinating exchange concerning the relative merits of different justificatory approaches to political philosophy. The contributors are in substantial agreement about the (libertarianish) content of the correct view about justifiable political authority, but hold different views about what makes it the correct view.

On one family of views—which encompasses a range of consequentialist and rights-based approaches—there are independent truths, which philosophers can seek to discover, about how people ought to treat each other. Which political orders are justified depends on these truths, and not directly on whether they are widely accepted by the members of a society so ordered. The qualifier directly is important, because on any plausible view, one of these objective truths will be that there are limits on how people may be treated without their actual, subjective consent.

Another family of views—which philosopher Kevin Vallier characterizes as “contract liberatarianism,” but which encompass contractualist views more generally—consent is not just an important feature of the content of correct political principles, but an important feature of what makes them the correct principles. On these views, justified political principles are just those that could be accepted (or on some variants, could not be rejected) by any reasonable member of a pluralistic society whose members hold wildly diverse conceptions of the good life, with equally diverse accompanying metaphysical, ethical, and religious views. Central to most of these views is the idea of “public reason”—a kind of stripped-down justificatory language that expresses “thin” policy rationales that dispense as far as possible with contentious premises that might be rejected (even if true!) by some reasonable groups. My own inclination is toward this sort of view, but I want to problematize one way Vallier seeks to argue for this conception:

For what it’s worth, I side with the contract libertarians because I cannot see how we treat one another as free and equal if we order each other around merely on the basis of objective reasons. Our natural freedom and equality entails that we can’t resolve our disputes about how to order social life based on one person’s disputed conception of the good and the right. It won’t do to tell your free and equal fellows that they should obey your directives (even regarding your property) merely because there exist reasons to obey you that they may or may not be able to grasp. That strikes me as disrespectful and obnoxious browbeating. I think that’s what Hobbes, Locke, Rousseau, Kant and Rawls believed as well. I know that’s what Buchanan, Narveson, Lomasky, Gaus and Tomasi think.

Here’s one difficulty. We know that, in addition to their deep disagreements about ethics, metaphysics, and religion, members of a pluralistic society also differ profoundly about justifiable uses of political power. Moreover, people who in fact benefit from unjust features of the status quo have reason to reject proposed deviations in a more just direction—but nobody thinks this ought to factor into our evaluation of which orders are acceptable. Contractualist theories only actually get us anywhere by making the relevant form of agreement hypothetical, and importing certain normative terms into the conditions of agreement: Principles all reasonable persons would accept or could not reasonably reject.

The claim, then, is not that I am justified in ordering you to leave me and my property alone—and calling the police or using physical force to make that order effective—because you do actually accept the legitimacy of private property in general or my claim to it under our current legal system, for perhaps you don’t. Rather, the argument is that I am justified because you would accept (or could not reasonably reject) the principles on which my claim rests if you had correct factual beliefs and deliberated in a fully procedurally rational way, regardless of your deeper metaphysical commitments or the comprehensive conception of the good you embrace. This allows the view to be genuinely normative because your current actual beliefs are subject to correction by the requirements of factual accuracy, “reasonableness,” and procedurally rational deliberation—but still distinguishable from the first family of views in that it takes your normative commitments as given. Hypothetical consent here is grounded on formally or procedurally rational deliberation from aims and values that we take as we find them—it does not assume any of these are substantively rationally required.

The trouble is that the distinction is not as clear cut as all that. For one, our aims and values are typically inextricably tied up with a variety of factual beliefs that may be false. Many people’s values flow from religious doctrines that make factual claims about the world that may be false—and indeed, at least some of which must be false. In choosing important life projects—like pursuing a career as a writer on political ideas—we rely on predictions about how likely this is to render us personally satisfied in the future, whether this project is likely to be a way of meaningfully contributing to the larger welfare of society, and so on. Even a weaker corrective—purging us only of those beliefs widely agreed to be false by the best current physical and social science—would likely take us a substantial distance from our actual selves.

Perhaps more importantly, the stringent requirements of full procedural rationality are rarely satisfied by actual flesh-and-blood human beings. The arguments for private property, or for a certain voting protocol, or for structuring the federal government in a certain way, may turn on complex economic, sociological, or philosophical arguments that the modal member of society “may or may not be able to grasp.” As the old cliche has it, half the population is of below-average intelligence by definition, and there’s no guarantee that all (or even most) of us would be able to really understand the validity of Arrow’s Theorem (or Rawls’ Political Liberalism—or the arguments of Buchanan, Narveson, Lomasky, Gaus, and Tomasi) even under the best of circumstances. The most highly educated imaginable society will still contain many young children subject to political authority and affected by government policies.

When we consider more modest forms of idealization, there’s intutive force to the idea that we treat others as free and equal despite some mild amount of “correction” of their revealed preferences—and even that such correction is sometimes required to treat them as free and equal.  I see you about to raise a glass of poisoned wine to your lips and, without a moment to lose, knock it from your hand. Supposing that either you were unaware the wine was poisoned (a false factual belief) or were not thinking clearly in the grips of depression, powerful drugs, or some other mental impairment (a failure of procedural rationality), I have a compelling argument that I have coerced you only in a way that respects your free and equal status: Given your own deeper values, which include a desire to live, I have only done what you yourself would most strongly want me to had you been fully informed and thinking clearly. To borrow an example from Plato, I do not treat my neighbor with equal dignity and respect when I return his borrowed weapons to him while he’s temporarily insane. But the further we travel along this road, the harder it is to claim that the hypothetically-endorsed principle is one the actually-embodied person already has subjective reason to accept. 

What Vallier’s argument needs, then, is some account of why we treat people in ways that respect their freedom and equality when we treat them in accordance with principles they could or would accept subject to idealized deliberative conditions—regardless of whether they actually accept these principles—but only provided this idealization takes their substantive value commitments as given. Yet it’s not clear that these commitments would themselves survive such idealization, nor that they are more deeply constitutive of “the person”—the actual flesh-and-blood person we’re meant to be respecting—than the cognitive and information constraints we feel free to abstract away. In other words, we need an explanation for why “You would endorse this principle if you could understand the proof of Arrows Theorem” is more compelling for justificatory purposes than “You would endorse this principle if you were motivated by impartial concern for all other citizens/humans/sentient beings,” despite the implausibility of supposing that these idealized deliberative conditions would not also yield profound revision of people’s actual motivational sets. Moreover, we need an account that does not rely on a theory of the moral person tied to one of those controversial worldviews about which citizens of a pluralistic society reasonably disagree.

Needless to say, Rawls and other contract theorists anticipate and have answers to this line of attack—and this post is long enough without attempting to say anything about whether they are good answers.  The point is just that any helpfully normative theory—one that purports to answer questions about justification that actual people currently disagree upon—is going to say something about reasons that “exist,” or that people “have,” even if they do not currently acknowledge having them. What this actually amounts to, and which forms of idealization generate these kinds of reasons, is not at all straightforward, which means that the legitimacy of Vallier’s distinction between families of theories can’t actually be made ex ante: It depends on how well the argument for a given construction procedure within the liberal contract theories actually holds up.

In the United States, nothing makes us hate each other quite like politics. Not even religion, the source of so much violence throughout the rest of the world, compares.

The base vitriol of Fox News and MSNBC, the hateful tempestuousness of the partisan blogosphere, and the unthinking moral posturing of Ed Schultz and Sean Hannity, do nothing to promote human flourishing. They do nothing to make us happier or better. Politics only makes us worse. It coarsens us, strips us of our civility and our capacity for measured thought. And it cheapens many who participate. To despise your fellow American because she supports a Republican or because he supports a Democrat is to let the inconsequential destroy what matters most. Politics, at best, is something we suffer through because it is occasionally necessary, but we ought to regret every moment of exposure.

Tribalism and heated rhetoric aren’t unique to politics, of course. One need only look at professional sports fandom to see striking similarities. Yet, while Yankees fans may say they hate Red Sox partisans, they don’t really mean it. But when Republicans talk about the evils of liberalism? Or when Democrats sneer at conservatives? The anger and condemnation are very real.

What’s more, much of this hatred of our fellow citizens flows from vanishingly small policy differences. One can imagine a situation, where, in three weeks’ time, the country will vote to either enact state socialism or libertarian minarchism, with no middle ground. Here it makes perfect sense for the debate to become heated. If you genuinely believe either of those options would amount to hell on earth, then you have every reason to fight viciously against it. But this is not how politics works in the United States. The two parties have very little to distinguish them in the policies they actually pursue when in power. There’s not much room between President Obama and his predecessor. And a Romney administration likely wouldn’t look a whole lot different from what we have now. This lack of significant distinction makes our extreme partisanship and in-group/out-group grandstanding even more destructive and degrading.

Further, what differences there are between the policies of the major candidates remain poorly understood by most who get angry about them. Heightened emotions rarely motivate deep learning. Contrast this to sports: hardcore sports fans, who care deeply about the fortunes of their teams, become fonts of trivia about the minutest details of the rules and players. Yet how many anti-immigrant voters know much of anything about the economics of immigration? How many proponents of increased funding for public schools know where the money goes or how it’s used?

Outside of politics, we typically avoid forming strong opinions about topics we remain ignorant of. Yet, unlike the veracity of string theory or the actual author of Shakespeare’s plays, the outcome of the political process–as well as what becomes part of the political process–matters in our daily lives. The decisions political actors (voters, legislators, regulators) make impact us. Or, at the very least, we’ve been lead, through heated rhetoric, to believe they will gravely impact us. So we genuinely care about those outcomes in a way we don’t when it’s the local football team up against the crosstown rival. And the more decisions that become political decisions, the more cause we have to care–and the more invested we become in outcomes, giving us even more reason to despise those who might advocate outcomes that (we think) are harmful to us.

Knowing this, I can’t for the life of me fathom why so many seek to expand the sphere of politics, to grant it more power over our lives. Politics gives others authority over us. It raises the stakes of decisions. When healthcare remains a private issue, the fact that my neighbor holds different views than I do about what’s healthy and what isn’t impacts me very little. But when the healthcare I get becomes a matter of his vote against mine, I have every reason to become emotionally involved–even if I haven’t a clue what I’m talking about.

If you think the political debate is rancorous now, just imagine what it’ll be like when it determines even more of our lives.

Seen from this perspective, the libertarian vision is not to have our particular politics win out. Instead it is to do away with politics, to limit the reach of the state to the minimum necessary to allow everyone, in a culture awash in pluralism, to live the sort of lives they cherish. The libertarian dream is to reduce politics to something so minor that it isn’t worth investing in. As libertarians we care about politics precisely so that, we hope, some day we can turn our attention to more valuable things.

Today George H. Smith begins a new essay series with a discusion of Thomas Jefferson’s ideas about education and his plan for a decentralized system of public schools in the state of Virginia. Smith writes that contrary to the beliefs of some historians that would link Jefferson to Enlightenment advocates of state schooling like Benjamin Rush, Samuel Knox, and Noah Webster or to the common school movement of the 1830s, Jefferson favored schooling on a more local level:

The key to local school districts, according to Jefferson, is that they give parents direct and ultimate control over how their children are educated. To suppose that schools will he better managed by “any authority of the government, than by the parents within each ward…is a belief against all experience.” A government can no more manage schools than it can manage “our farms, our mills, and merchants’ stores.” Elementary education should be the concern of local communities under the supervision of parents; it should not be controlled by the federal or state governments.

Extreme decentralization was thus the centerpiece of Jefferson’s plan for public schools, and he warned of the potential consequences should this feature be ignored:

“What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and powers into one body, no matter whether of the autocrats of Russia or France, or the aristocrats of a Venetian Senate.”

Read the rest here.