1.
And the moral is not the legal.
It is a distinction that often seems to be lost. Admittedly, most people, when faced with the distasteful, the unpleasant or the unfair have a natural impulse to ‘ban it’. That is an emotional response. As we grow up, we learn to separate the emotional from the rational. Libertarianism simply takes this ability to make distinctions to its logical conclusion.
Of course social and personal issues are important and they need to be addressed. It is a worthy goal to oppose hateful, discriminatory, bigoted or irrational conduct. The right way to do that however is by social means, such as ostracization or education. It is wrong to pretend that no harm is done by letting the political into the personal. Moreover, even when one is using purely social means to stop a harmful practice, it is important to keep the political-personal distinction in mind.
As Todd Seavey puts it in this excellent post:
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.
The more causes for political complaint people believe themselves to have, the more likely a total state becomes. If selling trans fats — or simply calling a woman fat — is deemed an assault on social justice, a Kafkaesque web of petty laws becomes more likely.
[...] Maybe it’s high time we formulated a more-explicitly tiered language for talking about such distinctions, though: wrong vs. illegal vs. ought-to-be-illegal — grey area, merely unpleasant, bad idea but not really morally-loaded, etc. — since these things so often get lumped together. Libertarianism, though, like no other philosophy, hinges on recognizing these distinctions rather than treating That Which Is Bad as necessarily deserving of simultaneous avoidance, moral condemnation, outlawing, punishment by God, etc., etc., etc.
Most of my posts have been concerned with laws that arise from this failure to distinguish between the moral and the legal. There is the obscenity law, laws against prostitution, laws forbidding discrimination and hate speech, laws that regulate freedom of association, blackmail law and so on. Do these laws improve the ability of some people (the alleged victims) to make more out of their lives? Doubtful, but let us assume that they do. However, even then, any rational system of morality that makes the basic libertarian distinction between the personal and the political must conclude that such laws are immoral.
2.
That is not to say that all laws in this complex world can be straitjacketed into a strict property-rights system. First of all, property rights can be tricky to define in the borders. Secondly, we need to make sure that whatever political system we are proposing is sustainable. The real world is full of political ambiguities. A dogmatically libertarian state just isn’t in the cards, the poor aren’t going to magically go away, deregulation will hurt some people. Finally liberty may be the basic moral good but it is not the only good one needs to survive. And people on the edge will always choose survival first.
In short, we do need to worry about the consequences of everything, even libertarian prescriptions. I believe that it does make sense to have a certain level of mandatory taxation, even if some of that money will necessarily go into projects you do not support. It does make sense to have a certain minimum degree of redistribution and welfare to ensure equilibrium and also to help develop the basic capacities to exercise freedom in children. It makes sense to have compulsory security checks in certain places and it most certainly makes sense to prevent private citizens from acquiring nuclear weapons. It may even make sense to mandate certain consumer protection laws — such as those that deal with information disclosure — though I am less convinced about this. And so on.
What does not make sense, is to pretend that laws like the above – all of which restrict some basic individual rights — are morally neutral/superior or liberty enhancing. They may be necessary and they may increase the happiness of many people and depending on my rational and empirical analysis of the particular issue I might even support them — but to claim that those laws are anything other than a necessary evil is unlibertarian.
How very interesting — so much so that I put it (with attribution) in my blog. I hope you do not mind. -Lorna
“I hope you do not mind.”
Not at all, Lorna. Glad you found it interesting.
Aren’t you flirting with consequentialism?
I was listening to Lew Rockwell being interviewed on his own podcast 2 days ago, where he says there is no such thing as a “small” State. Like Parkinson’s view of committees, the State becomes an end in itself and just keeps growing.
The original US constitution and the present Federal government, for example.
Hm..thinking of Bastiat, and govt. being a fiction where everyone loots everyone. So I’d say these taxes, regulations are placebos which just psychologically make people feel secure. Just today I was thinking that the State is inevitable because of human nature. Like how some scientists are trying to prove that religion is a natural by product of the human mind and its fears. So there might be evolutionary advantages to having these placebos.
As I have stated in the past, the libertarian ideology I adhere to — to summarize very simply, and somewhat misleadingly — is a particular kind of consequentialism where freedom (in the strict libertarian sense) is one of the elements (in fact the most important moral component) in the calculation.
It is hard to elaborate on that in a short comment, and I hope to someday lay it out in better fashion on this blog, but you can roughly think of it as a hybrid between classical natural rights libertarianism and Chicago-school style consequentialism. There are many many reasons why I think strict deontological libertarianism is inadequate to develop a political system and I have several philosophical issues with pure consequentialism (not least of which is, *what* are the desirable consequences and how are they to be weighted). Obviously the one sentence summary of my own system I have given here does not resolve these issues, so someday I hope to write a long series of posts where I explain these problems and present my preferred solutions.
As for your other points, they are all valid ones that must be included in any rational analysis, particularly in any sensible version of libertarianism. I completely agree with you that a tendency towards collectivism — be it the state, religion or strongly networked feudal societies — is in-built into the human psyche.
[...] of course, goes to the heart of my post from yesterday — just because something would be ‘good’ does not mean it is correct to enforce [...]
[...] 20, 2008 by Abhishek In my earlier post on this theme, I expressed my opposition to using legal means to advance social goals and my moral [...]
[...] people do not understand or care about the fundamental difference between the moral and the legal, the personal and the political, social disapproval and actual coercion; thus this charade [...]