Posts Tagged ‘legal’

(Post updated)

In my earlier post on this theme, I expressed my opposition to using coercive legal means to advance social goals and my moral abhorrence for laws which censor expression, ban consensual behavior or limit freedom of association. I wrote:

Any rational system of morality that makes the basic libertarian distinction between the personal and the political must conclude that laws [which restrict individual liberty] are immoral.

To give another side of the issue, I am also surprised when people think that it is ‘unlibertarian’ to attempt to modify other people’s behavior — for good or bad — through non-coercive means. A controlling husband who does not want his wife to dance with other men, a guy who ‘makes’  his girlfriend eat healthy foods, a friend who tries to emotionally pressurize you to give up smoking or a lover who makes you give up something you love as a precondition of being with you are not in any way violating the non-aggression principle. Such behavior can be sensible or irrational, helpful or counter-productive but as long as they do not involve actual coercion, they are neither libertarian nor unlibertarian.

Let me focus on the cases when the controlling behavior is generally seen as bad or unfair. In those examples, the offending party may not often act in an understanding or considerate manner. However they certainly have the right to be inconsiderate. I most definitely have the right to demand that my partner do things in a certain way. The partner also has the right to refuse. At that point, each of us has the right to suggest a compromise, let the other’s wish prevail or end the relationship. As a general principle, I think such controlling behavior is a terrible idea because even if the other person acts as you wish, she will usually resent it and if you do it often enough, end the relationship with you. However, simply because an idea is terrible does not mean it violates another’s liberty. When private, consensual relationships are involved, everyone has the right to stay in it strictly on their terms.

For instance I would never date a deeply religious person. I would also prefer that my partner’s tastes and convictions are compatible with mine. I might attempt to persuade her to do things in a certain way if they are important to me, even if those things are essentially her personal matter. If the matter is core and non-negotiable, I would even make it clear that we cannot be together if she does not change. These actions may or may not be the best thing for the relationship but they certainly are a natural consequence of my liberty to live my life (which includes my associations and relationships) on the exact terms I wish.

Libertarianism deals with the legal and the political. The meme that it also governs one’s behavior in a purely social or personal setting  is misguided and display a lack of understanding of the underlying philosophical principles. That is not to say that social and personal behavior is not important or that the pros and cons of a particular kind of behavior should not be discussed; merely that such discussions (or any ethics/principles underlying it) are distinct from the principles that underlie individual liberty. Using pressure and emotional leverage to make a friend change his behavior is fundamentally different from having a law that mandates this behavior change. Social pressure is on an entirely different plane from legal coercion. Friendships, marriages and relationships can be ended by either party for any reason, rational or irrational; an oppressive law can never be escaped from.

The personal is not the political. Period.


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A fascinating account of how a district attorney was forced to prosecute a case even though he felt the defendant was innocent. Compelled to choose between his conscience and his job, he took an unusual decision. He took the case, but helped the defence win.

(Link via Reason Hit and Run)

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What does Ethiopia, Senegal and Turkey have that the US doesn’t?

The right to engage in consensual sex for money.

For a list of the legal status of prostitution in different countries, check this nice fact sheet. The oldest profession in the world is legal in most of South America, and virtually all of Europe. Keeping the US company, on the other hand, are countries like China, Saudi Arabia, Iran, Cuba, Uganda (and sadly, India).

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Dean Christopher Edley of Berkeley responds to the John Yoo controversy:

While serving in the Department of Justice, Professor John Yoo wrote memoranda that officials used as the legal basis for policies concerning detention and interrogation techniques in our efforts to combat terrorism. Both the subject and his reasoning are controversial, leading the New York Times (editorial, April 4), the National Lawyers’ Guild, and hundreds of individuals from around the world to criticize or at least question Professor Yoo’s continuing employment at UC Berkeley School of Law. As dean, but speaking only for myself, I offer the following explanation, although with no expectation that it will be completely satisfying to anyone.

Professor Yoo began teaching at Berkeley Law in 1993, received tenure in 1999, and then took a leave of absence to work in the Bush Administration. He returned in 2004, and remains a very successful teacher and prolific (though often controversial) scholar. Because this is a public university, he enjoys not only security of employment and academic freedom, but also First Amendment and Due Process rights.

It seems we do need regular reminders: These protections, while not absolute, are nearly so because they are essential to the excellence of American universities and the progress of ideas. Indeed, in Berkeley’s classrooms and courtyards our community argues about the legal and moral issues with the intensity and discipline these crucial issues deserve. Those who prefer to avoid these arguments—be they left or right or lazy—will not find Berkeley or any other truly great law school a wholly congenial place to study. For that we make no apology.

Does what Professor Yoo wrote while not at the University somehow place him beyond the pale of academic freedom today? Had this been merely some professor vigorously expounding controversial and even extreme views, we would be in a familiar drama with the usual stakes. Had that professor been on leave marching with Nazis in Skokie or advising communists during the McCarthy era, reasonable people would probably find that an easier case still. Here, additional things are obviously in play. Gravely so.

My sense is that the vast majority of legal academics with a view of the matter disagree with substantial portions of Professor Yoo’s analyses, including a great many of his colleagues at Berkeley. If, however, this strong consensus were enough to fire or sanction someone, then academic freedom would be meaningless.

Assuming one believes as I do that Professor Yoo offered bad ideas and even worse advice during his government service, that judgment alone would not warrant dismissal or even a potentially chilling inquiry. As a legal matter, the test here is the relevant excerpt from the “General University Policy Regarding Academic Appointees,” adopted for the 10-campus University of California by both the system-wide Academic Senate and the Board of Regents:

Types of unacceptable conduct: … Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty. [Academic Personnel Manual sec. 015]

This very restrictive standard is binding on me as dean, but I will put aside that shield and state my independent and personal view of the matter. I believe the crucial questions in view of our university mission are these: Was there clear professional misconduct—that is, some breach of the professional ethics applicable to a government attorney—material to Professor Yoo’s academic position? Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?

Absent very substantial evidence on these questions, no university worthy of distinction should even contemplate dismissing a faculty member. That standard has not been met.

In an ideal world, what the dean said would be no more noteworthy than a routine enunciation of the basic principles of tolerance and freedom. Unfortunately, these principles are seldom remembered when dealing with opinions that differ from ours. McCathyism is no less abhorrent when applied against the ‘other side’; and for remembering this, the dean deserves praise. Bravo!

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