Equality and libertarianism

Libertarian political philosophy is often criticized for not taking equality seriously as an important political value.  Is this charge legitimate?  Do libertarians reject the idea of equality as such?  Do they reject the idea that “everyone is equal”?

To understand the controversies regarding equality, one must first understand the nature of equality as a political ideal.  An important and fundamental distinction to understand (made by Ronald Dworkin) is between “treating an individual equally” and “treating an individual as an equal.”  Treating someone equally means acting in such a way that affects their position along a particular dimension equally (e.g., to the same distribution of goods or opportunities).  Treating someone as an equal requires treating them with “equal concern and respect.”  Treating someone with “concern” is to treat them “as human beings who are capable of suffering and frustration.”  Treating someone with “respect” is to treat them “as human beings who are capable of forming and acting on intelligent conceptions of how their lives should be lived.”

Treating individuals “as equals” is a higher-order principle than treating them “equally.”  This is because treating equally requires equal treatment along some dimension.  But treatment can always be compared along multiple dimensions.  One need only to look to the familiar political slogans regarding economic distribution to see how this is so: (1) ‘To each according to his needs’; (2) ‘To each according to his efforts’; or (3) ‘To each according to his contribution.’  Thus, need, effort, and contribution all act as possible dimensions along which one can be “treated equally” vis-à-vis economic distribution.  In the typical case, these principles cannot be satisfied at the same time.  Thus, there is a need for a higher-order principle, a principle to decide which first-order distributive principle is to govern economic distribution.  This is where treating someone “as an equal” comes in, it selects which first-order principle is to carry the day.

The problem of equality is to be found when one attempts to apply the second-order principle of treatment “as equals” (equal concern and respect) to competing first-order distributive principles (e.g., “to each according to his need” vs. “to each according to his contribution”) in order to select which is the morally correct first-order principle.  In order to decide specific and controversial issues, the “treatment as equals” needs interpretation.  But in order to do this, mid-level or “mediating” principles are required, and the more specific the issues are, the more controversial the mediating principles will be.

Thus, there is a problem of interpretation of treatment “as equals” (let’s call this second-order principle the “equal consideration principle”).  Thomas Nagel offers an illuminating way to understand the situation.  Interpretation of the equal consideration principle can be understood in the following way: equal consideration provides individuals with a “veto.”  If a policy or procedure fails to treat him with equal consideration, he is justified in rejecting it, and his non-acceptance is a reason for doubting its legitimacy.  The issue, the problem of equality, is where to place the veto, and different mediating principles differ in where they claim the veto properly belongs.

For example, a utilitarian mediating principle places the veto at the input stage.  There is a moral requirement to maximize the good overall, and the egalitarian aspect requires that every individual’s interests be taken into account, everyone is given equal weight (my interests are given the same weight as Michael Jordan’s interests, his interests do not count more just because he is Michael Jordan).  Notice that equality is not taken into account at the output stage: an output of the decision-procedure is legitimate, no matter how unequal the distribution, so long as everyone’s interests were taken into account and given equal weight, and as long as the decision maximizes the good overall.

This finally brings us back to the questions regarding libertarianism.  As now should be clear, libertarians do in fact take equality seriously.  Treating someone with “equal concern and respect” is a central feature of libertarian thought.  The differences between libertarianism and other egalitarian conceptions of equality are caused by the differing mediating principles and where they claim the veto should be placed.  Most libertarians believe in a strong conception of individual rights (Robert Nozick famously opens Anarchy, State, and Utopia by declaring that “[i]ndividuals have rights, and there are things no person or group may do to them (without violating their rights)”).  Thus, libertarians believe that every individual has a veto against an invasion of their rights.  One is not treated with “equal concern and respect” if a procedure or policy violates that person’s rights (without acquiring consent).  As Nagel describes the position, “[t]he moral equality of persons . . . is their equal claim against each other not to be interfered with in specified ways.  Each person must be treated equally in certain definite respects by each other person.”  As a result, it is incorrect to charge libertarians with failing to consider equality.  It is, of course, entirely legitimate to disagree with the mediating principles and the resultant placement of the veto, but in order to avoid begging the question, one must first acknowledge equality as a genuine concern in libertarian thought.

The State vs. a "Band of Thugs"

Danger asks:

“please describe the difference between the State and the Mafia. Both force you to pay them for protection and other services you do not necessarily want or even need. Both threaten you with bodily or grave harm if you do not comply. Both profit greatly from such actions.”

Most political theorists and social scientists describe the difference like this.  The state, as opposed to a “band of thugs,” claims moral authority, that is, that they have a morally legitimate right to do what they do, that they are morally justified in their actions.  They may be wrong and they may be insincere, but that is the salient fact that distinguishes the two situations.  The mafia never makes such pretensions, it simply does what it does and says “what are ya gonna do about it?!”  The state, on the other hands, claims moral legitimacy.  Whether this is a significant fact (morally or practically) between the two is, of course, open to debate.

Update:  Also, many theorists note that some sort of legal system is an additional distinguishing feature between the State and a band of thugs.  The modern state governs through an institutional system made up of rules ('laws'), as opposed to informal decrees and random acts of violence. 

Hero

Long live Julian Assange. That is all.

Reasonable Discussion - Ostriches

Hume responded to my post "Ostriches" in the comments, writing, in part,

"How on earth can a politician telling the truth be a bad thing?"

This got me thinking: should we assess this statement from the standpoint of institutional design or from the standpoint of pragmatic administration? In other words, should we assess the truthfulness of politicians with an eye towards systematic consequences or on a case-by-case basis? I can easily think of hypothetical situations where it is a "good" thing for politicians to fudge the truth (e.g., probabilistic chance that awful event X happens, and the only possibility of preventing event X is if the general population remains calm and orderly).

Let me start by stating that I am an anarchist. This means different things to different people, but to me it means I am anti-State, anti-War, and pro-Liberty. Being pro-Liberty means I believe people have the right to do as they please so long as they do not harm another, i.e. aggress against another. Incumbent in that is the fact that people have the right to retain the fruits of their labor, without it being stolen from them, and can use such “fruit” as they see fit (including trade it). The State is inherently evil as its entire existence is predicated upon theft and coercion. The State exists because it illegitimately claims authority and jurisdiction over individuals on the sole basis of their residence within an imaginary set of lines. The State sustains itself through taxation, which is nothing more than the theft of privately created wealth. The State erects artificial barriers to entry in market places and, contrary to popular belief, creates far more poverty than would otherwise exist. This really deserves its own post, indeed its own multi-volume anthology.

Back to Hume’s comment. “[S]hould we assess this statement from the standpoint of institutional design or from the standpoint of pragmatic administration.” As so often happens, I feel I cannot really respond to this statement. The underlying premise, to me, is flawed. The “institutional design” is a function of the coercive acts of the State. The institutional design of democracy is premised upon individuals electing representatives to reflect/protect/advance their specific interests against the interests of other individuals forced into a “society” with them.

I believe we can only assess the “rightness” or “wrongness” of any statement or action from the standpoint of “does it harm others? does it infringe upon the natural rights of others?” When a politician lies to the general public, it has an effect on markets. By markets I do not only mean equity, credit, commodity, etc markets that are talked about on CNBC and in the Wall Street Journal. By markets, I literally mean every single transaction that takes place between consenting individuals and entities. Such lies have the effect of distorting available information, which, in turn, has the effect of skewing the transaction away from what would otherwise be the natural reactions of markets. This necessarily harms people – decisions are made and actions taken based on information that is flawed due to the calculated lies told by a politician attempting to advance his own interests (which often happen to coincide with the interests of those occupying the power circles created in the first instance by the State).

This creates harm. Some one or some many ones will end up in a losing position because the markets generally were influenced by a conscious lie. At least some portion of those losers would have acted differently but for the flawed information.

I know this is likely dissatisfying, as it does not really address Hume’s comment. I, however, truly believe that it is foolish to attempt to analyze the pragmatism or practicality of political actions taken by State actors. The entire institution is criminal and ought to be destroyed.

To anyone shaking his or her head while believing me a lunatic – please describe the difference between the State and the Mafia. Both force you to pay them for protection and other services you do not necessarily want or even need. Both threaten you with bodily or grave harm if you do not comply. Both profit greatly from such actions. Geez, the only difference that I can discern is that I am not aware of the Mafia trying to dictate what one can ingest or on what goods one can spend his money (after the Mafia gets its cut, of course).

Thanksgiving football

As a Giants fan, I face a predicament on this day of gluttony and football: do I pull for the Saints or the hated Cowboys?  We will (hopefully) be competing for a Wild Card spot and the Saints will be right there battling us, so we need the Saints to lose.  But it's the Cowboys.  How can I (or any self-respecting non-Texan) ever root for the Cowboys?  Pretty tough spot here, although not nearly as bad as the nightmare that was the Phillies-Yankees World Series (I am a Mets fan).  Danger, what do I do??

Ostriches

Last night while driving home from work, observing the lovely scenery from a standstill position on the BQE, I was listening to Bloomberg Radio, specifically a replay of “Bloomberg on the Economy,” which was originally broadcasted earlier in the day. The host, Sarah Eisen, was discussing the debacle that is the state of EU finance and the Euro itself with a guest, who was the top economist from a major investment firm.

Eisen began by referencing a statement German Chancellor Angela Merkel made earlier in the day, which was something to the effect of “The Euro is in an exceptionally serious situation,” due to the crushing debt:GDP ratios of EU countries and the bond markets realization that, hey!, this could be more problematic than we previously thought. Eisen then asked the guest, “What was she [Merkel] thinking in saying that?!!,” implying that the bond and currency markets reactions would be harmful. Several thoughts immediately popped into my head, only one of which is discussed below:

How on earth can a politician telling the truth be a bad thing? One need not be a long time economic analyst or expert on EU financing to understand the entirely unsustainable debt load the member States are facing. Yes, the specifics of the problems facing each country are somewhat different, i.e. Ireland’s is the result of the government’s guaranteeing of horrific bank loans, whereas Greece’s stem more from impossible entitlement programs and public sector contracts. The main thrust, however, is the same for all – bondholders realize that these States’ debt repayment abilities are more or less non-existent.

The only thing I could infer from Eisen’s comment was that she somehow believes that if politicians, central bankers, etc. simply lie about the true state in which the EU and its member States find themselves, everything will end up bright eyes and blue skies. The ever-so en vogue “kick the can”/“extend and pretend”/“O.D. on hopium” meme that governments, banks and most of the mainstream media would have the (mostly) economically illiterate populous swallow as a panacea is nothing more than snake oil.

Eisen's inferred position is, of course, pure folly. The idea that one can simply stick his head in the sand and avoid problems by ignoring them is so ridiculous that the average 6 year old has little trouble understanding the concept. Merkel’s comments are exactly the type that should be made. The most important function of markets is their ability to convey information, through pricing, in the fastest and most efficient manner known (and, indeed, possible). By lying, extending and pretending, and kicking the can, prices do not drop to where they must. This leads to poor decisions based on incorrect information. In a truly freed society, this resolves itself easily and of its own accord, as issues of sovereign debt would not exist. Sovereign debt is far different than any other type of debt, since other borrowers do not have the option of throwing millions of people in cages if they refuse to surrender money to the borrower. Additionally, other borrowers do not have the ability to counterfeit money to pay off these debts (although individual EU member States do not have this option either).

No, in a freed market, the only option for a borrower who cannot repay its debts is default and bankruptcy. In the current world in which we live, however, governments no longer default. They bailout banks and bondholders, they bailout member States, they steal through taxation, they counterfeit money by printing at will, with nothing of value behind it. These “solutions” are always at the tips of their fingers and, therefore, they always believe that if they can just have a little bit more time, the situation will resolve itself. “If we could just get people spending again!” … one is left with no savers, ergo no investors, ergo no way to create new businesses or expand current businesses, ergo no way to produce jobs, ergo no way to truly recover. Economies do not grow on hopes and dreams, they grow on investments made with the aid of free-flowing, unencumbered information.

But it’s OK – keep up the lies distorting the true economic reality. Keep perpetuating the biggest Ponzi scheme ever devised.

Retrospective increases in punishment

Suppose we adhere to some sort of retributive theory of punishment, that “the punishment should fit the crime.”  Suppose further that Eli is convicted of murder and sentenced to 15-20 years in prison, the maximum permissible under the sentencing guidelines at the time of the murder (based on a retributive judgment that 15-20 years is just).  Now suppose that officials in the system correctly realize that the principles of just punishment require a sentence of 25-30 years in prison (‘correctly’ being stipulated for the hypo).  Is it wrong for the system to alter Eli’s punishment, increasing it to fit the correct retributive calculation?  Is it unfair?  If so, why?  What values usually underlie our judgments condemning retroactive law-making?  Do they apply to cases of retrospective increases in punishment?

Hart and the rule of recognition

In the Concept of Law, H.L.A. Hart set forth his theory of the rule of recognition. An interesting aspect of this idea is that it attempts to solve a problem of legal validity/authority (the “chicken or egg” problem) by introducing an observable practice among officials and subjects as the foundation of all legal systems.  When one is confronted with a rule R claiming legal authority, a question arises: “what gives this rule R authority?”  A natural response (perhaps by an official demanding conformity to the rule) is to point to some other rule: “statute X confers authority on rule R.”  But again, one may ask “well, what gives statute X authority?”  This process could go on ad infinitum.  This is where Hart’s rule of recognition enters the picture: we eventually get to a point where the answer to the question “why is this rule (legally) authoritative?” is simply this: “it just is.” 

The “it just is” aspect of Hart’s rule of recognition is seen in its description: it is a practice among officials and subjects of locating criteria of validity, and it is manifested in the practice of identifying norms as rules of the system by applying such criteria.  It is further illustrated when Hart claims that the existence of the rule of recognition is a matter of external fact, not a matter of validity or invalidity.  He states “[n]o such question can arise as to the validity of the very rule of recognition which provides the criteria; it can neither be valid nor invalid but is simply accepted as appropriate for use in this way” (Hart at 109).  This is why the internal point of view is crucial to Hart’s theory.  The “it just is” answer is partially constituted by the fact that the substance of the ultimate rule is accepted (as manifested in practice) as a norm, thus providing the criteria applied by the officials of the system in identifying valid laws.  This practice/acceptance acts as a backstop to the perpetual question “well, what makes this rule (legally) authoritative?”  (I understand Hart as providing a descriptive account of law’s normativity, merely describing it in terms of people’s belief).

Thus, Hart provides an account aimed to ground legal validity in the practice and belief of legal officials.  This account of the grounds of law is, however, vulnerable to an important critique set forth by Ronald Dworkin in Law’s Empire.  Dworkin argues that Hart’s theory of the “grounds of law” cannot account for “theoretical disagreement” in law.  Theoretical disagreement, according to Dworkin, is disagreement about the ultimate criteria of legal validity, disagreement about the “grounds of law.”  He claims that such disagreement is prevalent in legal practice and legal academia. 

The strength of this argument is seen in its weakening of Hart’s account as illustrated above – the “it just is” aspect of the rule of recognition.  Essentially, Dworkin’s argument claims that there is no such agreement in the legal community: no one can honestly claim “it just is” in light of the theoretical disagreement about the grounds of law.  Thus, a positivist account of the grounds of law must be able to answer Dworkin’s critique, either by locating a place for theoretical disagreement within a positivist framework or denying its significance.  Brian Leiter has recently attempted such a project (Explaining Theoretical Disagreement, 76 U. Chi. L. Rev. 1215 (2009)) , but I will not review the argument here.

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