Like The Problem of Political Authority, Huemer’s Justice before the Law begins with common-sense moral premises, yet reaches radical libertarian conclusions. A tall order? Indeed, but he delivers. The key passage:
One might be tempted to object that my critique of allegedly unjust laws presupposes a controversial, libertarian political ideology. For I have seemingly assumed that the only legitimate function of law is to protect individual rights, an assumption rejected by other ideologies. Other ideologies may claim, for instance, that law legitimately serves to promote moral virtue, to promote the good of society, or to reduce economic inequality. Therefore, one might think, those who do not subscribe to libertarian ideology need not be troubled by my allegations against the legal system.
This objection is not correct. Libertarianism is controversial, but I have not assumed libertarianism. My premises are non-ideological intuitions shared by nearly all members of our society, whether liberal, conservative, libertarian, or other. For example, I assume that it is wrong to kill the healthy patient in the Organ Harvesting case (section 2.4.1). This is not a libertarian political premise; this is a moral judgment that seems obvious to nearly everyone. I argue that intuitions of this kind support the ascription of rights, including a general right against harmful coercion. I assume also that it is wrong to kill the hermit in the Island Hermit case, and I argue that this shows moral rights to be independent of law (section 2.3). Again, this is not a libertarian ideological assumption.
In discussing particular laws, I deploy intuitions about analogous cases – for instance, the intuition that Sam wrongs Starving Marvin by preventing Marvin from reaching the marketplace (section 3.3). These, too, are non-ideological intuitions widely shared by those of varying political orientations. I have also argued that one ought to accept ethical intuitions as a source of justification for moral beliefs, provided that one accepts morality at all. Of course, my conclusions are congenial to libertarianism. But this cannot be a principled reason to set them aside.
All of which fits neatly with my views on “libertarianism as moral overlearning“:
The fundamental difference between libertarians and non-libertarians is that libertarians have overlearned common-sense morality. Non-libertarians only reliably apply basic morality when society encourages them to do so. Libertarians, in contrast, deeply internalize basic morality. As a result, they apply it automatically in the absence of social pressure – and even when society discourages common decency.
For example, non-libertarians routinely say, “A woman has a right to use her own body as she likes.” But it never even occurs to them that this implies that prostitution should be legal. Why? Because non-libertarians only apply this principle in the exact situations where their society encourages them to do so. They learn the principle without overlearning it. Libertarians, in contrast, can’t help but see the logical connection between a woman’s right to use her own body and the right to have sex for money.
To take a far larger issue, people across the political spectrum would agree that, “Accepting a job offer is not a crime.” (What’s the moral equivalent of “Duh”?) But most non-libertarians see no conflict between this principle and immigration restrictions. Once you overlearn the principle, however, the whole moral landscape transforms. You suddenly see that our immigration status quo is morally comparable to the reviled Jim Crow laws. The fact that other people frown on the comparison doesn’t change the moral facts.
The main reason why Huemer has not changed my mind about veganism, by the way, is that he fails to rest his case on comparably “non-ideological intuitions shared by nearly all members of our society.” The wrongness of making animals suffer for minor gain is not obvious to most people. In fact, even most self-styled vegans routinely make animals suffer for minor gain. They could eat 5% fewer calories, drive 5% less, or live in a 5% smaller house – all of which would probably save the lives of rodents and birds, as well as vast numbers of insects. And almost none of them condemn themselves for failing to do so, because that seems almost as absurd to them as it does to me.
READER COMMENTS
JJAP
Nov 18 2021 at 11:36am
Thanks for the book recommendation and analysis. It sharpened my understanding.
Since you took the detour at the end, so will I: Do you personally, Bryan, accept “The wrongness of making animals suffer for minor gain”? Even if it’s not universal enough for you to argue it for other people, if you believe it yourself, it’s enough to convince yourself.
Everett
Nov 18 2021 at 1:21pm
and
The issue here is the conflation of “individual rights” with “collective rights”. Prostitution is not an act of an individual, it is an act of at least two people. Likewise corporations are (as I’m using the term) collections of people which typically limit and parcel out power in a non-uniform manner from the central corporate government. Again, not “individual” rights.
Libertarians generally argue about limits on collective rights when they begin limiting individual rights. So the question to a given libertarian person is: How are you justifying your particular criteria?
As an aside: I believe many non-libertarians are in favor of decriminalization of prostitution for the person prostituting themself.
Mark Z
Nov 18 2021 at 3:40pm
“The issue here is the conflation of “individual rights” with “collective rights”. ”
I think libertarians generally (or at least in my case) reject the concept of ‘collective rights’ other than as derived from individual rights (e.g., an individual may assent to membership to a group which contractually obligates him to do something for another party or group; the other party’s right to get something from the first individual, however, still ultimately derives from the individual’s right to join the group). The right to participate in any activity, whether it involves two or a hundred people, is thus as much an individual act as the right to do something alone.
“As an aside: I believe many non-libertarians are in favor of decriminalization of prostitution for the person prostituting themself.”
So, not actually decriminalizing prostitution then.
Mactoul
Nov 18 2021 at 8:55pm
Libertarianism is essentially a short-sighted and short-term focus on right of individuals in a political community. But it loses sight of the problem of a political community among many other political communities. And the problem of sustaining the political community over generations.
It also ignores that individuals are bound into families which are not entirely voluntary associations.
In pre-modern thought, the political community, the families and the individuals form three irreducible levels of human organization and none can be derived from others.
KevinDC
Nov 19 2021 at 12:18pm
You write about libertarianism like someone whose only understanding of libertarianism comes from reading caricatures of it written by its political opponents – about on par with someone whose only understanding of evolutionary theory comes from reading how it’s represented in creationist literature. If you genuinely think that libertarianism “ignores that individuals are bound into families which are not entirely voluntary associations,” or that libertarians are somehow unaware of elementary things like “the political nature of man” or about “the problem of a political community among many other political communities,” the only conclusion I can reach is that you’ve never made a serious attempt to understand libertarianism. Because not only are these perfectly mundane and obvious things not ignored or dismissed by libertarian thinkers, they are widely recognized and often integral to the libertarian worldview. No libertarian is going to feel the need to take your criticisms seriously when you repeatedly say things like “libertarians fail to account for [insert statement that literally every libertarian ever fully understands and accounts for.]”
Mark Z
Nov 19 2021 at 1:46pm
Families are only involuntary associations for children, who don’t enjoy various freedoms because they’re cognitively incapable of exercising them. But once one is an adult, families are every bit as much a form of voluntary association as anything else (or should be at least).
Simply positing that political communities are irreducible doesn’t make it so. They’re ‘reduced’ all the time.
nobody.really
Nov 18 2021 at 3:42pm
For me, corporations create a libertarian litmus test. Libertarians tend to believe in autonomy–defended by the rights of the individual to seek redress in court for violations of autonomy. Yet corporations represent a conspiracy between one set of private parties and the state to limit the rights of a third party to sue for damages. So what do libertarians have to say about that? “We defend the right of individuals to form corporations, cooperatives and other types of entities based on voluntary association.” Voluntary–in the sense that *I* volunteer to deprive *you* of your right to obtain redress?
Various interests are advanced by this perspective–but they don’t include the interest of autonomy.
alvincente
Nov 19 2021 at 12:06am
You know, nobody, I see this all the time, the claim that corporations limit the rights of third parties to sue for damages; but it ain’t so. All of the assets of the corporation are exposed to third party claims. What is not exposed are the assets of the shareholders, in most cases. Do you believe that if you own one share of Microsoft all of your personal assets should be available to Microsoft creditors? Do you think that shareholders should put their personal assets at risk if they want to invest in a business? You do understand, do you not, that if the business does not make adequate provision for obligations in many cases the courts will “pierce the corporate veil” and seize assets of the owners? And that the law prohibits distribution of profits to the shareholders if a corporation is insolvent?
And do you think that the assets of a bank that loans money to a corporation should also be available to creditors of the corporation? If not, why should debt finance be privileged over equity finance?
nobody.really
Nov 19 2021 at 4:02am
Right. And in the absence of the corporate form (e.g., if the investors were partners or sole proprietors), their assets WOULD be available to satisfy third-party claims. I didn’t consent to Joe’s Taxi abridging my right to obtain redress when the driver runs me down. That was a conspiracy entered into between the shareholders of Joe’s Taxi and the state.
That’s discretionary. And if the investors initially invested “appropriate” sums in the corporation, and then just pissed the money away, I’m still left without redress when the taxi hits me. If the company had been a sole proprietorship or partnership, I’d be able to sue the owners for all they’re worth–no judicial discretion required.
No—because I’m not a libertarian. There are plenty of policy reasons for a society to authorize the formation of corporations. In particular, it facilitates economic growth. But the corporate form can also work to the disadvantage of innocent third parties under some circumstances, as we’ve been discussing. Pretty much every jurisdiction has concluded that the benefits to SOCIETY outweigh the costs to the individual. But that’s the kind of collectivist, utilitarian rationale that libertarians reject.
Great rebuttal!
For better and worse, we recognize a distinction between debt and equity. Debt holders are entitled to only what is in their debt instruments. Any net gains or losses accrue to the equity holders. This arrangement long pre-dates corporate law.
But why should this arrangement obtain? If I loan you my car and gun, and you hurt someone with them, I expect that I could be held liable for failing to control my assets. But if I lend you my money and you hurt someone with it (perhaps after using it to buy a car and a gun), why should there be a different outcome? No conceptual reason leaps to mind.
robc
Nov 19 2021 at 10:01am
I think you are confusing libertarians and anarchists.
Its a common mistake, but think about the difference then try your argument again.
alvincente
Nov 19 2021 at 11:36am
Nobody – ok, one last response – you are still wrong. Joe’s Taxi is insured, if it isn’t insured the corporate veil will be pierced, no question. And you can sue the actual people responsible for the accident – the driver, and anyone in the company who facilitated the accident. If you are run down by the driver on his off hours, you don’t have any company to sue. You are simply mistaken about no redress.
You concede you are not a libertarian, but you do this typical thing of thinking that you understand libertarian principles better than libertarians. You don’t. There is nothing anti-individualist about allowing passive investment, where only your investment is at risk. You are the one who seems to think that when I buy stock in a company I should be responsible for bad decisions or accidents that I have no personal ability to change or affect – it is your perspective that seems anti-individualist to me – you believe in collective responsibility without any personal fault.
Jose Pablo
Nov 19 2021 at 5:00pm
“Pretty much every jurisdiction has concluded that the benefits to SOCIETY [of corporations] outweigh the costs to the individual. But that’s the kind of collectivist, utilitarian rationale that libertarians reject.”
Nobody did that “calculus of benefits and cost”, that’s just a figure of speech with no real meaning. It was not done in any jurisdiction. Among many other reasons because it is just impossible to add the benefits to SOCIETY (are they different to the summatory of the benefits to each individual? how so?) and the cost to the individuals (every individual? every possible cost multiplied by the probability of their occurrence?). You are joking, right? Can’t be serious about “every jurisdiction” doing that impossible lengthy dinamic calculation.
Many people were already getting services from corporations and the legal scheme was “formalized”. And yes, you are right, libertarians reject the idea that the concept of “limited liability” was formalized BECAUSE somebody did this collectivist calculus that you “describe”. And libertarians reject that idea for very good reasons: it is totally impossible to do such and impossible nonsensical calculation and as, a matter of fact, nobody did it!. Reality has, after all, a very significant epistemic value.
But there is nothing non-libertarian in the fact that a group of people put money together and establish the way they want to serve clients and that these clients accept their conditions by buying the products or services (including the, in practice, very little difference to clients of the “limited liability”).
Regarding the third parties of your example it seems to be the case that the insurance business is a wonderful way of voluntarily internalizing these risks. Nothing non-libertarian there either.
Everett
Nov 18 2021 at 1:29pm
Does Huemer use the term “minor gain”, or is this your own bias that you’re inserting?
And why does acknowledging something as wrong require condemning oneself for doing it? I admit that I overeat, and I acknowledge that this harms critters and the environment in general, and so is wrong to do. I don’t condemn myself every time I overeat though.
A Country Farmer
Nov 18 2021 at 3:12pm
> Does Huemer use the term “minor gain”
Throughout his book on it (Dialogues on Ethical Vegetarianism), Dr. Huemer repeatedly states that meat eaters eat meat only for “pleasure”-seeking, “trivial”, and “minor” reasons. This was my major criticism of it. Sure, I could be cognitively biased, but I do not believe that I eat meat for such reason; I believe I eat meat primarily for health reasons as an omnivore. I try to eat Certified Humane meat only, though.
A Country Farmer
Nov 18 2021 at 2:47pm
I’m in a middle ground on the veganism & vegetarianism debate:
1. [Contra Caplan]: Cruel factory farming is immoral if one can afford Certified Humane (&etc.) meat.
2. [Contra Huemer]:
A) It is a reasonable Bayesian prior for omnivores that veganism & vegetarianism are nutritionally questionable, and
B) there is insufficient long-term data on vitamin-enriched vegan & vegetarian diets;
therefore, it is moral for omnivores to kill animals for food. The burden of proof is on vegans and vegetarians to perform long-term, randomized controlled trials that look at all-cause mortality using a high quality vitamin-enriched vegan or vegetarian diet compared to a high quality, Certified Humane omnivore diet.
3. Therefore, for those that can afford it, it is moral to eat animals such as those that are raised Certified Humane (&etc.) but immoral to eat foods from cruel factory farming.
I think this middle ground taps into the intuitions on both sides.
Andrew S
Nov 18 2021 at 2:56pm
What are your thoughts about moral foundations theory and the argument of Haidt et al. that one gravitates to the political ideology that is consistent with core moral intuitions? Haidt analogizes the moral tastes of individuals to the various taste receptors in the tongue (salty, sweet, etc). Individuals clearly vary in their food taste preferences. Haidt says the five main taste receptors that underpin moral reasoning (or actually moral feeling) are: care/harm, fairness/cheating, group loyalty and betrayal, authority and subversion, sanctity and degradation. People who are inclined to be worried about sanctity issues tend to turn into political conservatives, people who care the most about care/harm become social democrats, and the taste basis of libertarianism stressed fairness and not cheating. Seen from this point of view, libertarians aren’t people who have overlearning and over-extending common moral principles, they are people who over-emphasize just a few of the main ingredients of morality.
Iyer, R., Koleva, S., Graham, J., Ditto, P., & Haidt, J. (2012). Understanding libertarian morality: The psychological dispositions of self-identified libertarians.
nobody.really
Nov 18 2021 at 4:07pm
Libertarianism has the beauty of pure reason–and the pitfalls. Here’s my Critique of Pure Reason:
Chaos theory tells us that lots of little rules–each of which seems perfectly innocuous and reasonable on its own–can combine in ways that produce unanticipated and unreasonable results.
Or consider Newtonian physics: The greatest minds in the world embraced this model for centuries. If you apply a force to a stationary object that causes it to accelerate to 1 km/hr, then applying twice that force should cause it to accelerate to 2 km/hr (omitting wind resistance). It’s so reasonable; who could dispute it? But once you observe limits on accelerating that object to the speed of light, then you have to conclude that all the previous Newtonian calculations had to be wrong. Maybe not so wrong as to be obvious when examined at 2 km/hr. It was only in aggregate that the errors become apparent.
Jose Pablo
Nov 18 2021 at 8:52pm
So, libertarianism produces unreasonable results because objects cannot be accelerated to the speed of light?
Matthias
Nov 19 2021 at 12:36am
You know perfectly well, that the comment made an analogy. And a reasonable one at that.
Newtonian mechanics works really well at eg the scales and velocities of the solar system.
But it breaks down at much higher velocities or strengths of gravity.
Similarly, it is conceivable that common sense moral intuitions work well at person to person scales, but break down at larger scales. Dunbar’s number is a thing after all. (And eg something like communism also works reasonably well inside of a family, but doesn’t really work for larger groups. Similarly, most companies are run very well as command and control economies internally, but scaling that up to whole economies fails. Etc.)
So it’s more than conceivable that common sense moral intuitions can not be extrapolated to large scales.
Of course, that’s not a watertight argument. They might still scale just fine.
(Just like eg conservation of momentum and energy survive the translation into general relativity or quantum mechanics just fine, too.)
Jose Pablo
Nov 19 2021 at 9:01am
Why should Newtonian mechanics and common-sense moral intuition be analogous?
Does it mean that if I find something that does escalate well then “common sense moral intuitions” would have no scalation problem?
So, if something escalates without problem in the Universe then, everything else should escalate without problem? (And vice versa)
Very interesting epistemology.
Matthias
Nov 19 2021 at 10:37pm
Huh? This was just an analogy to explain a point.
If it turns out tomorrow, that Newtonian mechanics was right after all and scales indefinitely, the original point in the comment still stands just as before. It would just make the explanatory analogy useless.
The analogy just illustrates that moral intuitions might be only valid in conditions that are similar to where those intuitions formed. But they might lead us astray when we get further away from them.
Many moral intuitions lead to contradictions when you try to extrapolate them.
This is a problem for eg people pondering so called friendly AI.
Jose Pablo
Nov 21 2021 at 11:58am
No Mathias,
the analogy is already useless, no matter what happens in the future with Newtonian mechanism. The analogy does not illustrate any relevant thing about whether or not common-sense moral intuition escalates.
To say:
a) I think that common sense moral intuition does not escalate well from the induvial level to the whole society,
and to say
b) I think that common sense moral intuition does not escalate well from the individual level to the whole society AND objects cannot be accelerate to the speech of light,
is saying exactly the same as far as the possibilities of a) being true are concerned.
There is no reason in b to change even a little bit the a priori probabilities that you could have initially assigned to a).
That’s the definition of “b) being irrelevant to the possibility of a) being true” and pretending otherwise is the definition of “sophism”.
Mactoul
Nov 18 2021 at 8:42pm
A lot of these moral truisms such that a woman having right to do whatever with her body are simply not universal but specific to modern West, the so-called WEIRD humanity. They simply don’t comport with pre-liberal thought whose existence is simply ignored by libertarians. But the strength and vitality in modern societies is arguably dependent on vestiges of pre-liberal traditions and modes of thought.
Mactoul
Nov 18 2021 at 10:26pm
In economics, an individual gets to own an unowned object by mixing his labor with it. But how much labor needs to be mixed with which physical object– labor on a piece of wood, a parcel of land, a puff of air are all very different– this question needs to be answered and it is the essential work of the political community to answer this question to the required extent.
This is related to the essential difference between how a political community, call it nation or tribe, possesses its territory and the way individuals inside the nation own parcels of land that are embedded in the national territory.
The national territory is backed ultimately by brute armed might of the nation. But individuals hold ownership within the national territory by laws of the nation. The disputed ownership is decided by the courts that listen to arguments presented by contending parties.
So ownership is conclusion to a series of arguments starting from the moral premise that man must live by sweat of his labor. Ownership is secured by arguments and not by brute might.
KevinDC
Nov 19 2021 at 3:00pm
No, that’s just false. This is an idea in political philosophy generally attributed to John Locke. The idea that “an individual gets to own an unowned object by mixing his labor with it” isn’t found a single economics textbook.
J. Goard
Nov 18 2021 at 10:32pm
I don’t think one has to accept that a chain of reasoning leads from near-universal intuitions to the outer limits of veganism, in order to accept that it applies in spades to a whole lot of what most non-vegans do on a daily basis. For example, it does seem like a near universal in developed nations that if the specific things done to nearly all farmed pigs were instead done to dogs, this would be a massive evil, and there seem to be no arguments of comparable standing for treating those two species differently. Then it’s a little less strong for chickens, although the ratio of creature to meal is also much higher. And so on. Bryan is surely correct that near-universal intuitions don’t get us to prioritizing personal consumption of animal products in any form (say, glycerin in your tortillas) over greater indirect harm through travel or crop production. The only arguments for non-consumption on the outer limits that I find convincing are psychological: humans tend to do very poorly at “cutting back”, as when we diet for weight loss, but quite excellent at taboos, as when it never crosses our mind to eat a dog, squirrel or parrot. It’s psychologically and economically naive, in other words, to think that inefficient “ethical meat” could become a majority habit, and far more plausible that eating pigs, cows and chickens could come to be regarded as just as taboo (“weird”, “gross”, and “just not done”) as eating dogs is today.
That aside, it’s absurd to expect the outer limits of veganism to be settled, before personally changing your actions on the clear central cases. Seeing people who eat factory-farmed pork, beef, chicken and eggs with nearly every meal refuse to stop on the grounds that a larger house or more travel harms more animals than vegans worrying about animal-derived additives or having a wool coat, is a line of thinking not applied to other ethical domains. For example, the outer limits of sexual assault are poorly defined: exactly how intoxicated or how mentally disable would someone have to be to not consent, or if consent begins to be withdrawn mid-act, precisely how many milliseconds are allowed to transpire before all contact ceases? Yet expecting all such questions to be thoroughly ironed out before you reject and oppose cases of outright rape, seems morally insane. Make the obvious switch away from the horrifically tortured mammals and birds, and *then* let’s argue tricky cases of lesser and more indirect harm.
KevinDC
Nov 19 2021 at 10:04am
I see several commenters have taken in turn to debate things like individual vs collective rights, but I’m confused about why. For example, nobody.really says corporate structures are justified on the ground that “Pretty much every jurisdiction has concluded that the benefits to SOCIETY outweigh the costs to the individual. But that’s the kind of collectivist, utilitarian rationale that libertarians reject,” which is basically covered by what Huemer said when he wrote “Other ideologies may claim, for instance, that law legitimately serves to promote moral virtue, to promote the good of society, or to reduce economic inequality.”
(Of course, this claim about libertarians by nobody.really is also obviously false – the majority of libertarians are not individual rights absolutists, and concede that the rights of individuals can be overridden by sufficiently large social considerations – including Caplan and Huemer! If it was actually true that “libertarians” reject “utilitarian rationales”, there would be no such thing as “utilitarian libertarians” or “consequentialist libertarians”, or libertarians who are not philosophical utilitarians but still accept that utilitarian considerations count for something, even if they aren’t always intrinsically decisive. But of course, such creatures do exist – and even write for this blog! So that was just a bizarre claim to make, especially for someone who seems to read this blog with some regularity.)
But that all misses the point. What Huemer is getting at was how case he makes in his book does not make or depend on any assumptions about the nature of the law being exclusively to protect individual rights. That is, you could fully grant every objection or complication that is being raised here in the comment section about individual rights, and it wouldn’t weaken Huemer’s arguments, because his argument doesn’t make or need any of those assumptions anyway. It’s just a simple red herring fallacy. Similarly, if someone was to try to reject the case Huemer makes for philosophical anarchism in The Problem of Political Authority with similar appeals, it would only reveal they haven’t actually bothered to read the argument he makes, because it’s explicitly laid out in the book how his arguments there also don’t depend on a “rejection” of “utilitarian rationales,” or on a belief that individual rights always trump other considerations, or anything like that. So citing those kinds of things as a way to rebut Huemer’s case is just tilting at windmills – it only serves to signal that you haven’t made an effort to understand the argument.
KevinDC
Nov 19 2021 at 10:22am
On a separate note, I still find Caplan’s responses to Huemer on veganism to be pretty lame. Huemer’s argument isn’t about the wrongness of merely killing animals, it’s about the wrongness of deliberately keeping them in conditions of constant pain and suffering for their entire lives. One could think it’s acceptable to, say, hunt a deer, while also finding what happens on factory farms unacceptable. If someone was to catch a fawn, and lock it in a tiny shed where it couldn’t walk, turn around, or fully extend it’s limbs for its entire life, keep it covered in its own waste, inflict third degree burns on it and slice away various parts of its body, maintaining it in these conditions for years, and then finally kill it, that seems obviously different from hunting a deer, or even hitting one with your car. If you found out your new neighbor was keeping a fawn locked in a shed and doing all this, you’d probably seriously worry he might be a psychopath. It just seems lame to say to someone who would find this behavior outrageous “Yeah, but if you drove 5% fewer miles, you might not have hit that deer with your car last month, so obviously you don’t really see anything wrong with what your neighbor did.”
Bryan’s assertion that “The wrongness of making animals suffer for minor gain is not obvious to most people” is also challenged by the existence of ag-gag laws. These are laws lobbied into existence by the factory farm industry which make it illegal to report on the conditions animals are kept in on factory farms. (How this holds up on First Amendment grounds is a mystery to me, but here we are.) If Caplan is right, this seems utterly inexplicable. Why spend the millions in lobbying costs, lawyers, and time and effort to jail and silence people in order to prevent reporting on something that, according to Caplan, is widely considered to be perfectly fine anyway? On Huemer’s view, however, the impetus for these laws is very easy to explain. Factory farm owners anticipate, correctly, that if the conditions animals are kept in on factory farms was made widely visible and widely known, the majority of people would be outraged about it, so they do everything they can to make sure people don’t actually see what’s going on.
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