Consequentialism and Unit Conversions

It is easy to compare measures in the same units; comparing measures in different units of the same type (as length or time) merely takes a bit more work. But how is one to compare measures in units of different types? Is a mile more or less than a minute? One can answer this question readily in a specific context; if driving at 60 mph, the two may be called equivalent. But unlike a conversion between, say, feet and metres, where the conversion is inherent to the units involved, such a conversion between miles and minutes relies also on the situation.

All this is a very roundabout method of presenting my fundamental difficulty with consequentialism: it relies on mathematically impossible calculations. A consequentialist asserts that the value of an action can be measured by its consequences, and actions compared by the relative worth of their consequences. The difficulty is in comparing the value of disparate things. A typical consequentialist argument that I hear too often is that the harm done by taxation is smaller than the good provided by the security that the taxation can secure, and that therefore taxation is a net good. This argument could mean one of two things. Possibly, it means that physical security is more important than financial security, and therefore that any increase in physical security outweighs any amount of taxation. But this seems false; is security so valuable that the smallest modicum of security outweighs the greatest theft?1 Perhaps, then, the argument is proportional: the actual security gained outweighs the theft, although were the provision of security less efficient it would not. But security is one thing, and theft another. By what conversion are we to compare one to the other? It might be objected that individuals perform such tradeoffs daily; when one purchases a good or service one is asserting that one prefers the item to the money, and the conversion is contextually supplied by one’s preferences. However, another might choose differently, and therefore the conversion is therefore not universal but situational. Furthermore, only individuals hold preferences, strictly speaking; societal preferences must be built from individual preferences, and no method of doing this is inherent to the preferences.2 And, even if such a conversion did exist, I have never heard mention of it in such discussions. How does the consequentialist decide which quantity is greater, aside from a conversion standard? He cannot. Yet one who asserts one thing to be better than another without comparison of their effects by some such conversion is no true consequentialist.

Some utilitarians, such as the hedonists, seek to avoid this problem by avoiding such conversions, claiming that only pleasure is good and thus that all things may be compared in common units of pleasure. But pleasure is by no means as simple to measure as distance. J.S. Mill, for example, divides pleasure into higher and lower types, which are to be valued differently. But at what exchange? Bentham attempts to avoid that difficulty with his claim that “quantity of pleasure being the same, pushpin is as good as poetry.” But how are we to measure pleasure? What, precisely, is a packet of pleasure? Or is it continuous, rather than discrete? I see no path around the question within consequentialism, nor do I see a direct solution.

Therefore, it seems to me that consequentialism cannot serve as a guide to conduct. Whenever you hear someone saying that we should do something because its gains outweigh its losses, or one thing rather than another because its net gain is greater, and the consequences at issue are disparate, ask by what conversion he compares the two. If he cannot answer, his argument is nonsensical; if subjective, his argument fails to bind others. A legitimate answer I have never heard.

1 I do not wish to assume that theft is innately bad, which any consistent consequentialist would deny, but that the seizure of resources prevents them from being used elsewhere, causing (presumably) some loss of good.

2 This, of course, does exclude any claim that the free market uniquely identifies societal preferences. On the other hand, it also precludes any argument that it does not–the matter is simply undefined. Distribution must be determined without recourse to welfare arguments (which allows the reentry of the free market as just).

The Rule of Law

The present controversy over the nomination of Sonia Sotomayor to the Supreme Court makes this a good time to discuss the rule of law. While I certainly have no sympathy for identity politics, I find the particular lines drawn here most peculiar. The Republicans uphold the rule of law, by which they seem to mean positive law; the democrats oppose it. This is exemplary, I believe, of an odd correlation throughout American politics.

A legal positivist, for example, ought to support the rule of law so defined. As a legal positivist, the law is not answerable to any higher standard, and so any deviation from the law, rigorously applied, can only be arbitrary. Furthermore, legal positivists tend to be communitarians, believing that the individual reaches fulfillment in the community. Correspondingly, such people should hold that the individual agents of the government reach fulfillment when acting as part of the whole, bound together by common principle: the positive law. However, this correlation does not obtain: as evidenced by the recent Supreme Court nomination, our resident population of communitarian legal positivists seems rather hostile to the rule of law in favor of identity and personality politics.

Contrapositively, one would expect those who accept natural law to oppose the rule of positive law. If the law is answerable to a higher standard, then the law should not rule except insofar as it conforms to that standard. Yet libertarians in this country seem to hope to use the law to curb the government. If the law is unjust, they appeal to the Constitution. And if the Constitution is unjust? Few libertarians have a graceful option in that circumstance. It is said that Judge Learned Hand once told Justice Holmes to “Do justice, sir, do justice”, to which Holmes replied “That is not my job. It is my job to apply the law.” And many of those who profess to support limited government support Holmes’ rejoinder. Robert Bork is a poor example, being himself a legal positivist in strange alliance with those who at least professed to support natural law, but the sentiment is widespread: Clarence Thomas holds that it is his duty to uphold the human law, whatever may be just; noted supporters of limited government Thomas Sowell and Walter Williams concur.

This definition of the rule of law does not even allow for any sensible interpretation of its common expansion, “the rule of law, not of men”, for all positive law is, by definition, made by men. Perhaps there is some benefit in having all legal decisions reference one standard, but so long as that standard is positive, the rule is still of men, merely several steps removed.

Therefore, it seems to me that the identity of the law in question must be altered from the positive law to the natural law. This law is discovered, not made, and thus its rule may be properly distinguished from that of men. It makes sense for someone who believes in the moral supremacy of natural law to support its legal supremacy as well, while it also makes sense for someone who rejects natural law to oppose its rule. Thus, interpreting the rule of law as referring to natural and not positive law explains its usage and affiliations.

Given that, however, the conclusions reached from support of the rule of law demand reconsideration. Those who support the rule of law tend to strongly oppose judicial activism. However, leaving aside activism arising from corruption or whim, I can find no fault with the judge who upholds the natural law above all human orders. Can it be consonant with the rule of law to transgress the true law on account of human fictions that aspire vainly to the title, for, as so often repeated, an unjust law is no law at all? Is not that such rule of men, and not of law? However useful human constructions may be in following the natural law, one should never bind oneself to what is not fixed. One should not bind oneself to the statutory laws, for they might be altered, and thereby made unjust. One should not bind oneself to the Constitution, for it might be amended, and thereby brought into conflict with the natural law (not to mention its myriad conflicts as it stands). One should only bind oneself to what is immutable by all human devices, the natural law.

Thus, I fail to see why Sotomayor ought to be disqualified from the Supreme Court merely because she wishes to uphold a law other than human law. The critical question, rather, should be whether she upholds the true natural law, for any other law is just as much a human invention as the laws of the US Government. However, the fact that the oath of office requires pledging allegiance to the Constitution, and not the natural law, raises difficulties perhaps insurmountable. One cannot take an oath with reservation (although signing laws with reservations seems to be working well for our presidents), so I cannot see how anyone who believes in the natural law could take the oath of office in good conscience. However, this is its own dilemma, and no fault of Sotomayor: those who are ideologically qualified to sit on the Supreme Court cannot take the oath of office in good conscience; those who are not are obviously unacceptable.

A defense of the supernatural

Let us hypothetically assume materialism, that all possibilities are completely described by physical specification. Under this assumption, I do not believe that any moral statements can be justified. In a materialistic universe, all possibilities are adequately described physically; therefore, a moral statement would be a reason for preferring one physical arrangement to another. On what grounds could one make such a claim? The preference could not refer to any non-physical standard, such as symmetry or order, for such a standard, if true, would be a true non-physical statement and thus contradict the assumed materialism. The standard cannot be contained in some portion of the physical universe, for rules for mapping states to prescriptions are without limit, and the rule used would then become a non-physical statement.1 The standard could not be correspondence of the whole universe to itself, for that is tautologically true. Therefore, no standard is consistent with materialism, whether not founded on any physical facts, on some facts, or on all. Consequently, no preference among possible configurations of atoms can be justified.

But, following our original assumption of materialism, only configurations of atoms exist, and thus all things, including thoughts, are solely configurations of atoms. Thus, within a materialistic universe, no belief is preferable to any other. Consequently, if materialism is true, the set of atoms corresponding to belief in materialism is in no way preferable to that corresponding to disbelief, even though the former is true and the latter false: the consistent materialist cannot prefer truth to falsehood.

On the other hand we may consider the rule that belief in truth is better than belief in falsehood. This being a nonphysical fact, it is inconsistent with materialism. If it is true, then to believe it is better than to believe the contrary; if false, not. Thus, I conclude that belief in materialism is, even if logically consistent, irrational, for belief in the preferability of truth to falsehood is better than belief in materialism if true, but is not worse if false.

1 Thus we may dispense with attempts at materialistic egotism. Whence does the materialist determine that the arbitrary group of atoms he considers himself are preferable as a normative standard?

Justice without Aggression

I think that I may finally be in a position to outline the first steps of a positive theory of agovernmental order. I here take it as granted that force in defense of property is just, and necessary to the preservation of society. This is to me a quite open question, and Tolstoy has his appeal; however, I shall here assume the typical resolution. Thus, my thesis is that the appropriate exercise of force against aggression does not itself require aggression.1

I work, of course, within my own theory of natural rights: that the sole enforceable right is the right of property in one’s self, possessions, and land, all other supposed rights being the exercise of control over one’s property in certain ways; that force in defense of one’s property is just, and therefore not aggressive; that changes in physical possession do not change legal title, and thus that the seeking of restitution is a continuation of defensive action on behalf of that title; and that the right to defense of property inheres originally to the individual. Thus, the question is whether institutions wholly compatible with this account of justice can effectively regulate society.

From this account of rights, it should be clear what can and cannot be done to maintain order.2 One can defend one’s own property, including using force to reclaim it from those who have taken it, or claiming restitution from those who have destroyed it.3 Furthermore, one may claim in restitution one’s expenses, since they are a loss imposed by the crime. One may not, however, act in preemption of a merely probabilistic harm. Just as we are to hold a defendant innocent until proven guilty beyond a shadow of a doubt, so a shadow of doubt about the immanence of a crime makes self-defense aggression. From this it naturally follows that preventing another from defending his property is aggression. Furthermore, one may not harm the property of another in defense of one’s own, including forcing another to aid one’s defense (which neatly answers the media resolution; all subpoenas are unjust).

This means that no government, as commonly conceived, can satisfy my burden. Inherent to government are, it seems to me, two things: the establishment of a coercive monopoly on force within a jurisdiction, and the coercive collection of revenues. Interference with another’s defense of his property (which extends to collection of restitution) and taxation of any kind to support the institutions of law are aggression, unjustifiable on any grounds (see http://ambulatorysesquipedalian.wordpress.com/2009/04/04/indirect-proof-and-necessary-evils/ on the nonexistence of necessary evils).

So what institutions might justly preserve order? An individual who thought his own resources insufficient for the restoration of his property could hire another who specializes in the task to do so for him, following the standard procedure of delegating rights to an agent. This cost, of course, would be the liability of the criminal (although he is bound to pay only necessary, not actual, costs). But what if the criminal resists? Would such private enforcement not lead to constant violence?

Restitution without war requires some form of nonviolent arbitration. For such arbitration to be effective, both parties must be willing to abide by its decision, for or against them. In our society, this is done by brute force: resist the government, and you tend to get the worst end of it. In a society without a monopoly on force, no one would have the power to compel the submission of any other by direct force. So how could arbitration be made binding? This question, fortunately, was very well answered by the polyarchic institutions of pre-Feudal Europe: outlawry. Rather than attempt to overwhelm a resistor of the arbitrated resolution, publically proclaim his guilt. One who has violated the duties of the law has no claim on its protection, and others would be hesitant to deal with a noncompliant criminal. In a society in which the government does not compel people to interact with others, such ostracism would be perhaps the most severe punishment of all possible. Of course, forcible restitution is still just; however, it may not always be possible, and there outlawry has its role.

The efficacy of outlawry depends, of course, on the public acceptance of the ruling. In cases of commercial contracts, the standards are fairly clear, and thus I think such public enforcement quite probable: who would wish to do business with someone who reneged on a contract and then defied justice? For a business owner, the loss of business from a boycott of other companies would probably suffice as a deterrent (and did, in the non-coercive merchant courts of the middle ages). But what of criminal law, where agreement on crimes and punishments is scarce? To analyze this problem, I think that we must alter our conception of law. In our statist age, law is a production of the state, an authoritative pronouncement of what is to be done. Clearly, no such law has a place in a society with no state. The production of law is fundamentally different in a free society: there is no lawgiver, but a law-finder, seeking to identify the relevant natural legal principle and then to justify it to others. If the lawgiver fails in this respect, the law fails to be enacted, for the law in such a society rests upon its popular acceptance for its enforcement. This was the nature of the common law: people today, I think, tend to analyze the common law in terms of our own institutions, with the judges replacing the legislature in creating a binding set of created regulations. In its prime, however, before the common law became subverted by the positive law of the state, it was not a positive law at all, but rather an application of the natural law to the case at hand. Precedent was not a binding regulation, but a guide helping the judge to find the proper application. Correspondingly, in the free society that I imagine the judges do not craft a code of law and force it upon the parties to the case; they attempt to apply the universally justifiable natural law, a law enforced not by violence, but by the conscience of all. This necessarily limits the scope of the law, but not beyond measure. Did the law not overlegislate, I suspect that disagreements would be far rarer.

But what of criminals who cannot pay their liabilities? They would live in perpetual debt, ever bound for all they owned to their creditors. Bankruptcy has no place in a free society. But should they not have borne that in their considerations of whether to commit the crime? Some, however, object in the opposite direction, that restitutive law is unfair to the victims, for they are not guaranteed restitution. To this, first I must question how this can justify the punitive sentences advocated by its advancers: if it is unjust to the victim to be payed only in correspondence to the criminal’s ability to pay, is it any more just to deny the victim all satisfaction save the pleasure he derives from the sufferings of his offender? Are we such a race of sadists that we enjoy the sufferings of others more than the albeit partial satisfaction of our own losses? But I do not think that such satisfaction need be partial. We have a very good microcosm of the form of law I discuss here in our present institutions regarding automobile accidents. There, a complex set of insurances and liabilities protect the victim against unrecompensed loss and the offender against payment beyond his means. Similarly, I believe that a system of insurance against loss and surety for liabilities would serve all necessary purposes. One could object that this will destroy the incentives against crime, if criminals gain the proceeds of their success while the burdens of their failures fall largely on their liability insurance. I must first note that for this objection to hold, automobile liability insurance and malpractice insurance are destructive of proper incentives and must be discouraged. But the Anglo-Saxons had an even better answer: instead of contracting with some impersonal insurance agency, their insurance was a group of twelve who pledged surety for each other’s liabilities. One would not enter such a contract unless one trusted the honesty of the others, and none but a monster (who would probably not be accepted into such a group anyway) would willfully exploit his friends in this manner. The Anglo-Saxons also solved the difficulty of ensuring that all had such surety by refusing to interact with those who lacked it, just as today the government (which we may take as here acting in its capacity as owner of the roads, rather than as sovereign) requires those who use the roads to have liability insurance.

And what of the poor? I hope that after this presentation that question naturally vanishes, but I fear otherwise. The poor have no worries in such a society. Victims may claim compensation for the costs of enforcement, and so one cannot be too poor to pursue justice. Favorable resolution is not certain, it is true; but if one could not bear that risk he could sell his right to the restitution to a firm, who would pursue the case then on their own behalf, guaranteeing the original victim the expected value of the award. The courts would have no incentive to rule against the poor, for the enforcement of a verdict depends on its legitimation, and so only in a society in which nearly all members of which systematically discriminate against the poor would such a biased verdict triumph. For the same reason, bribery is unlikely to be able to pervert justice; the decision is of no account in itself, but only its popular acceptance. And, lest I legitimize the nirvana fallacy, I must ask what comfort the poor have in our present society. The poor are at present wholly reliant upon the government condescending to pursue their case, which the government has shown all willingness to not do at its own pleasure. Once in court, the poor are subject to a legal code produced by a legislature highly responsive to the lobbies and donations of the wealthy. Furthermore, it is in the state that bribery comes into its own, for while in a free society the people must ratify the decision of the court, and the people are beyond bribery (save by an organization as widespread as the government), under the state the decision of the judge is itself decisive, and so bribery is of binding influence. If anything, it is not the poor but the rich who need fear the loss of the state, for it is the rich who wield disproportionate influence over the government, an influence destroyed when there is no government to subvert. The government is not an equalizer, but a lever: it magnifies whatever disparity already exists, by allowing those with considerable resources to control the disposition of resources taken from others.

Thus, I find no reason to expect that society cannot exist without aggression. Replace a coercive monopoly on force with its free use where just and crime will be discouraged, not encouraged. Replace the creators of the law with its discoverers; one would never dream of having a legislature legislate the laws of physics; why, then, have a legislature legislate the laws of morality? Replace the brute force of the law with the ostracization of the people, of no less danger to the criminal but a terror, not an aid, to the tyrant. This could not, it is true, do all that can the state. This society will never be hammered into the mold of the social engineer. It will never be conscripted into the war of the conqueror. It will never bow before the messianic tyrant. These failures I cannot avoid, for they are incompatible with freedom. But to those who think these failures virtues I commend justice without compromise.

1 I discuss coercion in an earlier post: http://ambulatorysesquipedalian.wordpress.com/2009/03/09/freedom-and-coercion/. Most straightforwardly, force is an encouragement of another by negative incentives, and aggression is the unjust use of force.

2 By order I do not, of course, mean that society should be thought an organism that must be directed toward some unified end. Rather, an orderly society (as opposed to an organized society) is one in which people can pursue their own ends in consonance with the rights of others.

3 For the act of destruction cannot destroy the title to the property, since the aggressor has no power to dissolve the title. He must dissolve some title, however, since his action decreases the quantity of property and titles and property must remain in correspondence. It therefore follows that he must dissolve the title to his own property to the extent that he destroyed the property of the victim, which property then falls under the title of the victim. Restitution is not punishment, but defense.

Indirect Proof and Necessary Evils

In most fields of philosophy, a set of propositions that entails a contradiction is held inconsistent, following the law of non-contradiction.1 Where one can rank the support for the various propositions, this allows the figure of indirect proof: if adding a proposition to a set of beliefs singly better supported than it produces a contradiction, the proposition added must be considered false.2

In one field of philosophy, however, most people seem to hold this method of reasoning invalid: ethics. Many proposed ethical systems place upon people burdens to two or more incompatible actions. Elsewhere, such a system would be held inconsistent, and in need of alteration. In ethics, however, the law of non-contradiction does not seem to apply: an actor faced with contradictory obligations should follow one, considering his violation of the other a necessary evil, regrettable but not fatal to the system.3

This strikes me as exceedingly sloppy reasoning. We do not hold that although Newtonian physics and relativity are contradictory, they are both true and we should follow one, considering our denial of the other necessary to avoid indeterminacy; we hold that the contradiction renders any belief in both necessarily false. So it should be in ethics. There are no necessary evils; only false ethical systems that produce them. The true ethical system will at no time obligate an actor to two incompatible actions. This does not mean, of course, that I believe that, a priori, if an ethical system is to prohibit, for example, lying, it must do so in all circumstances; that prohibition may have exceptions (“One may not lie except to criminals”, or even “One may not lie except when doing so is commanded by a higher principle”, with the precedence established).4 However, these exceptions must be inherent to the original ordinance, and not produced from the conflict of absolute ordinances.

Law being a subset of ethics governing enforceable interpersonal interactions, rights are also subject to this prohibition of contradiction. No right may be justly violated at the instigation of any other ethical principle. Thus, long lists of “human rights” such as those of the UN are necessarily false, for they place agents under competing ethical claims. Even the rights to free speech and freedom of property are inconsistent, as in the stock case of crying “fire”. Traditionally, it has been held that in this case the latter right overrides the former. I say, on the other hand, that this instead means that one of these rights is not a true right, but rather a manifestation of something else. Legal questions must be solved by argument from sound principles, not by weighing of incompatible principles in incommensurate units.

1 A strong contradiction is, however, necessary. A set of propositions that produces a paradox is not inconsistent unless the addition of other certain premises produces a strong contradiction.

2 Note, however, that this also applies to the better-supported premises; their contradiction of a supported premise lowers their support correspondingly, even though from the assumption that they are better supported than the new proposition their support remains positive. Thus, one cannot use a set of propositions to disprove a large number of propositions only slightly less-well supported; even though it is more plausible that any one of the introduced propositions be false, it is more plausible that some proposition in the original set be false than that all of the introduced propositions be false. Thus, the set of propositions believed true should be the set that minimizes the combined evidence in favor of propositions believed false.

3 And it is not clear to me why he should do one instead of the other. If government is a necessary evil, unjust but necessary to prevent other injustices, why should we not hold that the injustices consequent on the absence of government are a necessary evil, unjust but irremediable without other injustice?

4 This is ultimately the problem with Kantian ethics and rule utilitarianism. Kant’s categorical imperative may be valid in principle (and is a necessary consequence of moral absolutism), but his use of it to obtain, for example, an absolute prohibition on lying ignores that the true rule of behaviour is not necessarily “lying is acceptable”, but rather “lying is acceptable in this situation”, which one could wish to be a universal principle of action without the consequences attending permission of lying in general. Similarly, for any proposed rule under rule utilitarianism one could propose the modified rule that the previous rule is to be followed except when violations of it would improve utility. The rule utilitarian would then have to say that there is no such instance, which requires much stronger support (and, arguably, moves rule utilitarianism indistinguishably close to deontology, merely approaching from the opposite side (assuming the consistency principle)).

Is and Ought

Certain concepts are irreducible, lexically explicable only by circular reference. Reality is one such, definable only in terms of itself. One may specify its proper scope (e.g. “what does not cease to be when one ceases to believe in it”), but not its essential meaning.1 Obligation, too, is irreducible: one may say that we have an obligation to do what is right, and the pursuit of good is right, but ultimately must return to say that good is what we are obliged to pursue.

Inherent to the notion of a fundamental concept is that it is explicable only in terms of itself. Therefore, all attempts to define the nature of reality are pointless: we may be able to find an intricately circular definition, but it will ultimately come down to “what exists, exists”. Cartesian demon presentations of skepticism miss the point: if that is the nature of reality, then so be it. It is still reality, still an environment beyond my control. It is possible to argue that nothing is real, that there is no environment, that everything we experience we actively create, but that seems quite implausible (try as I might, I cannot make myself believe that I am a tree).

Obligation is, like reality, a fundamental concept not explicable except circularly. No amount of reasoning can move from a statement of reality to a statement of obligation. Any such attempt must involve an implicit normative premise, and therefore begs the question as an attempt to define obligation in terms of reality. Utilitarianism, for example, is not a simple definition of the good as the greatest aggregate utility; it is a normative statement that the greatest aggregate utility should be pursued. All ethical theories must contain foundational normative premises that cannot be reduced to observation of reality.

Choice relies on both these realms, applying a normative major premise to a positive minor premise returning an ethical statement to guide action. No theory can avoid this: one can explain the actions of others by positive determinism, but by introspection, one must have some other principle to guide one’s own deliberation. One may attempt to act in conformity to the factors determining the actions of others, but this itself is an ethical belief, that it is right to do so. Amoral action is impossible. Furthermore, relativistic moralities are incoherent, relying on the absolute premise that one should follow whatever relative standard is proposed.

The seeming consequence of this is that one can never violate one’s principles, for all actions, insofar as they are willful, arise from normative syllogisms. Thus, what does it mean to do what one knows to be wrong? Not to forsake ethics, but to abandon one’s former ethical system for another. All wrongdoing is intellectual error. However, we must remember that thought and memory is not static. One can forsake one belief for another in a moment and revert as quickly, as when one afraid of insects but cognizant of their harmlessness starts on encountering one. He started because he feared harm, which fear he knows to be groundless. Nevertheless, he deserted that belief when it became important. Similarly, one who does wrong that he knows to be wrong does not act contrary to his beliefs, but rather temporarily forsakes those beliefs. One may, of course, also be continually wrong, without such a reversion to right beliefs; such are those who know neither repent nor regret. In any case, the fundamental error is in the intellect, not the will. One can never act contrary to what one thinks right at the moment.

1 Many argue that one cannot define the essence of any concept. I would agree that one cannot define any term without recourse to concepts not essentially definable, but I believe that derivative concepts may be so defined.

Freedom and Coercion

What does it mean to be free? Many, I think, would say that freedom is found in self-determination, the ability to choose one’s course of life. Interference with that choice is destructive of freedom, whatever its intention. To an extent, I would agree. However, we must remember that choice is not of results, but of actions. God, in creating nature, embedded in it a certain payoff matrix: certain actions bring certain results. Freedom is the ability to choose one’s actions and their inherent results, not the ability to choose results independent of action.

Thus, we may identify the first fallacious opinion regarding freedom, that it encompasses such things as “freedom from hunger”, or “freedom from want”. Freedom means the ability to choose a course of action that satisfies one’s hungers or wants, if one is available in nature,1 but does not mean the ability to have one’s desires met regardless of the course of life one chooses. Preventing someone from accepting a job offered him does violate his freedom; however, if he chooses to reject the job offered, his “right to a job” does not entitle him to some other. Freedom means only the ability to choose one’s actions, not the results one would like.

But this definition is incomplete, for it would seem to permit many seeming violations of freedom. The robber who offers the choice of “your money or your life” does not seem to restrict one’s options for action, yet any sensible theory of freedom would regard his action as a violation of freedom.2 Thus, I would add the provision that one may also not interfere with the natural payoff matrix: freedom entitles people not only to to choose their course of action, but also to reap the natural consequences of that action. We may, however, here distinguish between material and moral freedom: the robber’s dilemma infringes on his victim’s material freedom, but the actor still has moral freedom of will, and remains responsible for his actions. No amount of compulsion justifies commission of wrong.3

But by appealing to natural payoffs, I obligate myself to define naturality. Naturality does not mean what would happen without human interaction, for then the criterion would not apply to actions dependent on interaction with other men (as our contrafactual refers not merely to the contrafactual, but to the nonsensical “what compensation would one man owe for stealing from another if that other did not exist?”). I do, however, believe that naturality only involves reference to other humans when their existence is a logical prerequisite of the situation. The settler in a new land does not logically rely on others, despite any potential material dependence; consequently, the natural results of his actions should not depend on others. Similarly, the solitary worker does not depend on others, and his ability to enjoy the product of his labor is independent of others, and their interference would violate his freedom. But what if two men cooperate? We may renormalize, and say that their proceeds do not depend on the presence of others. But what of the distribution between them? I see no reason for preferring any particular distribution, at least on the grounds of freedom, other than that security in their own persons, that not being a product of their cooperation, must remain inviolate (thus supporting any agreement reached; the ethics of promises and future contracts is quite a mess, and I shall not address it here). This similar procedure may be applied, I believe, to all further questions. One case I would like to address, however, is theft (which may be generalized, mutatis mutandis, to other violences). The thief obviously has no right to the proceeds gained thereby, for they are not a natural consequence of his actions. Meanwhile, the goods gained thereby were the natural consequence of the actions of their owner, assuming his title to be just; therefore, he retains title, and the goods remain his. Similar reasoning will, I believe, show that one can similarly derive a right of recompense, although I shall not detail that here.

Thus far, I have only considered freedom with respect to external sources, yet perhaps there is also compulsion from within. Compelling someone to practice the piano for two hours a day clearly violates his freedom. What if, however, he wishes to become better, and disciplines himself to do so? His freedom is superficially restricted, in that he denies himself other options. But in the same manner, any action restricts one’s freedom, in that it entails not doing whatever else one might be able to do at the time. Thus, the pianist remains free.

This may seem trivial on its own, but bears importantly on Christian freedom. Christian freedom is of two types, which I shall call liberating and restricting. The first is the freedom from “slavery to sin” that enables us to choose to act rightly, which by definition is what is most in our interests. Restricting freedom, on the other hand, is the self-discipline to actually follow that course once it becomes available. These concepts must, I think, remain separate. Liberating freedom is external, for self-imposed bondage is not properly termed such. Restricting freedom, on the other hand, must be internal, for imposed action is amoral. Even though freedom only has value insofar as it allows us to follow a better course of action, it does not follow that “forcing someone to be free” by using compulsion to force him to adopt that course of action increases his freedom; quite the contrary, it restricts his freedom.

1 The necessity of this qualification is evident from the case of famine. If one proclaims a right to the availability of a course of action that satisfies one’s hunger, then a purely natural famine would violate people’s rights (as such a right could not be satisfied for all). By definition, rights are against men, not nature; therefore, the right is invalid.

2 Of course, not all theories do so: see Sen. Reid’s rather entertaining argument that taxes are voluntary at http://eyeam4anarchy.blogspot.com/2009/02/are-taxes-really-voluntary.html. On the other hand, I see no reason to consider his theory sensible.

3 Further, given that one has no reasonable expectation of material freedom, given its dependence on the actions of others, one should care only for doing what is right, not getting what is due.

Circular Reasoning

I used to think that circular reasoning should be one of the rarest of fallacies. Would not someone notice that their argument demands the conclusion as a premise? Since then, two things have surprised me: the prevalence of circular reasoning, and the difficulty of its definition. Here I shall restrict myself to practical reasoning,1 under the definition of “using a premise not granted by one’s opponent to demonstrate to him the falsity of his beliefs”. Thus, while a circular argument may be valid, it has (or should have) no persuasive value.

One of the most pervasive examples I have encountered is Hume’s argument against miracles: because a miracle is, by definition, a violation of natural laws, it is of infinitely low probability, and so any explanation consistent with natural laws is of higher probability. Therefore, no report of a miracle can prove their existence, for it is always better explained without resort to miracles. This argument seems to have dominated secular understandings of miracles, but does it actually prove anything? Note the hidden premise: that all violations of natural laws are of infinitely low probability. I, for one, do not grant the premise, and neither, I suspect, do any who believe in miracles (except, perhaps, for Kierkegaard and his followers, but I can make little sense of his intellectual system and thus cannot speak for him): I hold that divine action is unconstrained by the principles that God has chosen to follow in most circumstances, and thus that miracles are not of infinitely low probability. Since the argument thus depends on proof that miracles are of infinitely low probability (which, rather ironically, science cannot demonstrate), it cannot be used independently to discredit reports of miracles.2

The other place I often see such circular reasoning used is in maintaining the necessity of government. I frequently encounter arguments that the credit crisis proves the necessity of government restraints, or that the thalidomide tragedy proves the necessity of the FDA. In neither case was the market free; the banks were regulated in the first case; the FDA existed in the second. Therefore, for the arguments to validly reject the perfectly free market, one must accept the unstated premise that all regulations reduce the probability of problems. Brought to light, this premise should seem absurd to all people, for it is utterly implausible that all government regulation, whatever its form or intention, is beneficial. But even granting that those who make the argument accept that premise, I doubt that very many supporters of the free market would accept it. I would explain the matter differently: each crisis occurred because the government regulation was insufficient (possibly necessarily so) to avert the problem, but was sufficient to cause people to forsake their own responsibilities of monitoring risks. Thus, I would argue the matter in reverse: the existence of such crisis under a regulatory regime indicates the difficulty (although not, prima facie, the impossibility) of effective regulation. These examples only prove the need for government regulation if one assumes its superior effectiveness, which those who would controvert its need would almost certainly deny.

I must note that use of circular arguments (under this definition) is not itself irrational; I think that all people do and even must use them continually to themselves to address challenges to their position. If any challenge to my belief required me to reprove my positions a nihilo, I would never accomplish anything else(actually, I would never accomplish even this). Thus, it is perfectly reasonable to respond to an argument against one’s position with an argument drawing on the position as a premise, thus maintaining the consistency of one’s beliefs even in the face of the counterargument.3 However, what suffices to maintain one’s own position against a counter-argument does not necessarily suffice as an argument against another’s position. Proper form in an informal debate requires basing all of one’s arguments on premises that one’s opponent accepts. If neither can do so, then the debate must remain inconclusive. Above all, one must not declare irrational one who does not agree with one’s conclusions because he does not believe in one’s premises; unless one can object to his premises on some lower common ground,4 one cannot question the rationality or truth of his opinions. However, this seems to be the form of almost all modern debate (from both sides, I must note; this is why I cannot stand Coulter), particularly in religion and politics. It is possible to demonstrate that miracles are impossible, if one assumes that they are impossible; but what does this prove concerning the rationality of those who hold them to be possible?

1 Circular reasoning has no firm place in classical two-truth value logic, most formulations being trivial or proscribing all valid arguments.

2 Does it even prove that much? It seems to me that Aristotle’s dictum that an impossible plausibility is preferable to a plausible possibility applies to life, not merely poetry. Take the example of Christ’s resurrection: to admit the possibility of resurrection seems less momentous than to admit that so many people would lie with expectation of harm. On the other hand, I must acknowledge that this argument is, itself, somewhat circular, for to admit the possibility of resurrection would be far more momentous to an atheist.

3 However, one must be careful to avoid using one’s position to reject the argument: I believe A, P implies not A, therefore not P. Instead, one must either disprove P without reference to A or prove that P is consistent with A. The statist who holds that state regulation of drugs is beneficial can, while maintaining local rationality, state that failures of state regulation do not disprove its utility because it might be worse without the state control (to dispute which would be to commit the nirvana fallacy). However, if it is then demonstrated that conditions would have been better without the state agency, he may not say that because that contradicts his belief in the state system, the demonstration must be false; he must address the demonstration itself.

4 Which will, I believe, always exist, but may be very difficult to find. Of course, one could merely deny all points of agreement to avoid “losing” a debate, but one hopes that one who does so would still question his beliefs. I would also dispute that he has really avoided losing, for the only way to lose a discussion is to fail to aspire to the truth.

Social Contract Theories of the State’s Justification

I have lately been arguing primarily over the expediency of the state, which is not, I think, where the decision among governmental systems is best made. Precise determination of the actual results of a system of governance is impossible, relying as it does on indeterminate human action, and even approximate prediction is rather difficult. By comparison, ethical determination is determinate, and easier. Consequently, I believe that we ought to compare systems first on account of their ethical rectitude.1

Here I work from the assumption that individuals have a right to their possessions and body, which implies that they also have a right to seek recompense for violations of their rights unless they alienate that right to another. Justifications of the state that deny this assumption I shall treat elsewhere.

The state I here define as an institution that maintains a coercive monopoly of compensatory justice (as opposed to a de facto monopoly arising from the unlikely event that all people turn to the same agency for protection). While many entities that meet this definition would not be considered just governments, I doubt that any would consider a state any institution that does not prohibit competition. In consequence of this definition being underspecified, I accept the burden of proving that no contractual theory can justify any states so defined. I might note in passing that nearly all states tax their citizens and most aggress against rights in many other ways; however, as social contract theory cannot justify any violation of rights, I shall consider only the minimal definition above.

In order to justify the state’s coercive monopoly in light of the above assumption, one must explain how the right transfers from the individual to the state. The recognized method of alienation of a right to another in free society is the contract; thus, all theories that I have encountered in defense of the state within a negative rights framework posit some sort of contract between the individual and the state whereby the individual alienates his right to compensatory justice to the state (the one seeming exception, IV below, does not actually accept individual rights, but as it calls itself a social contract theory and seems popular among American traditionalists who claim to recognize rights, I shall address it here).2 I shall thus consider the four theories I have encountered; if I have overlooked any that is differentiable from those following in more than name, please bring it to my attention.

I. Explicit social contract

Explicit social contract theory posits that documents such as the US Constitution constitute a contract between the people and the state, and thus that states are by contract the exclusive agents of the citizens. While such an explicit contract would justify a state, this theory cannot justify extant states for three reasons. The first is that many states generally considered legitimate have no such document (such as that of the United Kingdom). Thus, at best this theory could justify only a subset of even democratic states. The second problem is that no contract binds the descendents of the signatories.3 Consequently, for the Constitution to be binding on those not alive at its initial adoption by explicit social contract theory, they would need to somehow explicitly adopt it. Even if one believes that those who do not object to it accept it by implication (“silence is consent”), explicit social contract theory must hold that if I repudiate the state as my agent, my alienation of my rights to it ceases. Thirdly, explicit social contract theory fails to account for the fact that no Constitution has, to my knowledge, been adopted unanimously. Therefore, were the state justified by an explicit contract, it would not bind those who did not approve of its initial ratification; the state’s prohibition of their pursuit of compensatory justice by other means is unjust.

II. Majoritarian social contract

Majoritarian social contract theory attempts to solve this third problem by positing that the majority in a nation have a right to bind the minority. I would first note that this is incompatible with any theory of individual rights, except if one arbitrarily exempts certain rights from the domain of the majoritarian contract (thus positing a distinction between societal rights, at the whim of the majority, and personal rights): if the majority may justly violate the rights of the minority, can the minority be said to have any rights at all? Also, this is not actually a theory of contract, for where else is a contract binding on those not signatories? If two in a group of three decide to despoil the third, is this not robbery? Is it not also if the majority of those in a neighborhood do the same? Why, then, does a different rule apply to the nation? How does the decision of some part of the population to pursue justice in a certain manner compel me to do the same? The justification of democratic elements in a state rests on the legitimacy of the state as a whole; founding the legitimacy of the state on majoritarianism then begs the question unless one posits some principle that says that “the majority of those forming a ‘nation’, but not those forming a neighborhood, nor those in only incidental relationship, have a right to bind the minority to do the bidding of the majority.” And what proof will be raised of this notion, aside from its necessity in justifying the state? In ethical determinations, let us accept only self-evident principles and those derivable therefrom; I hardly see how majoritarianism is self-evident. Two men may no more be justly despoiled by the two than by the one; why should the principle change when the numbers rise to the millions? Finally, majoritarian social contract theory cannot justify any deviations from democracy, thus invalidating the US Constitution (for although it binds individuals, its ratification did not grant votes to the states in proportion to population), and it still cannot explain how those two centuries dead bind me today.

III. Implicit social contract

Implicit social contract theory, on the other hand, attempts to explain the first two problems with explicit social contract theory, the occasional lack of explicit founding documents and the absence of intergenerational binding, by positing that by residing in a nation one consents to its government. This, however, requires a belief that I find difficult to grant. One may make continuance upon his property subject to any conditions he might choose, but his neighbor has no right to do the same. If one should say to his neighbor that if that neighbor does not pay a certain sum per month he would extract it by force, unless the neighbor moves away, it would be robbery; the fact that the neighbor “consents” to the force by refusing to move makes no difference. Therefore, if the government should tell me that my continuance within its borders is conditional on my alienating my right to pursue justice on my own account to it, it is ultimately asserting that it, not I, holds the allodial title to my land, and I hold it as a tenant at its pleasure. How, I must ask, did it acquire this title? Not originally; one appropriates title to land by mixing it with one’s labour. When did the state stir itself to help the settlers who tamed the land? When they left, it forced them to purchase the land, to which it had contributed nothing; when they produced, it burdened them with taxes, taking from them what they earned without its aid; when they prospered, it burdened them with its regulatory fist, lest it be thought that prosperity outside the control of the state is possible. By what right, then, does the state claim the land? Perhaps it wishes to claim that it purchased most of the land from other nations. And when did those other countries acquire the ultimate right to land developed by others? How do the petty transactions of the tyrants place obligations upon me? Perhaps it wishes to claim that the allodial title was transferred at the ratification of the Constitution. But where does the Constitution say that those who consent to it sacrifice thereby the true ownership of their property? If that is the case, then our government is founded upon sheer fraud and theft. And what of those nations that have no defined beginning, no constitution? How do the actions of the warlords of centuries past bind the English citizen of today?4 Furthermore, I again raise the point that not all consented to the Constitution. How does one’s rejection of a contract bind one to its terms? One could, of course, add to implicit social contract theory the argument of majoritarian theory, that the majority, in their consent, rightfully despoiled the objecting minority. But need I say anything in reply? The government claims to be under the laws. What law permits the two to despoil the one? Furthermore, all varieties of implicit social contract prove too much. If my residence in the US justifies its government’s power over me, then surely residence in a tyranny justifies the actions of its government. Who has so little heart as to tell the starving, oppressed peasant that he invites his hardship upon himself by his continued residence? But one might say that his master compels his residence, while our state does not. But where can I go, to be free of the state? Everywhere I turn the oligarchs have claimed sovereignty. What refuge offers me an actual alternative? Choice implies no consent if all the options are unjust. Can the thief justly claim that because his victim freely chose to part with his money rather than his life he parted with his money voluntarily, and thus that the thief’s action was not unjust?

IV. Nonconsensual social contract

This is not really a theory of social contract, for a contract achieves nothing without consent. Glossing utilitarianism with the terminology of freedom does not justify the transaction. However, I shall address this theory here, in accordance with its self-proclaimed identification. The theory is that the state is a necessary evil, for rights will be violated whatever happens; a state that prevents violations of rights greater than those that it causes is justified.5 It ought to immediately strike the reader that, while phrased in the language of rights, this theory is in fact about no such thing. If I have a right to something it means not that other people must promote it (the liberal’s error), but respect it. A system of negative rights makes me responsible for the harm one does to others, but not done by others. Therefore, if one wrongs one man to help another, the wrongs for which he is responsible increase, while the reduction is in wrongs for which he is not responsible. For this theory to work, it must deny individual rights, and instead proclaim broad societal goals for which all are responsible. It then becomes nonsensical for anyone to claim his individual right to the proceeds of his labor, or to his life itself, for all is subsumed by the societal interest. But let me leave aside that argument, for I neither wish nor need to rest on the assumption of individual rights here. This justification rests on a calculation impossible in both practice and theory, for at what ratio may the state exchange life for property, or vice versa? How much may it steal from its citizens, if it should show a life saved at the end? How many may it kill to prevent a theft? Individuals may make decisions were no exchange ratio exists, for they may subjectively weigh two states of the world and choose the one which they prefer, but the state’s justification must be objective, not subjective, and thus he who wishes to justify the state on such utilitarian grounds must identify and justify his equations. Furthermore, since no such equations have been proposed, how can we claim any state as legitimate by this theory? It serves at best as a hypothetical theory that might justify some future state, but which can do nothing at present. Furthermore, theft by the US government exceeds theft by its citizens by a ratio of 150:1. Even if the demise of the government increased private theft one hundredfold, theft would diminish by one third! The expediency of the present US government is far from obvious. Finally, why is this provision, like that of majoritarianism, restricted to the state? Why is the thief who steals to feed the starving culpable, but the state not? Why do the actions of millions follow different rules than those of individuals? Furthermore, let us note that the state prohibits other means of obtaining justice. When has a monopoly ever been found to provide more of its product, and of a better quality? Yet the state establishes such a monopoly. Can it be claimed that the establishment of a monopoly on the protection of rights better protects them?

V. Generalization

I may generalize my observations: If individuals have a right to pursue justice on their own behalf, then that right, by its very definition, be taken by another without the consent of the individual. Thus, a social contract theory is only tenable insofar as it is also a private contract theory, in which each individual chooses for himself whether and to whom he may alienate his rights.6 Even if all men at some time decided to alienate their rights to a certain agency, creating a de facto monopoly, they would not be justified in preventing the creation of a new agency, or in forcing a newcomer to join the old.7 Thus, by simply positing that a contract that alienates one’s right to pursue compensatory justice to some agency must follow the same standards as any other contract, we arrive at anarcho-capitalism, with free choice of security agencies. I am a contractarian, and for that reason I find myself compelled to by an anarchist.

1 I would then apply the consistency principle and say that what is right cannot be inexpedient, although acceptance of this principle is unnecessary for acceptance of the primacy of ethics. More specifically, the consistency principle tells us that the practical and ethical determinations are both solutions to the same problem, and that, as an intuitive rule of thought, we should use the simplest approach (exempting some pedantic purpose). Actually, however, my argument is even stronger for someone who accepts the primacy of ethics but rejects the consistency principle, because then the solutions need not align and a determination of expediency is neither necessary nor sufficient (nor even relevant) for determining the proper course of action.

2 Strictly speaking, the contract would not be between the individual and the state because the state is formed by the contract, and therefore its existence is subsequent to the contract and it cannot be a signatory to it (unless one wishes to posit a powerless state predecessing the contract and then being granted its powers by the contract, but that seems counterintuitive). Thus, strictly, the contract should be among the citizens alone. However, few of these theories make sense viewed that way, for while a contract with one party being a group not all of whom consent to the contract may be plausible to some, I cannot see how a valid contract to which one signatory does not assent is plausible in the least.

3 Note that although debts may be claimed from estates, they may not be claimed from the possessions of the heirs.

4 I must here note that feudalism is legitimate (those who hold any true social contract theory cannot consistently claim any form of government lawfully contracted to be unjust); however, the feudal owners of the land in times past acquired the land over which they claimed dominion by theft, and thus they were not true owners of the property, and their nominal feudalism was invalid.

5 Alternatively, one may add the qualification that the government must minimize violations of rights to the extent possible without compromising its protections of rights, but it makes little difference. Can any right justify the slightest wrong?

6 Therein lies the distinction between the inability of choice among nations to justify the state and the ability of choice among protection agencies to justify the market: only in the latter case is there an option of abstention. No man has a right to purchase any product, but all men have a right to refrain.

7 Some might object that in this case the agency would probably not permit the split. I must agree (although I think the presence of such a de facto monopoly agency even less probable). However, even if this does occur, then we have again a coercive monopoly over the provision of justice–a state. If the possibility that anarchy would give rise to a state is the strongest argument against anarchy, then surely the certainty of a state would be worse?

Anarchy and National Defense

One of the most pressing difficulties for stateless government would seem to be national defense. While police protection can be well internalized, being primarily a service to individuals, businesses, or neighborhoods, defense against foreign enemies yields non-rival and non-excludable benefits to all, and thus would seemingly encounter a severe public-goods problem. But, in associating national defense with a military, I believe that we may be equivocating. If the nation can be made secure without the need for a military, there is no defense problem with anarchy.

I can see two reasons why one nation might invade another: preemption of threat, and ambition for land or resources. The first reason, preemption,1 need concern us little. Preemption is, by nature, against a threat; a nation that does not threaten others need not fear preemptive action against itself. If a nation has too weak an organized military to defend itself, it cannot have enough to pose a threat to another, and need not fear preemption; if it has a strong military, then concerns about its military weakness are unfounded. Therefore, in no case is defense against preemption a unique concern for an anarchal nation.

Thus, we are left with defense against territorial expansion. In this case, the aggressing nation does so with expectation of benefit; an expected cost greater than the expected benefit would suffice to deter the threat, even if it could not avert suffering if the attack were made.1 Furthermore, even conventional national defense does not prevent harms; consider England during WWII. Thus, all increases in the cost of a successful invasion equally serve national defense.

In considering this, I believe that Machiavelli’s argument from Ch. IV of The Prince is relevant: “[H]e who considers both of these states will recognize great difficulties in seizing the state of the Turk, but, once it is conquered, great ease in holding it…. But it is impossible to hold with such tranquillity states constituted like that of France. Hence arose those frequent rebellions against the Romans in Spain, France, and Greece, owing to the many principalities there were in these states, of which, as long as the memory of them endured, the Romans always held an insecure possession;” Although a decentralized state may not erect such a hard outer defense, and thus may be easier to defeat in pitched battle, it leaves no centralized mechanism with which to seize control of the country. Look at the Vichy government of France during WWII: once the military fell, the country on the whole (neglecting isolated private resistance, which would be if anything greater were occupied nation originally anarchist) served the purposes of the conquerors in subduing the country. If a decentralized nation is difficult to govern, how much more one with no institutions of government, with its people accustomed to freedom?

Iraq, too, presents a good example. Hussein’s regime should be the model of those who look to government for national defense: a centralized state lacking democratic hindrances to its warmaking and with a high military budget.2 Yet each time the United States invaded, the demoralized military of Iraq crumbled. Notably, the last time, when we sought to gain control of the government (rather than mere military defeat), a private resistance arose which we have not yet quelled, despite the support of Iraq’s government and much of the population. How much more problematic would be an invasion of a nation with no legitimacy and no domestic support on the side of the conquerors? Thus, it seems to me that far more effective at deterring invasion than a conventional military would be the assurance that an invader would have to suppress the population man by man, without support from the local state. A privately funded military is, I admit, difficult to conceive; but we must remember that a military is but a scarcely sufficient and wholly unnecessary means of achieving national defense, which could be as well or better achieved by other means under anarchy.

Thus, I think that national defense under anarchy would not consist of multi-billion dollar jets and a vast military-industrial complex, but rather the free ownership of weapons and the reluctance of free men to submit to tyrants. Even a committed minority of the population could make invasion prohibitively costly. Such a defense would be far less costly, with respect to both resources and rights. Gone would be the annual 650 billion dollar drain on our nation’s resources. Gone would be the ever-present excuse for violations of our rights that “wartime necessity” demands them. And, of course, if a group of people thought that an aircraft carrier would be a good thing to have, they would be free to fund one–but with their own money, and not, as at present, their neighbors’.

1 Exactly the same justification as for imprisonment of criminals: imprisonment does not seek to alleviate the original wrong, but seeks to alter the costs considered by the prospective criminal in order that he might not commit the crime. That imprisonment does not prevent the crime from occurring if it does occur need not influence our practical analysis of its effectiveness (although from a consideration of justice, I think that imprisonment and such defense as I describe are wholly incommensurate).

2 National defense being considerably more difficult in a democracy or under Constitutional government, why do not those who raise the objection to anarchy also raise it against limited government as a whole?