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Tuesday, May 30, 2006
Toward A New Libertarianism Part 7: An Important Digression
"Just yesterday, I saw an old lady tottering down the street when a young man leaped at her, knocked her down, rolled her along the pavement and slapped her from head to toe with both hands.""My God! I hope the cops caught him. That sort of thing should get life without parole."
"Wait, did I mention that her clothes were on fire?"
Your Curmudgeon has been flailed a few times for his temerity in proclaiming, as he's about to do once again, that:
Libertarians of the natural-rights scholium deem that to be apostasy. "What processes?" they demand. "Why those and not others? Established how? With what procedural constraints? And what if they countervail a just result?"
These are questions of great import, which your Curmudgeon will treat with due respect. He has to, because there's simply no evading the importance of the dichotomy they pinpoint:
There's no sort of legal thinking that embraces the working-out of a judicial process, constitutionally sanctioned and accurately conducted, as justice absolute and unquestionable. But legal minds are unanimous that judicial processes are all-important, that they must be meticulously specified and faithfully followed, whatever the result. The reason is simple: it's all we can do.
Justice in a particular situation is the maintenance of the recognized rights of all the persons in that situation. For example, if Smith attacks Jones or his property, and the attack is an initiating act -- that is, the attack is not a response to some prior attack by Jones upon Smith, Smith's property, or some third party in Smith's care -- then justice would be the restoration of Jones to his pre-attack state, inclusive of any costs he incurred in pressing his claim. But how often are matters that clear?
The justice of a judicial outcome depends entirely on the facts of the matter before, during, and after the commission of the act being judged. When there's a single version of the facts, undisputed by either Smith or Jones -- it doesn't happen often, but it's not unknown -- then there's some possibility of an outcome that's absolutely and reliably just. But if either one maintains that the other's narrative is false, or that facts other than those presented are relevant to the controversy, justice becomes elusive. One can never be sure that whatever judgment is finally reached was based on the relevant facts, all the relevant facts, and nothing but the relevant facts.
The Anglo-American judicial system evolved out of the recognition that justice is elusive. In a world of fallible men who sometimes lie, and evidence that's often misinterpreted and never complete, no conceivable system can guarantee it. But of the various approaches to securing justice, the adversary trial, conducted by an impartial judge before a jury of private, disinterested citizens, seems to have the best record. So that procedure was made the standard for seeking justice in criminal cases, and in all civil suits where the amount in controversy exceeds twenty dollars -- the original dollar value of a Troy ounce of gold.
It takes something approaching Godlike arrogance to imagine that any conception of rights, or any approach to their defense, would always yield an exactly just result. Granted, some deeds are so egregious that they're universally recognized as wrong, regardless of the surrounding circumstances -- but those circumstances could be all-important in determining what sort of restitution or retribution would constitute exact justice.
Who gets to define such processes? That's a tough one. Disagreement over it has toppled hundreds, perhaps thousands of governments. But it's nevertheless the case that some set of processes must be established as accepted judicial procedure. Yet the establishment of judicial procedure is only the final step in establishing a scheme for the defense of rights as they're generally understood. The meta-process that must produce an acceptable -- and accepted -- judicial procedure must also decide many other things, including:
- Who shall make laws;
- On what subjects laws may be made;
- Who shall enforce those laws;
- What limits the enforcers must observe;
- Who shall determine when those laws have been broken, and by whom, and to what effect;
- Who shall determine when those laws are themselves invalid.
Once again, we confront constitutionalism: the demand that there be a Supreme Law to which all other laws, and procedures for making, enforcing, and judging under them, must conform. The alternative is private justice, which inherently implies the possibility of wars between competing courts, just as there are wars between competing nations when the issues in a controversy rise sufficiently high.
Some brilliant scholars have addressed the possibility of justice without public institutions. Bruce Benson, of the Pacific Policy Research Institute, has written a landmark tome on the subject titled The Enterprise Of Law. David Friedman has asked whether systems of law couldn't be produced and sold on the market, just as other informational goods routinely are. The answers are not final, but for the present, the great majority of men are simply unwilling to trust the maintenance of justice and the punishment of miscreants to private institutions. If there's a theoretical reason why private justice will always be unacceptable, or why it's inherently superior to public justice given the right arrangements, that reason hasn't emerged yet.
Libertarians' problem, as persons committed to justice, is therefore quite simple: even if we're sure we understand it in the abstract, we're incapable of ascertaining it beyond all dispute in specific cases. There have to be rules (laws), and umpires (judges), and some scheme by which judgments are reached (trials). More, we have to agree on how all of that is to be done.
We must bend to the necessity for well-specified processes, and for a meta-process by which they're certified and, if necessary, altered. In other words, we must accept that there's a need for the State. The constitutionally constrained State.
For the present, anarchism is unsustainable. Pure natural rights theory, and results derivable from it and nothing else, will not suffice. In some far more enlightened future, that might not be the case, but the present is what we have.
But as Ron Popeil would say, wait: there's more. Your Curmudgeon recently realized that the traditional conceptions of the State are seriously flawed. They neglect more than they respect.
The conventional conception of the State is as a geographically delimited entity with the ability to impose its will upon those in its demesne. All of that is relevant. But States are delimited in two other ways, as well:
- Time,
- Topic.
The time delimitation is obvious, once it's noticed. Governments come and go. The overwhelming majority of the governments that have existed on Earth are gone and long gone. Even here in the United States, which has maintained governmental process continuity for more than two centuries, we've had alternations of power and incidents for which the rulers of the time were forced out of power. So governments are no exception to the "and this, too, shall pass away" recognition of the supreme power of Time.
The topic delimitation is equally obvious, once it's understood. At this time, governments in these United States are more powerful than they've ever been...but there are still topics into which they dare not intrude, for fear of a violent revolution. Religion, for example, is currently untouchable. Despite historical precedent -- several states had established churches up to the 1830s -- no state government, however determined, would be capable of ramming an established religion down its people's throats -- and not because of the Bill of Rights. The people wouldn't have it; they'd march on the capital in a body. Presently, the legislators and executives who'd dared to suggest such a thing would be dangling from lampposts. So clearly it has sometimes been the case that governments have forfeited areas of authority they'd previously held. The regulation of sexual conduct is another example. But contrariwise, governments can and do expand their authority into topics where they'd previously had none. For example, our venerated freedom of speech has recently been circumscribed in several ways, most conspicuous being the McCain-Feingold Bipartisan Campaign Reform Act...and despite the protections of the First Amendment, the law has stood, and there have been no significant revolts against it.
Just as a swatch of gray from a pointillist painting is revealed by the magnifying glass to be interleaved dots of black and white, the political landscape, when examined closely, is revealed to be a mixture of space-bound, time-bound, topic-bound anarchies and space-bound, time-bound, topic-bound totalitarianisms.
It cannot be otherwise. Upon the instant an unopposable preponderance of persons decides that people must be compelled to do X or punished for having done Y, the State pops into existence. Equally, when that preponderance decides that it will not abide coercion or constraint within a certain area, on a particular subject, the State is expelled.
The State is a fleeting, shapeshifting, elusive construct.
So is its opposite, political freedom.
More anon.
Comments
First Kim DuToit puts pictures of Oprah on his website. Then you mention Ron Popeil in your daily screed. It’s the apocalypse, I tell you.
Posted by og on 05/30/2006 at 05:35 PMYou’ve been bandying this phrase about fear of violent revolution as if you thought there was much chance of it. Are you aware how much it’s come to sound like Winston Smith’s “our hope lies with the proles?”
Posted by Pascal Fervor on 05/30/2006 at 08:02 PM
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