Tacit Consent Through Residence

It can only be somewhat plausible on the local level, where the "choice situation" presents one with tens of thousands of cities to choose from as his home.

Socrates, therefore, in Crito, unbeknownst to himself, was right in linking consent to the "laws" with the fact that the city of Athens allowed free emigration.

The “Consent” Theory of Government

Isn't it obvious that we can't say that a (good) government is legitimate if and only if I have consented to it, because of the nature of public goods?

I can withhold consent from Sweets, Inc.'s claim on my money by refusing to buy its donuts. However, I cannot say that I refuse to benefit from the government's deterrence of crimes and thereby avoid taxes, because I can't be excluded from enjoying this good.

Simmons points out:

How is the consent theorist to avoid the charge that if unanimous consent is required for legitimacy, no government will be legitimate?

The answer, for Hobbes, Locke, and Rousseau, is found in the notion of "tacit consent through residence." For if mere residence can be taken to be a sign of consent, then unanimous consent is guaranteed.

This, however, seems to show more than the consent theorist wanted, for it seems to show not just that some governments are after all legitimate, but rather that all governments are legitimate. (73)

If the legitimacy of Sweets, Inc. depended on everybody's in some area wanting its products, then neither it nor any other private business could ever get off the ground. If, on the other hand, Sweets had the right to collect money from anyone who happened to reside near its headquarters, then Sweets would cease to be a business and become a tyrannical state. Clearly, there is a fundamental difference between business and government.

If consent to being ruled by a state can be given by living on the territory controlled by the state or using its roads or some such, what would constitute refusing to consent? The world has been partitioned between multiple states, and I have to live somewhere. Again, I can't help using the roads. How can I withdraw consent, and what would that mean?

For example, is the government immediately to be dissolved if even one person refuses to consent to it? If the majority refuses to consent? If the social elite?

The consent of the governed tradition in this crude a form seems absurd. Some sense can be made of it is by distinguishing between the government's power and its might. My withdrawal of consent undermines the government's might but not straightaway its power.

Utilitarianism and Political Obligations

Again, utilitarianism rightly understood is addressed to the lawgivers or to the people in their capacity as voters. For example, the criminal code should according to utilitarianism be so structured as to:

  1. Maximize the benefits to the citizens from deterrence of crime;
  2. Minimize the pain to the criminals from their punishment;
  3. Minimize the costs of enforcing the law.

These goals of course conflict, and an optimum should be properly calculated.

But once the law has been laid down, a citizen is told to seek his own happiness as he sees fit and pay no heed to general welfare or total utility.

This implies that utilitarianism voices no opinion as to whether a man should seek his happiness by obeying the law or by disobeying.

Thus, utilitarianism does not generate any political obligations.

On the Meaning of “Government”

A. John Simmons considers an objection from Hanna Pitkin that "terms like 'authority,' 'law,' and 'government' are grammatically or conceptually tied to 'obligation,' in the same way that 'promise' is." As Pitkin writes, "it is part of the concept, the meaning of 'authority,' that those subject to it are required to obey, that it has a right to command." (39)

This is a confused mess. At the very most, the term "government" ceases to have a reference, when most people actually refuse to obey. In such a case, a government may indeed fall. Even that is not 100% certain, since such an unpopular government may be able to endure in the very short term through an attempt at repression.

There is no way to get from that to the idea that I personally right now have a duty to obey (which government?); nor that the term "government" ceases to have a meaning if I or whoever else decides to disobey some or another government.

The fact that today I may have exceeded the posted speed limit once or twice does not entail that I and Pitkin can suddenly not discuss problems of political philosophy without hopelessly equivocating on the word "government."

Reducing Drug Abuse

I like how Thornton mentions that people became "impatient" with the speed at which society improved and decided to force improvement by using the state.

But as Mises argues, capitalism (and peace, as Thornton adds), "deproletarianizes all strata of society. It raises the standard of living of the masses of the manual workers to such a height that they too turn into 'bourgeois' and think and act like well-to-do burghers." (HA, 669) Let us trust in this supremely effective civilizing process to diminish stupid and imprudent abuse of drugs rather than the state.

There will always be even under laissez-faire the underclass, i.e., a class of "lumpen-proles." But it is tiny and becomes ever smaller: the payoffs to self-control increase with economic improvement. The opportunity cost of messing oneself up with hard drugs is not enjoying all the legitimate goods the market has to offer. Becoming an addict or destroying one's health or losing one's savings are unhappy actions.

Hence, reality itself deters abuse.

It won't do to hurt society so enormously as the prohibitionists have done in order futilely to try to save these aberrations from themselves.

What Sort of Good Is Heroin?

If it's a regular old good like potatoes or pens, then its prohibition is not justified. Why should consumers be prevented from buying whatever pleasures they see fit?

If it's a peculiar good in that it harms the user gravely, then having it mutate into a super-potent super-rotten version on the black market is the exact opposite of what we want.

Again, the higher potency and lower quality (because that's one way to decrease costs and prices of a prohibited substance) of heroin would be a deterrent to regular consumers if heroin were a regular good. But they are an attraction to addicts and those who use it immoderately and imprudently if heroin is an "evil" good.

As a result, it is at least unclear that more people would ruin their lives with heroin abuse under freedom than they do nowadays under prohibition.

Drug Prisoners Are a Cost

The people serving prison sentences for non-violent drug offenses are not some demons locked in hell and forgotten.

They are not degenerate drug fiends, as if some undead filth, whom we, as if in a video game, are trying to wipe off the face of the earth.

From a utilitarian perspective, they remain full-fledged citizens whose welfare counts 100% in the total that we as lawgivers are trying to maximize.

Their great suffering cannot be neglected in our calculations. If properly taken into account, I think it alone condemns the drug prohibition.

Drugs: Legalize and…

... not tax. Legalize and not regulate. Just legalize and butt out of the new free market completely.

Seized Drugs

When law enforcement intercepts and captures drug shipments, they create pure waste. This is because the government simply destroys these drugs. But they represent million of dollars worth of capital goods and human labor spent on producing them. These factors of production are revealed to have been expended in vain.

Why Drug Prohibition Increases Violent Crime

Let's consider private crime first.

1. Prohibition raises the prices of drugs. Non-addicts, both poor and not, will as the first effect lessen their consumption. But poor addicts will find their real wages reduced greatly and may choose to engage in criminal activities, such as robbery.

2. The costs of doing business to a midlevel drug boss consist not inconsiderably in the risk of being imprisoned by the state or killed by rivals or underlings. This cost is largely the same whether the drug dealer controls a larger territory or smaller. (In addition, a business cannot evenly rotate for long: it ether grows or shrinks. Our drug dealer needs to go up, if he wants to stay ahead and stay alive.) Since the costs are fixed, the profits can be dramatically enhanced by a capture of a neighboring drug lord's territory.

3. Both users and dealers of drugs are already outlaws as far as the state is concerned; the step from a non-violent outlaw to violent one is much smaller than from a respected businessman to violent outlaw, so the people's moral restraint is weakened.

4. The state's role here is not to protect transactions between drug dealers and their customers but on the contrary, to disrupt them. One dealer cannot sue another one in a court of law and have the executive branch of the government enforce the verdict. Enforcement is "private," which leads to greater violence overall.

5. In the illegal drug industry, creative advance is limited. Innovation is deterred. (1) There are high costs or even impossibility of advertising. (2) There is the difficulty of finding decent scientists who would agree to work illegally. (3) There is little quality control: I cannot look for customer reviews of drug retailers and their goods on the web. (4) The business favors highly concentrated and very potent drugs, because they are easier to smuggle, but those are hardly the most fun or safe drugs. (5) I cannot order online but must shop at the local market. Since prohibition makes it harder for drug producers to compete with each other for customers by continuously offering to the them better and cheaper products, it becomes so much more lucrative to go to war.

Now to government crimes.

1. Both drug producers and consumers are essentially peaceful individuals who hurt nobody. When the state imprisons then, it commits a grave injustice.

2. The money used to finance drug enforcement activities is transferred from enforcement of property crimes; so the latter increase via being deterred less efficiently.

3. There is more corruption of government officials under prohibition.

4. Taxes are raised in order to pay for drug enforcement, which is a crime, insofar as taxation is theft.

5. Asset forfeiture, nighttime police raids, draconian punishments are monstrous violations of civil rights.

As an unholy combination of the two, there is lessened respect for the law as a whole, since anti-drug laws are so obviously wicked. Some people may come cynically to despise all law -- even good law, and turn to crime for that reason.

Reducing Alcoholism

Mark Thornton's first few pages in Economics of Prohibition suggest that one way to lower alcohol consumption is to introduce "new and greater quantities of recreational and leisure activities as substitutes for alcohol." (28) If, via economic progress, life is so much fun for an average worker that the pleasures of drunkenness pale in comparison with other, less dangerous, enjoyments, then heavy drinking is sure to decline.

Rescuing: Conclusion

I leave Cohen with the following thought. I have suggested that man is a capitalist by naturally being in control of his human capital -- inborn talents, nurseries of virtue, and suchlike; and an entrepreneur who by himself directs his management of that capital.

Capital, including human capital, does not beget profit; capital, left to itself, decays and begets only loss; the greater the amount of capital, the greater the loss. Again, the greater the human potential unrealized or even perverted toward evil, the greater the loss and shame.

I have likened one's developing his talents to capital gains and the happiness from converting the use of that capital through labor into pleasure to dividends.

Now justification implies some sort of merit for which a reward is due. Can one merit a proportionally greater reward for shepherding his relatively greater talents toward a successful career? The greater the initial endowments, the higher the potential for both joy and sorrow; both the higher and the lower one can go. Thomas Morris even asserts that "the smarter you are, the more you can suffer." (Philosophy for Dummies, 342)

The human capital one finds himself with is morally arbitrary, but non-arbitrary merit is obtained for entrepreneurial victory over adversity in which this capital plays a role.

The reward is not anything external: success and the happiness achieved are their own rewards. And yet they are justly one's own, and it would unjust for "society" to take or tax them away.

Ethos of Family vs. Economy

Cohen can babble all he wants about how one ought to treat fellow citizens in a communist society like relatives. (225)

But none of the problems plaguing socialist egalitarianism afflict the family.

The incentive problem is overcome, because the husband and wife love each other with intense, personal, and intelligent charity-love. Their wills are intertwined: such love is marked, as St. Thomas teaches, by union, mutual indwelling (of souls), ecstasy, and zeal (in acting for the sake of the beloved). Each spouse considers, nay, feels the welfare of the other to be as important as their own. They have no general duty to sacrifice for each other, because they are to a great extent one heart not just one flesh.

The computation problem is overcome, because a typical household economy is technologically exceedingly simple.

I will even grant to him that if one could treat citizens like relatives, then it would have to be done. Imagine a society of paradise, a communion of saints in which "there is no loss of individuality, yet such an interdependence that the saints are 'members one of another,' not only sharing the same blessings and exchanging good offices and prayers, but also partaking of the same corporate life..." Imagine further that the omniscient Jesus is the chief central planner for whom the computation problem is not an obstacle. Then, if there is any sort of production going on in paradise, it could well be perfectly efficient socialism.

(It's a rather grotesque example, though, and I don't actually think that's how the heaven / paradise system works.)

Cohen may regret that earth is not heaven; he may even insist that "justice" calls for earth to be heaven; but as he himself fully realizes, reality and facts of life can make justice unattainable.

Hoffer on the Cohenian Ethos

"Hitler dressed eighty million Germans in costumes and made them perform in a grandiose, heroic, and bloody opera.

In Russia, where even the building of a latrine involves some self-sacrifice, life has been an uninterrupted soul-stirring drama going on for thirty years, and its end is not yet.

The people of London acted heroically under a hail of bombs because Churchill cast them in the role of heroes. They played their heroic role before a vast audience -- ancestors, contemporaries, and posterity -- and on a stage lighted by a burning world city and to the music of barking guns and screaming bombs.

It is doubtful whether in our contemporary world, with its widespread individual differentiation, any measure of general self-sacrifice can be realized without theatrical hocus-pocus and fireworks." (The True Believer, §47)

No wonder Cohen's only real example of his egalitarian ethos in practice is World War 2.

Ethos of Madness

Cohen gives an example of people during a war sacrificing for the sake of the war effort, to "shoulder their just share." (353) But since it is impossible to keep constant tabs on everybody, it is left to individual discretion who will sacrifice how much.

There are too many details in each person's life that affect what the required sacrifice should be: Max has a bad back, Sally has a difficult child, George has just inherited $20,000, and so on. "Yes, Jack only goes out once a week, not, like most of us, twice, on guard duty, but then Jack has to take care of his mother."

But only rough-and-ready calculation can be made; there is no precision.

Here then is the repulsive vision Cohen incredibly endorses: a society in which everybody watches each other jealously in order to prevent anybody from enjoying himself more than his so-called "comrades," rejoices at the pitifulness of another's life, and spitefully pulls each other down whenever opportunity presents itself.

Cohen affirms that "justice can be mean and spiteful." (318) Moreover, he is hardcore about it: "egalitarian justice disallows an insistence on retaining enjoyments way beyond the norm" (368), and by that he clearly means even psychic enjoyments, that literally no one's life shall be any more fun that anyone else's, however fun is being had.

Pure justice for Cohen generates a demand for equalization of happy feelings.

He goes on to say that justice is not supposed to involve exact measurements of who owes what to whom; "that would make a life a nightmare." But why? Under capitalism, people tend to keep excellent track of their obligations. I know exactly how much I've charged to my credit card this month. Precisely because the envious hatred made inevitable by the egalitarian "ethos" thereby unleashed to the max would make society unendurable.

The fundamental principle of justice for Cohen is self-abasement, and if one fails to abase himself, then others, imbued with Cohenism, will do it for him, perhaps through to the state.

But isn't there a sense of community that arises out of shared danger? You protect my back, and I'll protect yours; only by working together will we survive. The sense of brotherhood felt by soldiers is commonplace, wherein peaceful employees feel little of the kind.

Psychologists say couples bond when experiencing something fearful, even a roller coaster, together.

No doubt that's all true, but that's the kind of bond that is to be avoided unless absolutely necessary. Human life cannot be focused solely on survival. It's the enjoyments of peaceful civilized life that make life worth living. Furthermore, war is not a natural condition of human beings; peace, not war, is the father of all things. War is hell, and this is still earth.

The warriors' bond, though useful in mobilizing society's defenses, cannot be permanent. It's preposterous to live one's life in fear. Security from imminent dangers, including foreign aggressors, may be one of the first things people seek, but it is hardly the last.

Justice and Constructivism: A Silver Lining

Cohen's insight that the deliverances of pure justice can be combined with other variables to yield "rules of regulation" or a vision of a good society is applicable to liberalism.

Take Rothbardian anarcho-capitalism as laid out in his Ethics of Liberty, for example. Anarchists have been rebuked with queries like, without government: "How will crime be deterred?" "How will road building be financed?" or "How will air pollution be managed?"

Some of these are less easily answered than others. For example, anarchists have argued that a "monopoly" government will, as per the economic analysis of legal monopolies, tend to degenerate by providing increasingly worse services at increasingly higher prices. But the monopoly of force is not some accidental bug of government, to be fixed with "protection agencies"; it is its absolutely essential feature. The executive branch of the state must be powerful enough to crush with ease any identifiable criminal subgroup within a community, yet itself be small enough to be amenable to control via the legislature and courts. In order to make the state so powerful within its jurisdiction, all potential competitors to it must be thoroughly outlawed and, if one happened to arise, hunted down.

The job of the state is to dissolve social bonds, to isolate and neutralize criminals. This acid is of course highly dangerous and has been used extremely poorly. History is littered with remains of intermediate institutions beloved by conservatives that were destroyed by the all-powerful state. Nevertheless, this hazardous substance cannot be done without.

Let me suggest, however sketchily, that crime and road building are decidedly local affairs. It proves at the most the usefulness of cities, not of empires or nation-states. Air pollution is not much of an issue, I think; the solution to it is simply better technology, so that higher production can be paired with lower pollution.

In any case, it is probably true that pure anarcho-capitalism is unattainable in practice.

But so what? Justice still demands it. We care for things other than justice, such as deterrence of crimes and punishment of criminals, production of certain special public goods like intercity roads, control of externalities such as through basic sanitation legislation, and suchlike. Combining all these still yields a libertarian laissez-faire economy with, however, a minimal government to take care of such matters.

Consider, for example, the problem of (local) taxes. Some people say they are "proud" to pay them. Anarchists shower them with contempt for this attitude. Why, if you are so proud, don't you pay more? You are proud; but why do you coerce others into paying, as well? Etc. But consider how Hume characterized government: "Thus bridges are built; harbors opened; ramparts raised; canals formed; fleets equipped; and armies disciplined everywhere, by the care of government, which, though composed of men subject to all human infirmities, becomes, by one of the finest and most subtle inventions imaginable, a composition, which is, in some measure, exempted from all these infirmities." (Treatise, 3.2.7) A person is proud that he has successfully cooperated with his fellow citizens to implement this "subtle invention," this uniquely important technology.

To argue against anarcho-capitalism, one must show not that it is somewhat impractical, for I grant that, but that it is unjust, and no one has ever done this successfully.

Anarcho-capitalism as it stands is unachievable, but if it were, it'd have to be put into practice as per the recommendation of justice.

I agree with Cohen that the teachings of justice stand or fall on their own, regardless of other considerations. I disagree with him regarding what is just: he prefers his egalitarian socialism; I, my Rothbardian anarchy. Again I agree that both are pipe dreams.

Far be it from me, however, to concede any other parity between these theories of justice. Perfectly just yet a little impractical anarcho-capitalism is very close to a slightly less just but fully workable libertarian minarchism; Cohen's vision is light years away from anything resembling a sane economic and social system.

Justice and Constructivism: Critique

I have three things to say in response to Cohen's contrast between justice and rules of regulation.

First, I have argued that egalitarian socialism, facing as it does two problems, of computation and of incentives, is impossible; and egalitarian capitalism, facing only the problem of incentives, is for all that still extremely implausible and silly. But, Cohen says, all this is irrelevant in regard to the question of whether egalitarianism is just. If equality is indeed demanded by justice, then equality would be just even if it cannot possibly be implemented in practice. Cohen indeed explicitly argues that "justice is an unachievable (although a nevertheless governing) ideal." (254)

But surely, people act justly every day. They abstain from murder and theft, etc. Why is the specifically Cohenian justice such an evil virtue that attempting to implement it would result in social disintegration? Could Cohen perhaps be mistaken in his understanding of a just social order? For virtues are supposed to guide powers into beneficial acts. Now since society has no identity but is rather a process of multi-faceted social cooperation, it is solely a means which serves its members, namely, the human beings composing the society. Since no one will benefit from suicidal communism, egalitarianism can scarcely be called a virtue.

Second, Cohen nowhere proves that egalitarianism is the essence of distributive justice. Best I can tell, he believes it because the Rawlsian original position seems to demand equality as the first step in its constructive process. But we have seen that Cohen denies that this peculiar procedure outputs justice, instead of a more or less comprehensive proposal for a good society on the whole. Cohen does not even think the Rawlsian machine is good for the latter: he "happens not to believe" that "Rawls' original position, or some variant of it, might be the right procedure for generating rules of regulation," anyway. (284) For example, he wonders why the design of the choosers in the original position "should enjoy authority over flesh-and-blood human beings, such as us." (290)

Rawls proclaims that "among the essential features of this situation is that no one knows his place in society, his class position or social status, nor does any one know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like. I shall even assume that the parties do not know their conceptions of the good or their special psychological propensities." (ToJ, 11) Hoppe comments that "Rawls' imaginary parties had no resemblance whatsoever with human beings but were epistemological somnambulists; accordingly, his socialist-egalitarian theory of justice does not qualify as a human ethic, but something else entirely." (EoL, xv) Cohen does them one better by arguing that Rawls' original position, by focusing on overall policy and not strictly on justice, "endows the legislators with cognitive resources that are redundant from the point of view of specifying what justice it." (284) Redundant!? Then do the legislators know anything at all? Is there any truth they are not stripped of? Cohen's wraiths have become full-fledged mindless placeholders; that equal distribution among them is supposedly required has zero influence on any real-world ethics or "ethos." For some reason, then, Cohen has picked on a fairly insubstantial piece of Rawls' reasoning, namely the initial equality, and elevated it into the core argument for his egalitarian "justice."

Third, we must honor not only our bold ruminations on what ought to be but also, in the humble Hayekian manner, what is, if what is has arisen as a result of a long social evolution and is so subtle and complex as to be hard fully to understand. Notions of justice that are as radical and sweeping as Cohen's are a sign of a certain fatal conceit.

Justice and Constructivism

Cohen's critique of Rawls and other "constructivists" consists in arguing that their reasoning is contaminated with concerns other than "fundamental" justice.

Rawls, perhaps unbeknownst to himself, is interested not in justice per se but in what kind of society we want to live in, what Cohen calls "rules of regulation" or principles that will regulate the citizens' common life. This question he proposes to settle by means of deliberation in the original position, wherein the deliberators are supplied with certain information (more in some formulations, less in others), etc. By this method, this machine of producing the output of social legislation, whatever it will actually churn out, will not be justice as such: "the influence of other values means that the principles in the output of the procedure are not principles of justice, and the influence of factual contingencies means that they are not fundamental principles of anything." (283)

Chapter 6 endeavors to rescue justice from "facts": "facts of human nature and human society of course (1) make a difference to what justice tells us to do in specific terms; they also (2) tell us how much justice we can get; and they (3) bear on how much we should compromise with justice, but... they make no difference to the very nature of justice." (285) Cohen is convinced that justice = equality of distribution, and the fact that equality is unnatural or unachievable is simply irrelevant: "it is so often the facts that make equality ineligible (as opposed to not identical with justice)." (300)

Chapter 7 proposes that the difference principle, concerns about Pareto efficiency, stability, publicity, and so on are things with which justice is supplemented and which are used to compromise pure justice's demands. Design of society requires us to take into account lots of things which are not justice-related. Rawls' project therefore is not a theory of justice but an attempt at system building. It calls "justice" what is in fact a agglomeration of numerous virtues including but certainly not limited to pure justice. Again, "sound rules of social regulation must satisfy virtues other than justice, and must defer to factual constraints that do not affect justice itself." (291)

For example, distribution (5, 5) is more just than (7, 6), but the latter "is preferable on grounds of human flourishing and might therefore reasonably be chosen." (319) Cohen thus believes that taking into account matters other than "justice" (for him identical with equality) in constructing overall social policy is fully legitimate, even mandatory: "it is... crazy, a piece of fetishism..., to care only about justice." (307)

Nevertheless, justice proper must be separated from those things and given its due.

Cohen: Laws vs. Duties

Here's his thing: oughts that imply can obey the following conditional: if it were possible, then it would have to be done. The "can't" applies to the antecedent not to the consequent. Something remains by essence a duty despite the fact that reality by accident makes it impossible to carry it out. We may even interpret it as follows: one must have the habit or virtue of justice even if one cannot for whatever reason act justly in a given situation.

The ought part for Cohen can remain a valid moral principle even if circumstances intervene to make one unable to follow that principle.

Fish got to swim, and birds got to fly, right? Suppose we say, humans ought to fly by flapping their arms about, imitating birds. It is objected that humans cannot fly like this. This observation, however, is no counter to the moral principle that men ought to fly in a birdlike manner. The proper argument (as Cohen would have it) would rather be a proof that even if men could fly, the moral law would still not insist on it.

Cohen then writes: "It is indeed a reason not to adopt a rule when and because the fact that no one can follow it makes it futile, but it is equally a reason not to adopt a rule when futility reflects the different fact that no one will follow it, even though he can. But one would never say, investing the statement with the sort of importance that attends the typical announcements that 'ought' implies 'can,' that 'ought' implies 'will.'" (253)

Do you see the problem? The first ought applies to the question: "Ought there to be a law?"

The second ought applies to the question: "Ought I to do my duty, for example, by obeying a law?"

The first ought is thus sensitive to both "can" and "will": there ought not to be a law if people can't obey it or if people won't obey it, e.g., because of difficulty of enforcing it. Thus, it is stupid and counterproductive for the government to issue a law that the people will hold in contempt and flout even though they are fully capable of heeding it.

The second ought tracks only "can," because choosing not to do one's duty does not cause the duty to come to fail to hold.

Note that duty-oughts can imply other things, such as "one is not in a lifeboat situation."

Respect and Love

By not killing or not stealing from a man, we should him respect; by giving life and profiting him, we upgrade respect into charity-love.