Comments Elsewhere

Kennedy:

“If you promise me $10 and then don’t deliver do I have any moral claim against you?”

Well, yes, obviously. That’s what promises are for: keeping.

There are lots of speech-acts that morally bind you to carry something through even though breaking them doesn’t count as a violation of anybody’s rights: not just making promises but also, e.g., swearing, taking oaths, exchanging vows, making alliances, etc. By giving your word you accept a moral obligation on yourself, and by breaking it you are doing wrong. If the moral obligation is an obligation directed towards somebody else (e.g. if you exchange a vow of sexual faithfulness with me, or if you promise me some gift) then by breaking it you are specifically wronging the other party.

Of course, it is only in the case of a contract that the sort of wrong you do is a violation of rights. But violating somebody’s rights is hardly the only way that you can do wrong by her.

Micha, replying to Scott:

So you are making a positive and not a normative claim?

Scott:

Yes.

The problem here is that you can’t make purely positive claims about property; to say that A owns P is to make a statement that involves normative claims about A, P, and what A can do with P. (“Owning” a piece of property just means having certain rights with respect to how it is used.)

For example, to say that the State has the right to transfer property rights in all the means of production, by fiat, to the Politburo, is to say that the State can (at will) give itself the right to do whatever it likes with the factories, mills, mines, etc.; that it will be within its rights to “recover” its new property from those holding it, using proportional violence if necessary; that anyone who resists the legally authorized grab by either passive resistance or violence will be trespassing or aggressing against State officials (and can rightly be punished for it); and that any successful effort to keep capital in private hands in spite of State efforts to “recover” it will in fact be organized theft and (since it disrupts the Politburo’s exercise of their newly-minted “property rights”), violent interference with the free market. These are all weighty normative claims that Scott’s theory seems to entail; apparently by State fiat innocents can be transformed into thieves and politically-connected brigands into peaceful property owners. I wonder if “for legal purposes, at least” they can make up into down, too.

If you make claims about how property rights are determined you’re making a normative claim, not a positive one. And treating government edicts as if they had unlimited authority to determine legitimate property rights is not conducive to libertarian politics.

My preferences come into the picture as the answer to your question: “If so, in what way are you actually opposed to state Communism?” I would prefer a different state of affairs. That would seem to clearly mark me as “opposed to state Communism.”

If you are only going to cite your preferences and not any further fact that gives the reasons for your preferences, then they mark you as “opposed to state Communism” in exactly the same sense in which my loathing for mustard on hot dogs marks me as “opposed to mustard on hot dogs” (and in which the tastes of those who like the foul stuff mark them as “supporting mustard on hot dogs”). But I wasn’t surveying your tastes; I was asking you what, if anything, is wrong with state Communism under the theory that you apparently use to justify intellectual property claims. So far I can’t find any answer.

There will be consequences I find undesirable.

Who cares what consequences you do or don’t find undesirable? It’s not your property to control anymore; it’s the Politburo’s, and they enjoy the consequences of state Communism quite a bit, thank you very much. Since it’s now their property and not yours to dispose of, it’s not at all clear to me where your preferences on the matter come into the picture.

Scott:

Yes, and, to the second question, since 1787 at the very least.

Let’s say the government does something completely unheard-of in world history, like, say, passing a law declaring that henceforward the government will be the rightful owner of all the means of production, and authorizes the use of force to seize the factories, mines, mills, farms, etc. It seems that on your theory, since the government said they now have property rights over all the means of production, they do own all the means of production; and the use of armed force to seize them is not plunder but rather using defensive force to recover what they own.

Is this actually entailed by your position?

If so, in what way are you actually opposed to state Communism?

If not, what’s the relevant difference that makes the government able to conjure property rights in your scenario but not in mine?

Scott:

When ideas become “property” let me know.

I’m nearly positive they already are, hence Disney’s actions.

Why? Because the government says so, or for some other reason?

If it’s because the government says so, since when did government dictates determine legitimate property rights?

If it’s for some other reason, what does Disney’s lobbying of the government have to do with it?

Daniel Slate: … some of [Bork’s] points are quite good.

Do you have some particular examples in mind?

Scott:

In one sense, no, since I am defining Constitutional actions as just, and I assume evil is a synonym for unjust. In another sense, yes, as I imagine the Constitution would bind people to do actions that would typically be seen as evil were they done by other parties.

These are surely not how I was using the words “evil” or “unjust,” and not how most speakers of English use them, either. (If they duly repealed the Thirteenth Amendment would that make chattel slavery just? Would it make it non-evil?) In my questions above I was using “justice” to refer to respecting human rights and “evil” to refer to any violation of moral obligations (all injustices are evils but not all evils injustices; cruelty, cowardice, intemperance, envy, etc. are all evils but not injustices).

If the question is whether or not a judge, knowing positively that her sense of justice is correct, should enact an injustice, then the answer is no. But I don’t think that has any real world ramifications. If the libertarian theory of justice were true, then we should of course all act like libertarians. But normative verifications aren’t an option.

The question is about rights, not about how we know what rights people have. If a judge has to choose, in a ruling, between (1) respecting human rights and refusing to comply with the Constitution, or (2) respecting the Constitution and refusing to adhere to human rights, then should she choose (1) or (2)?

(The question of how she knows that she’s in a situation where the choice is between (1) and (2) is a separate question, which bears on epistemology more than on ethics or on law—it’s interesting, but it’s not what I’m asking about.)

You seemed to be indicating that your answer was that she should do (2) because she has a legal duty to do so that she’s bound to fulfill. But I don’t understand why you’d say that. If I’ve misunderstood you, then it would help me if you’d explain more about what you think makes, say, a duly-enacted law that bans flag burning, or authorizes chattel slavery, wrong; and what you think it is about duly-enacted laws that make them something we, or judges, should care about at all when we deliberate about what to do.

If I haven’t misunderstood you, though, it seems like there are two possibilities. (1) We can (somehow) get into a situation where we are required to do things that are evil, i.e. that it would be wrong not to do things that are wrong; the judge in the case above is in such a predicament. Or (2) holding a Constitutional office absolves the holder of ordinary moral obligations not to violate other people’s rights, so that by ignoring human rights in favor of the Constitution she isn’t wronging anyone. But (2) hardly seems tenable on anything other than a totalitarian view of the law, which I take it you don’t hold.

If I have understood you and you do believe that (1) is the case, doesn’t that make becoming a judge rather like making a deal with the Devil—you’re damned if you do and damned if you don’t? Isn’t that at most a knock-down argument for never becoming a judge under the present legal order?

Scott:

That seems a fair gloss. I’m tempted to redefine “injustice” as refusing to follow the law — but as we are using “justice” to define a Justices’ personal feelings as to the just and the unjust, it would probably make things more troublesome to shift definitions now.

I’m sorry if I’ve muddied the waters by not making my questions precise. I wasn’t asking about whether or not Supreme Court Justices have a duty to defer their own “personal feelings” about the content of justice to the feelings of someone else (e.g. the legislature or the people at large). I’m using “injustice” here to mean “transgressing against what is in fact just.” The issue of whether a judge happens to feel (rightly or wrongly) that a particular law is unjust doesn’t come into the question in any interesting way (if the judge were ruling based on a mistaken feeling about justice that would be a different case from the one I’m asking you about). The question is about cases where a judge is right to consider a law unjust.

So, for example, suppose that the libertarian theory of justice is true (i.e., justice is consistent non-aggression; an action is in fact unjust if and only if it involves aggression against person or property). Suppose also that the Congress and the several state legislatures pass bills amending the Constitution to authorize some power that manifestly violates those correct principles of justice by authorizing violence against non-violent use of property (an amendment to ban flag-descretation, for example). And finally suppose that you have a judge who (correctly) believes that the amendment authorizes injustice, and decides to ignore the amendment or declare it void on the grounds that it cannot be justly enforced.

The question is whether you are willing to say that the judge has done wrong by issuing a ruling in which she refuses to inflict injustice on an innocent victim. If you are willing to say that, then I have to wonder how anyone could get into a moral predicament where they are bound by duty to do something evil—i.e. where it would be doing wrong to refuse to do something evil. Does the Constitution have the authority to bind people to do evil? If so, where did it get that authority?

Injustice remains a vice, but refusing to follow properly enacted laws seems an equal vice, as it is the imposition of one’s personal sense of justice over what is, in principle, the sense of justice that one is supposed to be representing.

(1) How do you determine which laws were “properly enacted” and which weren’t?

(2) If your answer to (1) allows for some of the laws that you pick out as “properly enacted” to actually require acts of injustice (in the sense that I specified above), then why would you claim that refusing to follow properly enacted laws is always a vice? Don’t we usually consider people who refuse to co-operate with evil virtuous?

(Does the fact that the evil is being committed by a government make it even O.K. — let alone obligatory — to co-operate with it?)

(3) What’s this about “imposing one’s personal sense of justice”? If you are convinced that it’s just to break into my house and steal all my belongings, and I’m not convinced, and I hit you on the head with a baseball bat when you try to act on your theory of justice, I’m “imposing my personal sense of justice on you” in some sense, but would I be doing wrong to do so?

“… do you seriously think that we enjoy less freedom today than did the people of 1776, a substantial percentage of whom were in chains? The principles of 1776 are the same today as they were then, but in many, many ways they are realized to a far greater extent today than they were then.”

Tom, this is an important point that needs to be stressed. Given the absolute subjection of (1) most Black people and (2) all women under government-backed private tyranny in the 18th and 19th century, and the breathtaking gains that struggles for the emancipation of both have made (bear in mind that this represents well over 50% of the population of the country) it probably is the case that the freedom enjoyed by the average person in America is much higher than it was in 1776, and it is certainly case that the worst case that could be faced is today far, far milder than it once was.

That said, though, there are lots of good reasons for Roderick to point out the abandonment of the principles of ‘76 over time and the political consequences of that abandonment. It may very well be true that the average case and the worst case are better than they used to be; but it’s also the case that the best case (the amount of freedom enjoyed by those whose free citizenship was recognized and socially protected) has gotten substantially worse. That doesn’t mean that the vast decline in freedom for those recognized as free citizens is more important than, or should make us neglect, the immense increase in freedom for those who were once not recognized as free citizens but who now are. But it does mean that on a day specifically devoted to the Declaration that eloquently put forward those lost principles, there is plenty of reason to take a mournful pause.