Do Not Conflate Recognition with Justice: A Reply to Horwitz

Steve Horwitz recently issued a challenge for libertarians regarding federal recognition of same-sex marriage. I’m not opposed to the recognition, but I would stress an important caveat to not conflate such recognition with justice. Horwitz’s point of emphasis on “equality before the law” is incomplete. There is an underlying problem regarding justice that we should remain cognizant of: namely, the oft necessity of restitution.

For example, if a bully daily beats the shit out of you, the correction of this injustice is not merely the cessation of the beatings. The correction should also entail full restitution for past harm. Merely being recognized to avoid future beatings simply means the bully moves on to beat up on other targets. Full restitution on the part of the bully to fully compensate it’s victims for previous harm likely puts the bully out of business as well the institution that enabled it.

The analogy is clear. Recognition by the tax code(and/or legal code) does nothing to stop the use of the tax code to bully behavior. Recognition is not actually a correction of injustice because without restitution, the institutional pattern continues. One obvious conclusion is that recognition does not satisfy a sufficiency condition for justice.

Bastiat’s “The Law” is the libertarian guide regarding law and justice. Law is force; justice is the absence of injustice. The correction of injustice is what justice is. Hence, there can be no justice without a proper correction. In this sense, “libertarian justice” provides a “thicker” dialectic vis a vis “equality before the law” than simple procedural liberalism. Equality before the law without justice is still a libertarian violation.

We can instructively and properly apply libertarian justice to an issue that almost always seems to trip up libertarians: the “Civil Rights Act.” Libertarian opposition to this legislative act(more precisely, the Title II component) is often used to discredit the libertarian position. Frankly, I think the typical libertarian position, which usually stops at a repeal of the Jim Crow Laws and a recognition of “equality before the law,” is one that is worthy of scorn. It is an example of Equality before the law without justice. And it is a libertarian violation. The correct libertarian position, one that is rarely, if ever, articulated, would be a “Civil Reparations Act,” one that attached proper restitution with “equality before the law.” A proper restitution would not have left the corrupt institutions that enforced the “Jim Crows” unaltered and intact. The libertarian justice objection to the Title II provision is that its “injunctive relief” to enforce an equitable remedy going forward for previous State-enforced discrimination is not justice. It left the corrupt institutions intact, and then chartered these same corrupt institutions with new legal powers to treat people and property as means to enforce moral ends. It’s little wonder that a “new Jim Crow” sprang up in the immediate aftermath–the drug war–justified by the same “commerce clause” that legally sanctions the enforcement of Title II. Reinventing the law to serve moral ends as means to equitably remedy injustice is a type of libertarian violation pilloried in Bastiat’s legal treatise.

Communitarian Implications

Recognition without justice can begin to drift toward a de facto communitarian position, if you are not careful. Soon, you will begin debating the the necessary liberal constraints on recognition, which, of course, is what the debate turns to in Horwitz’s follow-up post(in this case: polygamy). Horwitz inadvertently is demonstrating Charles Taylor’s(the communitarian political philosopher) contention why liberalism suffers from a recognition problem. Horwitz is repeating Taylor’s argument:

(i) that recognition is a product of competitive mutual exchange
(ii) recognition is a recursive function of other’s recognition
(iii) recursion convergence for minority cultures, in a “classically neutral liberal system,” is “no recognition.”

Because Taylor, as a communitarian, has a more dialectical view of individual identity as a product of social context, identity is not really possible without recognition. Hence, Taylor argued that procedural liberalism could not accommodate minority identity. Horwitz, in a sense, validates Taylor’s argument. Although Horwitz doesn’t share Taylors communitarian notion of identity and self, Horwitz, nonetheless, in divorcing recognition from justice, is arguing that procedural liberalism will deny recognition to a certain set of minority identity, which thus denies “equality before the law” to same set, thus invalidating the neutrality, or the procedural rule, of “equality before the law.”

Horwitz demonstrates that the conclusion of arguing recognition on the basis of the procedural rule of “equality before the law” is the denial of the procedural rule.

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Why I’m Not a Bleeding-Heart Statist

Will Wilkinson’s latest statist declaration of principles and anti-principles, with respect to liberalism and libertarianism respectively, is another attempt by Wilkinson, who has “defected” from the “label,” to use the soft underbelly of the libertarian movement as an argument for the State.

I agree that the meaning of “libertarianism,” particularly in the American political context, is incoherent. But this is largely a product of trying to make it palatable with liberal democracy–in short, rebranding the libertarian meaning of liberty as a political value. I will flatly state that there is no normative case for liberty. But this is not an argument for the State because I also include the following addendum: neither is there a normative moral duty to obey the State.

Wilkinson seems preoccupied with mutable ideological labels and public connotations of conviction syndromes interrupting his ability to eclectically define himself. But we can easily separate the wheat from the chaff. If you ascribe to a moral duty to obey the State, then you are not a libertarian. If you deny this moral obligation, then you have at least satisfied a necessary condition for libertarianism.

Simple,succinct, and to the point.

Wilkinson, of course, accepts the moral obligation of obedience to the State. The first point of Wilkinson’s defense is a denial of the NAP “anti-principle.”

Here are some not-standardly-libertarian things I believe: Non-coercion fails to capture all, maybe even most, of what it means to be free. Taxation is often necessary and legitimate.

I consider “coercion” to be a strawman argument. I’ve discussed this before on previous occasions, e.g: Free Markets and Coercion. All social interactions and contractual arrangements are coercive in the sense that they necessarily impose moral constraints on agents as pure maximizers. Non-coercion is useless as a basis for a social theory because agents are not single-variable max-min optimizers–“coercion” as the single variable–because the optimal social arrangement would then be defection.

Social cooperation necessarily entails moral constraints on the part of actors. We could alternatively use the language of “personal duties.” But personal duties do not demonstrate impersonal duties, or duties to no one. In my post, I used an example of uncertainty prompting payments to third parties to insure against transactions not being mutually beneficial. A moral claim on a carpenter to be bonded and insurance payments to third parties can be superficially equated with how the market produces “coercion,” taxes, and a State tax collector–that is, until we properly distinguish between taxes,rents and economic rents. If the insurance payments are composed of economic rent, then we would have an entrepreneurial opportunity to drive these rents to trade at opportunity costs. To abolish these rents and to treat them as “taxes” and as part of the tax code would incentivize a different type of entrepreneurial opportunity, one that would look to the tax code to create and persist artificial rents.

This was a simple economic example of how the moral constraints of social cooperation do not imply nor should imply an impersonal standardization. Almost always, an argument to impersonalize moral constraints is often a narrow self-interested one.

Wilkinson’s second point is a “principle,” namely the claim that the State has reduced violence. This is a reason why, for example, we should morally obey the State. Wilkinson appeals to Steven Pinker’s “The Better Angels of Our Nature: Why Violence Has Declined.” However, the claim of the role of the state in reducing violence can be easily questioned as an example of a “post hoc causal fallacy.” The immediate counter-problem with this claim that I would pose is to legitimately question why the liberal state is nonetheless morphing into a National Security State given it’s supposed rational role in reducing violence. If violence is at human historical lows, then why the need for CIAs, DHS, TSA,paramilitarized civilian police forces, secret police, and an unaccountable sprawling military/intelligence industrial complex? Of course, Wilkinson will simply ignore this obvious contradiction and instead can be counted on to blather on about how secure the State has made all of us while we are nonetheless forced to undergo anal cavity searches as a pre-condition to travel and buy goods/services at shopping malls.

Wilkinson’s third point of “principle” of why we should obey the state is that it legitimizes us to participate in the debate regarding “the nature and scope of specially-protected rights and liberties within the settled context of the liberal-democratic nation-state.” Of course, the historical libertarian critique is that liberalism institutionally fails to provide this “settled context of the liberal-democratic nation-state.”

In the classic sense, we can succinctly define liberalism as a political system whose ends are property and whose means are liberty. I will also include the modern update that adds an ends of justice and includes redistributive means that imposes a degree of positive constraint on liberty. The liberal legal model defines a constitutional framework of decision-making rules, justified by a hypothetical “social-contract,” that defines the constraints on what is legally recognizable within the system. In plain language, this means that legal recognition in the pursuit of property or justice cannot violate constitutional constraints. The constitutional constraints, which are decision-making rules, define the boundary conditions.

However, as I discussed in my previous post regarding the State of Nature, legal recognition, including the constitutional boundary conditions, or decision-making rules, are market goods, whether you like it or not. Specifically, economic rent-seeking of legal recognition via a monopoly price maker becomes a source of decision-making rules–that is, it changes the boundary constraints of the system. In Virginia School Public Choice terms, the equilibrium of the Tullock rent-seeking game is a union of the Redistributive State and the Protective State(the Constitutional agency). This, for example, explains the massive empirical discrepency between the magnitude of economic rents being created by the State vs the competitive outlays investing/bidding for such rents.

To restate: this is why using the Superpower US military/Intelligence apparatus as a means to protect economic rents results in the evisceration of the primary liberal legal restraint, the “Great Writ,” and why the Federal Government, in the office of the Executive Branch, as now legally sanctioned by the legislative branch, now declares itself arbitrarily outside the constraints of civilian court due process.

Wilkinson, as a liberal, should be supremely concerned with the fundamental liberal violations posed by such things as the National Defense Authorization Act. This is an example of an egregious violation of the supposed “settled context of the liberal-democratic nation-state.” But I haven’t read a peep from Wilkinson addressing these profound violations, not in any serious way that he, as a liberal, should be addressing given that he is quite aware that these type of violations are at the core of the libertarian political critique.

Wilkinson’s fourth point, an “anti-principle point,” is a fine example of “applied selective consistency.” Granted, I agree that there are legitimate critiques of Ron Paul’s version of libertarianism, but if Wilkinson ascribes to the principle that past violations of the messenger discredit the current message, then Wilkinson necessarily must renounce the State as messenger. We can simply appeal to David Hume who pointed out the real-world problem with “social contract theory:” historically, states weren’t rational products of hypothetical consent; rather they were the products of conquest and pillage. The State wouldn’t be where it is today, in a position to be an arbiter of “justice,” without the conquest, mass murder and pillage of it’s past. In our modern context, Wilkinson doesn’t seem too bothered by a State that killed millions of Vietnamese, bombed who knows how many Cambodians, killed and displaced more than a million Iraqis, is the only State to directly use Nuclear WMDs against a civilian population and directly funded the other one that used chemical WMD(Iraq), financially supports authoritarian dictaroships across the world, locks more of it’s citizens, percentage-wise, than any other country in the world, sans perhaps North Korea, engineers a racist drug war to inflicts uncountable damage globally, etc, etc, etc….Yet, Wilkinson has no problem with this State(mind you, the same State which refuses to apologize for most of these atrocities) being an arbiter of justice; however, he is morally outraged over around five years of paleo, politically incorrect bullshit from Paul’s publishing enterprise from the early to mid 1990s. I wouldn’t quite characterize that as “decades of bilking paranoid bigots with bullshit prophesies of hyperinflationary race war. Is there any evidence of Paul’s publishing ventures printing decades(meaning twenty years or more) of race war articles or advertisements?

As a libertarian, one who doesn’t root moral outrage in communitarian recognition violations, but rather in actual moral and legal institutional injustices, particularly those injustices that persist without correction, I can’t take Wilkinson’s moral outrage and critique seriously.

Rational Expectations

In my previous post, I discussed both the morality and rationality of voting, particularly as it pertained to Ron Paul. The conclusion was that there was no moral obligation to vote nor one not to vote. The rationality of voting is an entirely different consideration. This calculation boils down to the following factors: (i) the importance(payoff) of the best candidate winning, (ii) the probability that your vote will change the outcome.

Tom Woods’ characterization of the problem as an easy choice between prime rib vs gruel is not correct because he is assuming away the resolution of the public good problem of recognizing the “best candidate.” If everyone recognized the actual best candidate as the best candidate, then perhaps an argument could be made for the rationality of voting; but then we would also be treading on a doctrine that would have to view voting/democracy as an efficient selection mechanism for collective action/public policy.

I doubt Woods would accept such a view of Democracy and voting. So he is really restricting his “best candidate” recognition argument to a subset of us enlightened libertarians. But this immediately lead us the problem of (ii), the likelihood that the enlightened libertarian vote could change the outcome.

As a side problem, I noted that the uncertainty introduced by the principal-agent problem of Political Parties reduces the expected payoff of the best candidate winning.

Perhaps my greatest critique of Paul is his association with the GOP agency. To me, trying to change the ideology of a party that is so throughly statist is a tremendous waste of resources. If the goal is to actually change the policy and not the party, then it would be more rational to actually run as an independent or third party. Yes, I understand the barrier of entry problem, but this problem doesn’t apply to Paul any longer. He has the name recognition and the resources to overcome the ballot qualification problem and the debate inclusion problem. Typically Paul dismisses such a suggestion with an appeal to the generalized problem: yes, most politicians would be buried by the barrier of entry problem, but Paul has likely eclipsed this limiting constraint.

A discussion of the rationality of an independent run is a separate question, but I think a discussion of the relative rationality of an independent run vs trying to convert Santorum/Gingrich/Romney/Bush voters lends itself to an easy comparative call. All we have to is examine the voting statistics from last night’s Iowa Caucus. Among registered Republicans, Paul was just an also-ran. It was the inclusion of independents and democratic voters, captured overwhelmingly by Paul, that enabled him to be competitive within the so-called “top tier.”

The Iowa Caucus also served the purpose of once again demonstrating the miscalculation of the so-called “Paleo Strategy.” Santorum, like Huckabbe 4 years earlier, was able to rise methodically from obscurity by dominating the “evangelical epicenters” of Iowa. Paul’s best county again was Jefferson County, a haven for alternative religions such as Transcendental Meditation. As the saying goes, “ball don’t lie…”