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.
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.