Current Events, Ethical Issues, Law & Legal Philosophy, Social Criticism

Libertarians: Limited Government – or Abortion Bans?

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The following is a guest post by Neera K. Badhwar, Professor Emeritus of the Department of Philosophy at the University of Oklahoma and a Senior Fellow in the PPE Program in the Department of Economics at George Mason University.

Libertarians want a limited government, a government that protects rights, enforces contracts, defends us against foreign enemies, and otherwise stays out of our affairs. The vast majority of libertarians support abortion rights on the grounds that the pregnant woman owns her body and has a right to decide how to use it. Some libertarians, however, support abortion bans because they believe that abortion violates the fetus’ right to life, a right they regard as being as strong as a child’s right to life. It is commonly held that both positions are consistent with libertarianism as a political theory.

I disagree. Whereas regarding abortion as morally wrong is consistent with support of a limited government, support for legal bans on abortion is not. For a fetus’ rights can’t be protected across the board without opening the door to a hugely invasive, almost unlimited-in-the-bedroom, government. The reasons for this have to do with the nature of pregnancy, the relation between the pregnant woman and the fetus, and the nature of the state.

One reason legal bans on abortion invite governmental invasiveness is that abortion is often indistinguishable from miscarriage. According to the NAPW, “fifteen to twenty percent of all pregnancies (or approximately 1 million a year in the U.S.) will end in a miscarriage or stillbirth”. A government that looks upon almost all abortions as a crime will tend to be vigilant about every pregnancy loss. Was it really a miscarriage – or was it an abortion?  Zealous prosecutors have criminally charged women who have had miscarriages on the mere suspicion of a self-induced abortion – even while Roe v. Wade was in force.Indeed, even in California, where the law explicitly holds that a woman can’t be charged with murder for loss of her pregnancy, prosecutors charged two women with murder after they had stillbirths that their doctors judged had been caused by drugs. (In one case, the prison sentence was overturned after the woman had served four years in prison, in the other case, it was dismissed. 

Another reason why an abortion ban invites greater government invasiveness is that, although every state allows an abortion when the mother’s life is in danger, not many such dangers are clear-cut. If a woman is hemorrhaging, and without an abortion sepsis will set in and kill her, an abortion is clearly justified. But what if the danger is not imminent, and it’s possible that the fetus will be expelled naturally? With the threat of prison looming over them, how many doctors will be willing to take the risk of performing an abortion? If the past is prologue, not many. When prosecutors started charging doctors who seemed to them to be over-prescribing pain medicines to their patients, scores of doctors stopped prescribing them.* The results were devastating: pain patients either lived in constant pain, or turned to the black market and bought drugs adulterated with heroin or fentanyl, a potent killer. (One pain patient recently killed his doctor for leaving him in constant pain, and then killed himself. We should expect many doctors to stop performing life-saving abortions when the danger to the mother is probable, or even certain, but not imminent, out of fear of prosecution. After Texas passed S.B.8 in September 2021, a woman with an ectopic pregnancy was turned away by her own doctor as well as by a hospital – even though an ectopic pregnancyis a death sentence for the fetus, and likewise for the woman if she can’t get an abortion in a timely fashion. 

In cases like these, we can blame the doctors for not doing their job, since the Texas law does allow an abortion in a medical emergency, and a pregnancy that will kill both the fetus and the mother is a medical emergency if anything is. But the medical emergency exemption does not cover pregnancies that are threatening to women with pulmonary hypertension, or certain heart conditions or other health problems. Pregnancies in these conditions pose an especially high risk for low-income, rural women who don’t have access to good doctors. 

Legally enforced abortion bans also open women – including women who are not pregnant but could become pregnant – to encroachments on their bodily autonomy. According to civil rights attorney, Cynthia Conti-Cook, “pregnant people’s decisions—to self-medicate, to not medicate, to seek substance abuse treatment, to drink alcohol, or smoke cigarettes—are all decisions that could be criminalized.” And thanks to digital technology, the state could easily surveil these behaviors. Prosecutors could also “subpoena women’s medical records and private social media files as part of criminal investigations into abortion providers”. Some politicians have even suggested keeping tabs on women’s menstruation cycles – and at least one official has already done so.

Anti-abortion libertarians could argue, rightly, that such invasions are not essential to state bans on abortion. But the point is that they are highly probable, if not inevitable, given the nature of the state, and a commitment to a limited state requires libertarians to refrain from providing the state with additional tools for abusing us. Libertarians of all people should be aware of the tendency of government to encroach on more and more of our lives, and to be more and more punitive. 

Some states currently exempt women who seek abortions from criminal penalties, but there is no guarantee that these protections will remain in place. There is a strong anti-abortion movement of “abortion abolitionists”pressuring legislators to eliminate such exemptions. And if the fetus is a person with rights equal to that of a child, then it stands to reason that the mother who kills it is a criminal, and must be treated as such. 

Again, just as a RICO violation “does not require intent, recklessness, willfulness, or even knowledge on the part of the accused,” a woman who does illegal drugs and has a stillborn child can be charged with homicide, even if she didn’t know that she was pregnant, or didn’t know that drugs could lead to a still birth. Of course, the elimination of mens rea is not inherent in an abortion ban, and no libertarian would support it. But Congress and state legislatures often pass laws without the requirement of mens rea, and libertarians who want to keep the state within bounds must take this feature of the state into account.

If the fetus has as strong a claim to life as a child, then the fact that the fetus resulted from rape or incest, or that it has severe anomalies, cannot justify an abortion. After all, a child born of rape or incest, or with severe anomalies, may not be killed. This leads to a further reason why abortion bans must expand the role of government in our lives. More babies with birth defects will be born, most parents will be unable to take care of them entirely on their own, and private charities will be limited in their ability to help. The obvious outcome is that the state will have to provide support for them. But no new or more extensive state program comes without higher taxes and a new and more meddlesome bureaucracy. 

For all these reasons, abortion bans open the door to an ever-more powerful state. Two of the three reasons I’ve given – the nature of pregnancy and the pregnant woman’s relation to a fetus – don’t apply to laws against homicide as ordinarily understood. The closest thing to a miscarriage in the case of homicide is an accidental death. But whereas a miscarriage often cannot be distinguished from an abortion, an accidental death can often be distinguished from a murder. Again, no one person has the unique relation to the victim of a homicide that a pregnant woman has to a fetus. So the possibility of homicide does not invite the kind of encroachments on our bodily integrity that abortion bans invite on women’s bodily integrity. The only thing comparable to them is the war on drugs. 

Libertarians can believe that abortion is morally wrong and try to persuade others of their position without contradicting their commitment to a limited government. But they cannot support a legal ban on abortion without doing so. They must choose between abortion bans and a limited government. 

…………………………..

*The Supreme Court decision of June 27th, 2022, declaring that doctors who act in good faith can’t be prosecuted just because their actions fall “outside the usual course of [medical] treatment,” has finally freed doctors to follow their best clinical judgment, based on each patient’s specific circumstances.

Current Events, Discourse, Education, Ethical Issues, Free Speech, Law & Legal Philosophy, Misc Academic Issues

Locke and Land Acknowledgements 

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The following is a guest post by Kyle Swan, Professor of Philosophy and Director of Center for Practical and Professional Ethics at CSU Sacramento.

Stuart Reges is suing his employer, the University of Washington, for violating his First Amendment speech rights. The University initiated an investigation into whether Reges violated its anti-harassment policy for publishing a land acknowledgement statement on his course syllabus. His read, 

“I acknowledge that by the labor theory of property the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington.” 

Reges is protesting the recommended acknowledgment circulated by the University. The protest is clearly protected speech. I hope Reges wins his suit decisively. 

But what about Reges’s statement? He appears to be serious. In a Quillette article he writes, 

“I am a Georgist, and according to the Georgist worldview, Native Americans have no special claim to any land, just like the rest of us. But since few are familiar with that economic ideology, I leaned instead on a principle described in John Locke’s Second Treatise on Government, now known as the labor theory of property or the ‘homestead principle.’ To the Georgist idea that land is owned in common by all living people, Locke added that by mixing one’s labor with the land, one encloses it from the shared property because people own the products of their labor. If, for example, you make the effort to grow corn on an acre of land, you come to own that acre of land, so long as there is still plenty of land left for others to use.” 

The labor theory Reges refers to is a theory of property acquisition. In its original state, the entire earth is given to us in common. Nobody owns stuff in the world. The question is, how can we remove things from the commons and make rightful claims to them that would allow us then to exclude others from using them? 

Locke provides some conditions. First, it has to be true that someone hasn’t already done that — the stuff has to not be already owned. Second, the person appropriating something from the commons has to do it in a way that improves it through their productive activity — gathering berries, hunting deer, growing vegetables, clearing trees — all kinds of activity counts. Finally, the way they do this has to leave enough and as good for others, so that no one would have reason to complain about the appropriation. 

Professor Reges’s acknowledgment is saying that Coastal Salish people weren’t ever in a position to claim ownership. They were never rightful owners. So when settlers came to the area in the late 1840s or whenever, he supposes these settlers were appropriating the land from the commons, rather than from a group of people. 

Professor Reges’s application of Locke’s theory is dubious. I’m a philosopher, not a historian, but it seems unlikely to me that there were no groups of native people engaged in productive activity in the relevant areas when settlers showed up. 

More importantly, though, if Reges is correct and there weren’t people there already with legitimate ownership claims, then the behavior of government authorities in the mid-19th C was very odd. Because what they were doing was negotiating treaties with the native peoples, including the Salish. Doing so suggests their recognition of legitimate claims made by these groups. Why were they making contracts to acquire land from these native peoples if they didn’t own the land? It seems incredible they would do this if they regarded the lands as unused, unoccupied, and unowned. So it looks like this was a transfer of land ownership rights, not an original appropriation of them. 

Now everything hangs on how these contracts were presented and executed. Were the negotiations above board? Were all the relevant people groups represented? Did they all sign? Were all the terms of the contract fulfilled? Again, I’m a philosopher, not a historian, but if not, if there were problems with the agreement, then there wasn’t a legitimate transfer of the Washington territories. 

If that’s right, then a different part of Locke’s theory applies, which you can find in a later chapter of the 2nd Treatise, Of Conquest. There Locke argues that an aggressor who “unjustly invades another man’s right can…never come to have a right over the conquered…. Should a robber break into my house, and with a dagger at my throat make me seal deeds to convey my estate to him, would this give him any title? Just such a title, by his sword, has an unjust conqueror, who forces me into submission. The injury and the crime is equal, whether committed by the wearer of a crown, or some petty villain. The title of the offender, and the number of his followers, make no difference in the offence, unless it be to aggravate it.” 

And so “the inhabitants of any country who are descended and derive a title to their estates from those who are subdued and had a government forced upon them against their free consents, retain a right to the possession of their ancestors….the first conqueror never having had a title to the land of that country, the people who are the descendants of, or claim under those who were forced to submit to the yoke of a government by constraint, have always a right to shake it off, and free themselves….If it be objected, This would cause endless trouble; I answer, no more than justice does.” 

Locke’s theory of acquisition has two parts. The first is a theory about how original appropriation would be legitimate. The answer has to do with labor and productive activity. But that part doesn’t seem to apply to this case, since it looks like the Salish already had an existing claim. The second part of the theory is about how acquisition by transfer would be legitimate. The answer here has to do with agreement, and everything depends on the quality of the agreement and how it was or wasn’t honored. But we see there’s more to the story. When there has been no agreement, no just transfer and only conquest, Locke says that people retain “the native right of their ancestors.” 

Locke has long been accused of providing intellectual and justificatory cover for the (mis)appropriation of Indigenous people’s land in America and around the world. But it seems like it’s been Locke’s views that have been misappropriated.

Current Events, Ethical Issues, Law & Legal Philosophy, Moral Theory, Political Philosophy/Theory, Toleration

Libertarianism and Abortion

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I offer this as a tentative foray into a discussion about abortion, obviously spurred by the recent SCOTUS decision, Dobbs v. Jackson.  I note that I have long been convinced that as brilliant as Judith Jarvis Thomson’s contribution to the debate was, it doesn’t actually solve anything. (For more on that, see the chapter Lauren Hall and I co-authored in The Routledge Companion to Libertarianism.)

Different libertarians define their political ideology in different ways.  (No surprise; different egalitarians do this, different socialists do this, different welfare liberals do this; in short, all political ideologies are multiply defined.  Presumably those adopting the same name have at least a family resemblance.)  

Some libertarians adopt the Non-Aggression Principle. Others adopt a view that indicates simply that individual liberty is the predominant value, never set aside to promote any other value. Others accept that natural rights are the foundation for the view. Others adopt some form of consequentialism. My own libertarianism is defined by commitment to the harm principle: no interference with an individual or consensual group is permissible except to rectify or prevent genuine significant harm.

What does this my form of libertarianism say about abortion? If the principle was only about harm to persons, abortion would presumably be clearly permissible since the fetus is not a person even though it is human. Of course, religious libertarians are likely to believe that all human life is sacred and that the intentional ending of such is necessarily wrongful. While I do not believe that, the harm principle in my view is not only about persons or humans. Genuine significant harm can occur to non-humans and merit interference, so whether or not the fetus is a person is not all that matters.

The question then is: is abortion a genuine significant harm? To clarify, I use the term “significant” to indicate that de minimis harms are not the sorts of things we interfere with (the cost of doing so may be a greater loss than the harm itself). I use the term “genuine” to indicate we are not discussing mere hurts or offenses, but hurts that wrongfully set back the interests of another (for more on this, see Feinberg or chapter 3 of my 2018). Once this is recognized, it should be clear that some abortions may well be genuine significant harms and some may not. Aborting an 8 month old fetus merely because one decided on the spur of the moment to take a world tour is, I think, wrongful. It would also be significant—ending the life of a human that could have been very good. On the other hand, aborting a 6 week old fetus because one was raped is unlikely to be wrongful and is at least plausibly less significant since at that stage spontaneous abortions are not uncommon.

Some will now likely object that what is wrongful is subjective. I basically think this is false—it is at least false if meant in anyway that is troubling for what I am saying here. People do not simply decide for themselves what is wrongful.   For more on this, see this BHL post and this one.

Assume I am right thus far: some abortions are genuinely and significantly harmful and some are not. What does that mean for law? On my view, answering this means first recognizing that law is a blunt instrument and as such has to wielded carefully. Perhaps making all abortions illegal after 8 months pregnant is reasonable. Making all abortions illegal is not. If a clear set of guidelines for wrongfulness can be decided upon, perhaps laws against abortions that are wrongful would be reasonable. I can’t here work out what such a list would include, but I do think a law against aborting 8 month old fetuses reasonable. Perhaps also a law against aborting a fetus on a whim (perhaps have a 5 day waiting period). Laws requiring parental (or spousal) consent might sound good but are likely to run up against significant objections, including the real possibility of rape and incest and unacceptable familial pressure. The final list will be difficult to determine and absent a final list, jurisdictions may adopt differing lists (as SCOTUS allows).

Importantly, the jurisdiction issue is more complicated than some recognize. Philosophers have long debated what would give a government legitimate jurisdiction over a group of people. I won’t be able to delve into that here, but will simply assert that I do not believe any of the US state governments is likely to have genuine legitimacy over all people within their borders. For that reason, it strikes me as perfectly acceptable for the federal government or other state governments to aid an abortion-seeker in a state wherein they are unable to get an abortion legally. (For one way this can work, see this interesting story.)

Current Events, Discourse, Law & Legal Philosophy, Moral Theory, Political Philosophy/Theory, Social Criticism

Moralism and Contemporary Politics

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People have asked me why I seem so focused on moralism.  There are multiple reasons, including having too much personal experience with people who operate as moralists, but what it really comes down to is that if we take moralism broadly to be a view that we should use the machinery of law to impose a moral view on the jurisdiction, most people in politics today are moralists.  (So, not just a justification of a specific law, but of the whole system of law.  A loss of viewpoint neutrality.)

On the right, we we have what are called “common good constitutionalists” or “common good conservatives” who basically say we should interpret the Constitution of the United States of America in such a way that will get us the common good of society.  Of course, what they mean by “the common good” follows from their conservative beliefs (see Patrick Deneen and Adrian Vermuele).  

On the left, you see basically the same thing without the claim made explicit. You have people pushing a particular view about how to guarantee equality and freedom in society, meaning a particular view about how society should be set up—and of course, that is a way meant to attain their view of the common good.

Of course those on the left and those on the right disagree about what the common good is.  This is what “culture clashes” are. So, for an obvious example, the two camps here would take opposing sides with regard to today’s SCOTUS decision in Dobbs v Jackson Women’s Health Organization.  One side (or at least some on that side) thinks all human life is deserving of the same basic respect as all other human life; the other thinks women deserve the respect that would enable them to control their own lives.

Both sides seem to believe that the machinery of the state—the law—should be used to make society moral, given their own (competing) views about what that entails.   (And we are likely to see this play out from SCOTUS fairly quickly.)

Importantly, libertarians are different.  We believe that people should be free to live their lives as they see fit subject only to the restriction that they don’t wrongfully harm others.  Some might say that this is a form of moralism as well—one wherein the view of morality is simply thinner than those of the other two views.  Perhaps that is right, but consider how it plays out.  Those on the left would want to force people to recognize and work for equal rights for women and to pay for programs meant to help with that.  Those on the right want to force women to carry pregnancies to term.  Meanwhile, libertarians want to force people not to force people to do anything.  That last seems obviously better.

Discourse, Free Speech, Uncategorized

Interpretive Charity and Heated Debate

I wanted to add to the discussion my co-bloggers have started on discourse norms.

Consider the following sample dialogues

1)
A: “I think stricter gun regulations would fail to prevent either determined criminals or the seriously deranged from committing the sorts of horrible crimes that make people want those stricter laws, but they would violate the rights of law-abiding gun owners and possibly make them less safe.”

B: “I think you’re mistaken about that.  Just as criminal background checks make good sense, so would some sort of red-flag or mental health history screening.  Indeed, since we already use criminal background checks, we could easily combine the two, plus it would help if there weren’t easy ways to circumvent the background checks.”

2)
A: “ I think stricter gun regulations would fail to prevent either determined criminals or the seriously deranged from committing the sorts of horrible crimes that make people want those stricter laws, but they would violate the rights of law-abiding gun owners and possibly make them less safe.”

B*: “That’s outrageous.  You think guns are more important than kids’ lives?”

3)
A: “I think there’s no plausible rationale for tighter abortion restrictions.  Claiming that life begins at conception is a religious doctrine, so using it as the basis for law would violate church-state separation.  In many religions, personhood isn’t thought to obtain until at least the 2nd trimester.   In any case, there are all sorts of reasons a woman might seek to terminate a pregnancy, medical ones most obviously, but also psychological reasons, and I think the best public policy would be to leave it up to her.”

B: “I disagree.  I am not depending on any particular religious doctrine when I claim that human life begins at conception. It’s a developmental spectrum, there are no sharp dividing lines, so if we don’t respect the new life that the pregnancy represents as early as possible, it’s a slippery slope.  As to the reasons why women might want to terminate, sure, if there’s a legitimate medical rationale that the mother’s life is in jeopardy, I can see that, but I think a lot of what you’re calling psychological reasons could be addressed through counseling, spiritual or secular.”

4)
A: “I think there’s no plausible rationale for tighter abortion restrictions.  Claiming that life begins at conception is a religious doctrine, so using it as the basis for law would violate church-state separation.  In many religions, personhood isn’t thought to obtain until at least the 2nd trimester.   In any case, there are all sorts of reasons a woman might seek to terminate a pregnancy, medical ones most obviously, but also psychological reasons, and I think the best public policy would be to leave it up to her.”

B*: “That’s outrageous. You think it’s ok to murder babies to preserve some illusion of women’s autonomy?”

————————

You may have noticed that dialogues (1) and (3) read very differently than (2) and (4).   That’s because in (1) and (3), the B character is responding to the A character’s arguments with different arguments.   In (2) and (4), the B* character does not actually engage with A’s arguments at all, but goes right for “baby-killer.”   Regardless of your view on either abortion or gun control, you should be able to see that in (2) and (4), B* is not arguing in a rational way, whereas B is arguing rationally in (1) and (3).   Does A actually hold the position that B* alleges?  Almost certainly not.  This is commonly known as the “straw man” fallacy; in this case augmented by an emotional appeal.  We know this because in the other pair of dialogues, B is offering actual counter-arguments. 

Why does this matter?   Because when people argue about these things, they have two sorts of objectives.  One is changing the mind of the other person, or perhaps onlookers.  The other is changing public policy.   But neither of these goals will be served with arguments that do not engage their opponents.  It’s totally implausible that A will respond to B* with “oh goodness, I didn’t realize I was advocating baby-killing, I hereby change my position.”  What happens instead is the discussion goes nowhere.

Sometimes we just get angry at people who disagree with us, and we are bewildered that others don’t see things our way.  But we should resist the temptation to straw-man.  If you don’t have the emotional bandwidth to argue with people, you’re certainly not required to do so.  But if you do think it’s worth arguing about, then your objectives will be better served with interpretive charity.  What actually is the other person’s position, and why?  Why do they think your position is wrong?  Is there something that might be common ground?  Are you talking past each other?  Are you sure that your position is informed by facts and logic?  Do you have any talking points that might be misinformed?

Sometimes we never resolve disagreements on highly controversial issues.  But if you hope to get anywhere, there’s a right way and a wrong way to do it.

Current Events, Free Speech, Misc Academic Issues

Georgetown University Does Not Have a Speech and Expression Policy

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The following is a guest post by John Hasnas. Dr. Hasnas is a Professor of Ethics at Georgetown University’s McDonough School of Business and Professor of Law (by courtesy) at Georgetown Law Center.

In 2017, to great fanfare, Georgetown University adopted a speech and expression policy that states,

It is Georgetown University’s policy to provide all members of the University community, including faculty, students, and staff, the broadest possible latitude to speak, write, listen, challenge, and learn. . . . It is not the proper role of a university to insulate individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Deliberation or debate may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or ill conceived.

On January 26, 2021, the incoming Executive Director of Georgetown law’s Center for the Constitution, Ilya Shapiro, expressed his disapproval of President Biden’s decision to consider only African-American women for appointment to the Supreme Court by tweeting: “Objectively best pick for Biden is Sri Srinivasan, who is solid prog & v smart. Even has identity politics benefit of being first Asian (Indian) American. But alas doesn’t fit into latest intersectionality hierarchy so we’ll get lesser black woman.”

On January 27, the dean of Georgetown Law published a campus-wide e-mail in which he called the tweet “appalling” and “at odds with everything we stand for at Georgetown Law.” On January 31, the dean placed the director on “administrative leave, pending an investigation into whether he violated our policies and expectations on professional conduct, non-discrimination, and anti-harassment.” 

On June 2, the dean published a campus wide e-mail in which he stated that Mr. Shapiro’s “tweets could be reasonably understood, and were in fact understood by many, to disparage any Black woman the President might nominate.” He went on to explain that 

In considering how to address the impact of Mr. Shapiro’s tweets, I was guided by two overarching principles. The first is the Law Center’s dedication to speech and expression. Georgetown University’s Speech and Expression Policy provides that the “University is committed to free and open inquiry, deliberation and debate in all matters, and the untrammeled verbal and nonverbal expression of ideas.” The second and equally important principle was our dedication to building a culture of equity and inclusion (emphasis added).

He then pointed out that the speech and expression policy states that “[t]he freedom to debate and discuss the merits of competing ideas does not mean that individuals may say whatever they wish, wherever they wish.” He further noted that speech that violates the University’s Policy Statement on Harassment is prohibited and that the Speech and Expression Policy does not supersede professional conduct policies or HR policies. He omitted the next sentence that states, “But these are narrow exceptions to the general principle of freedom of expression, and it is vitally important that these exceptions not be used in a manner that is inconsistent with the University’s commitment to a free and open discussion of ideas.”

The dean concluded his e-mail by stating,

Georgetown Law is committed to preserving and protecting the right of free and open inquiry, deliberation, and debate. We have an equally compelling obligation to foster a campus community that is free from bias, and in which every member is treated with respect and courtesy. I am committed to continuing to strive toward both of these indispensable goals (emphasis added).

Apparently, Georgetown has equally compelling commitments to “free and open inquiry, deliberation, and debate” and “to foster a campus community that is free from bias, and in which every member is treated with respect and courtesy.” 

Combining these two commitments means that Georgetown’s policy is to provide all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn unless some members of the Georgetown community could reasonably understand what is being expressed as disparaging them or the administration finds the comments at odds with what Georgetown stands for. It means that Georgetown believes that it is not the proper role of a university to insulate individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive unless they offend some members of the Georgetown community. It means that members of the Georgetown community are free to express ideas that others find to be offensive, unwise, immoral, or ill conceived unless students or administrators deem them too offensive, unwise, immoral, or ill conceived to be permitted.

It means that Georgetown University does not have a speech and expression policy. 

Editors note: Yesterday, Ilya Shapiro resigned his position at Georgetown, claiming it would be a hostile work environment wherein he was set up to fail.
Law & Legal Philosophy, Moral Theory, Social Criticism, Uncategorized

Once more, against moralism in community

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Legal moralists worry about the degradation of social norms and community connections. Their worry is that immorality tears at the “fabric of society” where that “fabric,” presumably, is the system of moral beliefs held in common by most people in the community.  Legal moralists are thus happy to impose their own moral views on others with the power of government—they think that this must be done if the norms (and moral beliefs commonly held) are threatened. 

In their willingness to use government power to impose their views of morality, moralists ignore the fact that when a government is empowered to force people to act in certain ways, that power crowds out the ability of individuals to interact freely with one another. That is a problem for their view because if individuals can’t freely choose to act in ways others (including the moralists) think is bad, they also can’t freely choose to act in ways others (again, including the moralists) think is good.  The problem for the moralist, then, is that you can’t have a morally good community if people can’t choose freely—you could at best have a simulacrum of such, more like a collection of automatons than a community of persons.  A morally good community is an association of moral beings—beings that choose for themselves—who (often) freely choose the good.  Putting this a different way, the moralist has to believe you can have a community made top down, forced upon members who are free, but that is impossible.  Community thus has to be made bottom-up; community is made by the individuals within it choosing to interact well together.

This applies, by the way, regardless of the level or size of community.  A condo or homeowners association, for example, can’t be made into a genuine community by fiat—even if those trying to do so take themselves to know (or actually do know!) what is best for everyone.  It simply cannot work—or rather cannot work unless everyone in the group agrees—in which case, it is not top down after all.  

To be clear: if you want to start a genuine community, do so only with people who already agree with you.  (Like, but not necessarily as rigid as, a cult.)  I’d add that if you want the community to remain a community, you’ll need a way to guarantee that all who enter it agree with you in advance.  (Again, like, but not necessarily as rigid as, a cult.) Otherwise, you’ll face opposition from some of the newcomers—different ideas about what the community should be.  And those ideas from newcomers (at least those who enter justly), will have just as much claim to be legitimate as yours.  Denying that entails not community, but moralist dictatorship.

Current Events, Economics

Moral appeals in times of scarcity

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The New York Times recently reports there is a developing cooking oil shortage. The subhead to the article reads: “Several British supermarkets have joined other chains around the world in asking shoppers to limit their cooking oil purchases, as supplies dwindle and prices rise.” Before reading the article I wondered if this sort of request of consumers risked being naive and counterproductive. After reading it, I am still unsure.

Basic economics typically says that the most efficient way to allocate resources is through the price mechanism. Prices send important signals to producers and consumers about the availability of and need for goods and services. As prices rise and fall, producers and consumers can often adjust their behavior. Consumers can change how much and what they consume. Producers can see opportunities for profit and bring more or different goods to the market.

Sometimes people refer to prices as one way to “ration” goods. This isn’t quite right. Rationing supposes some deliberate allocation mechanism. Prices, on the other hand, typically respond to market signals, not the dictates of some bureaucrat.

Critics will insist that prices assign opportunities to access goods to people in just the way that any government rationing does. I’d dispute this, but instead of quibbling over meanings of terms, consider more neutrally the merits of certain ways of allocating goods.

Wartime era rationing is one way to allocate scarce goods. Another example is first-come, first-served, such as in queuing. Alternatively or in addition, there might be per-purchase or per-person limits.

Queuing is a way to allocate goods because only people with the resource of time will get access. America’s national parks now experience historic levels of demand. There are often caps on the number of daily visitors. People gain entry only by investing the time to show up early and wait in line.

Another way to allocate goods is by per-person limits. Consider how Ticketmaster restricts concert ticket purchases. During the pandemic, in the USA many stores allowed consumers to purchase only so many packages of toilet paper. This supposedly prevents resellers from buying all available products and cornering the market.

Should there be non-price-based restrictions on cooking oil purchases? For some people, cooking oil is a type of good they use to satisfy their basic food needs. Their demand for cooking oil might not be especially “elastic.” Their needs for it don’t always respond to price signals as readily as their needs for other goods. The significance of oil for many consumers might partly explain why some providers use moral exhortation. The New York Times article includes a photo showing a sign a British grocer had posted, which read, “So that everyone can get what they need – we’re limiting these products to 3 per customer.” This notice explains the store’s policy and might help inspire people to conserve.

If there are no per-purchase caps, it might seem only the rich would get to eat. So, perhaps we should applaud some British merchants who restrict sales in order that people have “fair” access. Moral appeals might seem to help here since people are reluctant to have prices do all the signals for allocating goods. Such moral appeals, one might say, encourage people to conserve.

I doubt scarce goods in such circumstances become more accessible by wishing and pleading. Of course, my hunch is vulnerable to being overturned by data: perhaps those moral appeals have effects at the margins. After all, such appeals seem to encourage many people to bear the costs and inconvenience of recycling. Perhaps too, with cooking oil, sellers can make moral appeals to a sense of civic solidarity to ensure adequate access to scarce sunflower oil.

Still, I worry such limits, combined with moral appeals, mask naive understandings of economics. These measures risk backfiring. Telling people a store is rationing goods is often a surefire way to inspire panicked buying.

Consider again what happened with toilet paper. As soon as stores imposed limits during the pandemic, there were runs on toilet paper. Many families joined others in the US in hoarding it. They did this not because they needed to have over one hundred fifty rolls available, but to fend off shortages in light of people who threatened supplies with panicked buying. In other words, many people overbought out of fear that other people were overbuying. The same routinely happens in the US south when snow storms are in the forecast. People hit the grocery stores to stock up on bread, milk, eggs, and beer (and… not necessarily in that order). If the store caps how much people may buy of such staples, people will often buy up to the limit and encourage family members to do the same. A week or two later, many people are pouring spoiled milk down the drain. So my first worry about these limits is that they inspire panicked buying and exacerbate any shortages there might otherwise be. If a store adds a moral appeal, we must ask whether that’s the most effective way of getting people to allocate resources “fairly.”

Many families would not overbuy if prices had risen to reflect increased demand. If each toilet paper roll were $50, they would curtail consumption and purchasing. It then seems that price signals might be a more effective signal than any per-purchase caps. It might also be more effective than moral appeals.

People might say that increasing prices is inappropriate because high prices clash with “fair” access. Alternatively, they might say, per-purchase caps secure such “fair” access. They might say: surely everyone should have fair access to wiping their fannies in times of scarcity. After all, they might add, demand for toilet paper is inelastic. You’ve got to wipe!

This is false. Demand for many goods people regard as essential is often somewhat elastic. This is true even with toilet paper. Consider how you’d change usage patterns if each roll were $100 or $500. You’d use less. You’d consider substitutes. You can (and many people did) buy a bidet, such as from this seller, which I promote for free only because I like the name.

I don’t dispute the effectiveness of moral appeals in some cases. Whole blood donation in the US provides some evidence. Blood donation drives exhort people to help the sick and needy. Compensation for donors is merely free juice and cookies afterwards. For the most part, in the USA there is an adequate and safe blood available. (But see a related recent book by fellow blogger James Stacey Taylor, giving a compelling defense of paid plasma donations.)

I remain worried that certain moral appeals risk cheapening moral discourse. (See related discussions by Tosi/Warmke.) They risk making morality an empty exhortation, especially when is a better alternative: the merchant could raise the price.

Some merchants won’t do that. It’d be bad PR. Consider a local hardware store in a small town when a rare snowstorm is on the horizon. One might think that’d be a great opportunity to raise prices on shovels and ice-melting salt. Many won’t raise their prices, though. They know that if they do so, it’ll sour their reputation within the community. In that case, one can imagine the owner refusing to sell anyone more than one shovel. The owner might think it’s more important that more people in the community have access to shovels.

Offering moral appeals in certain cases of scarcity seems to undermine the signaling function prices provide. Indeed, offering moral appeals seems to undermine the point of the moral appeals. When prices do not reflect supply and demand, producers lack the information they need to know how to shift production and distribution. But it’s also a problem for consumers. Consider the standpoint of a consumer who wants to allocate their family’s scarce resources carefully and plan responsibly for the future. Suppose that consumer wants not to deprive others of fair opportunities to access important goods. Without appropriate price signals, that consumer might not know what to do. They want their family to have toilet paper (or cooking oil, or milk, or gasoline, or eggs, or whatever), and they might want others to have appropriate opportunities to gain similar access. But the sign on the British grocer’s shelf doesn’t tell them how important it is to, or the extent to which they should, constrain their choices. Prices give even better information in most circumstances.

Ultimately, it might best be left to merchants to decide how to price their goods and what message to send. Some messages risk inspiring greater panicked buying. They also risk undermining the appropriate force of moral reasons.

Prices convey plenty of information. Substituting or adding moral appeals risks making scarcities worse and risks cheapening the value of moral appeals.

Current Events, Discourse, Education, Social Criticism

What happened?

4 Comments

It’s a bad week. Polarization has lead to a federal truth commission (thank you Dems) and the likely removal of federal protection for reproductive freedom (thank you Reps). Neither of these, so far as we know, is popular. A working democracy of Americans would be unlikely to bring about either. But we don’t seem to have that—or at least not to the extent that we might have thought. In part, this is because of the way discourse in our society has deteriorated. Discourse in our society is, to say the least, strained.

Given how strained our discourse has become, some would prefer to have less of it, walking away from those they disagree with and encouraging others to do the same. In Choosing Civility, P.M. Forni, cofounder of the Johns Hopkins Civility Project, finds it encouraging that roughly 56 percent of Americans seem to believe it “better for people to have good manners” than to “express what they really think” (76) and claims that civility suggests meals are “not the best venue for political debate” (79). On my view, by contrast, people too frequently censor themselves rather than engage in conversation with someone they think wrong about an issue. I think this horribly unfortunate, even if understandable. I think it is understandable because of the way many of us are raised. I think it unfortunate because it leads predictably to a loss of discourse that would promote a more civil society. When people don’t engage in civil discourse with each other, it’s too easy for people to live in ideological bubbles, too likely that people will be unable to even engage with those they disagree with, and too easy for those with power to ignore the wishes of the rest. I want to suggest one cause and possible corrective of this situation.

As children, when we visit extended family or friends, many of us are told not to mention religion or politics, Uncle Bill’s drinking, Aunt Suzie’s time in prison, or any number of other family “secrets” or disagreements. Those subject to these parental restrictions learn not to discuss anything controversial, including serious social issues and our own values. The lesson many seem to take from this is that it is impolite and disrespectful to disagree with others. It is hard for me to think this has not contributed to the polarization and rancor in our society. Because we are trained, from an early age, to censor ourselves and repress conversation about a wide array of topics, it’s not surprising that many are shocked when someone disagrees with them—we are taught not to disagree or even suggest a topic of conversation about which there is likely to be disagreement, so people are naturally surprised when others do precisely that. They think it rude. Given the surprise, moreover, many make no attempt to provide a reasoned response to someone who says something they disagree with or find distasteful. This is a mistake.

The problem may be worse than simple parental limits. As a culture, we seem committed to social separation. Not only do we actively and explicitly discourage children from having honest conversations (which join us with others), but we also seek to set up our lives so that we have more distance from each other—even our immediate family members. People complain about the rising cost of homes, but in real dollars, the cost per square foot of a home has not increased that much (see this). Home costs have increased largely because we insist on larger homes—homes where we have our own bathrooms, our own bedrooms, our own offices. With all of that space, we are away from our loved ones, leaving us able to avoid difficult conversations with even our closest intimates. We don’t have to negotiate for time in the shower, for use of the television, or much of anything else. We don’t have to discuss things we disagree about. (And, of course, Americans tend to think that once a child graduates from high school they ought to move out—again, allowing that those almost-adult children can avoid dealing with their parents, learning how to deal with them when they disagree. And when they “talk,” they now do so by texting—furthering the distance from what would be allowed by face to face, or at least, phone, conversations.) In all, we insist on and get more—more space, more privacy, more isolation. We also sort ourselves—moving to neighborhoods and jobs where others that agree with us live and work. We spend less and less time with people we disagree with And then we are surprised that we don’t know how to deal with such people.

So much for the social criticism. That is, I submit, one of the causes of our current lack of civil discourse (and thus increased polarization). If that is right, the solution should be straightforward: stop taking steps that discourage children from engaging in honest discussion. Make children share a bathroom so that they at least have to negotiate its use with a sibling. Maybe have them share a bedroom too! Really importantly, stop telling children not to discuss certain topics with others. Let them learn from others, let others learn from them. (And obviously, those of us teaching in college should seek to promote discussion of ideologically diverse views, even views that some find offensive.) We need to be offended when young so that we don’t refuse to engage with others we find offensive when we are adults. We would then be prepared for honest civil discourse.

Blog News, Current Events, Political Philosophy/Theory, Social Criticism

Why ‘ProSocial Libertarians’?

I am wary of isms and labels. They are used too often by too many as excuses to stop thinking. Worse, no doubt aware of the human tendency to avoid ideas that challenge our preconceptions, unscrupulous advocates on all sides use labels such as ‘socialism’ or ‘far right’ to pillory views with which they disagree, in effect saying ‘These ideas are beyond the pale. You can ignore them.’ This, in turn, further discourages people from venturing outside the safety of their thought bubbles and trying to understand why others might hold different views. 

Although I am quite sensitive to this thought-stultifying use of labels — having taught critical thinking for years — I am sure I am not the only person for whom effectively labeling something as beyond the pale piques one’s curiosity instead of squelching it. (This, by the way, is the main reason — along with my name — that I first read Ayn Rand.) So, fortunately, there are also people who want to be challenged and seek out ideas that put their preconceptions under strain. If you fall into this group, you should enjoy this blog.

Despite the risks that labels bring, we cannot manage without them. To minimize the risks, we should acknowledge that labels are only a starting point for discussion and that the meaning of any politically interesting terms will need to be clarified on an ongoing basis. 

In light of all this, if I had to choose a label that best captures my political orientation, that label would be ‘libertarian’. I found it dismaying, then, during the COVID-19 pandemic, to see the term ‘libertarian’ — as well as related terms like ‘freedom’ — arrogated by a rogue’s gallery of activists and politicians who have been called — with some justification —antisocial. 

What was dismaying was that these so-called ‘libertarians’ were acting out an old, muddleheaded conception of libertarianism that many people could (wrongly) take as reason to dismiss libertarian ideas as unworthy of serious consideration. For, according to this old, muddleheaded conception, libertarians just _are_ antisocial. Like Randy Weaver, libertarians on this conception want nothing more than to be left alone and they will happily head to the woods with their guns and family to achieve this end. Properly understood, however, libertarians need not be Randy Weavers. Or, at least, so I believe. (Please note: In no way do I intend for my use of Randy Weaver as an example of an antisocial libertarian to diminish the tragedy and injustice that befell him and his family at the hands of the United States government.)

Given what the honest use of labels requires, I want to be as clear as I can about what I mean by ‘libertarian’ and why being a libertarian involves being prosocial, not antisocial. But there is no such thing as a conceptual dictator, so any work towards understanding libertarianism will, of necessity, be a joint enterprise. Hence, the idea of this blog: a civil forum for exploring what it means to be a libertarian and the ways being a libertarian involves being prosocial. Hence also, our name: ProSocial Libertarians.

Owning Civil Discourse and Social Justice