Liberalism has many paradoxes. It is, historically, a jealous and publicly authoritative anti-tradition Tradition - a political philosophy intended to liberate man from the "tyranny" of tradition - and is therefore a hopeless bundle of contradictions. Liberalism tolerates every religion or point of view that claims no public authority, which means it tolerates nothing but itself. (Only an honest, coherent, self-respecting tradition can genuinely tolerate other traditions.) Dr. Thaddeus Kozinski of Wyoming Catholic College exposes the cult of Liberalism in two recent essays: "The Tradition of Nothing Worship", Part One and Part Two.
Part Two reveals the essence of Liberalism as follows:
People in the modern west may use the term liberalism, and identify “other” points of view in contrast to it, but because they are inside liberalism, and do not know it, they do not recognize the liberalism of liberalism. They do not see it as an alien, artificial ideology projected upon the walls of their minds by the elitist puppeteers of academia, religion, bureaucracy, and media, but simply as “just the way things are.” They are like fish that never recognize their immersion in water because they know of nothing else.What then is liberalism? MacIntyre gives a popular definition of liberalism here:
"Initially, the liberal claim was to provide a political, legal, and economic framework in which assent to one and the same set of rationally justifiable principles would enable those who espouse widely different and incompatible conceptions of the good life for human beings to live together peaceably within the same society. Every individual is to be equally free to propose and to live by whatever theory or tradition he or she may adhere to…"
Up to this point, we have a “cave definition” of liberalism. As we read on, however, light begins to shine upon the shadows:
"… unless that conception of the good involves reshaping the life of the rest of the community in accordance with it …"
And this qualification of course entails not only that liberal individualism does indeed have its own broad conception of the good, which it is engaged in imposing politically, legally, socially, and culturally wherever it has the power to do so, but also that in so doing its toleration of rival conceptions of the good in the public arena is severely limited.
Liberalism claims to provide a religiously neutral social framework within which individuals can autonomously determine their own vision of the world in perfect freedom. MacIntyre rejects liberalism’s official public claim that it lacks any particular conception of the good and any restrictions on the conceptions of the good of others. If MacIntyre’s characterization of liberalism is correct, then liberalism is unmasked as a liar.
And it is a particularly pernicious lie. Since liberal culture is, according to MacIntyre, founded upon a particular conception of the good and a particular doctrine of truth, namely the good of the privatization of all claims to truth, and the truth of the irreducible plurality of conceptions of the good, and since the publicly authoritative rhetoric of liberal culture denies having any substantive conceptions of its own, then what liberalism amounts to is an established and intolerant belief system—a religion that indoctrinates citizens into disbelieving in its very existence. Just as the puppeteers must ensure that the shadows are never seen as shadows, else the cave be identified as a cave and the prisoners break their chains, liberalism must never be exposed as liberalism, that is, as a historically contingent, non-necessary, manmade ideology. It must at all costs be identified with “the facts,” “the way things are,” as the inexorable social reality. In short, as the great Nietzschean ironist Stanley Fish, a cave-puppeteer with a genius for exposing his fellow puppeteers to the light, has confessed: “Liberalism doesn’t exist.”
The problem, however, is that it does, and its existence is no longer limited to an abstract idea or a revolutionary experiment—it is now a well-established social reality. The liberal incubus has found a willing consort in the decrepit culture of the secularized west, and, as MacIntyre tells us, has begotten a son, a living tradition:
"In the course of history liberalism, which began as an appeal to alleged principles of shared rationality against what was felt to be the tyranny of tradition, has itself been transformed into a tradition."
And unfortunately, we citizens of the modern liberal democracies of the west are its traditionalists.
Comments (61)
"The Cult of Liberalism and its "Traditionalists"
Woe to those who name the Cult of Liberalism as being a Cult.
Posted by Truth Unites... and Divides | July 9, 2012 3:18 PM
Classic 'liberalism' was the basis for Libertarianism - and it was all about liberty and freedom (for all - not just the chosen few).
Contemporary 'liberalism' is socialism/communism with the "liberal" tag applied - and it is all about centrally planned control over opposing every aspect of our lives - especially opposing viewpoints.
Posted by Chucky Darwin | July 9, 2012 7:14 PM
One too many "opposing"s there!
It should read: "it is all about centrally planned control over every aspect of our lives "
Posted by Chucky Darwin | July 9, 2012 7:16 PM
Chucky, you may be right. But, can you describe the historical phenomenon you are thinking of under the term "classical liberalism"? I am trying to understand whether your term derives from the 13th century, or 16th, or 18th, or what.
Posted by Tony | July 9, 2012 9:19 PM
Chucky Darwin,
Even the classical liberalism is not all-innocent. It was too often an imposition, an armed imposition by a central authority, over localities that sought to conserve their traditions. E.g. steamrolling of State's rights, Indian wars and various legal ways a central commercial republic was built up.
It could not be otherwise. The libertarianism and socialism are twins, based upon non-Catholic (as the Catholic Encyclopedia calls it) Hobbesian theory of State.
One sees that Hobbes is still the default assumption for a lot of conservatives.
Posted by Gian | July 10, 2012 1:39 AM
This has always struck me as the fatal paradox at the heart of what I really believe is a tragically well-intentioned philosophy: it has no answer to the objection raised by those who see the use of state power to prevent imposition of values as, itself, an imposition of values -- as it cannot help but be, since even that most ostensibly neutral goal, to prevent "imposition", itself presumes the impositional power to decide what constitutes impermissible imposition and what merely constitutes permissible transmission or promotion.
Posted by Stephen J. | July 10, 2012 11:38 PM
I'll admit I had to read that two or three times. :-)
You nailed it: Liberalism is itself a comprehensive value system - a tradition - and its uniqueness as such lies only in the deception and dishonesty.
Posted by Jeff Culbreath | July 11, 2012 3:20 AM
"Liberalism is itself a comprehensive value system - a tradition"
Inevitably so. Aristotle begins from the premise that the individual is a part of an
authoritative political community, and not that he or she arrives on the scene, natural freedoms in hand,
willing to sign the social contract under certain clear conditions.
Aristotle describes the polis and the politics; he is not prescribing.
Thus the social contract idea is fundamentally wrong and all the liberal schemes build atop of it
obstruct the authoritative nature of the liberal order.
The liberal, moreover, agrees with Aristotle that the political community is both the most authoritative
educator with regard to our action and the object of our noblest devotion.
Posted by Gian | July 11, 2012 6:46 AM
Patrick Deneen has a great essay on "unsustainable liberalism" in the new First Things. It just arrived yesterday and I've not had time to read the two responses yet. But Deneen rightly points out that modern conservatism is itself a species of liberalism, in that it accepts in the economic sphere the same voluntarism and individualist notion of liberty that Left-liberalism champions politically. This is what Chucky Darwin seems to mean by "classical liberalism,' but as Gian states, even this has its root in Hobbes.
Posted by Nice Marmot | July 11, 2012 10:54 AM
Man, it seems like every time I miss a couple days on the PC the conversation is most interesting!!
Hopefully some of you are still interested.
Tony:
Well, I'm new to libertarianism (having only read Hayek's "The Road to Serfdom" and Ron Paul's "Liberty Defined") so I couldn't tell you exactly where the roots lie. I know that Hayek refers to "liberalism" as in opposition to socialism and communism, so it was used in that sense during WWII England.
Gian:
Maybe I'm missing something but that seems backwards to me. The classical liberalism Hayek propounds is the antithesis of a centrally regulated society. His liberalism is reliant upon the concept that people will self-govern in local societies and that the central government is only used for that which local governments are not suited (national defense, immigration, foreign policy - etc.)
I'm not aware of a time in history when proponents of Hayek's brand of liberalism consented to a strong central government. I'll need to be enlightened if you have any examples please!
Stephen J:
Well, the fundamental answer is that the state does not prevent values from being expressed and only limits the imposition of values upon unwilling individuals. The classic example is that the state protects individuals "from force and fraud". If the imposition of values ventures into either of those categories, then the state would step in to protect the individual being forced or defrauded.
The fundamental difference between classical liberalism and today's liberalism is that the classical liberalism was all about limited government power. Today's liberals (and many conservatives) want the exact opposite.
Posted by Chucky Darwin | July 11, 2012 7:41 PM
Chucky, you need to discover some history.
Liberalism (in the sense of politics), even classical liberalism, didn't spring out of thin air in opposition to socialism and communism. For one thing, the expression draws at least SOME of its strength from the Latin "libertas", freedom, and thence from "liberal arts and liberal education", the education suited to the free man, which was the education that covered all of the basics of the humanities and the sciences so that the free man was capable of judging and integrating them all, and therefore capable of ruling. (As opposed to the education of the slave or servant, whose education was for specific arts or crafts, so as to be useful, but not so as to be capable of judging them all and thus being able to rule.) The notion of liberal arts and liberal education pre-dated political classical liberalism by quite some centuries.
Classical liberalism came into being following the progression of governments in which the idea of men capable of ruling themselves _en_masse_ became possible, and this took social development out of slave-based societies and feudal societies. Classical liberalism borrowed not a little from the political theory of Cardinal St. Robert Bellarmine, who pre-dated Hobbes and Locke but loaned to them the notion that the powers of governments come to them through the hands of the people they govern. As a result, there are certain strains of classical liberalism that are very friendly to modern Catholic social teaching, such as to support the principle of subsidiarity. However, Hobbes and Locke turned society on its head in denying that man is a social being at his core, and thus brought into "classical" liberalism a very different strain, that of atomistic individualism.
The most common meaning for "classical liberalism" is the sort of political liberalism of limited, constitutional government found in the 1700's and early 1800's, which rested quite strongly (but not solely) on Hobbes and Locke, without having yet worked out the logical ramifications of their assumptions in its most ripe fruit.
And then later liberalism imported threads of progressivism, which quickly consumed the threads connected to subsidiarity and instead put out fruit in statism, and resulted in the mess we have now. Some "conservatives" think what we need is to go back to the classical liberalism of the early 1800's. Usually, what they mean (in a muddled way) is that there were plenty of threads in that classical liberalism that were sound, and they don't pay much attention to the threads that weren't.
There is no principled way to distinguish the two, (protection and imposition) without a view of the nature of man. And since people don't all think of human nature the same way, a government acting as if human nature is determined one way (and thus "protecting" man from an imposition of values against his nature) looks, to the other side, as itself an imposition. If you will tell me what you think human nature is, I will give you concrete examples of the problem.
Posted by Tony | July 11, 2012 11:57 PM
Chucky Darwin,
Hayek was much less absolutist than Mises, who is the Lenin of libertarians; Hayek being the Fabian Sidney Webb.
The idea of libertarian freedom only came into being as a result of overwhelming action, often military action, on part of some strong centralizing state that crushed subsidiary centres of power and administration. You had unification of France, Germany, Italy in 18th-19th C.
The Catholic theories of the origin of civil powers (from Catholic Encyclopedia):
The question of the origin of civil power and its concentration in this or that subject is like the origin of society itself, a topic of debate. Catholic philosophy is agreed that it is conferred by Nature's Lawgiver directly upon the social depositary thereof, as parental supremacy is upon the father of a family. But the determination of the depositary is another matter. The doctrine of Francisco Suárez makes the community itself the depositary, immediately and naturally consequent upon its establishment of civil society, to be disposed of then by their consent, overt or tacit, at once or by degrees, according as they determine for themselves a form of government. This is the only true philosophical sense of the dictum that "governments derive their just powers from the consent of the governed". The Taparelli school makes the primitive determinant out of an existing prior right of another character, which passes naturally into this power. Primitively this is parental supremacy grown to patriarchal dimensions and resulting at the last in supreme civil power. Secondarily, it may arise from other rights, showing natural aptitude preferentially in one subject or another, as that of feudal ownership of the territory of the community, capacity to extricate order out of chaos in moments of civic confusion, military ability and success in case of just conquest, and, finally, in remote instances by the consent of the governed.
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One needs to appreciate the difference between Locke and Suarez:
Locke assumes that individuals have natural rights of self-defense and they pool their natural rights and form a political community by a social compact. This leaves the possibility open that the individuals again may leave the social compact and this possibility the libertarians exploit (theoretically). Justice is problematic, since the individual right to self-defense does not extend to meting out justice. An individual can get restitution and even kill in self-defense but can not punish the offender in the sense a political community can.
In Suarez, it is the political community that is sovereign, once it exists. There is no social compact. The individual rights exist by Natural Law. Justice is unproblematic since the community is always sovereign over the individuals.
Posted by Gian | July 12, 2012 7:46 AM
Tony:
I agree - and thanks for the synopsis. Well, I did know that! Isn't their brand of individualism one of voluntary subjection to a sovereign authority? So, it is still societal in the end - correct?
That was the distinction I was trying to draw (though I didn't have the depth of knowledge to do it as well as you did.)
I'm not sure I get this. Who exactly is "the other side" here? It seems to me that it's pretty easy to recognize when one individual is imposing his will on another unwilling individual. To say that government is "imposing" upon the first individual by protecting the second seems a stretch to me.
That seems like an unnecessary question by my thinking. (I'm sure you'll explain why it's key though!) Other than someone who believes that "human nature" means that some classes of humans are naturally sovereign over others, I can't think of any view of human nature that doesn't recognize force and fraud as an evil against persons.
Posted by Chucky Darwin | July 12, 2012 7:00 PM
Gian:
So (if I'm reading you correctly) libertarianism was the result of overwhelming action and not vice-versa. Does that mean that libertarian freedom was a reaction to this overwhelming government action?
Thank you.I agree with Locke on that one. Who's to say that a political community (once it exists) should always retain sovereignty? No change of government would be possible under such a system.
Posted by Chucky Darwin | July 12, 2012 7:11 PM
Yeah, I didn't like that phrasing "always sovereign over individuals" either.
First of all, "sovereignty" as such only applies to a polity, it has no bearing when the entity is merely an individual. Individuals cannot exercise "sovereignty". What they exercise is personal responsibility and self-direction - what some people want to call "rights."
But "rights" are by far the most misunderstood term in politics - due to Locke et al. There is something fundamentally incoherent in trying to say "I have a right to knowingly harm myself by taking up smoking" even though "I would be morally in the wrong to take up smoking." Rights advocates typically have no problem with saying both, ignoring the internal incoherence.
The issue isn't whether you are "in your rights" in doing it, it's more whether the state has a legitimate power to stop you. And that depends on whether the state getting into a small, local, semi-personal matter does more to support the common good than it does to harm the common good. And deciding this requires realizing that a pretty important part of human flourishing consists in self-directed endeavors to meet and solve individual needs and desires. Hence there is always a trade-off in state imposition from above, and that trade-off must be justified in the face of subsidiarity - the presumption in favor of the smaller entity, or lower level of community.
Where Hobbes and Locke went wrong at root is denying that what man is cannot be stated without reference to his social side - his flourishing means flourishing in community, as such. Hence man is made to be part of a polity, and he is not absolutely free to enter into or walk away from society altogether, the way he is with contracts. The polity is not a contractual agreement, it is a necessary expression of human nature, and a man belongs to the larger political society in a way he doesn't belong to his chess club. The particular form of the polity is not a necessary expression of human nature, so different forms are legitimate. And therefore it is logically and morally possible for a society to change one government for another - without agreeing with Locke's starting points.
Posted by Tony | July 12, 2012 8:56 PM
Chuky Darwin,
"libertarian freedom was a reaction to this overwhelming government action?"
No. Even the idea of libertarian freedom was developed after the centralizing govts had cleared away the local, subsidiary centers of power. The decay of religious faith is also an important factor.
JS Mill was probably the first writer to enunciate
the Harm Principle in its conventional form.
"some classes of humans are naturally sovereign over others"
The libertarian freedom is context-free but conservatives view societies as having their own character and history and that a given society can justly act to defend its character.
There are three irreducible levels to society
1) The City or political organization
2) The Family
3) The individual
The libertarians cry Lose the We and subject The City and the Family to economic analyses that are appropriate to the Individual level. Many paradoxes and puzzles in economics are resolved by paying proper attention to the political context.
Chesterton has said that the first thing a free people want is to bind themselves. The American
Declaration of Independence had a political context:
Modern Americans read the Declaration of Independence too individualistically. We think of it as a revolt against high taxes and big government. While the Declaration does object to violations of “individual rights,” its understanding of how individuals exercise these rights is broader than modern Americans generally conceive of them.
James R. RogersTake the Declaration’s best-known complaint against the King, “for imposing taxes on us without our consent.” This is not about high taxes. Any tax, no matter how mild, that is imposed without a people’s “consent” would violate this principle. On the other hand, a very high tax, imposed with the consent of the people, would be unobjectionable.
As much as they objected to violations of individual liberty, the colonists objected to the King’s preventing them from exercising a collective liberty–to be governed by laws established by their own consent through their representatives. This aspect of the Declaration’s argument has been largely lost in the emphasis we place on individual rights.
Consider the very first indictment against the King in the Declaration, that “He has refused his assent to laws, the most wholesome and necessary for the public good.”
This was not a complaint about the King’s violating individual rights as modern Americans think of them. Rather, the leading indictment against the King is that he did not allow the colonists to be regulated by all of the laws they thought necessary for their own good. I only half joke with my students that the colonists complained in the Declaration that the King of England was giving them less government than they wanted.
Or consider the next indictment listed by the Declaration against the King, that “He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained; and when so suspended, he has utterly neglected to attend to them.” Again, a complaint that the King delayed the passing of needed laws in the colonies.
The third indictment gives us a more complete hint of the specific right contested for in the Declaration: “He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.”
Collective Action and the Declaration
Jul 3, 2012
James R. Rogers --First Things
Posted by Gian | July 13, 2012 2:33 AM
Tony:
Although there have been many "sovereign individuals" (kings, dictators, popes). Of course none of these rule in a vacuum.
Well, I may be among the misunderstanders, but I don't find the smoking example incoherent at all. It is fundamentally a question of whether free-will is a God-given right or not. God knows that humans will do wrong, yet he allows them to do so (he does not force his will on anyone). To say "I have a right to knowingly harm myself by taking up smoking even though I would be morally in the wrong to take up smoking" seems perfectly within the realm of free-will to me. I believe that God has given us the freedom of choice and thus: who are we to say that's not a God-given right? We do however, as a society, have the responsibility to hold people personally accountable for the consequences of their bad choices.
That depends on whether the common good includes the right to exercise free-will. I would think that it does.I disagree. I think that man is (or should be) absolutely free to walk away from one society and into another (though I do agree that man is always a part of some society.) To my mind, there is still an individual choice involved.
Posted by Chucky Darwin | July 13, 2012 7:56 PM
Gian:
Another interpretation is that the colonists were advocating for a more decentralized, localized form of government. Thus they are not complaining that there are not enough laws, but rather that they are his laws and not their laws.
Posted by Chucky Darwin | July 13, 2012 8:03 PM
So, using force on your child to make him pick up his room, or say please and thank you, is "an evil against persons." See, I think that there are lots of views of human nature that DON'T think that sort of using force is an evil.
OK, I am sure that you will roll your eyes at me, because you were thinking about adults and I brought in kids. I will give an example about adults, but not before mentioning that the classic libertarian theory has a big gap precisely because it is unable to deal with children in its theory.
Alright, let's take the typical libertarian Lockean view of "forcing" someone: The city-state decides it needs to build a wall for protection from enemies, barbarians, and aliens. So they levy a tax of $1,000 dollars and 2 days labor per month on all adults. Oh, and they decide to buy out all the landowners around the edge of town to get the land for the wall. You think the wall idea is insane, and you say "you guys are free to build your wall if you think it is a good idea, but I think it is nuts, so count me out. And I have no wish to sell you my land, so build elsewhere." The city fathers respond by letting you know, with force, you are not free to choose to "count yourself out". In some versions of libertarian theory, of course, that sort of force is illegitimate, but in every polity that has ever existed it has been held to be legitimate.
So, when you say "force... is an evil against persons," it needs some qualifiers, doesn't it?
Posted by Tony | July 13, 2012 8:42 PM
You do know the meaning of the word "right", do you not? Do you recall that it has a contrary, "wrong"? You are aware that a choice cannot be "right" and "wrong" at the same time, yes?
Yes, of course God has given us the power of free will: we have the power to choose. He has not given us the power to choose whether our choices have good or ill consequences when we choose: we cannot choose to murder someone AND choose that such choice to murder has all good consequences, and we cannot choose that such choice to murder shall be a moral choice - our power of free choice does not extend that far. When you use the word "right" in reference to the power to choose, you are collapsing notions into that power, without consideration, that don't properly belong there. When faced with the power to choose WHETHER to commit murder, you have the power to choose to murder, and the RIGHT to choose NOT to murder. To say that you have a right to choose to murder is an oxymoron.
Well, of course, but everyone knows that since murder is using force against persons (as well as against the law), you don't have the right to commit murder. But the philosophical case is just the with respect to telling a lie to your neighbor about where you were last night: you have the power to choose to lie, and you have a right to choose not to lie. To say that you have a right to do him wrong (even though it is not illegal and is not using force on him) is an oxymoron.
Along with free will comes responsibility to choose well and comes the necessity to bear the consequences. Free will does not constitute the right to do moral evil.
Posted by Tony | July 14, 2012 7:24 AM
...you have the power to choose to lie, and you have a right to choose not to lie. To say that you have a right to do him wrong (even though it is not illegal and is not using force on him) is an oxymoron.
There are many philosophical arguments that allow for some type of falsehoods, but they are exceptions to the general rule of being truthful. They follow one of two general paths, either the lie is told to protect innocent people from the listener, or it is told to protect the listener from incendiary remarks or bewildering truths. In those contexts, the more personal gain is involved, the more it becomes a wrong instead of being a justified exception.
Btw, along with the recent ACA decision, there was another SCOTUS case that dealt directly with lying.
http://www.bloomberg.com/news/2012-06-29/the-constitutional-right-to-lie.html
Posted by Step2 | July 14, 2012 5:55 PM
Tony:
Well, you're right - I did roll my eyes at you! Because I think you have a fundamental misunderstanding of libertarian thought (either that or I do!)
The idea that the state can tell you how to raise your kids is anathema to libertarians. There would have to be some exceptions - sexual abuse, severe physical abuse (not spanking!) - but I don't see your example as relevant to what we're talking about. We are talking about crimes against persons - not strict child-rearing. The line between those two things is the same line libertarians would use (at least my brand of libertarianism!)
Well, your example is one of government using force against citizens - not one of crimes by one individual against another.
The thing about government is that everything it does is under threat of force (don't believe me - just refuse to comply with some law or regulation for long enough and see what happens!)
So government uses force always - that's a given. The debate then is not over whether the government can use force or not, but over whether or not the government is justified in the things it is doing (such as building the wall.) In this case, it could be argued that the government is justified - if there is a real threat. Of course, what if the mayor of the city has a brother-in-law who is the wall building contractor? And what if there really isn't a real threat? And a thousand other what-ifs.
I think you are over-moralizing the word for the context in which we are using it.
Example: I have the right to vote (correct?) By your standard, I do not have the right to vote unless I vote correctly (unless I make the morally right choice at the ballot box). Do you see the problem?
Posted by Chucky Darwin | July 14, 2012 7:52 PM
I think you are over-moralizing the word for the context in which we are using it.
I am REMINDING you of the larger context. People who assume that they have a right that means something in a political context, even though it means nothing at all morally, often forget that the political meaning they are imagining is limited, and assume a much wider than political context - they uncritically think "well, there is no law against it, so that means it is OK ("right") for me to do it." They let the political, limited sense control outside the context of politics.
This is not least because the word "right" means something, and meant something, long before it was used in the political context. And they continue to use the word outside of politics. But they seem to have mis-placed the non-political meaning, which came before the political meaning and should have informed the political meaning, and instead treat all the uses as if they held the same result as the result in the politic sense.
But in fact, it is not right to do something that is wrong. And to say that you have a right to do something that is wrong is to use "right" in a specialized meaning that conforms to abuses in language.
In the political context, "I have a right to waste my money by burning it in the fireplace" means I have a valid claim not to be interfered with by legal enforcement when I do it. "Not to be interfered with" is not the same as "If I did it I would be doing a right action." The history of civilization is a history of people claiming a freedom from interference for doing exactly what their fathers and grandfathers did before them - without realizing that these ancestral actions were harming people around them. And learning that they therefore do NOT have a valid claim of freedom from interference from legal enforcement.
Well, your example is one of government using force against citizens - not one of crimes by one individual against another.
And, so, which things are legitimate things for the state to make into crimes, and which ones are off limits because "I have a right to do them"? You cannot resolve that I should be able to claim a right unless the law says otherwise when part of what is at issue is precisely whether the law is a valid law or is invalid because it claims to take away something that I have a "right" to. 70 years ago everyone in the country thought I had a right to smoke in public buildings, and now nobody thinks that. Smoking didn't change, but both the law changed AND what people think they have a "right" to changed. So, when the first laws were passed against it, were those laws taking away a "right" or were they not? You have to test and measure the law and the right against a different standard to even ask the question. Which means that there is a standard that lies outside of law.
My point was to draw attention to that higher standard that measures both "rights" and law: the good of each and all persons affected. Even in cases where the law is silent, I don't REALLY have a right to do something that has a known negative effect on another person unless that negative effect is balanced by more worthy goods to someone. So, I may have a legal freedom to do the act without have a moral license to do it.
Posted by Tony | July 14, 2012 9:05 PM
Step2, yes there certainly are many such arguments. We have had at least 3 kock-down drag-out arguments about this here at W4. I refuse to thread-jack this thread to deal with it again. Suffice it to say that we can limit my example to a lie that falls in nobody's prescription of "white lies" or "protection of innocent persons" or any other socially beneficial excuse, but is a bald, out-and-out lie simply out of malice. The fact that such a lie is legal does not mean I have a "right" to tell it. The most Chucky can mean is that I have a valid claim not to be interfered with by law enforcement if I resort to telling such a lie. The fact that the law doesn't forbid me doesn't mean that the act is right.
Unless you know how to ground rights beyond the simple law, into something deeper than law, a realm of consideration that ALSO tells you when an act is wrong even when it is legal, you have no business even thinking of claiming "you have no right to make a law that forbids me to do X, I have a RIGHT to do it."
Posted by Tony | July 14, 2012 9:26 PM
The history of civilization is a history of people claiming a freedom from interference for doing exactly what their fathers and grandfathers did before them - without realizing that these ancestral actions were harming people around them. And learning that they therefore do NOT have a valid claim of freedom from interference from legal enforcement.
That's a good point, ironically it is an anti-traditionalist point.
Unless you know how to ground rights beyond the simple law, into something deeper than law, a realm of consideration that ALSO tells you when an act is wrong even when it is legal, you have no business even thinking of claiming "you have no right to make a law that forbids me to do X, I have a RIGHT to do it."
The harm principle is a good place to start. A utilitarian result is also a valid goal, at least from my perspective. One potential problem with your statement is that it assumes rights are supremely good, transcendent over all pragmatic concerns. I don't assume that, a right is temporarily contingent on other factors that can suppress it.
Posted by Step2 | July 15, 2012 8:57 AM
Well, I prefer to think of it as a principled traditional viewpoint: supporting tradition but out of principle rather than out of sheer preference for lack of change. The principle being that of the good, and included in that good is recognition that people are social animals, society is constituted in no mean part of customs, and thus custom constitutes a part of "the good". But only a part.
I am really puzzled about that, for 2 reasons: (1) isn't even the utilitarian result subservient to the good stated in a more complete fashion? And (2) how in the world do you get "rights are supremely good" out of my comments, UNLESS you re-configure the meaning of "right" to mean "that which serves the ultimate good"? If it means the latter, then yes, I agree wholeheartedly that right is supremely good. By definition. And in that sense there is no possible way, in theory or in practice, for other factors to overturn it, because it takes all factors into account. Other than that sense, my discussion of "rights" was precisely intended to deny that rights are the ultimate measure of action.
I realize you are a pragmatist. I too am a pragmatist up to a point. It's just that I believe that being a really good pragmatist means being able to see very clearly the hierarchy of goods that humans are designed for / capable of / ordered to, and the highest of these are usually outside the limits most pragmatists think of under the notion of "utility". Like, just for example, contemplation of being as such. And, absolutely perfect love of that which is absolutely perfect in every respect. These are good in a way no further benefit out of them is what makes them considered good. So if they are good it is not on account of their utility.
Posted by Tony | July 15, 2012 12:53 PM
Tony:
That was my point. A political "right" doesn't necessarily imply a moral "right". I gave the example of our right to vote: a political right (not to be interfered with) even if we make "wrong" choices at the ballot box.
What happened was - people learned that second-hand smoke was deadly and thus the right of the non-smoker to be free from a deadly poison superseded the right of the smoker to enjoy a cigarette in public. Basic fundamental rights did not change.
Yes to both of those things.
Posted by Chucky Darwin | July 15, 2012 6:52 PM
Chuky Darwin,
A political "right" doesn't necessarily imply a moral "right"
Politics can be viewed as the Natural Law as pertaining to the City.
So political rights are grounded in morality and in fact must be so grounded, otherwise we have tyranny or anarchy.
Posted by Gian | July 16, 2012 2:12 AM
Chucky, you need to shoot for some seriousness in your considering. It is irrelevant whether the right here is "basic" or not. If what happened was that an action that people used to have a right to do now is an action that people have not a right to do, then "rights" is a very fluid concept that is unable to bear the weight required to say "you can't make a law like that, I have a RIGHT to do it." And unable to bear the weight of libertarian claims that there are too many laws restricting too many rights.
If, on the other hand, what happened is that we DISCOVERED that people never really did have a real right to smoke in public buildings, it was only the appearance of a right that went up in smoke (heh) when we realized the poisonous nature of tobacco, then the right didn't change. And it is rooted in something deeper than what the law happened to say at the time. So rights under the law are just a current effort to state true rights, and the law can get them correctly or incorrectly at various times.
Posted by Tony | July 16, 2012 5:07 AM
Tony:
I explained (using your example even) that a "right" (in the sense I mean it) is the freedom from government interference. It starts with the right to be left alone (which we all have - unless - what we do adversely affects others). In the smoking example, it was not known that second-hand smoke adversely affected anyone, hence the right to be left alone while smoking in public was upheld. Once it became known that smoking harms other people, the right was rescinded. That is the way basic rights work in the libertarian views I've heard. So, it is entirely in keeping with the libertarian principle of rights that, when something is found to harm others, the right to do so is restricted - in favor of the rights of those being harmed. I see no conflict.
You don't think there are too many laws restricting too many rights?You really need to get past the broad-brush caricature of libertarianism and examine the reasoning behind such claims. Do you think it is a violation of our rights that a president can order the indefinite detention or assassination of a US citizen without due-process - just because he labels the person as a "terrorist"? (Remember, before you answer, that this same administration has characterized the Tea Party as "terrorists" in the past!)
Posted by Chucky Darwin | July 16, 2012 7:19 PM
Gian:
That's a given. Of course they are grounded in morality, but there is no entity on earth that can claim the absolute morality necessary to completely base political rights on morality.
One example: The freedom of speech. To be completely based on morality, only that speech which is absolutely truthful can be allowed. But who would decide such a thing? No humans are capable of knowing whether every word uttered is absolutely true! Only God knows such things. So the right to be 'unhindered in speech' does not rely on the truthfulness of the speech. So, does that give us the right to go around telling lies about others and ruin their reputations? No. Because that speech can be shown to actually harm another.
Posted by Chucky Darwin | July 16, 2012 7:34 PM
Chucky Darwin,
Here an analogy provided by CS Lewis is useful. To see distant stars, larger and larger telescopes are needed. To see God, the largest object there is, a whole people is needed i.e. a nation. Different nations view God differently since the lens is clouded.
"no entity on earth that can claim the absolute morality"
So the Harm principle is not absolute either.
For Catholics, the Catholic Church provides absolute direction where it does.
Posted by Gian | July 17, 2012 1:49 AM
Improvement: the political right to speak, and the freedom of being 'unhindered in speech' does not rely solely on the truthfulness of the speech.
Here is the difference: if I have a RIGHT to say the sentence "John is a bas***d", a right that is the basis for being legally unhindered whether it is true (in my mind) or not, then I have a right to say it even when the state can prove that I don't really think it true.
In my improved version, nobody need claim I have a _right_ to say it that is automatically protected from legal interference even when I know darn well the words are not true. What we say instead is that the falseness of my spoken words do not ALONE constitute the necessary grounds under which the law can interfere and restrict my speech. Falseness alone isn't enough. However, there are situations where the falseness leads to damage to the common good, and in those cases the state can have a role to restrict my speech - depending on the degree of damage. Generally, having NO state interference with speech supports the common good very well indeed, and therefore there will be a very high bar required in assessing damage to the common good - in my using such speech without hindrance - before the state can ascertain that restricting my speech is better for the common good than leaving me alone. Thus my speaking freely is the norm, and under the law I am free to say things without hindrance that I think are true, things that are probably true, things that might be true, things that I say without much interest in whether they are true or not, and even things that I know are not true. But the latter category of statements are not protected because I have a (pre-legal) _right_ to say them, rather because I have a right to say true things, and it is generally more to the benefit of the common good to leave even untrue speech unrestricted than to restrict speech regularly. But not all speech is left unhindered: libel is not, and shouting "fire" falsely in a crowded theater is not. Because in those cases the demonstrable damage to the common good exceeds the potential damage of having the state doing oversight on people's speech.
Posted by Tony | July 17, 2012 10:22 AM
Tony:
I can see that our main point of departure here is that you see rights and harms in terms of the "common good" while I see them in terms of the individual.
Yours is the more hypothetical philosophy while mine is more concrete - we can measure the harm done to individuals, we cannot measure harm to the "common good" unless we first define, and agree on, what the "common good" is. (And I think that debate is problematic enough to warrant a rejection of your view for me.)
Gian:
Yes, we humans are not infallible.
I'm not a Catholic.
Posted by Chucky Darwin | July 17, 2012 8:20 PM
Chucky Darwin,
"we can measure the harm done to individuals"
Can you?
Without knowing the essence of man, how can one know the harm done to man?.
And the political nature of man is a part of essence of man, and thus 'common good'.
This political nature is precisely what libertarians deny but without it, one can not make sense of things like patriotism, justice, that people always had clear notion of. Even concept like Honor is incomprehensible to the libertarian. So it is a tall claim for a libertarian to make that he could measure the harm done to individual. And he misses Family too, it is not reducible to individuals too.
Posted by Gian | July 17, 2012 11:07 PM
Gian:
If someone steals my car, there is a dollar amount that can be set for the value of my car (and my lost wages, etc. while recovering from the theft.) How can you measure the damage done to the 'common good' when someone steals my car?
Please. I don't need to know "the essence of man" to measure harm done. The problem with "common good" arguments is that they all rely on theoretics. I'm talking about tangibles.
The advocation of government interference for "the common good" scares me. It reminds me of Plato's arguments at the beginning of The Republic: that a "pure society" would require the abolition of most types of speech, most musical scales, many forms of exercise, and etc.
Well I may not be a good libertarian because all those things mean something to me. (Of course, I'm not officially a Libertarian - I'm just a Republican who has embraced most of Ron Paul's arguments. I may NOT be a libertarian at all - I honestly don't know!)
Posted by Chucky Darwin | July 18, 2012 7:14 PM
So if a dollar amount can not be set, does that mean the harm does not exist?
What do you think legislatures do?
They are supposed to deliberate on the Common Good. It is their sole purpose.
Posted by Gian | July 18, 2012 11:20 PM
No, I see "right" and harm in terms of "the good". Got that? The good. THE good consists of many things that are good, including BOTH common goods and individual goods. One of the most important aspects of goods as found in individuals is the goods that individuals participate in by being social entities: friendship being one par excellence. You cannot measure the good of friendship in humans without noting that it cannot happen with one alone.
Oh, I guess you mean that friendship is too ethereal a good, a good that cannot be set to mathematical measurement, to be set down in the list of things that we want to take note of for human fulfillment. Only concrete stuff, like, well, concrete, and bricks, and mortar. Well, I don't buy that. Some of the things we cherish the most, and ought to have the highest part of our concern, are not concrete. Try: justice, for one. You cannot go out and locate justice sitting by the road, of dug up out of a mine, or grown in a field.
Posted by Tony | July 19, 2012 5:11 AM
Tony:
I am talking about political rights and the role of government. Do you really see it as a role of government to promote friendship? Should there be tax breaks for people with more friends?
What about the right to be unmolested by the government as we go about our business? Is that part of "the good"? How does that fit into your political theory? How important is freedom to the common good? Is it better for the common good if a central government orchestrates the minute details of our lives? Or will the common good be enhanced if we are free and unhindered in all but the relevant details (those which actually require government intervention)?
To be honest, I would not like to live in a society where you and a committee of your peers decide what's best for me! I would rather that government be local - except where absolutely necessary (such as national defense, immigration, foreign affairs, and interstate commerce).
Justice is measured in terms of rights and harms. If the restitution or punishment meted equals the harm done, then justice was served. Otherwise not. It is a matter of weights and measures.
Posted by Chucky Darwin | July 19, 2012 7:29 PM
Gian:
Legally? Perhaps. Way more than they should! Their "sole purpose"? They fail miserably then.
I thought their sole purpose was to consolidate power so that fewer and fewer people could enjoy freedom!
Of course, maybe that's what you mean by the "Common Good"?
Posted by Chucky Darwin | July 19, 2012 7:34 PM
I knew, I just positively KNEW you were going to protest that you were talking about political rights and the role of government.
You cannot speak to what the role of government of HUMANS is until you know what kind of thing a human being is, and thus know what it is that human beings are designed for doing. To be a good government is to be well designed to best foster humans fulfilling their natures. To govern humans is a different thing than to govern angels, or ants (both of which live in community, but not as humans).
But what is the nature of man? Man is a rational animal, designed to know truth, be awed by beauty, and love the good. Man is also a social animal, and so his knowing and loving have both individual and social dimensions. Government cannot be good government without knowing what it is that fulfills man being man at his best.
I have said it, about 300 times so far. Man is DESIGNED for subsidiarity in his social dimension: part of being human in fulfillment is to order his actions to his hierarchy of goods. Those ends closest to his own, personal, individual level of goods are ordered by him acting on his own without taking consideration for others. Those that pertain to his family, he considers and regulates by appropriately involving primarily those who have the care of the family - the father and mother. Those that pertain to larger communities need to have the input of authorities at higher levels - even if those communities are purely voluntary, like the Lions Club. And those goods that pertain to the whole polity, such as general safety, also involve the ordering principles and standards set out by the political authorities. Thus the individual man finds fulfillment in faithfully carrying out the orders of political superiors designed to promote the common good, even though sometimes that fulfillment of his social dimension sometimes limits less critical goods in lower parts of the hierarchy: to rationally submit to and foster the hierarchical order of goods is itself fulfilling to the well-made man, it fulfills him in his love of good order rationally known. To say man is rational and social is to say that man regulates his affairs according to a hierarchy of authorities. He is himself the authority par excellence at one level.
The wise man knows when to submit to the loss of the lesser for the sake of the greater: sometimes the lesser is his private personal good, and sometimes it is not. Thus in some cases the wise and happy man submits to becoming poor for the sake of the community, (or lose his life to protect it), in other cases he refuses to submit but instead takes up his issue with the government and insists that it reconsider.
The question answers itself once you set out what man is: of course man is better fulfilled when he orders and regulates his own actions in his own sphere, just as he is better fulfilled when he regulates actions ordered to higher orders of goods and communities according to the appropriate level of authority. The so-called "right" to be free of interference is actually the good of man choosing his actions well within his own proper sphere of authority. And since that's what it takes for man to be fulfilled as rational animal, then yes, it is a natural human good.
Posted by Tony | July 19, 2012 8:40 PM
Tony:
Very well put.
Chucky Darwin, Tony:
There is a conflict between a High Conception of State that goes back to Aristotle and is found in Dante in its Christian form, and a Low Conception of State.
The Low Conception is found in the use of the term "Commercial republic" that many conservatives use, but I find rather oxymoronic, not to mention a reference closer to Carthage than Rome.
Posted by Gian | July 20, 2012 1:13 AM
"If the restitution or punishment meted equals the harm done"
How is the "equal" to be understood?.
Suppose a child is raped, would justice be served by rape of rapist's child?
It is the legislature that must decide it, necessarily, in a way nothing essentially to do with dollars or measures and weights.
Posted by Gian | July 20, 2012 3:02 AM
Tony:
OK... I disagree. I don't think it's the government's role at all "to best foster humans fulfilling their natures". I think the government's role is to protect us from each other and from tyranny.
My philosophy of government is simple:
1. In this world there are good people and there are bad people.
2. The bad people will always take advantage of the good people.
3. The role of government is to protect the good people from the bad people.
I know that sounds cartoonishly simple, and it is simple, but let it sink in for a minute then ask yourself "what else is really required of government?"
So is it the role of government to punish anti-social behavior, irrationality, falsehoods, ugliness, and the love of things not-so-good?
So loners, atheists, fibbers, lovers of impressionist art, and people who eat broccoli should all be locked up?
That's a scary sentence right there.
Wait a minute? I thought we were supposed to "find fulfillment in faithfully carrying out the orders of political superiors"? Now you're saying that the wise man may also "refuse to submit" to the orders of political superiors at times? Now that's an interesting development!
So, given what you just said above about an individual's perfectly legitimate "refusal to submit" to the "orders of political superiors designed to promote the common good", it must follow that the individual has the ultimate authority in your system as well!Think about it... By agreeing that 'the refusal to submit to the so-called political hierarchy' is a legitimate right of the individual, you have placed the government hierarchy under the individual's "own proper sphere of authority" - thus anointing the individual as the ultimate authority!
I'm glad we had this talk!
Posted by Chucky Darwin | July 20, 2012 8:23 PM
Gian:
No. That's silly - that would be punishing an innocent person for something their parent did. How could that be considered justice? Of course you were trying to paint me into a corner by over-literalizing my words. Let's be practical here... Justice would be served by protecting all other children from the rapist. There should also be monetary restitution ordered for the expense of the counseling, etc. needed for the victim to overcome the mental damage done by the criminal act. I disagree. I think judges could decide these things - based on an honest appraisal of harm done. Legislatures often paint with too broad a brush. Example: a pedophile who rapes a 3 year old child and an 18 year old boy who has sex with his 17 year old girlfriend are considered to be guilty of the same crime and are subject to the same sentence in some jurisdictions. This is the result of certain legislature's attempts to "get tough on crime" with minimum sentences and such. Rights and harms are often better served if judge individually on a case-by-case basis.
Posted by Chucky Darwin | July 20, 2012 8:36 PM
No. The justice is not served by my example but neither by yours. How is "protecting all other children and monetary restitution for counseling expense" ever make up to the one's child being raped?
How is "If the restitution or punishment meted equals the harm done" satisfied by counseling expenses?
How would you go about calculating monetary equivalent of "rape"?
My point is the legislatures (and if a judge is deciding to fiddle with the laws, he is acting like a legislature) deliberates on the justice. People can do this since they have been endowed with intellect and reason. There is nothing mysterious here; every primitive tribe does this.
Posted by Gian | July 23, 2012 6:24 AM
Chucky Darwin,
"I think the government's role is to protect us from each other and from tyranny. "
Why? and what is tyranny?
If men hurt each other that a govt is required to protect men from other men, then why do men insist on living so close together?
Even in the ancient times, with all the lands empty, people did crowd themselves. Why?
Posted by Gian | July 23, 2012 6:29 AM
Right. That's your notion of the government. It's based on a poverty-stricken notion of human nature. You think "what man is" is answered by a different thing that what I think answers the question.
Which, to remind you, is what I said several discussions ago, about establishing what it means for the government to "protect" others. For example, if a company buys advertising space on the side of a bus, and puts an explicit picture from an X-rated movie, with a man sodomizing another man, and runs then bus down main street in my town, I think that this company (and the bus company, too) have inflicted harm on my two little kids aged 4 and 7 when they see the bus go by. The advertiser says "hell no, I haven't done any harm: no bruises, no cuts, no scrapes. Nothing physical. And no so-called emotional harm (even if I were to allow that there is such a thing, which I don't): I don't believe in sexual latency for kids, and I believe in getting them as much information as soon as possible. And besides: nobody forces them to look at the bus, they can look away at any time." The government cannot establish what it is to "harm another" without a notion of what man is, and that notion isn't going to be uniform from one person to the next. So, when the government imposes a fine, or merely forces the advertiser to remove the ads, he claims "you're imposing your morality on me. It's tyranny, I wasn't harming anyone."
Well, it's only interesting because you refuse to read what I said and actually allow the distinctions to sink in. When a man is being told to do something that pertains to the higher-order goods, and is being told to do them by the authority that officially has the care of those higher-order goods, he gives the orders due obedience. When a man is being told to do something that pertains to his own personal sphere of action, his own realm of authority, he rightly objects and says "sorry, bud, that's MY realm of authority, not yours." If the government tells me to drive on the right side of the road, I don't say "I'll make my own decisions about what's best for me." But if the government says I cannot decide when my kids have to turn off the TV and go to bed, I don't submit like a lamb, I tell the gov to "get the heck out of my business, that's my area of authority, not the government's".
So, the comment that you thought was "scary" was nothing of the sort.
No, you're wrong. The therapy and counseling (if successful, which they are not always) only prevents the harm from continuing to damage the victim's life, ongoing in later years. Those costs do ABSOLUTELY NOTHING to account for the damage and suffering the victim experienced before the therapy is successful. The only way a rapist could "pay back" for that harm is in some way that is a different form of measuring the degree, than is actually experienced. The criminal can pay in fine, or in time in prison, or something else, but none of these is what it feels like to be raped, and none of these restores the victim to a harm-undone condition without making some kind of equivalence conversion between the two. And that can only be done (if at all) because human nature is deeper than mere physical and economic goods, human goods are measurable at a deeper level, and therefore human harm can take place other than at the physically and economically measurable levels.
Posted by Tony | July 24, 2012 2:43 PM
Tony:
I probably think the same thing you think regarding "what man is", I just don't see it as the government's duty to rule by my version of "what man is". That's a pretty good example. I think common sense tells us that we need to protect kids. I don't know that we need to rely on the government to do that for us. If there truly were buses that showed men sodomizing each other and my granddaughters asked me what it was, I'd have to tell them that it was "an evil that men do" and "we don't like that" [thinking about what I'd actually say to a 5 and 6 year old!]
But, the decision to comply, in all the spheres you mentioned - personal, familial, societal, national - is ultimately an individual decision. An individual could decide not to drive on the right side of the road (and pay the price). So, in the end, the individual stands alone on top of the hierarchy - deciding what part of it he'll comply with. That was my point.
Well I never said that justice could undo a rape, so I don't accept that as a valid criticism. I guess I'm not sure how your point intersects mine. If there is no way to measure harm done, then what should be done to a rapist?
Posted by Chucky Darwin | July 24, 2012 8:05 PM
Gian:
So it can be done - harms can be measured and justice can be carried out. Isn't that what I said?
Posted by Chucky Darwin | July 24, 2012 8:07 PM
Well, if that was your point, then you are confusing your point with what is logically demonstrable.
When a man acts well, he uses his power of choice to both order his own affairs, within that sphere where he is the proper authority, and to obey the proper authorities in spheres where he is not the proper authority. In all cases, free will allows him to act well or to act ill - to act as a human being in fulfillment of human nature, or to act against human nature and be brutish, unreasonable, and immoral.
But the fact of the possibility to abuse the ability of will to choose cannot be a logical means of setting him standing "alone on top of the hierarchy." The hierarchy isn't a hierarchy of who controls the switches that move his muscles. It is a hierarchy of rational, intelligent agents with the capacity to act well or ill. The hierarchy is defined in terms of goods to be ordered and achieved, not power switches to be thrown. To say the capacity to choose sets him atop the hierarchy is just to confuse the categories.
Posted by Tony | July 24, 2012 9:28 PM
Yes, you did not understand the criticism, because you didn't understand the implications of your own theory.
Let's go back a bit.
Yet, when I outline a case where the a person harms another, you say:
So, which is it: government is to protect good people from the bad people, or not? The father cannot run after the bus and tear the ad off its side (and likely will cause a fist-fight at some point if he tries). That's the classic case of where the city government has a role: to remove something that is harming citizens.
OK, so you would take steps to limit the extent of the damage, to minimize its total impact. You seem to admit that nothing you can do yourself will bring about a fully just condition, nor will it prevent the ads from harming more children. Why don't you want to prevent other people from being harmed? Because that creates a role for government, which you don't like.
Right, nobody can undo the rape. We all agree on that.
See, you don't seem to make up your mind about what kind of justice you want to get. And how. First, you say justice is served if nobody ELSE gets hurt - that's justice about future harms. (And don't mention one word about dealing with the existing harm). Then you say justice includes restitution and punishment - that's justice about the past harms. Which is it? And you say the state is supposed to deal with taking care of bad people harming good people, but then when I give you an example of that, your response is your own personal dealing with the harm (not very effectively), and not liking the city dealing with it. First you want justice to be "measurable", but then when we introduce the very principles that would enable us to measure non-physical harm, you get all squishy about it.
Properly, justice is served BOTH when future harm is quelled, and when past harm is corrected. Past harm lives both on the level of individuals harmed and the whole community harmed. Restitution (sometimes) can actually correct the harm to individuals - a thief can actually restore the lost economic value to the victim. But full undoing of the actual damage done to the community is rare, and often it is impossible for the individual victim as well, as with the rape situation. That's why justice has always been held to encompass retribution, which is a visiting upon the criminal something _equal_in_degree to the harm he is responsible for, but not because his suffering thus repairs the individual victim's evil suffered, not because it makes the victim whole in terms of effects. Retribution is the quintessential penal imposition, and is indeed measured "in terms of harms", as you say, but is distinct from restitution because it does not undo the evil caused by the crime - but it does restore justice.
This kind of justice is universal in all past societies. But moderns tend to want to do away with this retributive sense of justice, because it rests on a principle of statehood that supercedes any capacity of an individual to levy just retribution on another: it requires that the state have powers over and above the powers that individuals in the state of nature would have. In essence, it requires the state to be real, and men designed for ordered polity, in a sense moderns don't want it to be real.
Posted by Tony | July 24, 2012 10:45 PM
Tony,
A question: Can retribution be justly visited by an individual or a group of individuals on the offender or is it necessary that the City does it?.
"powers that individuals in the state of nature would have"
What powers do the individuals in this hypothetical 'state of nature' have and is it necessary to posit this hypothetical state?
Posted by Gian | July 25, 2012 6:17 AM
Tony,
I feel that my answer about the buses was incomplete and - since that is a real good example of our differences - I would like to add to it.
First, I think that there is a fine line between when government intervention is warranted and when it is not and public displays of lewdness are probably on the side of government intervention - due to their public nature.
That said, if a private bus company really did put those images on the side of their buses, there would be more of an outcry against it than just me covering my granddaughter's eyes. People of good moral character would be outraged and any number of different reactions would occur including - angry phone calls, letters and emails to the bus company, advertiser boycotts (both by advertisers and by consumers), bus boycotts, public 'anti-bus company' campaigns, and etc. IOW, the free market would rise up and punish the bus company. If it was a publicly owned bus then the city politicians would get an earful as well. So I'm not sure that government action would be absolutely required to 'protect the good people' in this case (they can protect themselves quite well in many instances), but I agree that it's most likely a good place for the line to be drawn.
I really do worry when I see people on a constant mission to have the government "do something" about their pet problems though. We are far too reliant on the government to fight our battles for us. I worry about the extent to which government can intervene in our lives - especially in areas of a private nature. What happens is - as the government's sphere of authority expands, our private sphere shrinks and only those who have the government 'on their side' are able to continue to enjoy the freedoms we once all had.
Posted by Chucky Darwin | July 25, 2012 8:12 PM
Chucky Darwin,
It is a very American (mis)conception that the anti-obscenity laws are for the protection of the children merely. They may be intended for a purity in the City as well, even primarily. Obscenity is a lie against human nature and thus an offense against the City.
There exist plenty of laws which you can not reduce to a calculus of individual harms but rather reflect a concern for purity of the city. For instance, in some states in India, liquor shops are forbidden some distance around a temple, maybe 100 or 200 meters.
Posted by Gian | July 26, 2012 5:00 AM
Chucky Darwin
"as the government's sphere of authority expands, our private sphere shrinks "
As I say, self-government requires self-government. To maintain a tolerable living environment, either a people self-govern themselves or if they do not or can not do so, by itself, the government would be willy-nilly obliged to expand its sphere of authority.
A republic is meant for a virtuous people and conversely a non-virtuous people require despotism.
Posted by Gian | July 26, 2012 5:11 AM
Gian:
How far are you willing to take this?
Do you want a Catholic state? That would be best for human nature right? (At least in the eyes of a Catholic... well, a good Catholic anyway!)
Is that what you're advocating?
Please explain what you would like government to look like!
Posted by Chucky Darwin | July 26, 2012 7:21 PM
No, any state that respects the Natural Law, in its proper context would do.
The "proper context" is important. I take the Founders very seriously when they said that the Republic is only suited for a virtuous people.
Posted by Gian | July 26, 2012 11:30 PM
I'm skeptical that people shrink from retributive punishment because of theories of state. I think it is because people living in peace and safety, where soldiers and policemen do the dirty-work of protecting them without their participation or even witness, are made uneasy by what reality actually demands. Soldiers and policemen (to a lesser extent) know the difficulty of making many moral choices, while most individuals have retreated to an unrealistic moralism. I don't think it is any different than eating chicken mcnuggets but not being willing to witness the killing of a chicken, much less do it oneself. In some places folks are so shielded from reality that they become detached from it.
BTW, one of the problems of thinking of justice only legitimate as a deterrent is that it detaches the connection between the criminal and the justice he deserves. Because if prevention were the goal, you could just round up any person as symbolic of the criminal and hang him publicly and quite possibly accomplish a deterrent.
Posted by Mark | July 26, 2012 11:55 PM
Gian, as I understand it retribution properly so-called must be imposed by one who has _authority_ over the offender and the subject matter of the offense. If you steal my car, and I go over to your house and forcibly take it back, that's legitimate (because the car really is mine) but not retribution. If I further take your stereo as a "fine" or to teach you a lesson, that would be retributive if I had authority over you, but I don't have authority so it isn't really retributive, it is just revenge.
In order for some sort of recompense for an offense to be retribution, it must spring from the authority whose office it is to ensure the common good that is being offended. This is connected to the fact that an offense that damages us due our social connection harms individuals in their private goods, but ALSO harms the whole community in regards to justice and peace of the community. Thus, a correction of the evil by a restoration of the good lost by the individual victim does not restore all the good damaged. Retribution is needed to deal with the blows to the community as such. And retribution cannot come at the hands of individuals acting on their own behalf, only by the community acting through the legitimate authority who has care of the common good.
Mark, you are right about the deterrence issue. There is no formal reason to limit the deterrent purpose with the EQUALITY requirement, that the punishment be limited to the degree of evil of the crime. (It is easily possible that a greater penalty improves deterrence, regardless of whether the penalty exceeds the crime). The only thing that can do that is the essential nature of punishment as retributive: retribution as such contains the equality requirement, and thus it lends that required limit to all of the secondary purposes of punishment. But you cannot get a secondary purpose except by going through the primary purpose.
Posted by Tony | July 27, 2012 9:44 AM
Tony:
The problem is that most "justice" these days isn't even concerned with restoring what the victim lost. We've become all about "the debt to society" - with prison sentences and fines payable to the government - while the actual victims are often not recompensed for their losses at all (unless they pursue the matter in civil court - at their own expense).
I think we've lost sight of the individual in our pursuit of the common good.
Posted by Chucky Darwin | July 27, 2012 8:16 PM