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Wednesday, May 04, 2011

Libertarians and the Claims of Democratic Authority in the Context of Criminalization Debates

I have a section in this paper I'm working on --designed to be a love letter of sorts between retributive justice and liberal democracy :-) --  that I'm afraid I'm not sure is fully there yet, and I was wondering if those with a political philosophy bent might have some reactions. The relevant background here is that I'm trying to explain the reasonableness of democratic authority, largely by appeal to some arguments put forward these days (ie, in the last decade) by Shapiro, Hershovitz, and Christiano. My concern, however, is that in anticipating the first-wave libertarian objection, they have not responded to the "second wave" of critique that an aspect of Arneson's paper represents. (The rough cites for this can be found below.). I could be completely wrong and maybe they or others address the concern, so please feel free to email me offline . 

So below the fold, please take a look at these tentative thoughts and feel free to share some reactions or references to additional citations that can help me manage Arneson's critique. I've included a bit more of the discussion than is necessary in case it spurs other reactions too. All the usual caveats apply--it's just a preliminary draft and not for citation or circulation w/o my approval but yes, please tell me if/how I'm wrong (gently). Many thanks!

  1. Why Fidelity to Liberal Democratic Law?

 

To sustain a claim that offenders in liberal democracies could reasonably and retributively be punished even in the absence of conduct that is morally wrongful probably requires overcoming an intuition that is widespread and reasonably fixed. Nonetheless, we currently have many laws that criminalize conduct that is not morally wrongful, and many of those laws are violated, and those violators are punished. So do we rationalize this outcome simply by appealing to the possibility that we are all, deep down, thoroughgoing welfarists and that these laws (and the punishments made in their name) are in fact welfare-promoting? 

Well, that is one tactic available to avoid cognitive dissonance. But another way to explain this outcome – and indeed to justify it – is to say that we have obligations to conform our conduct to the law’s dictates in liberal democracies, and the recognition of these obligations is not only reasonable, but praiseworthy.[i] What would such an argument look like?

Scott Shapiro and others have defended the idea that there is an authority of law in liberal democratic regimes such that the fact of legislation to do X provides a free-standing (though probably still defeasible) reason to X.[ii] (I leave aside for now whether that obligation is one that necessarily trumps all other reasons to do or not do X.[iii])

We live, work, and play with others—that much cannot be denied. The reason we must conform to democratically elected authority is because such a power-sharing arrangement is, according to Shapiro, “socially necessary, empowering and fair.  By disobeying, subjects are unilaterally, and hence unreasonably, setting the terms and direction of social cooperation.”[iv] To understand why this unilateralism is inappropriate, consider first that “social cooperation is not … possible without the availability of procedures for the resolution of conflict.”[v] Moreover, and “absent acceptable resolution, disputes would fester … [and] likely threaten the very survival of the community.”[vi] As Heidi Hurd notes, democratic rulemaking is morally demanding (even if defeasibly so)  because “when a moral matter is in dispute (even a matter that concerns competing claims of right, rather than competing claims of preference or utility) and it is more important (again, perhaps as a matter of right) to gain a peaceful resolution of the dispute than to gain a right resolution at a cost to peace, a democratic resolution will recommend itself, and the value of peace will thus dictate compliance with the democratically-crafted solution, even when one takes the resolution to be in error.”[vii]

To risk such dire effects is especially misplaced once “citizens are granted the power to exert control over their lives by allowing them, through the franchise, to affect the terms of social cooperation and the direction of collective pursuits.”[viii]

According to Shapiro, the unreasonableness of disobeying democratic authority is all the more true when there are basic background rights that continue to empower or “enable citizens … the opportunity to persuade their rivals, and the uncommitted, of their view.”[ix] Finally, “democratic processes constitute fair procedures for the resolution of disputes. Democratic processes are fair because power is shared in a roughly equally manner. Equal power-sharing consists, first, in the equal voting power that individuals, or groups to which they belong, have in the selection of policies or election of representatives.  Second, equality of power is determined by the equal opportunity that individuals, or groups to which they belong, possess to express their views and to persuade others as to the value of their positions.”[x]  Ultimately, Shapiro’s argument here is that it is unreasonable “not to abide by” procedures for dispute resolution that are necessary, empowering, and fair.

Presumably the Nietzschean, the anarchist, or libertarian would resist this claim to their conformity to the law: after all, it’s not as if they asked to receive the public order, coordination, and dispute resolution benefits provided from the state.[xi] If someone throws a newspaper at my house that I didn’t ask for, I’m not morally obligated to pay for it and it’s not right to ask me to do something else in return for a benefit.[xii]

Shapiro adroitly anticipates the objection that the receipt of benefits from a particular person or body is not normally sufficient to ground obligation or deference. But his response here is that whatever liberty the objector has to pursue his projects is a function of the restraint shown by other people.[xiii] Thus to reject the terms of social cooperation that create the objector’s liberty is ostensibly exploitative of other people. Shapiro argues further that such behavior is “dictatorial” because it denies the majority the right to control their lives and it fails to show them the “respect due to them as equal participants in a fair power-sharing arrangement.”[xiv]

There is much I find compelling in this argument and similar ones advanced by Hershovitz, Waldron, and Christiano. For instance, if A thought that his vision of the good required others to do X (build museums to honor a tradition), but the majority did not want to do X, I could easily accept Shapiro’s claim that A’s failure to listen to the majority would be dictatorial and disrespectful to his fellow citizens.[xv] Nonetheless, I don’t see the argument here going through entirely, at least as stated.

The focus of our concern has to be on the claim above that observes whatever liberty the objector has to pursue his projects is a liberty created by the restraint of other people.  Is this a descriptive claim of reality and if so is it accurate? If it’s a descriptive claim, it seems to depend on a hidden assumption that private pursuits without a state restraining us are impossible because otherwise we would live in a Hobbesian state of nature of ceaseless war of “every man against every man.”[xvi] But it might well be that such a view is overly pessimistic and that we would be able to pursue some private pursuits in part through a) our own efforts to do so, b) the moral forbearance of others, and c) the measures of self-defense we threaten to those who would not forbear and instead attempt to interfere with those private pursuits.  Moreover, assuming we do have a state with the capacity to restrain us from interfering with the libertarian’s private pursuits, in what way is it correct to threaten predation to the libertarian rather than reasons?

Maybe this isn’t what Shapiro means though. Perhaps he’s saying that the pursuit of essentially all private projects necessarily involves building on the achievements and restraint of those before or alongside us. So our own private pursuits are always activities in which we actively participate in the schemes of social cooperation that require our fidelity. For example, if a person wanted to raise chickens on his land and watch TV all day he would perforce be relying on the laws and institutions that protect his land and chickens from intrusion and theft, the laws that provide for intellectual property generation, dissemination, and protection, and the background property norms that allow a person to own chickens and television as private property. Enjoyment of private property rights, for instance, is not just a private pursuit: it entails control over other people, for example, because the owner will (likely) have the power to exclude others from entering the property and taking the chickens.[xvii] As Christiano notes, “Those who refuse to pay taxes or who refuse to respect property laws on the grounds that these are unjust are simply affirming a superior right to that of others in determining how the shared aspects of social life ought to be arranged. Thus, they act unjustly.”[xviii]

All this seems true. But does it go far enough to do the work that democrats want regarding criminalization? If these considerations seem abstract, consider: the libertarian might concede that he morally owes some respect to those public taxing and spending and criminalization decisions that keep the minimal state functioning so that he can raise chickens and watch TV.[xix] And no matter how much he loves opera, he will concede that he can’t force others to kick in and subsidize opera because that would also be disrespectful or dictatorial of their entitlement to liberty and respect. Nonetheless, he might insist there is a “rough line”, as Arneson puts it, between “rights that confer on the right-holder the power to direct how another shall live and rights that do not confer such power.”[xx]

Consequently, our objector might respond that anything beyond that low floor, even if supported by majority rule, corrals too much of his time and effort (and reasonably acquired property) for public use or imposes more restrictions on his liberty than are necessary for that minimal state to protect a large sphere of autonomy for the individual to act privately or with others on the basis of consensual terms of cooperation. Accordingly, the libertarian objector might say: any extra burdens imposed through majority rule on libertarians are ones you democrats can’t reasonably force me to bear if the pursuit of my projects is consistent with and doesn’t impinge on the autonomous spheres of others. Moreover, pace Shapiro, there’s nothing dictatorial about my libertarian stance because I’m perfectly willing for everyone to enjoy the same expansive sphere of private or negative liberty that I do. So, what’s disrespectful about a strong presumption of (negative) liberty, he might ask?

To bring it down one more level of abstraction, consider if the libertarian objected to a law passed with strong majority support designed to eliminate private possession and use of drugs like cocaine or pot. The libertarian can say everyone should have that liberty uncurtailed. Who is being more dictatorial? The majority that criminalizes this conduct or the objector who says this kind of non-culpable activity should not be subject to criminal law and punishment? The majority could say, look, because of the harmful effects of drug use or manufacture, we end up with people causing other crimes and unjustified risks to others when they are high; sometimes the production of drugs (like meth) itself is physically dangerous (independent of the fact of prior prohibition); moreover, we face more expensive medical insurance costs and we worry about free-riders who don’t pay their whole way ex post, so we’d rather try to prevent people from using drugs at the outset because of those risks and harms. That strikes me as a plausible set of responses to the libertarian.[xxi]

Nonetheless, it seems the libertarian should be able to buy some insurance product to ensure to others that he won’t be free-riding, or imposing the risks of externalities arising from his conduct, and thus avoid criminality for recreational drug use (and maybe even its manufacture). If he’s willing to say, look, I will use drugs only in my own home, I will show my good faith by minimizing these risks and externalities by buying insurance and hiring a guard to keep me from injuring others when I’m high, then it seems as if Christiano and Shapiro’s arguments about disrespect toward social cooperation is not necessarily applicable.[xxii]

Perhaps a better way to persuade even the libertarians to conform to democratic authority is to take a tack that Waldron emphasizes: namely, to point out that we need a procedurally legitimate way to go about resolving disputes even over first principles.[xxiii]   Democracy plausibly meets that challenge. But as Raz points out, it’s not clear why the fact of disagreement grounds an obligation to accede to democratic decision-making procedures.[xxiv] Moreover, even if it were true that disagreement did ground such an obligation, it would not provide us with a firm basis for enshrining certain liberal rights against democratic choices. I take it, that for skeptics of judicial review like Waldron, this inference isn’t such a big deal as it might be for others.[xxv]

Maybe it would be enough to show the various intrinsic and instrumental benefits associated with democratic authority though. There is after all the suggestion from various corners that democracy: offers a form of epistemic or theoretical authority[xxvi]; instantiates a form of procedural justice[xxvii]; promotes individual autonomy inasmuch as it facilitates our ability to do things that we would not be able to do alone; boosts self-esteem of citizens[xxviii] while militating against social alienation and defeatism[xxix]; and allows citizens to “express and respect their status as political equals.”[xxx] Perhaps the benefits of democracy are so manifold that to reject them in the face of the alternatives is to act unreasonably. But I’m not sure the libertarian discussed above is unreasonable, especially once he makes the concessions to democracy that he does about the shape and contours of those social projects necessary for the protection of liberty and the polity itself.



[i]In the punishment context, the offender has not necessarily consented ex post to his punishment, but, as a reasonable citizen/resident/guest, living with other reasonable persons, he should authorize the creation of fair institutions of retributive justice as part of the machinery necessary to work out the dilemmas of collective self-government. I try to elaborate this point more in what follows in the text and it is in no way unique or, for that matter, without controversy. Nonetheless, there are a number of punishment theorists who adopt this quasi-contractualist (as opposed to contractarian) tradition to ground our obligation to conform our conduct to the law. Cf. Murphy, “Marxism and Retribution,” p. 228: “The criminal himself has no complaint, because he has rationally consented to or willed his own punishment. That is, those very rules which he has broken work, when they are obeyed by others, to his own advantage as a citizen. He would have chosen such rules for himself and others in the original position of choice.” On the difference between contractualist and contractarian, see SEP __.

[ii] Shapiro, 2002 authority essay in oxford handbook 434-439. See also Rawls, A Theory of Justice, 98-99, 294-95 (Rev. ed. 1999) (discussing the “natural duty” to support reasonably just institutions).

[iii] Christiano believes that the democratic assembly’s vote in favor of a law provides “each person a pre-emptive and content-independent reason for complying.” Christiano, The Authority of Democracy 2002, p. 3. But further along he clarifies that respect for such votes is contingent on abidance with other constraints: (“There is no good reason for thinking that matters of distributive justice, individual rights and the common good are less normatively important than democratic principles.”). Id. at 4. So that leaves us with a question of what gets prioritized, which itself is a cause for disagreement, and thus a possibility for infinite regress emerges.

[iv] Shapiro, Authority essay, 2002. (italics mine)

[v] Shapiro

[vi] Id.

[vii] Hurd, 42 SDLR 2005 at 78. I confess I wonder about the extent to which Hurd’s quasi-anarchistic views in her earlier work is undermined by this later piece, in which she provides 3 content-independent reasons for giving democratic rules some weight as a reason for action in favor of conforming to the law.

[viii] Id.

[ix] Shapiro.

[x] Shapiro. (Shapiro acknowledges and is unpleased by the fact that certain laws might make harder the purportedly equal shot at persuading when money drives politics to the extent that it does).

[xi] Nozick, ASU, 90-95.

[xii] This is the distinction between receiving and accepting benefits that some fair-play advocates invoke. My accepting a benefit might obligate me because I am voluntarily participating in a scheme of social cooperation. But my receipt of benefits cannot on its own show that I have voluntarily participated in a fair scheme of social cooperation that thereby obligates me. Cf. A. Simmons 1979 (129).

[xiii] Shapiro (noting that the objection “ignores the fact that personal liberty has value only when a scheme of social cooperation is already in place.  One cannot complain that one’s ability to pursue projects in the manner one sees fit would be overburdened when the ability to pursue those projects essentially depends on everyone else’s restraint.  The very assertion of personal liberty indicates that the objector willingly accepts the benefits of such procedures.  The objection, in other words, wants its cake and to eat it too.”).

[xiv] Shapiro.

[xv] Shapiro’s account here basically coincides with others who vouchsafe the authority of democracy, such as Peter Singer (1974) , Tom Christiano (SEP), Jeremy Waldron 1999.

[xvi] Hobbes, Leviathan, ch. 11/13.

[xvii] See Arneson, Democracy is not intrinsically just, around fn. 11. Justice and Democracy, eds. Keith Dowding, et al. (Cambridge: Cambridge University Press,

2004), 40-58

[xviii] Christiano, Authority of Democracy, at p.21.

[xix] Cf. Nozick, ASU.

[xx] Arneson, supra note __, (“a right that constrains other people from engaging in a

certain type of conduct toward the right-holder differs from a right to set rules

that might specify what others shall do across a broad range of important types

of conduct.  I concede this is a difference in degree but when the difference in

degree is large the difference is large and in my view morally significant).

[xxi] Of course, the story is much more complicated. For a helpful overview of how and why drugs laws in the United States emerged, see Richard C. Boldt, Drug Policy in Context, 62 S. Carolina L. Rev. 261 (2011).

[xxii] Similarly, Tom Christiano argues that the moral authority of a democratic assembly runs out when the assembly passes laws that “undermine equal respect,” Christiano, SEP, since it is that norm that grounds the authority of democratic assembly in the first instance. But as the example above shows, it is not clear who is being disrespectful: the majority that seeks to constrain the liberty of the objector who creates risks and costs or the objector who says the majority is acting in a tyrannical fashion by not allowing him to accommodate the majority’s reasonable interests in reducing the risks and externalities of the objector’s hypothetical drug possession and use.

[xxiii] See Waldron 1999; Christiano, Authority of Democracy (“citizens are bound, as a consequence of the facts of disagreement, fallibility and cognitive bias, to disagree about what justice requires in a society”).

[xxiv] See Hershovitz 2003 (at n.48, describing Razian critique of Waldron and providing specific references).

[xxv] This seems to be more of a problem for Christiano. Christiano and I agree that liberal rights are a basic necessity for the justice of democratic authority to be available, but he doesn’t quite tell us how to defend well against the libertarian objections that say the democratic assembly gets some leeway to resolve necessary projects but not those projects unnecessary for securing the peace and minimal conditions for civil society to effloresce on its own.

[xxvi] Hurd YLJ Challenging Authority at 1675-76 (arguing that democracy may be epistemic guide to determining antecedent moral obligations).

[xxvii] Robert Dahl, DEMOCRACY AND ITS CRITICS 164 (1989).

[xxviii] Rawls, TJ 234 (1971).

[xxix] Hershovitz, 2003 at 214.

[xxx] Gutmann and Thompson, DEMOCRACY AND DISAGREEMENT 18 (1996).

 

Posted by Administrators on May 4, 2011 at 04:15 PM in Criminal Law, Legal Theory | Permalink

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Corwin, I think we're on the same page. My point is that if an illiberal law were passed, it would not merit/warrant/permit retributive punishment (or any other form for that matter!). By contrast, even a dumb but not illiberal law should permit criminal liability, though the punishment for flouting a dumb but not illiberal law would have to cohere with some of the punishment constraints I develop later in the paper.

Posted by: Dan Markel | May 5, 2011 9:13:47 PM

Sorry, to clarify (because I have a couple extra seconds and it's been bothering me that I wasn't clearer about this before).

w/r/t criminilization: breaking the laws of a liberal democratic state will not necessarily merit retributive punishment because whether disobedience in any particular case *does* merit retributive punishment depends on the nature of the particular law (or requirement) that was disobeyed: is it a law that falls within the proper/permissible/reasonable boundaries or not? If we draw the boundary using characteristically liberal principles, then breaking illiberal laws will not (necessarily) merit retributive punishment.

So, for instance, let's suppose an alternative United States exactly identical to the current one except that every state has a law prohibiting homosexual sex (or perhaps there is a federal law to this effect). Let us further suppose that this law is found fully consistent with the constitution. It would still make sense to call this alternative United States a liberal democracy, but it's hard to suppose that non-abstinent gay couples merit retributive punishment.

Posted by: Corwin | May 5, 2011 4:31:56 PM

Dan:

I will plan to get in touch with you via email when I have a chance. Thank you for the offer. I'll soon be working up my arguments with respect to democracy and I would enjoy the chance to get your thoughts on some of these issues.

For now I wanted to suggest that I'm not sure I have to reject your view, and that, in fact, it's possible that you have the sort of view which is expressed by the more general objection, and that you would just draw the proper/improper line (or permissible/impermissible, reasonable/unreasonable - I'm not sure how much ultimately hangs on the terminological differences, and I certainly did not mean anything technical by "proper") in a different place than the libertarian or the Razian etc.

You write:
"I think there's an authority to what liberal democracies do when they act liberally and democratically. So the *permissible* province of the state -- I don't like saying *proper* because that would suggest by implication that it is all things considered the right ambit of action rather than the reasonable ambit of action -- is all that which is considered consistent with liberalism and passing through democracies with decent enough structural arrangements (i.e., i don't think there's anything inherently mandatory about FPP vs. PR or bicameralism, etc.)."

That suggests the possibility that a state which we might rightfully call a "liberal democracy" (because it behaves both liberally and democratically a sufficient amount of the time), might nevertheless not *always* act both liberally and democratically: e.g., when an illiberal law is passed through the requisite democratic procedures, or, as is at least conceptually possible, when a liberal (or illiberal) law is passed via undemocratic means (if we can still sensibly call it a genuine law at that point since this suggests a violation of the requisite procedures for the enactment of a law).

It's possible, then, that I can accept everything you say, insofar as the requirement that a state "acts liberally" (and democratically - but that is most plausibly taken as a procedural, rather than substantive, constraint), then it's laws have binding force. When it does not act liberally, then it's laws do not. That looks like it draws a proper/improper(permissible/impermissible, reasonable/unreasonable) line by employing some set of substantive, uniquely "liberal", principles.

I may be misreading your suggestion, but if by "acting liberally" involves some set of substantive constraints - such that a state cannot "act liberally" in requiring certain sorts of behavior, or in exerting its influence in certain domains of action - then that looks like exactly the sort of line that the general objection says we should draw, and carves out the possibility that the laws of a state which we might properly call a liberal democracy might not always have any sort of binding normative force.

With respect to criminalization, the upshot would be that retributive punishment is (at least prima facie) merited/appropriate/deserved when a person breaks a law (or violates a specific legal requirement) which falls within the proper/permissible/reasonable domain, but not appropriate when a person breaks a law (or violates a specific legal requirement) which falls outside that domain. *If* (or when) punishment is permissible even in the latter cases, then, it won't be on retributive grounds.

I'll pull together some examples when I've got the chance to think through them carefully enough. But almost any example of a silly or trivial law would probably do for the purposes of clarity (e.g., a law that required people to wear a brand-new pair of socks every day.)

Posted by: Corwin | May 5, 2011 3:59:54 PM

Indeed, the reductio speaks to the problem with the libertarian argument as such (by way of attempting to license the perverse preferences of wealthy libertarians) and I don't think I argued that either Liberals or Perfectionists should subsidize recreational drug use (the premises were in reference to countering this kind/type/form of libertarian argument, irrespective of what behavior is being licensed as a result).

Posted by: Patrick S. O'Donnell | May 5, 2011 3:07:44 PM

Corwin, this is very interesting, thanks. (Feel free to contact me via email too please.)
A quick reaction: I wouldn't want my preferred position to amount to a simple form of majoritarianism. Rather, I think there's an authority to what liberal democracies do when they act liberally and democratically. So the *permissible* province of the state -- I don't like saying *proper* because that would suggest by implication that it is all things considered the right ambit of action rather than the reasonable ambit of action -- is all that which is considered consistent with liberalism and passing through democracies with decent enough structural arrangements (i.e., i don't think there's anything inherently mandatory about FPP vs. PR or bicameralism, etc.).

If I'm right about emphasizing the permissible over the proper, then I'm not sure how much bite your suggestion has, such that the libertarian objection is a species of a larger genus of objection I must confront. To be honest, I'm not sure I'm understanding fully what the implications of your claim are vis-a-vis criminalization, so maybe you can flesh that out with an example.

FWIW, I think the first part of a) makes sense to me but I wouldn't equate dispensing the proper/improper distinction with "whatever the majority says it is". Hope that makes some sense.

@Patrick: you're right that non-Marxist egalitarians or others could have that same reaction you adverted to. I didn't mean to imply otherwise. Still, I think it's a stretch to suggest that one's commitments to egalitarianism or liberal perfectionism of one sort or another would entail (let alone lead to) a claim that the poor should be subsidized so they could buy externality-reducing insurance for their recreational drug use! What next: guns and HBO? :-)

Posted by: Dan Markel | May 5, 2011 2:38:27 PM

One thing that I think might be important, if I'm understanding your project correctly:
The Arneson-inspired libertarian objection is an instance of a more general type of objection which hold that some things are within the "proper province" of the state and others are not. According to this objection, when the state makes laws which fall within its "proper province", disobedience is(necessarily) wrong and merits retributive punishment. When the state makes laws which fall outside this proper province, disobedience is not (necessarily) wrong and so does not (necessarily) merit retributive punishment. (It could sometimes be wrong for reasons having nothing to do with the illegality.) The distinctive feature of the libertarian version of this objection is where they draw the line concerning what is and is not within the proper province of the state. A Razian, for instance, would draw the line elsewhere (crudely: those domains in which the state has greater expertise concerning what we ought to do than we do each individually), but would advance an otherwise similar objection.

I think understanding the libertarian objection as a species of this more general objection helps clarify the important issue because it's this more general objection that poses the challenge to your argument as I understand it. It just so happens that this objection is most-commonly offered in its libertarian form. But, refuting the libertarian version of the objection does not necessarily go very far in establishing the authority of democracy because the refutation might only show that the libertarian "draws the line" in the wrong place. Rather, establishing the authority of liberal democracy (understood in the right way such that it implies that all instances of disobedience would be at least in one way wrong and thus at least prima facie merit retributive punishment) requires showing either that:

(a) in a liberal democracy, there is no proper/improper province distinction to be made, or, what is the same thing, the proper province of the state in a liberal democracy is whatever the majority says it is,

or

(b) in a liberal democracy, the state cannot extend itself beyond its proper province without thereby rendering itself no-longer a liberal democracy.

There are a lot of people who defend some version of (a). Waldron's argument as you present it would, for instance, be such an argument. Philip Soper presents a similar argument in The Ethics of Deference. I know there are others but I cannot recall them off the top of my head. Typically these have to do with the "necessity" (in some sense) of resolving disagreement. But as you note, Raz's arguments raise some problems for these views. I'm not familiar with anybody who defends (b) but it is at least a conceptual possibility. A lot there would depend on what one means by a "liberal democracy" but I suspect that any argument along the lines of (b) would run a strong risk of defining "liberal democracy" in such a highly precise and demanding way such that few states, if any, could count as "liberal democracies". (a) seems a more plausible argumentative path than (b), then, though I admit that I'm not particularly sympathetic to (a) personally.

(N.B. sorry for the length. I'm a Ph.D. candidate in philosophy working through some arguments related to yours in my dissertation - albeit on the other side of your conclusions - and so am particularly interested in arguments like those you're advancing.)

Posted by: Corwin | May 5, 2011 12:09:51 PM

Thanks Dan. I would only say that I think an egalitarian (or perhaps more loosely a 'fairness' or 'social justice') objection need not be framed in Marxist terms and could arise from Liberal or even "perfectionist" premises of one sort or another (in latter case the government is not 'neutral' with regard to conceptions of the good). One question that would arise is to what extent conceptions of the good are seen to be "subjective" or "objective"...and to what degree the government acts in an "autonomy" respecting manner that reflects "responsiveness to reasons" in a way that a more subjectivist account would not.

Posted by: Patrick S. O'Donnell | May 5, 2011 11:11:49 AM

Patrick, thanks for these thoughts--much appreciated. I personally am not persuaded by the libertarian objections, at least not entirely, but I find them having stronger force than sometimes given credit. In any event, the idea that there should be a presumption of liberty (as opposed to equality or welfare or solidarity) getting to "set the floor" as it were is one that seems quite pervasive among folks writing in criminal law theory, notwithstanding the fact that so many of us may be progressives or liberal democrats outside the criminal law realm. One of the things that's been interesting to me about this project is to see how skepticism toward criminal law usage (e.g., the crisis of overcriminalization) is embraced (perhaps unwittingly) by people who are otherwise anti-libertarian in so many other contexts. There may be good instrumental reasons to explain why people (mostly center left law profs like myself) are, to abuse a phrase, anti-Lochnerian in one context and seemingly hostile to the democratic assembly's work in criminal law contexts but I haven't seen sufficient attention paid to these issues. Hence my project on retributive justice and the demands of democratic citizenship...and my desire to overcome the libertarian objection (assuming I can be persuaded to do so...).

One last point: I understand but am not convinced by the response that it is unjust to allow the "wealthy" to insure for their drug use without ensuring that the poor can do so too. This may be a simple function of the fact that you're more sympathetic to Marxist claims than I am. For what it's worth, as a sociological matter, I think even poor Americans would understand and be (correctly) attracted to the idea of a sphere of private negative liberty even if it meant that it was not entirely redounding to their economic benefit. There are after all wealthy Democrats and poor Republicans and it can't all be reduced, I think, to some kind of false consciousness...not to suggest that *you* are engaged in that kind of reductionism. But I fear that the critique of false consciousness re: class that is sometimes made might not treat people's thoughts (or conceptions of the good) with sufficient respect. Thanks again for the thoughts.

Posted by: Dan Markel | May 5, 2011 10:03:36 AM

Where I spoke above of government "incentive" I perhaps should of used "legitimate reason" or some similar expression.

Posted by: Patrick S. O'Donnell | May 5, 2011 9:19:06 AM

There's so much to talk about here but I simply want to note (having not thought too long about everything in the post and thus off the top of my head for now) your example of the would-be drug consuming libertarian who minimizes risks and externalities by purchasing insurance represents a choice that of course is not generalizable so it is not an example of the libertarian's "willingness for everyone to enjoy the same expansive sphere of private or negative liberty that he does," for the poor do not have this choice and would need to rely on the government to fund such a mutual insurance scheme. Is the freedom to use recreational drugs confined to those who can afford it? No doubt the libertarian would not be willing to fund such a scheme for the poor in addition to funding her own "sphere of autonomy," so what's to be gained by allowing this right? In any case, who's determining whether or not our libertarian has properly or sufficiently insured herself against risk and externality costs? In the end it would seem to be the government who would need to decide such things and what incentive would a democratic regime have for doing this? So as to allow the privileged few a realm of such private activity?

Relatedly, who would determine the aforementioned minimal floor or what makes for a "minimal state?" Surely not just the libertarian, for our conceptions of freedom may include more than the privileging of "negative liberty" and encompass Marxist-like concerns with the enhance of the sphere of "positive freedom" as well.

I'm personally attracted to democratic theories of epistemic proceduralism (e.g., David Estlund) which concede that we may on occasion have to obey or put up with laws that are erroneous, unfair or unjust (yes, even to the libertarian) such that the question becomes one of when such unfairness or injustice is of the morally egregious sort so as to amount to a violation of individual moral conscience (in which case, assuming attempts to alter or abolish the law in question have been exhausted, CIVIL disobedience becomes the 'democratically' sanctioned or least democratically threatening means whereby an individual challenges such a law, the 'civil' part entailing a willingness to accept the legal consequences for such disobedience by way of demonstrating one's personal and social commitment to the rule of law...).

In addition to Estlund, you might find Ripstein's Force and Freedom: Kant's Legal and Political Philosophy (2009) of interest (perhaps you've read both Estlund and Ripstein, I don't know).

Posted by: Patrick S. O'Donnell | May 5, 2011 8:57:07 AM

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