If individual liberty is the highest value, one can certainly imagine situations where “laws” should be broken by government rulers. These, however, do not cover Donald Trump’s claim, in a motion to dismiss filed on October 5, that the president has “absolute immunity” against criminal prosecution, a claim reminiscent of Richard Nixon.
Think about Anthony de Jasay’s “Capitalist State,” a minimal state that he believes would be acceptable if only it were not unstable. The Capitalist State would not govern, that is, discriminate in favor of some citizens and against others, but on the contrary would reign for the sole purpose of preventing any non-minimal state, domestic or foreign, from taking over. Its only function would be to protect the free society. If it were seriously challenged by a state intent on governing, technical violations would presumably be welcome. Indeed, they may be codified in state-of-emergency provisions.
Of course, we are not anywhere close to such a situation, but perhaps it could be argued that the same reasoning could apply mutatis mutandis to an intermediate situation where a much “less minimal” state threatened a “more minimal” one. The difference between the “less minimal” and the “more minimal” state would have to be obvious and significant for liberty. It would be preposterous to believe that Donald Trump ever represented such a “more minimal” state.
Following a more standard approach, Gordon Tullock wrote in his Appendix to The Calculus of Consent (co-author James Buchanan had his own Appendix too):
The State should have enough power to “keep the peace” but not enough to provide temptation to ambitious men. The State should never be given enough power to prevent genuinely popular uprisings against it.
This looks like a useful principle although we need an understanding of what a “genuinely popular uprising” would be. We can safely assume that Tullock had in view an uprising related to the protection of unanimous consent, not a brawl on whether an election was won with 51% or lost with 49% among two Leviathan-loving parties. So Trump could not invoke any such Tullockian principle to justify his “absolute immunity” in his attempts to reverse the 2020 election.
Note that I am not discussing constitutional law as it is, although the Wall Street Journal does suggest that the Constitution did not condone, and was never seen as condoning, an absolute presidential immunity to criminal prosecution (“Trump Seeks to Have Federal Election-Interference Case Dismissed,” October 5, 2013). I am instead studying rules of constitutional political economy that would be most likely to stop Leviathan at least before some irreversible step.
Another principle should not be forgotten—as was tragically illustrated by the French Revolution and as radical libertarians are perhaps tempted to ignore: the continuity of the rule of law. The ultimate reason why you can rest nearly totally assured that the government will not arrest you and keep you secretly locked up (or worse) is the uninterrupted application of the rule of law. Once the rule of law is broken and seen to be broken, you can have no reasonable certainty of its capacity to protect you, and it could take decades or more to restore it. This incidentally provides an argument against the multiplication of laws and regulations, a process that is necessarily accompanied by an increase in the probability of a crash of the rule of law; as the laws approached 100% coverage of everybody’s activities, the probability that the rule of law is unenforceable would approach 1.
READER COMMENTS
Mactoul
Oct 8 2023 at 1:10am
You define governance is state discriminating in favor of some citizens against others.
This way of putting things slights maintenance of politico-legal order, noted public good by Buchanan himself.
Do you think about how disputes included property disputes, inheritance, family disputes solve themselves in your utopia?
john hare
Oct 8 2023 at 4:05am
That would seem to be covered under continuity of rule of law.
Jon Murphy
Oct 8 2023 at 9:13am
Two things, Mactoul:
No, he doesn’t.
It’s unclear what this question has to do with anything. I think you’re trying to argue that civil disputes necessarily involve some form of discrimination to solve? But it’s not clear what you’re asking.
Pierre Lemieux
Oct 8 2023 at 3:07pm
Jon: You are right that I don’t necessarily believe, like de Jasay, that the business of any state is “governing,” that is, taking sides among citizens or subjects. I find liberal rule-based theories like Buchanan-Brennan’s and Hayek’s persuasive. But in de Jasay’s perspective, which I was borrowing while discussing his Capitalist State, there is nothing else than governing that any other state than the (unstable) Capitalist State can do because there is no social dilemma à la Hobbes. I also find de Jasay’s theory attractive.
steve
Oct 8 2023 at 5:13pm
Should the state have enough power to protect from invasion by another country?
Steve
Pierre Lemieux
Oct 8 2023 at 5:39pm
Steve: That’s a good question, of course. With a few anarchist exceptions, all classical liberals would answer that this is indeed the primary function of the state–even if protection against an internal invasion may be equally dangerous, as de Jasay reminds us. I would add two points. First, in a liberal perspective, the only problem with a foreign invasion is if it would bring a worse state than the existing one, due consideration being given to the probabilities involved and the risk of a break in the rule of law. Second, no power should be illimited; otherwise, let’s just submit to any invader.
Mactoul
Oct 9 2023 at 1:13am
Well, continent-spanning liberal states were not built on the principle of let’s just submit to any invader.
I hope the paradox would be appreciated–liberalism was only created and is only sustainable by non-liberal means.
Pierre Lemieux
Oct 9 2023 at 11:45am
Mactoul: I don’t know who said that (your last sentence–I remember reading it somewhere), but it simply doesn’t make sense. It looks to me like a baby-talk paradox, or the sort of Hare-Krishna one can use as an ultimate argument.
Dylan
Oct 9 2023 at 5:37pm
This seems incompatible on the face of it. Any power that is enough to “keep the peace” will by necessity be enough to tempt ambitious men. Indeed, any power above others tends to corrupt. Look at how the clerks at the DMV (or the bouncers at an exclusive club to go with a non-government example) treat their customers.
Mactoul
Oct 10 2023 at 1:16am
If it is maintained that liberalism is responsible for 300 years of prosperity, then the question arises exactly how liberal were these 18c and 19c American and European states. Indeed, a typical 19c statesman is far more authoritarian and nationalist than even Trump whom the libertarians excoriate as illiberalism incarnate,
When and where was the golden era of liberalism that had produced 300 years of prosperity?
steve
Oct 10 2023 at 8:41am
If the state has the power to protect from invasion it will have the power to crush the population. If a military is going to protect from invasion it wont just have tanks it will also have small arms, heavy duty machine guns and lots of professionals who know how to use them.
Also, in my area the DMV people are pretty quick, nice and helpful.
Steve
Pierre Lemieux
Oct 10 2023 at 2:22pm
Steve: Perhaps, but at what (probabilistic) cost for government rulers?
Peter
Oct 9 2023 at 2:43pm
If your implication is how can they do so while being so weak they can’t handle internal revolution, well it’s about weapon choices. Ships, planes, tanks, etc don’t do much for mass revolts, likewise a heavy investment in nukes. Plus you ingrain a cultural value that no soldier will ever shoot a citizen period hard.
The bigger challenge is the police. People forget there are twice the amount of internal paramilitaries than actual soldiers and they have the weapons, training, and incentive to crush internal dissent.
Mactoul
Oct 10 2023 at 1:17am
Not per Buchanan at least who speaks of ordered liberty.
Pierre Lemieux
Oct 10 2023 at 2:20pm
Mactoul: Buchanan speaks of “ordered anarchy”: this, for him, is liberty. If, in your Buchanan readings, you found “ordered liberty,” I’d be interested in precise citations. Most of his books are available free on Econlib. (I think that Brennan would say that liberty is the ultimate value; Buchanan might say that it is consent.)
Mactoul
Oct 10 2023 at 11:55pm
Is there a difference in meaning between ordered anarchy and ordered liberty?
Both imply that individual liberty is not the ultimate value. Explicitly,
One may replace “anarchy” with “liberty” with no change in meaning. What is more, ordered anarchy greatly depends upon customs which you invariably decorate with the adjective stifling.
Jon Murphy
Oct 11 2023 at 7:34am
Yes, at least in Buchanan’s framework. See Chapter 1 of Limits of Liberty, and/or his discussion on liberty in Simple Economics of Natural Liberty (pgs 205-207 of Volume 18 of the Liberty Fund collection).
No, he actually explicitly says otherwise. Ordered anarchy (what he calls liberty) is necessary to maximize individual liberty. A concept of collective liberty is incomprehensible to Buchanan (same citations as above). Buchanan’s whole system is built off of methodological individualism (“My approach is profoundly individualistic…” 2nd paragraph of Limits of Liberty).
Buchanan doesn’t think so. See Limits of Liberty.
Ordered anarchy does depend on customs, but those customs are hardly stifiling.* Buchanan discusses ordered anarchy as a set of customs and rules are are not stifiling, that allow for creativity and flexibility as much as possible:
You’ve clearly read some bits and pieces of Limits of Liberty. I recommend carefully going through the whole thing (especially Chapter 1, where he lays out his methodological foundations). I think you’ll find Buchanan’s argument and discussion much more subtle than you seem to think it is.
*I’m not quite sure if I should interpret your sentence as you thinking Pierre thinks all custom is stifiling or or just customs needed for ordered anarchy.
Jon Murphy
Oct 11 2023 at 8:16am
One other point on the “stifiling” comment: I think you’d benefit from reading Buchanan’s book with Geoffrey Brennan The Reason of Rules. I infer from your comments that you think any restriction or rule on an individual is inherently liberty-reducing, and thus a political/moral system based on rules cannot be individual liberty-maximizing (ie, these rules are “stifiling”). But Brennan and Buchanan discuss (in a very Smithian fashion) how certain rules can actually be individual liberty-enhancing, thus liberating (rather than stifiling).
Mactoul
Oct 12 2023 at 2:32am
As all experience of mankind is against the libertarian position (we don’t know of a single exception), the arguments in favor of libertarianism are particularly interesting. However, Buchanan and Hayek I wouldn’t call libertarian. They invoke order as essential to liberty and the order can only be provided by the community acting as a political community with full moral and coercive authority. But Buchanan is not explicit on this point but I don’t see how he can have the politico-legal order otherwise.
Jon Murphy
Oct 12 2023 at 7:23am
Ok. I’m not sure that’s a libertarian position, but I don’t know all the fringe elements, so maybe there is someone who believes that.
Jose Pablo
Oct 12 2023 at 10:54am
Ok. I’m not sure that’s a libertarian position, but I don’t know all the fringe elements, so maybe there is someone who believes that.
Huemer seems to believe that (The Problem of Political Authority). The arguments are compelling.
As Pierre has pointed out, Michael does not discuss in the book Buchanan’s concept of “unanimous” rule that could offer legitimacy to the “community” (which in this case has a clear meaning) to rule on the individual (always with his/her individual consent).
Absent this “individual consent”, Huemer’s arguments on the lack of legitimacy of the “community” (no clear meaning in this case) to rule over the individual, are well argued and convincing. Taking Buchanan’s individualism as a starting point it is difficult to reach other conclusion.
As Buchanan states, this “individualism” is a normative position. You can always start, as Mactoul does, from a different normative position (“collectivism”). In that case, reaching a “positive” agreement becomes impossible.
I just find the idea that “the individual” (a well define, specific reality I can observe and grasp every day) has to be subjected / sacrificed to “the collective” (a poorly defined, abstract concept I can no see and only exist in the imagination of the people that benefit from spreading the “idea”) undignifying and unbearable.
Jon Murphy
Oct 12 2023 at 11:06am
I do not know Huemer’s work well, but it seems to me he rejects political authority, not the authority of a community to formulate and enforce rules. I read him as an emergent order philosopher.
Again, I do not know his work well, so I could very well be wrong.
Jose Pablo
Oct 12 2023 at 3:40pm
He doesn’t discuss the authority of a community to formulate and enforce rules that individuals have previously agreed to.
What he discuss (and rejects) are the different philosophical theories that serve (has served) as a base for state authority to rule over individuals.
As always, Pierre has very interesting reviews on the book
https://www.cato.org/regulation/winter-2021/2022/wide-ranging-libertarian-philosopher-reasonable-radical#
https://www.econlib.org/the-state-as-it-is-not-as-it-should-be/
Jon Murphy
Oct 12 2023 at 4:02pm
That’s what I thought. But Mactoul seems to think that libertarians reject the first idea, as you put it: “the authority of a community to formulate and enforce rules that individuals have previously agreed to”
Mactoul
Oct 13 2023 at 12:37am
@Jon Murphy
Political authority is the authority of a community. Formal mechanisms may differ–a king, a senate, a gathering of all freemen (as in Athens).
@Jose Pablo
Are political boundaries invisible to you? And what do you say when asked “Who are you” esp in a foreign land?
Jon Murphy
Oct 13 2023 at 7:02am
No. They are radically different things.
Pierre Lemieux
Oct 13 2023 at 3:38pm
Jon: That’s an important point. Some people seem to implicitly believe that “the community” is a living being, a big individual (with whom, perhaps, some anointed little individuals can have lunch with or play baseball with).
Jon Murphy
Oct 13 2023 at 4:19pm
Or that “the community” is coterminous with the polity.
Mactoul
Oct 13 2023 at 11:17pm
If a community has control over a parcel of land and enforces law in it, then what matters what name you call it?
I prefer to call it City.
Some people believe in the City and some people believe in unanimous contracts signed at the beginning of time. What difference?
Jon Murphy
Oct 14 2023 at 7:15am
Names do matter. You can call it a city. I would say “more info needed.” You could be describing a neighborhood. Or a family. Or a workplace, university, friend group, etc. All of which posses different levels of authority, responsibility, etc.
Jon Murphy
Oct 14 2023 at 8:54am
Let me say my last on this:
There are many, many, many types of communities. Each has their own sphere of authority. Consequently, each has their own proper boundaries of that authority. The liberal does not deny that a community has the authority to set and enforce rules. Indeed, we spend much time studying how those rules emerge and various enforcement mechanisms.
Debates are not on the point of community rules. Rather, on what constitutes legitimate rules. An anarchist, for example, would deny political authority any legitimacy while contending a different community (say, a church) has authority to enforce rules for its members.
So, again, there may be some fringe case where someone argued against any community authority, but I am unaware of it. I’d appreciate any citation you can give. I am unaware of any such atomistic view of humanity.
jose pablo
Oct 14 2023 at 4:14pm
Are political boundaries invisible to you?
Yes, for the most part they are!
That’s the reason why some people want to build walls: to make them “visible” (with very little success).
And when they are indeed (and unfortunately) visible, what this “political boundaries” encircle is a group of different individuals, every single one of them with different preferences, goals, hopes …
I can’t see anywhere the “collective entity” (whatever this oxymoron means) you pretend these individuals are. But I can clearly see how, once an again, some individuals torture, exploit, kill, abuse, rob … other individuals in the name of this inexistent “collective entities”
Comments are closed.