A member of the attackthesystem group asked the following: A common criticism of libertarians and anarchists is that we don’t need more freedoms than what western democracies allow us today.
So, let me ask you:
What freedoms do YOU want, that you don’t have today?
Keith Preston responded: I think your point here illustrates very well the central intellectual question of our time concerning political theory. We need to intellectually attack the basic presumptions of the ruling class, particularly “democracy” and legal positivism. These two things are the cornerstones of the modern state’s ideology of self-legitimation.
Virtually all educated people in modern societies recognize the illegitimacy of absolute monarchy, military dictatorship, communism, fascism, aristocracy, theocracy, etc. Only “democracy” and “rule of law” retain supposed legitimacy. What this view means is that the state can legitimately do whatever it wants to anyone so long as there is an existing parliament, elections are held periodically, and laws are made according to some kind of formal institutionalized procedure. Discredit these ideas like the divine right of kings has been discredited, and the modern state is finished.
I wrote: I’ll stick up for “rule of law”. The phrase does not indicate that a law is dandy just because it is on the books, but that the government is restricted by law rather than the whims of those in power. Of
course the Constitution can’t protect itself, but establishing the norm of not violating it (even if I would prefer the Articles of Confederation) is helpful. Similarly “state’s rights” proponents don’t actually think states have rights, only that the central government does NOT have certain rights over them.
Expanding on that, I wrote: Hume’s is-ought would seem to preclude ever establishing anything to be objectively valid or good, but we can still insist on standards or boundaries for officials and a Constitution can serve as a Schelling point.
Keith wrote: This is my take on this issue:
Laws simply reflect the self-interest of those who make them. Nothing
more, nothing less. Whether or not a particular law gets enforced
depends on the wishes of the powerholders of the moment. To the
degree that “law” restrains powerholders, it is only because of
competing power centers in society, or wider historic traditions or
cultural norms that preclude certain state actions. For instance, it
would be impossible to outlaw Christianity in the US, not because the
First Amendment says so, but because of the wider cultural power of
both organized religion, the self-interest of powerful Christians and
the historic tradition of church/state separation.
On the other hand, from my studies of the “war on drugs” I would say
that “the constitution” does absolutely nothing to restrain drug
enforcement officials or the courts, for the simply reason that drug
users/sellers lack cultural power, historic recognition, powerful
advocates, etc.
“Law” is simply as mask for the ongoing war of each against all. The
law will reflect the views of those who have succeeded in this war to
the degree necessary to institutionalize their own interests.
I responded: My point is that “rule of law” is a norm that serves to restrict the government. It doesn’t do so as much as we would like, particularly in the case of marginal folks like drug dealers or prostitutes (I assume you already read the Levitt article about how pervasive police-rape is), but that doesn’t mean it doesn’t do it at all. I suspect that living in a country that doesn’t even pay lip-service to rule of law would make you nostalgic for the Great Satan.
Keith replied: Yes, I agree, but is not this “rule of law” that restrains the state (sometimes) not an expression of wider historic and cultural traditions derived from the Anglo-American Enlightenment? Is it really “the law” that’s the issue or is “the law” merely a euphemism for this wider cultural/historical milieu?
I replied: I think the idea was cemented with the Magna Carta, which was the result of elites being angry that their traditional privileges were being encroached on, but the idea is not just the English tradition of limited government but that the government is subject to the law just as much as people are. The issue is alive today in the wire-tapping amnesty where some people say it’s okay for the law to be broken under extreme circumstances, or in Mansfield’s ideas on the executive.
Entitled to an Opinion 
April 5, 2008 at 10:10 am
What freedoms do YOU want, that you don’t have today?
We demand the right to urinate in different colors! — Tristan Tzara (or Tom Stoppard’s version of him, anyway)
I like the idea of law as as Schelling point. De-evolution of large-scale government might be a good idea, but “state’s rights” is code for the right to own slaves and othewise oppress, which unfortunately makes it a completely discredited idea in the context of American history.
I have to say I find Raimondo and Preston, from the little I’ve seen of them, to be obnoxious poseurs. “American Revolutionary Vanguard”, indeed.
April 5, 2008 at 11:41 am
I think asking “What freedoms do YOU want, that you don’t have today?” is a fundamentally wrongheaded approach, because much of the damage of the modern regulatory state is unrealized and unknown potential. For example, I think it’s beyond reasonable dispute that FDA hurdles have significantly retarded the development of new medications, but obviously I can’t name any specific medications that would exist but for the FDA, because they don’t exist.
April 5, 2008 at 12:07 pm
“but state’s rights’ is code for the right to own slaves and othewise oppress, which unfortunately makes it a completely discredited idea in the context of American history.”
Only as long as people maintain that it is. When Californians employ “state’s rights” to smoke pot or Greens in Maine to secede from the American Empire, the discourse surrounding it will determine if “state’s rights” talk is immutably “right wing”.
April 5, 2008 at 12:10 pm
The FDA is a bully.
People that have agreed to experimental drugs that appear to work perfectly well for them are denied the right to continue usage by those pigs at the FDA, resulting in much unnecessary anguish.
April 5, 2008 at 12:29 pm
People don’t have the right to be provided with experimental drugs. Or non-experimental drugs, for that matter.
I want the right to decide how ALL of my income should be spent, not just the parts of it that politicians decide they’re not going to steal.
I want the right to grow ecologically harmless plants even if they happen to be used in the production of mind-altering substances.
I want the right to demonstrate in a responsible fashion without being sidelined into designated ‘free speech’ zones.
I want to be able to claim the rights we’re told we have in theory but don’t actually have in practice.
And that’s just for starters.
April 5, 2008 at 12:41 pm
Yes, Caledonian, but in the case I’m referring to the “right” is to continue engaging in a transaction with a willing partner with no evidence of an infringement on anyone else’s rights.
But yes, there is no RIGHT to experimental drugs.
April 5, 2008 at 12:51 pm
The pigs at the FDA, despite their flaws, provide a useful service in making sure that drugs on the market are reasonably safe and effective. Presumably you know the thalidomide story. The FDA hurdles are there for reasons, not just to cause you grief. Of the various functions of government, that is one of the more defensible. Not that they couldn’t make improvements in how they do things.
April 5, 2008 at 1:52 pm
They’d more legitimately provide a “useful service” if they weren’t a monopoly.
Sure, there’s Thalidomide. There’s also Lotrinex, AIDS drugs, and the unseen cost of keeping drugs OFF the market.
I’m all for the FDA as simply a clearinghouse of information on various drugs. But as a coercive power that can deny people life saving (or pain saving) drugs it’s very much an illiberal institution.
I believe that the truth about whether a given drug is safe and effective emerges from free deliberation among competing agencies and individuals engaged in drug review, and the personal experiences of those who have actually tried a drug.
Besides, the FDA essentially acts as a central hub whereby those industries with the most power can wield their political prowess to push through their own drugs and keep out others. It’s called “regulatory capture”, and it’s capable of capture because it’s a monopolistic source of drug verification.
One could say this about the US Drug Czar: “He provides a useful service in making sure that drugs on the market are reasonably safe and effective”.
April 5, 2008 at 3:53 pm
I like the idea of law as as Schelling point.
David Friedman has a quite interesting explanation of property-rights as Schelling points here.
De-evolution of large-scale government might be a good idea, but “state’s rights” is code for the right to own slaves and othewise oppress, which unfortunately makes it a completely discredited idea in the context of American history.
And state sovereignty, limiting wars to defense and so on are code for the right to commit genocide, completely discredited by the Iraq war.
The pigs at the FDA, despite their flaws, provide a useful service in making sure that drugs on the market are reasonably safe and effective.
I can pay for a service. They restrict. If I’m dying of a terminal illness and wanted to take my chances with an experimental drug, they don’t give a damn about what I want. Whether the FDA is even doing a good job of determining whether drugs are safe or not is disputable.
The FDA hurdles are there for reasons, not just to cause you grief.
The Iraq war happened for reasons, not to cause me grief either.
April 5, 2008 at 6:19 pm
Well then, I agree. If people know what the substance they’re purchasing is, and they know as much as anyone else about what its effects will be, I see no reason for government to interfere.
April 5, 2008 at 6:51 pm
Caledonian,
Hear Hear. Though I think that the sense of bureaucratic “fairness” and the undermining of the FDA’s raison d’etre would significantly work against that becoming a general rule.
And by the way I’m an Obama man too…for pissy anti-war libertarian reasons of course.
April 5, 2008 at 6:59 pm
This from the Friedman article:
“Even if one accepts an account, such as that of Locke, of how initial acquisition might justly have occurred, that account provides little justification for the existing pattern of property rights, given the high probability that any piece of property has been unjustly seized at least once since it was first cleared. Yet billions of people, now and in the past, base much of their behavior on respect for property claims that seem either morally arbitrary or clearly unjust.”
I didn’t get very far, granted, but I remember Rothbard criticizing utilitarianism because of precisely this problem. It assumes the legitimacy of the status quo. Where’s the justification for denouncing slavery with an ethic like this?
Utilitarianism is rather quietist.
April 5, 2008 at 8:09 pm
Huh, I always thought that utilitarianism disregarded the status quo and deontological ethics affirmed it! Nick Bostrum (who I think is some sort of utilitarian) wrote the paper The Reversal Test: Eliminating Status Quo Bias In Applied Ethics.
Where’s the justification for denouncing slavery with an ethic like this?
Lots of negative utility for the slaves?
April 5, 2008 at 8:22 pm
Yea, I see your point. I’d have to give that ALOT more thought.
Though in my personal experience self described utilitarians have been much more “ok” with the “system”.
April 6, 2008 at 8:21 am
The point is not to pick on the FDA, it’s just a particularly clear example of the general principle. The burdens of complying with regulations must prevent certain goods and services from being offered on the market, but nobody could possibly be expected to say with confidence “but for such-and-such a regulation, such-and-such a product would exist”.
April 6, 2008 at 11:57 am
If the FDA didn’t exist, it would be easier to get experimental drugs, and it would also be easier to get poisonous or useless drugs. Like any regulatory regime, It’s a tradeoff, and you can argue about where the tradeoff should be, but the position that there should be no regulation at all is untenable.
In the case of drugs, there are two rather powerful counterexamples. One is the Thalidomide incident, which was a clear case of the failure of self-regulation. I suppose the market solution is to self-correct — once 10,000 deformed children are born, that’s a sing not to use that product any more. But most people would prefer some up-front testing be done.
Another interesting case is the current state of natural drugs (herbs, aka “dietary supplements”). By law, these are largely unregulated and are not subjected to the usual requirements for safety, efficacy, or consistency. The results aren’t great — reliable information and standardized doses are difficult to come by, although Google and other sites seem to be making progress solving the first problem.
It is possible to envision private, non-coercive regulatory schemes, like Underwriters Laboratory. Maybe that would work for drugs. It would let experimental therapies out into the world sooner, which has benefits but also has enormous risks. The historical market dynamics of medicine have produced huge amounts of quackery and gullibility. You can argue that it’s not the job of government to protect people from their own gullibility, but most people would disagree.
April 6, 2008 at 3:14 pm
But even when the FDA oks a drug that turns out to be dubious in its efficacy or results in sickness – people don’t think the FDA should be abolished for its failure, it should be strengthened to “do better next time”.
Investing the power to officially approve or disapprove drugs in ONE agency is dangerous. They have neither the knowledge nor incentive to do what’s best for drug users in general. As TGGP pointed out, a large number of drugs were deemed safe by the FDA too, and subsequently made many people ill. The prestige and supposed trustworthiness of this monopolist is the reason for this.
Thalidomide is one very prominent example of an FDA success. Due to obvious reasons of visibility (and thus newsworthiness), failures of drugs are remembered to the detriment of the unseen – the drugs that are held back or not created to begin with due to state monopoly. There are costs to this as well, speaking of tradeoffs.
Yes there are quacks, but I trust institutions – in this case the interplay between those who need drugs and those who wish to provide them – better than the group of people comprising the FDA, and their big pharma sycophants.
There’s an interesting parallel between this discussion and the war on drugs in general. The FDA is more or less just an arm of that broader war. Those caught using a drug they swear by, though not approved by the state, will be in hot water.
April 6, 2008 at 6:21 pm
It was also a failure of critical thought on the part of consumers. Given even a little thought, it should quickly become clear why ingesting psychoactive substances of any kind during pregnancy could cause harm and thus should be avoided.
There are many, many failures of critical thinking, actually. Among both doctors and patients.
April 6, 2008 at 6:55 pm
I’m surprised amidst the FDA discussion nobody linked to this.
An interesting page on the FDA’s handling of thalidomide here.
April 6, 2008 at 10:55 pm
Thank you, Caledonian, for expressing both the humanity and depth of analysis that has won libertarianism so many converts.
April 7, 2008 at 6:40 am
Unthinking acceptance of ‘authority’ is a major cause of suffering, mtraven.
So is the idea that someone identified as a victim cannot share in the responsibility for their suffering.
Thank you for expressing the weak-mindedness and shallow analysis that have plunged the world into darkness.
April 7, 2008 at 11:42 am
Right, suggesting that the government might play a role in keeping harmful products off the market is “plunging the world into darkness”. You are contributing to my long-held view that libertarianism is a form of brain damage.
April 7, 2008 at 5:51 pm
No.
Implying that government action is a suitable replacement for skeptical thinking on the part of individuals, however, IS.
Why is it that the people who both 1) assert that I am a libertarian 2) and are opposed to libertarianism never seem to understand anything about the positions they’re criticizing?
April 7, 2008 at 8:41 pm
OK, you’re not a libertarian, just a garden-variety asshole. My apologies.
July 18, 2008 at 3:46 pm
[…] but other existing states, I would say that our country does a quite good job of providing “rule of law“. […]
January 22, 2011 at 6:40 pm
[…] for Rothbardian disrespect of Kendallian democracy. I’ve expressed positive feelings for the rule of law before and I can agree that settling our disagreements democratically is preferable to doing so […]