Archive for category Law
Over at Public Discourse, Nathan Schlueter explains why he’s not a libertarian, providing concise conservative responses to 10 popular libertarian claims.
This week at Values & Capitalism, I look at two of those claims, related specifically to coercion and market intervention. Finding myself arguing alongside libertarians on most economics-related issues, I thought Schlueter’s points were helpful in illuminating a key distinguisher between conservatism and libertarianism, even if the policy outcome ends up looking similar.
Here’s Schlueter’s sixth point/response:
6. Virtue cannot be coerced, therefore government should not legislate morality. Coercive law cannot make people virtuous. But it can assist or thwart individuals in making themselves virtuous. Law is both coercive and expressive. Not only does it shape behavior by attaching to it penalties or rewards; it also helps shape attitudes, understandings, and character … The law, both by prohibition and by silence, is a powerful signal of acceptable behavior, and thus a powerful influence on character. When the behavior in question involves moral norms that are consequential for the rest of society, it is a proper object of law.
This is not to say that the law must prohibit every vice or mandate every virtue, as libertarians often suggest. Aristotle, Aquinas, the Declaration itself all make clear that “prudence will dictate” whether the costs outweigh the benefits in concrete circumstances (e.g., difficulty of enforcement; more pressing needs with scarce resources; the danger of encouraging underground crime, etc.). But this is prudence in the service of principle, not mere pragmatism. (emphasis added)
The question for conservatives, I argue, seems to be that we think coercion may sometimes be justified and/or helpful. We certainly don’t think it should be in play to the extent progressives do—who seem to pursue centralized control as an ideal—but conservatives recognize that certain features of human nature demand it.
In the end, I argue—piggy-backing on Schlueter—that much of this comes down to realism:
This hits at the deeper level of why conservatives think coercion in economics is sometimes necessary to preserve order. It is here, I believe, that conservatives find themselves fighting between two forms of utopianism: one which actively pursues coercion with little regard for real-life liberty, and one which actively pursues so-called liberty with little regard for real-life humans (or the real extent of certain real-life consequences).
Schlueter points out this distinguisher in his #9 response, which I believe draws the clearest line between both orientations. Conservatism’s “true realism,” as Schlueter notes, is summed up aptly by James Madison, in a line from Federalist No. 57 containing plenty for both libertarians and progressives to detest:
‘The aim of every political constitution is first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.’
Read the full post here.
Jay Richards recently wrote a fascinating piece for The American, in which he argues that many of the “preconditions of wealth creation” are immaterial and spiritual, contrary to many of our materialistic assumptions.
Alas, humans have long been ignorant of what is necessary for wealth creation to occur, and modern-day perceptions have unfortunately leaned toward the common materialistic superstitions of the past.
As Richards explains:
For most of human history, discovering the sources of wealth creation would have been devilishly hard, since most economies, such as there were, tended to be static. If a Mesopotamian farmer or Greek shepherd in the second century BC ever asked, “Where does wealth come from?” he would have assumed that wealth came from rain, common labor, good luck, or some combination of these. He probably also would have assumed that to get really wealthy, you need to plunder other people.
Thankfully, we don’t need to plunder other people in order to create wealth, whether on our own or through the government. In fact, plundering people doesn’t achieve much of anything in the long run.
Instead, we should focus on getting the proper immaterial preconditions in place. When that is the case, wealth creation will begin foster in a way that is truly beneficial for all (…even for the would-be plunderers).
Richards provides a list of ten specific items that he believes lead to healthy preconditions for wealth creation. “The more of these a culture has or does,” says Richards, ”the more likely it is to be prosperous.”
Here is the list (and I quote):
- Establish and maintain the rule of law.
- Focus the jurisdiction of government primarily on Read the rest of this entry »
I’m in the middle of reading Kenneth Minogue’s new book, and so far it is all-around brilliant.
The basic premise is that democracy has wrongly evolved from a mere process to a supreme ideal. More and more, Minogue argues, the West is substituting individual moral responsibility for a superficial form of collective salvation. In short, decisions at the ballot box have subtly become the supreme authority on moral truth.
I’ll be reviewing the book in the near future, but at the moment I wanted to focus on a point Minogue makes in a chapter called “Democratic Ambiguities.” In the chapter, Minogue highlights various elements we need to understand before holistically evaluating democracy. One of Minogue’s many points therein centers around the social conditions necessary for successful democracy. One of those conditions, in Minogue’s view, is cultural homogeneity.
As Minogue writes:
…[T]he ideal of democracy has little purchase on plausibility unless “the whole people” is a relatively homogeneous set of people who “speak the same language” (even if it is only in a metaphorical sense, as in states such as Spain, Switzerland, and Belgium).
But what about the claim that there is no definitive “American culture”? Minogue apparently disagrees:
The United States established its cultural homogeneity as virtually a condition of admission to its shores. A pays politique can hardly exist unless individuals share similar sources of information and talk to each other in mutually comprehensible terms.
To prove his point, Minogue offers several examples where democracy has failed due to competing cultural (or “tribal”) forces. By examining situations in Lebanon, Spain, Northern Ireland, and Africa (no country in particular), Minogue concludes that some degree of cultural Read the rest of this entry »
Whether morality can or should be legislated has been a common topic of this blog, and Micah Watson has some insightful thoughts on the matter over at The Witherspoon Institute.
Here is the opener:
“You can’t legislate morality” has become a common turn of phrase. The truth, however, is that every law and regulation that is proposed, passed, and enforced has inherent in it some idea of the good that it seeks to promote or preserve. Indeed, no governing authority can in any way be understood to be morally neutral. Those who think such a chimerical understanding is possible could hardly be more wrong. For, in fact, the opposite is true: You cannot not legislate morality.
When speaking of these matters, I think a certain distinction needs to be made. Many would read Watson’s words and take away an argument about the inevitability of moral entrance in the realm of political decision making. But while such inevitability is indeed a reality, Watson is pointing to something beyond mere inevitability.
What is often missed is that morality is inherent in all legislative decisions. It is not a matter of this or that, but of this and this (and so on). Morality is not confined to matters of gay marriage and torture, but is equally involved in those of taxation and sanitation.
Thus, the distinctions we pursue are not to be found in the moral inherence within particular decisions but in the moral consequences thereof.
As Watson continues:
Not every decision has profound moral consequences. But even drawing the line between morally innocent choices and morally culpable choices demonstrates our Read the rest of this entry »
I’ve been reading Michael Gerson and Peter Wehner’s new book, City of Man: Religion and Politics in a New Era, and thus far it has been an enjoyable read.
I’ll write a full review in the near future, but for the moment I just wanted to highlight a few of the book’s ideas about the “morality of human rights.” There is an entire chapter on the subject, in which the authors argue that although we should be careful about how religion feeds into politics, we should also recognize that religion should play a role in shaping our political understanding of human rights.
This view is based on the following understanding about human nature and morality:
What truly marks human beings is the tendency to care for self, family, clan, tribe, race, religion, nation. To care for every human being would appear to require a moral law. To sacrifice for the rights of other human beings — merely because they are human beings — would appear to require a holy law.
Gerson and Wehner go on to explain that “the contribution of religion to this [moral law] debate is narrow but essential,” meaning that although plenty of religious beliefs may not yield to political synthesis (e.g. eschatology, ecclesiology), some of them do and must (e.g. “beliefs about human worth, human nature, and human destiny”).
As the authors explain:
The Christian ideal of human dignity is important precisely because it transcends culture. It has proven its ability to stand in judgment of many cultures, including our own. The theologian Max Stackhouse calls this “one of the greatest revolutions in the history of humanity”… Religious people have a unique ability to stand outside the prison of culture and call attention to a set of universal ideals. In other words, they can represent, in the kingdoms of this world, the values of another Kingdom.
This view obviously rejects any sort of cultural or religious relativism (note the referral to “a set of universal ideals”). For the Christian, there is a right and wrong that applies to everyone, regardless of culture, race, or Read the rest of this entry »
By now, I assume that most of you have heard the news regarding Proposition 8, which was overturned this week by a California judge.
From The New York Times:
Saying that [Proposition 8] discriminates against gay men and women, a federal judge in San Francisco struck down California’s voter-approved ban on same-sex marriage on Wednesday, handing supporters of such unions at least a temporary victory in a legal battle that seems all but certain to be settled by the Supreme Court.
As usual, the media has been buzzing, but it seems that the majority of the arguments (from both sides) have to do with the morality of gay (or straight) marriage, and whether we as a society should “accept” it.
These are necessary arguments to have, but the fundamental issue at the moment has to do with whether this decision holds up on Constitutional grounds. I would argue that it does not.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Obviously we can’t just interpret the Equal Protection Clause all by itself (it has years of jurisprudence coloring its words and meaning), but rather than dive into a nuanced, methodical discussion of how we should interpret the clause, I will simply say that I don’t believe the clause has anything to do with homosexual marriage, or heterosexual marriage for that matter.
In this particular instance, perhaps one good way to understand what it should apply to is to detach ourselves from thinking of “marriage” as Read the rest of this entry »