Front Page Titles (by Subject) V: Ethics, Rights, and Freedom - Literature of Liberty, January/March 1978, vol. 1, No. 1
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V: Ethics, Rights, and Freedom - Leonard P. Liggio, Literature of Liberty, January/March 1978, vol. 1, No. 1 
Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.
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Ethics, Rights, and Freedom
The following summaries confront unavoidable ethical questions of whether human freedom may be justified in terms of rational and objective moral significance. How are freedom and individual rights related to moral values, virtue, and self-actualization, both in the abstract and in specific issues of social sciences, economics, and political philosophy?
Can a valid value theory (axiology), defending individual freedom and rights, be articulated and shown as rational and natural when applied to law, political science, and economics? Specifically, can the freedom of the marketplace (and its mechanisms of contract, interest, profits, individual choice, and self-interest) justify itself in moral terms rather than by invoking pragmatism or utilitarianism.
“The Ontological Status of Value.” The Modern Schoolman 53 (1976): 393–397.
Do values such as “good” and “beautiful” reside wholly in the object (objectivism) and are thus independent of the human subject perceiving them? Or do values reside fundamentally in the human subject (subjectivism) and are essentially independent of the object?
Neither position is adequate. A false dilemma underlies the objectivist-subjectivist debate over values. The objectivist (e.g., G.E. Moore and Plato) fears that unless value is (1) an absolute quality of objects, it is (2) nothing in these objects.
To prevent moral chaos and arbitrary subjectivism in values, the objectivist opts for the first alternative. He maintains that value is an absolute quality whether or not there exist subjects to value objects. The subjectivist (e.g., Bertrand Russell) chooses the second horn of the dilemma. He fears that making value an absolute quality of objects will turn it into a rigid, dictatorial principle with political implications. The subjectivist insists on making value a quality of the perceiving subject without any essential relation to the object.
The flaw in subjectivism appears in the experience of subjects committing errors in value judgments. If the judging subject were the sole cause of values, then the subject could never “err.” Error implies the existence of qualities that exist independent of the subject's fabrication. The flaw in objectivism, on the other hand, appears when we note that subjects do disagree about value judgments.
We can find a way out of the objectivist-subjectivist dilemma concerning values by viewing value as a relational quality of an object dependent on both the object and the subject. Without a subject, the object will not have value for anyone. This does not mean that value is “subjective” or relative. Value is “objective” since it is a quality of the object; it is “subjective” only in the sense that it results from a relational ontological structure, one of whose elements is a subject. Together—the object, subject, and situation that unites them—are the causes of value. Value is not arbitrary since it does not depend on the whim of the subject. The solid nature of the object constrains the subject judging it.
We can recognize value ontologically as a relational quality in which the subject plays a vital role in reference to a given object. We do not have to accept either doctrinaire absolutism or value relativism.
The Relevance of Ancient Social and Political Philosophy for Our Times: A Short Introduction to the Problem. Berlin, New York: Walter de Gruyter, 1974: 57 pp.
Ancient political-social philosophers, particularly Aristotle, offer the twentieth century man and woman valuable insights. They minister a potent antidote against modern ideological intolerance and rigid closed societies by supplying the ancient moderating spirit of open dialogue and tolerance for rival beliefs and values. Ancient philosophy also avoids the modern dilemma of value controversy (which begets intolerance) by its naturalism, that is, its sophisticated analysis of human nature and man in the natural world. The Greeks sought such naturalistic foundations for their ethics and guidance of human life. They believed in a natural order, with which man must comply if he does not wish to harm himself. Greek moralists tried to discover what this natural order is and what is good for man within this order. They did not expect to discover “ultimate values,” but only what is good for human beings inasmuch as they are part of the existing natural order.
For the ancients, what is good for man is answered after first deciding what is man's place in the natural order. A social context is necessary for the individual to develop his or her proper excellence. Two items must be respected: by nature men are born as individuals with different individual talents; they require the society of other men, however, to develop their unique abilities. As an empirical fact, individuals are both personally most happy and most useful to the community if they can develop their talents to the full. Seeking to make men equal leads to dangerous consequences. A Procrustean equality is irreconcilable with any kind of liberty. As de Tocqueville observed about the egalitarians: “They hate not only privilege but even diversity itself. They worship equality even to the point of equal servitude.”
Ancient philosophy's nonabsolutist method of open-ended, tolerant dialogue allowed the possibility of moderately defining and clarifying such vexed questions as the relation of the individual to society, the role of wealth, leisure activity, unemployment, and labor-saving machinery—all in the context of the overall good life proper to man's nature. Such a naturalistic criterion can usefully serve to judge both modern industrial and technological problems by stressing the natural needs of humans. If we ignore or frustrate these needs, dire consequences result. Thus, humans need beauty rather than the cultural ugliness now so prevalent.
Ancient wisdom teaches the need to overcome the habit of ideological excommunication. A major cause of this intolerant habit is the belief in absolutely valid and binding principles of conduct expressable in overrigid formulae. More sane is Aristotle's method of drawing “outlines” which derived from observing the natural order of man's needs as a way to define the complementary valid “extremes” to reconcile in any question. Observation may at first stress the importance of society to man and tend to conclude that the individual interest is entirely subordinate to that of society. But the “outline” method in open dialogue expands when we add the other factual observation, that any sound society depends both on different individuals' talents collaborating, and on the free development of these talents. Both observations must be realistically reconciled.
This undogmatic and balanced method of ancient philosophy exploring man's nature and needs appears also in Plato's Republic (II, 372c2). It raises the question that even the more benign forms of human regulation (such as the democratic socialism of Sweden today) lack the “spice” of human diversity. Likewise, in Plato's Laws (746b-c), the Spartan Megillos first praises the strict discipline of the Spartans. But he has to concede that if a free and uncoerced Athenian nevertheless chooses to be a good man, he surpasses all others. Such truly autonomous persons in contrast to the “other directed” possess genuine, rather than artificially, made excellence.
Preambles to Freedom
“The Bodyguards of Truth.” Proceedings of the American Catholic Philosophical Association (USA), 50 (1976): 125–133.
The reader can garner illuminating insights from studying the philosophic tradition of Aristotle and Aquinas.
As an example from political and economic philosophy, we can see how such insights reconcile the apparent antagonism between liberty and equality. Should we violate individual freedom to achieve complete equality of condition? Or should we tolerate inequalities of condition to maximize individual liberty? Aristotelian-Thomistic thought resolves this dilemma by eliminating either liberty or equality as a supreme, absolute value. We must subordinate both liberty and equality to the standard of justice. We may not maximize liberty or equality in a way that trespasses on justice, and thus violate the just claims of other individuals.
Further insights from Aristotle and Aquinas cast light on liberty and other values. These insights, “the bodyguards of truth,” are central if we are to avoid the many errors to which modern philosophy has succumbed. These insights fall into two major categories: (1) psychology and the theory of knowledge; and (2) moral and political philosophy. These insights are important to liberty for several reasons. No justification of man's right to liberty can proceed unless we clearly and realistically understand man's nature, his consciousness, and epistemology. Further, we need the aid of these insights to relate liberty to such issues as the common good; and within eudaimonistic ethics, we must carefully distinguish freedom between various ends (and desires) and right desires.
To gain the central insight for the first major category (of psychology and the theory of knowledge), we need to realize that an “idea” is not that which we apprehend but rather that by which we apprehend whatever we do apprehend. This holds true for both perceptions as well as conceptions, that is, for both sensible and intelligible orders of knowing. Once we comprehend this, we no longer need to regard the contents of consciousness as mythical inventions. Even more importantly, we no longer need to consider perceptions and conceptions as mere subjective “ideas” (merely private creations) which have no secure connection to reality. If our ideas do not bring us valid knowledge of the actual world, such concepts as good, evil, and freedom must remain arbitrary and unjustified.
It makes sense to deny that “ideas” are the objects of consciousness (despite the contrary views of Descartes, Locke, Berkeley, Hume, and Kant's Copernican Revolution). It makes equal sense to affirm that ideas are rather the means which make awareness possible. Both these commonsensical positions come to us as unique epistemological contributions of the Aristotelian-Thomistic tradition. This same framework allows us to solve many psychological, epistemological, and semantic puzzlements.
Aristotelian-Thomistic insights contribute importantly to the second major category (of moral and political philosophy). First, the state is both natural and conventional. It is natural in terms of the purpose it serves since it fulfills a real need for man; it is conventional in terms of how it is established. We do not need, contra John Rawls or Robert Nozick, to imagine the origin of the state by fabricating a myth about men living in a “state of nature.”
Second, there are two distinct senses of “common good.” On the one hand, the public good is common because members of an organized community participate in it; on the other hand, the private good is common because it is the same in all men. The public good is the aim of just governments; the private good is eudaimonia or happiness, the individual's natural end and aim. At least in principle, this distinction supports the view that the public good together with private virtue serve as the means to one's natural end.
Third, we can draw a vital distinction between happiness as an end that we reach and enjoy in a given moment (terminal end), and happiness as an end that characterizes the temporal whole of our entire life (normative end). If we blur this distinction we erroneously come to regard happiness in purely psychological terms as satisfying any individual's desire, and tend to ignore happiness understood in terms of satisfying right desire. The latter view of happiness gives rise to Mill's injunction: “better a dissatisfied Socrates than a satisfied fool.” Unfortunately Mill's utilitarianism precluded his systematically availing himself of this moral view of happiness. Mill could not connect the general happiness of others to the individual's happiness as a moral end.
Social Sciences and Values
“Leo Strauss: A Bibliography and Memorial, 1899–1973.” Interpretation: A Journal of Political Philosophy (Holland), 5 (1975); 133–147.
Leo Strauss's achievements in political philosophy are imposing and difficult to exaggerate. In numerous books, articles, and reviews he explored the key moral and political concepts of both ancient and modern thinkers.
Strauss sharply criticized the moral aridity in the modern social sciences, especially political science. He insistently pointed out that in a quest for behavioristic and value-free scientific validity, these disciplines ignored human concerns of good, evil, and value. His whole lifework focused on the normative dimensions of moral and political philosophy. He opposed relativistic historicism and advocated a return to a deeper study of natural right theory in his book Natural Right and History (1953) and in his “Natural Law” article in the International Encyclopedia of the Social Sciences (1968). A good introduction to Strauss's chief themes and deeply moral approach to ideas appears in his volume What is Political Philosophy (1959).
His scholarly career advanced our understanding of a wide range of authors including Socrates, Plato, Xenophon, Aristotle, Thucydides, Lucretius, Moses Maimonides, Marsilius of Padua, Hobbes, Spinoza, Machiavelli, and Locke. Between 1930 (Die Religionskritik Spinozas) and 1958 (Thoughts on Machiavelli) his books centered on the moderns. From 1964 until his death in 1973 his scholarship concentrated on the ancient classics and included such studies as The City and Man in 1964 (analyses of the political philosophy of Plato, Aristotle, and Thucydides); Socrates and Aristophanes (1966); Liberalism Ancient and Modern (1968), including a detailed essay on Lucretius and a reprint of a review article on E. A. Havelock, The Liberal Temper in Greek Politics; and Xenophon's Socrates (1972), a study of Xenophon's Memorabilia of Socrates. A posthumous work published in 1975, The Argument and Action of Plato's Laws, rounded out his detailed explication of Plato whom he also dealt with in a chapter of his credited useful volume, History of Political Philosophy (second edition, 1972).
Strauss also advanced a controversial but stimulating thesis in Persecution and the Art of Writing (1952) on the relation of political-cultural freedom to the degree of candor and directness displayed by various authors. Socially and politically oppressive epochs often compel skillful, independent thinkers to practice a stylistically indirect “secret writing” to communicate their politically or religiously unorthodox views. Such persecuted authors demanded careful interpretation to unravel their writings and inner thoughts.
Strauss taught and practiced the virtue of moderation by insisting on the relevance of ancient wisdom to modernity. He balanced the importance of the here and now with the universal and timeless, and he supplemented mere scientific fact with value-laden and humanistic concerns. Throughout his scholarship he also demonstrated the demanding art of “careful reading” and detailed explication of ancient and modern texts. His scholarly virtues and insights have stamped many minds with his intellectual integrity.
Reason and Change
“Radical Change and Rational Argument.” Ethics (USA), 87 (1976): 66–74.
Are truly radical personal or political changes (or revolutions) rationally justifiable? A somewhat related issue raised by Thomas S. Kuhn, The Structure of Scientific Revolutions, 2d edition (Chicago: University of Chicago Press, 1970) suggests that, in principle, revolutionary change cannot be justified: the revolutionary is in the grip of a new world-view or paradigm. The non-revolutionaries, however, cannot fully understand the new framework. They interpret “new” facts in terms of the old paradigm.
In the Republic, Socrates argues for a revolutionary new Platonic society. To the objection that the utopian Republic's Guardian-class will be unhappy without money, property, or marriage, Socrates argues that in the new society, guardians qua guardians will not desire such goods that men (in nonideal societies) rank highly.
If a person seeks personal inner-harmony or a just social order, he is urged to convert and forfeit his present attachments, perspective, and self to believe the new untested things; he cannot trust his old self or present judgment, but must “leap” into the unknown. The same “Leap Before Looking” (LBL) argument is advanced by Marx and Engles in arguing that men should adapt radical change to create a communist society that will, in effect, transform present human nature and create a new Communist Man purged of the old acquisitive and competitive desires bred into him under capitalism. Similarly, psychotherapists and religionists often recommend adapting radical self-transformation that, from the old self's present perspective seems rationally unjustifiable because there is no continuity between the old self (with its specific personality of wants, desires, and values and the new self that emerges after “conversion.”
The flaw in this is “discontinuity.” Before leaping, the individual cannot fully know or experience what he is leaping towards. He lacks the continuity or bridge between old and new selves. Without the psychological equipment and knowledge of his new standpoint, the old self must view the leap as unintelligible. This “psychological equipment” comes to him only after the leap with the newly created beliefs. This “flaw of noncontinuity” afflicts both rationalist radical social reformers and irrationalists.
If the act is justified only afterward or in the process of acting, then at the moment of decision it lacked rational justification. A necessary condition to rationally justify such acts is a context or reference to the needs or wants of the agent in a continuous fashion.
Reason and Choice
“Incommensurability and the Rationality of the Development of Science.” British Journal for the Philosophy of Science (UK), 28 (1977): 345–350.
Can revolutionary advances in science proceed in a “rational way”? According to Kuhn and Feyerabend such advances proceed in a disconnected way, making it impossible to find logical connections between the old theory and the new theory that replaced it. This position has several flaws.
The Thesis of Incommensurability (TI), recently popularized and defended by Thomas Kuhn and P. K. Feyerabend, maintains that two scientific theories separated by a Kuhnian conceptual “revolution” may be completely “incommensurable.” In other words, TI denies that two successive theories or “paradigms” are rationally comparable; they resemble two completely different languages, organizing the world in such radically different ways that they permit no logical translation. But one can demonstrate that “incommensurability” need not be a stumbling block to methodologists hoping to advance a rational interpretation of the way science works. A solid case exists for those theorists who have tried to find a rational and progressive account of changes in scientific theory, and who are intrepid enough to call such changes a “growth in knowledge” rather than complete discontinuity.
One can level two criticisms at the adherents of TI. The first objection observes that if TI were true it would apply not merely to revolutionary periods but to all periods of theoretical change. However, the champions of TI wish to believe that during periods of “normal” or non-revolutionary science, an improved theory (T') may be rationally comparable or commensurable with the earlier theory (T) from which it developed. This is, of course, true. But according to TI, T and T' would also have to be incommensurable even in these “normal” scientific changes. There is no nonarbitrary way to distinguish between revolutionary and nonrevolutionary periods of scientific development. One reason for this is that historically, new ideas in science often have their greatest or “revolutionary” impact only long after their discovery. Eminent scientists may not know that their discoveries are “revolutionary”; their “normal” science work may later have “revolutionary” implications.
Accordingly, TI faces a dilemma: either it excludes rational comparisons between theories in nonrevolutionary cases, or it must allow comparison in revolutionary cases.
The second critique against TI rests on a historical fact. A “relation of correspondence” holds between successive theories and we may formulate it in purely formal terms, even when the two theories are “incommensurable” in the sense that they invest the same terms with different meanings (meaning-variance). Contrary to TI, the character of this correspondence relation allows for a rational and logical continuity in the development of science. One can exhibit this continuity in terms of logical relations among successive theories. Historically, working scientists consciously use such heuristic tools as the principle of correspondence to lead them logically and intuitively to new discoveries. Scientists do not function according to TI.
Economics and Values
“Should Economists Abandon HOPE.” History of Political Economy (UK), 7 (1975): 252–260.
The economics profession particularly in Great Britain, in its preoccupation with econometrics and a narrow wertfrei conception of model testing and mathematical prediction, neglects the study and teaching of the history of political economy. This narrow scientistic view of economics impedes progress.
Greater knowledge of the history of political economy would make economists and students more aware of the reality of how ideas develop as an ongoing process rather than the naive positivists' account. Such history shows, for example, that scholars do not accept certain models, paradigms, or emphasized areas of interests as a result of careful scientific testing. Instead, complex interactions between personalities, ideologies, and the normal scientific researches lead to economic idea development. Thomas S. Kuhn has documented how little scientific research in general is affected by the history of science (“The History of Science” in International Encyclopedia of the Social Sciences, 14:81).
Economists have neglected three key areas of legitimate concern: (1) methodological considerations, (2) political economy, and (3) alternative systems.
“Law, Justice, and Natural Rights.” Western Ontario Law Review (Canada), 14 (1975): 119–130.
Can natural law provide the foundations for a valid theory of law? Yes, if we update the theory of natural rights so as to avoid the alleged static character of morality that Hans Kelsen (“The Pure Theory of Law,” in M.P.Golding, ed., The Nature of Law, New York: Random House, 1966, p. 132) regarded as essential for any natural law system. This updated theory, resting on a contextualist epistemology, can provide a sufficient content for a legal system. It can distinguish valid from invalid legal systems on moral grounds, while not requiring only morally perfect law to qualify for legality. Thus a nonpositivist ingredient is essential for law.
Kelsen raises a very serious objection to the prospect of a moral content in the positivelaw. It must be answered if we seek to defend a moral legal system that can be differentiated from the Third Reich's legal system. Kelsen maintains that if there is a valid moral system, its nature is so rigidly fixed that no dynamic legal system could be grounded on it. The seemingly irresolvable dilemma is that a moral system is fixed, whereas legal systems are essentially flexible and changing.
But the degree of fixedness that Kelsen finds in morality is also essential to a legal system, while the dynamic character of a legal system is paralleled at many levels by a fully developed rational moral system.
An updated version of the Lockean natural rights theory, resting on a moral position, could provide a legal system with moral criteria for distinguishing valid from invalid legal systems. It need not require that only morally perfect law qualify for legality. This moral position would support the common sense belief that a legal system should secure justice as well as order (or mere internal consistency).
We can achieve our updating by rejecting the rationalistic grounds of natural rights theory without rejecting the essential soundness of its normative content. Traditional natural law theory erroneously rested on an inflexible rationalistic epistemology that took as its model of truth, mathematical formal necessity and axiomatic finality. Little room remained for the kind of change required by positive law to accommodate varying social and personal contexts. We need to meet the dilemma that positive law must be flexible in some sense, but moral principles must also be firm for there to be a coherent idea of morality. Subjectivism and intuitionism will not pass muster as responses to the positivist challenge. To answer Kelsen we need objective and verifiable knowledge that is both firm and flexible.
The answer lies in a contextualist epistemology to replace the static and faulty rationalistic underpinnings of natural law. Contextualism rejects the rationalistic contention that entities or knowledge must be fixed. Or that definitions must state the necessary and sufficient conditions for something being what it is forever, timelessly. Contextualist epistemology offers solid, objective, but also flexible concepts and classifications. It holds that at any given time, given the available context of knowledge, one can identify the most appropriate classifications of the objects of consciousness. One can then proceed, given a more expanded context of knowledge, to modify the older classfications based on the newer evidence and facts. Contextualism achieves its flexibility in classifications without subscribing to relativism, inherent in any positivist legal theory.
Applying contextualist epistemology to natural rights theory allows us to turn to nature rather than convention to base our moral and then legal judgments. In outline, the proper procedure would first identify what human nature is within the available context of our knowledge. What is right for people in society and legal systems follows from the more basic knowledge of what is right for humans as such. The conditions right for people in communities (so as to do what is morally warranted for them as moral agents) would be the natural rights that each person possesses. Within the Lockean scheme, these conditions would be that each person refrain from interfering with the other's life, actions, and ownership. These are the natural requirements of moral existence. This outline becomes plausible only after we dispose of the epistemological and sceptical issues discussed earlier.
Thus, contextualism can advance a moral, nonpositivist ingredient essential to law. Value-free human institutions are inconceivable. We need moral-laden law to know when we are securing justice within any particular legal system. On the other hand, contextual natural rights theory exhibits open-endedness to changing definitions of human nature and varying applications based on the flux of circumstances—if we can verify the newly available facts and justify altering our concepts and ideas objectively.
Justice as Restitution
“Restitution: A New Paradigm of Criminal Justice.” Ethics (USA), 87 (1977): 279–301.
Does punishment fit the crime? In the terminology of Thomas Kuhn's The Structure of Scientific Revolutions, our current criminal justice paradigm of punishment is in crisis; its contradictions and the breakdown of its chief defenses of practical efficacy and moral legitimacy call for a new framework or paradigm: restitution, which focuses on individual rights and free market solutions.
Punishment (the deliberate harming of the criminal) creates problems by misdirecting attention to hurting the criminal rather than helping the victim. Penology thereby reigns over victimology.
By ignoring the victim, the paradigm of punishment suffers serious flaws in practice and in moral justification. By themselves, punishment's alleged utilitarian benefits in securing social order do not morally justify an unjust system. The moral claims in defense of punishment as a good end in itself are weak. They leave unanswered what kind of punishment could possibly fit any crime and who should decide the punishment (state or victim).
The paradigm of punishment collapses from the decline of religious and moral beliefs that once bolstered state punishment. In addition, no rational connection exists between the harm done to the criminal (e.g., the term of imprisonment) and the harm done to the victim.
In sum, punishment forgets the victim, burdens the taxpayer, and hardens the criminal. To the degree that punishments are more severe, the mills of justice in criminal procedures grind more slowly. All reform measures seeking to patch up the old paradigm of punishment are flawed by the inner contradictions of a system that does not primarily attend to the rights of all concerned: victim, criminal, and taxpayer.
The root error of the punishment paradigm is its concept that crime is an offense against the state; that the state's proper function is to punish the criminal. In contrast, the new restitution paradigm views crime as an offense by one individual against the rights of another individual. Justice consists in the criminal making compensation for the loss he has caused the victim. Crime violates not social but individual rights.
The new restitution paradigm morally focuses on the rights of the victim and his need for compensation; the punishment paradigm wrongly focuses on the criminal and his assumed need to suffer. Restitution shifts attention from the criminal (his deterrence, reformation, or disablement—these goals are proper but incidental or secondary) to the victim (his just reparations). Restitution would be flexible and innovative, employing such devices as crime insurance, sureties, and direct arbitration between victim and criminal. It would treat the victim's right to compensation as a property right which could be transferred or enforced by others (insurance companies or heirs). Current contract and tort doctrines could handle most cases of restitution. Even in cases involving nonmarket, unique and irreplaceable property (life and limb, etc.), restitution, in contrast to punishment, strives to offer some compensation to the victim or his heirs.
Some advantages of restitution over punishment include its benefits to victim (by its moral concern for his right to just compensation); to criminal (by allowing his active cooperation to serve as an incentive to disposing of his debt to his victim, it assuages guilt and promotes self-esteem); to taxpayer (by shifting the burden of prisons, law enforcement, and compensation wholly onto the criminal). In addition, the legal process would become more simplified and less cumbersome. Victimless “crimes” would not be prosecuted and insanity pleas would be disallowed since what counts is the victim's loss not the offender's alleged motives.
Restitution, as with all new paradigms, requires more research and legal elaboration. But in principle it offers the admirable moral view that the legal system should attend to true justice: assisting the innocent victim rather than vainly consuming itself punishing the guilty.
Justice as Punishment
“Hegel's Idea of Punishment.” Journal of the History of Philosophy (USA), 14 (1976): 169–182.
In his Philosophy of Right (1821) Hegel expounds his retributive theory of punishment. Crime, in this view, attempts both to coerce a “person” (i.e., in Hegelian terminology, the abstraction of man, denoting his free will and “abstract rights”), and to negate his rights. He finds crime contradictory inasmuch as it involves one “person's” free will negating the free will and rights of another abstract “person.” Essentially, this attempts to negate the existence of personhood. One person's free will thus denies the existence of the quality enabling him to commit his crime.
Since the injury inflicted by crime amounts to a negation (the denial of rights), only one way remains to annul the injury: to negate the negation and annul the crime. Crime (using Hegelian terminology) is conceptually a “nullity.” Morally, it is contradictory; we must thus also render it a nullity in the objective world. To nullify the crime, we must punish the criminal. If we did not punish the criminal, we would validate the implicit denial of rights that the crime signifies. This does not amount to “an eye for an eye.” The point is that the coercion of punishment should “equal” the coercion of crime.
Hegel's retributive view of punishment intends to respect the criminal's dignity. The criminal has a Hegelian right to receive punishment. Hegel reasoned that each person has a duty to exercise his rights; otherwise he is not free. Our duty to punish the criminal mirrors his own right to receive punishment. Without punishment, the criminal loses his position as a person with rights. Furthermore, the criminal implicitly consents to his punishment. The criminal's action has denied that persons have rights. Punishment visits that denial on the criminal himself.
Because a person both has a “right” to punishment and has “consented” to it, retribution alone fully respects the criminal as a Hegelian person. The alternative penal theories of deterrence and reform fall far short of that ideal. Deterrence mistreats criminals like animals who are motivated to behave solely by threats. Reform measures mistreat criminals as merely potential persons who must be transformed into persons. Furthermore, retribution alone concerns itself with justice and desert. Because it alone fits the punishment to the crime. Deterrence and reform regard only future effects or deterring unsavory behavior. Thus these two alternatives to retribution may not impose penalties commensurate to the crime. Seeking to improve the criminal or to instill fear of committing future crimes, deterrence and reform may countenance excessively harsh and cruel sanctions. Recoiling against the barbarous penalties of his age, Hegel intended retribution to soften punishments.
Hegel did not see suffering as the aim of punishment; he intended to deprive the criminal of the rights which the criminal forfeited in violating others' rights. In contrast, deterrence and reform theories of penology inflict punishment with no connection to what the criminal actually did. This punishment treats the criminal as a thing devoid of rights and autonomy. Without retribution we treat the criminal in terms of an external goal unrelated to him (deterrence and reform), rather than in terms of his free will and choice.
Rights and Contract
“Toward a Reformulation of the Law of Contracts.” The Journal of Libertarian Studies (USA), 1 (1977): 3–13.
In the legal theory of contracts, the free market title-transfer model is superior in its internal consistency, rationality, and appropriateness for a free society. The pure “promised expectations” model of contracts or the present hybrid law of contracts cannot compete. The title-transfer model deals more adequately with those problem areas of the law of contract that have perplexed its rival models.
The expectations model of contracts views contracts as conventions that guarantee a person's expectations from promises. An advocate of this theory, Adam Smith declared: “The foundation of contract is the reasonable expectation, which the person who promises raises in the person to whom he binds himself; of which the satisfaction may be extorted by force.” The philosophic school notable for defending the promised expectations model is the utilitarian-pragmatist tradition emphasizing as it does the social utility, stability, and the predictability of promises kept. Utilitarianism argues that since social order is built on trust in promises, legal force should compel individuals to honor promises. Another component of the expectations model is its partial historical derivation from such Norman legal actions as assumpsit that required individuals to fulfill the expectations entailed in their feudal status (e.g., common carriers must be compelled to perform their feudal calling).
The title-transfer model, defended from the natural rights philosophic tradition, views contracts far differently. Contracts here serve as instruments that assign or transfer rights to things, either present or future alienable goods.
Given the mixed parentage of our current contract law (combining elements of both title-transfer and promised expectations), is it preferable to continue along the path towards a pure expectations model as proposed by pragmatist Roscoe Pound [Jurisprudence (St. Paul, Minn. West, 1959), vol. 3, pp. 162–163]? Or, would it be more profitable to change direction towards the title-transfer approach? Title-transfer seems a saner path to follow because it avoids the dubious assumptions of the promised expectations approach. It does not lead to embarrassing conclusions in various problem areas.
The expectations proponents assume spuriously that law courts should hold people to their promises. However, although promise keeping may be virtuous, it does not follow that the courts should enforce every virtuous act (e.g., punctuality, pleasantness, temperance). Free market devices such as performance bonds that fit the title-transfer model, could achieve the social stability sought through law by the utilitarians.
An embarrassment for the expectations model is its position on enforcing specific performance of promised personal services (e.g., marriage proposals withdrawn or a starlet's reneging on a promise to act in a movie). Under title-transfer, the embarrassment disappears since a marriage promise is viewed as a mere promise (a nudum pactum); no real thing has been transferred, only a subjective expectation. Similarly, a starlet's promise to act would not, under title-transfer, obligate her to specific performance. This would be tantamount to enforcing a slave contract (involuntary servitude) and ignore the fact that the human will is not alienable; we cannot exchange our freedom on the basis of unsound philosophy. Title-transfer would demand that, if the starlet received a money advance, she ought to return this real alienable good since it was transferred on the condition that she would perform. Many inconveniences could be anticipated and solved under title-transfer by such devices as performance bonds or detailed specific forfeit clauses in contracts. Finally, the title-transfer model could deal more effectively with the difficult cases involving “death of an offeror,” unilateral covenants, and “purchase breaks hire.”
Virtue in the Market
“Can the Market Sustain an Ethic?: The Ethical Consequence of Alternative Incentive Systems.” (1977 D. R. Sharpe lecture on social ethics, Graduate School of Business and the Divinity School, University of Chicago, 26 pages available from the author.)
Capitalism and the free market are wrongly indicted for fostering immorality or corrupt behavior. Most social corruption directly results from government intervention in the marketplace. With government restricted to its classical liberal role as nightwatchman protecting individuals' person, property, and contractual rights, corporate officers would find no reason for “bribing” corrupt government officials. In fact, such “bribery” is a misnomer for government functionaries' “blackmailing” regulated businessmen: the businessman must pay a black market secret tax (a bribe) to obtain nonenforcement of an interventionist law.
Although the market reflects the diverse ethics of its buyers and sellers, its virtue is that it naturally limits corruption and harm through its corrective mechanisms. Under the free market's system of voluntary exchange, men feel natural incentives that promote the Golden Rule and reward fairness, kindness, and honesty. Honesty, in a voluntary market, “is the best policy” because the market severely punishes exposure of dishonesty through loss of the precious market commodity: a good reputation in the eyes of the consumer.
Politicians and government offer quite different coercive “incentives.” Whereas the free market's voluntary exchange for mutual benefit is a “positive sum game,” government intereference in men's lives is a negative sum game, a form of exploitation. Government power can benefit some only at the expense of others (taxpayers, consumers, pensioners, etc.).
The politician's game is an elaborate “swindle” which plays on the enormous “information costs” that the innocent citizen would have to pay to investigate each bewildering complexity of government. Thus, the politician depends on the ignorance and forgetfulness of citizens. It is utopian optimism to believe that when power is so concentrated into the politician's hands, he will always wield it with angelic, incorruptible, and selfless concern for citizens.
Ethically, the market serves as a training ground for moral maturity. It promotes individual autonomy by making each participant responsible for his or her own conduct. Each individual faces the responsibility and the humanizing freedom to make sound choices and avoid mistakes. The market acts also as a powerful civilizer of persons: commercial success depends on humane treatment of free and independent consumers who can take their business to competitors.
By contrast, government intervention infantalizes the moral conscience of humans. By posing as his “brother's keeper,” government usurps a moral person's responsibility for choosing his own conduct. Consider the government's campaign to compel all new car buyers to buy cars equipped with air bags. This example illuminates the ethical issue of how the market nurtures moral growth and how the government arrests it. Whether or not mandatory air bags will actually decrease overall safety (by encouraging risky driving and syphoning off $200 that some might spend better on home smoke detectors—those who already use seat belts or seldom drive), such government imposed decisions prevent individual choice. How can we develop an adult moral capacity if we are treated like children, forbidden to choose, for fear that we may make the “wrong” choice?
In short, government stunts ethical growth, fosters dependence, and leads to bureaucratic sovereignty; the market liberates man's moral potential, rewards autonomy, and leads to individual sovereignty. Although the free market does not motivate individuals necessarily by altruistic impulses, its voluntary principle guarantees that men will only deal with each other with brotherly respect. Government coercion, operating on an involuntary principle, resembles Big Brother.
Justice under Capitalism
“Economics Is Not Enough: Notes on the Anticapitalist Spirit.” The Public Interest (USA), 45 (1976):109–122.
Capitalism is almost a can't win situation. Each person who judges an economic system asks not merely if it raises the general living standard, but more importantly, does it distribute wealth by his individual notions of what is morally just, fair, and equal. But no system of equality or inequality can possibly satisfy everyone's sense of justice, for neither rewards our own moral desert exactly as each of us feels it ought to be rewarded. Quite apart from their lower efficiency and consequent aggravation of the burden of inequality, alternatives to the free market, once realized, tend to arouse no less hostility than the market does. Such nonmarket or political attempts to eradicate “poverty” or economic inequality would only magnify demands for an unachievable “equality.”
Intellectuals resent the market because it measures value by consumers' demand and lets people pay only for economic value. As purveyors of nonmarketable, nonmeasurable moral value, intellectuals feel deprived of the power and income they believe they deserve by virtue of their virtue. Thus, they seek to abolish the economic decision mechanism of the market (consumers' choices) and replace them with political mechanisms for distribution. Their alternative to the market—whether intervention or full socialism—is bureaucracy. Each intellectual socialist imagines the bureaucrats in charge will distribute rewards as the intellectuals believe it should be done. Yet owing to the divergent subjective notions of justice, the intellectual cannot achieve his fantasy. Bureaucrats, seldom intellectuals themselves, win their positions by manipulating power, not by philosophically dispensing just deserts.
Capitalism sorely needs a moral justification. Lacking that, it is only from experience that people may learn that abolishing markets will actually aggravate their grievances rather than satisfy their desire for a “fairer” slice of the economic pie. Perhaps the cautionary examples of communist nonmarket tragedies and misallocations will educate us to preserve the market elsewhere.
Profits and Choice
“The Profit Motive.” Ethics (USA), 85 (1976): 312–322.
One cannot dismiss the private profit economic system as intrinsically “selfish and heartless” simply because it depends upon and engages interested motives. We would have to condemn eating, wage earning, and most human desires as “interested” along with profits. Nor can we condemn an economic system because it allows or encourages people to pursue their own interests in certain situations of zero sum conflict. For example, the rival candidates competing for some coveted job are not “selfish” just because all do not withdraw and defer to one another.
Three popular Aristotelian misconceptions lead towards the wrongheaded view that it is scandalous to make a profit: (1) Trade is in essence exploitation of one trader by another (it is rather a reciprocal relationship and necessarily voluntary); (2) Usury is unnatural (but since a sum of money is the substantial equivalent of the goods it might buy, there is nothing obnoxiously unnatural about receiving a return upon an investment in money); and (3) Production for profit is unjustified, production for use justified (the antithesis is false for there can be no profit in producing what no one wishes to buy, and presumably, to use).
Some people object to deriving income from any form of private ownership. But how could one defend the rejection of rent if one conceded any rights to private property at all? Others say that ownership of the means of production is essentially exploitative. But how could collective ownership by any groups less than the whole human race be appropriately justified?
That someone wants to make a profit or earn a wage tells us nothing ethically of what he wants the money for. “Mercenary interests” innocently translate into the objects and services individuals choose to purchase.
When reduced to its essence, the socialist objection does not criticize profits as such. Instead, it basically condemns private, individual choice rather than public collective decision making.
Social Framework and Prosperity
“Political Order and Economic Development: Reflections on Adam Smith's Wealth of Nations.” Political Studies (UK), 23 (1975): 430–441.
Current political science literature limits our understanding of the relationship between polity and economic development. An important defect is the largely unargued assumption that economic and technological development directly or indirectly determines political order. In arguing that the reverse is true, we can interpret the relevance of Adam Smith's Wealth of Nations to the contemporary problem of economic development.
The Wealth of Nations covers three key elements of a comprehensive theory of political economy: the character of a nation's administration of justice; the type of political authority; and, the coherence and effectiveness of authority systems.
Smith recognizes that law, order, and the justice of public authority make possible the growth of a large, and therefore relatively impersonal, highly subdivided, and interdependent market system. The character of political order determines the motivation behind economic development. Private virtues can offset public vices. Defective justice, however, cripples the very basis of economic enterprise, the desire to work, and the incentives to invest productively. The type of political authority can limit not only the rate of economic development but the ultimate level of wealth which a nation's economy can attain.
Government coercion will not produce as rapid and secure an economic progress as that which may be realized in a society where the energies of the people are freely directed toward economic enterprise. This voluntaristic society is characterized by efficient, secure, and necessarily complex economic institutions which flourish, supported by appropriate political order.
Ecology and Rights
“Ethics, Ecology, and the Rights of Future Generations.” Modern Age (USA), 19 (1975): 260–271.
Do we have an obligation for the welfare of future generations? Yes, say advocates of environmental control and zero economic and population growth. No, however, we can reasonably conclude after examining the ethical and philosophical underpinnings of their arguments and policies. We have to consider the consequences of their economic approach to issues and problems.
The assertion that we have an obligation for the welfare of future generations, stripped of its rhetoric, involves a call for more power to government. Many proposals, if successful, would bequeath to future generations not only socialistic conservation, but a technologically, scientifically, and economically backward society.
Rational decision about what to leave future generations would be made in a society in which no innovation would be possible. Many measures advocated by the ecology and antigrowth movements are decidedly retrogressive and are masks for elitist special interests.
Business' Social Ethics
“The Social Responsibility of Business: A Dissent.” Business and Society (published by Roosevelt University), 17 (1977): 11–18.
In recent years many have vociferously contended that privately-owned firms have a “social responsibility” to alleviate a myriad of social ills (ranging from pollution to income maldistribution). Poised against these critics, and coming to the rescue of the supposedly beseiged businesses, are the defenders of the paramount profit ethic.
Now we see a new twist to this conventional polarization. “Social responsibility” advocates are often members of the business community itself, rather than (as is generally assumed) representing “anti-business” interests. Businessmen are drawn to the guaranteed markets, stable tax-generated revenues, and noncompetitive environment in which government operates. These attractions encourage corporate officials to advocate programs of “social responsibility” which they can manage as funded government agencies.
Various corporations, including Litton Industries, operate Job Corp projects on a cost-plus guaranteed basis. Litton has also proposed operating public school systems on the same basis. Other firms have sought business management of urban traffic, housing, and urban development. Private security companies have sought to contract state and local police and fire department functions. We cannot consider such business proposals as marketplace alternatives to government services. For example, Litton did not wish to start privately financed schools to compete on the open market with public schools. It proposed, instead, its own private management of the government-owned and tax-financed public schools. In a similar vein, as the Vietnam War wound down in the late 1960s, several defense contractors suggested rechanneling defense money into solving “social problems”—under their management.
Businesses that assume roles as government agents operate on an undisciplined and subsidized “cost-plus” basis. Competitive efficiency and sharpness erode as each representative of the business sector takes on the motives and the operational structure of political institutions. Suddenly, they feel no need to run an economic tight ship because tax dollars can cover for mismanagement and blunders. The firm now finds itself with an unlimited revenue base.
The immediate consequences of such a government-business “marriage” is the noticeable lack of efficiency which spreads from one partner and begins to rule the affairs of the other. And in the long-run, management myopia could produce a growing pattern of national politicization of economic activity.
Interested businesses often promote the “social responsibility of business” and may confirm Gabriel Kolko's thesis of the corporate state. A mixed economy results from the amalgamation of “government” and business. Government, through the regulatory process, would run the business system, and business, in turn, would run the government.
We must scrutinize the long-run consequences of confusing economic and business institutions. To the extent that businesses adapt the motives (“social responsibility”) and operational structure of political institutions, they will lose market incentives for the efficient management of resources.