Rights

A Tale of Two Moralities

In a recent NYT editorial, Paul Krugman discusses the idea that in the United States we see an unfolding “tale of two moralities” — one “morality” is a neo-libertarian morality that emphasizes notions of personal rights and personal liberty as the paramount civic virtues. The other “morality” is a more broadly liberal morality that emphasizes notions of social justice and equality as the paramount civic virtues. Krugman’s point is that, to some substantial degree, these are irreconcilable visions of the good society.

Both are, however, visions that find support in the basic language of American politics. On this view, the very phrase “with liberty and justice for all” invites the possibility of a kind of contraction in practice as a template for the good society.

Thomas Hobbes and John Locke

The English philosophers and social theorists Thomas Hobbes (1588-1679) and John Locke (1632-1704) were among the very first systematic thinkers to attempt to articulate the scope and limits of political legitimacy via the idea of a social contract. Between the two of them, Locke is the more important figure in terms of better understanding American Constitutional history; nevertheless, they are both important figure in the history of political and ethical theory.

Among other things, America holds the distinction of being the world’s foremost example of a major political power whose political structure is formally modeled on contractarianism. The formalism of the Declaration of Independence, the structuralism of the U.S. Constitution, and even the Bill or Rights follow the explicit contours of social contract theory in a way that is hard to discern so clearly in the political history of most other nations.

At the heart of it, social contract theory is based on the notion that a political body gains moral and procedural legitimacy through the tacit or formal agreement of those who are governed under it. In this idea, the political subject essentially engages in the voluntary act of giving up something (usually unfettered freedom to do anything they are capable of doing and submitting to the rule of law) in exchange for something in return (usually a combination of security along with an opportunity to rely on the benefits of law in protecting personal private property). In this way it is like submitting to the terms of a contract in which “consideration” is offered to all sides.

In the case of the United States one might point to the formalism of the Declaration of Independence and of the U.S. Constitution as examples of documents that seem to make agreement of this nature more than simply tacit; nevertheless, both Hobbes and Locke argue that, even if a formal agreement is not reached, the notion of such an agreement itself can be used to helpfully shed light on the question of political legitimacy because we can ask — hypothetically, if nothing else — what would the scope and limits of political power be, if my consent were required to render any political institution legitimate?

Libertarianism

Libertarianism is, essentially, a political philosophy. Libertarians generally hold the view that each individual person has a broad range of basic rights which cannot justly be compromised or transgressed by other individuals or by the state for any reason, including reasons having to do with the promotion of the general welfare.

“Libertarianism” is a broad term, and it encompasses a number of different variations and themes, including versions that shade-off toward anarchism. It has been suggested that some elements of “tea party” politics are generally libertarian in their ideology.

For a brief overview of libertarianism, a good place to start is with Wikipedia. A more scholarly treatment can be found at the Stanford Encyclopedia of Philosophy.

In the United States two of the leading “think tanks” active in the libertarian movement are the CATO Institute and the Ludwig von Mises Institute. A good example of what libertarians have in mind — as a conception of the just society — can be found at The Free State Project.

Before you conclude that The Free State Project is an entirely new idea, however, consider taking a look at the history of American utopian experimental communities. An old graduate school colleague of mine actually lives on The Farm, which is in some ways a contemporary example of an existing utopian concept community.

Robert Nozick’s Anarchy, State, and Utopia

The defense of libertarianism propounded by Robert Nozick (1938-2002) is articulated in his 1974 book, Anarchy, State, and Utopia. Nozick was a professor at Harvard University for most of his career. His book earned the National Book Award in 1975.

Although the basic ideas are clear enough, the book itself is long and complex at times and can benefit from a summary. Two good, basic summaries can be found here and here.

The Idea of a “Victimless Crime”

Peter McWilliams was a writer with a more populist angle, but a coherent defender of broadly libertarian themes. Although he died in 2000, his website and books are available, and one in particular — Ain’t Nobody’s Business if You Do: The Absurdity of Consensual Crimes in America — is a particularly nice collection of the standard arguments.

His central thesis — that “consenting adults should not be put in jail unless they physically harm the person or property of a nonconsenting other” — is essentially a version of John Stuart Mill’s Harm Principle, although McWilliam’s defense of this principle is not particularly utilitarian in nature.

The underlying particular moral/legal issue driving much of McWilliams’ concern is, in his case, the issue of drug decriminalization, which is a topic that we will take up in detail shortly.