Government
1. Social and Political Philosophy:
a) The fundamental question of social philosophy is what kind of
society should we have? What is the best kind of
society?
b) This is a fairly broad and open-ended question; political
philosophers have been content to ask a narrower question
about the kind of government we should
have.
c) This chapter begins with a brief discussion of the answer given by
three historical figures, Plato, Hobbes, and Locke,
with an emphasis on Locke. Then it traces the
influence of Locke on the constitutional system of government we have.
2. Key Questions of Political Philosophy:
a) Who should rule and why? Those in the ruling class; they
should rule because it is natural. More exactly, some people
are more fit than others to rule and a state
functions best when those in charge are those who are fit to rule, i.e., know
what they are doing.
b) What is the purpose of the state? To promote the well-being
of society and its members (to make people happy and
virtuous)
3. Hobbes (1588-1679):
a) Hobbes's political philosophy seeks to justify a single, unlimited,
absolute sovereign authority.
b) It starts from a conception of human nature in which there is one
overriding and supreme goal: self-preservation.
c) Imagine a state of nature, a society in which there is no government
and no law. What would happen? Because we
are all of roughly equal strength, size, and
cunning, a war of all against all would break out.
d) Reason, and our desire for peace, shows us the way to avoid this.
4. The Sovereign:
a) The only real solution is an absolute, unlimited sovereign who
enforces the rules necessary for peace (e.g., rules
protecting, life, limb, and property). See
449.1 for the argument about these two characteristics.
b) The sovereign is not party to the contract and is not subject to the
will of the parties or even to the rules, though if
he regularly violates the rules he
enforces on others, he will risk being deposed.
c) Do the people retain any rights? Yes, they may act to protect their
lives, even if they have violated the law.
d) The Hobbesian dilemma is this: Any sovereign
powerful enough to enforce the rules necessary for a society to
escape a state of war will be powerful enough
to violate (at least occasionally and selectively) those very rules.
e) Why, then, would people establish the sovereign? Answer: It's
simple: The alternative--a state of war--is even worse.
5. Hobbes's Political Philosophy:
a) The state is an artifact, not, as in the case of Medieval
philosophers,a natural object.
b) The purpose of the state is not to promote virtue but to allow
people to pursue their own plans and goals, which it
achieves by securing the peace. A distinctively
liberal idea. ‘Liberal' here means something different from what it means
in contemporary American political discourse.
It means:
(1) limited constitutional government
(2) equal rights
(3) a more or less free market
c) For Hobbes, the justification of the state is mutual consent, not natural law.
6. John Locke (1632-1704):
a) The central problem of political philosophy is the moral
justification of the state. What this entails.
b) Locke proceeds much as Hobbes does by asking us to imagine what
society would be like without a government,
i.e., in a state of nature.
c) State of Nature: Unlike Hobbes, Locke believed that people are not
thoroughly and relentlessly self interested, i.e.,
they are somewhat benevolent. Perhaps more
importantly, Locke believed that people in a state of nature had
natural rights. This concept needs some
explanation.
7. Natural Rights:
a) Best way to understand them is by contrast with legal rights.
(1) In this country, we have various legal
rights, mostly those found in the 1st ten amendments to the Constitution.
(2) People in the former Soviet Union and
communist China lack such rights.
Legal rights are written down somewhere; the
legal rights a person has depends on the laws under which he lives.
b) Suppose there was no law. Would we have any rights? Locke says yes.
These rights are natural rights. If, for
example, I am murdered in a country which has
no rights in its constitution, I have had my moral right to life
violated, even if no law has been broken. Same
is true if I am in a society that has no government at all, i.e., in a
state of nature.
c) Consider now what would happen if we lived in a state of nature.
Locke says:
To understand
political power right and derive it from its original, we must consider what state all men
are
naturally in, and that
is a state of perfect freedom to order their actions and dispose of their possessions and
persons, as they think
fit, within the bounds of the law of nature, without asking leave or depending upon
the will of any other
man. A state also of equality, wherein all the power and jurisdiction is reciprocal, no
one having more than
another. . . . . . The state of nature has a law of nature to govern it, which obliges
every one: and reason,
which is that law, teaches all mankind who will but consult it that being all equal
and independent, no one
ought to harm another in his life, health, liberty or possessions.
d) Some clarifications:
(1) Laws of Nature: descriptive and
prescriptive.
(2) The latter comes from the fact that we are
God's creation and accordingly are his property. We're also all equal
insofar as
our rights are concerned. God bestows on us natural rights to life, liberty and property.
e) What does it mean to say we have these rights?
(1) One thing it means is that other people
have a strict duty not to take my life or interfere with my liberty or prop-
perty
so long as I respect the rights of others.
(2) This is true even in a state of nature,
i.e., a society in which there is no government.
9. Consequences of Locke's Theory of Natural Rights:
a) Locke argues that it is a consequence of our natural rights that we
have the right to punish those who violate our
rights and to compel them to make restitution.
Locke says:
And that all men
may be restrained from invading others' rights and from doing hurt to one another . . . .
.
the execution of the
law of nature is, in that state, put into every man's hands, whereby everyone has a
right to punish the
transgressors of that law . . . . . and if any one in the state of nature may punish
another
for any evil [i.e.,
violation of rights] he has done, every one may do so.
b) To this it might be objected:
To this strange
doctrine, viz., that in the state of nature every one has the executive power of the law
of
nature, I doubt not but
it will be objected that it is unreasonable for men to be judges in their own cases,
that self-love will
make men partial to themselves and their friends, and, on the other side, that ill nature,
passion and revenge
will carry them too far in punishing others; and hence nothing but confusion and
disorder will follow.
c) Locke's reply:
God has certainly
appointed government to restrain the partiality and violence of men. I easily grant that
civil government is the
proper remedy for the inconveniences of the state of nature, which must certainly
be great where men may
be judges in their own case, since it is easy to be imagined that he who was so
unjust as to do his
brother an injury will scarce be so just as to condemn himself for it.
10. The Purpose of Government:
a) Given that we have these rights and we see that they
will be inadequately protected in a state of nature, the rational
thing to do is to agree, i.e., to
consent to give up our right to enforce our rights to the government. We still have our
natural rights, but we have given
up the right to enforce them.
b) Distinguish actual consent from tacit consent.
c) This leaves us with a certain conception of what
government is for. The main purpose of government is to protect
and enforce people's natural
rights. People give up their right to enforce their rights to the government in exchange
for
the enhanced peace and security
that comes from the prohibition on private enforcement procedures.
d) Locke argues, unsuccessfully I think, that when we
tacitly consent to the formation of government, we agree to abide
by majority rule. This is his
justification for democracy.
11. Limited, Constitutional Government:
a) Because of his conception of the justification for
government (expl.),there are limitations on what the government
can do. Specifically, it is
prohibited from violating people's natural rights to life, liberty, and property.
b) When it violates people's rights, it loses its
legitimacy and people are justified in rebelling and overthrowing it.
12. Property Rights:
a) These are very important in Locke's system. Typically,
when we acquire property, it is by buying it from someone
else, but obviously there has to be
a first owner, so the question becomes how someone can acquire property that
is unowned. Locke considers this
question as it comes up in a state of nature.
b) Locke's answer: If we mix our labor with it, we
come to own it, subject to the Lockean Proviso that there must be
"as much and as good" left in
common for others.
c) Problems with this:
(1) Nozick's
challenge: Why isn't
this a way of losing one's labor instead of gaining property?
(2) Proudhon's
challenge: How does
the simple act of appropriation result in the imposition of all theseduties
on others that they have not consented to.
d) Replies? David Schmidtz argues that if
people do not appropriate but instead use things from the commons as
they see fit, then there will not
be "as much and as good left in common for others" because of the tragedy of the
commons. Each person has an
incentive to use as much as possible, since there is no assurance that any
restraint a person shows will be
matched by others. The Lockean Proviso requires private appropriation. This might
answer both challenges.
e) Further problems: Perhaps the biggest problem for
Locke is his theological justification for all of our rights (accepted
by the Founding Fathers). With the
demise of natural law ethics, philosophers have had to search for another basis
for natural rights. A difficult
task.
13. Other Problems:
a) The main problem Locke worried about was the Hobbesian
dilemma, especially as it applies to the executive. How
to keep the Executive
(i.e., the King) from overreaching his
authority and abusing the rights of citizens. The solution,
of course, was democracy.
b) But this raised a problem Locke never thoroughly
considered, viz., what happens if the majority uses its power to
infringe on the rights of,
i.e., to tyrannize a minority. What sort of thing are we talking about here? Generally,
the violation
of rights. Specifically,
(1) denial of basic
freedoms, what we would call civil rights, such as the right to vote, to hold office,
to live and work
where we choose, etc.--at the limit, slavery.
(2) takings, including
unjust taxation:the worry here is that the sovereign can take private property (including
income)
and use it for purposes citizens do not or would not agree to. On Locke's view, the main
purpose of government
is to protect people's rights, so if the sovereign is using it for other purposes, it is
acting without the consent of the
governed. In particular, the sovereign might use its taxing and spending authority to
enrich some at the expense of
others.
c) Fortunately, a version of this problem was one that some of Locke's
most illustrious followers gave considerable
thought to. Who were they? The Founding
Fathers, notably Madison.
14. The Problem of Faction and its Solution:
a) The problem of faction is that a more or less permanent
majority can form and use its power in a democracy to
tyrannize (i.e., violate the rights
of) a minority. Such majorities are likely to form along geographical, racial, ethnic,
or other lines. This problem is
most likely to occur when both the majority and minority are small.
b) Madison's solution:
(1) make the republic large and
create a federal structure.
(2) make it difficult for those
with a common interest or passion to act together by instituting a system of separation
of powers with checks and balances.
(3) A further device is to have
constitutionally guaranteed rights of individuals against the state and to have those
rights secured by judicial review.
Let us look at each of these in more detail.
15. Solution #1: Make the Republic Large and Give it a Federal Structure:
a) To some extent, this solution was implicit in the task
the Founding Fathers faced. They had to form a central govern-
ment that united the states but did
not usurp all the perogatives of the state. But the real question is how to balance
the two.
b) They wanted a strong central government (contrast with
the Articles of Confederation) as a way of removing some
issues from the state.
Example: The Commerce Clause weakened the power of organized interests within the states
who would oppose free trade.
In the 19th century, manufacturing states in the Northeast wanted tariffs to
protect
their industry, but Southern states didn't
want tariffs and were able
to block them.
16. Solution #2: Separation of Powers and Checks and Balances
a) The seminal thinker here was Montesquieu and the basic
idea is simple. Suppose a faction (those with common inter-
ests) wanted to do something to
benefit themselves at the expense of others. In theory, anyway, that is difficult to do
in our system because power is
divided among three independent branches of government, each of whom has limited
power over the others:
(1) bicameral legislature formed
according to different principles
(2) President (who is elected on a
national basis) can veto legislation, which requires 2/3rds vote to override.
(3) Senate filibuster
b) Read George Will colummn.
c) Contrast with parliamentary systems in which the
parliament is supreme (e.g., Great Britain).
17. Solution #3: Judicial Review
a) Two of the main functions of the federal courts are
statutory interpretation and constitutional interpretation. Let us
focus on the latter.
b) An important element of the Constitution is the Bill of
Rights. The Bill of Rights gives individuals rights against the
government (at all levels). In
Marbury v. Madison the Court held that it was empowered to overrule laws passed by
Congress and signed by the
President on the grounds that they are unconstitutional, i.e., they violate some provision of
the
Constitution, including, but not limited
to the Bill of Rights. Later the Court held that state governments are also bound
by the Bill of Rights, so Alabama could
not pass a law establishing a state religion (other than football!). Former
governor Fob James disagreed about
this and engaged in a quixotic attempt to convince the Supreme Court of his
views.
c) Interpretation of the Constitution is not straightforward.
There are different theories of how the Court should do this;
I can't spell them out in detail here,
except to note the following:
(1) Liberals have seen the Court as a protector
of the powerless against the powerful, whose interests tend to be
better
represented in the other branches of government and in state governments. They have been
willing to strike
down laws in the
name of individual rights more frequently than more conservative judges, who tend to be
more
deferential to the
popularly elected branches of government.
(2) Conservatives have complained that liberal judges
have simply been imposing their values on the country and thus
have been not merely interpreting the
Constitution but making law from the bench. The classic example is the abortion
decision in Roe v. Wade.
END OF DISCUSSION OF THE PROBLEM OF FACTION
18. Liberalism
a) In his theory of natural rights, Locke laid the
intellectual foundations for limited constitutional government. This
is LIBERALISM in the sense that
political philosophers use the term. What Benditt does in his essay from 456
onward is two things:
(1) First, he discusses some of the
problems within the liberal tradition and how they have been addressed by liberal
thinkers from both the left and right wings of liberalism. (These days non-liberals are
not part of the discussion it
the West.)
(2) He ends by discussing some
modern challenges to liberalism.
I'll discuss primarily the former.
b) Let us approach the the problems within the tradition by
asking: "How extensive are people's rights, especially the
right to liberty and the right to
property?" Recall that our system is fundamentally Lockean, in the sense that the
state
is supposed to enforce our natural
rights and not infringe on those rights itself. But this leaves so much undetermined.
c) The real issue is how to draw the line between what is
public and what is private in the economic realm and in the
realm of personal behavior.
Or to
put the same point in still other terms, How extensive should the role of government
be in the life of a society? Here
it might be useful to contrast:
(1) totalitarians' views (e.g.,
communists and fascists) on the role of the state in the economy.
(2) theocrats' views on the role of
the state in people's personal lives (e.g., Iran, Massachusetts Bay Colony)
d) Both are at odds with the American–and Lockean–idea
that government must be limited. All liberals agree on this,
but the problem alluded to above
remains: Where to draw the line between what government should do and what it
shouldn't do.
19. The Right to Liberty
John Stuart Mill, was no believer in natural rights, since
he was a Utilitarian (expl.), but he was a fervent believer in lib-
erty, and he provided a systematic answer to the question of
when it is proper for government to interfere with people's
personal liberty or freedom. This was the subject of his
famous book, On Liberty.
20. The Central Question of On Liberty
a) Where to draw the line between individual independence
& social control? This includes, but is not limited to, the
question of the legitimate scope of
government activity.
b) That question is still with us and divides liberals from
conservatives in this country. Explain in some detail.
c) Mill's Answer: The Harm Principle:
(HP1): The only legitimate grounds for
social coercion is to prevent harm to others.
d) Social coercion can be defined as the use or threat of
physical force or intense social pressure (tyranny of public
opinion).
e) So, in other words, Mill is saying that people should be
free to do whatever they want so long as others are not
harmed.
21. More On The Harm Principle:
a) (HP) creates a private sphere that society, in
particular, the state (i.e., gov't), is forbidden from invading. This sphere
is defined by actions
that Mill
calls self-regarding.
b) An action is self-regarding iff:
(1) It directly affects only the
person doing it,
OR
(2) If it directly affects others,
then it does so with their free and voluntary consent.
c) Another formulation of the Harm Principle:
(HP2): People should be free to
do any self-regarding action they want to do
d) Some examples: reading a book, worshipping at church,
having sex, attending a political rally, playing a musical
instrument (but not too loudly),
etc. etc.
22. Some Implications: Either version of the (HP):
a) requires freedom of thought and expression, including
freedom the press;
b) requires freedom to pursue one's own lifestyle so long
as it does not harm others;
c) requires freedom of association
d) Mill points out that he is talking only about mentally
competent adults, not children or the mentally retarded. Different
principles apply with them.
e) What (HP) rules out, as far as competent adults are
concerned, is paternalism. A definition:
To act paternalistically is to prevent someone from doing what s/he wants because one
believes
it is in that person's best interests.
(1) Notice that the motive is crucial.
Without the motive, it is not paternalistic.
(2) Examples of paternalism?
23. The plan of 'On Liberty':
a) To establish (HP) Mill seeks to give a utilitarian justification or
argument for the 3 freedoms listed above, i.e., freedom
of thought and expression, freedom to choose
one's lifestyle, and freedom of association. A utilitarian argument or
justification is designed to show that a
certain policy produces the most favorable balance of happiness over
unhappiness in comparison to the alternatives,
which in this case would be government restrictions on or interferences
with this private sphere.
b) Chapter 2 is about freedom of thought and expression and
Chapter 3
is about freedom to choose one's lifestyle and
freedom of association. Chapter 4 considers
some objections to Mill's Original Harm Principle and his replies to those
objections. We will skip the details
of Chapters 2 and 3.
24. A Problem for Mill
a) One serious problem for Mill's utilitarian defense of
the Harm Principle is how to define harm. We can all agree that
people should be free to do what
they want so long as others aren't harmed but what counts as harm?
b) The fundamental difficulty is that if the notion of harm
is defined broadly enough to include anything negative that
happens to a person, the Harm
Principle does not carve out a protected sphere and provide a principled way to
distinguish legitimate from
illegitimate coercion. More specifically, there are problems about:
(1) Does it include harms
to character?
(2) harms to feelings?
(politically incorrect speech? interracial couples holding hands?)
(3) competitive harms?
(4) failures to benefit?
(Does not enough research for AIDS harm AIDS patients?)
25. The Right to Private Property:
a) This second element of the Lockean tradition has also
come in for critical scrutiny.
b) Many philosophers are unsympathetic to the idea of
natural rights in private property. They think that property rights are a social construct
and have no
meaning in a state of nature. The
only property rights are the property rights governments assign–and then the question
becomes, "What's the best way
for government to do this?"
c) Why are they unsympathetic? Part of the reason has to do
with the basic problem of justifying natural property rights: Nozick's challenge to the
labor
theory of acquisition and Prudhon's
challenge about all the duties unilaterally imposed on others by the mere existence of
property rights.
d) In the development of liberal societies since the time
of Locke, there are at least 4 issues connected with property rights and their proper
limits
that have come up and need to be
discussed:
(1) the problem of unjust
acquisition,
(2) property rights in government
largesse,
(3) restricting private property
through public takings,
(4) restrictions on freedom of
contract,
(5) the problem of social justice
and welfare.
26. The Problem of Unjust Acquisition:
a)Let us start with the concept of "clean
acquistion." This is acquisition in accordance with Locke's labor theory and in a
situation in which there is
as much and as good left in common, i.e.,
the Lockean Proviso is met. Suppose further that this property is duly sold to others with
no force or
fraud. We shall say that any such property (or the
money that it is turned it to) is legitimately owned. The basic difficulty is that a lot
of property is
not legitimately owned in this sense. Acquisition was not
"clean," and/or some property that was cleanly acquired was transferred by theft
or fraud.
Finally, at some point, there wasn't "as much and as good
left in common for others." So there is a lot of unjustly held property around. In
practical
terms, the worry is that many rich people got that way because their
ancestors stole land and other things of value from the ancestors of the poor,
or the
latter were unjustly deprived of the opportunity to appropriate unowned
things. If that is true, it might justify some redistribution of wealth or
income from the
better off to the worse off.
b) On the other hand, the idea that the rich became rich by
inheritance is simply inaccurate. Intergenerational wealth mobility, which is quite
dramatic,
refutes it. There are simply too many other
factors involved in determining people's wealth than what happened to their ancestors.
c) The problem about there not being anything left to appropriate
is real, however. The way to solve it, I think, is to conceive of state-provided
education as equivalent to unowned land that
might have been appropriated. Introduce the notion of human capital here. So, those who
have come
along too late to appropriate or whose ancestors have
been unjustly denied their right to appropriate or who have been unjustly deprived of
their
property can be compensated by the community by
state-provided education.
27. Extending Private Property Rights: (459-60)
a) In an important 1964 article called, "The New
Property," Charles Reich noted that an important source of wealth and well-being is
government
privileges (e.g., occupational licenses, gov't
contracts, gov't employment) and entitlements (e.g., subsidies, Social Security, welfare
benefits), what
Reich calls "government largess."
b) These things, he believed, should be treated as
intangible property, which means that they should be similarly protected. For example,
doctors
should not lose their licenses without
some sort of due process (the Due Process Clause of the 14th Amendment says people should
not be
deprived of their lives, liberty, or property without
due process of law). That seems obvious enough.
c) But what about other items of gov't largess? Grazing
rights on government land? Farm subsidies? Welfare benefits? Social Security? Most people
want to say there should be few limitations
on what government can do in these areas, or more precisely, that this is a matter for the
democratic
process to decide, but there are hard cases. Suppose a
rancher in the West has been raising cattle on gov't land for decades, and then the
government decides to triple his fees or even prohibit him from
grazing his cattle on gov't land. What sort of protections should he have?
28. Retricting Private Property Through Public Takings: (460)
a) Explain the Takings Clause of the 5th Amendment, which
says that "private property shall not be taken for public use without just
compensation."
b) On the other hand, private property rights have always
been subject to some restrictions imposed in the name of the public good. Rivers were
privately owned by the people who
owned the banks (the riparian owners), but there was a public access exception that
riparian owners were
subject to. In other
words, the public could use navigable rivers and streams as public
highways. And they did not have
to be compensated for it.
c) How is this to be rendered consistent with the Takings
Clause? One way would be to argue that the public and not the property owner always had
the right question (e.g., the right to
use a river as a highway), so it wasn't something the government took from private owners
for which compensa-
tion is owed. But surely the government
doesn't antecedently have whatever rights it wants (and so compensation would not be owed
if the gov't
"imposes a servitude" of any
kind).
d) This problem has become increasingly significant in the
20th century as the government has regulated private property more and more extensively.
What about the burdens this imposes?
Should property owners be compensated for those burdens and if so, under what conditions?
This became
a problem with some of
the Milldam Acts. These were laws that permitted people to build a dam
(say, for a grist mill or to generate electricity).
They would build these
dams and flood the neighbor's land, but the builder of the dam had to compensate
the person whose land was flooded after
the fact.
e) Until recently, the way this law was interpreted, the
government could do anything it wanted to do without compensation except seize physical
possession of the property. Then it had to
compensate by exercising the right of eminent domain.
f) A regulatory taking can be defined as
any regulation that limits what a person can do with his or her property.
Some of these regulations greatly
diminish the value of someone'
property. (See, for example, Lucas v. South Carolina Coastal Commission.)
The problem then becomes
under what circumstances
should the government compensate property owners for the regulatory burdens it
imposes?
g) The jurisprudential problem is that it is hard to see how
to do this in a principled way. Not all regulations are terribly burdensome and some
regulations, such as some zoning laws,
simultaneously benefit and burden property owners. So where and how does the
Supreme Court draw the line?
Alternatively, which regulatory
takings require compensation and which do not?
h) It is not at all clear what Locke would say about this.
29. Restricting Private Property Rights By Restricting Contractual Freedom: (463)
a) Contracts are conceived of as "private
legislation" between the parties; freedom of contract is implied by Lockean rights in
one's person and one's
property.
b) However, starting in the 19th Century, courts and legislatures have interfered with
this "private law" by removing certain things from the realm of
private
agreements:
(1) wage and hour legislation
(2) occupational health and safety
regulation.
(3) occupational licensure, which
prevents unlicensed practice of various occupations.
(4) medical and consumer product
safety regulation
c) Typically, this is done on the grounds that there are
important power and/or knowledge differentials between sellers and buyers.
d) See Dargo, 502.
e) There are a number of problems with this, which Benditt
does not explain:
(1) Gov't action often hurts the
very people it is intended to help. Minimum wage laws hurt the poor, occupational health
and safety regulation destroys
jobs by requiring safety devices no one wants. Long drug approval processes hurt people
who are dying or desperately ill, etc.
(2) Very often one side or the
other uses the government to advance its interests at the expense of the public interest.
E.g., occupational licensure.
f) Is there any legitimate role for government in all this?
30. Social Justice and Welfare: (463)
a) Huge inequality of wealth and income is sometimes
regarded as an injustice, especially among Europeans. If the government's task is to
ensure justice, then it should
reduce those inequalities, but of course that
implies infringing on people's property rights. This is done through:
(1) redistributive taxation
(2) transfer programs, especially
welfare
b) This implies a much larger role for the state than Locke could
accept. Moreover, as Nozick says at 463.3, it seems to make some of us slaves to
others, or to the state.
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