Libertarian Ideal Theory as Silent Complicity

Steven W. Thrasher in the NY Times a couple days ago:

In 1958, when my mother, who was white, and father, who was black, wanted to get married in Nebraska, it was illegal for them to wed. So they decided to go next door to Iowa, a state that was progressive enough to allow interracial marriage. My mom’s brother tried to have the Nebraska state police bar her from leaving the state so she couldn’t marry my dad, which was only the latest legal indignity she had endured. She had been arrested on my parents’ first date, accused of prostitution. (The conventional thought of the time being: Why else would a white woman be seen with a black man?)

On their wedding day, somehow, my parents made it out of Nebraska without getting arrested again, and were wed in Council Bluffs, Iowa, on March 1, 1958. This was five years before Nebraska would strike down its laws against interracial marriage, and almost a decade before the Supreme Court would outlaw miscegenation laws throughout the country in Loving v. Virginia.

When the good state of Iowa conferred the dignity of civic recognition on my parents’ relationship — a relationship some members of their own families thought was deviant and immoral, that the civil authorities of Nebraska had tried to destroy, and that even some of my mom’s college-educated friends believed would produce children striped like zebras — our family began. And by the time my father died, their interracial marriage was seen just as a marriage, and an admirable 45-year one at that.

I suppose some of you will say that the “libertarian” position in 1958 was that the state has no place in marriage, and so the libertarian, as such, would have had nothing to say about the refusal of many states to recognize marriages between mixed-race couples. But in the world as it was, this stance would have amounted to an active refusal to resist the law’s codification of racial discrimination and segregation. It would have made one a silent partner in injustice. Those making similar arguments today will have to excuse me if I find this stance disgraceful. Many libertarians think there ought to be no government regulation of the economy, for example, but do not hesitate to take the practice for granted when they loudly opine about the extent and structure of regulation. Few say, “There should be no regulation, and so I, as a libertarian, have no opinion about how it should be carried out.” Yet I hear again and again that, since the state should not be in the business of marriage, one should not, as a libertarian, have an opinion about how this business is to be carried out. Increasingly, I find this an obnoxious and shameful form of moral recusal. One cannot use an ideological image of perfect justice to excuse or ignore an obvious injustice within the actual imperfect system. That these injustices could not arise within one’s vision of the best society does not mean that they have not in fact arisen. That a debate would not occur in an ideal world does not mean that it is not occuring or that nothing morally hangs on its conclusion. To decide to sit out the debate, with an eye on utopia, is not a way to keep one’s hands clean.

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67 thoughts on “Libertarian Ideal Theory as Silent Complicity

  1. I have proposed a grand bargain for the culture wars: abolish state-sanctioned straight marriage, legalize it for the minority. The total amount of state interference is thus reduced. We could also legalize only interracial marriage, claiming it is has positive externalities or something.

  2. On a side note, Will's post here reminds me a bit of the claim that opponents of war were “objectively pro-fascist” in WW2, which was echoed in the cold war and “global war on terror”. Doesn't sit well with me.

  3. “I suppose some of you will say that the “libertarian” position in 1958 was that the state has no place in marriage, and so the libertarian, as such, would have had nothing to say about the refusal of many states to recognize marriages between mixed-race couples.”You're contradicting yourself pretty intensely here. If I believe the state has no place in marriage (which I do, fwiw), then I absolutely have something to say about “many STATES” , emphasis added, not recognizing various marriages. What I have to say is that it's not up to the state which marriages it wants to recognize, that's the whole point. Marriage is a contract, and any law that makes certain classes of people ineligible to enter into such a contract makes us unequal before the law and that is something every libertarian must oppose.If there really are “libertarians” out there taking the position that because they don't believe that there should be state-run marriage that they “don't care” how state-run marriage is organized, well, they're just being stupid.

  4. Don't be silly. Here's the correct analogy. Say you're an anarcho-capitalist and you think there shouldn't be any states. The prospect of war is being debated. So you say, “Hey, I don't care if there's a massively deadly war between states or not, since there shouldn't be any states, so I'm gonna sit this one out.”

  5. Noah, pointing out a contradiction is not the same thing as contradicting yourself.Will,Are there any libertarians who actually believe this? And I am specifically excluding pretend convenience libertarians like Robert Stacy McCain.

  6. The proposition by some factions (e.g., the Freeper/Paul fringe) that libertarianism not only does not require strict adherence to equal protection under law, but even permits the outright rejection of it, is both ludicrous on its face and prima facie evidence of ulterior bigotry.

  7. Where, exactly, do you decide when it's OK to compromise the ideal?It may seem perfectly reasonable to say:”Well, **IF** we're going to have state-sponsored marriage, we should allow same-sex marriage.”But what about the following”Well, **IF** we're going to be torturing detainees without a trial, it should JUST be water-boarding.”Or:”Well, **IF** we're going to be throwing non-violent drug offenders in jail, it should JUST be crack users.”

  8. Rule of law is generally a good idea, as I have argued against some radicals who attack it, because rulers not restricted by law tend to behave much worse. Equal protection under the law is a very similar idea. However, it is easy to conceive of situations in which libertarianism would advise against it. Imagine that there is a law that requires left-handers to have their sinister digits cut off. It is pointed out that this unfairly singles out the left-handed, should we not do the same to right-handers? The libertarian point would be that it is the violence against our persons which is objectionable, and so to cause an additional wrong to right-handers would be worse than only harming left-handers (though that too is objectionable). My proposal to only permit gay-marriage is analogous to the restricting of amputation to left-handers (full disclosure: I'm left-handed but straight).

  9. War is an act taken by states. The anarchist position is that if the state is fer doin' sumpin, ah'm agin' it. State recognition of marriage and the granting of benefits is an act taken by states. Because anarchists are against the state doing anything, and it is something, they would logically be opposed to that (although for second-best reasons they might favor it in imperfect circumstances like the present).Another analogy might be what is taught in public schools. I generally stay away from the subject because I oppose public education. There is no “libertarian” position on what should be taught there. To stay away from the subject doesn't make you objectively pro-evolution/sex-ed/whatever. Vouchers may arguably be a more libertarian second-best solution in that they grant more choice to consumers.

  10. I approve of limiting torture to water-boarding (unless there's another form of torture I should prefer to it).I would prefer limiting the War on Drugs to ONLY marijuana. It is the war on heroin, crack and meth that is causing the most problems. Similarly the main problem is the focus on the supply side of the drug market. I would prefer restricting it to only locking up small-scale buyers (reverse decriminalization?). Consumers do not form gangs to obtain monopsonistic status over a turf. Of course, as with torture, I would optimally prefer the government not be doing any of this.

  11. P.J., Great questions. Whatever your ideal is, it is almost constantly compromised, and you are not compromising it by recognizing that, or by entering into a debate with non-ideal terms. There is no avoiding the exercise of judgment under non-ideal circumstances. If there is some realistic prospect of changing the terms of a debate that offers false alternatives, then by all means insist on changing it. But you can't avoid the actual ongoing debates that will in fact determine policy. Change the menu of options if you can, but if you can't pick the best option.

  12. It's good to remember, though, the difference between promoting an ideal and making compromises in reality. If I'm promoting an ideal, it's not for small increments of change to improve the margins — it's to express the ideal — but if dealing with city hall or deciding on which less than ideal candidate to vote for, then the ideal is a standard by which to make decisions. The problem with constantly accepting less without also relentlessly upholding an ideal, is that compromised conditions become the norm — then compromises are compromised, and so on.

  13. It seems pretty clear to me that there are big differences between 1958 and today. Thrasher's mother was arrested when she was on a date with his father. Sexual relations between the couple might have been illegal. Recall that in the Loving case, the couple were prosecuted and convicted of violating the law. All of this is much different from what we see today, where sexual relationships outside of marriage are not legally proscribed (and aren't generally stigmatized socially). Gays in Nebraska who marry in Vermont will not be criminally prosecuted. They will not be arrested. They just won't get the same state-granted subsidy that certain other couples get. Marriage today is just a subsidy, and gays are simply arguing for an extension of the subsidy. So what does that mean for libertarians? Well, I think it's fine for a libertarian to say, I oppose subsidies like marriage, and so I don't have any opinion about how the subsidy is actually enacted. Just as a libertarian might believe that our agri-business subisidies are a bad and unlibertarian idea, and decline to become involved in debates over who receives the subsidy. (If I don't care about whether agri-business subisidies are good or bad for “family farmers” am I a silent partner in injustice?) And I don't see why you believe that the libertarian position is somehow not on the table. Why can't a libertarian say, this is the policy solution I propose, and I think the others are both unacceptable? Why must a libertarian believe that the injustices in the solution you favor are worth accepting and superior to the injustices of the current circumstances? Isn't it possible for a libertarian to believe that the current situation is better, because he favors subsidies for heterosexual marriage,but believe, in a principled way, that it would be better still to not give the state the power to grant such a subsidy?

  14. The one area where state recognition of marriage matters and would have to matter to all but the most strident anarchists (or anarcho-capitalists) is immigration.The government necessarily regulates citizenship in order to settle claims of jurisdiction as well as sovereignty. I, for example, live in Canada currently, where gay marriage is legal, but I am a citizen of the US. If I were to marry a Canadian man, I would be unable to sponsor him to enter the US as a family member as I would with a Canadian woman.Since I am a homosexual, and therefore only going to marry men, the US government is discriminating against my freedom of movement, as well as my freedom of association in so far as it fails to recognize my marriage.

  15. Right on again Will. Let me just echo the idea that equal protection and more generally equality under the law are *part of the liberal tradition from which libertarianism springs*. We do indeed get bound up with our concern about the limits of state power, and rightly so. However, the question of how the state treats people when it DOES exercise its power is part of our tradition too, as even a glance at, say, *The Constitution of Liberty* would indicate. There's no only nothing “unlibertarian” about arguing for equality of marriage rights, but I would argue there is something very much libertarian in arguing for it, GIVEN that the state has claimed the power to decide who is and who is not married.

  16. The whole argument is very strange, and I've found some “paleonconservatives” make it, but not many libertarians. It's like, so if the government shouldn't be in the business of public schooling, it's ok, once it creates public schools, to seperate them based on race (or even exclude one race)? It's convenient to accept legislated inequality and then say, “Hey I didn't ask for this service in the first place!,” if you're not the one being excluded. I've gotten into countless arguments with more Right-libertarians regarding Prop 8, where they insist that reasonable libertarians can have differences of opinion on the matter, just like we can disagree regarding abortion. I find this so contemptable; Either you accept discrimination or you don't, and your utopian views about proper functions of government are irrelevant.

  17. Wait, you've heard libertarians say that they would be for state police forcing a gay couple to remain in a state that doesn't recognize gay marriage so they couldn't get married? Surely not?

  18. Yeah, this is the “making the perfect the enemy of the good” scenario, right? PJ's questions are perfect examples.Libertarians may want the state out of marriages entirely, and to have no torture at all, and to legalize all drugs, but there's no contradiction or compromise if you support a less worse alternative over a worse one. All of these political issues exist on a gradient.I do know libertarians who make these arguments, but it usually doesn't take long for them to either accept that going towards a less-worse option is better than doing nothing. Or, to admit that their objections are based on other, less-libertarian motives.

  19. Pingback: Libertarian Utopias « The United States of Jamerica

  20. Do policy changes lead or lag cultural changes? The example you quote seems to me to be a case of a couple going strongly against the prevailing cultural prejudices in their home state. The problems they suffered were primarily cultural, not legal. The mother was arrested because she was accused of prostitution, not because of a law against inter-racial dining. The brother 'tried to have the Nebraska state police bar her from leaving the state' yet 'somehow' the couple were able to leave the state to get married. Perhaps because there was in fact no legal basis to stop them? Clearly there was deep and unpleasant cultural prejudice here, and yet there were no legal obstacles to an eventual long and happy union.I guess my question is what value did the official recognition of the marriage by another state have? Did the mother's family suddenly accept the relationship when they saw a piece of paper from Iowa? Did they realize the error of their racist ways when confronted with the official stamp of the Iowa registry office? What is a libertarian to make of the statement 'the good state of Iowa conferred the dignity of civic recognition on my parents’ relationship — a relationship some members of their own families thought was deviant and immoral'? Surely a libertarian sees no particular dignity in state recognition of a relationship?The only reasonably coherent argument I hear in favour of same sex marriage is that it 'confers the dignity of civic recognition' – the idea seems to be that getting the state to recognize something as a 'good thing' is a valuable step in achieving cultural acceptance of the goodness of that thing. But this is really the crux of the argument, and the reason for all the sturm and drang. Radical Christians oppose same sex marriage *precisely because* they fear it will tend to further legitimize the lifestyle in the eyes of the broader culture. Supporters of same sex marriage often support it *precisely because* they hope to gain broader cultural acceptance of their lifestyle choices. As a libertarian I don't think the state should be expressing an opinion, but as long as there are no legal obstacles in the way of people actually living out their lifestyles as they choose then the state is not actively causing harm. This reminds me of the argument that Public Schools Cause Conflict (http://www.cato.org/pub_display.php?pub_id=7040) – the problem is that the state is in the business of putting an official stamp of approval on certain lifestyle choices. From my perspective, changing the set of approved choices is not an improvement or a worsening of the situation and so is not something to expend political energy on. As long as people are free to make their choices without legal interference then state approval or disapproval is not a big issue.

  21. Almost 100% of the libertarians I've talked to about it take Will's position. They differ only in the degree to which they emphasize that no state involvement would be the ideal position. But given the state's involvement in marriage, they all say it should recognize gay marriage as well.Maybe there are more right-leaning libertarians in Washington.

  22. Each time some new group gets the stamp of approval from the state, the number of interest groups who could potentially be brought together into a coalition to achieve the optimal outcome is reduced. Therefore if you believe that no state involvement is optimal and have no strong personal interest in which particular groups are currently favoured then you should oppose any broadening of state recognition strategically. Perhaps an unlikely coalition of Mormons who want to practice polygamy and Homosexuals who want to allow same sex unions could mutually support abolishment of state involvement in marriage?

  23. If you're going to to push for gay marriage (which I'm ambivalent about) from a libertarian perspective, I think it's incumbent upon you to be specific about how much infringement on religous and associational liberty you think are tolerable to make it a net welfare improvement. Is gay marriage worth it even if it means nearly all conservative churches and associated charities lose their tax-exempt status (while liberal organizations keep theirs)? I think it's a bit unlikely, but not too much so. Is it worth it if high rates of infidelity among gay males substantially alter alimony/child support proceedings in a negative way? I dunno.

  24. I think it's complicated because, by the legal principles that libertarians tend to support, legal gay marriage is an appropriate voluntary contractual arrangement for pretty much the same reason that legal polygamy is, and the main coalition pushing for legal gay marriage is vocally opposed to legal polygamy.Imagine an alternate history 1958 where the politically effective and academically fashionable coalition for changing the miscegenation statutes was to allow white men to marry black women, but still to forbid black men from marrying white women. With much self-righteousness about how this is in no way a slippery slope to allowing the barbaric practice of black men marrying white women, god forbid! In such a world, I think libertarians would be vaguely relieved about some of the restrictions coming down, but they'd also be vexed about the coalition loudly supporting other comparable restrictions.It seems to me this should be unsurprising given the decades of libertarian vexation about women's rights to control their bodies (but not people's right to choose recreational or un-preapproved-by-FDA medicinal drugs, or women's right to take money to have a man put something in their vaginas instead of giving money to a man to put something in their vaginas, or pornography, or whatever). Even if we dodge the main controversy over where protectable life begins by setting aside abortion and looking only at contraception, libertarians tend to have mixed feelings about a coalition which affirms an intrinsic human right to contraception while denying the right to other drugs, medical practices, or consensual sexual practices. Given that history, why not expect the same sorts of mixed feelings here?or freedom of religion but only for one politically connected currently-stomped-on religions, not all the others; or legalizing some fraction of currently banned drugs while redoubling efforts to suppress others; or freedom of the press for newspapers but not bloggers; or various other hypotheticalsLibertarians also take criticism for being too enthusiastic about the nineteenth century when the economic freedoms that they favor were too confined to white males. I think some of that criticism is unfair — to a considerable extent, libertarians appeal to the nineteenth century to argue that secure property and freedom of contract and so forth worked, much as they appeal to repeal of Prohibition to argue that legalization worked. Appealing to the example of repeal of Prohibition doesn't necessarily show that one loves beer and hates pot, right? But some fraction of the criticism is fair, too, and from the way the Ron Paul candidacy played out, many of us judge that the fraction isn't negligible. So we should be vigilant about groups selectively promoting freedoms for some while denying freedoms to others, check. And only for strongly libertarian-affiliated groups, hmm?

  25. This is a great question CA. My own view is identical with that of Jason Kuznicki over at Positive Liberty: http://www.positiveliberty.com/2009/04/fake-rig…The central argument:If it is essential to Christianity that all good Christians shun and disapprove of gays and lesbians — and I think that it is — then let the Christians have that right. Shunning, too, is part of a healthy society, because the alternative — forced friendship — is a sham. (Do you seriously think that gays and lesbians don’t shun conservative Christians?)The ultimate outrage will come, though, when churches are forced to marry gays and lesbians. I’m increasingly concerned that that’s where we’re headed, and I can’t even begin to say how wrong this is. Well… maybe I can.Here’s my offer: I will publicly switch sides on the issue of same-sex marriage the moment that any church in the United States is forced by the government to marry two people of the same gender, or to welcome them as if they were married. From that point on, I’ll be a lifelong opponent of same-sex marriage. Getting religious liberty right is far more important than anything that might happen to me or my family. If it turns out that we can’t have civil marriage as well as getting religious liberty right, then I know which one I’d choose.

  26. Agreed. I've always come across the “privatize marriage” argument only as an ideal alternative to recognizing gay marriage in the current legal framework, the way Boaz does here: http://www.slate.com/id/2440/ (at least implicitly), not as a means of avoiding the argument completely.That said, if Will says he's heard it from hundreds of libertarians, I believe him. Just stunned and disappointed by that reality.

  27. I think this conversation is interesting as it relates to the Patri Friedman's piece in Cato Unbound. We can plan libertarian utopia on the high seas, but disavowing folk activism has significant consequences on people, such as regarding the issue of gay marriage. Additionally, activism on this issue is not useless- we can actually make marginal gains, by advertising and adding libertarian support to the liberal support for gay marriage. Many Goldwater/Reagan conservatives may change their minds and actually see things in a new way. This folk activism can actually benefit gay people's lives, and shouldn't be discounted. Still sucks for single people, though.

  28. But if principled libertarians should be in favor of same-sex marriage, what are they supposed to say about polygamy? After all, if three people (or more) want to get married to each other, wouldn't denying them the right to do so also be a violation of equal treatment?

  29. I am really confused about who Will is considering to be libertarian here. Granted, he has know doubt come in contact with many more libertarians than I have, but how in the world could you claim to be a libertarian and hold the position that the government should exclude certain adults from being able to enter into mutually beneficial contracts?

  30. Yes Craig, a strict libertarian should allow people to enter into contracts and call it polygamy. On the other hand, a strict libertarian would in no way force religious groups to recognize these contracts as “marriage” or force them to have anything to do with it.

  31. A principled libertarian should oppose marriage laws, except in so far as marriages involve property. And that can be handled quite nicely thank you very much as a contract setting up an unlimited personal liability partnership.If people want to toddle off to church for the mumbo-jumbo, they should feel completely free to do so.

  32. How is it a gain for libertarians if the subsidy that is marriage is extended? I can see how it could be seen as Will sees it, as a gain for justice, but that is a far cry from seeing it as some sort of gain for libertarianism.

  33. The debate over gay marriage isn't a debate about excluding any adults from entering into a contract. Marriage isn't primarily a contract, and to the extent that it is, it's one that can be replicated privately. (If a state doesn't prohibit the enforcement of these private contracts, and offers to subsidize gay couples so that they can draft and enter into their own, does the argument over gay marriage go away? Nebraska's uni should offer $1500 to each gay couple who wants to get married so they can hire a lawyer, and then the injustice is gone?)

  34. At least note that the “less worse” option in Will's version is actually an expansion of a government subsidy, and therefore a move away from the libertarian position in some sense. That can be justified, of course, but only on other, less-libertarian motives. Does that discredit those?

  35. Pingback: Same-sex Marriage and the Neutral State « Brad Taylor’s Blog

  36. In libertarian utopia, there may still need to be “default” laws that determine what to do a situation where the couple did not adequately address certain issues in their private marriage contract (such as regarding property allocation, alimony, etc.)

  37. But adina – give 'em an inch, and they'll create a family law court! Ask fathers everywhere, denied access to their kids by that lil' bundle of ancient precedent and “feminist hysteria” how they feel about it, they they will tell you where you can shove it. If it ain't in the contract, it ain't in the contract, baby. Anything else represents a compromise to the statist, collectivist, nanny-state mentality.

  38. I realize that, which is why I think our host should acknowledge that his crusade for equal marriage rights (which I am sympathetic to) is unlikely to stop at allowing two people of whatever sex to enter into a legal union. Indeed, it's a concern for the legalization of polygamy (and not some aversion to gay sex) that animates the social conservative opposition to gay marriage.

  39. If it ain't in the contract, it ain't in the contract, babyPaul, thats a non sequitor. Contracts are not the be all and end all of positive obligations (legal and moral) Crass contractualism does not give any weight to the organic interactions that form and glue a society together. For example, parents have positive obligations to their children, and children to their parents. In a purely contractual setting, you would find it perfectly legal for parents to abandon their children at the grand canyon. Neither do you seem to understnad the process of rights formation. Natural rights (in so far as they arise organically in society) can take a multitude of forms. These forms will are not necessarily purely negative. i.e. Robinson Crusoe may have a 'legal' obligation to come to the defense of Man Friday. Positive, extra-contractual obligations exist. Common law systems will often codify these obligations into law.

  40. So utterly boring.This might be the stupidest issue out there these days. They could replace civil marriage with civil unions and that would make 80% of people happy. But, but what about the 10% of the fringe on each side?Who cares!The retards like Andrew Sullivan who want the government to rectify his rectum and make him feel whole will be left out. The same goes for the Phelps phreaks who want the government to declare gays evil and illegal. You all can get your civil unions with whomever you want. You want get some special 'marriage'? Go to your local church, VFW, Sex in the City consultant, Church's Chicken, Big Boy, and get whatever fancy piece of paper, doily, or special pair of pumps that makes you feel like a woman.Us normals will go to Vegas and get this non-sense settled in a drive-thru.

  41. The point will was trying to make, is that any serious libertarian is not just an anti tax pro weed conservative. True libertarianism is about principles. Not in any order1. Equality before the law2. A respect for individual rights3. etc. These require one to prefer free trade and low taxes and drug legalisation etc. It also requires one to say that even if either of the principles are being violated. It is better that as few of those principles are violated as possible. Or else, I can say that since the government has no business going about taxing people for social security, I dont really care about how much they do so.

  42. So how far does this go? You speak darkly of a 'process of rights information', and 'codify these obligations into law'. Who is taxed to pay for this process? What is the political framework within which we are all supposed to concur on these 'laws'?Through that gap, you can drive the entire apparatus of a state with a monopoly on power that seeks to legitimize itself through a 'democratic electoral process'. And behind it follows a daisy chain of laws, regulations, nanny-state enforcement. Or are you making the claim that every nation of laws is already some kind of libertarian utopia? And that the state they live under is — by their lights — a minimal state?

  43. Let me just echo the idea that equal protection and more generally equality under the law are *part of the liberal tradition from which libertarianism springs*.Um, yeah – but you seem to be ignoring an elephant in the room here. While *individuals* are regarded as equal before the law, *aggregations of people are not*. The law does not, and never has, and could never in any practical way consider churches, corporations, charities, militias and families “equally”. And there's not a damn thing unjust about the law defining what qualifies to be considered a member of those aggregations.Secondly, out of the myriad relationships and associations human beings can form, the only ones public law generally protects or recognizes *are the ones that have an effect on parties other than the principle participants*. That is why corporations are chartered and regulated by law, and bowling teams are not. That is why parental relationships have particular standing, and your relationship with your bestest friend in high-school does not.Tell me – if people didn't form heterosexual relationships, what would your society look like in 10, 20, 30 40 or 50 years? (Note – “what society?” is a perfectly acceptable answer here.)Now, what would be the impact if nobody forms another gay relationship? What would be the public impact of that?Can you give me a single good reason why a society should consider relationships that are essential to it's survival to be in an “equal” category to those that are boutique life-style accessories, which rarely if ever are of any consequence to anyone but the principles? I doubt it. All I ever seem to hear from gay-marriage advocates is much foot-stomping accompanied with an indignant, “It's not equal!”, without ever their ever seeming to feel obliged to justify *why* it should be considered equal.

  44. I agree with Murray Rothbard: parents have no obligations to their children. I go further in pro-choice stridency to advocate legalization of infanticide.It is actually not necessary to have law at all. Robert Ellickson's book Order Without Law discusses this. “Common” law was an unfortunate centralized standardization and power grab by the king, whose history is discussed in Bruce Benson's “Enterprise of Law”.

  45. There are plenty of subsidies that would actually be less harmful if they were less discriminatory.

  46. Paul, I'm aiming at something closer to your latter statement. For example, it is not obvious that most of us are illegitimately coerced when we are taxed. Though not so strongly stated. Obviously, governments, democratically elected or otherwise can do wrong, even egregious wrongs. The question is when do we know this is happening? The way I see it, rights are like the invisible hand of the market. i.e. they arise from the individual dealings that occur between rational actors in the state of nature. What makes it the case that people have rights to some things and not to others? What determines the contents of rights? My view is that there some sort of common consent is implicated. The question is what type? Ive actually got a paper due on the 20th of April discussing this particular question.

  47. Murali – It's an oldie, but a goodie. Can I recommend Voltaire's Candide to you? The specter of Dr. Pangloss looms over this discussion.

  48. Will,1) Most of the libertarians that, e.g., accept the reality of government regulation of business and then argue within that framework for a preferred regulation, by and large argue for the least amount of government intervention. In the case of marriage, I think that the case of libertarians arguing for neutrality is fairly clear-cut. Much harder cases, to me, appear with cases of things like hate crimes or federal research funding. If a libertarian someone disagrees with hate crimes in general for various principled reasons, once accepting the framework, must they fight to have sexual orientation also among the aggravating factors considered, or is it permissible to fight to limit the types of aggravating factors in all ways? If a libertarian accepts the principle of generous federal funding of research, must she (a la Ron Bailey) insist that federal funding be directed to all projects as judged by some independent bureaucracy of the best and brightest, regardless of any objections by large percentages of people taxed?2) I'm having a hard time distinguishing these claims and similar ones imploring people to vote for the lesser of two evils that might win (instead of abstaining or voting for a no-hoper), while of course clearly stating one's objections and expected disappointments from the flawed candidate one ultimately votes for.

  49. “One cannot use an ideological image of perfect justice to excuse or ignore an obvious injustice within the actual imperfect system.”Indeed. Which is why the obvious injustice of people who give birth to additional kids subsidizing those who do not have kids (via social insurance schemes) makes me not be exercised by natalist proposals to compensate the parents. Given that we have an imperfect social insurance scheme that imposes such costs and causes humans to alter the choices that they would make absent such a scheme, (and surely, if one thinks that a pro-natalist scheme would be effective on the margins, then one must also think that the disincentives towards having children offered by a social insurance scheme would be effective on the margins) surely the policies are not all that unreasonable.Granted, in a perfect world where social insurance schemes did not penalize parents and cause them to subsidize the childless, I would oppose pro-natalist schemes. But given that we do have the obviously imperfect system that does create an injustice, I don't think that you and Kerry are justified in excusing it such.

  50. Yes, I do know that. But given that that's not going to happen, and that the status quo is such, why be so vehement against the pro-natalist policies? Especially when they are arguably correcting “an obvious injustice within the actual imperfect system?”I don't see what's so different about your argument that since you've argued “against the status quo social insurance system and defended personal retirement accounts at length,” you feel free to analyze pro-natalist payments only in comparison to your “ideological image of perfect justice,” and ignore or excuse the actual injustice under the current system against those who have kids subsidizing those who do not, and the position you criticize in the post. How is that different from someone who would claim that since he's “argued against the status quo marriage system and defended private marriage at length,” he should therefore be free in resisting the extension of government marriage to additional types of relationships, arguing that it's part of a government attempt to regulate what should be free human relationships? “At the heart of any [state sanction of marriage] lies an attempt to encourage a particular group of [people] to orient their [relationships] in a traditional way,” no? After all, there exist pro-gay critiques of gay marriage for exactly this reason.My criticism is that you have a tendency to make sweeping statements on your blog that seem to me to be either contradictory of earlier sweeping claims, or simply obtuse and unpersuasive. In the latter category is your reply to Jonah Goldberg on the drug war– without some evidence of a policy belief that you hold that you would not hold were in not for disparate impact on account of race, I must agree with Jonah's position that while “as an argument… the disproportionate affect on blacks works just fine,” but that “it seems a bit off” coming from a libertarian. It seems a bit off for the same reason that similar invocations in the case of, e.g., school vouchers, coming from libertarians or conservatives do. You get the feeling that people are simply using the argument at hand for a policy that they would agree with regardless.Without a case where disparate impact is either necessary or sufficient in one's policy preferences, invoking it does not seem credible, and it seems independent of one's philosophy. It's not enough, either, to claim that, magically, while immediate interventions either of redistribution or affirmative action or anything might make things better off for blacks in the short-run, libertarian policies are always better off in the long-run so there's no contradiction. It still ends up sounding like one comes to a certain conclusion completely independently of disparate impact, and then mentions disparate impact where useful and ignores it where not, never letting it actually affect one's position.

  51. Wait, Will, you have a post about how libertarians can't use the fact that they're against the whole status quo marriage system on grounds of justice to dodge or ignore questions about minor changes in the current system to address claimed unfairness, but then you immediately defend dodging and ignoring questions about claimed unfairness in the current social insurance system by pointing out that you've argued against the entire status quo system?Of course I knew that you'd argued against the system. That was my point. Someone arguing against the entire system is a justification for you to avoid addressing particular injustices and complaints that you don't want to think about in one case, but a unacceptable dodge for others to do in another case.

  52. Just how stupid do you think we (libertarians) are? 99% of the arguments I hear against it are complete straw men, and this is no exception.

  53. Will,I don't understand your argument here at all! Let's say, for the sake of argument, that I'm an atheist (wink, wink, nudge, nudge). That does NOT mean that I have no opinion when a religious fanatic avenges god by murdering someone in the name of his religion. Similarly, as a libertarian, just because I don't believe in the State (or that I believe in a microscopic one) doesn't mean that I have no opinion when an existing state uses force against my fellow citizens, whether it's to keep different races from marrying or to keep peacful people from lighting up a joint.

  54. Murali, every American group I know of supports equality before the law and respect for individual rights.The differences come when asking what it means to be equal before the law and what counts as an individual right.Also, of course you care about being taxed. It impacts you directly. Now, if you're a Canadian and working in Canada you might say that you don't care what the particular social security tax rate is in the US.

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  56. If I am comprehending this correctly, the author is asserting certain Libertarian minded individuals, who see the state interventionism in the marriage business a direct contradiction to their social and political belief but do not engage in the battle against this affront, possess such reasoning because they disagree with the issue while it's being openly and wrongfully implemented by the government?X troubles me,I don't believe in X,Since X is being implemented by a source which I disagree with its very existence,Therefore, I do not see fit to meddle!!That's such a run-around, convoluted argument. What is the point of this post anyway? Is this somehow an attempt to take a jab at obscurity? Honestly, what is the point of this entry? It doesn't make much sense at all.

  57. If I am comprehending this correctly, the author is asserting certain Libertarian minded individuals, who see the state interventionism in the marriage business a direct contradiction to their social and political belief but do not engage in the battle against this affront, possess such reasoning because they disagree with the issue while it's being openly and wrongfully implemented by the government?X troubles me,I don't believe in X,Since X is being implemented by a source which I disagree with its very existence,Therefore, I do not see fit to meddle!!That's such a run-around, convoluted argument. What is the point of this post anyway? Is this somehow an attempt to take a jab at obscurity? Honestly, what is the point of this entry? It doesn't make much sense at all.

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