States Must Do Bad

By On October 31, 2011 · 13 Comments · In Academic Philosophy, Democracy, Libertarianism

Something a little different from my regular posts.

Long ago, Plato asked if we would do better with good rules or good rulers. If we could attain utopia, wherein people are all knowledgable, enlightened, caring, etc., we might be able to make do with having good rulers. We would not need set rules since all would understand justice and fairness, though good rulers might be needed to settle honest disputes and, perhaps, keep everyone on the path of justice. But utopia is utopia, not possible. So we must make due with something significantly less. We must make due with well-formulated rules. But rules, by definition, must apply to general cases. That means that rules must be blunt.

When crafting rules, one can try to design the best rules or one can try to design rules that are good enough and will be accepted. Given the way people are–in particular, the way legislators are–if one tries to craft the best rules, the rules one crafts will often (perhaps always) be rejected. So one should try to craft rules that are good enough and will be accepted.

Given that we can’t trust that we have good rulers–or good administrators–we must make sure the rules that are good enough and accepted are also such that they can be followed. Indeed, we must allow that the agent of the state that is accountable for upholding a particular rule be able to “cover their ass,” by being able to truthfully say they acted in accord with the rule. A state worker (police officer, DFCS social worker, FDA officer, etc) has to be able to say “I followed the law/policy; it requires X in situations of type Y and this is a situation of type Y, so I did X.” If they can’t say that and it be true, then it can’t be known if they acted as agents of the state are supposed to act. If they can only say “look, the state wants to do what is best, so I did X because it was best,” (a) they are open to being fired because their supervisor thinks X was not best and (b) the citizen ruled against can truthfully say they believe X is not best and what they were doing was. If (b) happens, there is a “state agent said/citizen said” dynamic with no authority to appeal to (yes, the state can call authoritative sources to support its position–assuming the rest of the state body sides with the state agent who did X–but so can the citizen). The point is that absent a stated policy requiring certain acts in specified circumstances, there is no clear way to end the debate. (Which does not mean there is no truth of the matter about what was/is/would be best.)

So, we must have rules that are good enough, can be accepted by legislators, can be followed by those who must uphold them, and such that they can be demonstrated to be upheld. If it were possible to come up with such rules and such rules be such that they would only ever lead to good and never to bad, we would be set. Justice would (or at least could) always be done. But rules are blunt. That bluntness means that the rules will sometimes lead to bad. That means agents of the state will do some bad. (This is consistent, of course, with the claim that they will also do some good.) On my view, this also means that the rules we have should be as limited in scope as possible. That is how we limit the bad that state agents can do in the name of the state.

A final note: It may be that this reasoning, if valid, also applies to non-state organizations. I think there are 2 important differences though. First, non-state organizations tend not to insist they have a legitimate right to exercise power over individuals who do not consent to such. Second, and related, non-state organizations tend to have more flexibility. (The second is related to the first as the lack of need to claim legitimacy means the non-state organization has less need to insist on consistency in the way it applies its own rules.)

 
  • Anonymous

    “That is how we limit the bad that state agents can do in the name of the state.”
    Why this goal? Why not maximize overall benefit? It seems if the result is some good and some bad, we should simply determine when there is enough good to justify the bad. The conclusion that we must limit all actions seems only to be valid if our interest is solely on the “bad” side of the equation, which seems rather foolish to me.

    • Andrew Cohen

      Fair point, but a full response would take a much larger post.  I’ll say here only that I do think that the role of the state is to prevent (certain sorts of) bad rather than to do good and that in the process, it must not do the sort of bad it is meant to prevent.

      • Damien S.

        I note that that view of the role of the state is almost completely opposed to the philosophy behind the US Constitution, held up by many libertarian minarchists.  While they tried to limit the powers of the government (federal; state governments were nearly omnipotent), the powers granted are framed in doing good, not preventing bads, from promoting the general welfare to establishing patents and post offices and roads.

  • Anonymous

    “Given the way people are–in particular, the way legislators are…”

    You mean “easily influenced by constituents?”  Where designation of “constituents” may be subject to equivocation as in the case of legislators who may imply to voters that they are “their base” but who may instead view their constituency as high donors, business leaders, or leaders of their party, class, or clan.

    See also the… interesting case of the initiative and referendum process in (mostly) western U.S. states where the phrase “given the way … legislators are…” in fact tends to mean “given the way self-interested private entities with large opportunities for pecuniary are…”  As in the seven-figure campaigns in Washington State over (further) privatizing retail liquor sales.

    —

    “But rules, by definition, must apply to general cases. That means that rules must be blunt.”

    Really?  It seems to me that many rules, and for that matter many pieces of legislation, are in fact quite nuanced even before case law develops around litigation.  Not always nuanced for the better, perhaps, but even in pre-internet times rules can be quite detailed and can be applied to extraordinarily narrow conditions.

    Maybe it’s just my background in software involving millions of lines of code but it seems to me that rules can be made to apply to very specific cases.  Again highly-conditional rules are subject to their own problems (a.k.a. bugs in software, loopholes in rules) but unless one has a particular rhetorical point to make it’s false to say that “rules must be blunt.”

    —

    “The point is that absent a stated policy requiring certain acts in
    specified circumstances, there is no clear way to end the debate.” 

    In a litigious society, no, especially in the context of 50-percent-plus-one majority rule where 50-percent-minus-one minorities retain at least some rights.

    In a sufficiently litigious society you’ll wind up with people arguing that modus ponens (rules of inference) reasoning is itself invalid, as in arguments in Bush v. Gore where Bush partisans insisted that in the absence of testimony by individual voters judges had to assume Miami voters intended to vote in patterns that only coincidentally appeared to conform to clear errors on the ballot.

    —

    “Plato asked if we would do better with good rules or good rulers.”

    Speaking of Bush v. Gore, it seems to me that conservatives, communists, and totalitarians tend to believe that all one needs are good leaders whereas liberals and most progressives tend to believe what one really needs are good rules.  (When one has a good enough “good ruler” then it scarcely matters to conservatives and their communist doppelgangers that there are actually very good rules against, say, torture: if the “good ruler” says so the meaning of the words can be altered to fit the intention.)

    —

    “It may be that this reasoning, if valid, also applies to non-state organizations.”

    Bwahahaha!  Ya think?

    “First, non-state organizations tend not to insist they have a legitimate
    right to exercise power over individuals who do not consent to such.”

    Catholic church, period?  Missionary “adoption” agencies in Haiti and elsewhere?  Bank of America vs. the Maria and Charlie Cardoso?

    “Second, and related, non-state organizations tend to have more flexibility.”

    Sears & Roebuck?  HMOs?  Ratheon? (ever tried to go to Antarctica?)  Boeing (“we put the ohhh in boring?”), Bank of America?  Private “correctional” facilities?

    Yeah, some of those may have more flexibility when it provides internal benefits, but their flexibility towards clients, customers, and inmates typically approximates zero.

    —

    In other words I’m not buying it.

    figleaf

    • Andrew Cohen

      Were you having a bad day when you wrote this?   Anyway, just a few responses:
      1. Legislators are easily influenced by constituents.  But also by their own prejudices and desires.
      2. About rules being blunt.  Make it “laws” and I think the point stands.  Of course, laws like other rules) can be more or less blunt and more or less nuanced.  But they can’t be that nuanced.  Making them nuanced enough to avoid the problem would make them very long and such that most legislators would not read them (already a problem) and most people would not understand them (already a problem again; it would be compounded many times).
      3. Not sure what your 50% point means.
      4. I take it your point about the Catholic Church etc is that it claims legitimacy.  I should have been clearer.  As I use the term, for a state to claim legitimacy is (something like) it claiming that you are morally obligated to obey its commands.  (There is debate about that, but it will do here.)  The Catholic Church does not (now) claim that I am morally obligated to obey its commands.  (This is distinct, of course, from the fact that it claims its views of moral obligations–even mine–are the right views.)
      5. About flexibility: I said “tend to have more” not “have more” or “always have more.”

  • Jim Syler

    This is all great, but you’re ignoring Rothbard’s dilemma: The state has the continuous incentive, and the power, to interpret the rules in such a way that they increase the power of the state vs. that of the citizen. The Constitution of the United States pretty much meets your criteria, and that has failed to keep state power in check.

    • Andrew Cohen

      I agree.  I am not sure what effect this should have on the post.  If anything, it suggests to me that we must work harder to keep the state’s power limited.

  • Fernando Teson

    Interesting, Andrew. Is this consistent with NO state being legitimate? Saying that these are the pretty good rules (or the best attainable under the circumstances) is not the same as saying we owe allegiance to them or to those who enforce them.

    • Andrew Cohen

      Fernando-I think so.  I think I am a philosophical anarchist.  I think, though, that if we are to have a state (legitimate or not), we must work to keep it limited for the reasons stated.

  • Damien S.

    On my view, this also means that the rules we have should be as limited
    in scope as possible. That is how we limit the bad that state agents
    can do in the name of the state.

    Unjustified leap of logic.  Limiting the rules limits the bad the state can do under the rules, but it also limits the good that the state can do, and allows the bad of rule-less private activity to go unchecked.

    Ultimately, “as limited as possible” or “small government” are meaningless terms in denotation, useful only for the connotations of tribal membership.  The anarchist thinks no government is necessary.  The minarchist think government for defense and law and order is necessary, to avoid be killed by others.  The modern liberal thinks government for environmental protection and economic stability is necessary, lest we kill ourselves.  Each advocates a government they think is as limited as possible, though only the minarchist will talk a lot about that.

    • Andrew Cohen

      Damien-Two quick points.
      1. I don’t think the state should be doing good, if that is different from its preventing (certain sorts of) bad.
      2. Your second, and bigger, point is clearly right.  I’m working on a theory that indicates fairly precise normative limits of state action.  I suppose I could say “as limited as I want it (the State) to be” but that wouldn’t help either, at least until my bigger project is complete.

  • Andrew Cohen

    Xerographica-I’ve long liked the idea of a system that allows people to determine how their tax dollars are to be spent.  I’m not sure that its ultimately defensible (I’m not sure it isn’t) and I am not sure that in a defensible form it wouldn’t have some limits (say certain percentages of collected taxes automatically go to police funding, for example), but it seems to me clearly to be an idea worth considering.  What would the outcome look like?  I have some worries about this.  Lots of people might allocate their taxes (or the portion they can) to the arts.  This is in some ways good, but not for those who need help with the basics of welfare.  Its a commonplace that the arts are a form of charity that benefit the rich and educated.  A system like this would thus use tax dollars to benefit the rich and educated.  Of course, we do that now, so the question is would it be more so or less so?  With no certainty, I suspect more so.  Unless, of course, the arts were not on the list of things that could be supported by tax dollars.  But I don’t think you can limit what is on such a list and still claim to be committed to being “ tolerant of [all] people who have different perspectives on the scope of government.”  So, what I would like is a fully defended view about the limits of state action.  If you then want to make it so that people can choose which of those actions that are within those limits get their tax dollars (perhaps, again, with a requirement to give some to police), I’d probably be quite happy.

    • Damien S.

      the arts are a form of charity that benefit the rich and educated

      It might be a commonplace but that doesn’t mean it’s true.  I don’t really know where NEA money goes.  I just looked at grants, and some’s to chamber music, and some’s for exposure for underserved youth, inner city and rural.  And even if much of it were elitist, nothing says it has to be.  Some new deal money went to artists to produce public art, and one could have money spent on public beautification subject to majoritarian approval, not just avant garde weirdness.