Fernando Teson – Bleeding Heart Libertarians http://bleedingheartlibertarians.com Free Markets and Social Justice Wed, 15 Nov 2017 17:16:21 +0000 en-US hourly 1 https://wordpress.org/?v=4.8.3 http://bleedingheartlibertarians.com/wp-content/uploads/2016/09/cropped-site-icon-BHL-32x32.png Fernando Teson – Bleeding Heart Libertarians http://bleedingheartlibertarians.com 32 32 22756168 The Bourgeois Argument for Freer Immigration http://bleedingheartlibertarians.com/2017/08/bourgeois-argument-freer-immigration/ http://bleedingheartlibertarians.com/2017/08/bourgeois-argument-freer-immigration/#comments Wed, 09 Aug 2017 03:38:08 +0000 http://bleedingheartlibertarians.com/?p=11983 Donald Trump wants to make immigration merit-based. While many people will reject that view on a variety of grounds, some nonetheless think that admitting educated, wealthier persons is preferable to...

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Donald Trump wants to make immigration merit-based. While many people will reject that view on a variety of grounds, some nonetheless think that admitting educated, wealthier persons is preferable to admitting folks who will take low-end jobs.

This idea, however, is mistaken for empirical and moral reasons. Educated middle-class immigrants are not the only ones that create wealth. The economies of California and Arizona, for example, are literally sustained by millions of immigrants who perform low-paid, low-level jobs in farms, restaurants, and factories. Immigrants who take low-end jobs are as beneficial to the United States as those who take high-end jobs. I suppose the numbers are too complicated to compare the benefits of each class, but I have little doubt that the immigrants the president wants to exclude create great wealth (the White House says they receive state benefits, but it does not say that the wealth they create outweighs those costs.)

In addition to these well-known economic reasons, there are moral reasons to reject merit (high education, wealth, and so on) as a basis for immigration. One is this: The state should liberally admit immigrants because they are entitled to better themselves by trading their skills and entrepreneurship with willing trading partners across the border. Those skills may be specialized or non-specialized; the principle applies to all migrants willing and able to work. I borrow the underlying principle, the ethics of trade-tested betterment, from Deirdre McCloskey, who developed it recently (albeit as a historical, not normative, thesis) in her massive volume Bourgeois Equality. She calls it the bourgeois ethics, and for that reason I call my thesis the Bourgeois Argument for immigration. (This post summarizes my contribution to an upcoming volume by CUP, The Future of Classical Liberalism, edited by Todd Henderson).

The idea is that persons who seek to better themselves by offering their labor or entrepreneurship to willing buyers across borders should be accorded the same dignity and respect to do so that natives enjoy. The argument is consistent with, though not reducible to, two standard pro-immigration arguments: the recognition of migrants’ right to free mobility, and the recognition of the immense economic benefits of immigration. McCloskey argues that the enormous jump in global prosperity (the Great Enrichment) between sometime in the early- or mid-eighteenth century to the present day was caused, not by technological advancement or the establishment of property rights, but by a Gestaltic change of ideas originated in Northwestern Europe. She argues, first, that contrary to the conventional wisdom advanced by the intellectual and artistic elite (which she calls the “clerisy”), the middle-class of traders, inventors, and managers, far from being selfishly materialistic, was much more ethical than its critics recognized, and has been so for much of human history. For McCloskey, a radical change in social mores was the real cause of the Great Enrichment. This novel ethical outlook is simply the recognition of a new liberty and dignity of commoners and the activity on which they specialized: the ethics of trade-tested betterment.

I adopt McCloskey’s idea with three friendly amendments. First, I treat the bourgeois ethics as a normative principle, and not just as a historical ethical development that had enormous beneficial consequences (although I largely agree with McCloskey’s account.) The bourgeois ethics is, I think, a proper way to treat others above and beyond whatever relational bonds (compatriots, friends, family) we may have with them. Respecting their right to better themselves through trade is a special case of according them dignity and respect. Second, borrowing the bourgeois ethics does not commit me to accept McCloskey’s controversial claim that institutions had a minor role in the improvement of people’s lives around the globe. I suspect (but will not argue here) that McCloskey exaggerates the differences between her approach and that of institutionalists like Acemoglu and Robinson. Be that as it may, my argument here is ethical, not historical, so I don’t need to take sides in that dispute. And finally, I extend the Bourgeois Argument to immigrants. McCloskey, I think, is content to describe the surge of the bourgeois ethics within nations. It is entirely unclear that those who promoted and practiced the bourgeois ethics were thinking of elevating foreigners to the equal treatment that local traders now enjoyed.

The Bourgeois Argument, I said, is a special case of a principle that mandates treating others with dignity and respect, which means treating them as rational free agents. But the literature offers divergent interpretations of the principle. Ronald Dworkin, for example, thinks that the state has a duty to treat everyone with dignity and respect, and that the way to do this is to erase the unfair effects of citizens’ differing starting points. A redistributive tax policy secures to people the material benefits that erases such unfairness and allows them to pursue their life plans with chances of success. Whatever the other merits of this approach, it treats persons as passive beneficiaries of the transfer of resources. As such, the state’s benefits cannot in itself embody respect for the beneficiaries, since such transfer has at best an indirect relationship with the beneficiaries’ agency, dignity, or autonomy. The thought is that, thanks to the benefit, the beneficiaries’ prospect will be equalized, as it were, and they will eventually be capable of functioning as productive members of society.

In contrast, the bourgeois ethics sees persons as agents, as masters of their own destinies. Instead of payments, individuals receive the recognition of their agency and the encouragement to offer their skills in the market to better themselves and their families. The bourgeois ethics sees persons, not as passive beneficiaries, but as active agents. In contrast to Dworkin’s view, the Bourgeois argument emphasizes ethical equality: the equal freedom of every person, native or not, to offer their skills and talents in the market. For that reason, the bourgeois ethics is, I believe, closer to the core notions of dignity and respect than mainstream egalitarian ethics. It encourages persons to work and innovate, and it discourages resentment and misplaced feelings of entitlement. If McCloskey is right that the bourgeois ethics has been a main factor in global prosperity even with relatively closed borders, then affirming the Bourgeois Argument for immigration portends even greater things to come. This is where the Bourgeois Argument nicely dovetails with the economic findings on immigration. Recognizing the migrants right to better themselves through trade is the right thing to do, and it is also a sure recipe for significant (indeed, massive) increase in prosperity and the corresponding alleviation of poverty.

The bourgeois ethic replaced the old hierarchical ethic that forced traders to remain in their assigned social places. Joseph Carens defends open borders by pointing out that immigrant status is “the modern equivalent of the feudal class privilege.” A person who has immigrant status lacks standing to better herself through trade with the natives. Immigration status means denial of bourgeois status in McCloskey’s sense and it is in that sense, as Carens suggests, a remnant of the feudal hierarchical ethic. Notice that this objection is different from the luck-egalitarian objection given by progressive supporters of freer immigration. The luck-egalitarian argument for free immigration is that someone born in a poor country does not deserve such fate, and therefore immigration controls should be relaxed to undo the arbitrariness of persons’ having been born there rather than here. I do not pass judgment on this argument, although I am generally skeptical of luck egalitarianism. Here I simply notice that the inequality created by immigration laws is a legal inequality, not an inequality caused by the accident of birth. This is why the luck-egalitarian argument is not needed to condemn these laws.  The immigrant’s access  is denied him by armed guards at the border.   It is not that we should grant him access to nullify accidents of birth. Maybe that consideration applies, maybe not, depending on one’s evaluation of luck egalitarianism as the basis of a sound political theory. But regardless, surely every liberal, progressive or classical, will agree that coercively enforced inequality is presumptively wrong.

 

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Hart, Dworkin, and Trump http://bleedingheartlibertarians.com/2017/06/hart-dworkin-trump/ http://bleedingheartlibertarians.com/2017/06/hart-dworkin-trump/#comments Sat, 24 Jun 2017 15:57:17 +0000 http://bleedingheartlibertarians.com/?p=11882 Two federal appeals courts have now held that Trump’s Executive Order temporarily banning immigration from certain countries is unconstitutional. The 4th Circuit thought that the EO was discriminatory, while the...

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Two federal appeals courts have now held that Trump’s Executive Order temporarily banning immigration from certain countries is unconstitutional. The 4th Circuit thought that the EO was discriminatory, while the 9th Circuit opined that the President had exceeded the congressional mandate (recall that immigration has always been the province of Congress, not the Executive, so the President’s authority in this field is delegated authority.) It is unclear what will happen if the case goes to the Supreme Court.

I was and continue to be of the opinion that:
1) The EO is wrong and counterproductive.
2) The legal precedents, however, support the constitutionality of the order (I also think these legal precedents are dangerous and should be overturned.)

In these pages I suggested that those who purported to rely on precedent to invalidate the order were just doing advocacy, and that the public would be better served if courts and commentators candidly admitted that they were making up new law, that is, trying to overturn the applicable precedents.

Today I’d like to suggest a new angle. Whether the EO order is constitutional depends on your theory of law. If you are a positivist, then you cannot honestly argue that the EO is unconstitutional, because precedent strongly indicates the opposite. Herbert Hart, a leading positivist, argued that  legal propositions derive in one way or another from the legal materials as created by lawmakers. Moral reasoning, while important, is separate from legal reasoning. Hart, therefore, would have said that the EO is lawful but immoral, and that perhaps immigrants who break the law and sanctuaries who receive them are upholding a moral obligation that prevails over their legal obligation.

But if you are not a positivist, then moral reasoning is part and parcel of the law. Ronald Dworkin famously defended such a view. As against Hart, he argued that legal materials (the Constitution, statutes, judicial precedent) should be read in their best possible light. This means consistency, of course, but it also means making the legal materials be the best they can be. And by “best” he meant “the best they can be under the most plausible moral-political theory that explains he Constitution.” Such theory would then be part and parcel of law, and not, as Hart thought, something separate from it.

So, if you are like me and object to this EO, you are in better shape if you are a Dworkinian rather than a Hartian. If the best available moral-political theory entails the immorality of the EO, then the EO is not just immoral: it is illegal as well. (Of course, some will say that the EO is perfectly moral. For them the problem I identified doesn’t arise.)

The reason why the Dworkinian approach is not prevalent is that most lawyers are anxious to appear as objective positivists, as applying and not inventing law. That leads them to dishonesty, to pretend they are applying and not inventing law when they are, in fact, doing exactly that. I regard this as evidence that some form of natural law theory (Dworkinian or not) is superior to positivism.

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Democracy and Prosperity http://bleedingheartlibertarians.com/2017/05/democracy-and-prosperity/ http://bleedingheartlibertarians.com/2017/05/democracy-and-prosperity/#comments Wed, 24 May 2017 16:31:43 +0000 http://bleedingheartlibertarians.com/?p=11812 Tom Christiano, a leading theorist of democracy, has just reviewed Jason Brennan’s Against Democracy. In it, he accuses Jason of having an ill-equipped micro-theory that fails to account for the...

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Tom Christiano, a leading theorist of democracy, has just reviewed Jason Brennan’s Against Democracy. In it, he accuses Jason of having an ill-equipped micro-theory that fails to account for the phenomena Jason addresses. In particular, Tom thinks that the book cannot explain why actual democracies are as successful as they are. He doubts such success could have been led by Jason’s hobbits and hooligans. Here’s Tom:

[T]he modern democratic societies of Europe, North America, and East Asia have actually been quite successful; and the democratic element in them is a large part of what seems to explain that. First, there is a great deal of data marking out the remarkable differences between reasonably high quality democracies and other kinds of societies. Brennan mentions these but I don’t think he takes the full measure of the evidence. Democracies do not go to war with one another and respect the rules of war better than other societies.  They are responsible for the creation of the international trade system, the international environmental law system, and the human rights regime.  In fact, democracies do massively better on basic human rights than other societies, and it appears to be more their majoritarian character that explains this than their systems of checks and balances. Democracies prevent famines and, since the onset of universal suffrage, have developed powerful welfare states that have been enormously productive, have greatly reduced poverty, and have smoothed out the disastrous economic crises that occurred in their more free market ancestor societies.  Further, they have generally protected the interests of workers and lower economic classes, done a better job at producing public goods than other societies and generally have higher rates of per capita growth than their free market ancestors. Most of us hope for much more progress than this, but these achievements are extraordinary and are hard to square with the idea that hooligans and hobbits are at the helm.

 

Of course, I will let Jason defend himself. Here I want to examine the larger issue raised by Tom’s macro-theory: why are actual democracies successful?

There are reasons to doubt the accuracy of Tom’s story. Modern democracies have three components: a rights-constrained majoritarian component (universal suffrage and bill of rights), a redistributive component (the welfare state), and a capitalist component (robust markets). I do not quarrel with Tom’s observation that actual democracies do much better in terms of, well, democracy and human rights. But Tom thinks that these societies’ majoritarian and redistributive components are the key contributors to economic success, including poverty alleviation. This is entirely unclear to me and to those who have addressed the issue. For one thing, the Latin American experience shows that democracy and redistribution do not always lead to success. For another, the “free-market ancestors” managed to exclude many people from the market. So I think it is plausible (to put it mildly) that the great leap in prosperity and poverty alleviation occurred when modern democracies established secure property rights and allowed everyone the opportunity to better themselves through trade, as Deirdre McCloskey has claimed.

It may well be that, as Tom suggests, the introduction of universal suffrage is part and parcel of the ethics of equality that allowed everyone to attempt success. But it is much less clear that, with important exceptions such as publicly-funded education, redistributive institutions have contributed to the great enrichment and poverty alleviation in the modern world, and especially in successful democracies. Plausibly, these impressive achievements stem from the unprecedented opening of domestic and international markets, that is, from the capitalist component of successful democracies. Certainly, economic theory seems more congenial to this explanation (see here and here, and Lomasky’s and my discussion here.) If development economists are right, Tom’s argument sounds like a post hoc propter hoc fallacy.

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Protectionism as Cronyism http://bleedingheartlibertarians.com/2017/05/protectionism-as-cronyism/ http://bleedingheartlibertarians.com/2017/05/protectionism-as-cronyism/#comments Mon, 08 May 2017 18:05:17 +0000 http://bleedingheartlibertarians.com/?p=11780 Supporters of protectionism such as President Trump say that they are trying to save jobs in the United States. What’s wrong, they ask, with showing some solicitude and help to our...

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Supporters of protectionism such as President Trump say that they are trying to save jobs in the United States. What’s wrong, they ask, with showing some solicitude and help to our own workers hurt by foreign competition? Surely we cannot be against that.

The standard reply is that these laws help workers but hurt local consumers and foreign producers and their workers. This causes a net deadweight loss, or unrecovered loss of social welfare.

But this reply, correct as it is, does not go far enough: Protectionist laws harm workers in our own country. This is because when a government protects an industry it aborts the creation of jobs in other industries. As the economy is unable to adjust to the efficiencies of production, resources are artificially directed to the less efficient endeavors. Those resources are unavailable to the industries that need them to grow. The government assists workers in inefficient industries by erecting trade barriers, but in doing so it harms persons who are now unemployed because new industries that would have employed them have been aborted by the strangling effect of those laws. Seen in this light, workers who benefit from protection are not deserving of transfers of wealth in their favor, because protection is harming other workers in that society. Just as the firms obtaining protection get rich at the expense of foreign firms, so the workers in protected industries keep their jobs at the expense of the poor, in their own countries.

In truth, labor unions (and their management) agitating for protection are crony capitalists. A crony capitalist economy is one in which success in business depends on close relationships between business people and government officials. Success here is measured, for workers, by keeping their jobs. But success is not only success against foreign competition. Protected workers coercively achieve success at the expense of similarly situated workers who have not enlisted the coercion of the state. The public easily believes that the business owners who obtain protection are crony capitalists. The truth is that their workers are crony capitalists too.

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The Syrian Bombings and Just War Theory, Part II http://bleedingheartlibertarians.com/2017/04/syrian-bombings-just-war-theory-part-ii/ http://bleedingheartlibertarians.com/2017/04/syrian-bombings-just-war-theory-part-ii/#comments Fri, 14 Apr 2017 16:31:11 +0000 http://bleedingheartlibertarians.com/?p=11732 Our previous posts disclosed the central disagreement that Bas and I have regarding humanitarian intervention.  Bas thinks that the commander’s ex ante decision to intervene can almost never be justified...

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Our previous posts disclosed the central disagreement that Bas and I have regarding humanitarian intervention.  Bas thinks that the commander’s ex ante decision to intervene can almost never be justified because the prospects of success are too low. I believe, in contrast, that such decisions can sometimes be justified. Here’s my position:

I distinguish between three ideas: the objective wrongness of an event, the permissibility of the decision to bring about the event, and the blameworthiness of the agent in bringing about the event.  An act is wrong, not only when the agent negligently disregards evidence, but also when he is duly diligent about the evidence, believes that evidence, but those beliefs are mistaken. In the latter case, however, he will be absolved from blame. Impermissibility is determined by the following test: an action is impermissible either (1) if the agent was negligent about the evidence, or, (2) if he was diligent about the evidence but the decision was objectively wrong, or (3) if both.  This standard yields the following combinations:

 

1. Diligence+ success Objectively right Permissible Not blameworthy
2. Diligence+ failure Objectively wrong Impermissible Not blameworthy
3. Negligence + success Objectively right Impermissible Blameworthy
4. Negligence + failure Objectively wrong Impermissible Blameworthy

 

A humanitarian intervention will be permissible only in the first case.  Thus, the Syria bombings will be justified if (1) they had a just cause; (2) the commander, Trump, weighed consequences responsibly, and (3) the bombings satisfied proportionality, that is, they turned out well. In my estimation, (1) is satisfied; there are serious doubts about (2), and there are some doubts about (3). If (2) is not satisfied, then I will agree with Bas that the bombings were impermissible even if they turn out all right. But, for the moment, as I wrote in the initial post, I reluctantly believe that the action satisfied the test (I am somewhat comforted by the fact that Trump is surrounded by competent commanders.) Notice that it is possible to say, on my account, that the intervention was objectively right (it turned out well; say it deterred future crimes), even if it was impermissible.

In the book I respond in detail to Bas’ quite compelling ex ante objection. Here is my third and final reason to reject his approach:

 

My third and final reply appeals to reflective equilibrium. If Van der Vossen is right, he should be a pacifist. The uncertainties that worry him are present in all wars and revolutions; it is not possible to invoke them only to question humanitarian wars. The Allied decision to fight Germany in 1939 was impermissible, as was the United States declaration of war against Japan in 1941. Abraham Lincoln should not have fought the Civil War, and rebel groups facing tyrants are similarly misguided. On this view, just cause is virtually irrelevant, as it is precisely in those cases when the objection here discussed operates. Because I do not believe that all wars are unjust (I am not a pacifist), I cannot accept that position. In other words: one of my prior fixed points is that some wars are just. The position we are discussing, if valid, indicts all wars, past, present, and future, and is implausible for that reason.

In concluding, I should point out that, although I’m unable to accept Bas’ argument, it is the best I have encountered against humanitarian intervention.

 

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The Syrian Strikes and Just War Theory http://bleedingheartlibertarians.com/2017/04/syrian-strikes-just-war-theory/ http://bleedingheartlibertarians.com/2017/04/syrian-strikes-just-war-theory/#comments Sat, 08 Apr 2017 20:21:06 +0000 http://bleedingheartlibertarians.com/?p=11714 On April 6 President Trump ordered missile strikes against a Syrian airbase ostensibly in retaliation for Al Assad’s lethal gassing of civilians three days earlier. Bas van der Vossen and...

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On April 6 President Trump ordered missile strikes against a Syrian airbase ostensibly in retaliation for Al Assad’s lethal gassing of civilians three days earlier.

Bas van der Vossen and I have recently finished writing our book Debating Humanitarian Intervention, appearing with Oxford University Press later this year. There we address the foundational issues pertaining to the justification of wars ostensibly aimed at rescuing persons from severe tyranny, civil war, and other forms of oppression. We take opposite sides in this debate. I think that sometimes these military engagements are justified; Bas thinks they virtually never are. With the Syrian incident fresh in our minds, we thought we would write some posts anticipating our respective positions on this very topical issue. This is the inaugural post.

Literally minutes after the strikes, the blogosphere became awash with legal analyses of the strikes under both constitutional and international law. Some of those analyses are interesting, but for jurisprudential reasons I detail here and here, I regard them as inconclusive at best, and as disguised advocacy at worst, so I will not pursue them here. Rather, I examine the incident under the lens of Just War Theory. JWT addresses the question whether the strikes are morally justified.

Under JWT a military action is justified if it meets (at least) two conditions: the cause must be just, and the action must be proportionate, that is, it must not cause excessive damage.

Just Cause

A war is just if, and only if, it is in defense of persons. If it is a war in defense of my compatriots it is called national self-defense. If it is a war in defense of others it is called humanitarian intervention. The United States government did not conduct the Syria strikes to defend Americans, so it was not a war in self-defense. Ostensibly, President Trump ordered the strikes as retaliation for the massacres perpetrated by the Syrian regime with chemical weapons against civilians. This action by Al Assad qualifies as a crime against humanity  -a new one, as on this he is a notorious recidivist. Was this, then, a humanitarian intervention? A possible skeptical answer is that the massacres had already occurred, so the strikes are objectionable because they are simply punitive, and not aimed at stopping an ongoing atrocity. Some believe that punitive wars are not permissible. Without resolving that issue, it is reasonable to interpret the strikes as aiming to deter the Syrian regime from committing future crimes against humanity, given that the perpetrator now knows that dire consequences would follow. The just cause, then, is not to stop ongoing atrocities but to prevent future ones. In that sense, I think the strikes qualify as humanitarian intervention. A problem remains, however: in order for the United States to have a just cause, the strikes must effectively deter the Syrian regime. If Al Assad ignores the threat and persists in his criminal ways with no consequence, then the strikes would have been for naught, an unjustified use of force.

Proportionality

However, having a just cause is not enough, as those of us who thought the United States had a just cause in Iraq in 2003 painfully learned. In addition, the act of war must not cause excessive damage. This simple notion conceals great complexities. What is excessive damage? At the risk of oversimplifying, war damage can be classified into (at least) two categories:

Collateral damage comprises the foreseen (but not directly willed) deaths and maiming of innocent persons during the war.

Supervening damage comprises the foreseen (but not directly willed) bad consequences , including killing and maiming of innocent persons, that occur after the war but can be reasonably traced to it.

To take an example: the collateral damage of the Iraq war comprised the deaths of Iraqi civilians as a result of the hostilities. The supervening damage comprised the harm done by the emergence, after the war, of jihadist insurgency ; by the vacuum of power that, it is thought, allowed ISIS and other terrorists to thrive; and, perhaps, by the Syrian civil war. These bad effects must, of course, be causally connected to the war in Iraq for them to count in the proportionality calculus.

Both collateral and supervening damage must be proportionate to the realization of the just cause. If a military engagement kills more innocents than the expected number of innocents that the engagement seeks to save, then it is collaterally disproportionate. If a military engagement produces bad ulterior consequences that result in the deaths of more persons than were actually saved, then it is superveningly disproportionate. This is not a simple count of lives lost and saved: sometimes the moral urgency of the cause allows for greater damage.

Applying these metrics to the Syrian airstrikes, we can see that there was little collateral damage. The airstrikes destroyed an airport, but were otherwise quite surgical. It is likely, then, that the airstrikes complied with the first prong of the test.

Estimating supervening proportionality is much harder. It requires an accurate prediction by the commander that his decision will not trigger catastrophic events. In the case of the Syria airstrikes, the truth is that we don’t know. If the military action induces Russia to adopt a global hostile attitude and subsequent wars ensue, then it is possible that the airstrikes will fail the test of supervening proportionality. Imagine that as a result of the airstrikes Russia hardens its support for Al Assad and enables him to perpetrate new atrocities. Or imagine that the airstrikes precipitate a proxy war between Syria and Iraq, each counting Russia and the United States as their respective protectors. Or image that Russia, in retaliation, invades Estonia.

So, unfortunately, judging the Syria airstrikes under JWT is not possible until these consequences are known. It is too early to tell. Yet this uncertainty raises a new and perplexing problem. Donald Trump ordered the strikes. Is he culpable of recklessness if he didn’t pause to calculate the consequences? What if he did such estimation as best he could? In that case, if things go well, we will tend to say he was right. But what if things go wrong? Will he be retroactively culpable, even if the estimation of risk was sound? These are difficult issues, because they pose a dilemma. If the probability of (justified) expected damage is less than 1, then the commander can never be sure that his action is right. Bas’ view, as I understand it, is that the ex ante odds of an intervention working out well – insofar as we can know them – are too poor. But this means commanders almost never are permitted to act. No war or revolution (since the same uncertainty arises in violent revolution) is ever justified. More: defensive force is never justified either, since we cannot be sure that defending our homeland will not cause a nuclear holocaust.

I choose to follow the intuition that, despite the unavoidable uncertainty, some wars, and hence some humanitarian interventions, are justified. Commanders must make calls on the spot. Sometimes they will be vindicated, sometimes they won’t. But the pacifist alternative according to which we should never act is, for me, impossible to swallow.

So, with trepidation, I suggest that given the information available and subject to the two conditions I specified (that the strikes must be an effective deterrent and that they must not make thing worse in the medium and long term), Trump did the right thing.

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Does Constitutional Law Exist? http://bleedingheartlibertarians.com/2017/03/constitutional-law-exist/ http://bleedingheartlibertarians.com/2017/03/constitutional-law-exist/#comments Thu, 16 Mar 2017 20:00:24 +0000 http://bleedingheartlibertarians.com/?p=11668 A federal judge in Hawaii has temporarily blocked the government’s revised Executive Order on immigration. I‘m glad he did this, because I regard the EO as wrong and counterproductive. But...

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A federal judge in Hawaii has temporarily blocked the government’s revised Executive Order on immigration. I‘m glad he did this, because I regard the EO as wrong and counterproductive. But I am worried about a larger issue. I have taught Foreign Relations law for many years (even though it is not one my research areas). There is little question in my mind that legal precedent supports the constitutionality of this order. I will not bore readers with legal technicalities, but it is clear to me that, under those precedents, many equal-protection restraints that apply to governmental acts in most areas do not apply to immigration. The government may target groups if doing so responds to a genuine national security concern. Moreover, courts traditionally have refused to second-guess the Executive on areas where the President, implementing a congressional statute, has well-established discretion. Immigration is one of those areas (see a summary here, chapter 3). Please understand me: I don’t support these precedents either; on the contrary, I support virtually open borders. But the precedents are well established.

My constitutional law colleagues tell me that law is a tool, not an end in itself, and it really doesn’t matter how sound the decision is, as long as it achieves the worthy goal of stopping this bad order, or the worthy goal of resisting this bad president. Maybe so. But then I have no reason to listen to these same colleagues’ ponderous doctrinal analyses where they pretend that precedents support their chosen outcomes.

I conclude that there is no constitutional law. It is all fancy, adorned, jargonistic advocacy. Lawyers and judges mislead the public into believing that there is such thing as legally-binding precedent that does not depend on the desirability of the outcome. There is no such thing. Lawyers merely reverse-engineer their arguments in order to tailor them to predetermined outcomes and then pretend that the reasoning was objective.

At the sunset of my career, I must confess that, at least with regard to constitutional law, the nihilists, the Critical Legal Studies folk, who long argued that law is an illusion (only to be laughed off by us, the rationalists), were essentially right.

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Intervention and Revolution http://bleedingheartlibertarians.com/2017/01/intervention-and-revolution/ http://bleedingheartlibertarians.com/2017/01/intervention-and-revolution/#comments Fri, 13 Jan 2017 23:03:58 +0000 http://bleedingheartlibertarians.com/?p=11510 I’ve been writing lately about war. Bas van der Vossen and I have a volume upcoming at Oxford University Press entitled Debating Humanitarian Intervention. Today I published a post over at...

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I’ve been writing lately about war. Bas van der Vossen and I have a volume upcoming at Oxford University Press entitled Debating Humanitarian Intervention. Today I published a post over at the Stockholm Center for the Ethics of War and Peace summarizing my views on the relationship between intervention and revolution, presented in Chapter 3 of the book. Here’s the link. An excerpt:

It is widely held that violent revolution can be justified to end tyranny. It is equally widely held that foreign intervention is not justified to end tyranny. Intervention is justified, if at all, in a much narrower range of cases – perhaps to halt massacre or genocide, but not to end ‘ordinary’ oppression. On this view, state oppression may be sufficient to furnish internal revolutionaries with a just cause for violence, but simultaneously insufficient to generate a just cause for outside parties to do the same. Can this difference be justified? … I answer in the negative: the just cause for humanitarian intervention is exactly the same as the just cause for revolution, and both are subject to the same principles of proportionality (call this the equivalence thesis.) On my view, there may be cases in which intervention is impermissible while revolution is permissible, but this is simply because, for contingent reasons, the intervention will be disproportionate while the revolution will not. Their differential moral status does not depend on a difference between their respective just causes.

 

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Some Thoughts on Identity Politics http://bleedingheartlibertarians.com/2016/11/thoughts-identity-politics/ http://bleedingheartlibertarians.com/2016/11/thoughts-identity-politics/#comments Sun, 27 Nov 2016 17:22:37 +0000 http://bleedingheartlibertarians.com/?p=11437 I have been thinking lately about identity politics. More precisely, why so many people deeply committed to nondiscrimination nevertheless are uncomfortable with identity politics. An initial difficulty is to define...

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I have been thinking lately about identity politics. More precisely, why so many people deeply committed to nondiscrimination nevertheless are uncomfortable with identity politics.

An initial difficulty is to define identity politics. Here’s the definition in the Google dictionary: Identity politics is “a tendency for people of a particular religion, race, social background, etc., to form exclusive political alliances, moving away from traditional broad-based party politics.” (For expository convenience, I will group these identity criteria under the terms “ethnicity” and “ethnic status”). This definition focuses on political alliances. An obvious criticism of such tendency is to observe that people can pursue worthy goals more effectively by forming broad-based alliances (some have criticized Hillary Clinton’s campaign on that score). Such approach is entirely pragmatic: political goals are more likely to be achieved if more people participate in the movement.

A second definition of identity politics is the idea that ethnic groups are entitled to benefits (usually coercively obtained) by virtue of their ethnic status. At first blush, this does not seem very appealing: to say that I’m entitled to a benefit B by virtue of my ethnic status sounds, well, not nice. But, of course, identity politics understood in this way, to be persuasive, must be linked to some other narrative. One is a history of past injustice. If so, my claim that I am entitled to a benefit B by virtue of my being a Latino is a short-hand for the claim that I am entitled to B as compensation or redress for the wrongs inflicted on Latinos now or in the past. Being Latino, by itself, does not suffice to generate the claim. A common criticism of this position is that these claims are hard to sort out, and often result in benefitting or punishing undeserving people.

A very different narrative is diversity, the current dominant rationale for ethnic preferences. I, a Latino, am entitled to a benefit B because possessing that benefit will promote a public good, diversity in the workplace or the classroom, or diversity among those who will get the benefit B. A common criticism of this position is that, in the real world, it applies only to groups that have political clout. It does not apply to everyone who can contribute to diversity, such as conservatives or libertarians, for example, or even to ethnic groups out of favor. If the claim is amended to embrace all diversity, then it ceases to be identity politics (it still may be open to objections, but those are beyond my concern here).

There is another dimension of identity politics. It is the idea that who states a proposition is relevant to the truth of that proposition. This is mistaken. “As a Latino, I support affirmative action!” is a non-sequitur (or a tautology simply saying that I support affirmative action). The validity of an argument depends on the facts and sound reasoning about those facts. They do not (cannot) depend on who the speaker is. Sure, someone may be prone to identify a new argument because of who she is. As an example, feminists did a great service when they showed why the common law of rape was unjust. But that speaks to what Popper calls the context of discovery of a proposition. It doesn’t speak to the context of justification of that proposition. So, one who says, “as a Latino, I believe X, Y, and Z” is invoking an irrelevant reason in favor of the truth of X,Y, and Z. The correct statement would be: “I believe X, Y, and Z are true for reasons A, B, and C. And I was motivated to think about X, Y, and Z because I am a a Latino.”

These are preliminary thoughts. A more definitive assessment of identity politics requires further research into each of these versions of the concept and the available objections.

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Private Wars http://bleedingheartlibertarians.com/2016/10/private-wars/ http://bleedingheartlibertarians.com/2016/10/private-wars/#comments Sun, 30 Oct 2016 16:03:02 +0000 http://bleedingheartlibertarians.com/?p=11297 As I write these lines, innocent civilians are killed or threatened by rulers, warlords, or other groups throughout the world. As some of you know, for many years I have...

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As I write these lines, innocent civilians are killed or threatened by rulers, warlords, or other groups throughout the world. As some of you know, for many years I have argued that humanitarian intervention (the use of force to save lives in such situations) is sometimes permissible. A standard libertarian objection is that a government should not force people to subsidize wars in defense of others (these objectors may or may not think that a government can force people to subsidize wars in self-defense).

Here’s a reply to the objection: those private citizens who wish to save lives in other nations should themselves hire professional soldiers (mercenaries) to do the job. In that way, rescuers internalize the costs of their humanitarian impulses. No standing army or conscription is needed, and citizens cannot possibly object to humanitarians putting their money where their mouth is.

My proposal involves filibusters and mercenaries. Filibusters are persons who wage unauthorized wars -that is, unauthorized by the state. Mercenaries are persons who offer military services for a price. So, I suggest that filibusters (who are private persons) can hire mercenaries (who are also private persons) to put an end to massive crimes in other states. Take them in turn.

1) As indicated, filibusters are persons who wage unauthorized wars. Under traditional just war theory, private wars are impermissible. Here is St. Thomas Aquinas: “It does not pertain to a private person to declare war, because he can prosecute his rights at the tribunal of his superior; similarly, it does not pertain to a private person to summon the people together.” (Political Writings, Cambridge U. P., 240Just as the government is in charge of punishing criminals within the state, so it is in charge, as Aquinas says, of using “the sword of war” to protect the state from foreign enemies. The idea, then, is that the state has the monopoly of both domestic and external force. Starting a private war usurps that monopoly.

But why can’t private persons organize themselves and travel to a territory to help victims of genocide? Such initiatives will solve a pervasive problem in the justification of war: the state’s forcing unwilling citizens to participate in or subsidize a humanitarian intervention. There is sense in the common say: “Do you care about the Congo victims? By all means, organize your own army and intervene there on your dime!” (In fact, a good deal of the hate mail I receive starts exactly like that). The filibuster does not impose on others the costs of intervention. It is no answer to say that in today’s world private wars are unrealistic and unfeasible and the state is the only entity capable of starting a humanitarian intervention. The issue is why, assuming some wars are just, filibustering should be prohibited as a matter of principle.

Filibustering, of course, is not well regarded by international law, which makes governments liable for any military operation. But this is just more evidence that international law overprotects governments. A justified war is a form of justified defensive action (humanitarian intervention is also defensive action, an action in defense of persons). The requirement that actions by individuals in defense of people in foreign territories should be authorized by the state of which those individuals are nationals is, I think, arbitrary. If anything, the requirement that only the state can initiate war makes even less sense in humanitarian intervention. For in that case, the defensive action by filibusters on behalf of foreigners occurs outside the jurisdiction of the state of which the filibusters are nationals. In national self-defense, the state arguably has authority in its territory to lead and coordinate the defensive war. But that authority does not reach those who fight to save others in foreign lands. The idea that the state is the only entity that can or should start a war is just another statist prejudice.

Filibusters can be billionaires imbued with the desire to rescue victims of genocide, or grass-roots organizations that crowd-fund humanitarian military efforts through small donations from many like-minded people.

2) Mercenaries are private entrepreneurs who offer military services. As long as they have existed (since Antiquity) they have been despised by governments, scholars, and the general public.

However, an unprejudiced look reveals that most of the reasons for this hostility are questionable. It is argued that because killing for money is morally wrong, it is impermissible to hire people who do that. But surely enlisted soldiers kill for money too: it is their profession. Arguably, enlisted soldiers risk their lives not only for love of country but also for solidarity with comrades. If this is true, then it seems equally true of mercenaries, who presumably take pride in what they do and feel solidarity for their comrades also. Monetary compensation is one element in a richer range of motives, many of which are self-interested. Enlisted soldiers receive salary, benefits, prestige, and social esteem. All of these motives are self-interested, yet a romantic tradition has emphasized the honor and glory of fighting for one’s country –I call it the Patriotic Prejudice. Because this altruistic motive seems to be lacking in mercenaries, they are supposed to be bad people. But once we disaggregate motivation in both cases and we see the Patriotic Prejudice for what it is, the two cases do not seem that different.

This proposal is only partly tongue-in-cheek. I think that the only reason why it sounds so ludicrous is that we have been indoctrinated with the idea that only nations can wage honorable wars. I conjecture that for centuries rulers have peddled the Patriotic Prejudice to motivate subjects to give their lives for the rulers’ benefit.

 

 

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