Archive for March, 2010
Due Process versus Desired Results
Tibor R. Machan
Human justice is directly concerned with process, indirectly with results. This appears to have escaped President Barack Obama, especially during the recent political battle over whether Obamacare may be implemented or is it perhaps in violation of the U. S. Constitution. And was it perhaps enacted without regard to justice, to due process?
I am no constitutional scholar but it seems to me that in America it is perfectly proper to inquire about whether a piece of legislation has been enacted in a way that does violence to due process, the method of making law that free men and women are due. So when during the final hours of the debate about Obamacare Mr. Obama himself derisively dismissed the concern of many about the process by which it was being made into law–for example in his 11th hour interview on Fox TV–the American citizenry gained an important insight into just how his administration plans to govern. What the president was insisting upon is that what matters to him and his team are results, not process. He wanted the bill to succeed, whatever process would bring this about and it is quite likely that this is how he plans to pursue the rest of his agenda.
Now life, of course, is itself a process. Human life in society manifests itself in innumerable processes, aiming at innumerable results. There is only one common result all human life ought to aim for but it comes in a great variety of forms, which is human happiness. This is supposed to be the reward of the morally good life of the individual human being. For this reason a good society has a system of legal justice that protects the processes whereby men and women will not have anyone around them obstruct their pursuit of happiness. It is the protection of that pursuit that is crucial to the law, not the result itself which is the citizenry’s own business, their own task to achieve.
A parallel situation obtains concerning attempts to adjudicate dispute among members of the citizenry. A criminal trial is such an adjudicative process. And here again the result is only indirectly the concern of the legal system, the process is the crucial factor. And this is clear from the fact that the system often leaves the result in the hands of a jury, private citizens with no political and legal office. The system is supposed to ensure that every trial follows sound procedures–due processes of law!
But the tenor as well as the aims of our legal system have been changing. Politicians, including their legal appointees, are focused not on process but on results. The country is in danger of becoming a semi-civilized lynch mob. This could be appreciated from watching the news reports of all the fuss associated with the how dismissive President Obama was toward concerns expressed about the process that finally produced Obamacare.
And all this should not surprise us too much. Although the United States of America was conceived in terms of a legal system focused on due process, in time the government began establishing too many specific goals for us all to pursue. If the proper processes of the law do not produce an educated public, relief for the poor, environmental purity, total racial harmony, decent speech, or health insurance for all, then let’s just drop them and charge ahead anyway.
When such a role is conceived for our government, is it surprising that the people are willing to throw out due process as they protest the ensuing results? What many wanted from the recent debate about Obamacare is to make sure that bringing about the result does not do violence to individual rights (as, for example, coercing people to buy insurance certainly would). Did the American political process manage to abide by the principles to which all political maneuvers must conform? Or did those who wanted Obamacare proceed without regard for the principles on which the government is supposed to rest?
In the eyes of most protesters, for example members of the Tea Party, it could very well look as if due process was tossed to the side. Supporters of Obamacare made it clear they couldn’t care less about how the legislation made it into law so long as it did so somehow, with some semblance of legitimacy. This is a very ominous sign of where the country is headed. Hugo Chavez would find it promising.
‘Government’ vs. ‘State’
Concepts such as that of “government,” like those of “democracy,” “law,” “justice,” “freedom” and “love,” to cite just a few, is what W. B. Gallie, called “essentially contestable” (see his “Essentially Contested Concepts”, Proceedings of the Aristotelian Society, Vol. 56 [1955-56]). I heard the characterization from Alasdair McIntyre back in the mid-70s at the Creighton Club, the New York State philosophical society, although not applied to “government” but to a slew of other concepts that are constantly being debated.
Of course, from within specific philosophical positions these concepts are pretty firmly defined, so that, say, in classical liberalism “freedom” is usually defined to mean “absence of coercive force” or “not being subject to initiated force” while from within Marxism it’s taken to mean “absence of necessity.”
Within libertarianism, though, the concept “government” is still unstable. Anarcho-libertarians, who argue for something they dub “competing legal systems” “or competing defense organizations,” claim that the concept “government” means, essentially, “a monopoly of legal services over a given territory.” This isn’t as clear cut as one might wish. Are they talking about legally protected monopolies or monopolies plain and simple, which could mean very competitive organizations, indeed—for example, a department store sitting on a large piece of private property that has no competitor right then and there but is amply competed with by stores in the nearby vicinity? Yet where it stands, it’s a monopoly, in a sense. Or an apartment house—it too stands alone and to rent a competitor’s dwellings, one needs to move.
There are libertarians called minarchists, with whom I am usually linked—along with Ayn Rand, John Hospers, the late Robert Nozick and during the last few years of his life, Roy A. Childs, Jr. (although he also penned a famous piece, “The Contradiction in Objectivism,” back in 1968, for Rampart Journal, in which he announced his dissent from Rand’s minarchist position). I disagree that governments may not compete and may coerce anyone. To be fair, neither did Ayn Rand agree that governments may coerce anyone—she, for example, denied that taxation is permissible while also claiming government is, thus disowning the characterization of government by perhaps the most famous anarcho-libertarian, Murray N. Rothbard.
But as Gallie’s point makes clear, this debate as to what is the most sensible, reasonable definition of “government” is likely to continue for a long time, if not indefinitely. In my own view, for example, the institutions anarcho-libertarians support are governments in every important respect—they are administrators, maintainers, and protectors of bona fide law within human communities. What critics claim is that such administration, maintenance and protection do not require contiguous spheres of jurisdiction but could work as a sort of crisscross system.
From a few historical cases, in which such a system had been in place—in ancient Iceland, for example—these disputants conclude that as a general rule governments could operate quite happily, smoothly, with no judicial failures—such as inability to arrest prosecute criminals or to render effective service when citizens (or clients) seek police protection—serving crisscross localities. OK, so this is an interesting debate and worthy of pursuit. Either way we could get to government, however.
My one beef with many who reject this idea is that they refuse to admit that “government” need not involve coercion at all. They could just as easily dispute that the crisscross system involves law, properly understood, only, perhaps, various rules or edicts or policies. And even more problematic is their all to frequent use of the concept “state” as a substitute for government.
For example, in a recent letter to Liberty magazine, Professor Roderick Long of Auburn University sets out to take issue with Bruce Ramsey’s claim that Hernando “de Soto’s work . . . shows that a healthy economy crucially depends on property titles, identity records, and other institutions of formal law” and is thus “a standing refutation of libertarian anarchism.”
As Long proceeds in his letter, however, an interesting switch takes place. He contends that “as the research of scholars like Bruce Benson, Tom Bell, and others has shown, history is filled with examples of legal systems that were perfectly formal—complete with official procedures, court records, and the rest—and yet private, competitive, and non-governmental.” He states that “in late medieval Europe . . . the commercial law known as the Law Merchant outcompeted the government legal system . . . .” And then, from this, he jumps to the following conclusion: “Hence the state is not necessary for formal law.”
I don’t know about Bruce Ramsay, but I certainly would not conclude from de Soto’s work that the state is necessary for anything, although I would agree that governments may well be. Because what Long and all those other scholars show, as far as I am able to discern, is that in medieval Europe there were different kinds of governments, some of them coercive and others not.
OK, so what’s wrong with this conclusion? I assume critics would now claim that I am twisting the concept “government” to suit my goals, namely, to defend governments as quite possibly a just institution administering, maintaining and protecting bona fide law. I dispute this—I claim that they are wrongly claiming that governments must be unjust and so the concept ought to be abandoned by all right thinking folks. But one way they support this is by equivocating between “government” and “state.”
It is well known that the concept “state,” especially as it figured in the writings of Hegel and Marx, is not the same as “government.” It is, instead, the entire organized community, akin to what Aristotle meant by “polis.” The state does, then, call to mind, quite sensibly, a fully coercive leviathan, a pyramid-shaped, top down system of coercive regimentation of nearly all facets of human community life (apart from those deemed not essential, although even those would be subject to regimentation if the agents of the state so chose).
Now I am not going to resolve any of the main disputes here but I wish to make just one little final point. To equivocate between “government” and “state” is wrong and even dirty pool. It would be similar dirty pool if those critical of anarcho-libertarians referred to what the latter advocate as “chaos,” recalling not the arguably esoteric conception of anarchy individualist and libertarian anarchists have been developing but the position of those old fashioned, classical anarchist who meant by the term “lawless society.”
Of course, when emotions run high—as they tend to be in discussions among people who are nearly in full agreement and know that they are more likely to be able to land a blow at those in close range than at those who don’t even pay attention to their views—it’s tempting to engage in hyperbole.
Labeling an allegedly “near pure” libertarian opponent a “supporter of the state” or “a statist” does carry a painful sting. One would hope, however, that just this temptation is resisted by serious scholars.
March 15, 2004
What Of Pre-exiting Conditions?
Tibor R. Machan
Here is what some would consider a hard case: Someone very ill is attempting to purchase insurance but companies refuse to provide it because they have a pretty good idea that covering the illness will cost very big bucks, way above what the insured and others with similar conditions can help cover. The policy costs far less than what they expect to have to spend on the sizable number of patients in this situation, so they don’t want to take on this expense.
This is a picture that may seem to tell just one story, namely, how greedy, uncaring, narrowly self-interested are those who own and run insurance companies. But it could also tell the story that the applicant did not think to buy insurance early enough in life when the malady hadn’t occurred yet. Another story therein could be that the malady came about through risky or outright self-destructive activities on the part of the applicant–excessive drinking, excessive smoking, dangerous sports, a hazardous lifestyle in general. Or plain bad luck could also be involved–even the most careful among us can meet with unforeseen mishaps and unless we prepared for them early enough in life, they will cost a bundle to deal with and one might be on one’s own to do this now.
No one else but a loved one is morally–let alone legally–obligated to help out in such cases, if even he or she! In certain fields what the prospective patient is doing is called dumping–as when a manufacturing plant dumps its waste into the air mass or water ways for others to have to deal with it. In the area of environmental ethics and law, this is harshly condemned, by the way. But why not say, instead, “How selfish of us to want firms to take care of their own waste”? Yes, the waste comes with the task the company is involved in, producing cars or steel or whatever, but that is where pricing comes in. Charge customers enough to cover cost and then some, to make a profit, too. Or don’t take on tasks you cannot handle economically. And this is just the attitude of many insurance company managers and owners!
Individuals who grow up in relatively advanced societies can usually come to be aware of life’s risks early enough to take precautionary measures, such as purchasing insurance before maladies come around. Indeed, that’s the point of insurance. The companies make big bucks because although the possibility of maladies exists, the probability of them is not that great. Many more people buy insurance than need to draw on the funds available to them from it in their lifetime.
But even quite apart from all this, which is but common sense, however unfortunate a situation one may be in, it is morally obscene to demand that others fix it at their expense. Again, think of pollution–we expect the polluters to handle it, not their neighbors even if the pollution came about through doing very worthwhile things! These others have their own problems to attend to and apart from intimates for whom they care and for whom they may actually be directly responsible, all contributions to the well being of strangers has to be a matter of charity or philanthropy. And these may not be coerced out of anyone–it stops being charity and giving then and becomes straightforward larceny.
Sure, once all this is grasped maybe drastic changes in how one goes about taking care of oneself need to be adopted. But others are not one’s involuntary servants, slaves or serfs. They are supposedly free and sovereign persons and may make decisions about how to live their lives without others intrusions. Even the totally accidental mishap of others cannot amount to a source of legally enforceable obligations for them!
Well, yes, that used to be the idea of the American way of life but sadly not with the bulk of the current crop of politicians running things and their cheerleaders urging them on.
Tibor R. Machan
Is the just signed federal health care legislation constitutional? Is it consistent with the principles of a free society? Is it what President Obama claims, consistent with the principles of this country? No. The bill is a straightforward advance–progress???–toward socialism, akin to that familiar to us in the former Soviet colonies and some other societies that believe in the top down regimentation of everyones’ life.
The central claim of socialists is that only society exists, not individuals who make it up. They are like cells in the body of the collective whole. We as individuals do not exist and claiming that we have the right to run our own lives is akin to one’s finger or foot claiming it needs to be left free to do its own thing. Seriously–this is the real meat of socialism.
But there is less Draconian socialist measures being proposed, including in the recently signed bill. A favorite retort to criticism of the mandate for us to purchase health insurance is that, “What’s the problem, we already have this with auto insurance in many states of the union.” Indeed, there may well be some serious legal challenges forthcoming to the just signed health care legislation arguing that it is outright unconstitutional to force citizens to purchase insurance. It is as if there were a law require one to by apples to sandals or cars. That would really be a drastic violation of our right to liberty.
But don’t states already do this when they require vehicle drivers to purchase insurance before they get on the road? So is there not a precedence to the new mandate?
In plain language, no. The reason is relatively simple. Most of the roads throughout the USA are government owned and administered. The government, in other words, owns the roads–or the citizens do with governments doing the managing, kind of like apartments are managed by other than the owners but with the latter’s authorization. So, then, presumably the roads around the country belong to the citizenry and are managed, with their authorization, by the government (e.g., the Department of Motor Vehicles and such).
But as with apartments, so with roads: only the renters (drivers) are under the jurisdiction of management, not everyone. Only those who choose to drive on public roads are subject to the government’s mandate that they carry car insurance (and whatever else, such as having their cars equipped with mirrors and bumpers). In short, only those using the roads must have the requisite insurance, not those who ride bicycles or walk or ride a horse on private property.
But that’s not what’s in store for Americans with the new socialist health care legislation. It forces them all to have insurance approved by the federal government, even if they would rather take different measures to deal with the prospects of ill health. Some may want to stash away some of their earnings and rely on this when they get sick. Some may choose to make sure they don’t get sick too often, at least not very sick, by taking exceptionally good care of themselves. Some may not mind getting sick and dying from it, given how much they prefer their hazardous life style (rightly or wrongly, as free men and women should be able to). Some may even believe that relying on physicians violates their religions liberty and is immoral–some Christian Scientists, I am told, hold this view–so they ought not to buy, let alone made to buy, health insurance as a matter of the religious freedom.
Bottom line is that the idea of coercing people to insure themselves is anything but compassionate, anything but humane, anything but constitutional in a free country. It amounts, plainly said, to involuntary servitude to some other people’s vision of how one ought to live. That is not what a free society is all about.
Not that most Americans aren’t already being coerced into supporting various measures of which they morally disapprove–like wars, like abortion for some, like funding other people’s welfare and education. So the outrage with the current advance toward socialism is phony in a great many instances. But there is no justification for believing that requiring drivers to carry insurance serves as a precedence for forcing them to buy health insurance. Apples versus oranges.