Posts tagged perfect v. good

Column on The Adversarial System

In Defense of the Adversarial System
Tibor R. Machan

Every once in a while I get sucked into defending the way the legal system aims to secure justice in the criminal law. In particular, why do the accused or suspected criminals get to be defended so vigorously, as if they were always victims of perpetuation rather than pretty much guilty as charged. Defense attorneys, especially, get a lot of flack if they accept as clients people everyone “knows” are guilty as sin. How could they do such a thing? Isn’t that immoral? Does it not in fact make the profession corrupt?

I keep insisting that this normally isn’t so at all. Defense attorneys are committed, professionally, to provide the best defense to anyone who hires them because the system is supposed to work as an adversarial one, whereby justice is supposed to emerge from a debate as to what is the truth of the matter, who did what and was it a crime and how responsible is the defendant if at all. It resembles the Socratic method of inquiry, study or research whereby questions are raised and answers proposed, then criticized, on and on until one reaches the answer that can withstand all reasonable objections for the time being! In the end, given the available context of information and analysis, the result is as good as it gets. Wanting more is unreasonable, even irrational!

So no one can have a rational position on the issues that gave rise to the trial prior to its taking place (and the assorted associated procedures). Sure, people can speculate, even bet on the result that’s likely to be reached once the entire process has played itself out. But before that no one is supposed to know whether the accused defendant is guilty or not, not as far as the law is concerned. The way the system works is supposedly a very effective one for purposes of reaching a sound conclusion. The jury, for example, will have heard pros and cons and all the evidence and arguments for both sides and then can take it upon itself to render a just verdict.

Nor is the justice to be achieved perfect, incontrovertible. That’s what appeals are about. Only once the whole processes has been deployed is there a best result available and that result is not to be regarded as timelessly unassailable, forever the best. No results of human inquiry, be it in ethics, law, science or philosophy can promise a final resolution, not until time has come to an end! That is the human condition and unless someone has the word of an omniscient God to consult about it all, no one can reasonably want anything better.

More generally, human knowledge ought not to be expected to produce the last word on any subject. That’s not knowledge but omniscience! We live in an unfolding universe and whatever knowledge we manage to gain of it must accommodate that fact and not aim for more. Otherwise skepticism and cynicism arise, the belief that no one can know anything and that all human efforts are useless and futile.

Some people would delight in spreading such an idea around since then they might get the chance to convince us that they do have special abilities, mystical insight and such, that entitles them to lord it over the rest of us “mere” humans. But it is ruse since no one has such abilities. Knowledge, the proper kind, needs to be earned through hard work and there will always be room for updating it as time unfolds and new information comes to light.

Here as in many other areas of human affairs it is once again best to remember that the perfect or ideal is the enemy of the good! Wishing for the impossible dream will prevent one from obtaining the very best that’s humanly possible. And that should be all counts be enough.

Column on More Skepticism about Property Rights

Recent Skepticism About Property Rights

Tibor R. Machan

In a wide ranging review essay of Amartya Sen’s recent ambitious book, The Idea of Justice (Harvard, 2009), Moshe Halbertal, a philosopher from the Hebrew University, unleashes some arguments against the right to private property that are supposed to be even stronger than those Sen himself offers. Sen himself regards this right as a strong one but not decisive, so some considerations can be morally powerful enough to overturn it. To block even a moderately friendly view of the right to private property, Professor Halbertal writes:

“Let us assume that … at stake for distribution is a rare medicine that Clara, the brilliant and productive child, somehow managed to invent. She is willing to provide the medicine to Anne, who is very sick, but only for an outrageous compensation. If she does not get her coveted [medicine], then Anne will die; and nobody–this is the libertarian claim–can take the medicine away from her, since she has ownership rights as a producer. In such a story, it seems clear that sticking solely to the libertarian approach to ownership rights, regardless of the outcome, is wrong. Even if we assert that there are such rights, surely, they should not be absolute….” [The New Republic, 12/2/09, p. 42]

This is certainly not the first time that the right to private property has been challenged along such lines. The needs of others have always seemed morally superior to some, versus the rights of those who can fulfill those needs without drastic loss to themselves. And in certain dire circumstances even libertarians will grant that a one-time theft should be morally acceptable provided efforts are made later to compensate for it. What the libertarian–or most of them, since they are a diverse lot themselves–insists upon is that a legal system make no systemic allowance for such takings. Though it is understandable that the takings would occur on rare–emergency–occasions, what is completely wrong is to build into a legal system this acceptability. (In some parts of France, which is largely a socialist country, extreme need serves as a legal justification for such takings!)

The case Halbertal offers has some problems to start with, though relatively minor. No one denies, libertarian or otherwise, that somebody “can take the medicine away.” It is not whether they can but whether they are morally (and should be legally) justified to do so. Criminals, after all, perpetrate such takings all the time, when they murder, rape, kidnap, and steal. Rights violations are possible but not justified, according to libertarianism.

More important is the way Halbertal misunderstands what libertarian political philosophers aim to do when they lay out a proper legal system. They aren’t discussing ethics or morality but politics or law. They are investigating what system of principles should govern a human community, what constitutional provisions should be included in a just system. That here and there an exception is possible to those principles is never disputed–such thinkers as Locke, Rand, Den Uyl and Rasmussen and I, routinely discuss emergencies and note that what’s at issue are general principles, not specific cases that may have elements that remove it from the norm.

It is interesting that just this element of the classical liberal, libertarian political approach is thoroughly investigated by Douglas B. Rasmussen and Douglas J. Den Uyl in their brilliant book, Norms of Liberty, A Perfectionist Basis for Non-Perfectionist Politics (Penn State University Press, 2005). Sadly, in the typical fashion of contemporary academics, Professor Halbertal settles for star gazing and pays no heed to Norms of Liberty, a work the theme of which would have informed him about how a classical liberal, libertarian would deal with matters such as he focuses upon.

The gist of the approach is that while difficult cases admittedly exist, instead of attempting to lay out some grand (ideal) moral theory that handles every conceivable situation (a strict moral geometry), they offer a system of metanorms–their term–by which a just society should be governed. These metanorms are principles of government or basic laws that everyone ought to choose so as to make possible a just social life for both oneself and everyone else–every other human being, in other words–based on our knowledge of human nature and what community life requires.

But getting back to Halbertal’s case, what would the classical liberal, non-Utopian approach to political philosophy advise about it? It might, for example, propose that Clara should not have her invention taken from her even in an emergency because although Anne desperately needs it, making it possible to violate Clara’s property right with impunity (and thus setting a precedent) will undermine the system of justice that keeps a free society intact. Or it could propose that an exception be made, via judicial discretion or some other device of the law, without allowing it to undermine normal legal procedures. And then there is the rarely considered option, as we see in both Sen’s and Halbertal’s discussions, of managing the problem without recourse to the law, mostly by relying on voluntary actions such as raising the funds and pressuring Clara by such means as a serious, organized boycott (with the leadership of, say, Sen and Halbertal).

It is interesting that both Sen and Halbertal are avid about their rejection of perfectionist politics yet do not appear to have much sympathy for solving dilemmas without insisting on a perfect resolution, one that guarantees that a perfect enforceable solution will be reached. This is a clear case of the perfect being the enemy of the good! Yes, Clara may have to be tolerated in her greed and lack of generosity but that is because the system in which one is free to be greedy and ungenerous is superior to one that aims to impose, by means of government–thus risking tyranny and undermining morality–the only right solution.

So it would appear that a system of law in which the right to private property is fully protected is better than one in which exceptions are permitted, thus leaving it open to government not by law but by men (who would ultimately be responsible to weight all the alternatives based on their intuitions, something Halbertal appears to grant at one point in his review essay).