[cross-posted at Liberty & Power]
The four published articles of mine that people most frequently request copies of are: “Abortion, Abandonment, and Positive Rights,” “Immanent Liberalism,” “Toward a Libertarian Theory of Class,” and “The Irrelevance of Responsibility.” So I’ve begun putting them online. The abortion one is up now; the other three to follow soon.
I’m a big fan of BSG’s Imperious Leader Ron Moore, but as long as I’m dissing him on race, I might as well diss him on sexual orientation as well.
Moore used to criticise Star Trek for not having any gay characters. When BSG started he said he hoped to include a gay relationship along the way. Whenever he was asked about it he would say something like, “I still want to, we just need to find the right way to do it.”
Finally he delivered on his promise – by giving us a lesbian couple in which one has the other raped and tortured and the other kills the first in revenge. That was the right way he was looking for? Ooooookay ….
(Shades of JMS criticising Trek for no gay characters, promising a gay relationship on B5, and then giving us a barely-hinted-at lesbian relationship in which one of the two women immediately has a braincrash, turns evil, and leaves the show.)
[cross-posted on Liberty & Power]
Charles has an excellent post today on patriarchy, rape, and the distinction between voluntary and spontaneous orders – extending some of the themes of our libertarian feminism piece from 2004.
Update: Mary Ruwart has clarified her position on children’s rights. Her clarified views aren’t quite the same as the ones I set forth in my earlier post, but they seem broadly similar.
By the way, for those who left me questions on my earlier post that I never got around to answering, I’ve now answered some of them.
I see that on the basis of some rather vague passing comments in her book Short Answers to the Tough Questions, Mary Ruwart is being accused (see here and here) of defending pedophilia and child pornography.
Well, she’s clearly not doing that. But her position is vague enough to be ambiguous among several different positions. (She does begin the section with the disclaimer that determining the correct libertarian position on children’s rights is a “hotly-debated issue” where libertarian theorists “need more definition.”)
Let me first say what I take to be the correct libertarian position on these issues, and then take a look at what Ruwart says.
Consider the following three facts:
Fact 1: Consent is not genuine when a person’s capacity for meaningful consent (not just to sex but more broadly – e.g., to commercial contracts) is impaired, as it is in the case of immature mental/psychological development. (Thus some superficially consensual transactions are not genuinely consensual and so receive no protection from libertarian rights theory.)
Fact 2: Not everyone reaches maturity at precisely the same age. (Thus there’s no reasonable point at which to set an absolute universal cut-off without condemning some who are innocent and protecting some who are guilty.)
Fact 3: Nobody passes from immaturity to maturity overnight; the transition is always a gradual one. (The capacity to give meaningful consent to the sale of a pack of chewing gum surely emerges earlier than the capacity to give meaningful consent to a mortgage contract; likewise, given the asymmetries of power involved, the ability to give genuine consent to sex with someone a few years older arguably emerges earlier than the capacity to give genuine consent to sex with someone many years older.)
Fact 1 gives us a reason to favour some form of age-of-consent restrictions. Facts 2 and 3 give us a reason to make those restrictions sensitive to details of context rather than imposing a uniform limit across the board. For example, one way of dealing with Fact 2 is to establish an age limit below which the burden of proof shifts from the party claiming that the person’s consent was not consensual to the party claiming that it was. And one way of dealing with Fact 3 is to make the shift in burden of proof sensitive to age difference between the parties.
With regard to child pornography, I think criminalising the mere ownership or possession of it is legally incoherent, not just for the usual libertarian reasons (though those too) but on the grounds that the prosecutors of the crime would have to violate the very law they’re enforcing in order to maintain possession of the evidence needed to prosecute – unless of course prosecutors are exempted from the laws that apply to everybody else, but that would be hard to square with impartial justice. Moreover, if it were illegal to own photographic depictions of real-life rights-violations then all the news footage from wars, police beatings, etc. would have to be banned as well.
The real issue concerns the production of child pornography. If such production involves actual sex acts (as opposed to, say, digitally simulated imagery) by children below the age of consent (as defined above), then it’s rape and should be banned. If not, then there’s no direct victim, and so the production cannot legitimately be combated by legal force (though vigorous and systematic boycotts, protests, and shaming would be quite appropriate). (The argument that its production should be banned to protect indirect victims, on the theory that child pornography makes its readers more likely to commit child rape, would have no grounds for resisting the demand that all literature advocating and/or glamourising rights-violations be banned – which would deprive us of most of world literature.)
Okay, with those distinctions in hand, let’s turn to Ruwart. Here are some of the relevant passages, with my comments interspersed. (If you want to see more of the context and don’t own the book, go to its Amazon page and use the “Search inside” function; the section begins on page 41.)
Children have the same rights (and responsibilities) as adults, but normally exercise them with the help of a loving parent or guardian because they are physically incapable of assuming them at birth.
This passage recognises, properly, that children can have rights and yet, owing to immaturity, be unready to exercise those rights. Ruwart mentions only physical incapacity here; I would want to add psychological incapacity, but Ruwart here does not commit herself either to affirming or to denying this addendum.
A libertarian society would not have laws that discriminate on the basis of age.
In this section she’s talking not about sex but about things like the ban on selling alcohol or cigarettes to minors. I agree that those laws are silly. (My mother, when she was a child, regularly bought cigarettes and alcohol for her father; I don’t think anyone would claim the problems of underage drinking and smoking were more severe in the 1930s-40s than today.) And as Ruwart goes on to point out, if concerned parents wanted to organise a boycott against stores that made such sales to children they would probably be effective, since “parents are generally better customers than the children.”
But do the age-of-consent restrictions I favour “discriminate on the basis of age”? Well, sort of; but the real basis for the “discrimination” is not age per se but diminished capacity, of which immaturity is one but not the only cause; so I don’t know whether Ruwart is ruling out enforcement of age-of-consent restrictions as such. If she is, I definitely disagree with her (though I don’t regard such disagreement, if it be one, as being as fundamental as I would if I had greater confidence in coercive methods and less confidence in voluntary methods).
In practice, children’s rights are limited by their inability to take responsibility for their choices.
This is another passage that might look as though Ruwart is granting psychological as opposed to merely physical barriers to genuine consent. But the example she goes on to give is that “a child who wishes to work, but can’t convince his or her parents to provide the necessary transportation, will be unable to exercise that right,” which is a completely different issue; so the matter remains unclear.
Children forced to participate in sexual acts have the same rights and recourse as a rape victim. We can, and should, prosecute their oppressors.
Children who willingly participate in sexual acts have the right to make that decision as well, even if it’s distasteful to us personally. Some children will make poor choices just as some adults do in smoking and drinking to excess; this is part of life.
Ruwart’s critics seem to be assuming that she is attributing to children generally a capacity for meaningful consent to sex. In fact she doesn’t say that, though of course she doesn’t deny it either. Her reference to “children who willingly participate in sexual acts” says nothing about what the conditions for willing participation are, and her aforementioned disclaimer suggests she may not have a fully worked-out position on the matter. She clearly assumes that some children are capable of meaningfully consenting to sex under some circumstances, but hardly anybody denies that; see Fact 2. (No ages are mentioned, but given the legal context, “child” presumably means anyone currently regarded as below the age of majority, and so would include, say, a 17-year-old’s having sex with an 18-year-old, which surely can be consensual.)
When we outlaw child pornography, the prices paid for child performers rise, increasing the incentives for parents to use children against their will.
This is somewhat confusing. Does the phrase “outlaw child pornography” refer to outlawing possession or production? It seems to me that Ruwart is committed to banning (the typical case of) production by her earlier statement that when children are “forced to participate in sexual acts” (which is surely the typical case of production), they should be treated as “rape victims” and we should “prosecute their oppressors.” So I presume that the phrase refers to outlawing possession. In that case, I agree with her conclusion – that possession shouldn’t be banned – but the argument is one which, if it’s good, would seem to tell against the banning of production as well. Now there may well be cases in which attempts to ban a genuine rights-violation can actually make matters worse (Spencer maintains, for example, that British attempts to ban the slave-trade made the conditions of slaves worse by motivating slavers to pack their victims into ships in greater numbers, and to dump them into the sea at the appearance of the British navy); but we should be very hesitant, I think, before deciding that no means of banning such rights-violation is viable.
The age of majority for marriage, work, etc. is most often established by custom of the society and will vary with the individual’s circumstances rather than being dictated by law.
Notably, Ruwart is evidently here endorsing, rather than rejecting, the concept of an “age of majority” – something one would never guess from what the critics have been saying. But it’s unclear whether Ruwart is rejecting legal enforcement of any and all age-of-consent restrictions in favour of custom-based pressure alone (in which case I disagree, as per Fact 1 above), or whether she is rejecting legal enforcement only of those age-of-consent restrictions that fail to “vary with the individual’s circumstances” (in which case I agree, as per Facts 2 and 3 above).
In any case, while Ruwart’s comments are certainly not fairly described as “defending” pedophilia or child pornography, they are admittedly ambiguous as to exactly what she thinks should or should not be banned by force of law. In particular, her position (if she even has a fully settled one) is ambiguous between the correct position (mine, of course) and various incorrect (un-Longian!) positions. Here’s hoping that the reportedly forthcoming revised edition will be less confusing on this issue.
(Note: No Agorist Demerits on this post because it’s about Ruwart’s political philosophy, not her campaign.)
[Clarification, since some are misunderstanding (or pretending to misunderstand) my Fact #2: When I say there “there’s no reasonable point at which to set an absolute universal cut-off,” I don’t mean there’s no age below which sexual consent is impossible for anyone. I’m saying that setting the age of consent at that point will be setting it too low in many cases.]
[cross-posted at Liberty & Power]
Now that Ron Paul’s candidacy is winding down, my debate with Walter Block over the analogy or disanalogy between Paul’s and Randy Barnett’s “deviations” no longer has much urgency (assuming it ever did), but let us proceed nonetheless.
Recap: last December I asked why Paul’s supporters downplay the importance of Paul’s deviations from libertarian purity (on, e.g., abortion and immigration – at least for those, like Walter, who agree with me that Paul’s positions on those issues are deviations) while on the other hand treating Barnett’s deviations (above all his support for the war) as a reason to deny his status as a libertarian at all. What justifies this disparity? (My own view is that both men’s deviations are sufficiently serious for me not to support either one for President [not that Barnett is running for President, but supposing he were], but that neither’s deviations disqualifies him from being considered a libertarian.)
Walter replied, I counter-replied, and Walter has now counter-counter-replied. (There’s also lively discussion in the comments section – over 50 posts and counting.) I hereby counter-counter-counter-reply.
1. Walter’s first point is that Barnett’s deviations are more serious than Paul’s: “I see bombing innocent children and adults as a far more serious violation of liberty than aborting fetuses, or violating the rights of people to cross national borders.” This is a bit oddly worded; since Walter agrees with me on the permissibility of abortion, then of course we can agree that bombing innocent people is a more serious violation of liberty than aborting fetuses, since we don’t regard aborting fetuses as a violation of liberty at all. Presumably Walter meant that bombing innocent people is a more serious violation of liberty than preventing women from having abortions.
Now perhaps Walter is right that bombing innocent people is a worse violation of liberty than preventing women from having abortions. But that’s still consistent with thinking that preventing women from having abortions is an extremely serious violation of liberty; and I think any libertarian who holds the position that Walter and I hold on abortion is indeed committed to regarding a prohibition of abortion as an extremely serious violation of liberty, far more serious than, say, drug laws or economic regulations. For a ban on abortion then counts as unrightfully forcing women to allow their bodies to be used as incubators – the moral equivalent of mass rape and mass enslavement. Taking into account the pain and risk involved in childbirth, an abortion ban also counts as the moral equivalent of mass torture. Is mass rape/enslavement/torture a less serious violation of liberty than mass murder? Maybe so; but it certainly counts as being in the same moral ballpark.
Now it is true, of course, that Paul favours returning the abortion issue to the states rather than imposing a federal ban on abortion. That certainly makes his position less objectionable than it would otherwise be. (For my views on how to weigh the merits of decentralism against the merits of striking down local oppressive legislation, see the second half of my LRC article on Kelo.) Perhaps Walter will say that’s enough to make the difference between purgatorio for Paul and inferno for Barnett. Well, suppose we stipulate that that is so. Still, we may also note that Barnett is an anarchist while Paul is not. So Paul supports, while Barnett opposes, what Walter and I will agree is the most anti-liberty institution on earth, unreformable, unsalvageable, an inevitable source of more war and oppression so long as it exists. So why isn’t that enough to lower Paul’s score and/or raise Barnett’s?
2. Walter’s second point is that abortion and immigration are more complex issues than war, and deviation on complex issues counts less against one’s libertarian credentials than deviation on simple issues – just as getting 2 + 2 = 4 wrong counts more against one’s credentials as a mathematician than getting the Pythagorean theorem wrong, or getting the ex ante benefit of exchange wrong counts more against one’s credentials as an Austrian economist than getting the business cycle wrong.
But first of all, it’s not obvious to me that war is a less complex issue than abortion and immigration. Now maybe this is charitable bias on my part toward my own past self: I started my libertarian career as a Randian, so while I was never guilty of the anti-abortion and anti-immigration deviations, I was once hawkishly deviant on the issue of foreign policy – yet I don’t want to deny my past self the title of libertarian. But to put my position less self-servingly, I would say that, having once been a liberventionist myself, I can understand the position from the inside and see how a libertarian could sincerely adopt it. (Just combine an empirically mistaken view about whether a certain use of force is actually defensive with a morally mistaken view about the requirements for permissible violence against innocent shields, and voilà.)
Consider Barnett’s defense of his position here. Is it mistaken? Yes, I think so. Is it so obviously, grossly mistaken that no intelligent libertarian could sincerely adopt it? I can’t see that it is.
But second, even if I were to grant that the libertarian case against war is much simpler and more obvious than the libertarian case against restrictions on abortion and immigration, I can’t see how that would establish that deviation on the former does, while deviation on the latter does not, disqualify the proponent from counting as a libertarian. Greater complexity of an issue may make deviation on that issue more excusable, but I didn’t think we were arguing about who is more blameworthy for a given deviation. Whether Paul and/or Barnett reached their mistaken positions through honest error, culpable intellectual negligence, or some combination of the two is not my concern; I’m not interested in passing judgment on their souls.
The question of how complex an issue is seems to me quite different from the question of how serious a mistake about that issue is. Yes, Walter cites some cases in which the two do go together; but they need not always do so. Getting the fuel mixture wrong in the space shuttle, for example, is a more serious error than misspelling the shuttle’s name on the side, even though the latter error is less complex and so easier to avoid.
Likewise, the libertarian case against abortion laws is surely more complex than the libertarian case against taxation (since the former, unlike the latter, requires assessing the moral status of the fetus); hence it’s much easier to show that taxation is inconsistent with libertarian principles than to show that restrictions on abortion are. But it doesn’t seem to follow that libertarian deviations on abortion are less serious than libertarian deviations on taxation. On the contrary, once we grant that a ban on abortion is a rights-violation, then it must be seen as a worse rights-violation than taxation, since it invades the victim’s very body and not just her external property. And likewise for the pro-life side: if I regarded abortion itself as a rights-violation, I would again have to take it as a worse rights-violation than taxation, inasmuch as murder is worse than theft. So although abortion may be an easier issue for libertarians to get wrong than taxation is, it’s still surely worse to get abortion wrong – whichever side one thinks of as getting it wrong – than to get taxation wrong.
3. Walter thinks the case for regarding a deviation as within rather than beyond the pale of libertarianism depends on whether the deviation is endorsed by prominent libertarian authorities. The argument seems to be mainly epistemological: if so authoritative a libertarian as X holds a certain position, we should be more cautious about rejecting that position, and so accordingly more cautious about how serious a deviation we take it to be. (One might also interpret Walter as offering a paradigm-case argument: if theorist X is a paradigm case of a libertarian, then we cannot treat a deviation held by that theorist as reason to deny libertarian status to holders of that deviation. I’m not sure whether Walter intends this latter argument as well.) Given Walter’s additional premise that anti-immigrationists like Murray Rothbard, Hans Hoppe, and Stephan Kinsella are “more deserving of the title of eminent libertarian theorist” than liberventionists like John Hospers and Randy Barnett, it follows that libertarian deviation on immigration must be more serious than libertarian deviation on war. (Walter is apparently not sure – nor am I – what Hoppe’s and Kinsella’s views on abortion are; it’s an issue that argumentation ethics doesn’t clearly address. K-dog, if you’re reading this, pray enlighten us.)
I’m not convinced. First, with regard to the epistemological argument, suppose it’s true that we should be more cautious about rejecting positions that the “big guns” of libertarianism defend; I would probably put less weight on this point than Walter would, but let’s grant it arguendo. Still I don’t follow the inference from being more cautious in labeling a position as a deviation to attributing a lesser degree of seriousness to those positions we do label as deviations. The strength or certainty with which we’re prepared to hold a position seems like a different matter from the content of the positions we hold. It’s not as though we have to hold extreme views with extreme conviction and moderate views with moderate conviction; on the contrary, we might well have grounds to hold extreme views with moderate conviction and moderate views with extreme conviction. Hence even if thinker X’s greater eminence over thinker Y gives us reason for greater caution in labeling one of X’s positions a deviation than in labeling one of Y’s positions such, if we do decide that X and Y are both guilty of deviations, I can’t see that our reasons for differential caution translate into reasons for regarding X’s deviations as less serious than Y’s.
As for Walter’s claim that Barnett does not count as “eminent,” this isn’t obvious to me. If Walter means “eminent” in the descriptive sense, meaning essentially “famous,” then I think Barnett probably counts as more eminent than, say, Hoppe and Kinsella, though probably less so than Rothbard. If Walter means “eminent” in the normative sense, meaning something like “important” or “deserving to be famous,” then Barnett surely belongs in the same tier of eminence as Hoppe and Kinsella. (I also don’t think the early, pro-immigration Rothbard can be less eminent than the later, anti-immigration Rothbard.) On behalf of Barnett’s claim to normative eminence, I would point to his excellent book The Structure of Liberty and articles on, for example, restitution, contract theory, and Spoonerite jurisprudence, as well as his marvelous two-part piece (Part 1; Part 2) in defense of anarchism. How, in light of these contributions, can we avoid acknowledging Barnett’s status as an eminent libertarian theorist? (I would make such a case for Hospers as well.)
As for the paradigm-case argument (if Walter means to offer one), Mises and Rand surely count as paradigmatic cases of libertarian theorists; yet Mises supported the Cold War, and Rand, though less hawkish than her current followers, held that any free or semi-free country has the right to invade any dictatorship, and that any innocent casualties in such an invasion are to be laid at the door of the invaded dictatorship, not the semi-free invaders. And then there’s Benjamin Tucker, a paradigmatic libertarian theorist for at least some of us, who defended U.S. entry into World War I. So deviation on war seems insufficient grounds for ejection from libertarian status.
In any case, I’m not sure how much should turn on whether a given position counts as within or beyond the pale of libertarianism per se; the main questions, as I see it, are a) is the position mistaken, and b) if so, is the mistake bad enough to warrant refusal to support a candidate? How bad a mistake is and how unlibertarian a mistake is are, after all, different questions. For example, someone who held that the entire human race should be exterminated, but favoured persuasive rather than coercive measures for achieving this, would be taking a worse position than someone who, say, endorsed copyrights, even though the former position has more claim than the latter to be consistent with the letter (though not the spirit) of libertarianism. Favouring voluntary extermination of the human race I would regard as a stronger reason not to support a candidate than favouring copyrights.
4. Walter closes by suggesting that he is “operating from a sort of agnostic point of view,” that of “a newcomer to libertarianism.” Okay, but in that case I have to ask: why is he doing that? After all, he’s not an agnostic; he appears to defend his positions quite forcefully, not tentatively or with one eye over his shoulder toward the eminent libertarian authorities (hey, I’ve heard him call Hans Hoppe a “pinko”! – this is not Mr. Quaking Deference); and he’s certainly less of a newcomer to libertarianism than I am.
5. Finally, I’m curious to know Walter’s opinion of Mary Ruwart’s candidacy. Ruwart holds (what Walter and I regard as) the right libertarian positions on foreign policy and abortion and immigration; plus she’s a generally radical libertarian, a proponent of Austrian business cycle theory, and an anarchist to boot. Does Walter agree with me that Ruwart’s candidacy is more deserving of libertarian support than Ron Paul’s?