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Samizdata quote of the day

I feel sure that early man would not have embarked on the road to civilisation if he had thought that, one day, humankind would arrive at a point where one man has the right to determine how much beer another man may take into a field in the middle of the night.

– Jeremy Clarkson, on the over-policing of midsummer at Stonehenge.

91 comments to Samizdata quote of the day

  • Why? Because the war on fun started under the Thatcher regime, and was a key part of the installation of the intrusive state policed by a force with absolute powers we all enjoy today. Because in the name of the fake property rights of a quango- English Heritage- it was decided that other rights didn’t matter. Because as I’ve often pointed out, the War On People started long before New Labour. And all the conservatives complaining about state impositions today, they clapped like seals at the War On Hippies, and the War On Ravers, and so on. Because spontaneous association of ordinary people without state permission and intervention is anathema to authoritarians.

    Once the Tories had turned the coalfields into a police state to break a strike, and once they’d turned Wiltshire into a police state to prevent a few people listening to some music and smoking dope (and violating English Heritage’s right to make money), the die was cast.

  • I enjoyed the sloppy language in the quote that completely nullifies Clarkson’s point; I imagine early man would have been delighted at the idea that they could own a field, and have sufficient property rights to control what happens on that field. Whether they would have wanted the State to have such control is, of course, debatable.

  • Kevin B

    Ian B, when Stonehenge was an integral part of a thriving culture in Stone Age Wessex, I’m willing to bet that the powers that be banned any unauthorised locals from consuming alcoholic beverages or smoking or snorting mind-altering drugs on the premises, or having any sort of fun that wasn’t strictly controlled by said powers.

    Why? Because that’s what they do. People having fun is a threat to them so they do their best to curtail it. In every civilisation, small or large, the elite did their best to control the fun of the peasants, and the peasants invented line-dancing and folk-singing to get their own back.

  • Sam Duncan

    to prevent a few people listening to some music and smoking dope (and violating English Heritage’s right to make money)

    And the local people’s right to sleep.

    Look, I’m sorry, I know a lot of people came to libertarianism through that episode in the early ’90s, but I was on the other side of that fence. I’ve lived in the University district of Glasgow all my life. I know what it’s like to have a bunch of headcases turning the amps up to 11 four streets away at at three in the morning three nights running. I know the oppressive booming of a distant bassline all too well. And I’ve called the police on them, many, many times. I’ll do it again, too.

    God knows what it was like for those people, who weren’t used to it, having a whole town turn up overnight. Yes, even a mile away across open country. And let’s not pretend they were all sitting around quietly “listening to music” then politely turning it off and hitting the hay as the clock struck 11.

    Libertarianism is about facing the consequences of your actions as much as it’s about anything else. And the consequence of holding an impromptu music festival in a densely-populated country is that you’ll piss people off. (I always said they should have gone to the Highlands; there’s nobody there to annoy.)

    No doubt the reaction was over the top. No doubt the government itself had other agendas to follow, and its supporters are reaping the whirlwind today. And Clarkson’s right: it’s certainly gone to insane extremes now. I was in two minds about it back then, certainly not mindlessly cheering on the police. But that’s my point: if the idea takes hold that this was a black and white issue, with the ravers as the sole injured party, then I fear there’s no hope for our way of looking at politics and the world at all. Because a lot of people simply won’t be listening.

  • Sam, that is all very valid, but I’m sure you know as well as I do that the whole Stonehenge business was political; the government wanted a fight, and set out to get one, and got it. Mass preemptive policing had already worked against the miners, so they turned it on a bunch of hippies. There are a lot of ways to deal with noise and nuisance issues, and setting riot police on people before they’ve actually done anything wrong is not one of them.

    You want to live in a state where the government can beat you up because they think you’re going to commit a minor crime (trespass on quango property), go ahead, be my guest. Sleep well, but don’t come crying when you’re in court for putting your bin out at the wrong time of day or you can’t hold a church social because of elfinsafety. Award the state absolute power, that’s what you get. They don’t know what restraint is.

  • michael

    I lived in Wiltshire at the time of the Stonehenge troubles. It seemed to me that the police were exhibiting a total lack of common sense. A characteristic that seems to be getting worse all the time.

  • guy herbert

    Sam Duncan,

    I think you may be confusing Stonehenge:

    View Larger Map
    With Avebury:

    View Larger Map

    There’s really very little close to Stonehenge, and the A303, which passes the site, is a very busy, noisy road.

    As a former local, I’m aware Wilts Constabulary have a long history of unnecessary bullying of hippies and other weirdos. In the late 80s they proudly bought a helcopter for the purpose, one of the first forces to do so. (Now I’m a Londoner I realise that keeping people awake with helicopter pickets watching silent demonstrators is fine, as are the most disruptive street carnivals provided police are planning them with their approved community leaders.) One function served by ongoing bureaucratic restrictions on Druids, et al. is post hoc justification of past police behaviour – “We have to stop the disorder that has occurred on previous occasions.”

    Protecting the archaeology is fine and good (though the whole county is full of it, and the vast ritual landscape around stonehenge doesn’t get cordoned-off) but that could be done without bullying. Like most bullying it is an assertion of power for its own sake.

  • Fenton

    Clarkson has the strange ability to simultaneously attract and repulse me. Some of his comments are direct hits, others (of lesser and lesser frequently) are pompous shite.

    I think Clarkson has recently had an epiphany – glimpsing just how thin the skin between order and chaos really is. I read an article of his a few months ago in which he sounded genuinely fearful of the banking collapse (he has high-up banker friends that were telling him how fubar the system is) – and I have seen him mention armageddon since.

    I’m sure that once upon a time he would have advocated shooting the ‘trespassers’. Not so anymore. He seems a little less caustic of late – more…hmmm…reflective.

  • Sam Duncan

    Actually Ian, yes, I realised I’d posted that whole screed and actually failed to make an important qualification about five minutes later. Which is that of course there are already perfectly good methods for dealing with nuisances, and obviously the danger of “there must be a law” is that it ends up being used against you.

    And I also realise that the situation at Stonhenge is rather different. But the scare in the early ’90s that led to where we are now wasn’t just about Stonehenge. And my point still stands, I think, that there was a kernel of truth in that scare, however overblown it became in the media, and we ignore that at our peril.

  • Thanks Sam. I have to admit this is one of my ishoos in which I have a certain emotional investment, being an ageing Hawkwind fan who (though not present at the Henge) remembers the whole issue rather clearly, and it was one of those steps on my road to libertarianism.

    I think an issue here for libertarianism is that if we can’t come up with an answer for dealing with conflicts of interest involving large social events that doesn’t involve armies of riot police and lockdowns of entire counties, we may as well give up because our entire philosophy must be utter bollocks. It’s no use shouting about how we can save the world if we can’t even figure out how those who want to dance like twits through the night can be accomodated in society.

    It seemed to me, though I was never involved in the Rave phenomenon, that the problem wasn’t that people wanted to dance somewhere, it was that the powers that be were determined that they wouldn’t be allowed to dance anywhere. I see it very much as as war by “the establishment” on the principle of free association, and they absolutely won it. It has led to the situation now, where even the most trivial of social events is subject to state intervention (I read recently a comment on, I think, Tim Worstall’s blog, by someone who had witnessed an elderly couple handing out cake from their beach hut to celebrate their silver wedding being shut down by vigilant CPSOs).

  • Alice

    Interesting discussion — Sam & Ian B.

    The guy who got me interested in Libertarianism encapulated the philosopy thus — I can do anything I want, as long as that does not interfere with anyone else doing what he wants.

    So what do Libertarians do about people who ignore the second part of the code? Does effective Libertarianism paradoxically require a police state to make everyone follow the code?

  • Nuke Gray!

    This raises an interesting side-issue- in an anarcho-capitalist, or minarchist, society, who would ‘own’ public monuments like StoneHenge? Whoever claimed them first? Would they just become a resource for the owner to treat as they liked? If not, why not?

  • Alisa

    So what do Libertarians do about people who ignore the second part of the code?

    Shoot them, of course. You don’t need a police state for that.

    Seriously though, (and I was only half-joking), there is a whole range of ways in which a free society can make an antisocial behavior not worthwhile. It can begin with refusing to associate with such people (on a limited or unlimited time basis), and end with, well, making sure they will never have a chance to associate with anyone ever again.

  • Pa Annoyed

    Alice,

    That one’s not bad. A better way of putting it was by J.S. Mill:

    “The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right… The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.”

    There are lots of ways of enforcing society’s rules without involving a state. But Libertarians should be just as concerned about them. J.S. Mill again:

    “Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant – society collectively over the separate individuals who compose it – its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates; and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practices a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling, against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development and, if possible, prevent the formation of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs as protection against political despotism.”

    But of course, a more direct answer would be to say that having a state police does not necessarily mean having a police state. Police who served the interests of freedom would not be an issue.

  • llamas

    Sam Duncan makes some very good points.

    When people gatther en-masse to do as they please ( an activity I think we would all mostly-approve of) it invariably takes very little time for their activities to degenerate into a thundering nuisance for everyone around them. Poeple in the aggregate may start out with the best of intentions, but their behaviour always, always deteriorates.

    I raise again the example of Burning Man, the anarcho-libertarian art festival that takes place in the Black Rock desert in Nevada each year. This event is so far from ‘civilization’ (itself a limited concept in that part of Nevada) that there’s no real chance at all of upsetting the neighbours.

    And yet it has gone, in less than 25 years, from a wild, libertarian free-for-all to just another organized festival, with rules, and speed limits, and permits, and tickets,and policemen, and portabe toilets, and concessions, and schedules, and on it goes. And all becaus the participants just couldn’t behave themselcves very well, and turned it into a dangerous and destructive mess.

    People in large groups behave poorly. It’s just the way it is. Even the Earth Day protestors in DC leave behind untold tons of trash.

    llater,

    llamas

  • I don’t agree with the principle of harm. It is too vague, too open to interpretation. We have seen all manner of tyrannic impositions based upon such ideas as moral harm, or on “meta-harm”- if you do this then you will do that (if drugs are legal, drug addicts will commit crimes, if alchohol is legal, drinkers will commit crimes). We have much handwringing about all kinds of psychological harm- parents cannot be trusted to raise their children because they are e.g. devoutly religious and so on. Indeed most of the progressive state is driven by their interpretation of Mill’s principle. Racism is harm, sexism is harm, a strip club harms all women, cigarette smoking harms everybody, industry harms the future generations etc etc.

    A better principle would be the principle of consent. That deals directly with interactions between persons, and is a very simple and clear principle to follow- that is everyone has an absolute right of consent. All the basic laws- against murder, assault, theft, rape, fraud, etc are laws against violations of consent. Taking assault, for instance, that is beating somebody against their will. If they choose to be beaten (for a sexual purpose for instance), then that is no business of the law, even though it may “harm” them to some degree.

    The role of policing then becomes very clear, which is to intercede on behalf of those whose right of consent has been violated. It need not concern itself with politically manipulable debates about what constitutes harm. It does not concern itself with the good of “society”. Neither do we tie ourselves in knots about “the right to do anything [I] want”; the boundaries automatically come into play when other persons are involved in what you do- you must gain their consent.

    Still not perfect, but I think that’s about the best we can do.

  • Alisa

    Brilliant, Ian. The only reason it is not perfect is that it has to be tied in with the issue of property. Do that, and we are all set.

  • Current

    I agree with Ian regarding consent. I think also that this is what Mill was getting at.

    But I don’t understand how that tallys with what you have said above. How exactly have those who live near Rave sites approved of being kept awake by music all night?

  • Thanks Alisa. I would answer the question of property by simply saying that consent applies to property too- you may not use my lawnmower unless you have my consent (permission). You may not walk on my land without my consent. And so on. Possibly the difference is that one can derive a principle of consent logically (although being a bear of very little brain I am still struggling with the words with which to do this, so will leave it alone for now) whereas property rights are hard to derive from any prior principle- you either believe in them or you don’t. I suspect the answer is something like, if you deny the existence of property, all physical matter becomes “untouchable” or “in common”; that is nobody can exercise control over it since that is a de facto assertion of a property right, so if individuals can’t own it, collectives can’t own it, the state can’t own it, nobody can. Which would mean that Alice has no more right to eat a particular banana than Bob does, so nobody can eat the banana. Or something. I may be being a bit weak here. :)

    Strangely for this thread, none of this much helps us with Stonehenge. It sort of depends what you consider it to be. You may think it’s just a construction on some land- without state ownership, some private person would own it and decide what may be done with it, and of course exclude trespassers using force (though they wouldn’t be able to declare external “exclusion zones” and have three million police beating up hippies for being nearby and so on.

    Or you can see it as a heritage site, that is a place of archaelogial and historical interest which needs preservation. Or you can see it as a place of spiritual significance and a gathering place for those who are of that spirituality, like a church.

    In most cases churches and temples are owned by some organised religious group whose purpose in owning them is to make them available to worshippers. If we take a place like Westminster Abbey, if it were owned by a private individual who barred access to christians, there would be uproar. Because it’s owned by the christian church who own it precisely so that christians may attend, there is no problem. People just generally presume that such religious sites will be accessible to the general public, particularly those of the right spirituality. If the christian church decided it has more value as a commercially exploited tourist attraction, and charged people to enter and look around but denied them the opportunity to worship there, christian worshippers are going to get upset. Although it is owned by a private body, the christians feel it “belongs to them” too, because it is a religious site.

    So I dunno, the best libertarian answer would probably be for the Druids to buy Stonehenge and exert property rights over it, making it available as a worship site. If they then want a rock festival on the solstice, they can do so on their private land. My guess is that they would.

  • Current

    Ian B: “whereas property rights are hard to derive from any prior principle- you either believe in them or you don’t.”

    As Anthony de Jasay has argued property right derive from consent too. When a contract is made by the common consent of the parties it has an ending phase where the parties come into possession of the relevant goods. I think this is a good argument.

    Of course it’s necessary to supplement this with the idea that what a person makes from their own possession is automatically their own property. This becomes the sticking point.

    Still, I don’t agree with what you’ve said above. Although I think we should have some sympathy for ravers I think you’re taking it a bit too far.

    Ian B: “I think an issue here for libertarianism is that if we can’t come up with an answer for dealing with conflicts of interest involving large social events that doesn’t involve armies of riot police and lockdowns of entire counties, we may as well give up because our entire philosophy must be utter bollocks. It’s no use shouting about how we can save the world if we can’t even figure out how those who want to dance like twits through the night can be accomodated in society.”

    As a Classical Liberal (as opposed to a Libertarian) I don’t see the problem.

    If property rights are being infringed then what is wrong with police intervening as long as they do so with reasonably using reasonable processes.

    Now, in some cases the property rights were not infringed, policing was not reasonable and neither were legal processes. That is the problem.

    Large squads of riot police chasing people around a county however is not a problem per se if they are breaking reasonable laws.

  • Laird

    Pa annoyed, your twin quotations of JS Mill provide a perfect illustration of why why that man can be so infuriating: one minute is his making a brilliant point, and the next has has gone totally off the rails.

    In the second of your quotations he states that “there needs protection also against the tyranny of the prevailing opinion and feeling, against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them . . . .” [my emphasis] I can only infer that by this he means social opprobrium such as ostracism, which is total nonsense. Of course people have (or should have, anyway) the absolute right to refuse to associate with people with whose beliefs, opinions, conduct, etc., they disagree or disapprove. That’s called freedom of association, and if 99% of a society feels the same way about something they have a perfect right to disassociate themselves from the 1% who feel otherwise about it. What they don’t have is the right to enact laws prohibiting such conduct, but that’s as far as a civilized society should go.

    Fundamentally, Mill was not a libertarian or even a classical liberal, but a utilitarian, which is why I have little use for him.

  • Alisa

    Ian, re banana: this argument (that what belongs to everyone in effect belongs to no one) is often made about land (I quit following the you-know-what threads, but I’m sure it is there somewhere, and rightly so), and it applies to all property, and it is a good one. I am not a believer in natural rights. I think Current (or rather the French dude he quoted) has a good handle on this.

  • Current

    Laird: “Fundamentally, Mill was not a libertarian or even a classical liberal, but a utilitarian, which is why I have little use for him.”

    I don’t think these things are necessarily contradictory in the long run.

  • RAB

    Well funilly enough,
    Stonehenge was privately owned,
    once upon a time.

    The gent that gave it to the nation
    had certain covenants and caviats written in
    to his bequest

    which English Heritage is flagrantly flouting.
    (free access etc etc)

    Sorry no chapter and verse on this one.

    Did you know that during WW1, when our daring boys were setting off for the skies, and training on Salisbury Plain, some idiot General wanted the stones pulled down, because he thought them too close to their runway, and the pilots might crash into them?

  • Laird

    Current, in the long run utilitarianism is much closer to communism than it is to classic liberalism, let alone to libertarianism. It skates perilously close to the “greatest good for the greatest number” meme.

  • Alisa

    Laird: true, but it does depend on how one defines ‘good’. If good=freedom, then that meme no longer sounds so bad, does it? :-)

  • Alice

    So here we all are — serious people earnestly debating the finer differences between utilitarianism and libertarianism.

    Meanwhile, back at Stonehenge, some poor old lady has been kept awake by the thumping noise of others enjoying themselves. She looks out her window late at night in frustration and sees a standard-issue college kid taking a dump on her lawn.

    What help to her is all this earnest debate?

    And if that poor old lady grabs her heaviest frying pan and whacks the dumper on the back of his head — we all know whom the police will drag away in handcuffs.

    Alisa is right — force is the ultimate guarantor of respectful behavior. When the Political Class and their running dogs in the Legal Class started showing more compassion for the sinners than the sinned against, they launched us on a path that can only end in civil war. I am looking forward to sitting knitting at the foot of the guillotine.

  • Alice, I wrote a post at Counting Cats about this, in which my point was that when we’re choosing between alternatives, we need to be sure what is on the table. It may be that the ideal fix we seek isn’t available, or possible.

    But there’s also the matter of proportion. We talk about raves or the like as being a very big problem. But I suspect that far more of us are seriously affected by, say, noise nusiance from neighbours than from people dancing in fields. I had a neighbour- well in fact it was my landlord lolz- whose idea of fun was to come in pissed as a rat at 2 or 3am and put rock music on full volume. After an escalating situation, including two fist fights, I moved out. That’s from a personal perspective a far more difficult situation- noise most nights of the week- than a disturbance for one or two nights, or once a year.

    We’re really into the whole issue of externalities here- and as such raves and rock festivals are a pretty minor one on the list compared to the misery we can suffer from individuals. A bunch of crusties with a sound system turning up for a few days will be disruptive. I doubt in toto though that is as much trouble as the “problem” family housed a few doors from my mum who took two years to evict- noise, mess, brawls in the street, threats to neighbours…

  • Mememe

    “What help to her is all this earnest debate?”

    Well said, Alice. I am afraid as much as I quite enjoy Samizdata there are some people here who in their haste to show how intellectual they are, often clean forget that for real individuals sometimes all these ‘freedoms’ can mean trouble and strife.

    Still, nothing wrong with a few beer cans, condoms and piles of poo in your garden, is there? Not when you consider the pleasure you had being kept awake all night by the volume of fun others were having.

  • I’m gonna say something which is quite radical. It isn’t about a legal framework. It is about people being nice to each other and respecting each other’s rights.

    Otherwise it doesn’t work. It is a metacontextual thing. Law and attitude have to change together. Not an easy or quick process but the two have to walk arm in arm to the promised land. I will never piss on Perry’s roses. This is not because of the force of law or the possibility he might shoot me. It’s because of me.

    Most neighbour “issues” become non-issues once you look at it the right way. By which I mean that your rights and their rights are equal. It’s like trade. It benefits both parties.

    The idea that trade without strict regulation necessarily exploits one party or the other or that “rights” are a finite pool which must be fought over are the two most corrosive memes the proggies ever spread.

    Of course there should be the law for when something gets truly out of order but it should not be considered as a principle because it can’t be. We cannot regulate on annoyances. They have to be case by case and involve judgement rather than blindly following arbitary rules.

    It’s like the whole “alcohol free zones” thing.

    It is essentially down to individuals and society. It’s bottom-up not top-down. The way we build that society is through having a legal framework which is flexible and didactic. It’s not about “alcohol free zones” it’s about rounding-up aggressive pissheads. It’s not about “no loud music after 11pm” per-se but it is about doing something to someone who plays techno ’till 4am every morning. I mean everyone has a party once in a while and that might temprarily inconvenience other folk but we are always inconviencing other folk. It’s about degree.

    It’s about the unwritten rules. I wouldn’t get my cock out at a dinner-party (unless it was that kinda dinner party but alas I don’t get invited to them much) and those are palpably weakened by the dead hand of ultra-law affecting everything.

    RAB,
    Ollie Cromwell looked into blowing them up because they were pagan. Just like what the Taliban did to those Buddhas.

  • Current

    Laird: “in the long run utilitarianism is much closer to communism than it is to classic liberalism, let alone to libertarianism. It skates perilously close to the “greatest good for the greatest number” meme.”

    Well, I don’t want to live in a free society because doing so harms others though it may benefit me. I desire a classical liberal society exactly because I think it will give the “greatest good for the greatest number” in the long run. I have no desire for communism for exactly the same reason.

    Classical liberalism is not a means of setting up a class system with ourselves at the top, as many seem to believe.

    Mememe: “Still, nothing wrong with a few beer cans, condoms and piles of poo in your garden, is there? Not when you consider the pleasure you had being kept awake all night by the volume of fun others were having.”

    Indeed.

  • The issue of poo in gardens is a good example of setting up an exaggerated premise to justify interventionism. I would not deny that some events may lead to their attendees pooing in somebody’s garden. And neither would I disagree that that is distressing to the garden’s owner. The question is whether that is an enormous social problem worthy of any degree of state intervention to prevent. Is the entire countryside constantly plagued by garden-pooers? I don’t think it is. If it happens once, well, that’s nasty, but it’s not the end of the world.

    Likewise being kept awake all night by a rave in a field is unpleasant, but rare. Compare that to the many people in cities who suffer constant noise and upset from neighbours.

    So when assessing this “rave problem” we must ask just how serious it is/was and what proportionate response we should make. This “something must be done” argument is the same as demanding the banning of pubs, because they sometimes result in beer cans or vomit in gardens. We need to remember that we share a small country with sixty millions other people, and the reality is that unless we want to live under permanent lockdown compromise is necessary.

    Alternatively, you could post signs pointing pooers towards the base of your rose bushes, and save money on proprietory fertilisers.

  • Paul Marks

    Everything was pagan to the man from Ely (although he was not as bad as many of his supporters) – even the tree bark treatments for his maleria were rejected as pagan magic (the fact that monks had been using such things for centuries made it even worse of course – Romish).

    So he died – good riddance to him.

    England has no need of Lord Protectors or rule by the Major Generals.

    Although rule by a administrative machine is what we have got now – and on a scale that would shock even Cromwell.

  • Laird

    Current, it was not my intent to get into a debate here about Utilitarianism (that’s way too far O/T), but rather merely to contrast the two JSM quotes posted by Pa annoyed and point out that the second one is nonsense. Indeed, JSM’s writings contain a high enough percenatge of idiocy that, to me, they are largely useless. I think you and I are largely in agreement about the sort of society we’d like to live in, although I disagree with your assertion that a free society would harm others (quite the opposite is true if it is truly “free”).

  • Current

    I don’t see why living in a small country excuses petty crime. Certainly petty crime should be dealt with as such, but it should still be dealt with.

    I was at an all night party with nasty techno at the weekend. It was very boring. But it was far away in the country. Had it being a disturbance I would have had no problem with that getting me or the host in trouble with the law.

    My point is that opposing a police state does not mean tolerating this sort of thing. The things I think we should oppose are illiberal laws, unreasonable penalties, lack of due process and police violence.

    So, raves themselves should be supported as free association. And petty crimes associated with them should not be.

  • Current

    “I disagree with your assertion that a free society would harm others”

    I never said that it would. My point is that anti-utilitarian libertarians implicitly take that view. They want to live in a more miserable society.

    The best argument for “liberty” (by which we mean “proprietarianism” a word we should embrace) is that it is preferable to its only long run alternative – socialism.

    I agree about J.S.Mill that passage has rightly come in for a lot of criticism. Hayek rightly debunks it somewhere in “Constitution of Liberty”.

  • Current

    “I disagree with your assertion that a free society would harm others”

    I never said that it would.

    I agree about J.S.Mill that passage has rightly come in for a lot of criticism. Hayek rightly debunks it somewhere in “Constitution of Liberty”

  • Pa Annoyed

    “Is the entire countryside constantly plagued by garden-pooers?”

    And what about cats? (Cats, not counters.) If the neighbour’s cats treat your garden as a litter tray, how ‘robust’ a response are you permitted? Or when wild birds dive-bomb your newly cleaned car? And what, objectively speaking, is the difference?

    Everybody does stuff that other people find annoying. We set limits on that, but there will always be some background level of annoyance that you have to put up with so as to get along. The minimum restriction necessary to give everyone the same freedoms, and all that. Sometimes that means stuff like having to clean up after other people’s cats.

    There’s a saying. Shit happens.

  • Alice

    “The issue of poo in gardens is a good example of setting up an exaggerated premise to justify interventionism.”

    The premise is hardly exaggerated to the poor old lady with some punter crapping on her lawn. But you may have missed the point, Ian B — or perhaps I did not explain it properly.

    Having the poor old lady deal with her problem by whacking the offender with a frying pan seems like a reasonable solution to me. Libertarian, too — at least by some definitions.

    But the old lady with a frying pan would likely get treated like a Brazilian in a London Tube station, under the current legal environment.

    Maybe the Libertarian approach would be to extend the Medieval idea of the Outlaw. If someone is breaking the law (e.g., by pooping on an old lady’s lawn), he is beyond the protection of the law. Whatever happens to him during the commission of his crime is just plain tough.

  • Jim A

    Shouldn’t the person/persons/organization WHO OWNS said field have a say in how much beer can be taken there? Of course tenure questions can be complicated in England, but at some level you’re being cut off by HRH: “No more beer for you!”

  • permanentexpat

    Anyone for a rave in Salisbury Cathedral? BYOB

  • Ian B

    But the old lady with a frying pan would likely get treated like a Brazilian in a London Tube station, under the current legal environment.

    That’s a valid point Alice, but honestly I think the problem we now face is taht we are all treated like Brazilians in tube stations, and have been for a long while. The general point I made in the counting cats post was that once you give the police carte blanche to exert social control, everybody ends up treated equally badly. New Labour solved the problem of police harrassment of black people etc by increasing the harrassment of everybody else to the same level!

    But if we are discussing how libertarians would approach the situation, we must factor in that in a libertarian society the police would not be acting as they do now, and property rights- and the right to protect one’s property- would be strong. What we currently have is the worst of all possible worlds.

  • Pa Annoyed

    Regarding consent as a founding principle – the problem with this is that in your argument you are only requiring consent of one of the parties to a conflict. I don’t consent to being restrained from theft, or murder, or dumping in other people’s gardens. What right have you to use violence to stop me doing whatever I want without my consent? I have signed no social contract. I haven’t agreed to your constraints.

    The thief and its owner both want the same item. Neither consents to the other possessing it. So where does the asymmetry come from?

    Mill argues that a person can give consent to be harmed, but that the reason theft is forbidden is that society would fail without property rights being respected. The reason the poor can starve although the people around them own the means of their survival is that society still works that way, and that overall, fewer people starve when the rules are respected.

    “…I can only infer that by this he means social opprobrium such as ostracism, which is total nonsense.”

    Regarding social opprobrium, no he doesn’t. In fact, he spends the entire next chapter of the book making the argument for free speech, and the inclusion of the right to offend and criticise. (Indeed, he does so himself, being especially scathing about people who make such criticisms of Utilitarianism without having taken the trouble to find out what it actually says.)

    As for ostracism, it depends what you mean. The original meaning of the word is banishment, and as such involves the use of force to expel a person from society. If you are using it to describe only some form of opprobrium, like not talking to somebody, then as I said, Mill requires that such be allowed.

    Another quote –
    “His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because,in the opinions of others, to do so would be wise, or even right. These are good reason for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil in someone else.”

    “Current, in the long run utilitarianism is much closer to communism than it is to classic liberalism, let alone to libertarianism. It skates perilously close to the “greatest good for the greatest number” meme.”

    The problem with that viewpoint is how you define “good”. Do you think Communism or its effects are “good”?! For the greatest number, or otherwise? If not, in what way is Communism in any way close to Utilitarianism?

    Mill considered freedom and rights and their implementation as inviolable and generally applicable principles to be a higher “good” for society as a whole, because freedom enables everybody to achieve their own goals to the greatest extent possible.

    Communism claims to be Utilitarian, like it claims to be a lot of things. But that’s obviously not the same thing.


    All that said, I do think there are some philosophical problems with Utilitarianism as a principle, and Mill does go in for rationalisations much of the time. And as I’ve explained on several occasions in the past, I don’t believe it is how actual moralities really work. However, it is still one of the founding principles that libertarianism sprang from, and worthy of more careful consideration.

  • Ian B

    I expect better from you Pa :)

    Regarding consent as a founding principle – the problem with this is that in your argument you are only requiring consent of one of the parties to a conflict.

    Okay, so there you’re inside the ruleset…

    I don’t consent to being restrained from theft, or murder, or dumping in other people’s gardens.

    …and now you’re outside the ruleset. See the problem?

    ;)

  • Alisa

    Or in other words, the consent principle is not a moral principle in itself, but rather a practical manifestation of such.

  • Pa Annoyed

    Ian B,

    I’m not sure what you’re objecting to. Was my use of irony too confusing?

  • Ian B

    Well yes, because I wasn’t aware of any irony. So far as I could tell you were proposing something internally inconsistent- that is, trying to use the proposed rules to argue against the existence of the rules.

    There are various other arguments against what you said; for instance, if you propose there is a conflict of consent (staying within the ruleset here) then you still cannot argue for your preference to take precedence over someone else’s; the best you can argue, due to the conflict, is for an impasse–

    Anne does not consent to sex with Bob, Bob does not consent to not rape Anne… where do you go from there? It’s an impasse. Bob can’t gain any more points in the argument. It’s a tie.

    But anyway, we see the flaw clearly. Bob is not being asked to consent to anything- it is Anne that is. This becomes clearer when we realise that the word “consent” is synonymous with the word allow. Anne is the one being asked to allow something, not Bob. That’s where our asymmetry comes from.

  • Midwesterner

    The irony is, before you can demand a trespasser get consent to walk across an ‘owned’ piece of land, you need to have the trespasser’s consent for that land to be owned. What if the trespasser is one of those Rambler types!

    ‘The rules’ are a product of the rule makers. Defining ‘consent’ becomes a battle of strength between those who defend individual property rights and those who defend collectivized property rights.

    But before anybody says the answer is a compromise, no. Any compromise will require an inevitably unrestrainable collective authority and is therefore a collectivist response. Individualists must defend cooperative (consensual by the individual) solutions where collectivists claim that only collective (coercive to the individual) solutions will work.

  • Ian B

    Any legal system requires a collective “endorsement”, Mid and to persecute those who refuse to follow it. My suggestion is the same as any other legal basis in that regard.

    And no, “polycentric” legal systems don’t get you out of that bind, since they implicitly require a higher power (never admitted to by their supporters) who will enforce the use of the metalegal system. It’s no use having a law that people can refuse to acknowledge. Either you have laws or you don’t.

    If you don’t, you have pure anarchism, which will rapidly devolve into some other system (monarchism, thuggism, etc). If you do, you can choose the basis of your legal system. I argue that that should be a basis of enforcing individual consent- that is, you may not do unto others what they do not consent to have done to them.

    Any system under discussion (besides anarchism, which by its nature cannot exist)- minarchist liebrtariarnism, communism, conservatism, theocracy, all require collective coercion to ensure everyone is part of the system. Sorry, no way out of that. I’d prefer the least intrusive and most individualist I can think of, which I suggested above. If you want to argue about whether there should be a legal system at all, that’s another argument which always ends up “you have to have a legal system”.

  • Midwesterner

    Any legal system requires a collective “endorsement”, Mid and to persecute those who refuse to follow it.

    I disagree but we are getting way OT. In a nutshell, this idea there is either ‘The Government’ or there is ‘unmitigated and unstable chaos’ is a dangerous fallacy. The founders of the US made very clear that government is something that people put on and take off as it suits them. Furthermore, the US was founded on competing governments (states are checks against the federal and states compete against other states for citizens) and it is when we broke this structure and created one monolithic ‘higher power’ government that we slid into some very deep shit indeed. It is now no longer even possible for US serfs to leave US National government sovereignty anywhere in the universe. Total and unbounded servility is demanded by our masters.

    I argue that that should be a basis of enforcing individual consent- that is, you may not do unto others what they do not consent to have done to them.

    I very strongly vehemently apoplectically disagree with this. You obviously don’t know enough genuine collectivists. You know, those people who want the government to make them quit smoking and eat healthier? It doesn’t stop with fast food and nicotine!

  • Ian B

    The founders of the US made very clear that government is something that people put on and take off as it suits them. Furthermore, the US was founded on competing governments (states are checks against the federal and states compete against other states for citizens) and it is when we broke this structure and created one monolithic ‘higher power’ government that we slid into some very deep shit indeed.

    There seems to be something of a deep mythology in the USA about small restrained government, because of the Federal Constitution. It irritates me a bit. The Federal Constitution is a restriction on the power of the federal government. It does not ensure any freedom from government to citizens. “Congress shall make no law…”

    It reserved, intially, the right of absolute tyranny to the states, because they were all little countries of a kind back then. It was only much later that the activist supreme court decided that freedoms in the constitution actually applied to the states.

    So it’s a complete falsehood to claim that the USA is a land of restrained government. It isn’t. It’s a land of restrained federal government, with tyranny localised to the states. To suggest that a multiplicity of states is some kind of check and balance because people can move, is akin to saying France keeps England free, because we can fuck off there if we want to. How free did the blacks feel under Jim Crow?

    So I think this whole Land Of The Free malarky needs to stop. The USA, land of the free, was implementing christian sharia (temperance) at the states level long before the federal level, for instance. It hsa never been a place where people could “put on or take off government as it suited them”. It’s a collection of states with sovereign power over their citizens just like any other countries are. It’s a kind of sleight of hand trick really- you point at the weaker federal government and pretend that represents the only power over citizens. Bullshit.

    I very strongly vehemently apoplectically disagree with this. You obviously don’t know enough genuine collectivists.

    Yes I do. They breed in America, and export their nasty ideas worldwide ;)

    You know, those people who want the government to make them quit smoking and eat healthier? It doesn’t stop with fast food and nicotine!

    No, but it actually usually starts in America, land of the free, primary home of the Temperance Movement.

    None of which has anything to do with the principle of consent. The principle of consent would prevent you force feeding somebody else food, but would protect your right to eat whatever you wish. Same for anything else. Smoking’s a difficult one, because if passive smoke is poisonous, then actually yes people do have a right to not be poisoned, same as they have a right not to have anthrax blown in their face by another citizen, though they have a right to go to an anthrax bar and voluntarily inhale it.

    I don’t think passive smoke is poisonous, but if it is, well, you can expect somebody who you poisoned to take you to court, same as with any other assault with poison.

    You don’t think it should be legal for me to set off a cannister of mustard gas in your face, do you? Phosgene?

  • Nuke Gray!

    Current, a better name would be ‘proprietist’, from ‘proprietism’, and ‘proprietary’. And how about linking in John Locke’s name, since he was an early advocate of property rights? Lockeanism, anyone?

  • Current

    Nuke Gray,

    Proprietist, I suppose that’s quite a good name.

    Midwesterner,

    You are missing Ian B’s point. Even if “the people” determine who rules they still do so by force. Even in the past the US had a federal government. Since, as Ian B says, there must be some force that supports the existence of multiple competing states.

    We Classical Liberals/Libertarians/Proprietists should always remember that “the people” are _not_ our allies, not currently. Talk to the people, they are socialists almost to a man. Something that we will have to persuade them out of.

    All,

    Unfortunately most of the arguments for libertarianism that come from basic moral principles are full of holes.

    The economic and social arguments however are not. Socialism is the only alternative and it doesn’t work. Redistributionism relies on politics which is plagued by the problems of ignorance of the masses.

    Read Jeffrey Friedman’s paper “Popper, Weber, and Hayek: The Epistemology and Politics of Ignorance.” and his debate with Bryan Caplan:

    http://www.criticalreview.com/crf/jeffreyfriedman.html

    I don’t agree with everything Friedman says, I especially don’t agree with his opposition to Public Choice. But he is broadly on the right lines.

  • Pa Annoyed

    “So far as I could tell you were proposing something internally inconsistent- that is, trying to use the proposed rules to argue against the existence of the rules.”

    I think I was proposing a different set of rules that I was fairly sure you wouldn’t agree with but that still met the condition for your meta-rule. The idea was to demonstrate that the meta-rule didn’t capture the relevant property of the rules.

    The point is that when you get a conflict of interest, moral rules quite commonly pick one participant to have all the rights, and require the right-holder’s consent to apportion interests the other way. (Utilitarianism does the same.) So given the default, you can derive all the other cases using the consent principle, but the consent principle doesn’t tell you what the default is.

    All I did with my examples is pick a different default. I assigned the rights to the other person, and then required the new right-holder’s consent to change things.

    It’s not inconsistent, unless you try to keep the original defaults going at the same time.

    “But anyway, we see the flaw clearly. Bob is not being asked to consent to anything- it is Anne that is. This becomes clearer when we realise that the word “consent” is synonymous with the word allow. Anne is the one being asked to allow something, not Bob. That’s where our asymmetry comes from.”

    Ah. That’s a different distinction. The distinction you seem to be making here is between the active and passive participants, (or possibly subject and object?), and requiring consent of the passive participant for the active one to act; to change the status quo.

    That’s the foundational principle you’re using to replace Utility (as far as I can tell). It’s a viable alternative, certainly.

    So to take theft again, if A has a pile of money, A has to give permission for B to take it. But suppose B has borrowed a pile of money from A, and refuses to give it back. That’s often thought of as theft too, but now it is A who wants to do something – transfer the money back – and B who is being asked to allow or help A to do it. Can B refuse permission indefinitely?

  • Ian B

    Did B consent to return the money before he borrowed it? The term “borrow” would seem to suggest that to be the case. If so, he has already consented to return the money, so the legal system merely enforces that consent already given.

  • Pa Annoyed

    No, he always intended to steal it.

    And anyway, consent can be withdrawn. If the lady says ‘yes’, and then later says ‘no’…

  • Ian B

    No, he always intended to steal it.

    Then A gave the money to B, and there is no case to answer. There is no theft either. Your scenerio is that A simply handed some money to B, without conditions. They did not agree that the money should be returned.

    I do not see what case you are trying to make.

    And anyway, consent can be withdrawn. If the lady says ‘yes’, and then later says ‘no’…

    Contractual consent cannot be withdrawn under normal circumstances. That is the whole point of contracts. If you want to terminate a contract (which is merely a written declaration of consent by both parties) then you’ll have to buy your way out somehow. Contracts which are not binding are not much use.

    The lesson is to be cautious regarding what you agree to.

    In the particular case of “the lady saying yes”, it is recognised that sex is an ongoing consent situation, and no formal binding consent has been entered into. That is, no formal declaration of future consent has been made. She has only consented to participate until such point as she wishes to cease participation. While one could formally declare that, in most pratical situations- at least outside the entertainment business- such provisional consent is assumed to be the default case. The lady may have said yes, but is entitled to say “stop” at any point.

    Such ongoing consent situations are a routine part of life. Where there is doubt, a formal contract should be signed.

  • Pa Annoyed

    No, B implied to A he was going to return it, but never intended to. He was lying.

    Nothing wrong with lying, is there?

    “…it is recognised that sex is an ongoing consent situation…”

    Is it? Aren’t you just assuming that, rather than deriving it from your consent principle?

    Why not claim that contracts are also on an ongoing consent principle? Yes, I know I signed a binding legal contract ten minutes ago, but I’ve changed my mind now that I’ve got the money. I no longer consent. And without consent, the contract must be void – by the consent principle.

  • Ian B

    No, B implied to A he was going to return it, but never intended to. He was lying.

    Nothing wrong with lying, is there?

    Now you’re just being silly. B consented to return the money. He hasn’t. Therefore he’s in breach of consent (contract). It’s not difficult this. I’m happy to have a substantive debate about this, but frankly you’re just playing silly buggers in an attempt to manufacture contradiction. I can’t answer your point, because you aren’t making one.

    Is it? Aren’t you just assuming that, rather than deriving it from your consent principle?

    I’m not trying to “derive it from my consent principle”. I never suggested or implied that the totality of the human condition can be derived from such a principle. If I did, I’d have written the definitive work on philosophy and would be off to get my Nobel instead of typing in comment boxes on the internets.

    The idea that sexual (and many other types of) consent are ongoing doesn’t derive from a consent principle, it derives from human nature. Like, people enjoy gardening. That doesn’t derive from my consent principle either. It just is. We can apply the consent basis of law to who is allowed to poo in a person’s garden, but the idea of having a garden comes from somewhere else in the totality of human existence and experience. I’m not attempting to explain the entire universe here, just give a consistent basis for a legal system. If that’s not enough, I am sorry to disappoint, but sadly it is all I have to offer.

  • Pa Annoyed

    It’s difficult to get one’s head around the implications of alternative moral principles, and I’m probably not doing a very good job of explaining it.

    This conversation started with various criticisms of Mill’s ‘harm’ principle and the claim that they could be replaced by a ‘consent’ principle, which everyone seemed to agree was better. The problem is, I don’t think it is; I don’t think it offers a like-for-like alternative without sneaking in a raft of unstated assumptions. Consent or its lack is symmetric between the participants in any conflict of interest, and can be applied as easily to the cheats and criminals as to the law-abiding and upstanding. Instead, you sneak in one-sided things like “binding contracts” and “ongoing consent situations” not derived from the principle so that it can give the “right” results. They achieve the desired resolutions for conflicts of interest by begging the question with their definitions.

    And all my attempts to show that if you change the imported assumptions you get the “wrong” results are labelled as “silly”. I assume this is because they’re not recognised as being assumptions.

    Well, there’s not much I can do to argue with that. So I’ll stop trying.

    Mill’s aim with the harm principle was to derive the totality of the human condition from it. While the one-paragraph summary that most people know is indeed vague, there is copious detail available about how it is to be applied. If you want to replace it with a ‘better’ principle, I think it would need at least to be able to explain everything it explains.

  • Alisa

    I see that my last comment went unnoticed, so I’ll try again:-) PA, the problem with the harm principle is that the concept of harm is subjective (a masochist likes to be beaten up etc.). Thus, it is being replaced by a consent principle, its relative advantage it being objective: we are not asking whether A harmed B by beating him up, but whether B freely agreed to be beaten up. So far so good?

  • Alisa

    I shouldn’t have hit the button quite yet. The important distinction here is between moral principles and practical ones, the latter intended to serve the former, and the latter being objective, while the former being subjective. In this particular case: do no harm/the golden rule/etc. are moral principles, so they are subjective (what A views as harmful B may view as highly enjoyable). What we need then is a practical principle (i.e. an objective one) to be able to reconcile various people’s differing views on what is harmful. The consent principle is just such principle, and Ian suggested it as such. Thus, his further arguments are also made from practical, not moral considerations.

  • Alisa

    One last note, and then I promise to go to bed: of course any principle can be held as a practical one by one person, and as a moral one by another – the consent principle is no different. I am just making Ian’s case for the purpose of this particular discussion (I hope he doesn’t mind, and I am sure he will refute me if he does).

  • Pa Annoyed

    Alisa,

    Yes, which is exactly why Mill restricted it to the harm done to others. “His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right.” The reason for this is that with regard to themselves, everybody is their own best judge of what constitutes harm to them. Anybody can consent to being ‘harmed’. (With the caveat that it be ‘informed’ consent.)

    In the sense you describe, Utilitarianism already contains the consent principle.

    The point of the harm principle is that “beating up” involves harm and therefore requires consent or justifies interference by society, while other activities like offending somebody, or looking at somebody do no harm, and therefore require no permission and justify no interference.

    The harm principle makes this distinction. The ‘consent principle’ as such does not say why beating somebody up requires consent, but looking at them in a funny way does not. That has to be imported with additional assumptions or definitions.

    Does that help?

  • Nuke Gray!

    Current, a term used on Mises-blog is ‘allodial’ and ‘allodium’, old terms meaning land free from forfeiture. This would be something I’d support! Allodialism, or Allodiumism?

  • Alisa

    Yes, it does help, as it seems to clarify where the confusion might lie: a ‘concept’ is not the same as a ‘principle’, as the latter, unlike the former, implies some kind of a rule according to which an action must be taken (rules cannot be subjective). The concept of harm is a perfectly valid one. Morever, its use cannot – and should not – be avoided when dealing with conflicts of interest. Let me see if the following formulation can clarify this: a person can claim to have been harmed when their property (I use the word here in the widest possible sense) has been trespassed without their consent. So of course subjectively, as far as the trespassed property owner is concerned, it’s the harm that matters. But, this concept being subjective, it is not useful for arbitration purposes, in other words, it cannot serve as a principle (rule).

  • Alisa

    PA, I forgot to add that I haven’t read Mill, so as to avoid putting words in his mouth, I am responding only to what you said. Also, in case this is not obvious enough: looking at someone in a funny way does not involve trespass of property, beating them up does (our bodies are our property).

  • Ian B

    Pa, if you want to derive laws from the “harm” principle you get into very big trouble. Rape does not cause “harm” by the definiition you appear to be using. It causes distress, but you’ve declared above that distress is not harm. Your principle can’t even give me a law against rape, so it’s a pretty useless principle really.

    On the other hand, if the individual is the judge of their own harm, we get the other extreme- anyone can declare anything to be harmful- such as being looked at in a funny way- and they are the best judge of that, so you can’t argue with them. Which is pretty much where we are today with progressivist lawmaking.

    Consent gives us a clear reason why rape is illegal- it is a violation of the person’s right of consent. We don’t need to prove whether she or he has been harmed. The act is illegal regardless, because she did not consent to this interaction with the perpetrator.

    And going back to looking at somebody in a funny way- try staring at somebody in public and see what reaction you get. “You got a problem, pal?” People naturally think there’s a consent principle there too.

  • Paul Marks

    J.S. Mill (NOT Pa Annoyed) used the “harm” principle, because he wanted to get away from the nonaggression principle of the Common Law.

    I do not want to get away from the nonaggression principle (the old style definition of justice – i.e. not violating the bodies or goods of others) so I do not use a J.S. Mill style harm principle. Of course one can say that bankrupting a company by selling better quality goods or cheaper ones is “harming” the owner (after all the owner of the bankrupted enterprise may starve to death). But it is more than this.

    For example, J.S. Mill said (in “On Liberty” 1859) that. whilst he favoured free trade (either internal or external) on the grounds of political economy – it was not part of the principle of liberty as he understood it.

    It is part of the principle of liberty as I understand it. And I reject the idea (again of Mill) that there is fundemental differences between restrictions on selling and restrictions on buying (the first being an “other regarding” act, the second being a “self regarding” act).

    By and large the old view of what justice is and the principle of freedom (mocked by Plato thousands of years before J.S. Mill tried to by pass the nonaggression principle) is a better guide than the works of philosophers who seek to be philosopher kings.

  • Pa Annoyed

    Alisa,

    “Let me see if the following formulation can clarify this: a person can claim to have been harmed when their property (I use the word here in the widest possible sense) has been trespassed without their consent.”

    Yes. The trespass is the harm, the lack of consent means no exception is being made.

    “looking at someone in a funny way does not involve trespass of property”

    Why not? In the widest possible sense, a person’s appearance (if they are a celebrity who can charge for it) and privacy might be considered possessions. As IanB says below, some people think this requires consent too. This is what I was saying earlier. You appear to have a separate list of criteria defining what may be possessed and what may not, and resolve conflicts of interests by checking who has the right. But how do you decide when and to who these are assigned?

    The aim of the Utility principle is to justify this assignment. Things can be possessed if overall it enables a happier and more prosperous society.

    Consent doesn’t make this separation. On its own it seems to say everyone can claim ownership rights in everything, and you would require consent from both parties in every disputed case. That clearly can’t work. So you instead assign rights so that only one person’s consent is required, and effectively they can decide the matter whichever way they like. And you make sure to assign the rights to fit your conception of justice, as defined by some other unstated principle.

    OK, but what is that other principle? That’s what you need to put forward to challenge Utility.

  • Pa Annoyed

    IanB,

    “It causes distress, but you’ve declared above that distress is not harm.”

    Did I? I shouldn’t have.

    “Consent gives us a clear reason why rape is illegal- it is a violation of the person’s right of consent. We don’t need to prove whether she or he has been harmed. The act is illegal regardless, because she did not consent to this interaction with the perpetrator.”

    Sure. Rape is wrong because a person has a “right of consent” not to be raped. That explains everything.

    Does every interaction between people require consent from both parties? Is interaction the key?

  • Pa Annoyed

    Paul,

    “J.S. Mill […] used the “harm” principle, because he wanted to get away from the nonaggression principle of the Common Law.”

    Where did you get that idea? And why would he want to?

    I spent some time trying to think of how aggression was distinct from doing harm. Harmless aggression? Harmful passivity? I thought this might be something to do with justification by good intentions, but I wasn’t sure.

    Yes, Mill mentioned Socrates reportedly being a Utilitarian. “And do you, Protagoras, like the rest of the world, call some pleasant things evil and some painful things good? – for I am rather disposed to say that things are good in as far as they are pleasant, if they have no consequences of another sort, and in as far as they are painful they are bad.” I fear I am not as good a disputant as Socrates (or possibly Plato cheated). Either way, I found it an interesting point – I had previously considered the harm principle to be a justification of non-aggression; to be arguing in favour of it. I hadn’t previously considered that anyone could think the two distinct, and opposed. So thanks for that – I’ll have to think about it for a bit.

  • Alisa

    PA, it just downed on me that you are actually making a case for utilitarianism – sorry, I guess I should have read you earlier comments more carefully. In any case:

    Why not? In the widest possible sense, a person’s appearance (if they are a celebrity who can charge for it) and privacy might be considered possessions.

    Not objectively they can’t. The key word in the phrase ‘widest possible sense’ is ‘possible': it is physically impossible to prevent people in a crowd from looking at each other. When celebrities sell their looks, they do so only in a subjective sense. In an objective sense what they sell is some physical property: a magazine, a roll of celluloid with their images on it, the sheet of white fabric onto which theses images are projected, etc. (Note again this recurring theme of subjective vs objective – it underlies this whole issue).

    You appear to have a separate list of criteria defining what may be possessed and what may not, and resolve conflicts of interests by checking who has the right. But how do you decide when and to who these are assigned?

    I don’t – individuals do that for themselves, and when more then one individual is affected (which is what actually happens most, if not all of the times), they settle this through various agreements (which may be, and very often are, unwritten and even unspoken). Where “I” come in is when there is a dispute of such an agreement. The only objective way to settle a dispute is to determine the existence of an agreement in the first place, by way of establishing consent. For example: there is an unspoken agreement that when you patronize a restaurant, the cook will not try to poison you. If the cook did poison you, either he ignored this agreement (i.e. he hates you because you happened to seduce his wife), or he was unaware of this agreement (i.e. he is a nutcase). In the first case he gave his consent, but breached the agreement. In the second, he did not give his consent, and so no agreement has been breached.

    On its own it seems to say everyone can claim ownership rights in everything, and you would require consent from both parties in every disputed case. That clearly can’t work.

    Why not?

    So you instead assign rights so that only one person’s consent is required, and effectively they can decide the matter whichever way they like. And you make sure to assign the rights to fit your conception of justice, as defined by some other unstated principle.

    But that is the whole point: I do not assign rights (mainly because I do not believe in their existence), I merely arbitrate disputes.

    The aim of the Utility principle is to justify this assignment. Things can be possessed if overall it enables a happier and more prosperous society.

    Again, I am not in the justification business, I am only in the business of establishing the facts of an existence of a freely consented to agreement. And, I am not concerned with society and its happiness or prosperity, only with individuals and their interactions with each other.

  • Pa Annoyed

    Alisa,

    Thanks for persisting.
    I have to be careful about saying what I’m making a case for. I don’t actually believe Utilitarianism is how it is done in practice, and I do think it has some philosophical problems, but I don’t think anyone here has more than touched on those. I’m trying to explain what the standard argument for Utilitarianism is, because I think the criticisms set out here are based on misunderstanding of it, and I don’t think the alternative being offered is capable of replacing it. For the moment, you can think of me as making a case for Utilitarianism.

    Similarly, I think that you are also making a case for Utilitarianism, but arguing that the test of what constitutes harm cannot be done objectively by a third party, and so requires that it always be assumed it does and explicit consent has to be given beforehand. If so, then I misunderstood and I don’t have such a problem with the principle. Although I don’t think it’s what happens in practice.

    “…it is physically impossible to prevent people in a crowd from looking at each other…”

    Well, to be “silly” about it, you can make them all wear blindfolds. But ‘in practice’ you would first have to negotiate the permissions before you allowed people to form a crowd. Either way is impractical, but practicality is not the issue, the principle is. Is impracticality the only reason it isn’t done? Does the consent principle apply to any interaction between people, including those that evidently do no harm? If you can show that it does, you make your case.
    And if you don’t like the example, you can pick a better one.

    It’s not quite the same, but the burka issue is based on a similar idea. People really are capable of thinking in that way.

    “For example: there is an unspoken agreement that when you patronize a restaurant, the cook will not try to poison you.”

    That would seem to be covered by the harm principle, too.
    I think when you say “there is an unspoken agreement” you mean there ought to be an unspoken agreement. If the cook hates me, he does not, in fact, agree. There is no actual agreement between the participants to be ignored.

    Another question – is consent an agreement/willingness in the mind, or simply a verbal form? If I say I consent but am lying about it, is that consent? Can I change my mind about consenting, and say I did consent but don’t any longer, or is it permanent? Do I have to go through with something I’m extremely unwilling to do and think does me harm, because I earlier said “yes”? If I consent on the basis of a misunderstanding or having been told a lie – I consent to eat the dinner because I think it isn’t poisoned – does that count? If I negotiate with terrorists, do I have to keep my word?

    Even with consent, it isn’t straightforward.

    “Why not?”

    Because it’s a disputed case.

  • Alisa

    PA, I’d much rather persist with this than with the term papers I have to write, but I will not be the least offended if you choose to persist with something else:-)

    I am not making the case for Utilitarianism as a (subjective) moral stance, although I certainly am debating the utility of various principles in the upholding of my moral convictions. The difference can be subtle, but crucial.

    and so requires that it always be assumed it does and explicit consent has to be given beforehand

    You make it sound much more complicated and cumbersome than it actually is: most of the times our consent to the terms of our presence on a property is implied by that actual presence.

    but practicality is not the issue, the principle is

    Of course, that’s why I never mentioned practicality, but rather physical possibility – not the same thing. Remember that principles are rules that govern our actions, i.e. our physical behavior. For our purposes, consent is synonymous with contract. I can promise you that for a grand I will grow you a pair of horns and a tail – now go sue me for a breach of contract.

    Assuming the cook is also the owner, he has an unwritten and an unspoken agreement with his customers that he will not poison them. If he wants to exclude those he hates, and/or those that seduced his wife, he should put on a sign saying so. On the other hand, it may be that in some societies he need not do this, as it is part of the culture (i.e. agreement), and everyone knows it.

    Does the consent principle apply to any interaction between people, including those that evidently do no harm? If you can show that it does, you make your case. And if you don’t like the example, you can pick a better one.

    Yes. I hope the above shows that – if not, feel free to persist.

    As to your last paragraph: surely you are familiar with the concept of ‘free and informed consent’? That should answer the first, and third(?) part of it.

    No, you can not retract your initial consent without the consent of the other party to the agreement, even if it causes you extreme harm.

    Terrorists: as I said above, I am not making a moral case here. You deal with terrorists – or anyone else for that matter – any way you like, but be prepared to face the consequences. Can the terrorists sue you for breach of contract? Or: do you feel morally obligated to uphold your agreement with them, regardless of whether they can sue you? It is all up to you.

    Even with consent, it isn’t straightforward.

    Of course, it never is.

    Because it’s a disputed case.

    Of course. We are discussing arbitration principles here, nothing else.

  • Pa Annoyed

    Alisa,

    So consent, contract, and culture are synonymous? And I can “agree” to something without saying or writing a word or ever having the intention of doing so? Without ever consciously choosing it?

    You’re right; you’re not arguing for Utilitarianism. This is even stranger than I thought.

  • Alisa

    Didn’t want to get even more wordy, but here goes. It is all about contracts:

    Consent is a fundamental condition for the validity of a contract, i.e. without consent there is no contract, so they are synonymous interchangeable for most purposes of this discussion.

    Some contracts take a form of what is known as ‘social conventions‘. Many of them become integral parts of a wider culture.

    When you walk into a restaurant, you normally assume that you will not be purposely poisoned – do you not? (Unless maybe if you happened to seriously piss off the owner) You also implicitly agree not to grab food from other people’s plates, urinate on their legs, and generally not to make a nuisance of yourself – do you not? Why do you find is so strange?

  • Alisa

    To give another example that unlike the above cannot be explained away by the Golden Rule: I assume that if you walked into an S&M club (if you were into this kind of thing), you wouldn’t just start beating people up without asking them first.

  • Midwesterner

    I am an individualist – about as hard core of an individualist as I have ever encountered, even here on Samizdata. But what are the epistemological underpinnings of philosophical and practical individualism?

    The only individual who can exist without social contacts with other individuals is one who lives in an existence void of anyone or thing capable of thinking. All others who do live in social contact with others must have borders between themselves or they cease to be individuals and become units in a collective.

    For centuries, philosophers defending individual liberty have sought to establish a ‘natural law(s)’ basis for these borders. This doctrine/belief cannot be found in the laws of physics. There is nothing in the laws of physics (nature) to prohibit collectives. Whether ant colonies, prides of lions, or human colonies of the past, present or future, or even plants for that matter, collectives work fine under the laws of physics. When collectivist humans market their projects, the promises on the wrapper usually violate the laws of physics, but the root concept does not.

    The nature of relations between human beings is a matter for human beings to resolve. For this reason, individualism must be ‘social’. And to be ‘individualism’ it must of course be consensual. The only way I can see for this to be is for individuals to each (individually) define the boundaries around themselves and then seek others who will agree to those boundaries.

    We can each determine our ideal boundaries by using our individual perceptions of reality and its laws to choose and enforce our value systems. But there are others who’s opinions differ. If you cannot find any others who will agree to your chosen boundaries, then you are quite literally ‘on your own’. That is why I am a ‘social individualist’. I find people that will mutually agree to our personal boundaries and we will try to increase our group, call it a social contract, into a strong enough group to assert and defend those boundaries.

    Is how this fits with Alisa’s and P.A.’s discussion obvious? I’m busy but and check in as I can.

  • Pa Annoyed

    Alisa,

    Yes, I can understand the Social Contract theory – it’s based on theories of civil rights by Thomas Hobbes, John Locke, Jean-Jacques Rousseau, Proudhon, etc. Rousseau and Locke used it to explain/justify the state and the authority of legislative law, and Hobbes was positively Authoritarian about it. (Although some of their oddities to modern eyes are due to the differences in contract law in the time of Hobbes and Locke.) The anarchist Proudhon was of the anti-capitalist variety (you may have heard of his quote “Property is Theft.”), so his theories would need some heavy editing to fit into our framework, at the very least.

    What I find so odd is seeing it here. It’s normally used as a justification of state authority, and the classic liberal response to it is “I never agreed to that!” It labels coercion (by either society or the state) as “willing consent”, and this Orwellian redefinition of language passes unnoticed. We freely consent to pay taxes. We freely consent to be spied upon. We freely consent to carrying ID cards and filling in forms for databases, because to be a native citizen of this country binds us in a contract we are deemed to have agreed to at birth, and that the government can vary at will. Well, I can’t remember much about my infancy, but I’m fairly sure I didn’t sign anything like that.

    Now Rousseau’s philosophy has a generally bad reputation amongst libertarians (at least, I thought it had) so I imagine you’re making some significant modifications to the theory, and I can’t criticise without knowing what they are. But the usual libertarian answer to Rousseau would seem to apply to Social Contract theory generally, so there would still seem to be some difficulty.

    In this conversation, I had thought initially that actual consent was being discussed – an unjustified assumption on my part, I fear – and some of my arguments regarding its practical difficulties were on that basis. I shall have to rethink matters.

  • Midwesterner

    So consent, contract, and culture are synonymous? And I can “agree” to something without saying or writing a word or ever having the intention of doing so? Without ever consciously choosing it?

    We are as a practical matter born into a culture that functions as a tacit social contract. To the extent that we accept its protections and benefits, yes, we are consenting to it.

    If we reject the culture/social contract we find ourselves in, then the only rationalization for claiming benefits from it is to aid in our escape from its grip. I have little time for libertarians who deny the obligation to pay for even legitimate defense of their host society and at the same time assert a right to live within it in safety. Either/or.

  • Pa Annoyed

    Mid,

    “We are as a practical matter born into a culture that functions as a tacit social contract.”

    I would have said that as a practical matter born into a culture that functions as a benevolent dictatorship. It has its benefits, it can be influenced if it’s a democracy, it’s not impossible to opt out (if you can find somewhere better that will let you in), and it may well be in many cases that it does what I would have chosen to do anyway, had I been given the choice.

    But the fact is that I wasn’t offered a choice. This idea of “consent” is an Orwellian fiction.

    There are situations where there is genuine tacit consent involved, but the rules of society at large are not one of them. I’m not saying that’s necessarily wrong, either. I’m less inclined to be worried about the State than most people here.

    As far as I’m concerned, I don’t abuse people in restaurants (and would expect to be stopped if I tried) because it would constitute harm to others. I don’t cheat on taxes fundamentally because the government is bigger than me. In neither case do I consider it a voluntary ‘contract’.

    Social Contract theory has a long history, and I don’t want to be seen as unconditionally criticising people here for holding to a different point of view. It’s not generally regarded as a disreputable a school of thought. But it’s not what I initially thought this conversation was about.

  • Alisa

    PA, I am sorry, but I haven’t read any of the philosophers, so I consulted Wikipedia, and the first paragraph says:

    Social contract describes a broad class of theories that try to explain the ways in which people form states and/or maintain social order. The notion of the social contract implies that the people give up some rights to a government or other authority in order to receive or maintain social order.

    Social contract theory formed a central pillar in the historically important notion that legitimate state authority must be derived from the consent of the governed. The starting point for most of these theories is a heuristic examination of the human condition absent from any structured social order, usually termed the “state of nature”. In this condition, an individual’s actions are bound only by his or her personal power, constrained by conscience. From this common starting point, the various proponents of social contract theory attempt to explain, in different ways, why it is in an individual’s rational self-interest to voluntarily give up the freedom one has in the state of nature in order to obtain the benefits of political order.

    Thomas Hobbes (1651), John Locke (1689) and Jean-Jacques Rousseau (1762) are the most famous philosophers of contractarianism, which formed the theoretical groundwork of democracy.

    If this is it, then it is so full of false assumptions that I wouldn’t even know where to begin fisking it.

    Mid: yes, I think it fits in quite nicely, by looking at different aspects of the issue from different perspective – always useful.

  • Alisa

    Preview is my friend: the rest of it should be block-quoted, all the way to ‘Mid’.

  • Alisa

    Damn, this is still not good, so I’ll have to re-post the whole damn thing – sorry:

    PA, I am sorry, but I haven’t read any of the philosophers, so I consulted Wikipedia, and the first paragraph says:

    Social contract describes a broad class of theories that try to explain the ways in which people form states and/or maintain social order. The notion of the social contract implies that the people give up some rights to a government or other authority in order to receive or maintain social order.

    Social contract theory formed a central pillar in the historically important notion that legitimate state authority must be derived from the consent of the governed. The starting point for most of these theories is a heuristic examination of the human condition absent from any structured social order, usually termed the “state of nature”. In this condition, an individual’s actions are bound only by his or her personal power, constrained by conscience. From this common starting point, the various proponents of social contract theory attempt to explain, in different ways, why it is in an individual’s rational self-interest to voluntarily give up the freedom one has in the state of nature in order to obtain the benefits of political order.

    Thomas Hobbes (1651), John Locke (1689) and Jean-Jacques Rousseau (1762) are the most famous philosophers of contractarianism, which formed the theoretical groundwork of democracy.

    If this is it, then it is so full of false assumptions that I wouldn’t even know where to begin fisking it.

    Mid: yes, I think it fits in quite nicely, by looking at different aspects of the issue from different perspective – always useful.

    There, better now.

  • Pa Annoyed

    Alisa,

    Yes, that’s the cookie. You see now why I was so surprised to see something apparently similar here?

    I’d particularly recommend reading the bit on Proudhon in that article for a somewhat different perspective on the same general idea – it’s not all Statism. Like I said, much of what Proudhon thought was rubbish (with apologies to the anarchists here), but at least he didn’t use it to justify the state. Also see the section on criticism. David Hume has fisked it for you, so you don’t have to.

    Like I said, my assumption is that you guys have a somewhat different version to Rousseau. A lot of this is my preconceptions talking. But I’ll pursue that on another occasion. I think this thread is approaching the end of its lifetime, and I suspect it would take a long debate to tease out the details.

    Mid,

    Your contribution is appreciated, as always.

  • Midwesterner

    My apologies for this convoluted, tangled up word puddle.

    When I say ‘social contract’ please do not assume any of that term’s historical baggage. Often times words have meanings imposed on them that are contrary to their original meaning. An example in the US is ‘Federalist’. The nationalists in the US founding era took for themselves them name ‘Federalists’. This left the true federalists rather paradoxically naming themselves ‘Anti-Federalists’ because they opposed the policies of those calling themselves ‘Federalists’, not because they opposed federalism.

    For my definitions and apparently most others, ‘contracts’ are agreements between parties. They do not include the power to bind non-parties to the contract. And yet, by associating ‘social contracts’ with democracy, those philosophers are redefining ‘contract’ to mean something that it does not.

    I can have two responses to these language attacks. I can abandon good words or I can continue to use the words correctly and attack the abuse of them. That is what I am doing when I use the term ‘social contract’. Democracy and consensual contracts are contradictions in terms. A constitutional republic is not a contract with a government. It is a contract among individuals. There is no moral presence to government under an individualist constitution.

    There is no better way to describe what I want to describe, the consensual defaults in social interactions ie ‘implied contracts’, than to refer to it as a ‘social contract’. There are in my thinking explicit contracts and implied/social contracts. I imply my acceptance of the laws of my society by accepting the benefits of my society. But in no way do I concede any intrinsic moral presence to ‘government’. Government only administers the social contract on behalf of its consenting participants. When it ceases to reflect what ‘its’ citizens desire, it becomes nothing more than an extortion racket. This applies on all scales from 1 to a majority. To the extent the US refuses American citizens the right to engage in foreign/foreign business without paying a cut to the US Treas even after giving up citizenship (I think this may have changed) it is nothing more than extortion. To the extent that it ignores its constitutional bindings its is a criminal enterprise.

    So by ‘social contract’ I meant strictly to refer to the unwritten but none-the-less accepted tacit conventions within a society. Much of ‘social contract’ theory appears to look a lot like ‘democratic socialism’. If you do not accept your host society’s conventions, then it should obvious there is no contract on either side. But it is hypocrisy to claim benefits from a society one rejects.

    It appears from the paragraphs that Alisa quoted that traditionally ‘social contract’ is utilitarian and pragmatic that can be imposed democratically. The social contract I am referring to is an individually, not democratically, accepted contract. It comes from the opposite direction of pragmatic utilitarianism and is based in the value of individualism and individual consent.

    That said,

    I would have said that as a practical matter born into a culture that functions as a benevolent dictatorship.

    Absolutely. Yes. I never said that the culture/social contract* one is born into is any good. Some are overtly collectivist, all of them that I am aware of are to varying degrees collectivist. I am describing what the boxes are, not what is actually written in them.

    * It is only a contract if you accept it. You only ‘consent’ to the one you are in to the extent that you claim a right to its benefits. If you do not claim anything from it then you are a captive. If you are not accepting, consenting to it, then it is not your social contract. It is a collective exercising force to retain you for its own purposes.

    I hope this didn’t contain many major brain-farts. Small hope. I’m afraid I don’t know of any philosopher who puts this clearly that I can refer you to. Maybe you or Alisa can sort out what I was attempting to say. In spite of my efforts to sort it out I’m afraid it is more ramble than essay.

  • Midwesterner

    Okay, I’m still finding brain farts. ie:

    So by ‘social contract’ I meant strictly to refer to the unwritten but none-the-less accepted tacit conventions within a society.

    Well, I meant unwritten in the form of an explicit contract between each member. Accepted tacitly as the laws are accepted without thought. The laws as a societal convention. Okay, I’m making this worse not better.

  • Alisa

    Mid, you make some important points. For example, how does government figure into all this, which I haven’t even began to address.

    Claiming benefits: if you are imprisoned against your will and are being fed, you accept you meals or you die.

  • Midwesterner

    By ‘claiming benefits’ I am referring to people who seem to think that the liberty and safety in the US ‘just is’ and they want to claim a piece of it. People who never think a TV or a car would ‘just happen’ have no trouble believing that peace and safety does. People who drive on highways should pay the license and fuel taxes or build there own highways.

    It is specifically the idea of willfully taking from with out acknowledging any obligation to. I have no problem with people demanding the right to leave the society in which they find themselves. It is when they claim a right to the existing society’s benefits but unilaterally reserve the right to reject its terms.

    On the other hand if you are trying to escape, then of course you can use what you like without obligation to make your escape. The people I am talking about don’t want to escape. They want a free ride and the right to write their own terms.

    But FTR, when a government abrogates its constitution, it is the criminal. This was the impetus behind the American revolution. When enough people decide the government has overstepped its mandate far enough to warrant response, then things get ‘interesting’. Already there has been a steady stream of states’ legislatures considering sovereignty resolutions. When they start passing them will be a sign of impending upheaval unless the national government backs down and federalism is reinstated.

  • Alisa

    Well, I agree in principle, but there is a fine line there. For example, they won’t really let you build your own roads. And there is nowhere to escape to.