Libertarianism and Moral Authority

A brief inquiry with no answers into some moral and epistemological issues of politics.

Two Definitions

The notion of "moral authority" carries two associations one of which by far predominates. In this common conception someone by his own observance of a particular law or virtue is said to have the "moral authority" to pass judgment on someone else's violation of that principle. For example, a very honest man might have the "moral authority" to pass judgment on someone else's honesty. We see this logic more casually adopted when a man is said to be a hypocrite for accusing others of violating a principle he himself violates. For example most people would balk at the notion of a frequently tardy man chastising someone else for being late. The reasoning of this interpretation of moral authority is that observing a law or exercising a virtue gives you the authority to judge whether or not that law or virtue has been violated. This concept of moral authority is concerned with identifying the moral deed or misdeed.

The second notion of moral authority concerns more complicated matters. This aspect concerns what to do when some principle or virtue has been violated. "Authority" in this sense means someone has the authority to act, either preemptively or punitively, on someone else's actions. Where might this authority come from? We will not here get too bogged down in metaphysics and epistemology so let us merely examine two alternatives. In one conception some authority exists, derived from somewhere. Perhaps it comes from a council of men or a king or a deity or by sheer nature. Most people would fall somewhere in this category since most people believe, I suspect, that it is moral, for example, to incarcerate murderers and offenders of equally serious crimes. Fewer people believe, though, that they have the authority to tell someone what kind of food he can eat.

Now it is not easy to justify telling a man what to eat but it seems rather so to justify incarcerating a murderer. Yet anyone concerned with liberty must ask: where does the authority come from? Even if a given behavior is thought to be wrong, what gives you the authority to right it? The only explanation seems to be that because the world ought to be a certain way that it is naturally moral to make it that way. Corrective action is merely returning nature to its proper state. There are two extremes to this question of moral authority, one in which the individual has the moral authority to order others as he desires and another in which he has no authority whatsoever. It is not hard to imagine the totalitarian world of the first scenario but trying to imagine the second might be fruitful. Could this most liberal society exist?

Let us take an examine the situation of an alleged crime where no one has any moral authority to compel anyone to do anything. Let us say only that a man has a right to his life and his property. Suppose a murder is committed. Whose rights were violated? Only the murdered man's. Where would the authority to jail him come from? How does the authority to arbitrate what happened and to decide how to react to it fall to particular people? How would it fall, say, to me? My rights weren't violated. Do the man's rights somehow get automatically delegated in certain situations? What if I came upon him as he was being attacked? Could I intervene? How would his authority to protect himself get to me (obviously presuming he wasn't aware of my presence)?

Now this example naturally seems ridiculous but it defines more clearly this other sense of "moral authority" because I think most people would justify intervention or incarceration of the offender by saying something like, "Because it is always/naturally wrong to murder someone it is always/naturally right to prevent a murder from occurring." Stated as such this notion of moral authority is essentially the justification for all laws and it is more often and more simply stated that "some things are just wrong." Most people agree about murder, but what about issues of the environment, or poverty, or inequality, or abortion? There is discord about those issues.

How we arrive at what we think is morally right and wrong, as we said above, varies. Yet inevitably we create some conception of a world with particular "natural" rules. We may justify it in a variety of ways. It may be unique to us or common amongst a few or many. Now we have separated judgment from action in distinguishing two types of "moral authority." If one denies the latter conception, the right to force someone to do something, can there be said to be a political aspect to that type of authority? It would seem not since no action is involved. Of course if you acknowledge the authority to enforce, even in some circumstances, then agreement on the "natural rules" (however many there are) and the methodology of justifying them are unavoidably political matters.


Libertarian Politics

With those observations in mind I wish to examine two ideas: federalism and libertarian politics. The first notion would seem to alleviate the problem of both moral authority and epistemology. The laws the most people agree on apply to everybody and the laws the fewest people agree on apply, at minimum, only to the individuals who believe them. If people geographically arrange themselves then the people with similar ideas can live together and most people won't have to live under laws they disagree with. That a democratic-republican society functions at all might seem to suggest that federalism has met with some success. Yet it does not truly answer any question about morality or necessity of moral authority.

Force a libertarian to do something and you will often get the response "On what authority?" (You'll probably get a few other words too.) Indeed one might say the essence of libertarianism is the principle of not initiating force and to varying degrees a libertarian would deny the moral authority to initiate force. We say initiate because it is consistent with libertarian position for an individual to respond with force to forceful aggression against his fundamental rights. Politically this would translate a lack of laws, a system in which all is legal that does not interfere with the rights of another.

Let us take this position to its extreme, though, and suppose that there are no laws (i.e. rules backed up by the threat of force) of any kind. (More practically this idea would be advocated as "no rules you did not vote for," which would be tantamount to our hypothetical situation if you decided not to assent to any.) We will see this position to be the quite similar to the one in  our example above in which we acknowledge no moral authority of any kind. With this position, could you punish a criminal? Since he does not assent to your laws he's not technically a criminal. Suppose you signed a contract with him. You might think you are safe since you have his word. Well what does it mean to "have his word?" Suppose he says you forged his name and denies signing the contract? What if he simply says he changed his mind? By what principle is he bound to the contract and denied the right to change his mind? On what principle do you deny his account of events? As we asked before, what authority would any third parties have in the matter?

Putting aside the question of how to compel someone, what about punishing criminals?  Why is such a thing as a "penalty" legitimate? Why is a punitive measure morally acceptable? Does the person wronged decide the penalty? Are there limits? Why or why not?

Any answer to any of these questions would recourse to some principle, and any action on that principle would effectively make it a law, a law founded on the moral authority to enforce it. Even in such an extreme liberal society some laws would exist as common and in their commonality, in their being conceived as "real" or "natural," would be their legitimacy, i.e. the people would believe them axiomatically (whether they are derived by reason or faith or whether they are inherited or newly-fashioned.) Not only some common morality, but some common conception of metaphysics is required for a community. A disagreement over metaphysical issues, at least certain ones, would seem  invariably to lead to an impasse. Perhaps it would be more precise to say that to disagree over both certain metaphysical issues and then certain moral ones would lead to an impasse and inevitable conflict. Either you have to agree on laws, i.e. both the concept of law and specific laws, or agree to leave each other alone.

Can you have a society with a multiplicity of essential rules and metaphysical principles, i.e. with a multiplicity of "realities." For example, if a crime is committed can the wronged party determine what happened, arrest the perpetrator, and punish him on his own? It is commonly said that one man cannot be the "judge, jury, and executioner" rather some consensus as to what happened, what is wrong, and what to do about it must be reached. In this line of thinking the wronged party, though his right was the one violated, cannot be left to create his own (potentially erroneous) reality of what happened. Now of course consensus is not at all a guarantee of finding the truth but all alternatives would degenerate into either a situation with no authoritative account of what happened or forcing the unwilling guilty party to accept a particular account anyway. Is it necessarily the case then, that some force, majority, and belief in the truth of your principle, are required for a minimum degree of peaceful coexistence? We might say that the more one must believe by compulsion the less liberal the society. Can a society be too liberal? Can the principles of federalism and libertarianism, which push many moral and philosophical problems out of the political sphere, be taken too far? Is there an ideal (probably very small) body of laws which would provide sufficient common law to allow the remainder of decisions to be reached privately and voluntarily?


The Political Process and Being "Restrained to Reality"

We said earlier that the principle of federalism may be thought to ameliorate some of these problems by avoiding certain issues and creating a hierarchy of ones which at least some people can agree on. Now mind you, they are hierarchical in so far as the ones at the top are universally agreed upon and those at the bottom may be so unique as to vary on an individual basis, but this does not reflect the truthfulness of the principles. In this respect the principle of federalism allows us to evade the need for accord. Yet when people must interact accord is needed and it is in a courtroom that such accord is usually reached. With our observations above in mind we may ask how well our system deals with the problems we have come across. Let us observe the important aspects. 1) The two senses of moral authority have been broken up amongst parties, the jury deciding what happened and the judge deciding what to do about it. 2) The person who acts to enforce the law is another party still. 3) Both the defendant and the plaintiff receive advocates for their cause, i.e. their version of what happened. 4) The judge is bound by laws of precedent and the jury by laws and processes designed to assure their objectivity. 5) The defendant is innocent until proven guilty. 6) There may be an appeal of the verdict. 7) Lastly all parties are sworn to an oath obligating them to restrain their accounts to the "truth, the whole truth, and nothing but the truth."

Features one and two exist to separate "judge, jury, and executioner," a separation which has the virtues of using an expert to handle the law and a group of peers to determine the course of events but there is in fact a more important result and it is that the separation creates a system and thus a delay. Assuming there is no problem with having one man be judge, jury, and executioner if he were he could simply walk around legitimately pronouncing verdicts. (A slightly improved situation from the one we depicted earlier in which every person was judge, jury, and executioner.) Separating the roles amongst people necessitates a delay between the crime and the verdict/judgment, and a separation between the parties in conflict.

The third feature has two results. First it permits both parties to present their versions of events and wholeheartedly to advocate for themselves. Their attorneys prevent them from damaging their presentations of their cases. Second, it allows the jury to deliberate on the potential versions of the incident in question. By assuming each side is presenting the best case possible for his cause they assume that each version is the best presentation of that interpretation of events, thus the more likely of the two is the closest to the truth. Feature four has the effect of casting the net as far as possible when seeking objective observers. The judge is bound by the verdicts of similar situations in the past and the jury is selected to screen out people who might be biased.

Features five and six are designed to "lean on the side of liberty" rather than on the side of establishing order or even ascertaining the truth.

Lastly, an objective reality is presumed and all parties are sworn to it. You do not have to speak but if you do you are restrained to reality. The system does not concede that the situation must necessarily be knowable but it insists that there is only one legitimate version of it. It is even unacceptable to attempt to undermine this search for reality by omitting facts ("the whole truth") or by disguising facts amongst lies ("nothing but the truth.")

These seven features would seem precautions designed to determine the facts of a situation, pronounce a verdict, and pronounce a judgment while being sensitive to the philosophical issues at play (in this case epistemological and moral issues.) They attempt a fine balance between individual and society, philosophical certainty and doubt, and authority and liberty.

How successful are they? Do they defer too much to one principle?  Ought they be less moderate?