Posted on 02/04/2002 12:00:14 PM PST by ouroboros
One popular notion of "government with consent of the governed" is a republican form of government similar to the one defined in the US Constitution. That is not the only form; the feudal suzerain to vassal relationship is also government with consent of the governed.
My point is that under the nominally republican political system as it currently is, it is virtually impossible to delineate what is and what isn't consented to in our overweening government. Since the country isn't in revolt while both major parties openly work for larger government, we have to conclude that the larger government is consented to. Thus the minarchist belief, that a single government with consent of the governed always delivers a minimal government, does not obtain in modern America (nor in Europe). The proponents of freedom should then abandon this notion, as I did, and either hold up the truly consentual system of anarchism, where protection of rights is contracted to private security firms, or the moralist government that instills virtue more or less by force.
A contractual relationship is what I don't believe in. I was trying to get at something, but you didn't head in the right direction, but I think I can recover it. You mentioned later that not overthrowing the government is seen as tacit consent. It's not, but there's no reason to bring in the idea of consent in the first place. If the government protects life, liberty, and property, it's a good government, and if not, it should be reformed or, failing that, overthrown; this is not because it does or doesn't have consent, but because either leaving it as it is or altering or abolishing it is the right thing to do.
Thus the minarchist belief, that a single government with consent of the governed always delivers a minimal government, does not obtain in modern America (nor in Europe).
That's not the minarchist belief. I don't believe it, and neither did John Locke, the founder of contractualist minarchism. If you have consent, and nothing more, there's nothing that can't be consented to. Locke's whole point was to limit consent. In his view, men in the state of nature have the right to punish others who are guilty of crimes, hence, that can be consented away, giving rise to the judicial authority of the state. They do not, however, have the right to kill themselves, hence the right to life cannot be consented away. It is inalienable.
I defer to your understanding of Locke; you've drawn a very clear distinction between government by consent and government that protects unalienable rights regardless of consent. I wish you were around when I tried to discuss social contract on my Lysander Spooner threads.
As to the consept itself, I believe it to be self-contradictory unless unaleanable rights are understood, as I understand them, as something that can be consented away. Your description already produced a government that would consider suicide illegitimate, -- hardly a government rooted in liberty. More relevant to the issue of good government is the unalienability of property rights. In that arena, trade by its very essence is about consenting rights away: I abandon my rights to a dollar, you abandon your rights to a hamburger. Thus if property rights can be consented away, then we have a foundation for a state that taxes you at 50% (or 99%) of your worth. If property rights cannot be consented away, we don't have property.
I believe that the proper philosophy of rights is to distinguish between rights that are granted by authority (e.g. a right of way across property or a right to vote) and rights that do not require authority (e.g right of self-defense, non-disruptive speech or property). The latter are natural or unalienable rights; but either can be contracted, i.e. consented, away. The government derives its legitimacy from the consent of the constituents to the future laws that the present lawmaking process will produce.
If you'll forgive my saying so, you've got it exactly wrong. An inalienable right is one that can't be consented away; that's the definition of "inalianable". Your understanding is the self-contradictory, you're saying that something can only be inalienable if it can be alienated. You may disagree that there are inalienable rights, but you can't take them to be alienable.
Your description already produced a government that would consider suicide illegitimate, -- hardly a government rooted in liberty.
It's not clear what Locke would've thought. His argument against suicide was the same as his argument against murder, that both you and others belong to God, and as such should live on the Earth as long as He pleases, with just punishment for crime the only reason a person could rightly kill someone. He cited the commandment to Noah after the flood, "Whoso sheddeth man's blood, by man shall his blood be shed," to show that his one reason for killing someone was authorized by God, and therefore didn't contradict his argument from God's ownership. What I don't know is whether or not Locke regarded suicide as a crime in the Earthly sense.
Of course, my understanding doesn't contradict the dictionary meaning, since under my definition no one other than the right holder can contract it away. The essence of freedom is though that whatever is mine as a right I can do as I please with, includeing foreswear it. Would you comment on property rights and their unalienability?
Which is why Locke didn't build on freedom but on the absence of freedom, leading, ironically, to political freedom. He said you lack the right to do with your life as you please, and therefore that you cannot grant that right, which you don't have, to the government.
Would you comment on property rights and their unalienability?
Rights to a particular piece of property are alienable, but not the right to property itself, since it's inherent in humanity and is, as Locke put it, a kind of fence protecting life itself.
Let us now return to the issue of consent to government. You mentioned that the government has a just power to punish criminals because an individual has a right to punish criminals. I take it that you would agree to a broader statement:
The government has a just power to do on behalf of the individual whatever the individual has a right to do.How would you qualify the "right" in the above? Would you say that it has to be a natural right, but not necessarily an unalienable (in your narrow sense) right? I would think that you would; otherwise you need to explain to me why the ability to rescind the right has such a determinative logical connection to the just powers of government.
And now the critical question. When the government contemplates an action that would be rightful for an individual in the above sense, who is to decide whether or not to take that action, the individual or the government?
If you answer, "the individual", then you have described government by consent. That would be the ideal government that I recognize: the government would be allowed to act on its own in criminal law enforcement; would be asked to wait for a lawsuit in civil law enforcement; would be asked to do no enforcement of marital fidelity or rights to educate children, leaving that to the individual.
If you answer "the government" then you describe a system where the government picks and chooses which rights to enforce. It may for example, enforce rights of only particular class of individuals, stomp out adultery with vice squads, or allow crime to go unpunished for lack of resources.
It is amuzing that presently our government bears characteristics of both systems.
How would you qualify the "right" in the above? Would you say that it has to be a natural right, but not necessarily an unalienable (in your narrow sense) right? I would think that you would; otherwise you need to explain to me why the ability to rescind the right has such a determinative logical connection to the just powers of government.
I don't view it as a right. Like overthrowing a tyrannical government, punishing crimes is not so much a right that exists as an option as it is the right thing to do, a moral duty (in fact, overthrowing a tyranny is a subset of the larger duty). And I don't think it's alienated at all. Who would carry out a necessary revolution, if not ordinary citizens?
I think my way avoids your choice altogether. The government ought to punish crimes as best it can, and so should citizens. That may mean turning suspects over to the police, but then again, it may not. Neither are free to determine for themselves what constitutes a crime. Any violation of life, liberty, and property is a crime, including punishments inflicted for a fake "crime".
That is the second alternative: "the government picks and chooses which rights to enforce", - in other words, which rights violations should be treated criminally.
Why would I have to say on behalf on individuals?
You describe a system where the government just is, handed down from history, and acting not on citizens' behalf but because it chooses to, like a dragon in a castle. You then draw a distinction between good government and bad government, and you say that bad governments ought to be overturned. I assume they ought to be replaced with good, or better, governments. Two questions arise:
1. Is there an objective way to tell good government from bad government or is it something the citizenry determines implicitly as it goes through elections and revolutions?
2. How is the process of elections and revolutions, that reconstitutes the government, different from establishing a government with consent of the governed?
No it's not. All rights violations should be treated criminally. The government doesn't get to pick and choose, and neither does the majority or a king or some particular social class.
You describe a system where the government just is, handed down from history, and acting not on citizens' behalf but because it chooses to, like a dragon in a castle. You then draw a distinction between good government and bad government, and you say that bad governments ought to be overturned. I assume they ought to be replaced with good, or better, governments.
That's essentially right, but the government shouldn't act simply because it chooses to, but because it ought to. It's that fact, that they should act on right and not on mere will, that creates the distinction between better and worse governments.
1. Is there an objective way to tell good government from bad government or is it something the citizenry determines implicitly as it goes through elections and revolutions?
The objective way to determine whether it's a good government or not is whether it protect life, liberty, and property. The real difficulty is figuring out whether a bad government should be reformed or overthrown. It don't think a simple rule for that is possible.
2. How is the process of elections and revolutions, that reconstitutes the government, different from establishing a government with consent of the governed?
I suppose you could say the difference is theoretical, but the theories people act on do make a difference. If the important thing is getting the government the people want, they can replace a good government with a bad one. I don't believe that's legitimate. Instead, I believe that replacing a bad government with a good one should be seen as moving things as they are into alignment with things as they should be, not as moving things into alignment with someone's arbitrary will.
Show me.
Does what I want=what I should do?
That's a bold statement, A.J. What's the difference between minarchy and anarchy?
Right here he's shown the confusion. He's talking about moral values, but then starts talking about the Austrian school, which means ecomonomic subjective valuation. And in the next paragraph he says:
This theory of subjective valuation is, perhaps, the linchpin of the Austrian/libertarian approach, though not all liberals (particularly left-liberals such as John Rawls) have achieved the terrible simplicity of Ludwig von Mises, whose entire “science” of economics and praxeology is based on it. “Ultimate ends are ultimately given,” says Mises, “they are purely subjective.” Now, Mises might simply be uttering a fatuous tautology of the type, “I want what I want what I want . . . ,” but since he is at pains to defend his position as a breakthrough in the history of thought, we have to assume that he thinks he is saying something important, not just about economics but about human nature.
This makes it clear that he was talking about the economic theory in the first paragraph, and thus that he think the subjective theory of value is the same thing as moral relativism, or at least implies it. If Fleming is right, that poses a very serious problem for those of us who aren't moral relativists: the subjective theory of value is true. If the two are the same, we lose. You can't go arguing that moral relativism is wrong and that therefore the subjective theory of value just has to be wrong. That's like arguing from a moral position to the world being flat. It doesn't work like that.
Fortunately for us, they aren't the same.
You seem to be assuming that no social contract means no government. I don't agree with that. See #s 63, 69, and 71.
In fact, it seems to me that basing your government on any meaningful form of consent leads in a straight line to anarchy. I haven't seen an adequate reply to the anarcho-capitalist critique of tacit consent. Even if you go live in the woods, civil society will come after you for endangering a species. Locke's majoritarianism presupposes everyone agrees to be in civil society in the first place. If I don't agree, why should I be concluded by the majority of that civil society I never joined any more than I would be concluded by the majority of Frenchmen? If membership in civil society really does depend on consent in any meaningful way (not, that is, once in always in, and being born is considered tacit consent to enter), then any one person or group of persons can unconsent at any time, and what that leads to is Rothbardian secession: states have the right to secede, and if states have that right, so do counties, and cities, and neighborhoods, and blocks, and individual residents.
But seriously, this requires too much brainpower to answer now...will have to wait until after midterms for attention, or neuro grade will suffer dramatically.
I doubt that you really mean it. Should an unfinished repairs job be treated criminally? Should adultery be treated criminally?
moving things as they are into alignment with things as they should be
What is the objective criterion of what is and what isn't proper government? You say it's government limited to protection of life and property but that is open to interpretation. Who does the interpreting?
My impression is that you pick a rather arbitrary point on the scale and then you want to enforce that rigidly, in order to avoid any expression of popular will. Even assuming an objective interpretation of "life and property" exists, the point is arbbitrary. On one end, why should the government do even that? Most people can protect their own life and property just fine without any government; those who can't can hire a professional. On the other end, why can't citizens set up other government functions if they want to? For example, imagine that Social Security and public education were set up based on voluntary participation. I think that would be OK (even if the participants ended up with less value for their dollar due to the government's inherent inefficiency). But you would prevent the citizens from setting such wholly voluntary system up simply because that ought not be.
By "criminally", I don't mean jail, I mean that it should be dealt with by some sort of punishment. If a repairman violates a contract, he ought to have to pay restitution to the person he ripped off.
In the case of adultery, there shouldn't be any such thing as no fault divorce. The wronged party should be able to sue for divorce. I also don't think there should be state issued marriage licences, which I suppose complicates suits for divorce, but not too much. Things like having had a religious marriage ceremony, being generally reputed to be husband and wife, living together, ect, could be taken into consideration. This isn't something altogether outside common law experience.
What is the objective criterion of what is and what isn't proper government? You say it's government limited to protection of life and property but that is open to interpretation. Who does the interpreting?
No more than anything's open to interpretation. Who does the interpretation of when a government has the consent of the people? In practice, almost always the government itself. In extreme situations, the people themselves rise up to contradict the government's interpretation. I suppose it won't be any difference, except for this: instead of interpreting someone's (or, worse, their own) arbitrary will, they'll be trying to determine what is right by standards that exist outside of themselves, apart from anyone's tastes and interests. Will their tastes and interests distort their view? Well, these are humans, so the answer is yes. But at least they'll be aiming at something higher than those same tastes and interests.
My impression is that you pick a rather arbitrary point on the scale and then you want to enforce that rigidly, in order to avoid any expression of popular will. Even assuming an objective interpretation of "life and property" exists, the point is arbbitrary.
I don't think it's arbitrary at all. It seems almost self-evident that everyone ought to do his part to protect life, liberty, and property.
On one end, why should the government do even that? Most people can protect their own life and property just fine without any government; those who can't can hire a professional.
I don't think that would work, or at least, not here.
On the other end, why can't citizens set up other government functions if they want to? For example, imagine that Social Security and public education were set up based on voluntary participation. I think that would be OK (even if the participants ended up with less value for their dollar due to the government's inherent inefficiency). But you would prevent the citizens from setting such wholly voluntary system up simply because that ought not be.
I wouldn't have a problem with that kind of thing, as long as it really is voluntary.
How about this. Some citizens unanimously decide to withdraw from the rights-protection apparatus of the state. Let's assume that it can be done equitably, without freeloading on services rendered to others. For example, they all live on an island and decline paying taxes to support law enforcement on the mainland. Do you see a problem with that?
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