During December 27-30, 2007 I attended the annual eastern division meeting of the American Philosophical Society. There I offered comments on Roderick’s paper, “Inside and Outside Spooner’s Natural Law Jurisprudence,” presented as part of the Molinari Society Symposium. I have been remiss in procrastinating on typing up and posting my comments. So now, fully a month later, here they are.

I understand the purpose of Roderick’s paper to be to reconcile two seemingly contradictory positions or theories on the relation between liberal legal norms and positive/customary law apparently held by Lysander Spooner before and after the Civil War, respectively.

For those who have themselves been remiss in reading Spooner – shame on you! ;o) – Spooner’s arguments against slavery, militarism, gender inequality, plutocratic privilege and the monopoly state, and his defense of free markets as against the corporate-capitalist wage system, are primarily based on legal reasoning.

Roderick points out that in Spooner’s prewar writings he appears to critique and interpret positive laws from norms arising within it. In contrast, in his postwar writings, he seems to reject positive law entirely from an external critique grounded in natural law. Roderick points out that both positions considered separately, and on their face, might seem absurd. Roderick argues persuasively instead that both approaches are actually manifestations of a single and attractive natural law theory. The differences between them arise merely from a shift in emphasis.

The cause of the shift is unknown, and there may be more than one, but one can speculate that disgust with both sides over the war was a major contributing factor. Positive law, as embodied by the Constitution, had either failed to prevent the grave abuses of the past seventy years, including the war, or it had in fact authorized them. Either way, these facts were a clear indictment.

Roderick further points out that even in his prewar writings Spooner held natural law to be an external constraint on positive law, but he often preferred to interpret positive law documents on their own merits. Moreover, Spooner could invoke natural law on positive law grounds in the form of libertarian legal norms applied more consistently than is usually the case.

Roderick argues intriguingly that the foundation of Spooner’s natural law theory seems to be that some degree of reliance on libertarian principles is necessary in order to have a workable social order. So the greater the reliance the better the social order functions, and the less the worse. The distinction between Spooner’s “immanent” and “external” approach blurs with the understanding that the nature and content of natural law emerges from the requirements of law as such. In other words, as Roderick formulates the argument: “legal institutions cannot function without these natural law principles, so these natural law principles are to be regarded as part of law as such” (p. 31).

There is an issue on which I do not think Roderick is entirely successful, however, and that is in reconciling Spooner’s pre- and post-war positions on the status of positive law. Roderick says that the difference is not so great as it might appear; however, the difference being not so great does not eliminate the difference entirely. Prewar Spooner accepted some role for adding specificity to natural law and thereby creating additional obligations. Postwar Spooner held that positive law adds nothing to natural law. Long explains that the new positive law obligations can just be seen as applications of prior natural law obligations, and this is true as a matter of reducibility to the ultimate source of obligation. However, this is no justification for doing away with positive law entirely. Positive law does add specificity to, and other obligations not present in, natural law alone, even though we are only obligated to obey the positive law because of a more fundamental natural law obligation.

A case in point being our customary moral and legal obligation in America to drive on the right side of the road. Natural law does not specify which side of the road we ought to drive on. It does specify that we ought not to recklessly endanger the lives of others. Given that driving on just any part of a road we like will endanger our own lives and the lives of others, it makes sense that sticking to one side or the other will serve to minimize this risk. Which side we drive on is morally arbitrary before it is picked, but once a particular side becomes customary then we have a moral and legal obligation to drive on that side. So we have here two obligations, the one not to recklessly endanger the lives of others and the other to drive on the right side of the road, the one general and the other specific, with the latter being dependent upon the former for its moral and legal force; but the latter was not present in the natural law from the beginning and only arose as a matter of custom to fulfill a particular need. One might further distinguish between these two obligations as the former being a general principle while the latter is a particular or specific rule.

I have a few other minor quibbles with Roderick’s otherwise excellent paper. Regarding the first, a reader not familiar with Spooner may read the first few sections of Roderick’s paper and assume there is something of a controversy over how to interpret Spooner on these two seemingly incompatible approaches. However, Roderick cites no examples of such misinterpretations of Spooner. Then, when such a reader gets farther into the paper he might wonder what all the hubbub from the first few sections was about, i.e., why or even whether there is even any controversy at all, so easily and elegantly does Roderick resolve the apparent quandary. Indeed, the careful reader familiar with a number of Spooner’s major pre- and post-war writings, but not having a comprehensive knowledge of Spooner’s writings and of writings on Spooner, might well wonder the same thing. I myself am one of these carefully reading Spooner-philes not familiar with all of Spooner’s writings or all writings on Spooner. I wonder if there are any published examples of misinterpretations of Spooner related to the subject of this paper. If there are, I think some of them should be mentioned. If there are not, well, the paper still performs a valuable service in clearly, concisely and elegantly explicating the theory of natural law underlying Spooner’s two approaches. I have no disagreements with Roderick’s presentation and interpretation of Spooner, the sole exception being that which I discussed in the two previous paragraphs.

The second minor quibble pertains to something I would have liked to see in the paper, and that is perhaps a brief sketch of how Spooner’s theory of natural law could be grounded in a eudaimonist virtue ethics, in human nature. This would be useful, in particular, for those not familiar with how it might be done. I’m not sure if this would make the paper too long, or take it too far afield from its primary purpose, but I offer it as a suggestion nevertheless.

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For a direct link to Roderick’s paper, click here. Charles Johnson’s paper “A Place for Positive Law: A Contribution to Anarchist Legal Theory,” presented on the same panel, is also a recommended read and a nice complement to Roderick’s paper.

Well, I’ve finally completed the first draft of my first dissertation chapter, chapter two (chapter one being the introduction which I will write later). This is the central chapter of the dissertation. I’m hoping to get it published as a separate journal article as well. The working title is “Eudaimonia, Virtue, and the Right to Liberty.” Comments welcome. For more information about my dissertation, see this post.

Abstract
The paper is a dissertation chapter. It seeks to build on the work of Douglas Rasmussen and Douglas Den Uyl in developing an Aristotelian liberalism, which holds that the right to liberty is a metanormative principle necessary for protecting the possibility of self-direction, a necessary condition for all forms of eudaimonia (human well-being, flourishing, happiness). Contra Rasmussen and Den Uyl, however, it will be argued that rights are first and foremost a set of interpersonal moral principles the respecting of which is a necessary and constitutive part of human flourishing. The natural right to liberty is a normative safeguard for that feature common to all forms of human flourishing and necessary for moral agency as such: self-direction. For an action to count as virtuous, and therefore constitutive of a life of well-being, it needs be chosen not only because it is right and good but chosen freely and because we desire it. As rational, political, and social animals we ought to conduct our common affairs through public discourse, rational persuasion, and voluntary cooperation rather than through violence or the threat thereof. Liberty and respecting the equal liberty of others are thus essential and constitutive parts of one’s own eudaimonia. Rights-violating behavior not only infringes on or destroys the moral agency of the patient but also harms the well-being of the agent.

In response to Al Gore’s attempt to enlist his help in discrediting skeptics of global warming alarmism by making a big deal of alleged or actual funding they had received from corporations, Ted Koppel responded: “Is this a case of industry supporting scientists who happen to hold sympathetic views, or scientists adapting their views to accommodate industry?” Koppel continued chastisingly:

There is some irony in the fact that Vice President Gore – one of the most scientifically literate men to sit in the White House in this century – [is] resorting to political means to achieve what should ultimately be resolved on a purely scientific basis. The measure of good science is neither the politics of the scientist nor the people with whom the scientist associates. It is the immersion of hypotheses into the acid of truth. That’s the hard way to do it, but it’s the only way that works. (Nightline, “Is Environmental Science for Sale?” February 24, 1994)

Global warming alarmists often try to discredit skeptics by alluding to their alleged or actual source of funding (however large or small, it doesn’t matter to the alarmists) as if this invalidates their claims. This underhanded tactic is a perfect example of the logical fallacy ad hominem and amounts to a personal attack on the victim’s integrity. One could just as easily, if not more so, make the same accusation against government funded scientists but this would be just as unsatisfactory an argument against the substance of their claims. For more on conduct unbecoming of a scientist, see my blogpost on scientific skepticism.

A few personal notes on this issue: The quickest way to get me to dismiss you as an ideologue and alarmist is to raise the issue of funding in an effort to discredit the substantive claims of a particular scientist or group of scientists. This is not a valid argument and serves only to reveal your biases. I find it especially disturbing when self-described libertarians do this. Any good libertarian ought to be critical of corporate “capitalism” but it shows a remarkable lack of understanding (especially for a libertarian) to be critical of corporate funding while being blasé about government and other special interest funding.

Update (3pm): It is ironic that some alarmists can recognize ad hominem arguments when made against their own but not when they make them against skeptics.

A couple of weeks ago I successfully defended my dissertation research proposal. The dissertation’s working title is “Aristotelian Liberalism: An Inquiry into the Foundations of a Free and Flourishing Society.” If you’re interested, you can read the proposal here (pdf).

The Epigraphs
Freedom is, in truth, a sacred thing. There is only one thing else that better serves the name: that is virtue. But then what is virtue if not the free choice of what is good?
− Alexis de Tocqueville

The practical reason for freedom, then, is that freedom seems to be the only condition under which any kind of substantial moral fibre can be developed.
− Albert Jay Nock

The Abstract
My dissertation seeks to build on the recent work of Douglas Rasmussen and Douglas Den Uyl in developing an Aristotelian liberalism. They argue that the right to liberty is a metanormative ethical principle necessary for protecting the possibility of self-direction, which is central to and necessary for all forms of eudaimonia (human flourishing, well-being, happiness). Contra Rasmussen and Den Uyl, however, it will be argued that rights are also, and more fundamentally, a set of interpersonal ethical principles the respecting of which is a necessary and constitutive part of eudaimonia. The dissertation will attempt to show that not only does a neo-Aristotelian philosophy provide (classical) liberalism with a sounder foundation, it also provides liberalism with the resources to answer traditional left-liberal, postmodern, communitarian and conservative challenges by avoiding some Enlightenment pitfalls that have plagued it since its inception: atomism, an a-historical and a-contextual view of human nature, license, excessive normative neutrality, the impoverishment of ethics and the trivialization of rights. It will be further argued, however, that there is still an excessive focus on the State and what it can and should do for us; and that the focus needs to return to the notion of politics as discourse and deliberation between equals in joint pursuit of eudaimonia and to what we as members of society can and should do for ourselves and each other. In order to fully answer left-liberal, postmodern, communitarian and conservative challenges it will be necessary to elucidate the ethical and cultural principles and institutions that are necessary for bringing about and maintaining a free society that promotes human flourishing, and this can be done without endangering liberalism’s commitment to liberty and pluralism.

Those who are interested can check out the rough drafts of my seminar papers of last semester. One is a critique of Roman virtue and liberty and how these are at the root of Rome’s rise and fall. The other is on praxeology and the question of Aristotelian apriorism. For the latter, I still have to work in how praxeology is compatible with Objectivism, however.

Here’s the last of my reaction papers on Roman political philosophy: De Libertate Romanorum. Links to the other three can be found here. My full-length analysis will be posted in a couple of weeks.

I recently submitted abstracts for two papers to the APSA for their August 2006 annual conference. I’ll know in a few months whether either of them has been accepted. The abstracts are reproduced below. One of the papers is a work in progress, the other is one that I plan to right before the conference.

Also, my department’s GSA (Graduate Student Association) started publishing a one page newsletter for the graduate students of my department not too long ago, so I submitted these abstracts as well as a short blurb on my research interests for it. They’ll probably be appearing within the next month or two, although The POLIgraph is hardly a publication of note.

POLIgraph blurb on my research interests:

Geoffrey Plauché, 4th Year Ph.D. Student, Political Theory

My interests are fairly broad and varied, but my current research is primarily in the areas of philosophy of science, Aristotelian ethical and political thought, and liberalism (in the classical/libertarian sense of the word).

In philosophy of science, I am particularly exploring dialectics as a methodological “orientation toward contextual analysis of the systemic and dynamic relations of components within a totality” (Chris Matthew Sciabarra, Total Freedom: Toward a Dialectical Libertarianism, Penn. State U. Press, 2000; p. 173). In short, it is the art of context-keeping. A dialectical analysis of social phenomena involves three conceptually distinct but interrelated levels of generality: 1) the personal (psycho-epistemological, ethical), 2) the cultural (linguistic, ideological), and 3) the structural (economic, political). I am also exploring praxeology, the exact and a priori general science of human action; it is the distinctive method of the Austrian School of economics and is, I think, the proper foundation for economics (its most developed branch) as well as ethics (see http://praxeology.net/praxeo.htm).

Although not set in stone yet, as I will be taking my comprehensive exams in April 2006, my dissertation will likely be on the subject of Aristotelian liberalism. It will contribute to the relatively new but growing body of work attempting to synthesize the best features of Aristotelian ethical and political thought and liberal political and economic thought. Perhaps the most prominent thinkers in this field are Douglas Rasmussen and Douglas Den Uyl. Aristotelian liberalism attempts to transcend the liberal/communitarian debate by embracing liberalism’s commitment to pluralism, diversity, and the free market while grounding politics in a eudaimonistic theory of virtue ethics and natural rights. Aristotelian liberalism, I believe, avoids the specters that continue to plague communitarianism – paternalism and totalitarianism – and the traditional communitarian and conservative criticisms of liberalism – atomism and license – while promoting freedom in community and human flourishing.

Abstract for “On the Social Contract Theory and the Persistence of Anarchy”
By Geoffrey Plauché

Traditional social contract theory holds that the origin and purpose of government is to escape the state of nature and its perceived deficiencies. The state of nature is conceived of as being anarchic, meaning that there is no monopolistic common authority to provide security, determine the law, and adjudicate conflicting claims and secure compliance. It will be the argument of this paper that this attempt at justifying the State with social contract theory ultimately fails. We can never really get out of anarchy. The formation of states does not eliminate anarchy but rather transforms natural anarchy into other types, the most well-known and widely recognized of which is international anarchy (i.e., the anarchic relationship that exists between states in the international system). Even the formation of a World-State will not eliminate anarchy. It will be argued that there are at least four major types of anarchy, determined in large part by the structure of the power relationships within them. In light of this, the fundamental issue ceases to be whether the State or anarchy is to be preferred, but rather becomes which type of anarchy is to be preferred.

Abstract for “Moral Legislation and Democracy: The Devlin-Dworkin-Hart Debate Revisited”
By Geoffrey Plauché

In the latter half of the last century, the prominent legal theorists Lord Patrick Devlin, Ronald Dworkin, and H.L.A. Hart engaged in a debate over the issue of moral legislation and democracy. Lord Devlin argued for the right of society, through democratic institutions, to protect and preserve its moral traditions. Dworkin and Hart each effectively criticized Devlin’s arguments in their own way, but it will be argued that even Dworkin and Hart do not completely close the door to moral legislation. More importantly, it will be argued that Devlin’s argument for the right of society to enact moral legislation fails on its own grounds. Political and economic theory and history inform us that granting the power of moral legislation to the State, even a democratic one, actually has the opposite effect Devlin expects. Rather than preserve existing moral institutions, the power of the State tends inevitably to be commandeered by (coalitions of) vocal minorities who favor alternative institutions, giving them a disproportionate influence over legislation and the vast coercive power of the State compared to that of the silent majority. This leads to significantly faster change in traditional institutions than would result from moral suasion and laissez-faire social evolution. It will also be argued that Devlin’s rights-based argument suffers from two logical fallacies: composition and misplaced concreteness. Finally, a distinction will be made between vices and crimes, and it will be argued that only the latter should legally justify the use of force.

Below are links to three short reaction paper-type essays that I have written so far this semester for a seminar I am taking on Roman political philosophy. They are only my preliminary thoughts on the underlying causes of Rome’s rise and fall. A fourth short paper will follow in about a week and a half, and in a month or so I will revise and consolidate my thoughts in a 20-25 page final paper. The usual caveats for my reaction papers applies; there may be errors or gaps in the argument that will be fixed or filled in at a later date. These short 5-7 page double spaced papers don’t really provide enough space to make the arguments I want to make, but I try to do what I can and provide a small slice of the fuller argument I intend to make in my final paper.

Roman Imperialism and the Murder-Suicide of Classical Civilization

On Roman Liberty, Virtue, and Eudaimonia

On Tyranny, Virtue, and Habituation to Subjection