I have just started his latest book, By the People. You may have heard that he calls for civil disobedience against excessive government. I am wondering how he would handle two objections.
1. How will the other side respond? I could see progressives engaging in civil disobedience, also. In fact, if conservatives were to win in 2016, I expect to see the emergence of a very large, and possibly violent, protest movement. If conservatives/libertarians were to set a precedent of disobeying laws, then I think this would encourage progressives to disobey laws. For example, they might decide that laws protecting property rights are unjust, and proceed to “liberate” the possessions and homes of the one percent.
2. Would civil disobedience not leave most progressive policies untouched? Social Security, Medicare, and the core of regulation surely would remain. At best, the protests would work against the silliest, least significant regulations.
3. Civil disobedience is ultimately a form of voice. Libertarians should be focusing on ways to increase the opportunity for exit.
#2 is right on the money. Perhaps because Murray is more or less a Conservative rather than a Libertarian, no?
I haven’t read the book yet, but from interviews with Murray about the concept, I suspect he would regard #2 as a feature not a bug. Part of the point is to realign bureaucrats’ incentives away from enforcing arbitrary rules purely for the sake of consolidating power within their agency fiefs. Another part is to eliminate (de facto if not de jure) the ratchet effect whereby the regulatory state can only increase. To achieve incremental progress on these goals, it’s realistic to start with the least popular, most arbitrary regulations with the fewest, least powerful vested bureaucratic interests. These are unlikely to be the most significant socially detrimental regulations from a libertarian perspective.
By the way, I think — contra commenter Brent above — that Murray does self-identify as libertarian.
I have considered civil disobedience as at least partly exit. Take the tax avoidance movement…please! You don’t need a violent left wing revolution to have the IRS simply turn up the heat. On the other hand, this could be done in a way that changes policy or done in a way that minimizes your personal tax burden and makes it costly to collect.
Who was it that said to just follow the letter of the law and the government would collapse, or something to that effect?
“I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution.”
-Ulysses S. Grant
I take issue with #1. There are plenty of progressives who view their political opponents as not just wrong, but evil. In that sense, I do expect plenty of over-the-top reactions if Republicans take back the White House in 2016. That said, I don’t think a violent protest movement is a real possibility for two reasons:
1. Culturally, the will for it just isn’t there. These people are reliably pro gun control and anti-war mainly because they find violence so distasteful. Look at the Occupy Wall Street folks. This was the most out and proud left wing populist movement this country has seen in several decades, and what did they decide to do? They squatted in urban parks and had drum circles for a few months until it got cold, then they went home. They could hardly have been more impotent.
2. Remember that the person on the losing end of any 2016 conservative victory is going to be Hillary Clinton. People on the left get what Hillary is about. While they will vote for her, they do not have high expectations for her as a progressive standard-bearer; she inspires more apathy at this point than anything. No one is going to burn any buildings down on her behalf, except maybe a deranged feminist or two.
The only way I can see a real violent protest movement getting going is if Republicans manage to actually shrink the federal government in those all-important (so they tell me) first 100 days, which I don’t see happening. And even then…there’d probably have to be some race issue to get everyone all amped up. That’s the only thing that seems to excite any real passion anymore in American politics.
+1.
I think in fairness to Murray, he isn’t calling for out and out ‘disobedience’. Instead, he is calling for a certain kind of lawfare designed to force regulators to submit their regulations to the scrutiny of the court system. There are instances in which individuals or small businesses could and should put up a legal fight, but they don’t because it’s too much of a burden, and the regulators rely on that fact. Compare that to industry trade unions which can and do cooperate to push back legally against anything adverse to their interests, and indeed, exist largely for that exact reason.
Lawfare is costly and time-consuming, and they would have to start prioritizing and picking and choosing which regulations are worth the fight and which are not – just like prosecutors do with criminal trials, or, in the alternative, just like developers do with any project about which they are likely to face intense legal scrutiny through the launching of environmental ‘citizen lawsuits’ by advocacy groups.
The essence of the strategy is trying to solve a collective action / coordination problem. No individual has any incentive to stick their neck out and fight an expensive and protracted court battle, because the process is the punishment. Many people just relent and comply with arguably illegitimate rules because they don’t have the wherewithal and tenacity to push back, and regulatory agencies rely on that reluctance to push the envelope farther than they should.
Also, most of the benefit is not captured by the individual should they prevail in a suit, in which case they are usually just put in their status quo ante, often without even the benefit of attorneys fees. The real benefit of a victory in court is the precedent it sets for everyone else in the same class, and furthermore regulatory agencies are reluctant to proceed with a trial they might lose for exactly that precedent-setting reason, which would encourage them to (1) pick their battles, (2) abandon enforcement actions, or (3) settle/
Imagine what police chiefs and district attorneys would do if criminal defendants weren’t entitled to defense counsel and certain court costs at public expense. Sure, the official legal standard is still ‘beyond a reasonable doubt’, but knowing that most defendants would just throw in the towel without going to trial would cause them to enforce the law at a much lower standard much more of the time.
Giving every defendant the right to a full trial at the highest standard of evidence is a structural way to keep the criminal justice system less dishonest. The regulatory system takes advantage of not facing that same set of incentives, and this is part of what enables all of its absurd overreaching.
But an anti-regulatory ‘union’ with a legal defense fund would stiffen the resolve of individuals who are otherwise likely to back down in the face of overwhelming state power. And agencies really hate lawsuits and can only handle so many of them at a time.
An example could be what FIRE does to push back against campus speech codes, especially at public institutions. Before FIRE, most colleges had no fear about violating their constitutional obligations, because students didn’t have any due process rights outside the court system, they don’t have any money, it was too time-consuming, stressful, and expensive to make a federal case out of it, and getting expelled or suspended in retaliation could have major detrimental effects on outcomes along one’s entire life path. After FIRE – while things are far from perfect – students feel freer to exercise their constitutional rights, and public institutions feel slightly more hesitant about enacting new speech codes or enforcing them. Every little bit helps.
One counterargument I can think of is that this is precisely what the Warren Court and progressive legal community did to the Criminal Justice System starting in the late 1950’s, which made life much harder for police and prosecutors. And perhaps a progressive could argue that, despite some major complaints, we are still in a better equilibrium now vs. then because of the ‘reforms’.
But, eventually, ‘The Empire Strikes Back’, and the system adapts and adjusts to dealing with the burden. Maybe it gets more resources. Maybe it is able to set up its own administrative agency quasi-courts, and keep you locked up in them for years and years before you ever get a ‘final decision’ that gives you standing to even get on the courthouse steps.
Or maybe ratchet up the ‘sentences’ and raise the mandatory minimum punishments to the sky, perhaps even getting congress to add criminal penalties to some ordinary civil violations. In the Criminal Justice system, that had led to a ‘plea bargain’ culture, where, again, defendants don’t bother to exercise their trial rights, because a deal for two years is better than even a small chance of getting locked up for 30.
Regulatory agencies could say, “You want to fight us? Ok. Fine. Be that way. We might be willing to make this all go away for $50,000 in a settlement. But the rule says minimum $1 Million, and you better believe if we have to go to trial we’ll be going after the max in your case. Let’s see how long your ‘Madison Fund’ lasts against a few of those kinds of judgments – it’ll get depleted in no time – in fact, that’ll be the point – and the deterrent effect will cause the whole scheme to fall apart.”
Your last few paragraphs are right on. The state has all kinds of ways to handily crush any attempt at resistance along Murray’s lines.
I don’t think the many extra-intrusive laws and regulation should be obeyed. (drug sales between individuals, consensual sex between adults, for example)
I heed the call to break these laws and often, as the state has exceeded its authority to govern behavior that is beyond the scope and safety of society at large. Laws that exist to maintain and strengthen order between individuals are necessary. Laws and regulation that exist to form a more utopian union are worthless. Be they progressive or conservative laws, I couldn’t care less.
I purposefully picked drugs and sex as conservative laws that are puritanical and pointless. But these days, can anyone really say that these are conservative? Progressives love laws, the more the better it would seem.
You can call Charles Murray revolting, but he is on to something. As a libertarian I don’t care what laws are broken if they are the laws that exist to maintain order for the elite and the boutique laws that have been created to lend the illusion of a society that looks upright but only when the lights are on.
I haven’t read the book, and I don’t know precisely what form of civil disobedience he has in mend. The post seems to be about the subject in general, though, so I’ll respond anyway.
I feel similarly to Jackson here, and other posters, that in practice some level of civil disobedience is both normal and healthy. Whenever we think about everyday activities, we have an idea about what behavior is expected and why. Somehow people then forget about this intuition when discussing Washington; it’s somehow easy to get caught up in politics and expect that the officials in Washington can write down whatever they like and all of society is just going to start being that way.
Drug laws and sex laws come immediately to mind as laws on the books that are largely ignored until someone in power needs an excuse to arrest someone, at which point everyone is a criminal so there are plenty of ways to do it. Employment law also has some of this character. People who preach endlessly about living wages and the like will think nothing of, say, paying a babysitter $40 a night with no benefits, or volunteering at a place they eventually hope to work at for pay.
read revolting as rebelling
My first reading was like Jackson’s, but the rest of the text makes things clearer.
Your # 1 does not make an important distinction.
Murray’s concerns are with ways to deal with the effects of those Rules of Policy (legislation, regulation, ordinanaces, interpretations and applications) which describe define and **delineate** a DESIRED social order and the relationships necessary to it.
He does NOT propose oppositions the LAW which describes and defines, but does not necessarily delineate, the OBSERVED social order and the commonalities of obligations in the relationships within it.
Rules of Policy are not LAW; they are constructs created for objectives, by men to govern men – to particular ends. Law arises out of the commonalities of recognition, acceptance and performance of obligations by members of a social order; from which we are not exempted.
As to Rules of Policy arising by collective choice, I am with Oakeshott: “There is no such thing as collective choice.”
Confirmed by Kenneth Arrow.
Having read more of the book, I think that Murray can easily answer the first objection.
My problem with purist Libertarians is that they can’t recognize reality. Like Marxists, they’re Utopians. In a country where life expectancy is 80 years old, some kind of social security program is inevitable. Arguing that we should abolish it is a non-starter–both in terms of political reality and public policy. Murray acknowledges that, but instead of implementing it extra-constitutionally, it should have started with a constitutional amendment.
Arnold, while I acknowledge your concerns with Murray’s perspective, I also think Murray has some good points. Regarding your points, consider:
1. Who knows how the progressives will respond. It would be nice to know all the answers in advance, but that isn’t how life works. I say, why not go on the offensive. A little experimentation is warranted.
2. Maybe civil disobedience would leave the entitlement programs untouched, but you have to start somewhere. Integration of the armed forces circa 1950 may have looked like an inconsequential step at the time, but in retrospect it was probably more significant in the broader context of civil rights. The same may apply to some of the individually minor battles that Murray advocates.
3. Who says exit and Murray’s objectives are mutually exclusive? Sometimes it may pay to attack on several fronts. I would say if Murray wants to lead a charge here on civil disobedience, then let him and his followers do it.
My overall take is that there may be some unintended positive consequences from Murray’s actions. There will also likely be some negative unintended consequences. But good luck trying to predict all of these in advance. If the progressives are good at one thing, it’s winging it, and then justifying their actions ex-post, while simultaneously solidifying their gains. We libertarian types could learn something from them.
“why not go on the offensive”?
Because it won’t work, as the Left-dominated system will crush utterly anyone who tries? And I find encouraging people to self-harm immoral. And that’s what this is; it’s encouraging people to lose large sums of money, and risk being thrown into Federal FITA prison, for nothing.
I agree. I’ve also been hammering progressives lately who’ve winked at or encouraged the B’more riots. I can’t then celebrate mass law-breaking (which civil disobedience often is – trespass and the like ala the SJW restaurant intrusions in my own Oakland lately). Much less something more ominous like what Adam Kokesh got up to in loading a shotgun on camera by the White House.
But then the above is my problem, not yours 🙂
Thus died democracy: not with a bang, but with a whimper. Heh.