Picking a Good Law

[First published April 3, 2005] As a freedomist (minimum government at home, fostering freedom abroad), I often must ask whether a proposed law is desirable. Now, I could take a utilitarian approach, which I think rationalizes most arguments for or against policy. The problem is that different ideologies assess what would make people happy or cause pain in different ways. The libertarian would say that the freer people are, as long as their freedom does not impinge on that of others, the happier they will be. I’m attracted to this idea, but it runs into questions of social justice (no groans please—wait me out).

I could consider a proposal’s popularity, which is a good democratic approach for many issues, but this also can lead to aroused majorities trumpeting the Bill of Rights (and here courts have the most important role to protect these rights – if they stick to the constitution). I could base my judgment on my religion or ideology, as does a libertarian, conservative, liberal, and so on. But, this often ends up as ethical objectivism—I’m right and you’re wrong. End of story.

And then I could assume that certain political proposals (such as the death penalty for murder, outlawing dope, and marriage as between a man and woman) are right in themselves, obviously and intuitively correct beyond ideology and argument. Yes, but others may feel the same on opposite sides of the issue. And this can only lead to a struggle to the political death, as it has over abortion.

Are not there basic criteria that transcend ideology? I think so, and it is the best metasolution I know of to the problem of assessing political proposals. This is the social contract approach. This approach reached its greatest popularity when a natural law doctrine was widely assumed true. Individual (natural) rights and keeping promises were part of this doctrine and played a large role in various social contracts. Perhaps the best-known contract theorists were Hobbes, Locke, and Rousseau, although Grotius (famous for his naturalistic work on international law), Spinoza, de Montesquieu, and Kant sometimes employed this approach.

Social contract theorists usually made rather unrealistic statements about humanity prior to the social contract, especially in reference to the state of nature. The growth of anthropology and modern sociology, and increasing acceptance of an ethical relativism and subjectivism that seriously questioned natural law, brought social contract theory into disrepute. Recently there has been a revival of social contract theory, as can be seen in the divergent work of Rawls’ A Theory of Justice (1971) and Ardrey’s The Social Contract (1970), particularly in the understanding of the theory as an effective conceptual tool for critiquing society and government. It is a mechanism for framing such questions as: “Do individuals have rights above government?” “What would a society without the state be like?” “Are society and government voluntary?” “Can individuals withdraw from society or government?” “Under what conditions?” “When is the social contract broken by society or government?” The answers given need not be libertarian, liberal, or conservative. They can be authoritarian (Hobbes) or God forbid, totalitarian (Rousseau).

But, the approach is seldom used in the way I apply it to proposed laws. But, it should be. It has conceptual power to frame pointed questions about society. It enables me to spotlight critical assumptions underlying, and the principles formulating, a proposal. It follows from my definition of society as an implicit overarching social contract. And, it is consistent with my view of freedom as an implicit social contract.

So, how do I use the social contract? I imagine a hypothetical Convention of Minds involving all citizens in which they are empowered to approve or not a proposed law. However, while retaining their beliefs, opinions, ideologies, religions, and ethics, they are blindfolded (“a veil is pulled over their eyes,” as Rawls would say) to their capabilities, sex, race, ethnicity, age, wealth, occupation, and any other personal characteristics or attainments that would be benefited by deciding on a proposal one way or the other. Thus, they must be truly objective in deciding a proposal, and must weigh it with no idea as to how it would benefit them personally. What, then, would they decide together?

Thank about this for a moment. If you were to decide on the question, say of a negative income tax, with no idea about your faculties, status, and so on, how would you come down on it. I would be for it, even though I recognize the arguments of many libertarians that this is the forced transfer of money from A to C by B, the government. I’m for it, since due to circumstances beyond my control (family, neighborhood, bad luck, etc.) I could have ended up in need of such support for minimal survival.

How is this consistent with freedomism? Freedom itself, I argue, would be the most basic decision of such a Convention of Minds. And, I’m only being consistent in using the same metaethics to decide less basic issues.


Link of Note

”Toward a Global Social Contract (nd) By Michael J. Mazarr

Mazarr says:

And yet reality–actual events and trends in the world–seems more and more to diverge sharply from “realism” and its analytical cousins. The collapse of the Soviet Union and nearly violence-free end of the cold war, the expansion of democracy and economic reform worldwide, the emergence of embryonic global rule-making institutions, the halting drive toward unity in Europe and hints of regionalism in the Americas and Southeast Asia–these and many other developments suggest a more peaceful and orderly future, not a warlike one.

The bleaker theories of world politics, long fraying around the edges, could soon collapse altogether. What will be left in their place? A very different approach to world politics, one that foresees gradually increasing global peace, order, and stability. Borrowing insights from fields as diverse as biology, sociology, political science, and the new sciences of complexity, this approach holds that, in a globalizing age, interaction among nations and peoples may bring nearly as much order to world politics as we find within most nations today. A “global social contract” is in the process of emerging that will fundamentally change our assumptions about international relations, foreign and defense policy, and our own identities.

Mazarr seems to discover for himself the core of Hayek’s libertarianism, the “spontaneous society.” He gives democracy a kind of wave of the hand credit for this movement to a global social contract, and seems unaware of its basis, which is freedom to interact. Much of this paper (article?) could be rewritten as a freedomist essay.

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