Thursday, November 30, 2006

A Tactic for Libertarians

I recently heard a campus talk that concerned the division of authority between administrative agencies and courts. I was struck by the degree to which the speaker's arguments took it for granted that both courts and agencies were doing their best to do good, hence that the important difference between them was their relative expertise at dealing with particular sorts of questions.

When the time came for questions, I pointed out the implicit assumption and went on to discuss the implications of the same assumption in a different context—the punishment of criminals. The police probably know more about crime, are more competent to determine who is or is not a criminal, than most judges and virtually all jurors. Hence, following out the logic of the speaker's argument, the obvious conclusion is that the decision of who is guilty should be made by the more competent police not the less competent courts. We could save quite a lot of time and trouble by simply having the police who arrest suspects go on to decide whether or not they are guilty and, if they are guilty, impose suitable punishments. If the speaker was not happy with that conclusion, I thought he might want to reconsider the assumptions from which it followed—in his context as well as mine.

It occurred to me that the exchange was worth mentioning here as an example of a tactic that other libertarians may find useful when arguing with people on the left. Most such people, at least in my experience, take an optimistic view of the competence of government to help the poor, regulate safety, set conditions of employment, and do many other things. But they are, I think correctly, sceptical of government law enforcement. Pointing out the implications of their optimistic assumption when applied to law enforcement may be one way of getting them to rethink those assumptions as applied in other contexts.

An analogous tactic ought to work when arguing with conservatives. They tend to take an optimistic view of the workings of the police and criminal (although not civil) courts, at least when arguing with liberals. But they are, I think correctly, sceptical of the competence of government in a wide variety of other contexts, such as the regulation of business or the control of land use. It should be possible to suggest to them that, if the government cannot be trusted to decide how best to preserve endangered species or prevent businesses from mistreating their customers and employees, one ought to be at least mildly sceptical of its competence to decide who deserves to be locked up or executed. The incompetence of government is an argument against the Occupational Safety and Health Act—but also against the death penalty.

To avoid making the same mistake I described at the beginning of this post, I should add that "incompetence" is a somewhat misleading term, since it assumes that the individuals in question have the correct objectives and merely make mistakes in how to achieve them. A large part of the reason to be sceptical of government as a way of organizing human affairs is that the particular individuals making decisions often have the wrong objectives, that the results that best serve their interest are not the same as those that best serve the objectives they are nominally supposed to be pursuing. That is true in the regulation of business, it is true in the control of land use, and it is equally true in the prosecution and punishment of criminals.


Anonymous said...

Getting a liberal or conservative to concede the point that government is often incompetent is much easier than getting them to accept the possibility of a private alternative to state action, even in the situations where they accept that government falls short.

Typically, they ignore the evidence of government damage from tampering and prefer additional state action. They would rather double down when the odds are against them.

Health Care anyone?

- Sean

Mike Hammock said...

Such a libertarian should also be prepared for the non-libertarian's predictable response. Specifically, the non-libertarian will point out that this argument suggests that not only is the government too incompetent to apply the death penalty, it is also too incompetent to hand out a life sentence, or twenty years without parole, or ten years, or five, or whatever penalty. You and I may be willing to accept this argument and suggest that maybe we should have private courts and police, but most non-libertarians--and many libertarians--will not accept this.

Or perhaps the libertarian in this position could argue that the costs of government mistakes with lighter sentences are low enough to make government administration of the law acceptable. I'm not sure if that position can be justified, as there is a cost in imposing too light a sentence, too.

Anonymous said...

So how did the speaker actually respond at the talk?

Lester Hunt said...

"So how did the speaker actually respond at the talk?"

That's just what I was going to ask. I'm curious!

One possible answer occurs to me: Competence plus good intentions may not determine who should make a decision if we think that one decision-maker is biased toward the wrong sort of error. Eg., the police may punish more guilty people than the courts do (thus avoiding one sort of error), but they might also punish more innocent people than the courts (which labor under all sorts of constraints) -- thus committing another sort of error. If we are more worried about punishing the innocent than we are about letting the guilty go free, we have a reason to use the courts, even granting that they might have less competence-plus-good-intentions on the whole than the police have.

To me, at any rate, the "liberal" sort of bias that David mentions makes a certain amount of sense.

Mike Huben said...

Are we to presume then that the general failure of libertarians to get elected is due to their having the wrong objectives?

Anonymous said...

If somebody is convinced that problem X must be solved, and only government can do, then they won't be easily swayed by arguments that government is incompetent. That just means you have to try harder, add more money.

People who advocate a different course get labeled defeatists or being in favor of whatever ill the government is purporting to fix.

Jonathan said...

I don't think there is any "general failure of libertarians to get elected". Rather, there's a general failure of voters to elect them.

Though in fact, I believe some do get elected, here and there.

Anonymous said...

You don't need to be elected to have influence, q.v. Eugene Debs.

- Josh

Milhouse said...

"That's why we have juries". I have never even heard of conservatives who want to get rid of criminal trials, and let the police convict and sentence the people they arrest. Conservatives may rail against relatively recent changes in court procedure (e.g. the exclusionary rule or Miranda) that lead juries to acquit defendants whom the evidence shows to be guilty, but (so far as I know) none of them doubt that it is necessary and desirable to make the prosecution test its case in front of independent people who start with a presumption that the defendant is innocent, and must be convinced to change that presumption. Can you name a prominent conservative who thinks otherwise? Or is this a straw man?

David Friedman said...

"I have never even heard of conservatives who want to get rid of criminal trials,"

Neither have I, nor did I suggest that they existed. You may want to read the piece again.

David Friedman said...

Markm mentions a quote from Meese. I located it with Google.

In a response to a question about whether innocent suspects should have the right to have a lawyer when being questioned, Meese replied:

"Suspects who are innocent of a crime should. But the thing is, you don't have many suspects who are innocent of a crime. That's contradictory. If a person is innocent of a crime, then he is not a suspect."

My guess is that the final sentence was a mistake--perhaps Meese was using "innocent" to mean "acquitted." Taken literally, the final statement is not only absurd, it is at least implicitly inconsistent with the first two sentences.

Scott said...

Are we to presume then that the general failure of libertarians to get elected is due to their having the wrong objectives?

The opposite, I would think.