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a government charged with the vague goal of enforcing positive virtue
would soon institute something like a society-wide “inquisition” (TMS,
p. 105), endeavoring to peer into the inner thoughts of people, ask-
ing neighbors to spy and give evidence on their neighbors, and so on.
Perhaps that could indeed lead to the condition Hobbes described, and
perhaps there is further supporting evidence in other historical exam-
ples, including in the twentieth century, of where societies based on sys-
tematic oversight of their members™ behavior and private relations can
lead.21
I recommend instead, therefore, the Smithian conclusion that soci-
ety should restrict its use of coercive power to enforcing adherence to
the rules of negative justice. Leave the encouraging of positive virtue to
other means. If it should turn out that the “other means” of encouraging
virtue”we discuss what those are in due course”turn out not to be as
successful or effective as we would like, still a society organized around
an exact administration of justice will at least be a safe and peaceful one
in which we can carry on with the business of our lives.



the rules of justice
What exactly are the rules of ˜justice,™22 then? This has of course been a
subject of central philosophical concern since Socrates (470“399 b.c.),
and there have traditionally been roughly two ways of addressing the
question. First, there has been the method of Socrates and his student
Plato, whereby one tries to arrive at a de¬nition of justice by means of a
kind of a priori, or purely logical, deduction or intellectual apprehension.
According to this method, we ask ourselves what the concept of justice
inherently includes. Perhaps we entertain a series of proposed de¬nitions,
¬nding fault with each of them successively, until we arrive by process of
elimination at a faultless de¬nition. On the Platonic view, this de¬nition
would be one that explains why every instance of justice (or injustice) is
in fact just (or unjust); it would therefore be of universal applicability,
it would be ¬xed and unchanging, and it would serve as an exemplar,


21 See, for example, Friedrich A. Hayek™s The Road to Serfdom.
22 From here on, when I speak of “justice,” I mean “negative justice.”
Personhood and Judgment 25

paradigm, or template by which to determine whether future actions or
decisions were just.
The second traditional method of ¬guring out what justice is, is con-
nected more generally with Plato™s student Aristotle. For Aristotle, deter-
mining what counts as justice is a rather more empirical and pragmatic
affair. His view is roughly that we investigate conceptions of justice his-
torically held, we examine those currently in practice in our own and
in other communities, and then”here is the crucial part”we look to
see what works. The criterion “what works” is a bit vague, but it means
roughly which conceptions of justice allow human beings to ¬‚ourish, to
have peaceable and bene¬cial relations with others, and to make their
lives better, whereas conceptions of justice under which people can™t do
those things, or not as easily or well, would be conceptions that do not
“work.” On this account of justice, it is not an a priori, timeless, change-
less entity that we apprehend intellectually, but is instead an operational
or provisional concept that we discover empirically and pragmatically. So
what counts as ˜justice™ in one place may or may not be the same thing as
˜justice™ in another place: whether ˜justice™ will be universal or not is an
open question, to be resolved, if at all, by empirical investigation.
Now there is considerable scholarly debate as to how exactly to char-
acterize Socratic or Platonic and Aristotelian notions of justice, as well as
their respective scienti¬c or philosophical methods, but we need not con-
cern ourselves with those debates here.23 What is relevant to our purposes
is the rough distinction between a priori, or purely logical, investigation
and a posteriori, or based on empirical data, investigation. I favor the
latter over the former. Indeed, I am skeptical that there exists any uni-
versal form of justice out there somewhere awaiting discovery. What I am
more con¬dent about is that human beings seem to have a nature, that
the world seems to have a nature, and that if we want to ¬gure out how
human beings should behave given their ends, we will need to see what
their and the world™s natures are. That means empirical investigation,
and a lot of it.
What indeed has empirical investigation disclosed? Is there anything
we can say in general about an empirically grounded human ˜justice™?
It turns out there is. Historical investigation converges on a concept of
justice that is indeed nearly universal, centering on, as I suggested earlier,

23 The literature on Platonic and Aristotelian justice is vast. Accounts I recommend are
Richard Kraut™s “The Defense of Justice in Plato™s Republic” and Fred D. Miller Jr.™s
Nature, Justice, and Rights in Aristotle™s Politics.
Working Out the Position
26

three things: protections of oneself, protections of one™s liberty, and pro-
tections of one™s property. If this seems familiar, it is probably because it
is the conception on which the Declaration of Independence is based,
and it is the driving motivation for what has become known as “classical
liberalism.”24 The idea is that a government is created to protect people™s
lives, liberty, and property and that it is justi¬ed in using coercive pow-
ers both to support itself in those activities and to punish infractions of
those principles, but that it is not justi¬ed in doing anything else. In the
next two chapters I investigate this conception of government in more
detail, and I argue”and, I hope, will convince you”that it is indeed the
conception of government we should support. Here, however, I limit my
claim to the argument that this basic, “negative” conception of justice
is the minimum that must be recognized and enforced by any society for
it to survive. As I have argued, if people in your society are routinely
assaulting one another, stealing from one another, and enslaving one
another, then your society either is or will shortly become a state of war,
not really a society at all. That is the sense in which we can say that justice
is “universal”: human nature is suf¬ciently ¬xed and human experience
is suf¬ciently similar that all human societies, whatever else is true about
them and however else they will vary in their details, will have to respect
these rules of justice. If you would like therefore to call this justice “natu-
ral,” and think of it as “natural law,” please do. Just keep in mind that it is
an empirically discovered generalization, like Newton™s “laws” of motion,
not a law in the sense of a rule that was handed down by a lawgiver, divine
or otherwise.
The conclusion I suggest is that society is justi¬ed in requiring its
members to abide by the rules of justice, for otherwise there would be
no society; but beyond that it should take no action, for otherwise it
would disrespect or imperil people™s personhood. Although we might
justi¬ably feel and communicate disapprobation at a person™s injustices
or his vices, we are justi¬ed in forcibly correcting or punishing only his
injustices. As should be clear, however, that certainly does not mean that
we are powerless in the face of vice: we can remonstrate with the vicious
person, try to persuade him, exhort him, plead with him, argue with him;
we can shun, avoid, or ignore him; we can even organize others to do any

24 The quali¬er “classical” is used in part to distinguish this version of liberalism from
the “progressive” liberalism that gained currency in Britain and America in the late
nineteenth century and is largely what is still meant today by the term “liberalism.”
Personhood and Judgment 27

or all of these things with us. But if he persists in behaving in ways we
consider vicious, at the end of the day we must recognize his freedom to
do so. All we have left to do is make sure that the consequences of his
actions are, as much as possible, restricted in their effects to him alone.


justice and the pond case
Let me illustrate my use of the distinction between positive virtue and
negative justice, along with the political implications I™m suggesting it has,
with a concrete example. The philosopher Peter Singer argues that we
have a moral duty to give to poor people overseas; moreover, he considers
great personal sacri¬ce in this regard”amounting even to everything
a person has to the point of “marginal utility,” or until the next unit
given away would make the giver worse off than the recipient”not as
“supererogatory,” or above and beyond the call of duty, but rather as
obligatory; and he suggests that the state ought to take money from private
hands and redistribute it to this end.25 His argument seems to presuppose
a one-place conception of morality: either one is moral or one is immoral.
If one does not help distant suffering people, one is immoral; if one does,
one is (at least on this count) not immoral. Yet we tend to recognize in our
everyday dealings with people something like the two-place conception I
have been describing. We say that I disagree with what you say, but that
you have a right to say it; we say that you are wasting your life doing
what you do, but that it is your business to do so; we say that you are
making a mistake to pay so much money for a car, but that it is your
money. Yet we do not say that you should not kill an innocent person,
but that it is your business; we do not say I think you should not rape
people, but that it is your business; we do not say I think you should
not steal from others, but that it is your business. I suggest that this way
of looking at people and their actions re¬‚ects the distinction between
positive virtue and negative justice: however disagreeable we may ¬nd it, we
allow people to be vicious, or to fail to be “positively virtuous,” as long as
they are not unjust; but the moment they cross the line of injustice we
feel justi¬ed in stepping in. We may express disapproval of viciousness,
and we may attempt”through exhortation, persuasion, rebuke, and so
on”to change the vicious person™s behavior. But we do not initiate force
because the vicious person is doing no “real and positive hurt,” as Adam

25 See Singer™s Practical Ethics, chap. 8.
Working Out the Position
28

Smith puts it (TMS, p. 79 and passim), to anyone”except perhaps to
himself, which, as a ˜person,™ he is entitled to do. On the other hand,
murder, rape, and theft all do “real and positive hurt” to unwilling others
and thus are all breaches of justice; hence our initial reaction that one
ought to intervene in such cases is justi¬ed.
A brief yet necessary digression is in order. Although we might have
a rough sense of what constitutes “real and positive hurt” based on what
has been said so far, the term is nevertheless somewhat vague. Can it do
the important moral work we are asking it to do? Here is Smith™s gloss on
it, which is worth quoting at length:

Bene¬cence is always free, it cannot be extorted by force, the mere want of it
exposes to no punishment; because the mere want of bene¬cence tends to do no
real positive evil. It may disappoint of the good which might reasonably have been
expected, and upon that account it may justly excite dislike and disapprobation:
it cannot, however, provoke any resentment which mankind will go along with.
The man who does not recompense his benefactor when he has it in his power,
and when his benefactor needs his assistance, is, no doubt, guilty of the blackest
ingratitude. The heart of every impartial spectator rejects all fellow-feeling with
the sel¬shness of his motives, and he is the proper object of the highest disap-
probation. But still he does no positive hurt to any body. He only does not do
that good which in propriety he ought to have done. He is the object of hatred,
a passion which is naturally excited by impropriety of sentiment and behaviour;
not of resentment, a passion which is never properly called forth but by actions
which tend to do real and positive hurt to some particular persons. His want
of gratitude, therefore, cannot be punished. To oblige him by force to perform
what in gratitude he ought to perform, and what every impartial spectator would
approve of him for performing, would, if possible, be still more improper than
his neglecting to perform it. (TMS, pp. 78“9)

Smith distinguishes here between two scenarios: (1) not doing a good
deed for someone, as, for example, not doing a favor for someone who
has done you a favor in the past, and (2) deliberately doing something bad
to someone, which entails taking an action designed to damage a person.
Both are blameworthy. But the former, the failure of “positive virtue,” is
only blameworthy; the latter, which Smith interchangeably calls “positive
evil” and “positive hurt,” is, according to Smith, both blameworthy and
punishable. Does this explanation, then, clear up exactly what will count
as real and positive hurt, and thus deserve punishment, and what won™t?
For the most part, yes. There will still be hard cases; we shall consider
some in a moment. But this distinction will serve us well in the majority
of cases. Let us see how by looking at Peter Singer™s famous hypothetical
scenario, the Pond Case.
Personhood and Judgment 29

Singer asks us to imagine a person walking past a shallow pond in
which a young child is drowning.26 As Singer frames it, the person does
not wade in to help the child”perhaps because he is in a hurry, perhaps
because he does not want to get his clothes dirty, or perhaps because he
believes others will take care of the child. Singer would have us judge the
passerby to be immoral if he does not help the child. And surely he is
blameworthy. But the two-place picture I am recommending enables, I
believe, a more accurate judgment: we can say that the person is vicious
and thus blameworthy, but he is not unjust and thus not punishable.
That is, we disapprove of his behavior, but, because he himself did no
“real and positive hurt” to the child”he refrained from doing the child
a good turn, but he was himself not the cause of the child™s distress or
suffering”he committed no injustice. We should therefore refrain from
initiating force against him (by throwing him in jail, for example).
It is important to emphasize that if a person caused another™s suffer-
ing, that is a different matter altogether: that is to breach the rules of
justice. Now, some would argue that a more expansive notion of “causa-
tion” might actually include the do-nothing passerby in the causal chain
leading up to the child™s drowning.27 I think that de¬nition of causation
is too expansive, however, because the child would (by hypothesis) have
drowned whether the do-nothing passerby were there or not. So if there
had been no passerby at all, the child would have drowned; if the passerby
was there and did nothing, the child still would have drowned. I suggest
that a theory of causation that counts as “causes” actions or events whose
presence or absence makes no material difference is not a good theory.
Instead, what seems required is a theory of causation by which the only
actions or events that count as “causing” something to happen are those
for which it is the case that, at a minimum,28 had they not been there
or had they not acted the way they did, the event in question would not
have happened either. That certainly ¬ts better with our everyday notion
of causation, and I believe it will capture our considered judgments in
the majority of cases. So the do-nothing passerby did not cause the child™s


26 He ¬rst posed this scenario in his “Famine, Af¬‚uence, and Morality.”
27 For an excellent discussion of competing causal theories at work in legal matters, includ-
ing detailed defenses of the view I am about to reject, see Hart and Honor´ ™s Causation
e
in the Law. I thank James Taylor for helpful discussion here.
28 Depending on the case, there may be other factors necessary as well, such as deliberate
intention. Thus the criterion I offer is necessary but may not be suf¬cient to establish
“causation.” See again Hart and Honor´ ; for a shorter introduction to the issues, see
e
Honor´ ™s article “Causation in the Law” in the Stanford Encyclopedia of Philosophy.
e
Working Out the Position
30

predicament, hence did no positive hurt to the child, hence committed no
injustice, and hence is not justi¬ably punishable.
On the account I suggest, no amount of viciousness by itself turns it
into injustice. Singer™s Pond Case gets much of its intuitive appeal because
it is so extreme”such a small amount of effort to alleviate such a large
amount of suffering. We are tempted to think that perhaps police action
is warranted after all if the passerby does nothing. But my suggestion is
that one should not be held punitively responsible for something one
did not do. That leads to the conclusion that an inactive passerby might
be horribly vicious, but not jailably unjust.
We examine Singer™s argument in more detail in chapter 4, but the
implication for the time being is that there should be no laws requiring
a person to help a drowning child, and no laws to punish a person if
he fails to help. More generally, we should legally or coercively punish
only breaches of justice; failures to ful¬ll positive virtue fall outside the
state™s proper purview. That does not mean that we have no recourse
against the unhelpful passerby, however. Because of his viciousness, such
a person would, as Smith said, be “the proper object of the highest dis-
approbation.” This disapprobation might take the form of any of the
tools at our moral disposal: shunning, shaming, public condemnation,
and so on. These measures can be extremely psychologically punishing.
And though this kind of viciousness would not license forcible corrective
action, the recriminations it would license would nonetheless provide a
signi¬cant disincentive to engage in a large range of the behavior we
would like to discourage.


experiments and individuality
In an unjusti¬ably neglected 1875 essay entitled “Vices Are Not Crimes,”
Lysander Spooner argued that because “vices” are “acts by which a man
harms himself or his property,” the vicious person should not be punished
by anyone else for them; but whereas “crimes” “are those acts by which
one man harms the person or property of another,” those should indeed
be punished.29 Spooner™s conception of “crimes” maps pretty closely onto
the conception of injustice I have been pursuing: it involves doing posi-
tive hurt to others, on Spooner™s account to their “person or property.”
Spooner™s conception of “vice” is actually a bit narrower than what I have

29 In the Lysander Spooner Reader, pp. 23“47.
Personhood and Judgment 31

been suggesting, since it does not include the failure to do the “good
of¬ces” to others that full “positive virtue” would require. Nevertheless,
his distinction cuts at the same joint, as it were, as does my distinction and
underscores its importance by reiterating its connection to forcible state
action. The argument Spooner gives for this distinction, and thus for its
obvious political implications, echoes an argument John Stuart Mill had
made in his classic 1859 essay On Liberty, namely, that human life is largely
an experiment conducted by each individual to discover what course or
path or direction his life should take to make him happy. Both Spooner
and Mill believed that happiness was the ultimate goal, but both held to
the Aristotelian belief that what was required for happiness could not be
ascertained through a priori analysis but had rather to be discovered by
a posteriori investigation. That meant that each individual would have
to ¬gure out for himself by trial-and-error experimentation what would
make him happy.30
Now it is true that empirical observation could specify rough param-
eters that would hold for all, or almost all, people. For example, given
the constitution of the human body we can know that ingesting certain
substances, such as mercury, can be unhealthy or even fatal, whereas
regular ingestion of other substances, such as fruits and vegetables, is
nutritious and even necessary for good health. Or, given the constitu-
tion of human psychology, we can know, for example, that prolonged
isolation from other human beings will tend to be detrimental to one™s
well-being, whereas loving and close associations with others are usually
necessary for one to ¬‚ourish. There are many other generalizations that
observation can recommend, and we usually do well to follow them. But
we must not overestimate the usefulness of these kinds of recommenda-
tions, since they leave a world of questions unanswered. Take diet: should
breakfast, lunch, or dinner be your biggest meal? Will you do best with a
big, hearty breakfast, a light, continental one, or none at all? Should you
be a vegetarian? Or take sociability: yes we need bonds to other people,
but which other people? Should you get married? Now? To this person?
And of course, yes, we are biologically driven to ¬nd means to survive and
to pass on our genes, but what means to these ends should one avail one-
self of? Should you be a lawyer, an accountant, a plumber, a philosophy
professor? Should you travel and live the life of a bohemian, or should
you settle down and start a family? How many kids should you have? If we

30 See Chandran Kukathas™s The Liberal Archipelago.
Working Out the Position
32

can know generally that exercise is good for everyone, does that mean
that you should run marathons, practice martial arts, go for daily walks,
lift weights thrice weekly?
You will have to answer these questions, as well as inde¬nitely more
such, at some point in your life, and the point of listing them like this
is to bring several things to the fore. First, no one else can answer these
questions for you. You will have to answer them for yourself, and you will
have to do so by experimentation, not sitting in your of¬ce and trying to
deduce things from the “concept of humanity” (or whatever). Second, if
you are to have a shot at leading a happy life, the rest of us will have to
let you conduct these experiments. We can restrict you from impinging
on other people™s similar experiments”that is, we can require you to
observe the rules of justice”but we must resist the temptation so many
of us feel to run other people™s lives or make their decisions for them
because we are sure we know better than they do. We must instead let
them ¬nd their own way.
Third, and just as important, there is no single path that will be good
for everyone. The mistake of Platonic investigations into “the good” is
precisely to believe that there is just one good that, once discovered, can
be applied to everyone, perhaps coercively if people resist. But I submit
that it is emphatically not the case that there is one good for everyone”
something that can already be seen from the fact that there is no sin-
gle answer to any of the above questions that will hold for everyone. It
does not even hold at the level of human biology. Consider something
as pedestrian as bread, allegedly the most basic staple of the human diet:
almost everyone eats it, but it is not good for everyone. Some are gluten-
intolerant, for example, and hence should not eat bread at all; others
would do better with certain kinds of bread but not others; some will
need to eat more bread than meat, others the reverse. There simply is no
single prescription that can capture the good in this case for everyone.
This may seem like a trivial example, and perhaps it is,31 but it applies
generally, including to much more important areas. Which religion one
should subscribe to, which organizations one should join, with whom one
should have close and intimate relationships, which activities one should
engage in: these are not trivial matters, and yet they too admit of no single
good answer that holds for everyone.

31 On the other hand, Jared Diamond claims that agriculture is “the worst mistake in
the history of the human race.” See his essay by that name, http://www.agron.iastate.
edu/courses/agron342/diamondmistake.html.
Personhood and Judgment 33

Let me emphasize the point by indicating one potential political impli-
cation it has. The claim that no single good, or no single good course of
life, applies to everyone would undercut, to take one example, a central
premise of much of what the Food and Drug Administration and the
United States Department of Agriculture claim to do. The FDA operates
on the assumption that it can know exactly how much of any given drug
is going to be helpful to you, and it has concretized its prescriptions in
extremely precise rules, all of which are enforced with the power of the
federal government. But in practice it is impossible for it to know how
much of any drug is right for you, when you should take a drug and
when not, how long you should take a drug, and so on. There is no sin-
gle rule for all people in such cases; what is good for any individual can
only be guessed, let alone known, on the basis of detailed knowledge
of the individual in question. You have a bad cough: should you take a
codeine-based cough suppressant? How much? Perhaps you are allergic
and should take something else; or perhaps this is exactly what you need,
but you have a naturally high tolerance to it and so require higher than
average doses. The FDA™s rules might re¬‚ect averages or norms, but of
course averages and norms will fail or be inapplicable in a substantial
number of individual cases.32
Similarly with the USDA. Its “food pyramid” currently prescribes six to
eleven daily servings of bread, cereal, rice, or pasta; two to three servings
daily of meat, poultry, ¬sh, dried beans, or nuts; two to three servings
of milk, yogurt, or cheese; and only “sparing” use of fats and sweets. Is
this the right diet for everyone? Of course not. Some people will need
far more protein (certain kinds of athletes, for instance), while others
could become seriously ill from that much milk product; and consider
the apparent success of the Atkins diet, which recommends far higher
intakes of meat and fat and far lower intakes of breads, pastas, and other
carbohydrates. Again, the point is that there can be no knowing which
of these various paths is the best for any individual except on the basis of
detailed knowledge of the constitution of each person individually. Since
generally no one else has that much knowledge of any person except the
person himself”and, let us not forget, no one else has the motivation
to get it right that the person in question does”that means that each

32 Sometimes this can even be a matter of life and death. See, for example, Roger Feldman
and Mark Pauley™s American Health Care, Elaine Feuer™s Innocent Casualties, and Robert
Higgs™s Hazardous to Our Health? See also the continuously updated FDA watchdog Web
site http://www.FDAReview.org, administered by economists Daniel Klein and Alexander
Tabarrok.
Working Out the Position
34

of us will have to ¬gure it out for ourselves, perhaps with the aid of our
personal physician, nutritionist, or trainer. Even with the help of such
experts, however, we will make frequent mistakes. How well can people
do laying down rules for you when they have never met you and know
nothing about you whatsoever?33
Much of your life will hence be constituted by successive experiments
to see what works for you. These experiments will yield results that can
direct your future action. If you are a person of good judgment, you will
tend to use the results to direct your future action; if you are a person
of poor judgment, you will tend not to pay attention to the results and
either keep trying things out anew or trying things that have already
proved unsuccessful. My argument is that in order to determine what will
make you happy in life you will have to develop judgment; in order to
develop judgment you will have to have the freedom, within the bounds
of justice, to experiment, and the consequences of your decisions will
have to be borne by you. I repeat that this last part, about bearing the
consequences oneself, is necessary for developing judgment. Indeed, the
overall acumen with which you wield your judgment will in large part be
a function of the degree to which you have in your life been required to
assume responsibility for the consequences of your decisions. Respecting
your experiments in life and holding you responsible for them is, then,
both the only way to enable you to achieve happiness and a matter of
respecting your personhood. Hence insofar as we infringe on someone™s
liberty to experiment within the bounds of justice, we both diminish his
chances of discovering his path to happiness and we treat him rather as
a ˜thing™ than a ˜person.™

helping others
One might wonder whether the argument so far entails that one should
not help others. If someone in our family is in a bad way, or someone we
know is down on his luck, am I saying that it would be wrong to help out

33 For a detailed discussion of the way politics perversely in¬‚uences the adoption of of¬-
cial nutritional standards, see Marion Nestle™s Food Politics. For an informative and
entertaining discussion making broadly similar points, see Brad Edmonds™s There™s a
Government in Your Soup. I note that the federal government is once again rewriting its
of¬cial nutritional guidelines as I write. See Gail Russell Chaddock™s “A Capital Food
Fight over Diet Guidelines,” http://www.csmonitor.com/2004/0917/p03s01-uspo.htm;
for a discussion critical of the government™s efforts in this regard, see Robert E.
Wright™s “Are Dietary Guidelines a Public Good?” http:/ /www.fee.org/publications/
the-freeman/article.asp?aid=4471.
Personhood and Judgment 35

such people? Of course not. What my argument implies is that before
you can know whether help is required in any given case, you have to
know a lot of details about the case. In particular, you have to know why
the person is in a bad way, why the person is down on his luck. Suppose
my uncle is being evicted from his apartment. Just telling me that does
not tell me what, if anything, I should do about it. Depending on the
situation and the reasons for the eviction, perhaps I should let him move
in with me; perhaps I should co-sign a loan with him on a house; perhaps
I should lend him ¬fty bucks; perhaps I should put him in touch with
a good attorney; or perhaps I should do absolutely nothing because he
needs to learn that he cannot continue to waste his money on booze and
drugs. Not everyone who asks for help really needs or deserves it, after
all, and sometimes the best thing we can do for someone is to say “no.”
The point is that familiarity with the person in question and his situation
and history is required to exercise good judgment in the case. Sometimes
good judgment will indicate help, sometimes not; and even when it does
indicate help, further judgment will be required when determining what
kind of help is best. Asking for a single rule or a single policy in regards
to all people who are in a bad way would thus be showing blindness
to the real, and material, differences in people™s situations. So a policy
such as “Give whatever you can to anyone who comes to you for help, no
questions asked” is a misguided one, however well intentioned. It is akin
to a parent adopting a policy such as “Feed my children whatever they
ask for, no questions asked.” Need one spell out the disaster to which this
would lead? (Think: all ice cream, all the time.) But a similar point obtains
with adults who are asking for help. The rule here, as elsewhere, is: use
your judgment. Adopting the one-size-¬ts-all policy is easier, and perhaps
can assuage guilt or gratify the need to feel as if we are helping others.
But that is not the best policy to adopt if one is interested in doing what
can actually help those who need it.
Now, the recommendation to “use your judgment” might strike you
as a platitude, but it will turn out not to be so because of the political
implications it will have. I shall ¬‚esh out these implications later, but
here is an indication: because, as I argue below, good judgment relies on
“local knowledge””that is, on knowledge of the particular situation in
question”and because government agencies typically do not and cannot
have the requisite local knowledge, it will follow that helping others is a
job that is better left to individuals and local (private) groups than to
governments. So I argue that if you agree with my characterization of the
nature of good judgment, the prerequisites of its development, and the
Working Out the Position
36

necessity of using it on a case-by-case basis, then you will have to conclude
that a great deal of what governments in America currently do, or try to
do, they shouldn™t.
To return now to the main thread of the argument, it also follows,
on the other side as it were, that we must allow others to give help even
when we think their help is unnecessary or unproductive. If you think
it is time for your parents to ¬nally cut your sister off, because she has
been a mooch for just too long, but your parents just keep on giving her
breaks, giving her the bene¬t of the doubt, and”not least”giving her
money, what recourse do you have? There are lots of things you might
do to persuade them to stop”threaten not to visit at Christmas next
year?”but in the end your parents are entitled to continue helping if
they wish. To use the terminology we have developed, it may be vicious of
them to do so but it is not unjust. Of course, if they took your money away
from you to give it to your sister, that would be a different matter. But
it is a fact of human life that people disagree about who deserves help
from others, what kind of help should be given, how long it should be
given, and so on. Respecting people™s personhood entails respecting their
judgment about such matters, whether we agree with it or not. It does not
entail, however, that we allow them to force us to follow their judgment”
on the contrary. Respecting our personhood requires that they honor
our judgments about whether and how to help.34 Thus, observing the
limits of our freedom and the scope of others™ freedom in this way has
the added bene¬t of allowing for a proliferation of different charitable
organizations and aid efforts that will re¬‚ect the diversity of human belief
and judgment, not to mention the bene¬t of simultaneously engaging the
natural mechanism of sorting and culling for ef¬ciency that is created by
securing the link between freedom and responsibility.


harm and drawing lines
It follows from what I have argued that what counts as good for you cannot
be known in advance but can be discovered only by trial-and-error exper-
imentation. Should you therefore try everything? Lord no! The whole
point of developing judgment is to obviate the need to try everything
by ruling some things out of contention. The ancient Delphic maxim of
“Know thyself” is important precisely because it tells you the ¬rst step in

34 This also constitutes an argument against government welfare programs. More on that
below.
Personhood and Judgment 37

leading a successful, meaning happy, life. If you do not know yourself, you
will not know what you should do. It is that simple. But knowing yourself
means knowing not only your abilities, desires, and interests; it also means
knowing your peculiar weaknesses. If you discover, for example, that you
have a penchant for chocolate, or a worryingly strong liking of gambling,
or a weakness for alcohol, you should take that into account when decid-
ing what to do with yourself. So you should probably avoid working at
a Hershey™s packaging plant, you should probably vacation somewhere
other than Las Vegas, and you might want to consider avoiding bars and
other places where you might come into contact with the objects of your
weakness. The simple yet profound wisdom enshrined in the Delphic
Oracle issues from its awareness that we all have our own unique set of
peccadilloes, and hence we must come to know them thoroughly if we
are to have a chance of mastering them.
This raises the question, however, of exactly what counts not just as
harm to oneself, but as harm to others. I have argued that as long as
a person does no “positive hurt” to another we have no justi¬cation in
forcibly preventing him from doing what he wants or in forcibly pun-
ishing him for what he does. In On Liberty, Mill argued that “one very
simple principle” was to guide interaction between individuals and their
societies: “the sole end for which mankind are warranted, individually or
collectively, in interfering with the liberty of action of any of their number,
is self-protection. That the only purpose for which power can be rightfully
exercised over any member of a civilized community, against his will, is to
prevent harm to others.”35 This has accordingly become known as Mill™s
“harm principle,” and although it captures my argument so far, it has
come under attack on the grounds that the distinction between harming
oneself and harming others is not so clear as one might initially think.
Take the examples I have given above. If you eat so much chocolate that
you become morbidly obese, one is inclined to say that you are endanger-
ing only yourself. But what about your family members who might have
to care for you, or perhaps support you when you become unable to sup-
port yourself? What about taxpayers who might have to pick up the tab of
your medical bills if medical treatment is subsidized by the state? Or con-
sider gambling or drinking: if you have dependents, the problem is clear
enough; but even if you do not, is it so obvious that your more distant
family members or your friends are not affected by watching you gamble
or drink your life away? And similarly with other vices. Where exactly,

35 On Liberty, chap. 1, p. 13.
Working Out the Position
38

then, do we draw the line between actions that affect only oneself, and
thus are not proper objects of external coercive control, and actions that
also affect others, and thus do properly come within the scope of external
coercive control?
No single reply can be given to this question that would settle it once
and for all; indeed, there are instances in which it is dif¬cult, even impos-
sible, to settle on de¬nite answers. But it does not follow from that that
the distinction is not a sound one and worth using. There is no clear
dividing line between child and adult, but that does not mean it is not use-
ful and wise to distinguish”and treat differently”children and adults.
Similarly, there is no clear dividing line between sapling and tree, between
day and night, or between black and white: in each case there are instances
on the margins that reasonable people may either disagree about or
simply be unable to classify. But that doesn™t mean that there are not
clear, unambiguous, and generally recognized instances of children and
adults, saplings and trees, days and nights, black and white, and so on.
And the dif¬culty of identifying or categorizing some examples does not
by any means entail that it is not important, indeed perhaps crucial,
to identify, categorize, and treat accordingly the other 95 percent of
examples. Thus although some would claim that if a principle does not
work in the hard cases, it should be abandoned altogether,36 I suggest
on the contrary that no principle works in all cases, and hence we should
adopt the principle or principles that turn out to cover the majority of
cases.
We can if we like simply stipulate when, for, say, legal purposes, a person
counts as an ˜adult™ or ˜major™ as opposed to a ˜child™ or ˜minor™; and
although the precise date selected will involve some arbitrariness, it will
presumably be motivated by the criteria relevant to the purpose at hand.
So, for example, we might consider you an ˜adult™ at the age of sixteen
for the purpose of driving a car, because that is approximately when you
become able to handle a car; at age eighteen for serving in the military
and voting, for similar reasons; at age twenty-one for consuming alcohol;
and so on. Similarly, we may settle on certain ages when we agree legally to
consider a person as being able to give informed consent”for marriage,
say, or for entering into a binding contract”and again one expects, or


36 Like Mill: “Strange it is, that men should admit the validity of the arguments for free
discussion, but object to their being ˜pushed to an extreme,™ not seeing that unless the
reasons are good for an extreme case, they are not good for any case” (On Liberty, chap. 2,
p. 24). I thank James Taylor for this reference.
Personhood and Judgment 39

hopes, that the age selected will be informed largely by actual experience
of when people tend to be capable of handling such responsibility.
A similar claim can be made on behalf of the “positive harm” cri-
terion, and I would like to suggest that it implies what I will call the
General Liberty principle. Positive harm will have occurred when you
or some other unwilling person has suffered an injustice, which means
having been injured in life, liberty, or property; any other kind of
harm”disappointment, for example, irritation, or frustration”would
be dubbed negative harm. In the former case someone has injured or
taken something that belongs rightfully to another; in the latter case
someone has (say) merely refrained from giving or offering to another
person something that was rightfully the former™s. Is there “harm” in both
cases? The critic of the distinction will charge that there is indeed harm
in both, and will hence discredit the distinction on grounds of ambiguity.
But we can concede that there is harm in both cases while nevertheless
maintaining that although two kinds of harm are possible, only one of
them requires or allows forcible action.37
One way to emphasize the difference between the cases, as well as
to avoid the appearance of a merely circular de¬nition, is by relying
on a principle that I call third-party interference: if the action in question
prevents two third parties from exchanging, contracting, or associating
with one another, or from buying from and selling to one another, then
we have probably crossed the line from negative harm to positive harm;
if not, then you have probably done no positive harm and hence no
punitive action is warranted against you. So suppose, for example, that
you start a business that competes with mine, and you take away some of
my customers. Well, you certainly have “harmed” me. But this would be
harm only in the negative sense because you did not prevent me from
interacting with anyone who was also willing to interact with me. None
of the customers who went to you, in other words, was forced to do so.
You therefore committed no third-party interference, and thus you did not
run afoul of the injunction against positive harm. Focusing in this way
on whether A™s actions prevent B and C from freely associating with
one another, as opposed to whether A™s actions simply “harm” B, both
disambiguates the two kinds of “harm” that might be involved and brings
to the fore the personhood of everyone involved. If C wants to deal with B

37 There has been a great deal of discussion of the “harm principle.” For a discussion I ¬nd
instructive, see Richard Epstein™s Principles for a Free Society, chap. 3 and the references
contained therein.
Working Out the Position
40

rather than A, his personhood requires that we respect that decision,
even if A would have been better off had C decided to go the other way.
The General Liberty principle would hold, then, that so long as one
does no positive harm to another, one is free to decide and do what
one likes. Moreover, given the crucial necessity of freedom for develop-
ing one™s judgment, one™s personhood, and indeed one™s happiness, the
general default setting would be to assume that people are acting within
their rights under the General Liberty principle except when there is
clear evidence to the contrary that they are committing positive harm,
and thus injustice, to others. This line will not be perfectly de¬nite in
all cases, as critics charge, but it is clear enough, I believe, to adjudicate
the overwhelming majority of human interaction. That is all that can be
hoped for from a moral or political principle, and I attempt to show in
the coming chapters that the General Liberty principle is indeed capable
of shouldering the burden I suggest it can. For the small percentage of
cases that are marginal, more dif¬cult to assess, and left indeterminate
by the General Liberty principle, we can only rely on the good judgment
of the individuals in question or of those charged to adjudicate the cases.


nonperson humans?
The argument now raises once again the question broached earlier of
what we are to do about those who cannot make decisions about their
own lives. Are they not ˜persons™? The paradigmatic exceptions to the
General Liberty principle are of course children and mental incompe-
tents. What is it exactly that makes them different from ˜persons,™ and
where exactly do we draw the line between a mental “competent” and
a mental “incompetent”? There will again always be marginal instances
that can be decided only on a case-by-case basis, using our informed judg-
ment. I suggest that the rule of thumb should be that we not restrict a
person™s liberty because he makes bad decisions, but only if he is inca-
pable of making re¬‚ective or considered decisions at all. Because using
and exercising our judgment is constitutive of the process of develop-
ing it, we should err on the side of caution and thus liberty. We should
therefore not take away a person™s liberty until there seems to be clear evi-
dence, persuasive to any reasonable impartial observer, that the person in
question is not capable of exercising judgment. Children are not initially
capable of exercising judgment, and hence they are justi¬ably governed
by their parents; as they grow older and develop their judgment, the par-
ents™ rules should relax, until ¬nally the parents should give the children
Personhood and Judgment 41

complete freedom.38 My argument implies a similar conclusion in the
case of mental incompetents: the degree to which another may substi-
tute his judgment for theirs depends on and is inversely proportional to
the degree to which their judgment is able to function.
Now, this general rule may not be able to give speci¬c guidance for
any particular case, but it does, I believe, provide a sound foundation on
which to base particular judgments.39 And one reason I am not pursuing
the exact boundaries between proper persons and nonpersons is because
I want to motivate your agreement that normally functioning adults are
˜persons™ and hence fall under the scope of my argument about freedom
and responsibility. If your principal worry is about hard cases on the
margins, then you™ve already accepted the central and most important
part of my argument.


summary
To conclude, ¬nally, this long chapter, let me summarize its argument.
Human beings are ˜persons,™ and respect for their personhood entails the
principle of General Liberty, which requires that we grant them the widest
possible scope of personal liberty that is at the same time compatible
with the similar liberty of every other person. ˜Justice™ names this respect;
˜injustice™ names violations of it. Violations of justice should be punished,
whoever the people are who perpetrate them; but failures to achieve pos-
itive virtue are not crimes and must therefore be left to the realm of
persuasion, not coercion, and addressed by personal and individual ini-
tiative. Persons must moreover be held responsible for the consequences
of their decisions, because allowing them to shift the responsibility for
their actions onto unwilling others would be both a breach of ˜justice™
and an obstacle to their own development of judgment, which itself is
integral to personhood. Finally, individuals will have to negotiate their
own ways through life on the search for happiness; because developing
good judgment is necessary for making wise choices about one™s happi-
ness, just as we want others to respect our judgment, we must do the same
for others”as long as they do no positive harm to unwilling others.

38 For a discussion I ¬nd instructive about freedom, children, and parents, see Jennifer
Roback Morse™s Love and Economics.
39 It will also provide some guidance when it comes to the question of nonhuman animals,
whether they count as ˜persons,™ and to what extent we are justi¬ed in governing them.
To that issue I turn in chapter 8.
Working Out the Position
42


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2

A Matter of Principle, Part One
The Betrayal of Personhood




I argued in the previous chapter that human beings are ˜persons,™ which
I de¬ned as something able to develop ends deliberately and exercise
judgment with respect to them. I also argued that one could not be a
˜person™ without judgment, and hence that in order to respect people™s
personhood we had to respect their judgment. That meant that we must
grant each other not only a wide scope of freedom to exercise, develop,
and ¬ne-tune our judgment, but also the responsibility of accepting the
consequences, good or bad, of the decisions we make and the actions
we take. This view of human personhood, along with the privileges and
responsibilities it entails, has political implications, some of which I sug-
gested in chapter 1. In this and the next chapter I propose to spell out
those implications a bit more carefully. My ultimate goal is to persuade you
that only a government limited in certain speci¬c ways is consistent with
human personhood. In this chapter I argue that certain familiar forms
of government are not consistent with personhood as I have described it;
in the next chapter I lay out what form I believe is consistent. I hope in
the end to give you strong reason, based both on moral principle and,
later, on empirical evidence to endorse this kind of limited government.


socialism?
Every society has some form of organization or other, and there are proba-
bly inde¬nitely many potential schemes of organization. One useful scale
on which to place most forms is according to the extent to which they
allow individuals to make decisions for themselves. This scale will run
the gamut from totalitarianism on one end to anarchism on the other.

45
Working Out the Position
46

A limited, constitutional republic, such as what was created in America in
1789, would fall between totalitarianism and anarchism, rather nearer to
the latter; social democracy and socialism, by contrast, would fall rather
nearer to totalitarianism. We cannot survey every form on this scale, but
some expansion of our notion of ˜personhood™ will enable us to see which
kinds of government organization would be ruled out by respect for this
personhood, if not all those that would be ruled in.
Let us begin with socialism, at least since the second half of the nine-
teenth century an in¬‚uential conception of government. Perhaps we
should ¬rst ask what exactly socialism is. According to the account offered
by Karl Marx (1818“83), socialism is the stage of natural human social
progress that succeeds capitalism and precedes communism. It is the
stage during which the monopoly on private property enjoyed by the
few under capitalism is broken, private property is abolished, and soci-
ety is governed, coercively where necessary, by a centralized authority
that makes all decisions about production, housing, education, and so
on for all the citizens. Marx™s account holds that socialism will then even-
tually develop into “communism,” where the harmony and cooperation
that was enforced under socialism now takes place spontaneously, and
the competition and “alienation” regnant under capitalism gives way to
something like a universal brotherhood. The coercive state apparatus that
arose under socialism, now no longer necessary, merely “withers away.”1
Here is how the Communist Party of Great Britain (CPGB) puts it in its
party platform today:

Through society reabsorbing the functions of the state the need for it withers
away. Democracy (a form of the state) negates itself and gives way to general
freedom. The higher stage of communism is a free association of producers.
Everybody will contribute according to their ability and take according to need.
Real human history begins and society leaves behind the “realm of necessity.” In
the realm of freedom people will become rounded, fully social individuals who
can for the ¬rst time truly develop their natural humanity.2

There are other accounts of what exactly socialism is, and I shall not
quibble about names. For our purposes the central distinguishing fea-
tures of socialistic states are that the state claims most, if not all, activities
of its members as falling within its proper purview, its decisions about

1 This famous and oft-repeated phrase actually comes from Friedrich Engels™s 1877 essay
Anti-D¨ hring.
u
2 Http://www.cpgb.org.uk/documents/cpgb/prog transition.html (accessed December
12, 2005).
A Matter of Principle, I: Betrayal of Personhood 47

these matters are made centrally, and those decisions are enforced coer-
cively. I thus use the term “socialism” quite broadly: it would include
everything from the former Soviet Union to China under Mao and still
today, from Nazi Germany to Uganda under Idi Amin. There are many
regimes in the world today that would count,3 and many more that are
either close or heading in that direction.4 Under this kind of state the
individual of¬cially has little substantive freedom to decide for himself
what his schooling will be, what job he will take, how much he should pro-
duce and when and in what way, and possibly even whom he will marry,
how many children he will have, what religion, if any, he will subscribe
to, and so on. Historically, attempts at such total control have usually
failed to become fully realized because people, being recalcitrant ˜per-
sons,™ ¬nd ways to express themselves despite the attempted oversight.
So they develop black markets or “shadow economies,” take unof¬cial
or illegal liberties, conduct cash-only or other untraceable exchanges,
meet or conduct illegal religious ceremonies in secret, and so on. It is
enough, however, that under a socialist state people™s activities are cen-
trally directed, and deviations from those directions are punished when
discovered.
The justi¬cations for this attempted total control over the individual
usually fall under two heads. First is the idea that there is some single
good for everyone or for all of society, which only the “most advanced”
intellectuals, as Marx and Friedrich Engels (1820“95) put it in their 1848
Manifesto of the Communist Party,5 are quali¬ed to apprehend and inter-
pret. This claim serves the dual purpose of justifying why these particular
people should be in charge as well as justifying their pervasive use of
force or threats of force”if what they are enforcing is actually the good,
after all, what possible grounds can we have to object? Now, if you are
inclined to reject out of hand such claims to authority, consider that this
is not unlike what most versions of Christianity hold. Most Christians,
that is, are quite happy to have God tell them what to do, no matter what
it involves”including destroying property, imprisoning others, or even
killing innocents (remember the story of Abraham and his son Isaac,
Genesis 22: 1“14). Why? Well, presumably because they believe that God
actually does know what the good is; if He does and I disagree with what


3 See R. J. Rummel™s Death by Government, chap. 1, and Saving Lives, Enriching Life, chap. 1.
4 See Goldfarb, Freedom in the World 2004, and Gwartney and Lawson, Economic Freedom of
the World 2004.
5 In Tucker, The Marx-Engels Reader, p. 484.
Working Out the Position
48

He says, then it is not God but I who am wrong. A similar logic lies behind
the socialist argument. There are experts or intellectuals who know what
the good is, so you should follow what they say: by hypothesis, then, if
you have other ideas, well, since they are right, you must be wrong. Now
putting it that way is an exaggeration since it portrays these government
elites as if they made claims to infallibility.6 A perhaps more charitable way
to put their argument might be that, while no one is infallible, still some
people are better positioned to understand the movement of history, the
dynamics that give rise to historical and social change, the perversions
and ideologies created by various political regimes, and thus the best
courses of action to take to realize proper human social ends. Here again
is the Communist Party of Great Britain, this time on “leadership”:

The leadership of the Communist Party is its vanguard in terms of theory, politics
and organisation. It constitutes its general staff. No movement can survive without
a permanent body of leaders through which it can ensure continuity. Without
authoritative and in¬‚uential leaders who have been steeled over a long period
of time and are able to work collectively together, no class can wage a serious
struggle for power. If the proletariat wishes to defeat the bourgeoisie, it must
train from among its ranks its own proletarian class politicians who should not
be inferior to the bourgeois politicians. Our Party attaches great importance to
the cultivation of leaders, their theoretical knowledge, revolutionary energy and
political instinct and experience.7

The other main justi¬cation for the socialistic state rises out of criti-
cisms of the “capitalist” order. The bill of particulars against capitalism is
long, but it typically includes charges that it concentrates society™s wealth
in the hands of a few while impoverishing the rest; that it “alienates”
(Marx™s term) workers from their work, from their fellow workers, even
perhaps from their own true humanity; and that it subverts the natural
order by pitting people against one another in a ruthlessly competitive
struggle for life, rather than allowing people to live with one another
in a cooperative harmony. Capitalism, Marx claimed, turns money from
being a mere tool into a “fetish” in which people desire, almost erotically,
simply more and more money as an end unto itself; it creates an “ideol-
ogy” or complex of concepts and slogans that simultaneously provides its

6 Though some would defend even this strong charge. See, for example, economist Thomas
Sowell™s The Vision of the Anointed.
7 Http://www.cpgb.org.uk/documents/cpgb/prog party.html#leadership (accessed De-
cember 12, 2005). I should note that I use the CPGB site only because it states its aims
and justi¬cations with frankness and lucidity. Similar sentiments can be found in many
other places.
A Matter of Principle, I: Betrayal of Personhood 49

own justi¬cation and secures unquestioning faith; and it divides society
into classes whose interests are arti¬cially opposed and who therefore
struggle endlessly, and pointlessly, against one another.8
Most of these charges are, or are based on, empirical claims, and so
they will be decided by empirical investigation, not a priori speculation. In
the last few decades an enormous amount of empirical investigation has
in fact been undertaken on these and related claims, and it turns out that
the evidence points strongly against most of these charges. In chapter 5
I present the evidence rebutting them. Here, however, I take up the sepa-
rate but I believe equally important question of whether a socialist or cen-
tralized state is compatible with respecting people™s personhood. Even if
it is true that, as I argue in chapter 5, systems of government that protect
private property and allow capitalist or quasi-capitalist markets to oper-
ate actually bene¬t all economic classes of people, including the poor,
it might nevertheless be objected that moral principle trumps material
well-being. That is, one might argue that respecting the dignity and worth
of ˜persons™ is the prime moral directive, and that although empirical eco-
nomic considerations might also be important, they take second place to
human dignity. Thus the ¬rst question to be addressed is: is the social-
ist or centralized state compatible with respecting the personhood of its
members?
The answer is no. The essence of personhood, recall, is the capac-
ity to develop deliberate ends and to exercise judgment with respect to
them. The twin integral prerequisites of this personhood were the free-
dom to exercise judgment and the responsibility of oneself facing the
consequences of one™s judgment. No exception was made for cases of
bad judgment. On the contrary, people must be able both to make and
to face the consequences of their mistakes if they are to develop their


8 See Marx™s “Estranged Labour” and “Private Property and Communism,” from his Eco-
nomic and Philosophic Manuscripts of 1844 (pp. 70“93 in Tucker, Marx-Engels Reader) and
the Grundrisse (pp. 224“93 in Tucker). For good recent discussion of Marxian claims, see
Arnold™s Marx™s Radical Critique of Capitalist Society, Brudney™s Marx™s Attempt to Leave Philos-
ophy, Cohen™s Karl Marx™s Theory of History, and Elster™s Making Sense of Marx. For sophis-
ticated defenses of similar positions, see Christman™s The Myth of Property and Cohen™s
Self-Ownership, Freedom, and Equality. Finally, for a clear presentation of standard wor-
ries about markets and market economies, see Rebecca M. Blank™s “Viewing the Market
Economy through the Lens of Faith.” I draw on all these works in my discussion. In the
bibliography at the end of this chapter I also list a number of other works that address
and critically evaluate these claims, including those by Barnett, Bastiat, Bethell, de Jasay,
Epstein, Friedman, Lester, Machan, Narveson, Nock, Rasmussen and Den Uyl, Rothbard,
and Robert Paul Wolff.
Working Out the Position
50

judgment, and thus their personhood and humanity, at all. Impinging
on individuals™ freedom to decide, and either absolving them from fac-
ing the undesirable consequences of their bad decisions or not allowing
them to enjoy the desirable consequences of their good decisions, are all
instances of disrespecting their judgment, thus their personhood, thus
their humanity. It is to treat them as things and not persons. But this is what
socialistic states do. They proceed on the assumption that you are not in
fact the person best positioned to take action on your own behalf”indeed
on the assumption that you might be deluded about what is in your own
best interest, blinded perhaps by your class interests or the self-serving
ideologies your regime or class has inculcated in you. That is why you
are not trusted to make decisions about your own life. So the state must
assume responsibility for educating you, the state must provide for your
retirement, the state must tell you which kinds of employment contracts
you may enter into and which not, it must tell you on which conditions
you may buy a home, buy a car, receive medical care, or get a loan, which
foods, drugs, associates, partners, tools, machines, books, movies, music,
art, language, and political and religious positions are acceptable for you
and which are not”all because you cannot, or cannot properly, do these
things by yourself.
Are you incapable of making such decisions on your own? Leading
one™s own life and taking responsibility for one™s decisions are not easy
things to do, and we might sometimes ¬nd the security of having others
make decisions for us a comforting and attractive proposition. However
natural that attraction might be, it does not mean that we are not capable
of taking responsibility for ourselves”a quite different, and much
stronger, claim. I argued in chapter 1 that there are two clear cases of peo-
ple who are in fact incompetent to do so: children and mentally in¬rm
adults. Although we presume that children will in time develop the rel-
evant abilities, they don™t have them when they™re children”which is
why they are rightly guided by others who do have such abilities, as are
in¬rm adults who also lack, and may never regain, the abilities. I also
argued, however, that these two groups of people were exceptions to the
paradigmatic group of what I called ˜persons,™ and the central identify-
ing characteristic of persons is precisely that they do possess the abilities
to order their own purposes and goals, to assess and weigh options for
achieving them, to choose courses of action, and to interpret and respond
to the consequences attendant on their choices. These abilities constitute
˜judgment,™ which I argued was an integral part of personhood. What this
means is that unless you are a child or a mental incompetent, you are a
A Matter of Principle, I: Betrayal of Personhood 51

person: you possess judgment, you are capable of guiding your own life,
and if we wish to respect your personhood we must let you do so. That
means that socialistic states are out.
I personally ¬nd it offensive that others presume I am incompetent to
make these decisions on my own.9 But what is perhaps an even greater
affront is the underestimation of the average person”the worker or “pro-
letarian” that such states claim to support. Nobody is perfect, of course;
people make lots of mistakes, and I suppose it is true that the lower one™s
IQ is the more mistakes one will make; it might even be true that the
“intellectuals” and “experts” who would be the rulers in a socialistic state
tend to have high IQs. But it does not follow from any of that that anyone
other than you is the best person to run your life. Still less does it fol-
low that they have any justi¬ed authority to run your life. Let them have
the highest IQ in the world, let them have read hundreds, even thou-
sands of books, and let them have the best possible intentions: Do they
know what your talents are and what opportunities are available to you?
Do they know your proclivities, your likes and dislikes, your peccadilloes
and idiosyncrasies, your hopes and dreams and fears, your ambitions and
failings, your loves and hates? They don™t know mine either. That fatally
undercuts the premise on which their claim to authority over others is
based.
We can call this the local knowledge argument. Economist Robert Lucas
won the 1995 Nobel Prize in economics for having shown how local
knowledge effects macroeconomic patterns on the basis of microeco-
nomic decisions. But this argument was formulated already by Adam
Smith in his 1776 Wealth of Nations. Smith wrote, “What is the species
of domestick industry which his capital can employ, and of which the
produce is likely to be the greatest value, every individual, it is evident,
can, in his local situation, judge much better than any statesman or law-
giver can do for him.”10 The argument is that because you know your
own circumstances”including your own talents and desires, as well as
the resources and opportunities available to you”better than anyone
else does, you are better positioned than anyone else to make decisions
about which actions you should take to achieve your goals. Suppose a

9 I don™t think it matters, but in case you were wondering (as one sympathetic to Marxism
might), my personal view cannot be explained by a privileged upbringing. I am the ¬rst
person in my family to graduate college, I come from a “broken” home without a father,
and I was raised by a single working mother in conditions of relative poverty.
10 Inquiry into the Nature and Causes of the Wealth of Nations, p. 456 (hereafter referred to as
WN).
Working Out the Position
52

company is offering $30,000 per year for people to do a speci¬c job. Is
it worth it? The local knowledge argument holds that there is no single
answer to that question that holds for everyone. Instead, each person
must ask whether the job is worth it to himself. Thus only you can answer
that question for yourself because to do so requires a judgment based
on knowledge of your purposes, opportunities, and so on that only you
possess. Moreover, you can answer it only for yourself; I would have to
answer it for myself and only myself, and similarly for everyone else. And
the argument applies to everything else you (and I) do.
The argument also implies what we might think of as concentric circles
of knowledge. Outside yourself, your closest family members or friends
will have the best chance of making good decisions for you, then more
distant family members or friends, and so on, until we get to absolute
strangers, who will not have much of a chance at all. Thus if you were to
become for some reason incapacitated, this is the rough order of authority
we should follow for making decisions for you. This again is the familiarity
principle from chapter 1: one™s knowledge of, interest in, and, one might
also add, one™s natural benevolence for another varies directly with one™s
familiarity with that other. The important point to focus on here is that
the “experts” in charge of a centralized state”the legislators, state regula-
tors, government bureaucrats, and so on”are all in the furthest position
from you, in a circle far from you in the center. They have no personal
knowledge of you or your unique particular circumstances, and that ren-
ders them un¬t to make decisions for you. Since they are in precisely
the same position of ignorance with respect to the overwhelming major-
ity of people in their society, the local knowledge argument undercuts
their authority to rule not just with respect to this or that particular issue,
but generally. As Smith puts it: “But the law ought always to trust peo-
ple with the care of their own interests, as in their local situations they
must generally be able to judge better of it than the legislator can do”
(WN, p. 531).
I do not suggest that each of us has an infallible God™s-eye view of
ourselves, that we know everything about ourselves, that we never suffer
from self-deception, or that we do not make mistakes. People in fact rou-
tinely make mistakes about their own situations, misjudging themselves or
their motivations, overestimating their own successes or virtues, or min-
imizing their failings.11 Moreover, in cases of long, intimate association

11 For an intriguing recent discussion of the possible evolutionary bases of self-deception,
see Wright, The Moral Animal, chap. 13.
A Matter of Principle, I: Betrayal of Personhood 53

it sometimes happens that someone else can know something about you
before you do. A longtime close friend or spouse might realize you are
tired and need a nap before you do, for example, as a parent can tell that
her child™s crankiness is due to having missed his afternoon snack before
the child even realizes he is hungry. But those are limited and exceptional
cases. Speci¬cally, they are limited in at least two ways: ¬rst, the number of
people who might have that kind of intimate knowledge about any given
person is very small, and almost certainly does not include anyone in the
state claiming authority over him; and second, even among those who
do possess such knowledge of another, they will not have access to the
complete package of motivations, desires, purposes, and so on that each
individual does about himself. Even granting, then, that people some-
times deceive themselves and make mistakes, the general claim holds
that each of us knows more about himself than anyone else does.
Perhaps even more important, each of us has a far greater stake in
the outcome of our actions than anyone else does. If you make a mis-
take that leads to bad consequences, it is likely to be you who suffers the
consequences. As I argued in chapter 1, this is as it should be because it
provides a natural incentive to get things right: you do not want to suffer,
so when you take actions that lead you to suffer, however slightly, you have
an automatic, or “natural,” incentive to mark what happened, remember
it, and make adjustments for the future as necessary. But no one else has
similar incentives in your case, and the farther away the decision maker is
from you, the more likely he is to be unconcerned with the consequences
of his decisions as they materialize in your life. This can be shown by the
fact that people are inclined to take far greater risks when they are insu-
lated from the consequences than when they suffer the consequences
themselves.
Two concrete examples illustrate the point. There is a great deal of
evidence”indeed, more than two millennia of it”that a fundamental
building block of education is the mastery of grammar. Grammar is to
reading and writing as arithmetic is to statistical reasoning, balancing
a checkbook, or ¬guring out gas mileage: you can™t do the one, or at
least not well, without the other. For some time now, however, educators
in the United States have tended to disdain the teaching of grammar.
One reason for doing so is the common belief that teaching “Standard
English” accepts or endorses the legitimacy of an unjust imperialism or
unjustly neglects to recognize the legitimacy of dialects of English. Yet the
movement away from teaching grammar has coincided with a decline in
students™ abilities to read and write, and there is evidence of a causal,
Working Out the Position
54

not merely correlative, relation between the two.12 Despite the evidence,
which has been available for some time now, teachers and administrators
persist in eschewing teaching grammar. Why? The answer given by one
teacher of English as a second language gives a clue. As reported by classics
professor David Mulroy, when asked about it, this teacher said “that she
carefully refrained from criticizing nonstandard English in the classroom
and felt that it was important to do so. Then she added as a humorous
aside, a throw-away line, that ˜of course™ she policed her own daughters™
grammar with fanatical vigilance.” Mulroy concludes: “It was, I thought, a
moment of truth. People who use ˜good grammar™ do not hesitate to force
it on the children they love”13 ”the implication being that they are not
nearly so concerned with the children they do not love. Here we see at work
the incentives involved in severing decision making from consequence
suffering: it is one thing when your children suffer the consequences of
my decisions, another thing entirely when it is my own children.
A second example illustrating the point comes from a recent ecolog-
ical disaster that took place in Lake Michigan near Milwaukee, Wiscon-
sin. According to the Milwaukee Journal Sentinel, in May and June, 2004,
the Milwaukee Metropolitan Sewerage District (MMSD) “dumped an
unprecedented 4.6 billion gallons of raw sewage” into Lake Michigan.14
The dumping was not a mistake or error, however, but was rather the
MMSD™s policy: when their sewage system receives a lot of rainwater”as
it did because of “intense back-to-back storms and almost unrelenting
rain””then it is programmed simply to dump the untreated sewage into
Lake Michigan. In this case the dumping resulted in the extended clo-
sure of miles of beaches, though the full damage to the Lake Michigan
ecosystem is not yet determined. The Michigan Department of Natural
Resources (MDNR) has considered punishing the district, but the rele-
vant statutes give an exception to municipalities during “the most dire
weather emergencies,” which of course the MMSD is claiming this was.

12 See Mulroy, The War against Grammar, chaps. 1“3, and Coulson, Market Education, chaps.
2 and 6.
13 Mulroy, The War against Grammar, pp. 87“8.
14 “Sewage Dumped in May: 4.6 Billion Gallons: Amounts Top Any Yearly Total since
Tunnel Opened,” Milwaukee Journal Sentinel, May 29, 2004 http:/ /www. jsonline.com/
news/metro/may04/232813.asp (accessed December 12, 2005). See also the June
4, 2004, article in the Janesville (Wisconsin) Gazette, “DNR Issues Notices of
Violations for Lake Michigan Sewage Dumping,” http:/ /www.gazetteextra.com/
sewagedumping060304.asp (accessed March 15, 2005), and Christopher Westley™s
“Milwaukee™s Mess,” http:/ /www.mises.org/fullstory.asp?control=1538 (accessed De-
cember 12, 2005).
A Matter of Principle, I: Betrayal of Personhood 55

Whatever the MDNR decides, what is clear is that no one will be jailed
for this disaster, and since government of¬cials are by long-standing tra-
dition and legal precedent immune to prosecution for what they do in
their of¬cial capacities,15 the people responsible for the disaster will not
be held legally responsible.
Now compare that situation with one that took place in 1989, when
the Exxon oil tanker Valdez ran aground near Alaska™s Prince William
Sound, dumping some 11 million gallons of oil into the ocean. Exxon
was sued in court, found guilty of negligence, and has paid since 1989
over $3 billion in clean-up costs and restitution to affected ¬shermen,
industry, and so on. The Exxon disaster was the subject of an enormous
¬restorm in world-wide press coverage, and still today people readily call
up profoundly negative associations with the name “Valdez.” But there is
a good chance you never heard about the Milwaukee disaster, since it was
covered almost exclusively in local and regional papers, never making it
into the national press. And that is despite the fact that the Milwaukee
disaster released some four hundred times as much pollution as did the
Valdez, and into a lake a fraction of the size of the north Paci¬c Ocean.
The Exxon disaster has led not only to extensive punishments of the
company and the ship™s captain, but also led to industry-wide changes in
business operations. It was an accident, the result indeed of negligence
of a very high order. But the Milwaukee disaster was fully foreseen, and
was part of the predicted and intentional planning. Why the difference?
Why, one might ask, would the MMSD willingly and knowingly take such
a spectacular risk of destroying or damaging a vital natural habitat”not
to mention the chief supply of fresh water for millions of people? A large
part of the answer, I suggest, is that the politicians making the decision
knew that they could not be held responsible. And they haven™t been. The
divorce between their freedom to decide and the responsibility for the
consequences of their decisions provided them little or no incentive, no
˜natural necessity,™ to look for alternative, better ways to handle things, to
buy insurance against mistakes, or to accept responsibility for their risky
behavior. And so they didn™t.
Incentives matter, in other words. Just imagine all the creative ideas
you could come up with for, say, running a company if you did not have to


15 For summaries of the relevant legal precedents, see http://www.november.org/
razorwire/rzold/17/17024.html or http://www.peoples-law.org/individual-rts/civil-
rights/Federal law.htm#Immunity%20from%20Suit (both accessed December 12,
2005).
Working Out the Position
56

pay for any losses out of your own pocket. You could let your imagination
run wild: maybe let the janitors be the board members, or require every-
one to be paid the same, or decide that it has to be run as an absolute
democracy with every employee having an equal vote, or require that the
company™s employees re¬‚ect the exact ethnic or religious proportions
of the surrounding population, or require that each employee must pro-
duce as much as he can but be paid only as much as (you judge) he needs,
or decree that the minimum pay anyone should receive is $20 an hour.
The point is that not only are third parties not positioned to know as
much about you and your situation as you are, and are thus not as well
positioned as you to make decisions about your life; but they also do not
face the incentives that discipline them, whether they will or no, to pay
attention to the actual results of the actions they decide to take. That
makes for a dangerous combination.
It may also go some way toward explaining the otherwise unfathomable
indifference authoritarian leaders often display toward the suffering and
misery of their people. How can a Lenin or a Stalin or a Pol Pot possibly be
so cruel, so inhumane, so pitiless and merciless? Part of the explanation,
I suspect, lies in the fact that they did not themselves endure any of the
suffering caused by their decisions and actions, and neither did their own
loved ones or friends. When, on the other hand, there is a real chance
that a political leader might not be reelected, might be ¬red, or even
hanged or guillotined, well then they smarten up fast. Until that point,
however, we can only pin our hopes on their benevolence”and we need
not belabor just how weak that can be in the face of their own self-interest.
The conclusion is that a socialist state is incompatible with a society of
human beings”that is, a society of persons”because it robs them of the
opportunities to exercise judgment and to deliberate about ends that
are constitutive of personhood. It treats them the way slavery treats its
charges, as mere things. Slaveholders indeed have sometimes defended
their practice by claiming that it was in the best interest of the slaves
themselves, since, it is alleged, those inferior creatures just are not capable
of directing their own lives in a “civilized” or “truly human” fashion. I
suggest we should reject the socialistic argument for exactly the same
reasons we reject that of slavery™s apologists. The further facts that the
leaders of a centralized state (1) do not have the local knowledge required
to make good decisions about individuals™ lives and (2) do not have the
proper incentives to discipline them to continually seek out what is best
for people to do not only explain why government agencies are so typically
unintelligent (more on that below), but also provide additional reason
A Matter of Principle, I: Betrayal of Personhood 57

why we should leave the direction of people™s lives as much as possible to
the people themselves.


the american welfare state: a “middle way”?
Since at least the era of Franklin Delano Roosevelt and the New Deal,
the United States has embarked on a path attempting to steer a so-called
middle way between the extremes of socialism, on the one hand, and
of “horse-and-buggy-era” classical liberalism (as FDR called it16 ), on the
other. The idea has been that since socialism has its “excesses””abusive
tyranny, mainly”and since classical, Lockean, minimal-state, or “night-
watchman” liberalism has its own excesses”great disparities in wealth
chief among them”perhaps the wise thing to do is to steer a middle
path. Perhaps, then, we can allow the classical liberal scheme of markets,
competition, and private property, out of deference to the apparent real-
ity that this is the best engine for the creation of material prosperity;
while at the same time hemming those markets in, limiting competition,
and weakening private property rights when doing so leads to socially
desirable ends or when other undesirable consequences would other-
wise ensue. This is the welfare state: it allows private property, but it taxes
it and may revoke or con¬scate it on demand; it allows markets, but it has
rules about what kinds of goods may be sold, under what conditions they
may be sold, what kind of employment contracts are allowable, and so
on; and it redistributes wealth from the wealthy to the poor in an effort
to narrow, if not close altogether, the gap between them.
Many people today believe that such a system, at least as it exists in the-
oretical descriptions, is the perfect embodiment of compromise between
the highest, if unattainable, moral and political goals (socialism) and
the actual, if sel¬sh and ugly, reality of human nature (capitalism). I
suspect, however, that many more people accept the welfare state not
because of any theoretical or moral commitments but rather because
that is just what they are used to. As the great Scottish philosopher David
Hume (1711“76) argued, political power rests not on physical force but
on belief, and belief itself is largely determined by habit.17 Why do peo-
ple obey the king™s soldiers? Because everyone knows”that is, everyone

16 At a press conference on May 31, 1935. See http:/ /www.bartleby.com/73/1763.html
(accessed December 12, 2005).
17 In his essay, “Of the Origin of Government,” contained in the collection Essays Moral,
Political, and Literary, pp. 37“41.
Working Out the Position
58

believes”that they are in charge. Why do they believe that? Because it
has always been so. Why, in turn, do the king™s soldiers obey the king?
Because they believe that he is in charge; and besides, everyone obeys the
king. Similarly, in America today, many people follow what the president
says, what their senators and representatives say, what the people who
staff all those bureaus and agencies and of¬ces say, because they believe
that those people are in charge. Why do they believe that? Well, every-
one does”right? Besides, it has always been that way”right? In an 1884
essay entitled “The Great Political Superstition,”18 the English philoso-
pher and biologist Herbert Spencer (1820“1903) claimed that despite
their republican pretenses the English had never truly rid themselves
of the old and publicly denigrated idea of the “divine right of kings,”
according to which the king claimed authority to rule either because he
was appointed by God or because he was a god. That may have been the
earlier “great political superstition,” but according to Spencer the great
political superstition of his own day was “the divine right of parliaments”:
whereas earlier there were no limits on the king™s authority to rule, now
there is no limit on parliament™s authority to rule. Were he alive today,
Spencer would probably claim that Americans got rid of the “divine right
of kings” in 1776 only to replace it with the “divine right of Congress” in
the 1930s.19 Though perhaps possessed of a grain of truth, Spencer™s
claim strikes us today, especially in America, as an exaggeration. But

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