≡ Menu

Quotation of the Day…

… is from page 331 of philosopher Jason Brennan’s superb contribution, titled “Moral Pluralism,” to the 2016 collection edited by Aaron Ross Powell and Grant Babcock, Arguments for Liberty (original emphasis):

Still, from a pluralist perspective, the best way to defend liberty is to begin with the observation that day-to-day morality is libertarian. There is a presumption of liberty. By default, we presume people should be free to live as they see best, without having to ask permission or justify themselves to other people. By default, all restrictions on liberty are presumed wrong and unjust, until shown otherwise. Coercive interference with others’ liberty must be justified. Political authority and all laws are assumed unjustified until shown otherwise.

DBx: Yes. Beautifully put.

But I pick one nit. When Brennan writes that “all laws are assumed unjustified until shown otherwise” he ought instead to have written “all legislation [or all statutes] meant to regulate persons’ private affairs are assumed unjustified until shown otherwise.”

Genuine law that governs persons’ private affairs – chiefly, the law of property, contract, and tort – emerges spontaneously in the course of human interactions. When disputes in such affairs arise and are serious enough to warrant formal adjudication, courts discover the applicable law and then apply it to settle the disputes in question. (The applicable law is found not in any “brooding omnipresence in the sky,” but, rather, in ordinary people’s existing expectations – many of which can and do change over time.) This law – what might loosely be called “the common law” – deserves a presumption of legitimacy; it should be assumed to be justified until shown otherwise.

In addition, statutes setting out the organizational structure and operating rules of a government and its agencies arguably also deserve a presumption of legitimacy. Each such statute – for example, one that specifies the method of appointing local postmasters, or a statute that sets the pay scales of judges and of members of the legislature – are not meant to regulate persons’ private affairs.

There is every reason to presume spontaneously evolved law to be legitimate. And there is no necessary reason, even in libertarian philosophy, for a presumption of illegitimacy of organizational and operational statutes.

But as Brennan argues, all legislation that obstructs the peaceful, private affairs of consenting adults ought well be presumed to be illegitimate until and unless shown otherwise. And a successful showing of otherwise requires far more than demonstrating that such legislation won the approval of the majority. Of course, such legislation today – from minimum-wage regulations to protective tariffs to occupational-licensing restrictions to detailed government interference in financial markets to Covid-19 lockdowns – is as voluminous as it is obnoxious and, I believe, illegitimate.