Julian Sanchez header image 2

photos by Lara Shipley

Genies and Justice

March 26th, 2011 · 2 Comments

An entertaining thought experiment from the folks at Bleeding Heart Libertarians:

Suppose a genie gives you the power to snap your fingers and instantly implement your preferred theory of political justice.

  • By “theory of political justice” I mean, very roughly, your theory about the basic moral constraints that govern what states (or, if you prefer, the “basic structure of society”) ought to do or refrain from doing – whether and to what extent taxation is permissible, whether some form of social safety net is mandatory, whether the government can prohibit or regulate food and drugs, and so on.

  • By “implement” I mean that the relevant agents of the government (or other institutions within the basic structure) will make reasonable efforts to put your theory into practice. Human nature will not change, and so we can still expect some “normal” amount of corruption, disobedience, and so on.

You, of course, believe that your theory of justice is correct. You also believe (correctly) that most other people do not.

Does the fact that others disagree give you any moral reason not to use the power you’ve been given – beyond reasons of a merely pragmatic sort?

I started posting a comment, but realized I had enough to say that it made sense to break the response out as a separate post. A few reactions.

(1) Can we go halfsies here? Scanning the comments, everyone seems to agree that there are some principles of justice that are at once so important and so plainly correct (don’t torture innocent people for amusement) that we’d have no issue “imposing” them on a population that rejected them, at least by the relatively pleasant expedient of magic, though these also tend to be points on which there’s not much disagreement in the commenters’ actual societies. I have the same reaction. But there are other elements of my views that are (a) important, but sufficiently uncertain that I’d be unwilling to make the call unilaterally or (b) seem certain to me, but are sufficiently minor (think “in God we trust” on currency…) that I might have more qualms about overriding democratic self-determination than about the injustice itself. What’s implicit in this, of course, is that when the problem is framed as a question of what you would do rather than of abstract institutional assessment, it’s especially hard to treat questions of justice and legitimacy as independent—useful though that might normally be—because ultimately you have to ask yourself whether you think the injustice (you deem to be) involved in “imposing” a particular rule on people is more serious than the injustice (you deem to be) imposed on others by whatever rule is currently accepted (or imposed by other sources), adjusted for your level of confidence in each of these evaluations. Put another way, if you hesitate because you think it is wrong for an individual or small group to impose their view on an unwilling majority (you wouldn’t outsource the call to a sympathetic panel of ethicists, economists, and historians either), then presumably that, at least, is a principle you’d be willing to ensure is implemented in the basic structure. Either way, at some level you’re necessarily making a decision internal to your own views about the relative priority of various aspects of justice.

(2) Similarly, if you think justice has something to say about the kinds of educational opportunities to which people are entitled, or the appropriate relative influence of government sponsored versus corporate media, censorship of minority political views, the permissibility of the systematic religious indoctrination of children, or an electoral system structured so as to ensure the domination of political discourse by the choice between two parties, these are all likely to have some bearing on how seriously you take the fact of disagreement on any particular point in an existing society that diverges from your ideal. Political disagreement about the justice of political institutions still takes place within some existing set of institutions. To anchor this to the thought experiment a little more concretely: Suppose my theory of justice holds that the prohibition of most recreational drug use and the unequal treatment of gay couples in marriage laws are both seriously unjust. Ignoring the most recent polls on the latter question, suppose most people don’t agree, and that these policies enjoy majority support. Does it matter if (I believe that) these views mostly reflect status quo bias and would not survive a change in the policy? If, in other words, I have reason to believe that after the change is made, the principle on which the change is based would be widely accepted—or at least, not rejected? Probably suggestions along these lines sound condescending, but sometimes the historical pattern of a normative change building to a legal one and then rapidly “tipping” manifests clearly enough that it’s a form of patronizing indulgence to pretend you can’t see the handwriting on the wall.

(3) Various people in the comments suggest that it matters how the genie actually “works.” Again, one reason you might hesitate is that you think it would be wrong to somehow “magically” change the beliefs of government officials—as by a kind of gentle brainwashing—or because you’re imagining what is normally entailed in practice by a particular form of government preserving itself against a majority strongly opposed to it. At the other extreme, you could imagine a genie that worked by subtle and inherently unobjectionable means—say, by ensuring that appellate judges and Supreme Court justices encountered extremely persuasive arguments that changed their votes in certain crucial cases. If you have views about the relative morality (or “justice”) of the mechanism by which the change comes about, that’s likely to color your perception of whether this counts as an objectionable “imposition.” It might be objected that this line of thinking misses the point of a thought experiment—and especially one invoking magic—which is precisely to abstract away all that stuff so we can interrogate an intuition about legitimacy, and in particular about whether it’s permissible to impose a theory of justice on people who mostly reject it, regardless of the details about just how this comes about. The trouble is…

(4) Normal people don’t actually have a “theory of justice.” Most of us have a variety of moral convictions and intuitions, held with varying degrees of intensity and reflectiveness, at many different levels—and these are generally imperfectly systematized at best. As I suggest in (2) above, a lot of these seem heavily dependent on the existing laws and institutions. One reason I think people started getting into the “how does the genie work?” question is that legitimacy is manifestly not just a question of whether every particular government policy polls above 51%. That makes it a little tough in practice to say just by looking at the substantive outcome what counts as an “imposition,” either under the status quo or in a counterfactual. Lots of people simultaneously disagree strongly with particular statutes or Supreme Court decisions, but do accept the legitimacy of the institutions and procedures that generate those results. (At the extreme, you could imagine cyclical majorities disapproving of every one of a dozen Supreme Court opinions protecting minority rights, but a unanimous preference for letting the court trump the majority if all dozen cases have to be decided by the same method.) On the other hand, I suspect for many people this is contingent on their finding the results more or less acceptable in the aggregate rather than any particular higher-order view about how justice should be implemented institutionally. In any event, if people are prone to focus on the mechanism of change (“how does the magic work?”) I suspect it’s because we recognize that people don’t actually vote for theories of justice, so it’s impossible to really assess the legitimacy of an outcome without knowing something about the process level.

(5) Does it matter if the genie tells you that current institutional arrangements are the result of someone else having made a similar wish in the past? Does it matter how long ago? Does it matter whether the system is (eventually?) stable without magical influence after the initial change is made?

(6) This is probably already implicit, but we ought to distinguish between two (obviously interrelated, but at least conceptually distinct) kinds of motives for abstaining. One is, let’s say, a purely moral rationale, along the lines of: Even if it is absolutely certain what justice substantively requires, peoples have a collective moral claim to have a say in the design of their own institutions rather than having them imposed—even if by nonviolent magical means. As I suggest in (1), I wouldn’t actually give this too much weight all on its own, when the requirements of justice are certain and concern core rights, since the point of principles of justice is precisely to determine what may legitimately be imposed on nonconsenting others. The other is an epistemic or fallibilist rationale: The fact that many other reasonable people disagree is a strong prima facie reason to show a little humility about whether your own view is correct in every respect. Even where there is widespread agreement, you might be wary of any mechanism that would “lock in” the best current consensus understanding (perhaps by magical means), because it would effectively insulate the system against learning as circumstances and arguments evolve. You are justified in holding whatever conclusions seem best supported to you, whether or not others agree, but over the longer run you should hope they can survive the test of whether they do (eventually) manage to persuade others, perhaps in the face of objections you haven’t yet considered. This second rationale, I think, is the far more compelling one.

(7) Fun though the hypothetical is, I think it’s probably not that well suited to getting at the underlying question of how libertarians of any stripe should react to the fact that we live in a mostly non-libertarian world. The real issue for us, I think, is that nobody is actually going to get to fully design a “basic structure of society” in accordance with some coherent theory of justice, libertarian or otherwise. Suppose that the time came when a large majority did accept libertarian ideas: It would still be impossible to assume that the political structure could be centrally planned (so to speak) indefinitely. So even if you thought you had the best ideal theory of justice, to the extent that its appeal relied on many different pieces all remaining in place, you would still have to worry about whether you had a brittle system or one that degraded elegantly as deviations from the ideal were introduced. This is, in part, why I’m lately less interested in comprehensive theories of justice than in finding stable optimizing moves from the status quo that have appeal across a wide range of reasonable theories.

Tags: Libertarian Theory



2 responses so far ↓