Monday, April 06, 2009
Religion and Liberty
****
When discussing "liberty" and "freedom," it seems some clarification of terms is in order. The founders' vision for America was not about unfettered freedom, but, rather, a particular type of ordered liberty. "Freedom" without a strong moral basis is an empty promise. The founders - admittedly an ambiguous term, but for the purpose of this post can be described as the founding generation of the United States, steeped in the Judeo-Christian tradition (if they weren't themselves orthodox, ie: trinitarian, Christians) and natural law - understood the problem of liberty quite clearly. The problem, stated simply, was how to keep liberty from degenerating into mere license. The solution, as many of the founders saw it, was to encourage the practice of religion among the American people under the assumption that the Christian religion helped make citizens fit for republican government. Meaningful freedom required the exercise of virtue on behalf of citizens and the connection between the Christian religion and virtue was obvious.
The problem inherent in a free society is that immoral actors take advantage of moral ones. If everyone quite rationally suspects everyone else of immoral behavior, then in order to protect themselves in any given transaction the value of exchange is necessarily undercut by the cost of self-protection. As actors become more immoral in their transactions, it becomes necessary to ease the expense of self-protection by enlisting the aid of government in the form of regulation, thereby undermining the entire libertarian idea. The key to breaking the cycle of immoral action and regulation is to change the nature of the actors. This not a new concept, as would-be social engineers and progressives of every stripe have been attempting this with various degrees of failure to show for their efforts for more than a hundred years. The more virtuous actors in an exchange are, the less opportunistic their behavior, then the more trust all actors can have at the outset of exchange. With trust, the costs of transaction rapidly decline and the need for government regulation and enforcement eases also. Absent trust or government intervention, exchanges are only regulated by the relative strength of the actors, a situation that can be readily observed in criminal activity.
Religious social conservatives press for public policies that tend to increase social capital by improving citizens. The difference between what social conservatives and humanistic socialists are after in the transformation of the individual into a good citizen lies in the nature of their different approaches. The Christian sees the development of virtuous behavior as a "bottom up" enterprise, meaning that society is perfected as its individual members are, whereas humanists tend to work from the top down, defining the ideal and coercing the individual to its vision. True liberty lies in the freedom to do as one ought, that "ought" as realized by a properly formed actor.
****
For more on natural law - http://www.acton.org/research/reading/research_reading_natural_law.php
On Virtue - http://www.idehist.uu.se/distans/ilmh/Ren/civic-virtue.htm
On ordered liberty - http://www.isi.org/spotlight/essay_contest/order_liberty_05/2.pdf
See also: Samuel Gregg's excellent book "On Ordered Liberty: A Treatise on the Free Society (Religion, Politics, and Society in the New Millennium)" http://www.amazon.com/Ordered-Liberty-Treatise-Religion-Millennium/dp/0739106686/ref=sr_11_1?ie=UTF8&qid=1239073034&sr=11-1
When discussing "liberty" and "freedom," it seems some clarification of terms is in order. The founders' vision for America was not about unfettered freedom, but, rather, a particular type of ordered liberty. "Freedom" without a strong moral basis is an empty promise. The founders - admittedly an ambiguous term, but for the purpose of this post can be described as the founding generation of the United States, steeped in the Judeo-Christian tradition (if they weren't themselves orthodox, ie: trinitarian, Christians) and natural law - understood the problem of liberty quite clearly. The problem, stated simply, was how to keep liberty from degenerating into mere license. The solution, as many of the founders saw it, was to encourage the practice of religion among the American people under the assumption that the Christian religion helped make citizens fit for republican government. Meaningful freedom required the exercise of virtue on behalf of citizens and the connection between the Christian religion and virtue was obvious.
The problem inherent in a free society is that immoral actors take advantage of moral ones. If everyone quite rationally suspects everyone else of immoral behavior, then in order to protect themselves in any given transaction the value of exchange is necessarily undercut by the cost of self-protection. As actors become more immoral in their transactions, it becomes necessary to ease the expense of self-protection by enlisting the aid of government in the form of regulation, thereby undermining the entire libertarian idea. The key to breaking the cycle of immoral action and regulation is to change the nature of the actors. This not a new concept, as would-be social engineers and progressives of every stripe have been attempting this with various degrees of failure to show for their efforts for more than a hundred years. The more virtuous actors in an exchange are, the less opportunistic their behavior, then the more trust all actors can have at the outset of exchange. With trust, the costs of transaction rapidly decline and the need for government regulation and enforcement eases also. Absent trust or government intervention, exchanges are only regulated by the relative strength of the actors, a situation that can be readily observed in criminal activity.
"Because the founders had the wisdom and imaginative power to predict what evil a man might conjure up with unrestrained liberty, they grounded liberty in the context of order. Prudence is generally scorned today, but in the days of the Constitutional Convention it was a highly regarded way of life. Mores and honorable social tradition constituted what it meant to be a liberated man. They held as self evident that when confronted with liberty ungrounded in order, men create a world of chaos with respect to themselves and a world of tyranny with respect to others. In contrast, some think today that unrestrained liberty constitutes what it means to be a liberated man. A deep reverence for the Founders' ideal of a liberated man, exercised through right reason, defines the proper relationship between order and liberty and altogether defines what it means to be a conservative." - Christa J. Byker
Religious social conservatives press for public policies that tend to increase social capital by improving citizens. The difference between what social conservatives and humanistic socialists are after in the transformation of the individual into a good citizen lies in the nature of their different approaches. The Christian sees the development of virtuous behavior as a "bottom up" enterprise, meaning that society is perfected as its individual members are, whereas humanists tend to work from the top down, defining the ideal and coercing the individual to its vision. True liberty lies in the freedom to do as one ought, that "ought" as realized by a properly formed actor.
****
For more on natural law - http://www.acton.org/research/reading/research_reading_natural_law.php
On Virtue - http://www.idehist.uu.se/distans/ilmh/Ren/civic-virtue.htm
On ordered liberty - http://www.isi.org/spotlight/essay_contest/order_liberty_05/2.pdf
See also: Samuel Gregg's excellent book "On Ordered Liberty: A Treatise on the Free Society (Religion, Politics, and Society in the New Millennium)" http://www.amazon.com/Ordered-Liberty-Treatise-Religion-Millennium/dp/0739106686/ref=sr_11_1?ie=UTF8&qid=1239073034&sr=11-1
Labels: law and order, liberty, politics
Thursday, December 13, 2007
Random thoughts on law, justice, cops and robbers
****
Mandatory sentencing is a travesty. Plea bargaining is also. I think it would be better to charge a defendant appropriately than to shoot for the moon, the prosecutor figuring to get him to agree to a sentence appropriate to the crime without the inconvenience of a trial. That the prosecution thought the punishment was appropriate to the alleged crime is evident because of the lesser nature of the charge that was offered. If the prosecutor accepts a plea to a lesser charge from a criminal who is clearly a danger to society and deserving of the harsher sentence, then the prosecutor is derelict in his duty.
I also think it would be better to allow the judge to sentence according to his prudential judgement. This would prevent miscarriages of justice that have people in prison for minor offenses far longer than than is reasonable or proportional to their crimes. I realise that mandatory minimum sentencing has been enacted as a reaction to perceived undersentencing by judges, however there are mechanisms to remove judges who are not doing their jobs. Politicians choose the easy way out, bowing to public pressure to do something even if it's wrong, as enacting legislation for mandatory minimum sentencing clearly is.
Mandatory sentencing and plea bargaining are refuges for lazy and/or incompetent prosecutors, defense attorneys and demogogues.* Don't even get me started on prosecutors who load up defendants with multiple charges all related to the same crime in the hopes that at least one will stick.
I’ve got little use for the law; I’m much more interested in justice. Justice is not served by our current "justice system." There are far too many incarcerated Americans, many serving ridiculously long sentences for victimless crimes. Far too often, the size of one's bank account or the color of one's skin tilts the scales one way or the other. It's far too easy to run afoul of the law; there are too damn many of them. At a guess, most people break at least a couple every day.
****
After reading the following, you might suspect that the opinion expressed above could be a reflection of my attitude toward authority.**
I was recently pulled over because my car's paint job didn't match the color on the registration. This was due to the fact a clerk at the BMV entered the wrong color on the registration. I was in a neighboring county, so the cop had picked out my plate (profiling) and was running it to see what he could find out. While pulled over, Officer Friendly informed me that my registration was not signed (by me) - a citable offense.
Disclosure - I tend to be lippy with cops.*** In this case, when he told me why I was being pulled over, my response was, "You must be bored." When he told me about the "citable offense" my response was, "You must REALLY be bored." He offered to spend some time writing me up if I wanted to continue showing lack of respect. I demurred, disrespectfully. He didn't write the citation anyway.
Fighting a traffic citation is no-win; of course, they know this. Fines are a revenue source - yet another perversion of the justice system.
****
Before you get the wrong idea, I don't have a problem with policemen doing their job. I've given known cops a hug now and then - brothers in Christ. My biggest problem with the police vocation is the us versus them mentality that develops. Of course, that's a problem in any profession. When I was in the Coast Guard it was the same; I was a boarding officer, the nautical equivalent of a traffic cop.
Another problem is that people who are attracted to positions involving authority over others are generally people you wouldn't want to have that authority. The clannishness of the police tends to insulate them from all but the more egregious offenses committed by one of them. Anecdotal evidence being what it is, you have to take claims with a grain of salt, but there are too many instances of evidence being planted and crap like this:
Kathryn Johnston, 92, was murdered in her home by police serving a no-knock warrant obtained by perjury. After shooting the poor woman police officers made no effort to save her life and even after realizing their mistake, they left her handcuffed on the floor, bleeding, while they planted marijuana in her basement.
****
I reiterate - it is not my intention to tar every cop with the same brush. Some of my best friends turned out to be cops.**** Police have a legitimate role and I'm sure the majority are good people who do their jobs well.
I contend that the system is broken, subject to abuse, not subject to accountability and that the best cops in the world are enforcing laws that shouldn't even be on the books. Is it any wonder that relations between cops and even ordinarily law-abiding citizens are strained?
*Please note that the above statement doesn’t apply to lawyers in general, although my opinion of the profession isn't particularly high.
**It's often been pointed out the man is less rational than rationalising. I'm self-aware enough to know the difference.
***I was nearly arrested the last time I was pulled over for a seatbelt violation. Apparently, cops don't like being referred to as brownshirts. This one took exception to being told that he could stick the relevant part of the code up the governor's keister.
****If you knew some of my best friends, you'd be worried.
Mandatory sentencing is a travesty. Plea bargaining is also. I think it would be better to charge a defendant appropriately than to shoot for the moon, the prosecutor figuring to get him to agree to a sentence appropriate to the crime without the inconvenience of a trial. That the prosecution thought the punishment was appropriate to the alleged crime is evident because of the lesser nature of the charge that was offered. If the prosecutor accepts a plea to a lesser charge from a criminal who is clearly a danger to society and deserving of the harsher sentence, then the prosecutor is derelict in his duty.
I also think it would be better to allow the judge to sentence according to his prudential judgement. This would prevent miscarriages of justice that have people in prison for minor offenses far longer than than is reasonable or proportional to their crimes. I realise that mandatory minimum sentencing has been enacted as a reaction to perceived undersentencing by judges, however there are mechanisms to remove judges who are not doing their jobs. Politicians choose the easy way out, bowing to public pressure to do something even if it's wrong, as enacting legislation for mandatory minimum sentencing clearly is.
Mandatory sentencing and plea bargaining are refuges for lazy and/or incompetent prosecutors, defense attorneys and demogogues.* Don't even get me started on prosecutors who load up defendants with multiple charges all related to the same crime in the hopes that at least one will stick.
I’ve got little use for the law; I’m much more interested in justice. Justice is not served by our current "justice system." There are far too many incarcerated Americans, many serving ridiculously long sentences for victimless crimes. Far too often, the size of one's bank account or the color of one's skin tilts the scales one way or the other. It's far too easy to run afoul of the law; there are too damn many of them. At a guess, most people break at least a couple every day.
****
After reading the following, you might suspect that the opinion expressed above could be a reflection of my attitude toward authority.**
I was recently pulled over because my car's paint job didn't match the color on the registration. This was due to the fact a clerk at the BMV entered the wrong color on the registration. I was in a neighboring county, so the cop had picked out my plate (profiling) and was running it to see what he could find out. While pulled over, Officer Friendly informed me that my registration was not signed (by me) - a citable offense.
Disclosure - I tend to be lippy with cops.*** In this case, when he told me why I was being pulled over, my response was, "You must be bored." When he told me about the "citable offense" my response was, "You must REALLY be bored." He offered to spend some time writing me up if I wanted to continue showing lack of respect. I demurred, disrespectfully. He didn't write the citation anyway.
Fighting a traffic citation is no-win; of course, they know this. Fines are a revenue source - yet another perversion of the justice system.
****
Before you get the wrong idea, I don't have a problem with policemen doing their job. I've given known cops a hug now and then - brothers in Christ. My biggest problem with the police vocation is the us versus them mentality that develops. Of course, that's a problem in any profession. When I was in the Coast Guard it was the same; I was a boarding officer, the nautical equivalent of a traffic cop.
Another problem is that people who are attracted to positions involving authority over others are generally people you wouldn't want to have that authority. The clannishness of the police tends to insulate them from all but the more egregious offenses committed by one of them. Anecdotal evidence being what it is, you have to take claims with a grain of salt, but there are too many instances of evidence being planted and crap like this:
Kathryn Johnston, 92, was murdered in her home by police serving a no-knock warrant obtained by perjury. After shooting the poor woman police officers made no effort to save her life and even after realizing their mistake, they left her handcuffed on the floor, bleeding, while they planted marijuana in her basement.
****
I reiterate - it is not my intention to tar every cop with the same brush. Some of my best friends turned out to be cops.**** Police have a legitimate role and I'm sure the majority are good people who do their jobs well.
I contend that the system is broken, subject to abuse, not subject to accountability and that the best cops in the world are enforcing laws that shouldn't even be on the books. Is it any wonder that relations between cops and even ordinarily law-abiding citizens are strained?
*Please note that the above statement doesn’t apply to lawyers in general, although my opinion of the profession isn't particularly high.
**It's often been pointed out the man is less rational than rationalising. I'm self-aware enough to know the difference.
***I was nearly arrested the last time I was pulled over for a seatbelt violation. Apparently, cops don't like being referred to as brownshirts. This one took exception to being told that he could stick the relevant part of the code up the governor's keister.
****If you knew some of my best friends, you'd be worried.
Labels: blather, law and order
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