Remarks on Geoffrey Plauché’s “On the Myth of the Founder-Legislator in Political Philosophy”

These remarks were read on 29 December 2006, at American Philosophical Association meeting in Washington, D.C. The event was the Molinari Society group meeting and the occasion for the comments was Geoffrey Plauché’s (excellent) essay, On the Myth of the Founder-Legislator in Political Philosophy.

Geoffrey Plauché’s essay provides a fine synthesis of insights into the sustaining myths of statism: the myth of the Founder-Legislator and the fatal conceit of central planning. In the temples of the state cult there invariably stands an idol of the law-giver. The legends can be divided into those of legendary founders—such as Lycurgus of Sparta and Minos of Crete—and those of legendary reformers—such as Solon of Athens and Numa of Rome. (We might also add some indubitably historical figures to the list—in particular, the sanctified marble Founders who are so gaudily memorialized a few metro stops down from where we sit.) But while the stories differ, the use to which they are put is always the same—as Plauché notes, they serve to perpetuate and to sanctify the notion that a city or a nation is something to be deliberately crafted and worked on to serve a particular end—whether by the great founders or by lesser mortals who muddle through the business of legislating today. Plauché’s efforts to challenge these myths draws from many sources. He challenges the presumption of knowledge involved in statist efforts, drawing from Ferguson’s and Hayek’s work on the importance of spontaneous order and the power of unintended consequences. He traces the planner’s conceit to the corrupting effects of a professionalized political class, and the loss of the distinction between praxis and poesis. He also challenges the moral propriety of the mythological picture—deriving a theory of rights from (a suitably modified version of) Aristotle’s account of freedom and human flourishing. Both the epistemic humility called for by evolutionist insights, and the respect for individual freedom called for by Aristotelian liberalism, ultimately demand not only the containment or minimization of government force, but in fact anarchy—a demythologized society, where freedom is a recognized as a matter of the arrangements that people make with one another, rather than a law given by a Founder, Reformer, or Legislator. Demythologizing legislation ultimately means conceptually divorcing law from authority, and order from the State

There are two main sets of questions that I have at the end of Plauché’s essay. The first turns on his discussion of Aristotelian rights theory, and his endorsement of a supply-side view of justice (or, more precisely, of the reasons for being just). Plauché suggests that Aristotelianism grounds the obligations of justice primarily in facts about the agent, rather than the patient, of just activity. But it seems to me that for all the theoretical advantages of a supply-side approach, the costs of the way that Plauché spells out the approach are just too high. It seems intuitively wrong to suggest that the primary reason for me not to sock Geoffrey in the nose has more to do with my rational nature than it does with Geoffrey’s nose. Of course it’s true that I’d be betraying my rational nature, living life beneath what I am capable, etc. etc. But the primary reason not to sock Geoffrey in the nose is that that would hurt him. It is precisely the indifference to his suffering and the disregard for his wishes that makes the injustice a betrayal of my own rationality.

This is not to say that I think a purely demand-side account of virtue would do better at capturing our moral experience. In fact I think neither standpoint could adequately account for certain sorts of hypothetical cases. Imagine, for example, that you are dropped into a Holodeck, without your knowledge, and while you are there—thinking that you are living and acting in the real world—you decide to go on a pillage-and-murder spree and shoot 50 people to death. Unbeknownst to you, your massacre had no actual victims: the 50 people you attacked were in fact, holographs, and the injuries you did to them were completely fictional. Now it seems in a situation like this, a purely demand-side account of justice will go wrong by being inappropriately lax. Since there were no actual moral patients for you to mistreat, there was nothing directly wrong with going on the rampage. (At the most, you might be faulted for putting others at risk by cultivating and indulging nasty dispositions.) On the other hand, a purely supply-side account goes wrong too, by being inappropriately harsh. Since nobody was harmed for real, it would be grotesque to suggest that you ought to be treated no differently from an actual mass-murderer.

Perhaps the best way forward here is to look to what Aristotle says about another constitutive part of eudaimonia: the value of friendship. Aristotle famously suggests that in the truest form of friendship, your friend is like another self; her welfare is, in some sense, taken up into your own welfare. You care about your friends’ welfare not just because her welfare may turn out to promote some further goal of yours. Nor is it because the concern is virtuous. (Caring about your friends is virtuous and it may have good results, too. But neither of those is the point of caring about them.) In the highest form of friendship, your friend’s well-being enters directly into your own well-being, as an irreducible constitutive part. But where this is the case, it seems like it would be a serious mistake to offer either a supply-side or a demand-side account of the reasons you have to care about your friends. It is neither one side or on the other of the I/Thou divide; if anything, the reason you have for caring about your friends is precisely that that divide has, in some important sense, disappeared.

Now, friendship is a particular relationship that any one person has to a limited number of other people. It is something that you choose to cultivate with some people and choose not to cultivate with others. But perhaps the general duty of respecting the rights of your fellow human beings involves a similar constitutive relationship, where at least part of the eudaimonia of another person enters into your own. If so the way that A should treat B should not be determined primarily by facts about A alone or by facts about B alone, but rather by facts about the relationship that obtains between them.

The second set of questions that I have turns on Plauché’s discussion of spontaneous order and the conceits of planners. I quite agree with Plauché about the importance of spontaneous orders, and I share the suspicion about those who set out to plan others’ lives, and the mythical history that they construct to sanctify their activity. (As Bastiat said, the plans may differ, but the planners are all the same.) But there is a danger here, as well as an insight. Libertarians often speak as if spontaneous order were a synonym for a voluntary arrangement, and constructed order a synonym for coerced arrangement. (Notice how de Jasay, in the passage quoted by Plauché, simply equates constructed orders with orders imposed by authority or the threat of force.) But in fact these two distinctions are independent of one another. In particular, constructed orders need not be coercive orders (you can make plans for coordinated action without coercing anyone, so long as you don’t impose your plans on those unwilling to cooperate). What I wonder, then, is whether the lesson that Plauché want us to draw from Ferguson and Hayek counsels abstinence, or merely temperance when it comes to co-operative efforts at deliberate social change? Of course, the moral case against coercive orders is absolute; it is never justifiable to seize the person or property of the unwilling in order to remake society according to your own plans. But is there any place for non-coercive efforts to make deliberate changes to the order of society? Is there, in an important sense, any place for politics in a free society?

I think this is a point that it’s important to be clear on, because a lot of important questions turno n how severe one takes the problems facing constructivist projects to be. Spontaneous orders have proved very good at some things—the emergence of money, for example, or futures markets and other forms of arbitrage, or large portions of conventional property law. But since Plauché criticizes efforts to deliberately craft social outcomes through the making of legislation, it’s important to note that historically, legal systems that favored the spontaneous order of conventional law over the framing of legislation (as, for example, in Anglo-Saxon common law) have done a fairly good job of developing legal norms that respected the rights of those who were recognized as having standing in legal proceedings—free men. But they also did a very poor job of respecting the person and property of those who were not recognized as having the same standing — women, children, servants. In order to reverse the provisions of the common law that, for example, allowed husbands to summarily seize all or part of their wives’ property as their own, or to substitute their own legal decisions for their wives, or to beat and rape their wives with impunity, first-wave feminist activists organized and made a concerted effort to change the coercive order that had emerged from centuries of conventional law. The results of these efforts could not be criticized on the grounds of being coercive—insofar as the reforms protected rights that had thus far been unprotected, they created new space for voluntary orders rather than overriding them. But in the name of women’s rights to liberty and property, they did overturn a spontaneous order of man-made legal conventions that had emerged gradually over the course of centuries. Did these deliberate campaigns to remake society indulge in the same dangerous conceits as those Plauché criticizes in the Founder-Legislator mythos? If not, then what are the salient differences that set aside the appropriate forms of conscious political activism from the objectionable forms of social engineering? If so, then how much caution do we need to apply in campaigns that deliberately aim at greater liberty? And how far should we avoid even the most voluntarily organized efforts at deliberate, nonviolent social reform?

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