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?