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Where Can We Find Knowledge?
During one of Ricochet’s big Same Sex Marriage debates during the run-up to Obergefell, @jamesofengland said this:
I think I’ve been clear that I don’t share Augustine’s confidence in specific bad outcomes […] I tend to think of Burke and Hayek as telling basically the same story, a story that I’ve been boringly obsessive about for decades now (before law, I took theology up to a Master’s degree, spending quite a lot of that time dealing with Derrida and Pseudodionysus, who I also believe to be in the same epistemically humble tradition). […] It’d be good to shift the conversation in that direction, because if the subject isn’t [Same Sex Marriage], but Hayek, I’ll have [another Ricochet gentleman] on my side, along with [a Ricochet lady] and [a third Ricochet gentleman]. I don’t know how much Augustine really backs that side, but I think [another Ricochet lady] has a higher epistemology (a sense that we can know more about the world than Hayek thought), meaning that we could pretty completely reshuffle the teams.
Ever since then, I’ve wanted to start a conversation on the subject. Initially, I wanted to write a long essay explaining and defending my own views, but, frankly, I don’t want to put much time into it. Maybe it’ll be a better conversation anyway if I keep it short! So short it is.
My View
Roughly, my view is that it’s easier to know things about family and the structure of human society than it is to know about economic productivity and the structure of the economy.
In other words, it makes sense to be a Hayekian on macroeconomics, but something else (a Thomist or Augustinian, perhaps) on family and community and friendship. And perhaps a third thing (say, a Calvinist or a Pseudodionysian) on theology, and an as-yet-unnamed thing on something else.
One Reason It Matters
This is one of the reasons I (and, no doubt, others) are SoCons and FiCons but not exactly libertarians: We fear action taken on the inevitable human ignorance of economic matters even as we also fear inaction on social matters where knowledge is possible.
Explanation
I’m not giving a proper argument and haven’t properly thought this through, so I’ll offer just this brief explanation in hopes of starting a conversation from which proper arguments may emerge.
Let’s contrast the production of a human and of a pencil. (Any old widget would do, but let’s stick with the classics!) No individual knows how to make a pencil. But most people know how to make a baby. (And many who don’t . . . find out before the second trimester.)
Now expand this a bit. Pencils are one thing. The healthcare system of a -hundred-million-person country is another. At that level, the knowledge of how to achieve economic productivity moves even deeper into the realm of impossibility for the individual.
What about human relationships? Well, some relationships have an aspect that becomes more complex in the aggregate. (National networks of churches or of chess clubs, for example.) But some things don’t change a bit. For any particular pairing of citizens, how to make a baby is the same, no matter how big the economy gets. For any particular romantic pairing of citizens, things are pretty much the same, again, no matter how big the economy gets. The basics of parenthood aren’t changed by the size of the economy, though though how birthday presents are procured for the kids gets more complex, along with some other details. Friendship is basically the same in a big country, and the same things make it work, things like humility, respect, honesty, and forgiveness. (Internet friendships, if they are friendships at all, might be an exception here.)
I also tend to think individual knowledge in one sphere tends to get easier over time, the other harder. Long ago, the Torah told us “Thou shalt not commit adultery,” and Aristotle noted that there is no right way to commit adultery. Even now, I suspect (I admit I haven’t done the homework), careful social science would only confirm that adultery causes a lot of harm. Not to mention fatherlessness and other social ills.
But the process by which a widget is made gets more complex every day. It’s getting harder all the time to know how to efficiently make one and accurately price it.
A Disclaimer or Two
I mentioned above that this has something to do with being a SoCon rather than a libertarian. And so it does. But there are a lot of other details to consider and I’m only addressing one of the fundamental ideas that many SoCon-FiCon types probably have lurking in their brains.
Some SoCon-FiCon types probably don’t have it lurking there at all. And, after you work out what social situations are worthy of governmental interest, you might still be a libertarian!
And after you work out whether things that do merit governmental interest merit at from the states or the feds, and whether they’re Constitutional or not, there’s a lot of room to be be a libertarian of one sort or another — or something similar — if you think that kind of economic knowledge is a delusion for the individual but other kinds of knowledge aren’t.
So, I’m talking about knowledge here: not attacking libertarianism or saying anything about same-sex marriage.
So I’ll stop the opening post now. Hope to hear from you in comments!
Published in Religion & Philosophy
Well, there’s prior to in the causal sense and then there’s prior to in the temporal sense. With property in the cases de Soto described, there was government recognition of property in some sense, just poor recognition that did not match with how people wished to peaceably arrange property amongst themselves.
The governments that got it right eventually conformed the official institution to the people’s peaceable practices (or at least conformed better than they had been doing). Temporally, government may have been recognizing property in some form before the people solidified their own institution of it. Causally, though, people’s peaceable institution of it was prior to government recognizing it as such.
Glad you brought that up! Causal priority is more important than temporal–in Locke also.
This is how the Republicans have dealt with each issue that the left breathes into life for the whole country. Reversal is never possible. Nothing can be done about the media’s death grip on the country and we can only look forward to a smaller people while the government bloats and bloats and takes over every public space and every private space.
I don’t know how far you believe this should be taken. Should those who die married but intestate not have their property devolve to their spouses? If so, does the government not have to have a definition of marriage that would resolve competing claims? Did the Catholic governments of medieval Western Europe and the Orthodox government of the Empire universally err in passing marriage laws? What is your basis for believing that the legal definition of marriage either should not exist or should be outside the jurisdiction of the courts?
There are areas where reversal is not only possible, but has been successfully achieved. We don’t have government works projects as pure employment provision any more (the Libertarian Party and Green Party both advocate returning us to FDR’s policies, but no serious politician does). We don’t have an assault weapons ban. We have overturned much of FDR’s increase in union membership. We have cut the discretionary budget (it’s true that Social Security and Medicare have proven tougher, but we’ve now gotten to the point where there’s a program almost universally supported by the Congressional party).
Is it your impression that Trump should have made redefining marriage back to its previous position a central party platform?
But, just to be clear, property being an institution separate from the state that should not be regulated by the state does not mean that judges should not weigh in, when controversy arises, about which claimaint to Blackacre should prevail, or whether an alleged thief should be convicted?
I agree that we should recognize adultery as negative. I think that I was clear in suggesting that it was analogous to embezzlement, and that embezzlement is clearly negative.
Augustine was wanting to compare economic and sociological analysis, and to explore the relevant contributions made by Hayekian thought.
Hayek is clear that centrally planned economies are not entirely without knowledge; in the same way as when we craft social policy we can know some things to be true, we can know some things to be true when we craft economic policy. This can be as a church or as a community as well as as a government; as Coase points out, the knowledge problem for large organizations isn’t so different depending on the sector they’re operating in. The knowledge problem does not mean that the state cannot run a centrally planned economy, only that it will not do it well. To analogize, it will generally be clear that the economy should produce bread, and that resources ought to be put into doing so. A centrally planned economy will understand this; the problem arises when one asks how much focus one puts into bread making as opposed to, say, medical research, or brass band practicing. I quibble the difference between children needing and benefitting from fathers because if the need was absolute that would simplify policy making; it’s the subjective trade-offs that the market helps us with most.
To avoid misunderstanding, I’m not suggesting limits on the theological understanding of the Church. The Body of Christ is guided by the Spirit of Christ and by the scriptures and tradition of the Church; divine revelation gives us an end run round some of the knowledge problem. Not around all of it, though; the authoritative word of the Church tells us the answer to only a subset of the questions we might have about marriage policy.
Sure. I agree that there are plenty of things that are easy to correctly laud or condemn in marital and parental conduct. I merely claim that there are also plenty of things that are more difficult questions and that most forms of intervention or rule making in marital and parental relationships get into that territory awfully quickly.
I think that this has me correctly, with the proviso that I think that we know this much about economics, too.
Correct, it does not.
Now, occasionally disputes respecting institutions get resolved before judges or mediators of, say, ecclesiastical courts, or the Better Business Bureau. But either way, there are judges. And when we view the proper role of the state (as most of us do) as protecting freedom by enforcing natural rights, well, we wouldn’t want enforcement decoupled from judgment, I don’t think.
Those are not the only two options.
There’s an important distinction to be recognized between a legal matter versus a matter that has legal ramifications. In both circumstances, the law has a proper role, but that doesn’t mean that a law can define it.
That’s why we traditionalists stress the fact that marriage was an institution prior to the law. Whatever marriage is, the law didn’t create it or define it. Courts can adjudicate disputes stemming from marriage, but they don’t have the right to define marriage itself. It is not for Anthony Kennedy to decide whether it can be “expanded” to include more than one man and one woman.
As the Founders wrote, the purpose of government is to secure rights that already exist – not to create those rights. Religion is another institution about which the law must navigate the implications, but over which the law has no authority to define. True, it may be easier for bureaucrats to navigate those implications if they simply “take over” the institution, but there’s more at stake here than how easy the bureaucracy’s job is.
This is where I’m resisting, I guess. We craft economic policy as strategy. Do we “craft” marriage? Is marriage a public strategy to addressing a problem? Is marriage something we gather data on so we can adjust it strategically?
We’re not talking about the proper level of the capital gains tax, where we gather data so we can manipulate the tax for maximum benefit. We’re talking about whether marriage means “one man one woman.” When presented with that specific question, I don’t think that Hayekian uncertainty matters much in the first place.
This strikes me as an unclear exegesis on Locke. Locke argues that property predates the state -it almost predates the family -and that the state is created to protect both, as well as to protect the larger social arrangements he called the Commonwealth (he was not using the terms interchangeably as we would today, the Commonwealth to Locke was the informal arrangements of 17th century village life that governed economic, social, religious, and common welfare life in the period). A government that meddled in the arrangements of the Commonwealth violated the contract under which the state was created and provoked a right of Rebellion, as had happened -in Locke’s analysis -in both the Civil War and the Glorious Revolution.
It is very important to Locke whether rights and property and commonwealth predate the state, and therefore must be protected by the state, or whether they post-date and are created by the state, and therefore may be modified by the state at will through either legislative action or executive prerogative.
I’m not an expert on Locke, and it sounds like what you’re saying here is that Locke wasn’t just using temporal priority as a metaphor for causal priority – he really meant that those things which the state should recognize must be temporally prior. Is that right?
(If so, maybe I understand a little better why I’m more attracted to Coase than Locke.)
Amen.
My first thoughts: simply a judicial philosophy according to which those definitional matters are legislative matters, not to be legislated by the Courts.
Apparently, it was more of a philosophy of marriage:
Sounds ok to me. Nicely put and (hopefully) clearer than what I said.
I don’t discern any objections to what I said about either Locke or the Dwarfs. I trust no objections were intended, or that they will shortly be reiterated.
I think that question devolves to a couple of questions about social contract theory generally: Was the state of nature a historical period, and does the social contract theory only work if the state of nature was a historical period?
To the first question (as I understand things) Locke says yes, but to the second question (as I understand things) he says no.
So, in a nutshell, it is temporally prior. But it does not need to be.
We craft divorce laws. We craft remarriage laws. We craft laws about agreement to marry (fraud, consent, and such). We craft child protection laws. We craft bigamy laws. We craft marital rape exceptions, or not and breach of promise suits, or not. The oldest legal codes we have talk about this stuff. One of the earliest laws in the English speaking American colonies was the law demanding that marriages took place in civic buildings, and there have been many other laws regarding the procedure for marriage that have been supported and in some cases demanded by the Catholic church (the 4th Lateran Council’s support for marriage licenses, for instance). Catholicism has a tremendous body of authority and of judicial bureaucracy for dealing with annulments; it is certainly not the case that it has ever been taught that questions about marriage policy are easy, nor that they are not to take into consideration the impacts. Even if you think that the state should roll back all the governmental regulations that have been in place since long before the Bible was written and have the ecclesiastical government have sole remit over these issues, surely you can see that it has a function in legislating this stuff for atheists, agnostics, and those protestants who lack a hierarchy capable of dealing with these things?
Do you mean “there is no uncertainty about the impact” or “because we don’t care about the impact, Hayek isn’t important; this is too important for consequences to be significant”?
I gather that KC was thinking exclusively of Obergefell, but I’m not sure if he thinks that Congress would have been any better. Kennedy also talks about marriage in the context of parental visitation rights, though, among other circumstances. The Mississippi legislature properly supplied most of Mississippi’s law in this case, but they improperly omitted to provide for a procedure whereby an impoverished mother would be able to appeal a case without paying court fees.
Sure. I guess the question is where the definition of marriage should come from. Also, when there is an ambiguity in the definition, how should the courts respond to that ambiguity if they are not permitted to resolve it, as they would do in the case of other institutions that pre-exist the state (property rights, parental rights, and prohibitions on particular uses of violence).
Sort of. He admits that there probably wasn’t an Edenic state of nature from which the original social contract was written, but he is adamant that the dissolution of the state does not dissolve the property or familial rights, and nor does the dissolution of the family dissolve the rights of those who worked in the family to their property. The Norman Conquest did not destroy all existing property rights -a fact the Normans, like good English, recognized when they codified those existing properties in the Doomsday Book and accepted the Commonwealth’s laws in the Law of Edward under the Charter of Liberties and reiterated in Magna Carta (ignore the fact that this is probably a myth, the point is they believed it). Neither did the Civil War and Commonwealth period end the property and political rights of the people, nor did the Restoration. All those rights exist whether the government does or not, and they persist after the government ends, and all future governments must respect those rights as well. By 1688 these rights precede the state.
No objection, except that even being familiar with Discworld, I would have required an explanation as to what you meant.
To the first question, Rousseau says yes, Locke says “if we define state of nature as the absence of civil government then you live in the state of nature now -it’s called your relationship with everyone you don’t already know.” That’s a pretty expansive definition of state of nature.
Could you elaborate? My Coase begins and ends with Problem of Social Cost and Theory of the Firm, and everything else is as interpreted by Ellickson, Ostrom, or Fischel. I do not take Coase to be addressing the state of nature at all -rather all his discussion is assumed to be happening within established communities where transaction costs are fairly low. It is precisely in the case where transaction costs are high (state of nature?) that he says we should expect to see formal solutions, in the form of government law or private firm.
OK, that sounds more like causally prior than temporally prior to me. The institutions do not depend on the state, even if states disrespecting those institutions exist before the institutions are fully formed. Once the institutions are formed, a good government respects them, and they do not disappear just because that government dissolves.
I think this question in this post can equally serve here and for the previous post. Yes, we do craft laws about marriage’s legal ramifications – but that isn’t the question, is it?
The question is whether (and from where?) the Court gets the authority to decide whether a marriage is between one man, one woman.
The legal ramifications that follow from marriage are different from the definition of marriage itself. I don’t think many would agree that a court has unlimited authority to resolve whatever disputes come before it. No court has the authority to define philosophical concepts or religious doctrines, for example, even if it would help resolve a dispute. There are some matters over which civil courts have no jurisdiction and they are not entitled to resolve.
Whether marriage is between one man, one woman is beyond a court’s authority to decide.
OK, when Coase discusses legal history, he discusses cases where the law got it wrong at first, or was ill-prepared to accept the modernization of an institution, but eventually conformed itself to better use. Now, that may not be the usual pattern – Coase does not deny how usual it is for law to bureaucratically meddle and distort reasonable use rather than conforming itself to reasonable use. Nonetheless, Coase discussed, for example, a case about rabbits:
At first, going out of one’s way to encourage rabbits on one’s own property was not considered a nuisance to neighbors, no matter how much the rabbits might plague them – the rabbits were counted as ferae naturae, something a property owner had no property in and therefore no responsibility for. Eventually, the law changed on this: it is patently obvious that owners do have some control over the population of wild creatures on their property, and if issuing forth noxious smoke to the detriment of your neighbors is a nuisance, so should issuing forth noxious critters be. Or something like that.
In a similar vein, there was a time when air rights against flying vehicles simply weren’t necessary to define well. It seems reasonable that air rights could be allocated by analogy to other rights – and initially there was the doctrine of cuius solum – but if the first analogy is off, lived experience might later correct the law. I don’t know if US v Causby was perfectly decided, but obviously there are problems with believing air rights above a property extend indefinitely, just as there are problems if governments pretend air rights practically don’t exist over property, once flying vehicles come on the scene.
The purpose of the government is to secure pre-existing rights, but if you want to find out the content of those rights you have to go to the statute books (including the Constitution) and to the case law of the courts. I have a natural right against self-incrimination, for example, but that does not mean that legislatures, courts, and executive branches have not published many thousands of words describing when the police can do things that cause me to incriminate myself. We can derive without law that murder is wrong, but the specific definition of homicide, including the nature of self defense exceptions, etc., comes from the legislature, courts and, to a lesser extent, the executive.
Would that still be a question if the legislature had decided that it was? In other words, could the Court legitimately agree with your policy preference, or is the Court excluded from upholding laws as well as from altering them?
Well, maybe. Who do you think gets to craft rules on eligibility for marriage? Do you accept that the courts get to make calls on the definition of marriage as it applies to other issues (for instance, whether it includes two minors who commit to each other? Is there an age below which the definition does not extend?)
I agree with you that it was a wrongly decided case, but when, eg., rogue clerks start issuing same sex marriage licenses, it seems to me that we need courts to step in and decide whether their actions were legitimate. In, I believe, every case of that happening, the courts decided that the actions were not legitimate. I find it hard to believe that the alternative would have been superior.
I mean: Meet Sam Vimes, and read The Fifth Elephant. A good book.
(I’m no one to talk. I haven’t read, e.g., Jane Austen.)
What you’re describing is an old philosophical question at the core of natural rights. Namely, does the legislator strive to make the statutes conform to an already-existing reality, or is the reality whatever the statute says?
My position is that it’s a logical contradiction to assert that a right pre-exists the law, but at the same time assert that the statute dictates what the law is. I also think that the Founders stood on the side of natural rights, especially with the notion that we were endowed by our creator with those rights … and not the alternative, in which we freely create laws as we see fit.
I agree that there’s a practical inevitability in having written statutes guide government officials in how they “secure” those rights. But that’s different than asserting the authority to create those rights.
To say it another way, Anthony Kennedy had a responsibility to go by what marriage is (and has been), rather than speculating on what he thought it should be.