Sunday, October 16, 2011

Procedural liberalism requires consistency

I've been reading about "procedural liberalism" and the idea that all members of a just society must play by the rules, and I'm having trouble reconciling this with the actions and philosophy of the American left.

As I wrote last time, some members of the left purposely break the law to get arrested, then present themselves as martyrs. If you trespass while shouting to legalize human-onion marriage, you are not a victim of interkingdom romance puritanism. Your freedom of speech has not been trampled. You are simply someone who tried to hang out where they're not allowed to hang out.

"I Am Not Moving" is the title of the obnoxious video comparing Occupy Wall Street protesters to Arab Spring protesters, which is like comparing George of the Jungle to Tarzan. Despite this stern title, when you violate a no-trespass order and the blue-shirted union workers with black boots and billy clubs come for you, you are in fact moving.

If you supporting breaking the law as part of a protest, from mild civil disobedience to property destruction and rioting, then you can no longer claim to be a procedural liberal. My point is not that something is immoral or bad because the legislature had declared it illegal - Bryan Caplan has already destroyed that view - but that once you've thrown that out the window, you have lost all claim to the philosophy of respecting fair procedures.

Not that the left has any claim to greater respect for the rule of law or fair procedures. Former President George W. Bush certainly broke his share of laws, but President Barack Obama instructed the Justice Department not to defend a law he doesn't like. Sure, that law was a federal ban on gay marriage, but that's not the way we do things here. The correct answer to bad legislature is to change it, not break it or ignore it.

The reason we should follow written legislation is that it is a contract of rules to follow. I don't like our strict immigration laws and I want to see them relaxed, but I can't find myself getting worked up because a public school wants to only accept pupils that are legal residents, or a police agency wants to check if a suspect was violating immigration laws. The government should be bound to follow the law.

Procedural liberalism is lumped in with concepts the left claims to hold a monopoly on, like fairness and justice. They want no such things. To the left, fairness means handicapping someone who plays by the rules.

If a white male student works and studies hard, affirmative action proponents say he should have a tougher time getting into a particular college than a black student. This is being purposely unfair to individuals to attempt to create fairness in totality. They assume they have overcome the Hayekian knowledge problem and have perfect information so they can balance the scales flawlessly. In fact, they throw out the natural fairness of the world and impose a flawed attempt at artificial fairness. Neither approach is actually fair, but one incorrectly claims to be.

The same thing carries over to wealth "redistribution," limiting corporate speech, eminent domain and retroactively banning Wall Street bonuses from bailout money. People have a nasty habit of supporting the rules when it suits them, and abandoning them when they don't. The right is just as guilty of this, but it never branded itself the defender of fairness.

You can't claim to be a defender of consistent procedures and equal observation of the rules and still break the law when it helps your political goals. That is the mark of barbarism, not liberty. It's entirely possible that there are members of the left who reject law-breaking protests, inconsistent judicial actions and the handicapping of the innocent, but they have been drowned out by the rest.


  1. I just want to comment on DOMA. The Obama Administration has done a great disservice both to the rule of law and to those who advocate for gay marriage.

    Had the administration continued to fight for the law, it could have been declared unconstitutional. Perhaps the court would have simply found it isn't the purview of the federal government, but the court may have found that marriage is a right and cannot be denied to gays.

    But alas, the President gave in when his jobs is not to decide which laws to defend or uphold but to defend them all and uphold them all. As you say, the way to change legislation is to change legislation. Allowing the Executive Branch to decide which laws to defend and which laws not to defend is a shocking and terrible precedent and I feel it should be enshrined in law that the president is bound to defend all federal laws in court, not pass his own judgement.

  2. This whole post falls apart right in the first paragraph. People who believe in procedural liberalism believe it is necessary to living in a just society. It isn't merely that we must follow the rules because the rules are the rules and that's the path to justice. It's that there is justice and then there are the rules designed to protect that justice. I cede the floor to Dr. King:

    One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."
    ~Letters from Birmingham Jail

    I would say this sentiment is closer to what the vast majority of liberals say than what you've described.

  3. OK Michael, it sounds like you're making an argument against procedural liberalism as a valid philosophy.

    As the Bryan Caplan link above shows, I agree that rules can be unjust and get in the way, but that is the other side of the same coin of a president breaking the constitution to be more effective in a war.

    I'm simply stating that people can't have it both ways.

  4. The point of procedural liberalism is to obey rules which are in the furtherance (or at least not in the hindrance) of a just society. The OWS protestors* obviously don't believe no trespassing laws prevent justice, but they do see their actions as pertaining to going after unjust laws, policies, and regulations.

    *I am not arguing or implying that the political philosophy of OWS protestors (or the American left in general) is actually procedural liberalism.

  5. The idea that one can break the rules in the interest of society is from the Carl Schmitt school of thought, which opposes procedural liberalism - and is embraced by anti-globalization Marxists.

  6. You're missing fundamental underpinnings here. By the way you're using 'procedural liberalism', it can be said that the concept can exist equally in modern day America as well as it could have existed in Gadhafi's Libya.

    The foundation to this thought is that society must itself trend towards justice. Procedural liberalism presupposes not only democracy, but a basic equality. As I pointed out earlier, your own definition given in your opening paragraph speaks to this fact: all members of a just society. If the society is fundamentally unjust, procedural liberalism does not apply; we must first arrive at some degree of justness or some basic goal of justness before we an employ something like procedural liberalism.

    To put it another way, this idea holds that what is needed is equality before the law (whereas other forms of liberalism require that the law create equality). In the case of MLK, there was no equality before the law and so it had to be rectified. That is, in part, how the OWS protestors feel, right or wrong.

  7. I accept your premise that ethics are bigger than the law, but if following the rules can be ignored simply by declaring a rule unjust, than the rules can be disregarded just as easily as declaring they can be ignored for an emergency.