Study in Progress (Libertarianism v Utilitarianism)

Samuel T. Cogley

I'm brushing up on my Jurisprudence (hence the rather poorly thought out screen name). I scraped through during my law degree and felt it was something I wanted to revisit, probably taking the lighter approach than perhaps the subject warrants. I'm working through Michael Sandel's lecture series on YouTube - trying to do some of the reading - and wondered if anyone has any suggestions on similar lecture series.

I'm mainly focusing on radical jurisprudence at the moment, any pointers or discussion is most welcome as it's a bit more difficult staying engaged without other students.

Black Swan

Welcome to the Philosophy forum Libertarian Kant. Hopefully you will obtain informed comments from our members that in some way relates to philosophy; i.e. philosophy of law, etc.

Samuel T. Cogley

Thank you Black Swan!

I'm very taken with the libertarian perspective and Kant's views as one can probably gather! I'm drawn to the idea of no paternal laws. I believe as is said in the lecture series, Locke is not the proponent of Libertarianism that they make him out to be however, so I'm somewhat put off the labour as slavery angle.

The approach of Libertarianism v Utilitarianism is interesting as I was taught Positivism v Natural law - Kant seems to be tying this up in away that appeals to my secular leanings.

Sorry for the brain fart there, just hoping to put some meat on the bones for a potential discussion.

Black Swan

Hi Libertarian Kant. Now that you have provided us with a bit more reference to Kant and Locke, and your concerns about the libertarian perspective, I will signal some of our members that have expressed a past interest in such topics.

Torakx

Hey
I came when I saw the bat signal hehe
Although in my case it might be seen as a silhouette of a giant moustache in the sky
Most of my philosophy reading has been Nietzsche.
I have spent many long hours looking into different theories related to jurisprudence as well though, especially those geared more towards anarchism and "man on the land" type of stuff.
Some practical, others foundational to law in a more philosophical sense.

Being a lot like Nietzsche myself, I am sort of utilitarian and libertarian at the same time
Not too familiar with Kant or Locke and I'm pretty rusty myself with this topic.

Paternalism does seem a bit silly. But then so do most citizens..But then maybe from a Darwinian point of view, that is ok...
I think that the more educated the human race becomes, the less laws we should need. Which seems to be the opposite of what's happening with law.
A result possibly due to positive law.
Considering number two from the definitions below.

positivism
ˈpɒzɪtɪvɪz(ə)m/Submit
nounPHILOSOPHY
1.
a philosophical system recognizing only that which can be scientifically verified or which is capable of logical or mathematical proof, and therefore rejecting metaphysics and theism.
2.
the theory that laws and their operation derive validity from the fact of having been enacted by authority or of deriving logically from existing decisions, rather than from any moral considerations (e.g. that a rule is unjust).

Law valid because of authority or the past.
If you are Irish, you might be interested in the court of chancery.

Taken from Principles of Irish Law

" The Court of Chancery

Because the Chancellor refused to be bound by legal technicalities, the Court of Chancery became extremely popular.
Those possessed of a moral right to a remedy, which was not enforced in the common law courts because no legal rule had been breached, came for relief to the Court of Chancery

The Chancellor acquired a jurisdiction parallel to that of the common law courts.
He was independent of these courts and the Court of Chancery provided the forum to allow equity to develop some form of a system of laws supplementing and often competing with the common law."

There are also 2 streets by the name of Chancery right beside the four courts in Dublin.
I presume they are an integral part of the system now. Maybe even the most dominant and most used.

Going back to foundations of law and with regards to state, Lysaander Spooner is one of the essential reads there I would say.
His books are free on youtube and if you haven't covered them in university etc, you really need to listen to these libertarian arguments.

I watched the first episode of that Harvard Law series.
Pretty good! I think there would be a lot of the foundations covered here and I might have to check all of them out

If you can pose philosophical problems that are more precise, I might be more useful.
I tend more towards the practical problem solving side of things.
Reading about law and political philosophy more for utility in the future, than curiosity.
Do you have any aims with this?
Any place you want to be going which might help us see where we can add our own findings?
I'm curious if you studied and live in Ireland. Location might make a bit of a difference to your interests here, with utility in mind.

For example if you are looking to brush up on law for work, Lysaander Spooner won't be popular at all with judges or state
ps. I didn't go into the "man on the land" stuff, because it is very radical and I'm not sure if you would find it that practical.

Joe1919

I am just thinking of the 'trolley problem' which can be used to give a sort of exaggerated illustration of the difference between Libertarianism and Utilitarianism. It goes like this:

There is a runaway trolley barreling down the railway tracks. Ahead, on the tracks, there are five people tied up and unable to move. The trolley is headed straight for them. You are standing some distance off in the train yard, next to a lever. If you pull this lever, the trolley will switch to a different set of tracks. However, you notice that there is one person on the side track. You have two options: (1) Do nothing, and the trolley kills the five people on the main track. (2) Pull the lever, diverting the trolley onto the side track where it will kill one person. Which is the most ethical choice?

Now, some people, myself included, would probably take the first choice and 'do nothing' or not interfere with the natural course of events, although to interfere by pulling the lever would save the five people at the expense of the one.
This seems (at least for the purpose of this example) to make me more libertarian than utilitarian, although it may be one of degree.
https://en.wikipedia.org/wiki/Trolley_problem

Torakx

Joe1919 wrote: »

I am just thinking of the 'trolley problem' which can be used to give a sort of exaggerated illustration of the difference between Libertarianism and Utilitarianism. It goes like this:


Now, some people, myself included, would probably take the first choice and 'do nothing' or not interfere with the natural course of events, although to interfere by pulling the lever would save the five people at the expense of the one.
This seems (at least for the purpose of this example) to make me more libertarian than utilitarian, although it may be one of degree.
https://en.wikipedia.org/wiki/Trolley_problem

That problem is a good enough example of the two I think.
If I remember correctly it's also the first problem tackled in that lecture series mentioned in the first post.

There is a lot to consider there.
What if that one worker would have gone on to save more lives by far than the group that they might be sacrificed for?
Hard to know what I would do in that situation, while put on the spot.
I might instinctively divert away from the many..
Sometimes if you are not sure, go with the odds as best you can guess.
5/1 versus 1/5 odds.
In poker those are good odds for an easy decision
At least that's my own strategy to date.
I think that proves your example as accurate too.
My decision would be fairly utilitarian in many respects and not a moral choice.

For those who hold more for the individual as I also do at times, it would be a little more likely they abstain. Which might put that person in the same category(per the example) as the nihilist or misanthropist.
Hmm, my mind is wandering now.

Is it strange that the misanthropist and the libertarian(indvidualist?) might make the same choice more often than not?
Does it mean that when it comes to the overall survival of the species, the utilitarian is more likely morally more responsible/right?
But at the individual level the opposite? Amoral?
Also vice versa for the libertarian?
Or just an imperfect example of the two?

Peregrinus

Joe1919 wrote: »

. . . Now, some people, myself included, would probably take the first choice and 'do nothing' or not interfere with the natural course of events, although to interfere by pulling the lever would save the five people at the expense of the one.
This seems (at least for the purpose of this example) to make me more libertarian than utilitarian, although it may be one of degree.
https://en.wikipedia.org/wiki/Trolley_problem

I'm not sure that it does make you more liberartian.

As I understand it, libertarianism is mainly concerned with the question of how how state power/law should be used, and how it should not be. But the trolley problem doesn't involve state power at all, so far as i can see.

By way of illustration, a liberterian might believe (a) the state has no business taxing me in order to relieve the poverty of others, but (b) I myself recognise an ethical obligation to assist the poor through charity.

So, in the trolley problem, if I'm in a position to save five lives by switching the points, I don't think libertarian principles will tell me that I ought not to do so. Obviously the inevitable loss of one other life presents a moral dilemma, but I don't think it's a dilemma about which libertarian principles have much to say.

Nor do I think that the dilemma has anything to do with a principle that we should "not interfere with the natural course of events". If that were the principle, then we wouldn't pull the lever even if there were no-one at all on the other line. I suggest that very few partipants in a trolley problem hypothetical would make that choice.

Grolschevik

Yes, I think there's a conflation of libertarianism with deontological ethics going on here.

Joe1919

Peregrinus wrote: »

I'm not sure that it does make you more liberartian.

As I understand it, libertarianism is mainly concerned with the question of how how state power/law should be used, and how it should not be. But the trolley problem doesn't involve state power at all, so far as i can see.

By way of illustration, a liberterian might believe (a) the state has no business taxing me in order to relieve the poverty of others, but (b) I myself recognise an ethical obligation to assist the poor through charity.

So, in the trolley problem, if I'm in a position to save five lives by switching the points, I don't think libertarian principles will tell me that I ought not to do so. Obviously the inevitable loss of one other life presents a moral dilemma, but I don't think it's a dilemma about which libertarian principles have much to say.

Nor do I think that the dilemma has anything to do with a principle that we should "not interfere with the natural course of events". If that were the principle, then we wouldn't pull the lever even if there were no-one at all on the other line. I suggest that very few partipants in a trolley problem hypothetical would make that choice.

I suppose what I am trying to tease out with the trolley problem is the tension between the individual rights of the single person on the side track (and perhaps our duty to do no harm to him/her) versus the common good of the five others, which I think is often at the heart of some arguments about libertarianism versus utilitarianism.
I also think with libertarianism, that there is a sort of laissez faire (and perhaps even fatalistic) approach to economic intervention in markets etc. and a belief that markets work themselves out in the end etc. (Adam Smiths invisible hand).
What I am surmising to myself is that in taking the first choice in the trolley problem, I am choosing to do nothing, and that perhaps the reason for this choice is not utilitarian, but perhaps self serving, in that in doing nothing(laissez faire?) I do not have to take any responsibility for my choice of actions.

Peregrinus

Joe1919 wrote: »

I suppose what I am trying to tease out with the trolley problem is the tension between the individual rights of the single person on the side track (and perhaps our duty to do no harm to him/her) versus the common good of the five others, which I think is often at the heart of some arguments about libertarianism versus utilitarianism.

I’m unconvinced. I don’t see why you see the single person’s interest as a matter of “individual rights”, but the interests of the five as a “common good”. They all have an identical interest in not dying, surely? If the single person has an “individual right” then the others have five more “individual rights”, and I can’t see how those individual rights would be in any way diminished simply because they are replicated in the person beside you.

Joe1919 wrote: »

I also think with libertarianism, that there is a sort of laissez faire (and perhaps even fatalistic) approach to economic intervention in markets etc. and a belief that markets work themselves out in the end etc. (Adam Smiths invisible hand).

I think it’s important to think clearly here.

Adam Smith offers a view about how markets work. This is a description of human behaviour, obviously, and you can accept (or reject) Smith’s accounts of human behaviour whether or not you are Libertarian.

Assume that Smith’s account of markets is accurate; this is how people behave. It doesn’t follow that it is right that people should behave so, or that people ought to behave so, or that the outcomes will be good.

If Liberatarians feel that markets should be free to operate, that’s not because of a laissez-faire or fatalist attitude; it’s because they like the outcomes that markets produce (or that they expect markets to produce). They don’t have a principled objection to state intervention as such; in fact they are very keen on state intervention necessary to allow markets to function. So they very much want the state to establish, maintain, defend and vindicate the right to own and sell property, for example, since if the state doesn’t do that markets cannot emerge.

Joe1919 wrote: »

What I am surmising to myself is that in taking the first choice in the trolley problem, I am choosing to do nothing, and that perhaps the reason for this choice is not utilitarian, but perhaps self serving, in that in doing nothing(laissez faire?) I do not have to take any responsibility for my choice of actions.

Possibly, but there’s nothing particularly libertarian about that. If anything, a libertarian would crticise your reasoning because (a) libertarians are generally keen on people accepting the consequences of their choices (and not looking to be rescued by the state, for example, if choices work out badly) and (b) the choice not to pull the lever is just as much a choice as the choice to pull the lever.

I don’t think it’s helpful to analyse the pull/don’t pull choice in terms of libertarianism; I honestly don’t see that libertarianism has much to say about this situation. I think Grolschevik has put his finger on it when he mentions deontological ethics. Most of us operate out of a few basic moral instincts, one of which is “killing innocent people is wrong”. If I pull the lever, a direct and immediate consequence is that an innocent person will die, and I will have killed him, acting on a choice that it is better that he should die. If I don’t pull the lever, five innocent people will die, but I won’t have killed them; I will just have been unable to save them without killing an innocent person, which is not something I am permitted to do.

A fine distinction, perhaps, and one you may find unpersuasive, but I think it’s probably a better account of why someone doesn’t pull the lever than anything libertarianism can offer.

I think what’s really going on her is the identification of moral absolutes. The person who refuses to pull the lever identifes “do not kill an innocent person” as a moral absolute. A libertarian might identify property rights as a moral absolute (they certainly get very distressed if you challenge the moral value of property) but I don’t think libertarianism requires (or forbids) the adoption of a moral absolute of not killing innocent persons.

Samuel T. Cogley

Sorry I have not returned sooner.

I think the trolley problem is not meant to really have an answer, unless of course you are an out and out utilitarian. I think it's just meant to make you realise that there are problems with any one approach and a jumping off point for discussion of other areas. The extra point given id the fat man standing on the bridge with you, do you throw him off?

Well of course you don't but that's not a utilitarian argument, but an individual rights one. Is there also merit on not acting, and letting the trolley take it's course?

Sorry not contributing very much there but a) hoping to keep the conversation going and b) showing you I'm still here!

Thank you all for your gracious contributions.

Peregrinus

Samuel T. Cogley wrote: »

Sorry I have not returned sooner.

I think the trolley problem is not meant to really have an answer . . .

The trolley problem doesn't have a right or wrong answer; it's just a thought experiment which is useful for teasing out people's moral instincts. I don't think it casts much light on where they stand on a libertarian/communitarian scale, though.

Persephone kindness

Hart gives a good descriptive theory of how normative and analytical jurisprudence works. Ronald Dworkin gives a moral interpretive view of law.

Hart though is the most influential figure. I am sure you have heard of him. He applied and combined the analysis of analytical philosophical method to/with the codification of law of Bentham.

They are entirely different Hart being the logical positivist. Saying the rule of law is that of the rule of recognition if you can logically assert the validity of law through asserting the logical compatibility or incompatibility of a rule with a rule or a ruling with a ruling. He asserts there is no logical connection between law and morality.

Dworkin is entirely different. He asserts a an ethical spirit of human right interpretation of the law. He asserts certain rights exist outside law. He is very much influenced by US constitutional law though. And the spirit of it