dunnettreader + libertarianism   25

Thomas Colby and Peter J. Smith - The Return of Lochner :: SSRN - April 2015 - Cornell Law Review, Vol. 100, No. 527, 2015
Both at GW Law School - For a very long time, it has been an article of faith among liberals and conservatives alike that Lochner v. New York was obviously and irredeemably wrong. Lochner is one of only a few cases that constitute our “anticanon,” universally reviled by the legal community as the “worst of the worst.” (..) conservatives are ready, once again, to embrace Lochner — although perhaps not in name — by recommitting to some form of robust judicial protection for economic rights. (...) this impending change has been greatly facilitated by important modifications to the theory of originalism, which has served for nearly a half century as the intellectual framework for conservative legal thought (..) and it has now evolved to the point where it can plausibly accommodate claims that the Constitution protects economic liberty. (..) how legal movements evolve generally. Sometimes the courts change the doctrine, and the theorists scramble to keep up. This is, roughly speaking, what happened with liberal legal thought in the second half of the 20thC. Just when liberal legal theorists, reeling from the Lochner era, had settled on the view that the courts should exercise judicial review very sparingly — and perhaps never to enforce rights not specifically identified in the Constitution — the liberal Court began to exercise judicial review more frequently and aggressively, often to protect rights not clearly identified in the Constitution. Liberal theorists then struggled for years to develop an account of the appropriate judicial role that condemned Lochner but legitimized later cases protecting fundamental rights and vulnerable minorities. Modern conservative legal thought seems to be following the opposite progression: the theorists lead, the opinion leaders gradually sign on, and judges eventually follow. — conservatives have patiently waited for the theory to come together — for the blueprints to be drawn — before moving forward. But the plans are now largely ready, and we expect that it will not be long before the bulldozers break ground. - 77 pages saved to SSRN briefcase
article  SSRN  SCOTUS  libertarianism  US_constitution  US_legal_system  legal_history  legal_theory  legal_reasoning  constitutional_law  civil_liberties  liberty-negative  laisser-faire  freedom_of_contract  freedom_of_conscience  equality  judicial_review 
june 2015 by dunnettreader
Jag Bhalla - Astronaut vs. Cowboy Ethics | Big Think - May 2015
by Jag Bhalla “Freedom in a commons brings ruin to all.” So says Garrett Hardin reassessing his misnamed “tragedy of the commons” parable. He’s right, and since… -- they'd all die in space if the "negative liberty" model served as source of normativity -- lots of links
moral_philosophy  norms  liberty-negative  collaboration  community  sociability  human_nature  practical_reason  praxis  libertarianism  links  Instapaper  from instapaper
may 2015 by dunnettreader
Thomas Grillot & Pauline Peretz - Interview with William Novak and James Sparrow - The American State: Power Obscured | Nov 2011 - Books & ideas
Tags : welfare state | state | war | law | France | United States of America -- Finding the American state where historians never looked before: this could be the motto of the new history of the state, of which William Novak and James Sparrow are two of the strongest advocates. To capture the specificity of state formation in the U.S., they encourage historians to look at the mutual constitution of state and society, instead of taking their separation for granted. Their approach is key to understanding the current legitimation crisis undergone by the American state. -- downloaded pdf to Note
US_government  US_history  US_politics  state-building  state-roles  19thC  20thC  anti-statist  right-wing  rights-legal  rights-political  centralization  central_government  ideology  libertarianism  market_fundamentalism  historiography  political_science  political_culture  sociology-process  legitimacy  power  downloaded 
april 2015 by dunnettreader
The Collected Liberty Matters Nos. 1-10 (Jan. 2013 – July 2014) - Online Library of Liberty
David M. Hart, The Collected Liberty Matters: Nos. 1-10 (Jan. 2013 – July 2014), ed. David M. Hart and Sheldon Richman (Indianapolis: Liberty Fund, 2014). 08/23/2014. <http://oll.libertyfund.org/titles/2629> -- This volume is a collection of the first ten “Liberty Matters” online discussion forums which began in January 2013 and have appeared every two months since. The discussions have focused on authors whose work is well represented in the Online Library of Liberty. A leading scholar is asked to write an interpretative essay about a chosen author, to which other invited scholars respond in a formal essay which is then followed by a free form discussion over the ensuing month. The topics have included “John Locke on Property”, “James Buchanan: An Assessment”, “Gustave de Molinari’s Legacy for Liberty”, “Bastiat and Political Economy”, “George Smith on the System of Liberty”, “Arthur Seldon and the Institute of Economic Affairs”, “Ludwig von Mises’s The Theory of Money and Credit at 101”, “Hugo Grotius on War and the State”, “Tocqueville’s New Science of Politics Revisited”, and “Deirdre McCloskey and Economists’ Ideas about Ideas”.
books  etexts  downloaded  political_philosophy  political_economy  intellectual_history  17thC  18thC  19thC  20thC  liberalism  liberty  IR_theory  Grotius  Locke  Locke-2_Treatises  Mises  Buchanan  public_choice  Tocqueville  Bastiat  McCloskey  virtue_ethics  bourgeoisie  property  property_rights  libertarianism  liberty-negative  EF-add 
august 2014 by dunnettreader
Jeremy Waldron - Socioeconomic Rights and Theories of Justice (2010) :: SSRN
NYU School of Law, Public Law Research Paper No. 10-79 -- This paper considers the relation between theories of justice (like John Rawls’s theory) and theories of socio-economic rights. In different ways, these two kinds of theory address much the same subject-matter. But they are quite strikingly different in format and texture. Theories of socio-economic rights defend particular line-item requirements: a right to this or that good or opportunity (e.g., housing, health care, education, social security). Theories of justice tend to involve a more integrated normative account of a society’s basic structure (though they differ considerably among themselves in their structure). So how exactly should we think about their relation? The basic claim of the paper is that we should strive to bring these two into closer relation with one another, since it is only in the context of a theory of justice that we can properly assesses the competition that arises between claims of socio-economic right and other claims on public and private resources. -- Number of Pages in PDF File: 31 -- Keywords: Nozick, Rawls, justice, human rights, rights, scarcity, socioeconomic rights
paper  SSRN  political_philosophy  moral_philosophy  philosophy_of_law  liberalism  libertarianism  social_order  norms  moral_economy  poverty  human_rights  inequality  Rawls  Nozick  property  common_good  commons  capitalism  political_economy  justice  power-asymmetric 
july 2014 by dunnettreader
Jeremy Waldron - The Hamlyn Lectures 2011: The Rule of Law and the Measure of Property (2011) :: SSRN
NYU School of Law, Public Law Research Paper No. 11-47 -- The idea in these lectures is to discuss the relation between property and the rule of law in a deeper way than this has been discussed in the past, ...that reflects realistic understanding of how property rights are created and modified. -- our thinking about the rule of law needs to focus on all the ways in which property is non-Lockean in its origin, legal status, and moral force. In the course of doing this, I will be looking at some of the rather naive assumptions underlying the tight connection that has been forged between property rights and the rule of law in neo-liberal political economy. And I will argue that we can abandon or modify some of these naive assumptions about property without compromising the very great importance that is properly attached to the ideal of the rule of law. There are three lectures in all. -- Lecture 1 addresses the alleged contrast between (a) the rule of law and (b) rule by law, and the suggestion that property rights might be privileged under (a). -- in the real world even Lockean property has an inescapable public law dimension. Lecture 2... is about the contrast between formal/procedural and substantive views of the rule of law and the dificulties inherent in identifying respect for private property rights as a substantive dimension of the rule of law. ...given the accordion-like expandability of the category of property, this cannot work to privilege property rights over other legal rights etc. Lecture 3 is a defense of legislation, including regulatory and redistributive legislation in light of the rule of law. -- downloaded pdf to Note
article  SSRN  philosophy_of_law  political_philosophy  political_economy  property  property_rights  rule_of_law  regulation  redistribution  Locke-2_Treatises  Hayek  libertarianism  liberty-negative  legislation  property-confiscations  power-asymmetric  social_order  neoliberalism  markets  institutional_economics  downloaded  EF-add 
july 2014 by dunnettreader
Brian Bix - Consent in Contract Law (revised 2011) :: SSRN
Chapter in THE ETHICS OF CONSENT: THEORY AND PRACTICE, Alan Wertheimer, Franklin G. Miller, eds., Oxford University Press, 2010 -- Minnesota Legal Studies Research Paper No. 08-36 -- Consent, in terms of voluntary choice, is - or, at least, appears to be or purports to be - at the essence of contract law. Contract law, both in principle and in practice, is about allowing parties to enter arrangements on terms they choose - each party imposing obligations on itself in return for obligations another party has placed upon itself. This freedom of contract- an ideal by which there are obligations to the extent, but only to the extent, freely chosen by the parties - is contrasted to the duties of criminal law and tort law, which bind all parties regardless of consent. At the same time, consent, in the robust sense expressed by the ideal of freedom of contract, is arguably absent in the vast majority of the contracts we enter these days, but its absence does little to affect the enforceability of those agreements. Consent to contractual terms often looks like consent to government: present, if at all, only under a fictional (as if) or attenuated rubric. The article begins by a brief examination of the nature of consent, then turns to contract doctrines that turn on the alleged absence of consent (e.g., duress and undue influence); contract rules and principles (e.g., implied terms) that turn on hypothetical consent; the challenges to consent that arise from electronic contracting and bounded rationality, and theories of contract law that emphasize consent. -- downloaded pdf to Note
chapter  SSRN  philosophy_of_law  political_philosophy  contracts  social_contract  consent  rational_choice  rationality-bounded  power-asymmetric  e-commerce  commercial_law  libertarianism  freedom_of_contract  downloaded  EF-add 
july 2014 by dunnettreader
Chris Dillow - Stumbling and Mumbling: Hayek on desert - Jan 2005
Elizabeth Anderson does a fine job of demolishing, on Hayekian grounds, the idea that people deserve their incomes. And Tyler Cowen gives an excellent reply. The one thing that’s missing are some direct quotes from Hayek himself. Let me fill the gaps. There’s this from volume II of Law, Legislation and Liberty (p71-72 in my copy): " [The function of the price system] is not so much to reward people for what they have done as to tell them what in their own as well as in general interest they ought to do. …To hold out a sufficient incentive for those movements which are required to maintain a market order, it will often be necessary that the return to people’s efforts do not correspond to recognizable merit…In a spontaneous order the question of whether or not someone has done the ‘right’ thing cannot always be a matter of merit." -- lots of quotes and links
political_philosophy  economic_theory  markets  prices  incentives  meritocracy  fairness  libertarianism  Hayek  EF-add 
june 2014 by dunnettreader
Izabella Kaminska - The Bitcoin personality cult lives on | FT Alphaville Feb 2014
Izzy being brilliant as usual -- In our minds, no product is more important than ourselves. And that’s because the ultimate reward of propaganda, if used wisely, is the sort of hierarchal positioning that was previously only ever associated with dictator-level personality cults.-- As Caesar and Augustus knew only too well, a personality cult will never successfully penetrate public minds if it is too focused on itself. Conversely it needs to be masterfully disassociated from self promotion, and re-associated with altruistic value, humour, or benevolence. In Caesar and Augustus’ case it was only through publicly rejecting kingly power, that they were able to create a much more powerful empirical office to replace it. A masterful slight of hand and example of misdirection. -- The distribution of highly doctored selfies eventually begins to nauseate. No-one likes a narcissist or a megalomaniac. Meanwhile, too much association with high-end products or exclusivity meanwhile backfires with the “Rich Kids of Instagram” effect. Today’s most effective propaganda consequently is the sort that inspires people to care about things other than themselves. It’s not aspirational as much as experience or ideology based.
consumerism  consumers  Internet  social_media  propaganda  rhetoric  ideology  libertarianism  self-regulation  Augustan_Rome  status  self-love  EF-add 
march 2014 by dunnettreader
Pascal Emmanuel Gobry - What Is Citizenship? | Cato Unbound Sept 2013
National service debate - In his essay, Mr. Kuznicki is right to take me to task for being guilty of a bit of a sleight-of-hand, which is blurring the distinction between the Ancients’ view of liberty and the Moderns’. I confess to the blurring. First, because I think they are blurred – as much as we try to get rid of them, we can’t seem to be able to; less “great-grandfathers,” the Ancients are more older brothers, or perhaps Jiminy Crickets, to the Moderns.

And second, I think the distinction should be blurred. Mr. Kuznicki writes that “when the ancients wrote of liberty, they meant something like an obligation to participate actively in government.” I certainly agree that they thought it was part of it, but it is not reducible to that. It is perhaps more accurate to say that the Ancients thought of liberty as something like participation in a just moral order.
political_philosophy  political_culture  nation-state  national_ID  social_contract  liberalism  libertarianism  liberalism-republicanism_debates  citizens  political_participation  EF-add 
february 2014 by dunnettreader
Archon Fung - Associations and Democracy: Between Theories, Hopes, and Realities | JSTOR: Annual Review of Sociology, Vol. 29 (2003), pp. 515-539
Over the past decade, there has been a resurgence of interest and research into the connections between associations and democracy. This article divides the question of associative contributions to democracy into four component parts: What (a) contributions do (b) different kinds of associations make to advance (c) contesting ideals of democratic governance in various (d) political contexts? Associations enhance democracy in at least six ways: through the intrinsic value of associative life, fostering civic virtues and teaching political skills, offering resistance to power and checking government, improving the quality and equality of representation, facilitating public deliberation, and creating opportunities for citizens and groups to participate directly in governance. These contributions are not all mutually consonant with one another, and different forms of associations are better suited to advance some contributions than others. Furthermore, those who propose bolstering associations as a strategy for revitalizing democracy frequently have quite different ideals of democracy in mind. The forms and contributions of associations appropriate to three contesting notions of democratic governance-liberal minimalism, conventional representation-cum-administration, and participatory democracy-are also discussed. Finally, the democratic priority of associative contributions depends crucially on contextual features of particular societies. Under tyrannical regimes, for example, associations that resist government authority are more crucial than those that foster compliance and respect for political institutions. -- heavily cited in jstor -- didn't download
article  jstor  political_culture  demography  popular_politics  political_participation  representative_institutions  civic_virtue  equality  deliberation-public  governance  liberalism  libertarianism  resistance_theory  legitimacy  EF-add 
february 2014 by dunnettreader
Matt Bruenig - Sorry, John Stuart Mill Was Not a Libertarian | The American Prospect Oct 2013
For Mill, who gets what is a social decision. The only thing that causes anyone to ever have entitlement over pieces of the world are the laws and institutions of society. It is police violence in concert with legal rules that actually demarcate what belongs to whom, and there is no demanded-by-the-universe way of orienting those institutions. Also, it's clear that curtailments of liberty are at the very heart of all economic institutions, laissez-faire ones just as much as socialist ones.
political_philosophy  political_economy  libertarianism  Mill  EF-add 
october 2013 by dunnettreader
Concurring Opinions » Schmayek’s Shutdown - Frank Pasquale -Oct 2013
For the Tea Party, PPACA is a horror, perhaps even a new form of slavery, a threat to liberty even darker than the feudal past Hayek evoked.

But there is another figure just as important to current neoliberal thought as Hayek. Carl Schmitt provided jurisprudential theories of “the emergency” and “the exception” that highlighted the best opportunities for rapid redistribution of wealth upwards. In Never Let a Serious Crisis Go to Waste, Philip Mirowski explains how neoliberal thought, far from advocating a shrinking of the state, in fact sparks a redirection and intensification of its energies. As he puts it, “A primary function of the neoliberal project is to redefine the shape and the function of the state, not to destroy it” (56). Moreover, the “strong state was necessary to neutralize what [Hayek] considered to be the pathologies of democracy” (84). Even a temporary dictatorship can work in a pinch.
US_politics  Hayek  Schmitt  liberalism  reactionary  neoliberalism  libertarianism  conservatism  EF-add 
october 2013 by dunnettreader
Regional Differences Have Doomed the Tea Party | Ten Miles Square | The Washington Monthly
...a list of 32 tea party hardliners who arguably represent the core of the shutdown caucus. 26 of them - over 80 percent of the group - were elected from the centuries-old cultural regions I call the Deep South, Greater Appalachia, and Far West - regions which together account for just a third of the U.S. population.

There are tea party supporters everywhere, but only in these three cultural regions have they managed to achieve real and lasting political success. This is because their platform - ... is in accord with the centuries-old cultural ethos of each of these regions, and anathema to those elsewhere.

Several commentators have drawn parallels between the actions of the “shutdown caucus” and those of 19th century Confederate nullifiers and secessionists..... In regards to the Deep South, they’re onto something.

This is a region founded by West Indies slave plantation owners, men who cherished and fought for a form of classical Republicanism modeled on Ancient Greece and Rome, where a privileged minority enjoyed liberty and democracy, and slavery was the natural lot of the many. The agenda of the Deep Southern oligarchy has been consistent for more than three centuries: to control and maintain a one party state with a colonial-style economy staffed by a compliant, low-wage workforce with as few labor, workplace safety, health care, and environmental regulations as possible. Its slave and racial caste systems have been smashed by outside intervention, but its representatives in Washington have continued to fight to reduce federal power....

Colin Woodard is State and National Affairs Writer at the Portland Press Herald / Maine Sunday Telegram and author of American Nations: A History of the Eleven Rival Regional Cultures of North America
US_politics  US_history  political_culture  republicanism  libertarianism  conservatism  US_Civil_War  EF-add 
october 2013 by dunnettreader
JONATHAN KAY, review: Jesse Walker, "The United States of Paranoia: A Conspiracy Theory" - A Nation of Birthers | The American Conservative August 2013
Jesse Walker, books editor for Reason, supplies a needed counterpoint in The United States of Paranoia. The author does not try to defend the unhinged theories spouted by the likes of Jones and Glenn Beck. Instead, he argues that U.S. political culture, on all sides, has been infused with a spirit of wild-eyed fear-mongering since the nation’s founding. Paranoia isn’t a hallmark of conservatism. It’s a hallmark of America.

The Founding Fathers themselves were big-time conspiracy-mongers, Walker reports. George Washington, for instance, accused the Brits of hatching “a regular Systematick Plan” to turn colonists into “tame & abject Slaves.” Much of this over-the-top language found its way into the Declaration of Independence, which presented George III as a sort of 18th-century Stalin.
books  reviews  US_history  US_politics  American_colonies  17thC  18thC  19thC  20thC  21stC  paranoid_politics  Puritans  slavery  American_Revolution  Early_Republic  Native_Americans  libertarianism  Obama  conservatism  right-wing  EF-add 
september 2013 by dunnettreader
Daniel Finn: The moral ecology of markets: on the failure of the amoral defense of markets | T & F Online
Review of Social Economy
Volume 61, Issue 2, 2003, pages 135- 162
Available online: 04 Jun 2010
DOI: 10.1080/0034676032000098192

Many economists have defended capitalism; most have tried to do so within the self-imposed methodological constraint that economists should employ only empirical arguments, not normative ones. This essay examines three classic amoral defenses of capitalism—by Milton Friedman, James Buchanan, and Friedrich Hayek—and argues that each fails on its own terms, since each implicitly incorporates moral presumptions essential to the author's argument. Constructively, the essay proposes that no one can adequately endorse (or critique) markets without making a moral evaluation of their context—their “moral ecology.” Four issues are identified as necessarily addressed in every adequate evaluation of markets. The essay does not endorse any one position on these elements, but argues instead that seemingly incommensurable standpoints on markets—ranging from Marxist to libertarian—actually represent positions on the these four basic issues.

Downloaded pdf to Note
article  political_economy  markets  liberalism  libertarianism  conservatism  Hayek  moral_philosophy  downloaded  EF-add 
august 2013 by dunnettreader
PT Jackson: The Society of Individuals - cont debate w/ P Arena | Duck of Minerva June 2013
By contrast, in a world of relationally embedded actors, action comes not from calculation, but from something unknown in the society of individuals: deliberation. Actors find themselves within a set of delimited though ambiguous cultural resources — resources that are never solely the possession of any one individual, unlike preferences which are individual from the get-go — and are confronted not with the question of how to best fulfill their ends, but the question of what their ends ought to be. 

So we have two fundamentally different models here: autonomous individuals — prototypical males? — with preferences making strategic calculations, and relationally embedded actors (I’m not going to push the gender point any further here, but I think that many feminists might agree with me about the relative depictions of autonomy-vs.-embeddedness in a patriarchal society) engaged in deliberation and discernment looking for the right course of action. While the former might end up conforming to one or another moral code, only the latter can actually engage in “moral action” per se, because autonomous individuals would be choosing whether or not to act morally while embedded actors would be endeavoring to suss out the moral thing to do and then doing it. One does not choose to be moral as a moral actor; one acts morally, or one fails to do so

Decision-theoretic accounts tell us a story in which value is radically subjectivized, individuals are separated from one another by firm borders, and social relations are nothing but instrumental conveniences (contra Phil, I would claim that public choice theory isn’t about what is best for the collective as a collective, but what is best for the individuals inhabiting it, since collectives don’t have preference-functions). Relational accounts tell us a far different story.

The fact that we tell decision-theoretic stories about entities that can’t be said to be actually making decisions — we have “selfish genes” and utility-maximizing ants — simply shows how our values have shifted to the point where such stories seem to make intuitive sense, and also contributes to the further promulgation (what I actually want to say here is Veralltäglichung, Weber’s word that literally means “making-everyday”) of those assumptions and value-commitments
social_theory  rational_choice  moral_philosophy  utilitarianism  libertarianism  Weber  values  EF-add 
july 2013 by dunnettreader

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