Corey Delaney is interesting because he made A Currant Affair look like the piece of witless limpdickery that it is. This is nothing to do with the intrinsic merit of anything young Corey may or may have not have done (or be). It is purely relational, a function of his being in the right (wrong?) place at the right (wrong?) time.

The problem with many analyses of popular culture is their failure to appreciate this relational aspect. Of course, popular culture aficionados may well say to me that I am making blind assumptions about quality and merit, and they may be right. However, they are also engaging in what Professor John Gardner calls the philosophical ‘nuclear option’. That’s a denial of both moral objectivity and moral truth, a skepticism that reckons you’re making an argument ‘just because you think so’, not because there’s any possibility of even attaining the truth. This kind of general moral skepticism - about everything from aesthetics to political virtue - is fundamentally self-defeating. By pretending that Big Brother can be ‘good’ independent of its social effects, it becomes possible to argue that everything is good based on its social effects (or interest). This is clearly not the case, and it’s worth keeping the distinction between Corey Delaney as an independent moral agent, and Corey Delaney as an instance of media incompetence entirely separate.

Big Brother is crap for Bogans. It exists because modern capitalism has given bogans more money than they ever had before (likewise chavs in the UK), and they are now able to express their market preferences. Good for them, I have no quibble. There is no requirement that anyone else needs to take an interest. Scholars and intellectuals in the Roman world ignored the gladiatorial shows, unless they were genuine fans in the objective sense - there is little irony in Martial’s enjoyment of ludi. He went and wrote because he liked, not because he was necessarily watching Roman bogans and chavs get their jollies. Poverty - and former poverty - does not make people interesting per se (except, maybe, to economists).

It’s worth keeping in mind.

Note: There’s a selection of my Martial translations available here, for those with strong stomachs.

The setting is a neighborhood feud. The case features an unsightly, 38-foot recreational vehicle stored on a residential driveway in suburban Chicago, a neighborhood petition drive to force its removal, and a derogatory Halloween yard display erected in retaliation against the neighbors who led the petition drive. An unlucky police officer dispatched to mediate the dispute was sued for his efforts, accused of violating the First and Fourth Amendments. The plaintiffs claimed their Halloween display—wooden tombstones with epitaphs describing, in unflattering terms, the demise of their neighbors—was constitutionally protected speech. They alleged their rights under the First and Fourth Amendments were violated when the officer ordered them to remove the display on pain of arrest. The district court granted summary judgment for the officer on the Fourth Amendment claim but permitted the free-speech claim to proceed to trial. A sensible but probably misinstructed jury returned a verdict for the police officer.

If you click on the link to the judgment, you can see the recreational vehicle which started the dispute in the first place: and it is a monster of a thing. Here is a picture of the tombstones:

As an example, a tombstone referring to a neighbour called John Berka, who lived at 188 Jackson Lane, was inscribed with an “epitaph” as follows:

Old John Burkuh
Said he didn’T give a care
So They buried hiM
aLive uP To his hair.
He couLdn’T breath
So now we’re relieved
Of ThaT NasTy oLd jerk!
~ 1888 ~

All but one of the other tombstones referred to other neighbours who had objected to the presence of the recreational vehicle in the Purtell’s driveway. I have to say that the poems are puerile and very badly written; but I can understand why the neighbours might not have felt comfortable about having to see them for weeks upon end.

The Court concluded that, contrary to the conclusion of the jury, the Purtell’s rights under First Amendment had been breached, but that the police officer was entitled to qualified immunity in respect of his demand for the Purtells to take down the tombstones under threat of arrest, as it was reasonable of him to think that the words might cause a breach of the peace in the circumstances.

At the close of judgment, the Court said:

In closing, a few words in defense of a saner use of judicial resources. It is unfortunate that this petty neighborhood dispute found its way into federal court, invoking the machinery of a justice system that is admired around the world. The suit was not so wholly without basis in fact or law as to be frivolous, but neither was it worth the inordinate effort it has taken to adjudicate it—on the part of judges, jurors, court staff, and attorneys (all, of course, at public expense). We take this opportunity to remind the bar that sound and responsible legal representation includes counseling as well as advocacy. The wiser course would have been to counsel the plaintiffs against filing such a trivial lawsuit. Freedom of speech encompasses “‘the freedom to speak foolishly and without moderation,’”…but it does not follow that every nominal violation of that right is—or should be—compensable. See Brandt v. Bd. of Educ. of City of Chi., 480 F.3d 460, 465 (7th Cir. 2007) (”[D]e minimis non curat lex (the law doesn’t concern itself with trifles) is a doctrine applicable to constitutional as to other cases,” and an award of nominal damages “presupposes a violation of sufficient gravity to merit a judgment, even if significant damages cannot be proved.”). Not every constitutional grievance deserves an airing in court. Lawsuits like this one cast the legal profession in a bad light and contribute to the impression that Americans are an overlawyered and excessively litigious people.

Very nicely said. As much as we might like to think that this kind of case is something that would “only happen in America”, unfortunately my experience of working in a court tells me otherwise. I never had a case quite as whacky as this one, but I did see some cases proceed where the lawyers for at least one of the relevant parties should have talked sense into their client. Sometimes I saw a judge desperately try to get the parties to see sense on the first day of trial, only for the parties to proceed anyway. To potential litigants - if a judge warns you that your case has little merit: listen! You’re very likely to lose if you proceed.

I recall having a blistering row with a colleague who thought that the role of a lawyer is to represent the client’s view at all times, regardless of how foolish or problematic this view might be. I disagree. I firmly believe that one of the roles of the lawyer as advisor is to “hose down” a client’s more unreasonable expectations, and try to get the client to see sense if possible. It seems that the Court of Appeals agrees.

(Via WSJ Law Blog)

Washington is at once familiar and strange. I’d not realised how different US-style traffic-lights - suspended over the intersection and painted bright yellow - actually look. There are more police forces (with a mind-boggling array of uniforms) than anywhere with the possible exception of Italy. Tour groups in the Capitol seemed spontaneously segregated, leading to the peculiar visual image of an all black-group led by a thin white man with a facial tic, and an all-white group led by a very large black woman whose presence seemed to fill every room. Artwork in the Capitol - particularly the statuary - varies from glorious to tat. The Library of Congress, by contrast, is all class.

For the most part people took me for English, except for one member of the Capitol Police, who said ‘Australian, but you’ve spent a long time in England’. I was so flummoxed I simply said ‘well spotted!’ and forgot to ask how he guessed. He was an elderly black man, his hat slightly skew-whiff. I presume he’s been manning the metal detector since, like, whenever they introduced metal detectors everywhere. And they were everywhere. That, of course, was the commonality, but Britain trains you to terrorism and the threat of terrorism. Long queues, metal detectors, take your shoes off, fingerprinting, show your passport (and not just at the airport), softly spoken but effective policing. Americans still grizzle at their loss of rapid mobility, although they’re getting quieter, slowly approaching the phlegmatic stoicism of the Brits. Still, strangers do talk to you on trains, in lifts and in hotel lobbies, and not just about the weather. After the initial surprise - I must admit I did an awfully discombobulated Englisher impression the first time (I’m used to being left alone to my thoughts) - I found the warmth and generosity of spirit on display very attractive.

The election is everywhere, too, from novelty nutcrackers to off-colour jokes about Obama. These are uttered with a nervous titter and sotto voce, in part because he seems harder to mock in the same obvious, physical way as McCain or Clinton. I came across an office - apparently manned 24/7 - supporting the Clinton campaign a stone’s throw from my hotel. People had decorated a whiteboard - the biggest whiteboard I’ve ever seen - under a heading ‘why I support Hillary Clinton’ just inside the door.

More detail in the pics; a public Facebook photo album is here.

I don’t think it covers me, but then again, I am a rara avis. I do know, however, at least one Lawyer Who Is Writing A Thriller, although it’s not a legal one. And I know a lot of people who would consider they are Lawyers in the Wrong Profession.

(Hat tip to Dave Bath at Balneus for sending me this).

In late 2006, Darrell Roberson came home from a late-night card game to find his scantily clad wife with another man in a pickup in the driveway. Tracy Roberson was with her lover but cried rape, and her husband fired four shots into the truck as Devin LaSalle drove off, killing him.

Darrell Roberson was arrested, but a murder charge was dropped, and a grand jury indicted Tracy Roberson instead.

The wife has been convicted of involuntary manslaughter, and faces between 2 and 20 years in gaol.

Presumably when the charges were dropped against the husband this means that the prosecutors thought it was reasonable for him to unload four shots into the back of an alleged rapist? While it may be understandable to wish to kill someone whom you suspect raped your partner, surely this kind of vigilante behaviour should not be condoned.

If the wife knew that her husband carried a gun and was likely to shoot at a rapist, she should not have cried “rape”, because she ought to have known that would endanger the life of her lover. I presume it was just a spur-of-the moment decision made in horror when she saw her husband arrive home: no thought went into it at all.

However, the decision to drop charges against the husband but proceed against the wife reflects a sexist desire to blame the promiscuous and faithless wife, and condones the husband’s thoughtless act of violence. Presumably, he, too, acted without thought, but his behaviour was also unreasonable. I think that the husband also bears equal responsibility. In my opinion, you can’t just shoot and kill someone like that. It may lead to the death of an innocent man (as it did in this case). There’s no place in society for that kind of behaviour. Hmm, well, it appears maybe there is, if you’re in Texas.

(Via Jonestown)

US$2mill? How did they come up with that figure? What loss did this guy suffer if he wasn’t actually physically injured by his experience? Obviously, he should not have had to spend an hour and a half in the toilet while there was turbulence on the plane, and it is clearly in breach of safety regulations. But I do wonder how people come up with these outrageous figures for damages. Perhaps he is arguing that he has a pathological fear of flying as a result? Or maybe it’s a publicity bid to force the airline into settling? The mind boggles.

I must confess that I have once spent most of a flight in the toilet. However, that was voluntary, and for entirely different reasons (I ate a dodgy prawn in Kuala Lumpur). Ugh. Note to self: do not eat prawns in KL again from dodgy food courts; at least, not unless I see the person cook it on a big flaming wok in front of me. Actually, now that I think about it, I’ve had bad luck in that regard. I’ve also had to fly Air Lao while very ill. However, it was probably fortunate that I was so ill. I seriously wanted to die at that point, and so it did not worry me that the plane was a second-hand Soviet jet without radar (the pilots had to take off and navigate by sight). Nor did I care when great gusts of water vapour started coming in the baggage holds when we entered the clouds. Luckily I landed safely and got treatment at the Vientiane American Hospital (which was an experience in itself). Ah, fun times!

I’m not really into Mother’s Day, and we didn’t do anything special on Sunday. But I do think it’s nice to recognise mothers (and fathers) because it’s a damn hard job sometimes.

When I was younger, one of the high schools I attended told me I could do anything and be anyone I wanted to be. Initially, I took this positive and salutory message on board. But when I was older (and more cynical) I wondered why there weren’t more prominent women in history if this were so? Was it simply that the patriarchy had ignored them, or were there other reasons?

When I fell pregnant with my first child, I realised why women hadn’t taken over the world (particularly before the advent of contraception). One of my forebears had sixteen children, one every two years from when she was in her late teens to her 40s. How could one possibly take over the world, come up with fantastic inventions, or write a sonata if one was otherwise occupied with bearing children for all that time? The only way would be if you were either unmarried or childless, or you were rich and could farm the children off to a wet nurse and then a nanny.

It is simply exhausting being pregnant. I don’t think I’ve ever been so tired in my whole life. During my last pregnancy, I used to hide in the toilets at work and lean against the cubicle wall for 15 minutes or so because I was so tired. Once you have the child, it is totally dependent on you for at least the first three months. Although it is now out of your womb, it still feels like there’s an invisible umbilical cord tying you to your child, and you are still tired because you have to feed the child at 3 hourly intervals. Imagine doing that over and over again, up to 16 children! Don’t get me wrong; I love being a mother. But I really hate portrayals in the media which indicate that it is a piece of cake, and that you can still keep on doing exactly what you did before. You can’t, unless you get someone else to do the mothering for you. It’s a trade off.

Sometimes I feel like I’m juggling multiple balls and if I don’t watch out, I’ll drop them all. The prominent balls are child, husband, family, work, study and friends. I think blogging probably deserves a ball of its own too. Other balls include cooking, washing, housekeeping and finances. The balls which often get dropped are things like getting time to do art and looking after myself (yes, I really need a haircut) and housekeeping (yuk). It’s so hard to keep it all going sometimes. The washing backs up and no one has clean underpants. Or I forget to pay a bill. Or I forget to call someone back, because I’m just trying to keep all the other balls in the air as best I can…hopefully that person is understanding. The priority will always be my child and my husband over anything else, and sometimes other things suffer. I won’t always get it right, and I won’t always be a good mother: but I’m trying my best. 

So, being a mother is a tough job. I salute all the mothers out there who are juggling everything just as I am. I especially salute my own wonderful mother: I don’t think I ever realised how much she did and how hard she worked for us until I had my own house and family. Also I salute supportive partners (like my own) who help cook dinner, or give the baby a bath, or just let Mums have a sleep in.

In the end, however, I wouldn’t change my position for quids. My daughter is the funniest, dearest thing in the whole world, and she gives me so much joy. I am blessed to have her. I don’t really need a special Mother’s Day because she tells me that she loves me a few times a day, and follows up with kisses and hugs. She brought me a “present” while I was sitting on the toilet the other day - consisting of her book about dogs in a shoe box. The only downside to the “present” was that I then had to read it to her after I opened the “present”…a bit of a Trojan horse present if you ask me. I’m also looking forward to having another child: it will be funny and dear as well, I am sure, although possibly in quite different ways to number one.

First, he made a cogent case for the idea that we (in the developed world, at least) are freer now than we were in the past, and that it’s unwise for libertarians to look back on any particular era as some sort of libertarian elysium. If government was small way back when, in large part it was because everything was small. There is a tendency among some libertarians to argue for the future by going back to a past that did not exist; Cowen exposed this tendency very effectively.

Next, he argued for a form of positive liberty. This is not the positive liberty of Isaiah Berlin, with its totalitarian tendencies and desire to tell others how to live - something that has plagued the political left for many years and arguably persists to this day. Rather, Cowen’s positive liberty is closer to Amartya Sen’s account of ‘capabilities’ - people should be able to do certain things, and the most successful society is one where the most people can do the most things. Then - and this is where there was an audible gasp around the room - he argued that roughly 70% of the liberties worth having fall into this ‘ability’ version of positive liberty.

Once people had cleared up that he wasn’t riffing on a notion of ‘ve vill give u zees because vee think it vill be gooood for you’, some of the grounds for the audible gasp drained away. Cowen’s and Sen’s ‘positive liberty’ has a modesty absent from Berlin’s account, and lacks the obsession with inequality that - later in the address - Cowen dismissed using Hayek’s words: as a ‘category mistake’.

Finally, in language sure to gladden the heart of jurisprudes everywhere, throughout the address he placed considerable emphasis on the rule of law and the benefits that flow from it. What poor countries need is not more liberty, but more law, law that is abstract, end-independent but - and this is the clincher - also enforced. He then moved into territory that is politically dangerous, but needs to be addressed: one of the things that helps promote both liberty and prosperity throughout the Anglosphere is citizens’ widespread ability to be loyal to a set of abstract concepts. Russia, he pointed out, is failing as a free society not because it is poor - Putin’s shrewed management of high commodity prices has put paid to much Russian poverty - but because Russians tend to privilege their friends and contacts above all else, leading to epic levels of corruption. Corruption, of course, is a signal rule of law failure.

He then asked, somewhat rhetorically, if liberty was confined (and defined) by culture: ‘We should not presume that our values are as universal as we often think they are’. What happens, he asked rhetorically, if - in order to enjoy the benefits of liberty and prosperity - societies have to undergo a major cultural transformation, including the loss of many appealing values? Cowen focussed on Russian loyalty and friendship, but there are potentially many others. Think, for example, of the extended family so privileged throughout the Islamic world, or the communitarian values common in many indigenous societies.

Serious food for thought.

(And for those looking forward to a collection of DC pics, two things. One, I forgot to bring my camera cable to the US, so I can’t upload anything until I get back to Oxford; and two, I got rained on for the length of the National Mall yesterday. The weather - not to put too fine a point on it - has been shite. Truly shite).

At bottom, of course, are the links between liberty and equality, and to what extent (if any) the two conflict. True to my training in analytical philosophy, I’m concerned to pin down concepts like ‘equality’ and ‘liberty’, at least as they’re used by Rawls and Hayek. Like Don, I think that Rawls and Hayek are closer together than they appear. Unlike Don, I don’t think Rawls’ normative framework is as persuasive as it appears, and I don’t think it’s clearer than Hayek’s. I found this when I came to consider one of the ideas at the heart of his ‘principles of justice’ - the idea that liberty is lexically prior to equality.

I think that liberty should have priority over equality, but that lexical priority is too rigorous a requirement. This is an admission I make reluctantly – I am, after all, a libertarian. It is nonetheless a necessary admission.

In this piece, I argue that to give liberty lexical priority over equality – particularly if one accepts some or all of John Rawls’ system as set out in A Theory of Justice – not only excludes equality (however conceptualised). It also excludes other values that are essential to good governance, as well as endorsing a thin conception of liberty. In short, according liberty strict lexical priority over equality is too demanding. That said, I also find Rawls’ suggestion – incipient in Theory, but later made explicit in Political Liberalism – that ‘basic wants’ must be satisfied before liberty can take its place at the top of the ‘values heap’ troubling.

First, I outline what Rawls means by ‘liberty’s lexical priority’. Second, I consider his conceptualisation of liberty, comparing it with that outlined by Isaiah Berlin and F.A. Hayek. Following Hayek, I import free markets into Berlin’s account of ‘negative liberty’ in order to thicken Rawls’ conception of the word. I also discuss Robert Nozick’s insight that restraining people from market participation involves continual interference with their freedom.

I then turn to ‘equality’. I argue for a non-maximal version of equality, incorporating key elements from Hayek’s account of formal equality and Amartya Sen’s notion of ‘capabilities’. Due to the latter’s concern with agency and well-being, I consider his ideas in light of Berlin’s ‘positive liberty’, and ask whether they share the potentially destructive characteristics of which Berlin warns. I also consider whether positive liberty as Sen describes it is coterminous with Rawls’ basic wants.

While I argue for the importance of this equality, I also maintain that according basic wants lexical priority over liberty may be harmful. This is not because I think that people – particularly in the developing world – should continue to live in dire poverty, but because trying to satisfy peoples’ basic needs before setting them free may have deleterious effects. To that end, I consider the large body of empirical research indicating a strong correlative link between elements of negative liberty and satisfaction of Sen’s Human Development Index.

Rawls and liberty’s lexical priority

The lexical priority of liberty is an integral part of Rawls’ schema: liberty can only be restricted for the sake of liberty. This argument emerges after Rawls develops his principles of justice. His first principle requires equal liberty for all, while his second holds that inequality – of liberty and other values – is justifiable (a) if it benefits people overall and (b) is to the ‘greatest benefit’ of the disadvantaged. Any restriction on liberty must either (a) contribute to the liberties shared by all or (b) be acceptable to the parties who end up with less liberty. This places liberty above not only equality, but also justice, welfare and efficiency.

By any criterion, this is a demanding requirement. That is not to say one cannot imagine practical applications. Consider, for example, the presence of a minority who during time of war constitute a fifth column. One can conceive of a public debate that – leaving security to one side – raises the idea that any restrictions on liberty (identity cards, employment controls, profiling) should either enhance the liberty of society as a whole or be acceptable to the group in question; perhaps both.

The demanding nature of lexical priority strictu sensu is most notable when one considers its impact on the implementation of Rawls’ second principle of justice. If liberty has lexical priority, then one cannot consider any question of equality, efficiency, justice, welfare, security or anything else unless liberty’s claims are fully satisfied. Rawls justifies restraints on liberty only as a means to protect like liberty for others. This exclusion even seems to take in the harm principle, except in forms that prevent harm by preferring one form of liberty to another. He gives the example of debates, where rules must limit participants’ liberty to speak whenever they wish in order to facilitate overall freedom of speech. Effectively, all restraints in a situation of maximum equal liberty are necessary for the protection of that maximum. This strikes me as a recipe for institutional paralysis.

Later in Theory, Rawls retreats from this maximal position. He comments that ‘until the basic wants of individuals are fulfilled, the relative urgency of their interest in liberty cannot be firmly decided in advance’. The argument seems to be that a given state needs to satisfy ‘basic wants’ up to a certain point. Thereafter, liberty is preferred to any further increase in other goods. This argument links to Rawls’ distinction between ‘general’ and ‘specific’ conceptions of justice. Although not always clear, my understanding is that the special conception – where liberty is lexically prior – governs societies that have developed such that they can satisfy citizens’ basic wants. Under the general conception, by contrast – where these favourable conditions do not obtain – the state may deny equal liberty.

In Political Liberalism he goes a step further, arguing that ‘the equal basic rights and liberties may easily be preceded by a lexically prior principle requiring that citizens’ basic needs be met’. These basic needs, Rawls argues, facilitate citizens’ comprehension and exercise of their rights and liberties.

Interestingly, Isaiah Berlin makes a similar point, fleshing out ‘basic needs’:

[T]o offer political rights, or safeguards against intervention by the state, to men who are half-naked, illiterate, underfed and diseased is to mock their condition; they need medical help or education before they can understand, or make use of, an increase in their freedom.

Slippage between the lexical priority of liberty strictu sensu and lexical priority + ‘basic needs’ raises two questions. First, how does Rawls conceive of liberty? And second (because he does not give them content), how are we to conceive of basic needs?

Rawls, negative liberty and markets

Rawls seeks to navigate through the shoals surrounding liberty’s definition by arguing that much of the dispute is not definitional at all, but about weighing the value of different liberties when they conflict. Despite collapsing positive and negative liberty into each other in an ingenious conception that refers to ‘agents who are free, the restrictions or limitations from which they are free, and what it is that they are free to do or not to do’, he argues for ‘freedom of thought and liberty of conscience, freedom of the person and civil liberties’. He thinks that these ‘ought not to be sacrificed to political liberty’ in the sense of participation in political affairs. This is close to Berlin’s negative liberty, which is conceptualised in terms of freedom from deliberate interference by other human beings and distinguished from participatory democracy.

There is, however, a crucial difference between Rawls’ liberty and that present in Berlin and – more notably – Hayek. H.L.A. Hart draws attention to the distinction between the very broad scope of Rawls’ equal liberty principle and his later restriction of liberty’s content to that of ‘basic liberties’, noting in the process a major elision when it comes to economic liberty. Hart observes Rawls’ ‘careful and repeated explanation that, though the right to hold property is for him a “liberty”, the choice between private capitalism and state ownership of the means of production is left quite open by the principles of justice.’ Limiting private ownership to personalty would clearly result in less liberty than would be the case if a given society permitted private ownership more widely. It’s also unclear whether Rawls includes freedom of contract among his basic liberties. Rawls’ liberty is thus substantively narrow but procedurally broad.

Nozick – in his famous description of liberty’s disruption of patterns – makes a powerful case for the proposition that excluding economic liberty from any account of negative liberty impoverishes the latter’s content. To be fair, Nozick wants to defeat arguments in favour of wealth redistribution. In the process, however, he outlines how any regime preventing basketballer Wilt Chamberlain from making a contractual agreement for extra remuneration interferes in Chamberlain’s life to such an extent that it ‘would have to forbid capitalist acts between consenting adults’. This assumes, of course, that Chamberlain’s basketball team is in private hands. What if – recall Hart’s account of Rawls’ schema – the basketball team were state owned?

Hayek’s account of economic liberty focuses on ‘spontaneous order’. That is, markets – like languages – emerge thanks to the interaction of free individuals acting in a non-patterned, un-coerced manner. A free market merely co-ordinates the aims and purposes of countless actors; these actors cannot know the aims and purposes of more than a handful of their fellow-citizens. It does this through the mechanism of prices. Changes in the price of a commodity are simply signals, feeding information back into the system, enabling participants to produce spontaneous co-ordination ‘automatically’. This can appear to be the product of an omniscient mind, but is actually its antithesis.

Markets, then, are a signature example of negative liberty. Hayek makes the point explicit:

Much of the opposition to a system of freedom under general laws arises from the inability to conceive of an effective co-ordination of human activities without deliberate organization by a commanding intelligence. One of the achievements of economic theory has been to explain how such a mutual adjustment of the spontaneous activities of individuals is brought about by the market, provided that there is a known delimitation of the sphere of control of each individual.

Although I find Rawls’ argument for liberty’s lexical priority unpersuasive, the thinness of his ‘liberty’ gives one pause even when arguing for a less demanding priority. I propose that negative liberty is only plausibly prior to equality – or other values – if it takes in freedom from economic coercion: the liberty to form contracts, the liberty to engage in the human ‘propensity to truck, barter and exchange one thing for another’.

Equality and capabilities – or, what are ‘basic wants’?

If ‘liberty’ is a large concept, then ‘equality’ is the omnibus term par excellence. While what I propose here is close to libertarian formal equality, I explicitly invoke Hayek’s more nuanced account of formal equality, not Nozick’s. Hayek describes a minimum of equality in terms that amount to a mild version of Berlin’s positive liberty, although compassion moves him, not a desire for equality.

While both Berlin and Hayek link positive liberty with self-mastery, they counsel caution with respect to it for different reasons. Berlin is chiefly concerned with the political system-builder who thinks he has lit upon a method for ensuring self-mastery and self-realisation, only to find that he (or his followers) is coercing others in the name of achieving self-mastery. Berlin cites as exemplum Nikolai Bukharin:

Proletarian coercion, in all its forms, from executions to forced labour, is, paradoxical as it may sound, the method of moulding communist humanity out of the human material of the capitalist period.

Hayek, by contrast, argues that confusing liberty with power leads inevitably to the ‘identification of liberty with wealth’. He points out – somewhat dryly – that while freedom and wealth are both good things, they remain different. While Hayek rejects redistribution aimed at correcting inequality, he explicitly countenances the ‘assurance of a given minimum of sustenance for all’, to be funded by taxation. With this in mind, I argue that people should have enough for ‘capabilities to achieve functionings’ (Sen).

This is in addition to the traditional basket of formal ‘negative’ rights. These rights are not only valuable because they acknowledge the impartial and universal nature of moral judgments. They are also valuable because unless citizens have equality of status along at least one key axis, economic and social inequalities may re-emerge as primary determinants of moral worth.

This explicit selection of a non-maximal account of equality strikes me as sensible for two reasons. First, few people argue for ‘simple equality’ or true economic egalitarianism. Harry Frankfurt elegantly defines the latter as ‘the doctrine that it is desirable for everyone to have the same amounts of income and of wealth (for short, “money”)’, noting that it is easy to defeat argumentatively. However, Frankfurt’s contention that what is morally important is not that ‘everyone should have the same, but that each should have enough’ is extremely persuasive. He calls this a ‘doctrine of sufficiency’.

Most disputes about inequality are misconceived: they are not really about inequality per se. No one cares much about the difference in wealth between lawyers and bond traders, say, even though – while both have expensive educations and considerable technical skill – bond traders often earn incomes orders of magnitude larger than lawyers. What they care about is that some people live in awful conditions due to poverty, or that their poverty prevents them from functioning. Few scholars write more movingly of the plight of the poor than G. A. Cohen. However, even he – in his story of the woman who cannot afford to visit her sister in Glasgow – is not moved by her ‘inequality’, but by her lack of capacity.

Second, it is possible to give Frankfurt’s ‘doctrine of sufficiency’, Hayek’s ‘minimum of sustenance’ and Rawls’ ‘basic needs’ practical substance through Amartya Sen’s account of capabilities. That is, combining Frankfurt’s moral argument with Sen’s empirical observations make Rawls’ basic wants intelligible. I do not pretend this is simple. Frankfurt observes that ‘calculating the size of an equal share is plainly much easier than determining how much a person needs in order to have enough’. That conceded, economists could do much of the empirical spadework. While Sen’s ‘capabilities’ account is concerned with effective power to act or pursue one’s ends, and argues that poverty leads to a lack of effective power to act, it is much more modest in its claims than most egalitarian philosophies.

Of course, to the extent that Sen’s capabilities account contains within it the destructive elements characteristic of positive liberty noted by both Berlin and Hayek, I argue that liberty retains priority. Similarly, I reject Rawls’ argument for the lexical priority of ‘basic wants’ for the same reason as I reject arguments for liberty’s lexical priority: it is too demanding. It requires fully satisfying ‘basic wants’ before considering any other value. It is worth remembering that lexical priority accords the value ‘on top’ infinitely great relative value. Other values can never catch it.

Some empirical points and concluding comments

As attractive as combining Sen’s capabilities with Hayek’s nuanced description of formal equality may be, I still argue that liberty remains prior. This is, however, a more generous priority regime, one without the strictures of Rawls’ lexical priority.

My reasoning is partly empirical, and is borne out by the great body of data collated over the last 18 years by economists compiling the Economic Freedom of the World Index (since 1994) and the UN Human Development Index (since 1990). Amartya Sen developed the latter index, while Milton Friedman and Gary Becker developed the former. The available data focuses on economic liberty, rather than other (negative) liberties more broadly. Even so, it is very telling. In recent years, the EFW Index has published data correlating its indices with UNHD indices. The 2004 graph is below.

Economic freedom correlates strongly with higher average income per person, higher incomes for the poorest 10%, longer life expectancy, higher rates of literacy, lower infant mortality, greater access to clean water and less corruption. There is debate as to whether lower levels of official and private corruption is an effect of liberty or a cause. There is great (and sometimes acrimonious) debate over the link between economic liberty and political liberty. It is also now generally recognised that a secure property regime is necessary before a rise in average incomes takes place. Nonetheless, the evidence that poor countries require economic liberty is solid.

Significantly, there is no relationship between the income share of the poorest 10% and the degree of economic freedom. Inequality – as egalitarians have long argued – remains a pervasive feature of all nations, both rich and poor. However, the amount of income the poorest 10% earn rises with economic freedom. And, as other indices on the UNHDI show, the poorest in free countries often have – to use Harry Frankfurt’s word – ‘enough’. An HDI breakdown across key indices is below.

In sum, while there is a growing body of empirical evidence suggesting that people who enjoy both free minds and free markets have their ‘basic wants’ satisfied more rapidly than people labouring under other regimes, there are other necessary elements of governance that have little to do with liberty per se but undoubtedly enhance its effect. They may also help to secure basic wants. The best arguments for liberty’s priority over equality are empirical, but like all empirical accounts, are rebuttable by facts on the ground.