I stopped here

"I never wanted Polanski to get away with acting like a thug to that young teenager but I am satisfied that private justice was done when they reached a financial settlement. I am a libertarian"

Sorry but that sounds to me like, any rich degeneraate can rape sodomise and brutalise a child but if he gives them a lollipop to make them happy, lines the hands of their parents/guardians with hush money, everything is OK and they should be allowed to Go Forth and Repeat this process at their leasure,

If that is an example of Libertarian Philosophy no wonder they never win elections,

Dafydd, I've had endless arguments with Brad in which I took a position similar to yours, although I arrived at it via a different route, and from experience I can tell you, although you doubtless already know, that you have a job on your hands to bring him around. The problem is that you are inviting him to join you on a slippery slope and Brad hates those. And I am afraid you have done yourself no favors in your choice of a position which strikes me as offering dubious footing alarmingly close to the edge.

The surest way for a libertarian to go wrong in an argument is to start with an egalitarian premise, which as Brad correctly points out, is exactly what you have done. Is it fair that Polanski, who is wealthy and a celebrity, should be able to buy his way out of trouble for raping a child? No, of course not. But does fixing that unfairness address the problem? Not necessarily. There are any number of unsatisfactory ways to eliminate, or at least reduce, the rape rap gap. Ordinary guys could pool their money, for instance, and have a lottery where the winner gets to rape a child and, for the poor who couldn't afford the rape raffle, you could have a quasi-governmental program, administered by ACORN, that helps with the financing. The problem isn't that Polanski thinks he can get away with rape because he is rich and famous; it is that he thinks he can get away with rape at all.

I mentioned that my position is similar to yours but I get there by a different route. Here is how I get to mine:

You start by observing that the one indispensable civic virtue in a free society is tolerance. If people are generally unwilling to put up with what their neighbors are doing they will naturally clamor for collective action to put an end to it and, as a practical matter, a free society whose members are not passably tolerant of one another will degenerate into a collectivist state.

Tolerance can be its own reward -- living in a society where tolerance is generally practiced is liberating and empowering -- but, like other virtues, it is not available in unlimited supply. It can be used up and when a society starts to run low its members can forget why they thought tolerance was a good thing, can become peevish and resentful, and finally the supply of tolerance can dry up altogether.

When you talk to real anarchists -- that's people with theories for living without government, not the cranks, misanthropes and sociopaths that populate the public perceptions of anarchism -- you will be struck with the central role that something like etiquette plays in their theories. If you are going to ask other people to tolerate your behavior it helps to do what you can to make it easy for them. Tolerance is the indispensable civic virtue of a free society but, without tolerable degrees of the other bourgeois virtues in that society, tolerance becomes impossible.

There are two ways that people can be pushed so that the general sense of society comes to be that the benefits of tolerance -- some of which must be taken on faith -- are not worth the annoyances tolerance involves. The first is the last nerve effect -- the accumulation of minor irritations that, taken all together, are too much to put up with. While politeness can help, the last nerve effect is an intractable problem which, thankfully, is not germane to our discussion here. The second way that tolerance becomes impossible is the big stuff -- the things that people find intolerable in and of themselves. I would argue that raping under age girls falls in this category.

I must now bid a fond farewell to our anarchist friends because I think that for the big stuff there oughta be a law. If you are careful to choose such laws only for those things that the community really won't tolerate there are a number of libertarian advantages for having the law. First, there is the whole rule of law thing: there is nothing particularly libertarian about a lynch mob. And the law constitutes fair warning -- You mean to say that drugging and sodomizing a thirteen year old girl is a bad thing? Who knew? And, finally, it provides a clear dividing line between the things that members of the community are asked to tolerate and those it is not. That's terribly important if you are asking people to buy into the idea of tolerance -- the recognition that there are limits and the reassurance that they will not be called upon to tolerate the intolerable.

Since I see the best chance of implementing a libertarian(-ish) society, given public insistence on a tolerable degree of order, lies in the promise of fewer laws that are vigorously enforced, I think that Polanski's highly public evasion of a law that nobody argues should not exist is a bad thing. I'd like to see him do some jail time to preserve the public sense that we live in a permissive, but none-the-less lawful society because damage to that sense will cause people to blame the permissiveness and clamor for more laws.

BigLeeH:

The surest way for a libertarian to go wrong in an argument is to start with an egalitarian premise, which as Brad correctly points out, is exactly what you have done.

"You keep using that word. I do not think it means what you think it means." -- Inigo Montoya

BLH, I have looked in every crook and nanny, and I keep coming up with a different definition of the word "egalitarian" than you seem to be using. The best and most complete is from my three-volume Webster's Third New International Dictionary (unabridged):

Egalitarianism: 1. a) a belief that all men are equal in intrinsic worth and are entitled to equal access to the rights and privileges of their society; specif: a social philosophy advocating the leveling of social, political, and economic inequalities; b) the belief that men are born equal in aptitudes and capacities.

2. the suppression of all distinctions between individuals and groups as inherently unjust: an extreme social and political leveling.

3. social, political, or economic equality.

Thus, mere belief that the rule of law should apply equally to everyone is not egalitarianism; egalitarianism clearly requires forced equality of outcomes -- a "leveling" -- not simply the belief that the rules of the game should not change depending on one's race, sex, class, or wealth.

Thus the rule of law is not a "slippery slope" towards socialism; nothing of the kind. It's a necessary precursor to libertarian thinking, on a par with sufficient wealth not to be worried about survival from day to day (you'll find no libertarians in a famine).

Humans are not by nature individualists, capitalists, or lovers of liberty (though many are natural lovers of license, e.g. Roman Polanski); we as a species must forever fight against the impulse towards collectivism, kleptocracy, and tyranny.

Those of a Judeo-Christian faith believe Mankind is fallen, and humans are therefore not naturally good -- but rather, their nature is towards sin and evil. Thus, such religious folk believe that we must forever fight against those base impulses... and that we need institutions (collectives) such as the synogogue or church that help us in that fight.

Similarly, our Founding Fathers (and Mothers) believed that we require collectivist institutions -- republican governments -- to continually educate us to believe in, and when necessary, force us to behave according to our higher selves: individualism, Capitalism, and liberty.

That means Polanski must suffer for having initiated force and making another suffer... even if he buys off the girl's parents and frightens the victim herself with the threat of destroying her life by introducing lurid testimony at the trial and accusing her, in all the papers and on TV, of being a whore. (The very threat his lawyer made. Perhaps Brad is unaware that she refused to testify not because she was bribed, but because she was extorted.)

It may be mortifying that when we get complacent, we (as a people, not every individual) tend to drift right back left; but that seems to be the way of our species. Left to themselves without any consciousness-raising, people tend naturally to band together in intolerant, tyrannical tribes.

Just look almost everywhere in the world other than here: If our nature were to be free, capitalist individuals, then how explain the tidal wave of tyranny that has held us in thrall for millennia?

We need to rise above our natures; and for that, enlightened men and women must continually preach those three virtues of a free people, and must forever fight the twin sins of plutocracy and Jacobism, the chasms on either side of the peak of liberty. We must be forever vigilant against recidivation; for that, we need institutions that push us towards liberty and away from either cliff.

It's not easy, but it's necessary... and we know it's possible, because we've done it in the past -- more than once.

Dafydd

... the rule of law is not a "slippery slope" towards socialism; nothing of the kind. It's a necessary precursor to libertarian thinking ...

I don't think I said that the rule of law is a slippery slope; I know I didn't mean to, but before I get on with that I should point out that I don't always see venturing out onto a slippery slope as a mistake. All too often the slippery slope argument is used by absolutists who refuse to enter the area where the battle is being fought, preferring to remain encamped on their ideologically pure summits, uncompromised but also unengaged. The more effective ideological warrior is one who sees a slippery slope, not so much as an obstacle but as a requirement for extra planning and preparation -- for the political equivalent of spikes, ropes and ice-axes. When I said that the position you had chosen was on a slippery slope I wasn't being critical -- my chosen position is nearby and almost as slick; I was mostly suggesting better equipment for holding there.

The Rule of Law is a reasonably-level if slightly wobbly platform built on the decidedly slippery slope between plutocracy on the one hand and Jacobinist socialism on the other. The signal difference between the American revolution, which we both admire, and the French revolution, which we do not, is that one group of revolutionaries managed to hold their footing long enough to erect the platform and the other did not -- although in fairness to the French the poisoned atmosphere of class relations in the France of their day made their slope so steep and so glazed that they never had a chance.

There are a number of definitions of the Rule of Law and I prefer a narrower one -- the "eating one's own dog food" version -- which states that the individuals who pass and enforce the laws should themselves be subject to them. There is a mildly wider one that adds a limitation on the amount of "discretion" that is available to those enforcing the laws -- this strikes me as a generally good idea on balance, but does offer opportunities to overshoot (see "Zero Tolerance" or "Third Strike" laws that can require draconian punishment for sometimes trivial offences). Unfortunately, I find your version -- "the rules of the game should not change depending on one's race, sex, class, or wealth" to be too broad and, yes, an invitation to egalitarian mischief because a large percentage of the population, perhaps a majority, will hear parts of it as meaning exactly the opposite of what you mean it to say.

Do laws that protect wealth offer the same benefit to the rich and the poor? Many people would argue not. Blacks are convicted at a higher rate than are whites. Is that an affront to the Rule of Law? I could go on but I am sure you get my drift. I have no doubt that your answer to all these questions will be the same as mine but the broadness of your concept of the Rule of Law provides a point of attack for egalitarian levelers who would answer them differently.

Many of the peasants who followed the tumbrels of aristocrats to the guillotine, shouting Liberté, Egalité, Fraternité, no doubt had the notion in mind that they were supporting the Rule of Law, according to their twisted understanding of it. Those sacres aristos, who had been above the law were now subject to it -- never mind that their only recent crimes had been trying to escape from Paris to elude revolutionary justice -- and they were going to pay.

Brad's point, I think, is that some of the same spirit that animated the mobs of Paris during the Terror is to be found in some of the more phlegmatic critics of Polanski. Sacres Auteurs! I get his point -- and you have to appreciate the irony of Polanski being charged with ecaping to Paris, but I wish Brad could see past it to the rest of the picture and the sensible reasons that Polanski should go to jail and parallels to the French Revolution be damned.

BigLeeH:

As a general rule, I refuse to eschew a valid argument because some tendentious people on left or right may foolishly -- or intentionally -- misunderstand it. That way lie the Mountains of Madness, because a clever fool, like Rahm Emanuel, can misunderstand literally every valid argument raised against him.

When I say "the rule of law," I do not mean "the result of legal proceedings;" I mean the rules of procedure and jurisdiction, precedent and the best understanding of the meaning of legislation.

My answers to your examples are almost certainly the same as yours; but let's state them baldly anyway:

Do laws that protect wealth offer the same benefit to the rich and the poor?

Yes they do: They protect Bill Gates' billions no more and no less than they protect the poor man's television or beat-up old Chevy pickup.

Blacks are convicted at a higher rate than are whites. Is that an affront to the Rule of Law?

Only if blacks are convicted on lesser evidence than whites or are not allowed to put on a defense.

It's certainly true that people with more money can afford a better lawyer, thus are more likely to be acquitted (i.e., O.J.). While this is an affront to justice, it's not an affront to the rule of law.

The problem then is the same as the fact that rich people can eat better and drive better cars, and the best remedy is to be cleverer and become wealthier. But the law itself applies equally to all -- i.e., O.J. 2.0.

(If someone wants to propose a more robust pro-bono requirement for lawyers to maintain their licenses to practice law, that's not necessarily unreasonable.)

But I prefer to anwer the misrepresentations from the Left (and from the Right), rather than drop those arguments.

Dafydd

Dafydd,

My check from Logitech has not arrived for this month and, unless your payment from Bill Gates has come I think we can suspend our secret scheme to stimulate the computer peripherals market (by wearing out the scroll wheels on blog-reader's mice) and admit that we understand one another's positions and nothing remains to be said.

BigLeeH:

As Stan Lee always said...

Dafydd

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