Walter wants explanation in his latest blog. He questions that the premise of my analysis, which is to suppose that a society has a foundational law against theft, bypasses the unanimity problem. The latter problem, unanimity, is that we are unable as outside observers to sum up utilities or “happineses” of people, and therefore we cannot say that some measure or law or action adds or subtracts from general happiness (social welfare, the common good) unless it affects everyone in the same direction. And since we hardly ever find unanimity, we as outsiders or observers, can’t definitely say that any measure is good or bad for the people we are observing.
Walter and I have some common ground here, except that he cannot get by the premise, which as I’ve explained before is a supposition, something supposed, an hypothesis, namely, SUPPOSE that society has adopted a basic law which is a prohibition against theft, like “Thou shalt not steal”. This is certainly feasible. Not only is it feasible, it’s common across societies; but the empirical reality of it is a separate matter. To prove a theorem with this as a supposition, we do not have to show that societies really embed this prohibition. We need only inquire what happens if they do this. What does it imply if they subsequently violate it by a law that compels a theft? Clearly, if the prohibition is a social good, it benefits everyone or nearly so. Then, if the society violates this prohibition by allowing thievery to go unpunished, it is hurting itself and diminishing the social good.
Walter objects “But society has lots of laws, not only just ones against theft.” Yes, society does have many laws and some involve the very theft that it prohibits. But these laws are not all for the common good.
Let’s first dispose of Walter’s problem with seeing that the anti-theft law bypasses the unanimity challenge. A law against theft, I argued in 2007, is a social good. It benefits nearly everyone except the class of thieves. Such a law is foundational. A society can’t be founded on systematic thievery. There has to be production and production won’t occur if thievery is allowable. A law against theft is about as close to being endorsed unanimously as any measure one might posit. Furthermore, by being a basic social good with wide and critically important benefits, society has demonstrated its composite preference, its social preference. That is, unlike many other laws and practices that benefit only some and harm others, showing that they are not clearly social goods, the prohibition against theft is supposed, in my analysis, to be an unambiguous social good. That’s why it may be considered to be supported unanimously, or nearly so, recognizing that the thieves who object are overruled. One cannot form a functioning productive and peaceful society without overruling them. One can form a band of pirates and raiders and thieves, a society of thieves, but it’s not productive.
Walter mentions that there are many laws: “There are also laws compelling us to pay taxes, mandating the employers pay minimum wages. The Nazis had laws vitiating against Jews, gays, homosexuals, blacks, Romany and other non Ayrans.” This is true, but they are not all social goods. They do not benefit all widely. And, if there are taxes, it is not always clear that the taxpayers receive benefits commensurate with the levies. It’s far from clear that the minimum wage benefits everyone, and certainly the laws of the Nazis could only pretend to be for the common good by treating whole classes of people as if they were insects to be sprayed with insecticide or forced into manual labor. Nobody in his right mind would say that such laws are for the social good, because the latter by definition entails general benefits enjoyed by many and all.
So I think that Walter really is not comfortable with the concept of social good. If A steals from B, Walter rightly says we cannot conclude anything about the happiness of this pair. However, Walter ignores everyone else’s stake in the prohibition against theft, and they swamp this pair. He ignores the common good. It must be emphasized that if A’s theft goes unpunished, this reduces everyone’s interest in an anti-theft system. Everyone, or nearly everyone experiences a reduction in happiness if thievery is allowed to occur and is not sanctioned. The common good everywhere in America is damaged by looting in Portland if the city doesn’t enforce its laws against looting, because our whole society participates in the laws against looting and benefits from them in innumerable ways.
In the original article, I posed the question: Which has precedence, a law prohibiting theft or a law that itself demands theft? For example, which has precedence, a minimum wage law that involves theft or a law prohibiting theft?
Which law has sovereign authority, the one against theft or the one that itself demands theft? The law against theft must take precedence. The proof is by contradiction. Assume as the initial premise that the law against theft does not have precedence. Then it implies that legitimate laws can be passed that allow theft. And if that is so, it means that law is a synonym for power. But if law rules only because it is power, then law has become arbitrary. But if law is arbitrary, then it is despotic. It’s not for the common good. This means it has no authority beyond force, or that the authority it imposes cannot be justified and is not accepted. Such a law by definition is illegitimate. Illegitimate means lacking in authority or being outside the law, i.e., unlawful. This implication contradicts the initial premise’s first implication that legitimate laws can allow theft. Having arrived at a contradiction, we know that the initial premise must be false. This proves that the law against theft must take precedence. Then, since the law against theft is paramount, any law that involves theft is illegitimate. Such a “law” is unlawful. It is actually not a law at all; it is not a true law.
We conclude that any laws that compel theft are illegitimate. But since all laws that require theft also go unpunished because they are laws, they also lower social utility. We have two concurrent grounds for rejecting laws that demand theft: they are illegitimate and they lower social utility.
Walter has called a halt to this friendly debate, and rightly so. We each have exhausted the subject for the time being.9:15 am on July 13, 2020 Email Michael S. Rozeff