Sticking it to the manicure

A freestater has been arrested in New Hampshire for giving an illegal manicure:

Newmarket’s Mike Fisher was arrested outside the office of the state Board of Barbering, Cosmetology and Esthetics on Monday after he gave a manicure without license. A member of the Free State Project, Fisher, 23, knew his arrest was imminent even before he pulled out his emery board but persisted in order to take a stand against government regulations.

“This is not for me, this is for others,” Fisher said, surrounded by about 20 fellow free-staters. “They have licensing for everything and I think it’s out of control. This all about bringing debate.”

Concord police arrested Fisher shortly before 1 p.m. and charged him with giving a manicure without a license, which is a misdemeanor carrying with it a penalty of a fine up to $1,000. It is illegal to perform a manicure — and various other procedures — without a license according to state law (RSA 313-A:9)…

Fisher has been in contact with the Board of Barbering, Cosmetology and Esthetics for the past few weeks, protesting the licensing process. When Fisher accepted $1 from fellow free-stater Kat Dillon of Keene and began buffing her nails, inspectors from the board informed Fisher he was in violation of the law.

When he ceased, Concord police were called. Police arrived and witnessed Fisher “actively engaged” in giving Dillon a manicure.

It’s humorous, but perhaps libertarianism could use more of this kind of civil disobedience. Regulation is boring. We can talk about it all we want, but we’ll have a hard time finding an interested audience. Mike Fisher’s protest manicure has won him a spot in the press and some cogent quotes in the paper. Kudos to him. Raise thy emery boards in solidarity.

[Hat tip: Ceaf Lewis, again.]

Comments

  1. Jay says:

    Ironic how I just read this post after tonight’s Daily Show, where the featured correspondent piece was with a libertarian in New York who started a “Guns for Tots” program to hand out toy guns to kids in Harlem as a response to the NYC City Council’s move to ban toy guns. As you would expect, they made every attempt to make the guy look like an ass.

  2. Sarah says:

    Jaro, you should be ashamed to call yourself a metrosexual. Licencing for manicures and pedicures is serious business. Improperly cleaned manicure utensils can result in infections and the need for surgery. And in like, fungus infected seriously ugly nails. Ew.

  3. Mike Fisher says:

    My protest covered all aspects of the health concerns of a manicure. It required less than 30 minutes on Google to learn all major nail and skin conditions to watch for and to learn all sanitary procedures to perform manicures.

    The protest is against the state’s regulations requiring $5,000+ worth of school to perform a manicure.

    The most common excuse I hear for government regulation is the health concern, but the government is not necessary to protect your health. In fact, the more the government protects people from their responsibilities, the more irresponsible they become. And people wonder why most adults in our society are so irresponsible? lol

    Caveat emptor. Buyer Beware. Wisdom as old as time itself.

  4. Jeff says:

    Beauty licenses do cause problems, especially as concerns impoverished entrepreneurs who can’t afford the degree and the license but can afford a pair of scissors or an emery board or what have you. I remember being first introduced to this problem by Mike Badnarik’s website during the 2004 campaign.

    Of course, those in favor of the regulations have a point – we want to limit the danger of infection caused by ignorant beauticians. Yet I still find it amusing that it’s easier to get a driver’s license than a beautician’s license. You can kill someone a lot more easily by not knowing how to drive than by not knowing how to cut hair.

    I propose, then, making the beautician’s licensing process as minimal as possible. Perhaps just a written test on safety issues is necessary. Most importantly, the process must be absolutely free. That way, we can ensure that all practicing beauticians are at least minimally educated and that the monetary barriers for entrepreneurs no longer exist.

  5. Jeff says:

    …not that the people who make policy give a damn what I say. But it’s fun to dream.

  6. Chad Horne says:

    Hi Jacob! I’ve been reading your blog regularly for a while now, but this is the first time, that I’ve felt I have something meaningful to contribute to the debate. (Or, in talk-radio shorthand: “Dittos, Jacob! Long-time reader, first-time poster.”)

    I apologize in advance for the length of the post, but it’s a short version of a paper I just wrote, and I think the argument is interesting enough to force upon y’all. I hope the fact that I’m making this argument about such a seemingly frivolous topic as the giving of manicures doesn’t detract from its force.

    I want to respond to Mike’s comment above, because I think two claims are being confused here. The first is the merely empirical claim, which says that $5,000 is an unreasonable amount to force someone to pay to be certified in an occupation that requires few real skills. You don’t need to be a libertarian to agree with that claim; New Hampshire’s cuticles are not that precious. But the second, much stronger claim, is that the manicure business is one that doesn’t require state regulation at all. This is a claim that rests on a certain view about the structure of interaction between free and equal private persons; it is, in other words, a metaphysical claim, and it is one that I want to address.

    Libertarians seem to have the view that consensual interactions between private persons are an obvious and unproblematic thing (and a good thing at that). On their view (I take it), the purpose of government is only to protect these relationships; that is to say, the purpose of government is only to intervene in cases where one party attempts to treat the other in a way that is nonconsensual (e.g., to prevent stealing, fraud, et cetera).

    I take it this is a view derived from Locke; because it is “inconvenient” for each to have to protect his property from every other in a state of nature, we form a social contract and institute civil laws to do this work for us, even though each person could (in principle) do this work on her own, if only others were sufficiently good-natured or if only she had means enough to protect herself from maltreatment.

    The problem with this view, for me, is that it neglects to consider certain structural problems about the nature of consent. How, in the “state of nature,” do we determine exactly what has been consented to? How does the consumer determine whether (for example) the manicure he received is the manicure he contracted for? How does the manicurist know when he has fulfilled his contractual obligation to the consumer?

    I take it as obvious that there are cases where a consumer can be (legally) wronged by her manicurist. There can be cases where the manicurist fails to fulfill her end of the contract (either by giving the client an unattractive manicure, or by physically harming the client, say, by giving her an infection). There can also be cases where the client fails to discharge her lawful obligation (by failing to pay the price that was agreed).

    From the standpoint of law, the response to this cannot simply be, “don’t go back to that manicurist” or “don’t work on that client again” (just as the response to “I got robbed” cannot be “don’t go back down that alley”, or the response to “botulism killed my son” cannot be “don’t go back to Jack in the Box”). There must be means for legal recourse — a means for the client to demand payment for damages, or for the manicurist to claim his rightful compensation.

    This entails that there must also be means for determining what was consented to in the manicure-client exchange. (In other words, a judge can’t just take the client’s word that she contracted with the manicurist for a french-style manicure, and she only got a polish).

    Remaining within the framework of mere consent (i.e., absent state regulation of the manicure business), I take it that there are two possible answers to this problem. We could ask what the parties actually did consent to, or we could ask what rational persons could reasonably be expected to consent to in a manicure situation. This latter answer is unsatisfactory, first because it places too many restrictions on what free people can rightfully do (as if people only have the protection of law when they act “rationally,” whatever that means); it would also put libertarians in a debate with certain forms of utilitarianism, a debate that I suspect they would prefer to avoid. Thus we can only go with the first answer, i.e., what the parties involved actually consented to.

    But this presents all kinds of problems. There are, first, certain problems of so-called “convenience.” It would take an incredibly long time to conclude a contract about a manicure, because each party would have to spell out in excruciating detail what he expected of the other (the one in terms of health precautions and aesthetic preferences, and the other in terms of guarantees about payment); there would also have to be agreement about what forms of legal recourse are open to each party.

    These in themselves are legitimate worries (and, I take it, legitimate reasons for state regulation of manicures), but even deeper is a structural concern about the nature of consent itself. Consent is not in itself a source of legal obligation; in other words, the idea of “right” and “wrong” (in the legal sense) is prior to the idea of consent. When I am acting rightfully, I do not need your consent; in such a situation, your consent is (at best) superfluous. We do not worry about consent, except in cases where what I do would be wrongful absent your consent. So, for example, if I were to make use of your emory board without asking you, that would be wrong (insofar as I use something that belongs to you for ends that you do not share). If you consent to my use of it, then that use is made right (because you make my use of it your end); if you do not consent to my use of it, then you are entitled to take legal action against me, to seek redress for the damage I caused you (i.e., for the wrong I did to you).

    Futher, if you do seek redress against me, a court of law does not ask what redress one or both parties could or would consent to; instead, the court asks what would right the wrong. So, if a court determines that the wrong in the emory board case would be made right by my paying you for the emory board and for whatever business you lost while the emory board was in my possession, it does not matter whether you or I “consent” to that judgment. It does not matter whether I consent because I committed a wrong and my victim is entitled to redress, regardless of what I happen to think about it. And it does not matter whether you consent to that redress, either; whether you think you are entitled to more or less than the judge awards is irrelevant, because you are entitled only to the redress that would put you back in the situation you were in before you were wronged (i.e., you are entitled only to the redress that would “right the wrong”). Put simply, legal redress is not about what would make one or both parties happy (“if i make him pay you a thousand, would that be enough?”); the law is about setting things right, not about making people happy.

    To bring this back to the question of the state regulation of manicures, it seems to me obvious that we need positive laws in order to determine what counts as “right” and “wrong” when it comes to the treatment of nails (and this especially because health concerns are involved). It is not a matter of securing some kind of small monopoly for manicurists, or gouging cosmetology students for all they are worth. It is not a matter of state interference in a perfectly unproblematic private relationship. It is a matter of setting the legal bounds of this relationship: determining what is and what is not a wrong in this case (something that you or I cannot decide privately, because right is not a matter of aggregating preferences), and then securing to each party the appropriate means for seeking redress (another thing you or I cannot decide privately, because my private judgment is not enough to place a legal obligation on you, and vice versa).

    One way in which this happens to play out in New Hampshire (and in most states, I take it) is through a process of licensing manicurists. This seems to me a perfectly legitimate way to ensure to both manicurists and clients a set of clear rights and obligations.

    The point is not that we need regulation to protect against the wrong of infection, or the wrong of ugly nails; the point is that we need positive laws in order to determine what counts as wrongs as at all, and to make the seeking of redress possible. Although $5 grand might be a bit much for a manicure license, a manicure license itself is not a threat to liberty; it is (one) way for securing the possibility of rightful interaction between persons under law.

    I apologize again for the long-windedness. This is something I’ve been thinking about for a long time. (Not manicures, but the philosophy of law.)

    Lest anyone think these ideas are original, they come straight out of everyone’s favourite liberal, Kant. A good introduction to Kant’s legal philoosphy is available at:
    http://www.law.utoronto.ca/documents/Ripstein/authority_coercion.pdf
    There you’ll find a knock-out argument against libertarianism. :p

  7. Chad Horne says:

    Oh, and as long as I’m here, re: The Daily Show… it’s not that The Daily Show ‘made the libertarian gentleman look like an ass. He IS an ass.

    He was giving toy guns. To kids. In Harlem. Playing with a toy gun in Harlem is a good way to get yourself shot. With a real gun.

    Even apart from the obviously racist overtones of the guy’s act, he was making a perfectly stupid point in an incredibly stupid way.

    If the libertarian position is nothing more than “laws are bad,” then remind me again why any reasonable person should even talk to a libertarian, let alone take him seriously?

    And if he’s going to make his point by ignoring the wishes of the very people he’s trying to “help,” then how is his act any different from what the NY City Council is doing? Oh yeah… the difference is that the NY City Council’s act is legitimate, and his isn’t.

  8. Jacob says:

    Chad! Thanks for the comment. You raise the level of discourse here, response forthcoming.

  9. Chad Horne says:

    Jacob, to help you in refuting me, let me make my main point in a more straightforward way.

    If we stick to the framework of ‘mere consent,’ I claim that it is impossible to distinguish between harming someone (i.e., setting back her interests) and wronging someone (i.e., violating her rights). Obviously not everytime I harm someone is that someone entitled to legal redress; likewise, not every time I wrong someone do I harm them.

    In the article I linked above, Ripstein gives the following example: If I decide to picnic in your house while you are away, and without your consent, I wrong you. Even if I bring my own food, clean up after myself, indeed leave no trace whatsoever that I was even there (thus even if I do you no harm), what I do is nonetheless wrong, because I help myself to the use of a thing to which I am not entitled. And it’s not wrong because you did not consent; it’s wrong because it’s YOUR house. (In other words, to say that consent would make my picnic right is not the same thing as to say that the absence of your consent is what made it wrong; what made it wrong is property right itself, that is, your exclusive right to determine how your stuff will be used).

    From the other side, say I have a magnolia tree in my lawn, and it casts a large shadow over your property. If you have become accustomed to picknicking in the shade of my tree, I would do you harm by cutting it down (i.e., I would set back your interests), but I would not wrong you, because you are not entitled to my shade. You may use it if it’s there, but you may not complain if it’s not. I do not require your consent to cut down my tree, even though my doing so would cause you harm.

    I argue that the distinction between wronging someone and merely harming them cannot be made sense of if we think that consent is prior to right. If you think, as I suspect you do, that what makes interactions between people rightful is mere unforced consent, then you’re not going to be able to make sense of my picnicking examples above (without building a lot of fancy things into the notion of consent). I only require another’s consent when I am about to do something that is (already) wrongful.

    So, again, to bring this back to the state regulation of manicures: What the libertarian owes, I think, is an account of how the manicurist-client exchange could take place without state regulation. I’m not asking how it’s possible for me to give you a manicure, or for you to give me money; that we could obviously do. I’m asking how it’s possible for the two of us privately to determine what a “right” and “wrong” manicure is (as opposed to a “good” or “bad” manicure)? My payment cannot depend on whether you’re “happy” with my work; you might be insanely picky, for instance. Likewise, you can’t be forced to pay for a spit-polish just because I choose to call it a “manicure.” How can you be ensured that you’re getting the service you contracted for, and how can I be sure that I’m going to get the payment I’m owed? And by “how can we be sure,” I mean how can we each have recourse to coercive laws, laws that would either compel you to pay me for my services (if you refuse), or for you to compel me to compensate you for the damages I caused (if, say, I gave you an infection through my negligence, or if i just gave you an exceptionally ugly set of nails)?

    Is every manicure shop going to have to hire a lawyer to draw up a special contract, to be signed by every client, to define the terms of the arrangement and the conditions of payment? Would this contract have to be specific to each shop, or perhaps to each service, or possibly even to each client? And is each client going to have to hire a lawyer to review the terms of the contract, or is he going to sign it in good faith? Finally, even if these contracts were drawn up and signed, what if one of us has to bring legal action against the other? Is the judge going to know a good manicure when he sees it?

    Sorry for another lengthy rant, but I wanted to make clear exactly what my beef with libertarianism is. (This could turn into an all-out philosopy throw-down, transcendental-style). On Kant’s view (which I think is mine), state regulation isn’t a threat to freedom, because absent state regulation there is nothing but your and my arbitrary will, and that’s not freedom at all. If my getting paid for my services depends on whether you’re happy with my manicure, then I am essentially a slave; my freedom is completely dependent on your choice. Likewise, if your getting a good manicure depends on what I think a good manicure is, you’re not free, either. We need laws to secure to each what is his right, and to make it possible for our interaction to be uncoerced — that is, for our interaction not to depend on your or my unilateral choice, but on a choice united under law.

  10. Other Chad says:

    Chad, glad to see you finally putting your educated dialogue — which I have long respected — to a more public use! Realizing the last post in this comment field was nearly two weeks ago, I will simply respond with a brief comment/question should anyone else happen to traverse these depths again.

    I believe I’m clear on your central point: the libertarian bears the burden of proving how a purely private exchange between buyer and seller ensures that the product received is of a satisfactory quality to a purchaser who may have imperfect/insufficient information to determine its condition. Is it not the libertarian position that the very reason market forces are held to such a high regard is because they help to address this problem better than government intervention?

    As a rule, I would not say that private transactions are dependent on happiness. Instead these transactions are preapproved arrangements (or “contracts”) that are based on the information available at the time, which some outsiders — be it you or me or a handful of ill-informed government legislators with lobbyists tugging at their ears and pockets — may or may not deem sufficient but which the actual purchasers must have deemed sufficient at the time of transaction.

    Today I have the choice between two licensed manicurists who both meet the minimum standard, but why would one get more business than the other? Because over time a combination of customer service, hearsay, product referrals, and marketing result in a higher demand for one manicurist over the other. This process requires that some people get a lesser manicure in order that we may learn by comparison, but by and large the process achieves a stratified result. Is it conceivable that marketing bears a disproportionate influence on the product perception? Yes. Is it also conceivable that counter-marketing by influentials results in a perfectly acceptable product being banned by legislation or restricted by regulation? In my judgment, yes to an equal degree.

    To stave off another of the “joining the Dark Side” references you’ve made in jest, one of my chief concerns with libertarianism is the willingness to leave death, dismemberment and bad manicuring in its wake in its quest for a privately-transacted utopia. But I’ll kindly request additional information from you before disavowing libertarianism altogether on the grounds of an example such as an unimpeded transaction between manicurist and customer that seems quite far from unreasonable in my view.

  11. Chad Horne says:

    Hey “other Chad,”

    I always thought I was the other Chad; I guess it’s all relative.

    Anyway, I’m not sure if anyone’s actually going to read this, but let me reply to your point. I do not deny that, all else equal, free competition among producers will tend to produce more and better choices for consumers. If anyone ever attempts to deny that, you have my permission to ridicule them mercilessly.

    My point is not about making sure people get “good” manicures. I fully agree with you that, over time, the market will drive the bad manicurists out of business and will leave us with a nice continuum of acceptable salons, ranging from bargain-basement shops to “oh-my-god-you-paid-how-much-for-that” boutiques. “Good” manicures are not a problem; what I’m worried about, rather, is how people are going to get “right” manicures.

    My point is about a certain kind of structural indeterminacy in private exchange. I’ll try to spell it out one more time, although I might just be repeating what I said before. (Try imagining me pounding my fist on the table this time for emphasis; it won’t make the point any better, but maybe it’ll be more convincing :p).

    I’m asking you to think of the problem of manicures in terms of the rightfulness or wrongfulness of the transaction itself (that is, in terms of the form of the transaction), and *not* in terms of one or both parties being happy with the results (in other words, not in terms of the consequences of the transaction). As I said, the law is not about making people happy; the law is about making things right. The question has to be, first, how can one party know when the other has fulfilled her end of the deal, and, second, when one fails to fulfill her end, how can the other party pursue lawful redress?

    The market responds to a manicurist who consistently cheats his clients by giving him a bad reputation; this leads to an eventual decline in business. The market responds to a client who fails to pay for her manicure by making sure that she is refused service in the future. That’s a perfect response in terms of economics, but, from the standpoint of law, it simply isn’t adequate. As I said in my first post, this is tantamount to the police saying to someone who just got robbed: “well, don’t go back down that alley again.”

    No! (*pounds fist*) If a client refuses to pay for a manicure, or if a manicurist gives a manicure so poor as to be no manicure at all, it must be possible to seek redress in a court of law. When the manicurist-client relationship is entered into, the client acquires a _right_ to a manicure, and the manicurist acquires a _right_ to compensation. If one’s right is not respected by the other, then the one needs a way to force the other to respect that right (i.e., to force the client to pay for the services he received, or to force the manicurist to fix the damage he caused).

    Now, lest you libertarians get upset about how lawsuit-happy we liberals are, consider the alternative: the alternative is that any manicurist could cheat any client at any time, as long as he’s willing to pay the cost of “bad reputation” (which might, in some cases, be no cost at all — say, if the client is from out of town, or if the client isn’t one to complain). Likewise, clients could refuse to pay for services all the time, limited only by the number of shops they’re willing to get kicked out of. That’s not justice at all.

    Once we’re looking at things from the standpoint of right and wrong rather than the standpoint of happy or unhappy (i.e., the standpoint of justice rather than the standpoint of markets), we face the problem of indeterminacy that I’m talking about. If a client is unhappy with his manicure, and he decides to seek redress in a court of law, we face a problem of judgment. Someone has to determine whether the manicure the man got is right or wrong (i.e., whether the manicure is so bad as to constitute a breach of contract). It can’t be the client himself; he’s unhappy, sure, but there are lots of things that produce unhappiness but aren’t wrong. (Like philosophers, for example ;p). And it can’t be the manicurist; obviously he thinks he did right by the client. So we need the standpoint of the third party, the judge.

    If the judge is going to rule, he’s going to need to know what is right or wrong when it comes to manicures. That does NOT (emphatically NOT) mean that the judge needs to consult the Queer Eye for the Straight Guy team to find out which manicures are fashionable and which are not. It means, rather, that he needs to consult the law, to see if the service rendered is within the bounds of right.

    This means that the state needs to define what counts as right and wrong when it comes to manicures. This will include things like what health and safety precautions the manicurist is required to take, what kind of training he’s expected to have, and so on.

    You seem to think I’m worried about protecting consumers from getting ugly manicures. That’s not it. Obviously some manicure shops are going to be better than others, and every so often someone’s going to get a nail job they’re not happy with. C’est la vie. My point is that there’s a difference between being *unhappy* with your manicurist, and being *wronged* by your manicurist. In the former case, you learn your lesson and get a new manicurist; in the latter case, you sue your old manicurist to pay for the damages caused by the amputation of your little finger. That’s a big difference.

    My point, further, is that we’re going to need laws to determine the line between a right and a wrong manicure. These laws will be to some extent arbitrary, and they may vary from state to state. Maybe what’s a wrong manicure in New Hampshire is just fine in Vermont. But if we don’t have laws at all, the client is completely at the mercy of the manicurist in terms of what kind of service he’s going to get, and the manicurist is completely at the mercy of the client in terms of whether or not he’s going to get paid. Without laws, again, there’s nothing but your and my private judgment, and that’s not sufficient for justice.

    As far as “good” and “bad” manicures go (i.e., manicures that make the consumer happy or unhappy), that’s something the consumer will have to determine for herself. That will depend on things like how finnicky the consumer is, and how much money she’s willing to spend. She might have to shop around a bit before she finds a good salon.

    But when it comes to right and wrong manicures, that’s a different story. It’s not that the client shouldn’t have to worry about right and wrong, as if we’re protecting the poor, stupid customer from the evil, selfish manicurists of the world; no, it’s that it’s actually _impossible_ for her to determine right and wrong on her own. And it’s equally impossible for the manicurist to do this, for exactlyt he same reasons. We need a third party.

    “The customer is always right” is good business practice, but it is not, and could never be, a law. If a manicurist decides to let a client go without paying because she’s unhappy, that doesn’t meant that the manicurist doesn’t have a right to be paid. It could be that the manicure was perfectly good, and the client was extremely picky. In such a case, the manicurist could force the client to pay (by taking her to court), and he would be within his right to do so. It’s usually better business practice to let something like that slide, of course; if you get a reputation for taking your customers to court, your business is likely to tank. But justice demands that the option nonetheless be available.

  12. Chad says:

    Welcome back to the depths of Jacob’s blog!

    I see your point — but actually, this is one of those areas where I think the libertarians make a pretty solid case. Let’s take the first example: a situation in which both manicurist and customer are happy with the transation but the manicure was in fact incorrect or otherwise poor. I would argue that, if both sides of the transation are happy, the “righteousness” or “accuracy” of the transaction is rendered subjective and irrelevant and therefore inconsequential to the success of the transaction in a market-based society. Success is happiness as far as this type of service is concerned.

    Let’s take it up a notch. Let’s suppose the manicure did some kind of bodily harm to the customer. In that instance, the customer could sue for redress of injuries — a legal fight that would be perfectly acceptable under just about any version of libertarianism because it concerns actual harm done. Moreover, each consumer in society would have her own degree of tolerance at accepting bad transactions in general before she began demanding written contracts prior to performing any service in situations where the risk of having a bad experience is unacceptable.

    Now, we are both fully aware that there are transactions far more important than a good manicure, so let’s take the same example using something like a major surgery or a legal defense instead of a manicure. In these instances, I think we can agree that whether are not the expected level of quality occurs in the transaction is at least as important as, if not more than, the “happiness” of the potentially ignorant parties. In these same instances, the private sector has developed some highly respected solutions to this potential dilemma in the form of self-regulated associations. Essentially, the professions of relevance are self-unionized; if a professional’s criteria is not sound that person is ostracized and otherwise forceably rendered inconsequential by his voluntarily governing organization. Yes, under this system there are still people in a dark alley giving legal advice, but by and large the system self-restricts.

    According to my understanding of libertarianism, they aren’t lawsuit-averse at all. They’re definitely law-averse in the sense that a law is a collective action imposed on the individual. But they’re practically the opposite of lawsuit-averse in that they would welcome a system in which goods and services were exchanged via private, legally defensible contracts. Where is the justice in a licensing law that prevents aspiring manicurists from entering the business, and may well cause more consumers to be priced out of the market altogether (and others unhappy at higher prices and lower supply) than the number of customers who got a manicure that’s bad enough to make them unhappy but not bad enough for a third party to conclusively rule the manicure damaging? In my view it is not the judge’s job to determine right and wrong, but rather his job to determine whether or not a legal contract or a preexisting law was violated. Is a judge required to have discretion, or judgment if you will, in interpreting difficult cases? Absolutely — but a judge is not the arbiter of right and wrong at the core of his job, because the law is (you’re about to get really mad here) indicative of the collective morality of its constituents rather than a moral authority in and of itself.

    (Note that I wrote the above just before reading your addendum, and I’ve decided for the time being not to rewrite based on new information.)

    Finally, to cool you off after opening that can of worms at the end, I’ll link to something that makes fun of Canada. I’m also going to link to this stuff over at my website so you can be duly recognized for all this writing — at least by my mom and 97 spambots that comprise my entire readership.

  13. Kat Dillon says:

    It has sparked another instance of civil disobedience. Russell Kanning will be attempting to board an airplace w.o ID and without the extra patdown/stripping/etc. He’s doing this partially because of the passage of the Real ID act. Feel free to join us on http://nhfree.com

  14. Chad W. says:

    All right, Mr. Horne, this time I’ll be the one to double-post prior to your response, if only to make one small summarizing point. You separate the concepts of “good” and “right”, essentially stating that an absolute minimum standard for satisfying the implicit conditions of any transaction not only ought to but in fact does exist. On this point we are in agreement. I think we also agree that we as mere mortals cannot gain an accurate understanding of where this absolute minimum lies and, as such, must rely on some external mechanism to at least attempt to approach this standard.

    Where we differ, it seems, is merely the nature of the mechanism we feel produces the most accurate approximation. I believe that by and large the consumer’s perception of satisfaction maximizes the accuracy of the transaction relative to the costs of trying to get closer; in other words, “good” and “right” are not synonymous but they may be treated as such for the purposes of most transactions. It seems you feel that we can do better than the market, perhaps by evolving legislation passed through democratic means or through the intellectual efforts of philosopher-kings.

    It’s a perfectly respectable position; unfortunately I feel that the same outsiders who couldn’t reach an accurate perception of “right” in the first place typically have a difficult time determining whether a proactive solution is “more right” — at least not without the help of the same proponents of proactivity in the first place, who tend to be jaded. But that’s just my opinion.

    It’s likely that I’ll table the remainder of my thoughts until future debates, which I expect to be no less thoughtful and entertaining. Get yourself to D.C. for a visit when you get the chance!

  15. Chad Horne says:

    “Other” Chad,

    I agree with you that, for all practical purposes, “good” and “right” are usually the same thing.

    But my claim is not that it’s the judge’s position to define what’s “right” and “wrong;” my worry is precisely to prevent that from happening. If we have clear guidelines for what a “right” manicure is, then the judge’s role in interpretation will be somewhat limited.

    Perhaps there is some confusion over my use of the words “right” and “wrong” as opposed to “good” and “bad.” When translating Kant, scholars use the word “right” to translate the German word “Recht,” which can be used in lots of different ways, but is loosely synonymous with our word “law” (althought there’s also another German word for “law,” so it gets confusing). The correct adjective for an action that’s in accordance with law would be “rightful,” actually, but because I’ve been speaking loosely (lazily?) I’ve just been saying “right” most of the time.

    One could go through my posts and systematically replace “right” and “rightful” with “lawful” or “legal,” and “wrong” or “wrongful” with “unlawful” or “illegal,” without losing any of the sense of what I’m trying to say. In fact, I don’t know why I didn’t do that in the first place. Probably because I’ve been talking to Kant scholars for too long.

    I am trying to push for a distinction between an action that makes someone unhappy, and an action that is actually unlawful. The market in itself, I argue, doesn’t allow for such a distinction.

    As I said, I agree with you that “good” and “right” (or “satisfactory” and “lawful”) can be treated as synonymous for most practical purposes. But obviously sometimes the two come apart; sometimes I’m unsatisfied with something thta is perfectly lawful. These are the cases (perhaps the only cases?) where the distinction becomes important.

    I’m working on a reply to Jacob in the “revisitation” above, where I’m going to try to explain why I want to think of “happy” or “good” as terms that refer to the *results* of a transaction, while “right” or “lawful” are terms that refer merely to the *form* of the transaction (regardless of the results). I’ll hopefully have that up for tomorrow. I know you’re waiting eagerly!

    Regarding the D.C., I might be able to come down for a visit at the end of the summer; I’m going to be off for most of July and August, so assuming I can stop reading blogs for long enough to get all my work done, I’d like to steal my parents’ car for a road trip or two at the end of the summer. Fingers crossed!

    chad

  16. Jacob says:

    Great, I look forward to a reply and hopefully a visit to D.C.

  17. Anonymous says:

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