Sticking it to the manicure, revisited

My post on the freestater being arrested for giving an illegal manicure in New Hampshire unintentionally sparked a serious philosophical debate in the comments section. My old friend Chad Horne raised the level of discourse considerably above what usually takes place on this site. I’ve been too scared, I mean busy, to reply until today.

Chad revised and restated his points at length in the original comments section, where another Chad (Wilcox) entered the fray with a free market riposte; readers might want to look there before continuing here. Below I do my best to pull a few summary quotes from Chad Horne’s comments and then post my own thoughts on the matter.

Chad Horne writes:

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)…

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…

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…

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)?…

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…

What we’re going to need to define in the law is not what the finished product ought to look like. What we need to define by law are certain procedural norms, like good health and safety practices, training requirements, and so on.

Before getting into the debate, let’s first note the truly impressive thing about Chad’s comment: he knows the difference between a polish and a French-style manicure. I didn’t even know the latter thing existed. This is a feminine side of Chad that never got expressed during our years at Vanderbilt.

More seriously, there’s a fundamental reason I don’t expect Chad and I to ever come to a full agreement on this. He finds metaphysical arguments compelling and necessary, while I’m more of a pragmatist. So, for instance, he dismisses out of hand the possibility of using a rational basis test for assigning liability. I think this is often a perfectly reasonable thing to do.

While I’m sure that I have more confidence in markets as a corrective force than Chad does, we do agree that there must be some basis for legal recourse separate from written contracts. The difference is that he thinks this must be spelled out explicitly in the law, while I think that evolving norms provide a much better solution to the problem in a dynamic society. I have three basic reasons for this:

1) No law can account for every novel situation that might develop in human interaction. Unforeseeable consequences happen all the time and sometimes they cause harm to people who have not consented to be a part of the activity that hurts them. That is why we have negligence torts. I’m not an expert on legal history, but I think it’s safe to say that the common law of torts is largely the result of judges making the best decisions they can in the context of sometimes indeterminate precedents. Yes, this means that people sometimes end up in situations where the assignment of liability doesn’t follow immediately from existing law, but lacking omniscience, it’s the best we can do. I don’t see any reason why this approach isn’t sufficient for cosmetology: if a manicurist violates existing norms of sanitation in his field and thereby causes harm to a customer, let the customer bring a tort against him.

2) Legally defined standards are more susceptible to corrupt influences than are evolved norms. Any time the government sets out to regulate some industry, we run the risk that the industry itself will capture the regulatory agency and use it to protect its own interests. This is a basic lesson of public choice theory. The industry in question will have the most information about itself and the most incentive to shape how it is regulated. It will then use its influence to insulate itself from competition and liability. Since evolved norms are the result of countless dispersed, bottom-up decisions rather than the decision of a central, top-down authority, they don’t suffer from this weakness.

3) Regulation stifles innovation. The kinds of services that people offer each other are not a static basket of goods. When new technologies or new demands arise, spin-off industries need to be allowed to develop. They will be hindered if they are forced to comply with burdensome or irrelevant regulations that were put in place years before.

We don’t even have to leave the field of cosmetology to find a case that perfectly illustrates these points. A few years ago, the Institute for Justice filed and won a lawsuit in California protesting its law requiring that African hairbraiders get a cosmetology license:

The California cosmetology law is typical of licensing laws around the country. Enacted in the 1930s, the statute places regulation of all hairstyling under the control of the State Board of Barbering and Cosmetology, which is comprised of five public members and four members representing the professions. The board in turn issues and enforces extensive regulations, including 1,600 hours of prescribed training in approved cosmetology schools and an examination. Schools, instructors, and salons also must obtain licenses. In 1982, the Attorney General issued an opinion finding that hairbraiding is covered by cosmetology licensing requirements, even though cosmetology schools do not teach it and the licensing examination does not test it. The entire system creates a mismatch between regulatory objectives and realities: In the name of protecting public health and safety, the regulatory process licenses people who have no training in certain services, yet forbids people who are proficient in those same services…

Hairbraiders and other natural hairstylists face special barriers under the licensing regime. Neither the prescribed cosmetology course nor the examination covers hairbraiding, but they do require extensive training and proficiency in hairstyles and techniques (such as the use of chemicals) that are unrelated to hairbraiding. The effect is that in order to lawfully offer hairbraiding services, a person must take a nine-month course costing several thousand dollars and pass an examination, neither of which has anything whatsoever to do with the services that will be offered to the public. Nor can hairbraiders viably operate their own training programs: their curricula would not qualify for licensure under the cosmetology laws, nor would their graduates qualify for the licensing examination, even if they are completely proficient in the services they wish to offer to the public. And without a license, hairbraiders cannot lawfully offer their services to the public regardless of proficiency. No separate or specialized license is available for braiding, even though separate licenses are offered for others who specialize in nails, skin, or electrolysis.

As a result, most braiders are compelled either to give up their profession or to operate outside the law-and, ironically, outside the reach of health and safety regulations. The authorities generally have turned a blind eye to home-based salons. However, when braiders attempt to go “legitimate” by applying for capital or opening salons outside their homes, they find their efforts barred by the absence of a license. Obviously, neither entrepreneurs nor consumers are served well by the current system.

I think Chad and I would agree that that law was obviously stupid. I suppose his response would be that we should pass better laws. In contrast, I would argue that the problems that led to the hairbraiders’ case are endemic to the process of regulation; I’m more concerned with process than with metaphysics. Even if it were possible to write laws that account for every possible situation that could arise, I would rather trade a little legal certainty for the freedom to not live in a stifling, anti-competitive regulatory atmosphere. Unless Chad knows a way to ensure that power will always be used for good and noble purposes, I’ll stick to my libertarian guns.

This is not to say that I disagree with all regulation or even all licensing (which is probably the kind of regulation that is most prone to abuse and therefore the most deserving of scrutiny). Some licensing might well be a good idea in a field like medicine, though even there I’d wager that we currently go too far. Rather, my point is that regulation has its trade-offs and we should be ever skeptical of those in power. Given our inescapable lack of omniscience, I’m almost always going to trust the corrective mechanisms of markets, evolving norms, and tort law more than I am the corruptible efforts of the state.


8 thoughts on “Sticking it to the manicure, revisited”

  1. Chad H. wrote:

    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?

    These are legitimate questions. But how in the heck do licensing requirements solve this “problem”? Just because I have a manicuring license does not mean that every customer will be satisfied with the service rendered. We’re back at square one, with or without licenses.

  2. Jacob wrote: I’m almost always going to trust the corrective mechanisms of markets, evolving norms, and tort law more than I am the corruptible efforts of the state.

    The problem here being that markets and tort law are just as corruptible as regulation. In fact, I tend to view tort law as akin to a game of Russian roulette. Sometimes the offending party gets their head blown off, but most of the time they get off relatively scot-free. This may not be the case at the level we refer to here with manicures and the like – a manicurist is about as likely to be able to afford a clever lawyer as the client that’s suing him/her. But the privilege enjoyed by those with deep pockets can all but eliminate the prospect of severe punishment. Furthermore, enough clever advertising can drown out the bad reputation that a product might get from being harmful, thus disrupting the market’s ability to weed out those who provide a harmful product.

    So while I agree with you that manicure regulations and the like are out of hand, I can’t say the same about the regulatory state in general. The concrete nature of the regulatory state seems to function better than any other force to limit the oppressive power of wealth.

  3. Hey Jacob,

    I know your readers are eagerly awaiting my reply (please note the sarcasm), but unfortunately I don’t have time to give a full response right now. I only want to say thanks for the thoughtful post. I think it’s wonderful that you suffered through my long-winded posts to pull out the important points.

    Also, in the interest of academic honesty, and since you didn’t mention it, I want to say that anything of merit in my posts comes from Kant (or, more correctly, from Arthur Ripstein’s reconstruction of Kant). And anything less-than-meritorious is my own damn fault.

    I don’t think we actually disagree as much as I thought we might, which is surprising given that I’m a far-left-wing pinko type and you’re a committed libertarian. And, as you say, the crux of the disagreements we have are likely to be at the level of our most basic premises, so any resolution here is unlikely — either because we’re both pretty stubborn or because we both have pretty reasonable (even if incompatible) views. (I like to think it’s that you’re stubborn. :p)

    I don’t disagree with you that markets can be a corrective force. I also don’t disagree that regulation can be burdensome in a rapidly-evolving society such as ours. And I think it’s true that some (maybe even most) of the regulation people face to day is at best misguided. (Although I probably think this for different reasons than you do).

    I’m somewhat surprised that you’re willing to put your faith in judges making reasonable decisions, rather than in the writing of good laws. That not only strikes me as somewhat anti-democratic, but also more arbitrary. I would think that, even from the standpoint of free markets, having clear legislation that leaves less room for judicial interpretation would be better for consumers and producers alike, insofar as it enables more informed choices and leaves less uncertainty (even if judicial interpretation is something that can’t be gotten rid of completely).

    Anyway, I’ll post a less tentative response later, after I’ve re-read what you say.


  4. [This comment and the next were originally posted by Chad on June 29, then accidentally deleted by me. I’m reposting them today. — JG]

    Welcome back, Jacob. Sorry it took me so long to post the reply that I promised almost a month ago, but when I found out you were in Italy I lost my will to post.

    When I said in my last post above that we don’t disagree as much as I thought we would, that was both true and false. In one sense, our positions are indeed fairly close, for all the reasons I said. However, in another sense, we’re as far apart as two people can possibly be.

    I take it that the most fundamental distinction in philosophy of law is that between substantial and procedural conceptions of justice. I think you know what that distinction amounts to, but because some of your readers may not (and because I enjoy being pedantic), I’ll spell it out briefly.

    On a substantial conception of justice, a society is just to the extent that the actual state of affairs in that society corresponds to some ideally just state of affairs. So, for example, one might say that a society is just to the extent that wealth is equally distributed, or equitably distributed, or optimally distributed, or whatever. (Obviously there are accounts of substantial justice that aren’t focused exclusively on the distribution of wealth — like Plato’s, for instance — but I confess that I don’t understand them, and they’re usually too “metaphysical” to have much purchase in contemporary debates).

    On a procedural or formal conception of justice, on the other hand, what matters is not the actual state of affairs in a society, but the procedures by which that state of affairs comes to be. On this model, it’s not a problem of justice (nor is it a boon to justice) that Bill Gates has $100 billion and I have next to nothing. So long as Bill Gates acquired his wealth through lawful means, and I lost all mine through lawful means, the conditions for justice are satisfied. What matters, in other words, is not the outcome of transactions, but merely the form of the interaction between people.

    To make the distinction more clear, I’ll give an example. Imagine that I go into an electronics store and buy an iPod. On a procedural conception of justice, we would say that this transaction is just if the exchange was a fair one: if I give the price that is asked, and I receive the product I paid for, and if all this is done without deception, coercion, manipulation, and so on, from either party. It is not a problem of justice if I’m unhappy with my purchase, or if the seller is unhappy with the sale.

    On a substantial conception of justice, on the other hand, the exchange would have to pass a stronger test in order to be considered just; we would say that the transaction is just if the outcome is good: perhaps because both parties are happy, or because both parties get what they deserve, or because some better distribution is achieved through the transaction.

    When I jumped into this debate, I assumed that you and I were agreed that procedural notions of justice were the way to go, because substantial notions of justice are silly. It seems to me now that we’re not at all agreed on this.

    One common argument against substantial conceptions of justice is an argument from human fallibility. Because humans are not omniscient, laws are likely to have unforeseen concequences. Thus, if we inact laws that attempt to bring about some desirable state of affairs, those laws are likely to bring with them all sorts of undesirable effects, taking us further and further from the very goal we’re aiming at. Thus (the argument goes), we ought to forget about trying to bring about some substantial good, and move to some procedural concetion of justice, where we don’t worry about outcomes but only about the formal character of human actions (their freedom from coercion, for instance).

    I originally thought that you subscribed to this argument, but I see now that you don’t actually go all the way with it. Your view seems to be that, because laws tend to produce unforeseen consequences, we should have as few laws as possible, and *this* will tend to produce the most (substantially) just society possible. (And I assume that “the most just society possible” corresponds to the society where everyone has the most/newest/coolest stuff, if I may be glib).

    So it seems to me that we disagree at the most basic level. I would give priority in all matters to procedural justice (which means, when necessary, regulation, as I argued in the manicure case) — even if that means a less efficient society. The reason for this is basically a Kantian one: if you think that the purpose of law is to bring about some just outcome, then you are treating people as means to some end. You, however, are more “pragmatic,” and I assume this means that you are not as worried about procedure, so long as the outcome is desirable.

  5. In other words, it seems to me like you must think one of two things: either you think justice *is* what the market does (and thus the only purpose of law is to make sure the market operates normally), or you think justice is an utterly vacuous concept altogether.

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