Things Libertarians Should Believe Or You Would Think

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Jaybird

Jaybird is Birdmojo on Xbox Live and Jaybirdmojo on Playstation's network. He's been playing consoles since the Atari 2600 and it was Zork that taught him how to touch-type. If you've got a song for Wednesday, a commercial for Saturday, a recommendation for Tuesday, an essay for Monday, or, heck, just a handful a questions, fire off an email to AskJaybird-at-gmail.com

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234 Responses

  1. Avatar DensityDuck
    Ignored
    says:

    Libertarians should also be okay with government bailouts of huge corporations because, hey, libertarians luuuuuuuv huge corporations.Report

  2. Avatar trizzlor
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    says:

    Libertarians should encourage everyone to cut off contact from their family because no one deserves your time and the fruits of your labor simply due to chance of birth.Report

    • Avatar James Hanley in reply to trizzlor
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      says:

      True, my brother doesn’t deserve a dang thing from me. On the other hand, it’s good to have solid social relationships, and sometimes family is a good basis for that. And if I want to buy him dinner because I like his company, it’s my money and I can do as I please with it.Report

  3. Avatar Tod Kelly
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    says:

    I just want to say, the thing I’m always saying about how one of the dangers in clinging to an ideology is that it forces you to favor the ideology over the people that the ideology is supposed to help?

    That thing.Report

  4. Avatar Jaybird
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    says:

    I remember Kuznicki once saying “The Metric System”.Report

  5. Avatar BlaiseP
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    says:

    Things Libertarians should believe? Howzabout starting with things they should know. Let’s start with probability and statistics, leading to the derivation of risk. Now there’s a subject wherein their ignorance doth blaze like the noonday sun. This deficiency has led them to certain Astrological Axioms, chief among them the idea that Free Markets, that is to say, unregulated markets, shall solve our every problem. That the need for Regulation might vary with Risk never seems to register with them, though I have preached this sermon often enough around here.

    Ah well. When this subject is brought up, inevitably the discussion is diverted elsewhere. Hey, looky there, it’s a Gummint Mandate trying to eat our children! Report

    • Avatar DensityDuck in reply to BlaiseP
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      says:

      gg on missing the pointReport

      • Avatar BlaiseP in reply to DensityDuck
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        says:

        Which point would that be? This one? discussing other things that Libertarians ought to support in theory but, for some reason, don’t.

        Power has always generated a certain amount of sex appeal, money, too. When it comes to the making of money and whoopie, we might be well-served to impose some rules for power, for all the definitions of power seem to point to the need for some.Report

        • Avatar DensityDuck in reply to BlaiseP
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          says:

          gg on missing the point

          No. Seriously. The purpose of this post is “let’s joke about the Libertarian stereotype”, not “copy-and-paste your rant about how people obsessed with economics don’t understand anything about economics”Report

  6. Avatar Citizen
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    says:

    Exponential functions.Report

  7. Avatar Mike Schilling
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    says:

    When regular people think about bosses coercing their employees into having sex, they say “That’s not right.” When libertarians think about it, they say “But what if having sex with the boss is written into her contract? Contracts are sacred!”Report

    • Avatar Jaybird in reply to Mike Schilling
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      says:

      I think that Libertarians are actually more likely to start thinking about brothels and the like and asking questions such as: To what extent should you allow your workers to say “I don’t want to work with (race) or (gender)?”

      The ones I hang out with, anyway.Report

    • Avatar trizzlor in reply to Mike Schilling
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      says:

      Actually, I think libertarians are concerned with the repercussions of legislating what someone can/can’t do with their body and how the legislators will be held accountable and how the enforces will be restrained and so forth. Given the dark repercussions of such legislation that we see on a day to day basis – in real life – maybe they’re thinking that legislating voluntary behavior isn’t worth the risk. Maybe they’re thinking that we can try to prevent a desperate employee from being coerced by their boss by some other means, like working against employer collusion and for increased labor mobility.Report

  8. Avatar DensityDuck
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    says:

    Oh, another one: Racism is totally okay and there’s nothing wrong with it whatsoever.Report

  9. Avatar M.A.
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    says:

    Canada has a higher level of economic freedom than the USA.

    Canada has a higher level of business creation and entrepreneurship than the USA.

    This is in no small measure due to the FREEDOM and LIBERTY created by the universal healthcare, which allows them to take the risks of starting businesses without fear of losing health coverage for themselves or their families.

    Libertarians ought to support it. Good luck finding any who will.Report

    • Avatar Jaybird in reply to M.A.
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      says:

      I support Canada! I have troubles with their Human Rights Courts and their ideas about freedom of speech leave much to be desired but I could easily see how someone would prefer Freedom (Canadian Variant) (despite Socialized Medicine) to Freedom (American Variant).

      Harper is no slouch, I tell you what.Report

    • Avatar Jonathan McLeod in reply to M.A.
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      says:

      Actually, I support our (Canada’s) health care system, generally. I’d like to see more innovation at the provincial level, and I think there are a ton of problems that need to be worked on, but I certainly prefer our system to the U.S. system (even if we could stand to learn more from the U.S. model, pre- or post-ACA).Report

  10. Avatar Chris
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    says:

    Libertarians should obviously believe that I can build and, should my home be threatened by burglars or S.W.A.T., or even overzealous Mormon missionaries, use thermonuclear weapons. I call this the incinerate your ground doctrine.Report

  11. Avatar Dan Miller
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    says:

    I actually can’t figure out why libertarians are OK with airplanes flying over my house at 32,000 feet. They’re violating my air rights, and possibly even carrying away rainwater that would have otherwise fallen on my rain jug! As such, I demand compensation from United and hope Jaybird will back me up on this.Report

  12. Avatar b-psycho
    Ignored
    says:

    Two things I wish it were more common for libertarians to believe:

    1) There’s nothing inherently wrong with organized labor.
    2) State intervention in favor of business, even big business, is a thing. Arguably a bigger one than the opposite.Report

  13. Avatar Stillwater
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    says:

    Jaybird, is this post really the best you could do in response to our previous discussion? After I presented actual evidence and all of a libertarian view you insisted was a strawman, I figgered you’d at least take the topic *somewhat* seriously. But no. After all our previous conversations about the topic I suppose I shouldn’t be surprised.Report

    • Avatar Jaybird in reply to Stillwater
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      says:

      Dude, it was late at night and Maribou had me run all of the errands that I didn’t have to run last week. How’s this? Tonight, Maribou will be at her bookclub and I will have the run of the basement.

      I can throw together a minor essay that uses the links you provided… but, to be honest, I’m still not thrilled with the argument that libertarians are okay with X because they oppose X for different reasons than other people oppose X.

      Hell, if you have time, write the post from your perspective that you’d like to see. We’ll guest post it. (Include the picture you’d want in the upper corner.)Report

      • Avatar Jaybird in reply to Jaybird
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        says:

        Out of curiosity, if I set it up using what Bill Clinton allegedly did to Paula Jones, would you see that as a strawman of something that Libertarians ought to, in theory, be okay with while it’s something that we know Liberals would condemn given the opportunity to do so or would that be too inflammatory a place to start?Report

        • Avatar Stillwater in reply to Jaybird
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          says:

          Well, if you want to discuss the issue we were discussing, a good place to start would be the quotations I included in my comments from yesterday. Or even my summary of the issue and the dilemma workplace harassment presents to libertarians, a summary which was neutral on the whole “condemning libertarians” issue I might add. Of course, write about what ever you think it is interesting, whether it’s related to what we were discussing or not.

          But really, the thing I’m bristling about is that you accused liberals of constructing a strawman wrt libertarian views of workplace harassment, and when I presented evidence of libertarians actually arguing for those views, this “mockfest” post was your total response. And to be clear, the thing that specifically bothered me is that you initially denied that libertarians could hold those views so they must be strawmen, and then deflected further discussion of the topic in this post by furthering your previous “strawman” argument. That just strikes me as intellectually dishonest.Report

          • Avatar Jaybird in reply to Stillwater
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            says:

            But, Stillwater, you didn’t present evidence of libertarians actually arguing for those views.

            Your example, that you yourself provided, follows:

            ————————————–

            And here’s a quotation with some commentary about workplace coercion and contracts from Jessica Flanigan (libertarian at BHL) and some commentary on it from Chris Bertram (not a libertarian) at CT:

            Flanigan, though a philosopher, is also a paid-up libertarian, so, I think a fairer target. Here’s her reaction at BHL to the case:

            “My intuition is that something like (b) [abrubt change in job description] makes sexual harassment wrong. In these extreme cases employees do have the authority to decline certain tasks that employers demand. In this case the employee may say ‘you lead me to believe that the job did not require prostitution, so I have been deceived.’ Because it is wrong to deceive people, it is wrong to radically change a person’s job description, and so threatening to fire someone for refusing to comply with an impermissible demand is also impermissible.”

            Naturally, I’m relieved to discover that Flanigan does think that “fuck me or get fired” is wrong. But the explanation which her libertarianism pushes her to – “sex wasn’t in the contract” – still strikes me as bizarre.

            http://crookedtimber.org/2012/05/29/fuck-me-or-youre-fired/

            Somewhere in all that you’ll find the argument you’re insisting is a strawman.

            ——————————————–

            The example that *YOU* provided as libertarians actually arguing for those views was a libertarian actually *NOT* arguing for those views and then you gave me a link and told me to look in there for the argument that I asked you for.

            When I asked for clarification, you pointed out that the person who argued that this stuff was wrong was arguing that it was wrong in such a way that it could, in theory, be okay… even though she did not argue that it could, in theory, be okay but, instead, said that it was wrong.

            To be perfectly honest, I think that most libertarians would agree that sexual harassment is wrong and that violations of personal privacy are wrong. The thing that you will be able to point to is Libertarians delighting to think about this sort of thing and coming up with situations dealing with sex workers and exploring the cans of worms such as “can a topless bar owner ask a woman at tryouts to expose her breasts?” or “can a brothel owner fire a worker for saying that he or she reserves the right to refuse service to people of a particular racial background?”

            I *STILL* have not seen any evidence that a libertarian has argued what has been argued they’ve argued, only given evidence of them *NOT* arguing it and then told to look for the evidence myself.

            Don’t take my word for it: the thread starts here.

            I went on to ask the following:

            Correct me if I’m wrong but isn’t that saying “you shouldn’t think it’s wrong for those reasons, you should think it’s wrong for these other reasons” being used as justification for arguing that those people argue the opposite of “it’s wrong”?

            You went on to explain:

            JB, Flanigan is providing an analysis in her comment. She is proposing that the thing that makes workplace harassment wrong isn’t the harassment part, but the contract violationpart.

            On a strong reading (the only one consistent with her argument) her analysis would be that workplace harassment is impermissible if, and only if, it’s not included in the voluntarily agreed to contract. So in principle, employer harassment is permissible if some conditions are met.

            Which is, to my eyes, arguing that the person who argued that employer harassment is wrong was not arguing that employer harassment would always be wrong under all circumstances… and thus, an example of a libertarian arguing the position that, so far, we haven’t found evidence of libertarians arguing for.

            I’m still of the opinion that the best example you’ve provided of someone arguing the position that harassment is okay is someone who is arguing that harassment is not okay.

            Want me to find an example of a prominent Liberal saying that what Clinton allegedly did to Paula Jones was, in theory, not that bad? Do you think I’ll find a quotation more deferential to people with power than “Because it is wrong to deceive people, it is wrong to radically change a person’s job description, and so threatening to fire someone for refusing to comply with an impermissible demand is also impermissible”?Report

            • Avatar Jaybird in reply to Jaybird
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              says:

              And I read all of the comments in the link you provided.

              I didn’t see any libertarians arguing the position that you’d think libertarians would argue. I saw many assertions that libertarians would argue this (and some awesome assertions about how libertarians don’t have a problem with such things as rape so long as the government isn’t doing it) but an example of a libertarian arguing that sexual harassment in the workplace would be okay? I didn’t find it.

              I even found the opening of Flanigan’s essay:

              “Of course, the employer’s actions are wrong. (Okay, maybe I could cook up a weird scenario where this wouldn’t be wrong, but except in unusual circumstances, it’s wrong.)”

              The problem that Libertarians have is that they’re delighted to talk about this sort of thing to the point where they’re willing to publically acknowledge stuff like “maybe I could cook up a weird scenario where this wouldn’t be wrong” and then they get to put up with arguments where the parenthetical statement they make because they’re trying to be intellectually honest is held up as the argument that they’re *REALLY* making while, at the same time, statements such as “Because it is wrong to deceive people, it is wrong to radically change a person’s job description, and so threatening to fire someone for refusing to comply with an impermissible demand is also impermissible” are given as examples of Libertarians arguing that sexual harassment is okey-dokey.Report

              • Avatar Rod in reply to Jaybird
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                says:

                JB,

                While I haven’t seen any (serious) libertarians argue that workplace harassment is OK, what I have seen libertarians argue is something along the lines of a Coasian solution. That was basically the position held by that Martin Brock dude (who, in full disclosure, is just another goober on the internet, like myself, and not a “respected libertarian scholar” or anything). That it was more harmful for more people for the employer to be legally punished than it would be for the harassed employee to simply seek other employment.

                Jessica Flanagan (who I really like, and enjoy reading her stuff, BTW) advocates for a Universal Basic Income. Her theory then is that with a UBI in place it would be much easier for someone to exit an unpleasant or abusive work situation, thus obviating the need for an explicit legal regulation of the employer’s behavior.

                They had several main-page posts on the general subject of workplace coercion over at BHL and the overall sense of it that I took away (and maybe I misread it; I admit I have my own biases) is a general reluctance to have the government do anything about anything, even in the face of obvious power disparities and lack of exit options. Unfortunately, the main posters (like Matt Zwolinski) tend to couch their posts as a sort of long question often without coming to a conclusion of their own on the topic. Just throwin’ it out there and soliciting opinions.Report

              • Avatar Jaybird in reply to Rod
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                says:

                Yes, but saying “X and Y are both bad, but Y is worse” is not saying “X is okey-dokey” and arguing that Libertarians are saying “X is okey-dokey!” is one of the things I’m arguing didn’t happen… while there are a handful of folks who argue as if it had.Report

              • Avatar Rod in reply to Jaybird
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                says:

                What is “Y” in your sentence?Report

              • Avatar Jaybird in reply to Rod
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                says:

                For the case of this argument, I guess it’d be “sexual harassment and an established state apparatus designed to punish sexual harassment are both bad, but an established state apparatus designed to punish sexual harassment is worse!”

                So X is sexual harassment.
                Y is an established state apparatus designed to punish sexual harassment.

                (And let me point out again that we still haven’t seen an example of someone saying X is okey-dokey.)Report

              • Avatar Rod in reply to Rod
                Ignored
                says:

                Ok. Cool. Now we get to the nub of it. I don’t believe you think harassment is okay. And I don’t recall ever seeing a libertarian say as much either. If I said so in the past I was wrong and I apologize.

                BUT… I have seen more than one say that while “X” is wrong, it doesn’t justify “Y.” Is that your position as well?Report

              • Avatar Jaybird in reply to Rod
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                says:

                “While sexual harassment is wrong, I don’t think it justifies kidnapping the children of the harassing boss, killing them, and feeding the pieces to crocodiles in the swamp.”

                “Aligators. And, also, don’t you *CARE* about sexual harassment?”Report

              • Avatar Stillwater in reply to Rod
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                says:

                JB, the circularity here is breathtaking. And the dodging. And the attacking. You’re so determined to not give an inch to a *legitimate* challenge that you resort to child’s games.

                Vectors, baby. They matter more than truth or honest argument.Report

              • Avatar Jaybird in reply to Rod
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                says:

                Still, the “legitimate challenge” seems to be that she doesn’t think that harassment is wrong.

                I can provide quotes where she says the opposite. The opposite!

                Meanwhile, you haven’t provided evidence of Libertarians arguing what you’ve said they were arguing (but you did say that the evidence was somewhere in a link, which I followed and read and saw no evidence within)… and I’ve provided evidence of the Libertarians arguing the opposite.

                I don’t mind you ignoring evidence of quotations with links. It’s cool.

                Please quit pretending to be wounded.Report

              • Avatar Stillwater in reply to Rod
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                says:

                I can provide quotes where she says the opposite. The opposite!

                JB, she never says harassment is wrong. She says that violating the agreed upon contract (“abrupt change in job decription”) is wrong. There’s a difference there, one apparent to me. If you can’t see the difference, then I don’t know how to help you. If you can see the difference but refuse to admit it, then you’re not arguing honestly.

                So I’m not wounded. Why would reflexively think that???? I’m just wondering why someone who’s obviously intelligent can’t see the argument being presented to him.

                I wonder …Report

              • Avatar Jaybird in reply to Rod
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                says:

                Here’s another:

                “So far, we all agree then that sexual harassment is wrong.”

                That’s a cut and paste.

                Is that sufficient for me to say that she thinks that sexual harassment is wrong?Report

              • Avatar DensityDuck in reply to Rod
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                says:

                I think Stillwater’s position is that if you can allow a scenario where (thing he thinks is wrong) is not illegal-to-the-point-of-imprisonment, then you must be “okay with” (thing he thinks is wrong). Because, he believes, (thing he thinks is wrong) can never be not-wrong, even if everyone involved consents to it.Report

              • Avatar James Hanley in reply to Rod
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                says:

                I’ve got to side with JB here. When I first read Stillwater’s evidence it seemed to me that the one thing it clearly wasn’t was a demonstration of a libertarian saying sexual harassment is okey-dokey.Report

              • Avatar Brandon Berg in reply to Rod
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                says:

                The problem here, I think, is that non-libertarians tend to conflate “wrong” and “should be illegal” in a lot of situations where libertarians tend to draw a distinction between the two. Conservatives like to say “Just because you can, doesn’t mean you should”; the libertarian version is “Just because you shouldn’t, doesn’t mean you shouldn’t be allowed to.”

                I think we can all agree that threatening to fire your employee if she doesn’t have sex with you is a total dick move. That doesn’t mean it should be illegal. Most people agree that pornography should be legal, so there’s no general consensus that there should be a blanket prohibition on employers requiring employees to have sex. Many leftists agree that prostitution should be legal. Office work: Should be legal. Sex work: Should be legal. Office work plus sex work: Anyone who thinks it should be legal is a horrible person.

                What?Report

              • Avatar Brandon Berg in reply to Brandon Berg
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                says:

                I think we can all agree that threatening to fire your employee if she doesn’t have sex with you is a total dick move.

                Er…figuratively speaking.Report

              • Avatar greginak in reply to Brandon Berg
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                says:

                well the” wrong” and ” should be illegal” sets overlap. Not completly but partially. some wrong things should be illegal, some shouldn’t. i think most if not all people agree with that. and yes, threatening to fire someone if they don’t have sex is not only wrong but the victim should have recourse under the law. unless they are a legal prostitiute which covers a very very small number of people around carson city nevada. sex work isn’t legal, allthough it should be, but its a silly example since it refers to such a small set of people. Without recourse to the law the victim, yes i am using a charged word like victim, has no protection.Report

              • Avatar Brandon Berg in reply to greginak
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                says:

                So you do think that office work should be legal and sex work should be legal, but that office work plus sex work should be illegal?

                How do you resolve the cognitive dissonance?Report

              • Avatar Brandon Berg in reply to greginak
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                says:

                well the” wrong” and ” should be illegal” sets overlap. Not completly but partially. some wrong things should be illegal, some shouldn’t.

                Sure. My point is that just because we think something should be legal doesn’t mean that we don’t condemn it, and a lot of people who think that they’re criticizing libertarianism seem to have a great deal of trouble with that distinction.Report

              • Avatar Will Truman in reply to greginak
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                says:

                Greg, if you support prostitution,then you support enlarging the set of people involved. There are also solid arguments that this should be extended further. Massage parlors should be able to offer happy endings. Strip clubs should be able to offer sexual contact as well. Hire-a-wife outfits should be able to offer cooking-cleaning-sex, and so on. These are things that libertarians would generally approve of. I don’t think I disagree with them. Which is what makes the coercion part of the argument so much more compelling for me.

                I am not particularly worried about sex being included in job descriptions enough for, say, secretaries that a secretary cannot find work unless she is willing to put out. If that term and condition is required to be made explicit at the time of hiring (I haven’t read enough BB on this thread to know if he agrees).

                This could have adverse effects on your career if you are a stripper who doesn’t want to do contact sex-work. I think there would remain even a place for that, though. It could also be beneficial insofar as it would remove ambiguity as to what a stripper or an escort of a masseuse is willing and not willing to do, which right now can’t really be discussed.

                I do look askance morally at some of these arrangements, though. Even if I think they should be legal. There are reasons to make it legal, I think, apart from thinking that it’s morally okay. (Not that I have seen you among those who are saying that supporting its legality is the same as moral support. Just re-emphasizing that point.)Report

              • Avatar Jaybird in reply to greginak
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                says:

                So like this old union guy goes to a brothel. “Is this a union brothel?” “No.” “Good day.”

                He goes to another brothel and asks if it’s a union brothel. It’s not, he leaves to find another.

                Third time is a charm. “Is this a union brothel?”

                “It is!”

                “I would like to engage in some exchanges then!”

                The madame claps her hands, the girls come out, the union guy looks down the line and says “I would please like to enjoy the services of the cutie there on the end.”

                “I’m sure you would but Esther here has seniority…”Report

              • Avatar Brandon Berg in reply to greginak
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                says:

                On the other hand, the nice thing about union brothels is that they use two girls to do the job that one does at the non-union brothels.Report

              • Avatar Brandon Berg in reply to greginak
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                says:

                Featherbedding, so to speak.Report

              • Avatar greginak in reply to greginak
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                says:

                Will- I do support prostitution, so to speak. I think its mostly a red herring to discuss prostitution since its not legal now and even if it was legal wouldn’t affect most workers. It really is a bit of rabit trail to go down. Sex is never going to be part of almost all job descriptions so its not relevent.Report

              • Avatar Will Truman in reply to greginak
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                says:

                Greg, that to me makes it all the more apparent that sex work cannot be reasonably considered a part of the job description unless specifically noted. We have jobs (however few) where it is a part of the job description, and we have (all other) jobs where it is not. So I’m not sure why we have to deviate from coercion as a place to make the distinction. Was it disclosed? Did the person agree to it? Good, then.

                Arguing that one cannot consent to a job that involves sex* is contradictory of supporting legalized prostitution. So, to me, even if prostitutes are few, it matters if you support the legalization of it.

                * – Which seems to me what is being argued here. That the power differential between hirer and hiree is too great that consent cannot be freely given. I might be misunderstanding that, however.Report

              • Avatar James Hanley in reply to greginak
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                says:

                So I had this job where the description said, “and other duties as required.” One day the boss told me to clean the toilet using only my tongue. When I refused, he fired me.

                Should a libertarian find that acceptable? If you think so, please explain clearly, because I don’t get it.Report

              • Avatar Brandon Berg in reply to greginak
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                says:

                I can’t say I approve of it, but certainly it should be legal, assuming no contrtactual obligations to the contrary. Just as it should be legal for you to demand that your salary be increased to a billion dollars a year, and then quit when your boss refuses. If you can quit for stupid reasons, your boss should be able to fire you for stupid reasons.Report

              • Avatar Mike Schilling in reply to greginak
                Ignored
                says:

                Should a libertarian find that acceptable?

                For at-will employees, sure. Though you’re being let go, not fired for cause, and any severance agreements apply. Similarly, if you have a contract that specifies “other duties”, that’s not one of them, and you’re not violating it by refusing.Report

            • Avatar Stillwater in reply to Jaybird
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              says:

              I’m still of the opinion that the best example you’ve provided of someone arguing the position that harassment is okay is someone who is arguing that harassment is not okay.

              That’s remarkable, JB. It makes me wonder if you can even read. She says nothing about whether harassment is OK or not OK. What she says is that the wrongness of workplace harassment in the scenario is based on a violation of the agreed upon contract. She’s completely silent on the harassment part (as I said in the previous comment about it). So your conclusion that she thinks harassment is wrong is entirely without support.Report

              • Avatar Jaybird in reply to Stillwater
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                says:

                Not even where I quoted her?

                “Of course, the employer’s actions are wrong. (Okay, maybe I could cook up a weird scenario where this wouldn’t be wrong, but except in unusual circumstances, it’s wrong.)”

                That’s a quote. From her. You can click on the link there and read it.Report

              • Avatar Stillwater in reply to Jaybird
                Ignored
                says:

                JB, the thing that makes those actions wrong from Flanigan’s pov is that they violated the terms of the agreement. If they didn’t violate the terms of the agreement, then presumably – based on her argument – the action wouldn’t have been wrong. That her argument.

                If she felt workplace harassment was wrong in any event why would she a) focus her argument on providing a contract-oriented account of its impermissibility, and b) why wouldn’t she provide that account explicitly if it’s something she believes trumps even agreed upon contracts?Report

              • Avatar Jaybird in reply to Stillwater
                Ignored
                says:

                If we wanted to get all weird and come up with a discussion of whether we could come up with a situation where people consented to sexual harassment (It’s a best seller!), I’m sure we could come up with a weird scenario where even you would say that it wouldn’t be wrong.

                Truly consensual sexual harassment, if you will.

                But she also said that that would be weird.

                As such, I don’t see a problem with spending more focus on the “Of course, the employer’s actions are wrong.” than the “(Okay, maybe I could cook up a weird scenario where this wouldn’t be wrong, but except in unusual circumstances, it’s wrong.)”

                Or at least saying that it should have *SOME* relevance to the argument as to whether her argument acknowledges that the employer’s actions are wrong.Report

              • Avatar Stillwater in reply to Jaybird
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                says:

                I really can’t tell anymore if the consistency with which you misunderstand your interlocutors argument is willful or not.

                For a long time I thought it was.Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                Perhaps you could restate your argument for me, then.Report

              • Avatar DensityDuck in reply to Jaybird
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                says:

                Stillwater: sexual harassment requires a lack of consent. Once a party consents to behavior, it ceases to be harassing.Report

              • Avatar Mark Thompson in reply to Stillwater
                Ignored
                says:

                Still, the point is that workplace harassment is by definition a change in the terms of employment, ie, a breach of contract, ie, lacking consent, ie, coercive. In this context, “change in terms of employment”/”breach of contract”/”lacking consent”/”coercive” all mean the same thing.

                The libertarian argument is that workplace harassment, in addition to always being morally wrong, may always be prohibited. Why may it always be prohibited? Because it’s impermissibly coercive. Why is it impermissibly coercive? Because it is undertaken against a person without their consent and unilaterally changes the fundamental terms of their employment.

                Now, it is possible that the average liberal and libertarian will have different definitions of what constitutes harassment sufficiently severe to fundamentally change the terms of employment/be impermissibly coercive, though I am not at all certain about even that much. But those will all be differences in degree rather than kind (and fwiw, I would wager a good chunk of change that at least some libertarians would draw the line further to the left than at least some liberals, and vice versa).Report

              • Avatar Brandon Berg in reply to Mark Thompson
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                says:

                Not really. In most employment arrangements, there is no contract. If you have an at-will employment arrangement, your employer can fire you for any reason or none at all, just as you can quit for any reason or none at all.

                If either party can terminate the employment arrangement for any reason, then either party can change the terms of employment at any time for any reason. Think of it as terminating the old arrangement and negotiating a new one.

                Yes, if there’s a contract, changing the terms will likely constitute a breach of contract, but there usually isn’t one.

                This should be obvious if you think about more typical changes an employer might want to make: Maybe the firm is switching to a new software package and the employee needs to learn how to use it. Maybe the employer needs the employee to train a new hire. Maybe the entire firm is relocating and the employee needs to relocate to keep the job.Report

              • Avatar Mark Thompson in reply to Mark Thompson
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                says:

                Brandon: For purposes of this discussion, the “at will” distinction isn’t really relevant, since even in a pure “at will” situation you still have a contract of some sort, especially once you start introducing traditional concepts of reliance, quasi contracts, and contracts by implication. In addition, the entire concept of “at will” employment is a fairly artificial construction with no basis in traditional common law, and even under the common law that has developed since states in the US started adopting the doctrine has found exceptions to it. So if we’re talking about a “state of nature” type scenario, you probably don’t have an at will doctrine.

                But even under the most extreme conceivable version of the at will doctrine, there is still a contract, even if it is terminable at will. For instance, when one accepts a job offer, one does so with, at minimum, the implicit understanding that one will be compensated in some fashion for their work, and in virtually any conceivable situation, an explicit promise from the employer as to what that compensation will be, as well as an explicit agreement as to the purpose of the job, the hours you will be expected to work, the days you are to work, etc. There may or may not be an agreement to pay the employee with a given frequency or on given dates, but for our purposes let’s say that the employer provides no indication of when payday is, or how frequently payment will be made.

                If, at the end of the week or month, the employer goes to you and says “yeah, I lied, I’m only paying you $x for today, not $y,” even under the most extreme at will scenario, you’ve still got a breach of contract there. Even if he says, “here, I’ll pay you $x for today, but you can come back and work again tomorrow for $x,” you still have a breach of contract for that first day, even if he pays as promised for the second day.

                Or, let’s say the employee goes to work for a few weeks, but never gets his first paycheck (keeping in mind that the agreement contains no explicit promise to pay with any given frequency). After a few weeks, he demands payment, and the boss says “I’ll pay you when I’m ready to pay you.” Does the employee need to quit in order to have a claim for breach of contract?

                Continuing with that, let’s say that despite the lack of a defined term, the employee gets paid every two weeks for three or four months, but all of a sudden his boss says he doesn’t have a paycheck on the next two-week anniversary, and says “I’ll pay you when I’m ready to pay you.” You continue to work for him for another 2 weeks and, lo and behold, he actually does pay you for a four week period, but refuses to include interest of any sort on the first half of the payment. Under even the most extreme “at will” scenario, you’ve still got a claim for breach of contract due to the failure to include interest.

                Now, what if there is a cultural norm that payment is to be every other Friday after employment begins, the employer and employee have not explicitly discussed the frequency of payment, and the employer refuses to make payment on the second Friday after hiring, but instead says on that day “I’ll pay you in two weeks”? Again, you’ve got a breach of contract under even the most extreme at will scenario. That cultural norm is an implied condition of the contract even if it’s never discussed.

                Finally, let’s change the scenario a bit to make it more on point with the harassment issue. Let’s say that, in addition to the rate of wages and the job objectives, there is an agreement, whether explicit or implicit, that payment will be made every two weeks. Let’s say that a week in, the employer says “Fuck me or your fired,” the employee refuses, and the employer fires her on the spot. When the employee receives her check the following week, it is only for the first week that she worked there. I submit that under even the most extreme “at will” scenario, there has been a breach of contract by the employer.

                This, by the way, largely gets at why the notion of “at will” employment in the US is an artificial development. At some point along the line, the notion that an employee could only be fired for cause and/or with notice became an implied term in every contract. In determining that no such term existed absent a written agreement, the State was abrogating existing employment contracts and rewriting the culturally-understood implied terms of contracts.Report

              • Avatar Brandon Berg in reply to Mark Thompson
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                says:

                Mark:
                All of the examples you give involve retroactively changing the terms of employment, which is obviously a breach of contract. That’s very different from exercising one’s right to terminate the current employment agreement and negotiate a new one. That is:

                “Have sex with me or I won’t pay you for the work you’ve already done”: Breach of contract, and rightly illegal.

                “Have sex with me or you’re fired (but you will be paid for work done up to now)”: Sleazy, but should not be illegal, assuming at-will employment.

                If an employer has a right to terminate an employment arrangement without cause, and if he also has the right to offer a job whose duties include sex (as, say, a pornographer does), then we can’t very well turn around and say that he can’t do those two things in rapid succession.Report

              • Avatar Brandon Berg in reply to Mark Thompson
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                says:

                Actually, I misunderstood the last example. That doesn’t really involve a retroactive change to the terms, and I don’t see that it should be illegal. It’s not reasonable to interpret “You will be paid every two weeks” as “You will be paid for the full two weeks of work even if you only actually do one week’s worth of work.”

                Regarding your last paragraph about at-will employment generally, I disagree. Regardless of what the default expectation is, that can be overridden simply by stating up-front that employment is at-will, which is exactly what all my past employers have done. More importantly, the alternative to at-will employment is forcing employers to justify their staffing decisions in court, which is nuts.Report

              • Avatar Trumwill in reply to Mark Thompson
                Ignored
                says:

                Brandon, even EAW has bad faith exceptions, generally speaking. They generally apply to things like “You can’t fire them just to avoid paying their pension” but I would almost certainly consider changing the terms of employment in such an intimate manner to be one of those things.Report

              • Avatar Mark Thompson in reply to Mark Thompson
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                says:

                Not really – take a closer look at my last two examples.

                Additionally, I get your point about rapid succession, but it’s not quite as simple as that. For purposes of even the most minimal possible terms of an at will relationship, there is at the very least a big difference between “fuck me or you’re fired,” and “you’re fired, now fuck me.” Once you’ve accepted that the terms of employment and the agreement prior to the ultimatum include various implied terms, then anything that changes those terms without consent is a breach of contract.

                At best, your point about rapid succession implies that the actual damages from the breach are de minimis*, but the calculation of damages is irrelevant for purposes of this discussion.

                As importantly, the initial violation of her rights occurs not when she is fired, but when she is given the order that materially changes the terms of her employment. As long as she is still employed, the original agreement, including all of its implied terms, is still in effect.

                Another example: let’s say the implied terms of the agreement include a culturally understood term that employees are to be provided with chairs while performing work. One day, the employees show up and there are no chairs, about which the employer says absolutely nothing. This is a breach of contract, again, under even the most extreme “at will” situation, and again regardless of whether the employee demands chairs be returned or is fired for making such demand.

                It is no less a retroactive change to the agreement than the scenarios I outline above.

                *And no, I am not saying that actual damages in reality are in fact de minimis.Report

              • Avatar Mark Thompson in reply to Mark Thompson
                Ignored
                says:

                More importantly, the alternative to at-will employment is forcing employers to justify their staffing decisions in court, which is nuts.

                You do realize that there is at least one state that doesn’t recognize at will employment, right? You will be surprised which one it is. Moreover, the overwhelming majority of states have an implied contract exception to the at will employment doctrine (though they set the burden of proof too high for it to make that much of a difference, but we’re assuming that proof is given here). Last but not least, even with at will employment, AFAIK, there is a universally recognized exception for being asked to engage in immoral or illegal conduct.

                Most importantly, since the rest of the world has managed to do quite well for the last century and a half, and the US itself did quite well for its first century without any at will employment doctrine, I’d say that it’s pretty far from nuts. Employers don’t need to justify all of their staffing decisions under the rules I am arguing exist – they just need to not make decisions that violate terms that they know, or should know, exist.Report

              • Avatar Brandon Berg in reply to Mark Thompson
                Ignored
                says:

                My point is that the right to terminate an employment relationship unilaterally logically implies the right to issue an ultimatum regarding your exercise of that right. It makes no sense to say that you can fire an employee just because you feel like it, but that you can’t tell the employee how you might be persuaded not to.

                Forcing employers to defend their staffing decisions in court isn’t nuts in the sense that it will immediately lead to the downfall of human civilization, as it clearly hasn’t. But it’s inefficient and it makes us all poorer. When you make it harder to fire people, you make employers more reluctant to hire in the first place.Report

              • Avatar Stillwater in reply to Stillwater
                Ignored
                says:

                And to address the other side of it, Flanigan is not advocating for workplace harassment, certainly. But she’s saying that if it’s included in the agreement, then harassment is permissible. There’s just no other way to read her argument.

                That’s not to say that she couldn’t have tightened up some language, or included a bunch of unstated premises or idealized conditions or whatever. But she didn’t.Report

              • Avatar Jaybird in reply to Stillwater
                Ignored
                says:

                Personally, I think that there are ways to read statements like “Of course, the employer’s actions are wrong” as saying that the employer’s actions are wrong.

                I don’t even think that you have to be exceptionally charitable to read it that way.Report

              • Avatar trizzlor in reply to Jaybird
                Ignored
                says:

                I’m only interrupting because I’m genuinely curious about the underlying question you guys are discussing, but I think Stillwater is saying there’s a difference between:

                Flanigan: ““Of course, the employer’s actions are wrong …”
                Jaybird: ““While sexual harassment is wrong…”Report

              • Avatar Jaybird in reply to trizzlor
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                says:

                It doesn’t strike me as enough of a difference to go into a rant about how her statement is evidence of Libertarians not thinking that sexual harassment is wrong and people who don’t see that are being dishonest.Report

              • Avatar Stillwater in reply to trizzlor
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                says:

                Argh (to JB, not trizzlor).

                JB, nothing she’s said gives any indication that she thinks harassment is wrong. The only thing she’s said is that violating an agreement is wrong.Report

              • Avatar Jaybird in reply to trizzlor
                Ignored
                says:

                Here she says, and I’m cutting and pasting here, “Similarly, it’s obviously wrong in most cases to tell an employee that she must preform sexual favors in order to keep her job, but maybe not for an employee whose job already includes other kinds of sex work.”

                What’s the exception she carves out? That’s right, the one we keep coming back to: Sex workers.

                So does that count as her giving any indication that she thinks harassment is wrong?

                Am I being obtuse?Report

              • Avatar Rod in reply to Jaybird
                Ignored
                says:

                I think the problem here is that it’s not clear why she thinks it’s wrong. Is it only because it violates an [implicit/explicit] employment contract? Or is it because there’s something intrinsically wrong/evil with sexual harassment in general?

                I read her as a liberal-leaning libertarian (much like you and James), but on that site she’s playing to a mostly harder-libertarian audience. So it’s not clear to me whether she actually believes sexual harassment is prima facie wrong and she’s making the contract-based argument to appeal to that audience or whether that’s the actual basis of why she thinks it’s wrong.

                And, yeah… I think there’s a very real moral difference between those two positions.Report

              • Avatar Jaybird in reply to Rod
                Ignored
                says:

                So it’s not enough to think that X is wrong and to say that X is wrong, you have to demonstrate that you think that X is wrong for the best reasons available?

                That’s… that’s a little weird.

                Sadly, it fits with my experience of modern liberals. (see what I did there?)Report

              • Avatar Fnord in reply to Rod
                Ignored
                says:

                Workplace sexual harassment only becomes a problem in the first place because of a pre-existing employer/employee relationship, and thus the [implicit/explicit] employment agreement. Without the power differential of the employer/employee relationship, asking “would you please have sex with me?” might be rude, but isn’t illegal.Report

              • Avatar Kazzy in reply to Rod
                Ignored
                says:

                “…asking “would you please have sex with me?” might be rude, but isn’t illegal.”

                True. But if I say, “No, I won’t have sex with you. Don’t ask me again,” and you continue to ask me, do we ever reach a point where we move beyond rude and it becomes illegal?

                I always wonder why we can so easily recognize the problems with physical abuse but so often dismiss emotional, mental, or verbal abuse.Report

              • Avatar Stillwater in reply to Rod
                Ignored
                says:

                So it’s not enough to think that X is wrong and to say that X is wrong, you have to demonstrate that you think that X is wrong for the best reasons available?

                No. It’s that one version of the argument is liberal (which can include the libertarian argument), the other argument is libertarian y nada mas.Report

              • Avatar Tod Kelly in reply to Rod
                Ignored
                says:

                Um… Actually, in most cases it is VERY illegal. Of you don’t believe me, try it with some random women at your work place and see how quickly your employer’s insurance company is paying those women a LOT of money. From a distance of course, because you will be unemployed.Report

              • Avatar Kazzy in reply to Rod
                Ignored
                says:

                Tod-

                I believe Fnord’s point that outside the workplace, without the professional relationship, it wouldn’t be illegal. If I ask a random girl in a bar to sleep with me, I haven’t broken any laws.Report

              • Avatar Stillwater in reply to Rod
                Ignored
                says:

                If I ask a random girl in a bar to sleep with me, I haven’t broken any laws.

                Depends on how much leverage you’re applying, no?Report

              • Avatar Fnord in reply to Rod
                Ignored
                says:

                Kazzy,
                Certainly it would be if it involves me following you home then hiding in the bushes to ask you again the next morning, to pick a clear example. But as Mr. Kelly helpfully points out, doing it even once is a problem in a workplace context, particularly if it’s a supervisor asking the question, as seems to be the case we’re primarily discussing. There certainly is a difference.

                Tod Kelly,
                Yes, I did not mean to imply that it’s legal in a workplace context in the absence of a supervisory relationship; I was talking about outside of the workplace (and similar circumstances where implicit agreements exist). I can see how what I wrote was unclear, sorry.Report

              • Avatar Brandon Berg in reply to Stillwater
                Ignored
                says:

                If it’s i the agreement, it’s consensual, and therefore not harassment.Report

            • Avatar Jaybird in reply to Jaybird
              Ignored
              says:

              (Oh, and the one that I was saving up is at the bottom)

              Update: Just to clarify the takeaway- I agree that sexual harassment is wrong (I hope we all do) and also that it there can be a role for government (e.g. legal penalties for fraud and sexual violence). The point is just that limits on employer’s rights to fire people shouldn’t be our first instinct, because something is lost when the government restricts economic liberty.Report

              • Avatar Stillwater in reply to Jaybird
                Ignored
                says:

                Fine, JB. But that gets us back to the initial discussion, the one you didn’t want to have. If she actually thinks that workplace harassment is wrong full stop, then she’s not making a libertarian argument. I mean, she was. Initially. But she abandoned it in the update.Report

              • Avatar Stillwater in reply to Stillwater
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                says:

                And here’s the problem. Libertarians look at all the successes of liberalism as obviously good things, and co-opt them into libertarianism as being libertarian principles, policies, programs, whatnots. They then refocus on all the things that liberals do wrong and identify liberalism with that set of principles, policies, programs, whatnots, and conclude that liberalism zuggs.

                I’m not sure what the moral of the story is.Report

              • Avatar Stillwater in reply to Stillwater
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                says:

                Maybe that the truth is overdetermined by theory?Report

              • Avatar Jaybird in reply to Stillwater
                Ignored
                says:

                If she actually thinks that workplace harassment is wrong full stop, then she’s not making a libertarian argument.

                Could you provide an example of a libertarian making a libertarian argument?

                Because, if you can’t, I submit that you’re doing something strawmanny.Report

              • Avatar Stillwater in reply to Jaybird
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                says:

                ‘Workplace harassment is impermissible if it violates a contract’ is a libertarian argument.

                ‘Workplace harassment is impermissible if it violates a contract, but also FULL STOP’ is a liberal argument.Report

              • Avatar Jaybird in reply to Stillwater
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                says:

                So we’re back to me asking for an example of libertarians arguing what you’d think that libertarians ought to be arguing and then you not providing one? Is that where we are?Report

              • Avatar Stillwater in reply to Stillwater
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                says:

                No. I think we’re at the point where Flanigan offered a libertarian answer as to why workplace harassment is wrong, and then realized that the answer wasn’t sufficient.

                YMMV.Report

              • Avatar Stillwater in reply to Stillwater
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                says:

                I mean, look: you’re dangerously close to actually affirming my criticism that libertarianism cannot fail.

                If you don’t understand why that’s a criticism, then maybe then look up the word “tautology”.Report

              • Avatar Will Truman in reply to Stillwater
                Ignored
                says:

                I think this misses another possibility, doesn’t it?:

                Workplace harassment is wrong, full stop. But the reason it should be actionable is not because it’s morally wrong*, but because it is a breach of contract/agreement/etc.

                * – There are, after all, many things that are morally wrong that are not actionable.Report

              • Avatar Jaybird in reply to Stillwater
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                says:

                I submit that if you can’t find an example of a single libertarian giving what you argue is the libertarian position, the fault just might not lie with the libertarians being insufficiently libertarian.Report

              • Avatar Jaybird in reply to Stillwater
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                says:

                I mean, look: you’re dangerously close to actually affirming my criticism that libertarianism cannot fail.

                Arguing from a specific example – or even a handful of examples – to a general critique is a bad inference (where “bad” means unsound.) You need more than that.Report

              • Avatar greginak in reply to Stillwater
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                says:

                Will- I wonder about the breach of contract argument. Every job description i have ever had included “other duties as assigned.” Yeah that usually means whatever scut work needs to be done or something like answering phones because the AA is out. But if i agree to a job that has the Other duties… clause what is the limit on that. Have i just contracted to perform a hot butter massages on my boss if ordered? I would say no, but i’m who i am. There have to be more limits than just what is in the contract, some sort of bright lines.Report

              • Avatar Stillwater in reply to Stillwater
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                says:

                JB, you’re starting to remind me of Tom.Report

              • Avatar Tod Kelly in reply to Stillwater
                Ignored
                says:

                I saw this! Fascinating! I’m curious to see of this is a political ploy or an existing cultural thing that has been off radar.Report

              • Avatar Will Truman in reply to Stillwater
                Ignored
                says:

                Greg,

                There is an argument to be made that if sex or sensual activity or even the pretending of the same (“I’m a lesbian and I need you to be my beard”) is a part of the job, it needs to be made explicit and not a part of “other duties as required.”

                Somewhere in there is a “reasonable expectation” threshold that “Oh yeah, sex with the boss” doesn’t meet. I don’t think that sort of disclosure is anti-libertarian. A lot of libertarians apparently don’t.

                Some do, no doubt. Even then, though, saying it shouldn’t be illegal is not the same thing as saying that it’s okay. (Which is less a response to you and more a “just wanted to mention…”)Report

              • Avatar Jaybird in reply to Stillwater
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                says:

                I provided links, quotations, and arguments supporting my position (namely that libertarians were *NOT* arguing that) and I asked you for links, quotations, and arguments where libertarians were, in fact, arguing that.

                You provided quotations that didn’t say what you were saying they said, provided links but said that the evidence to support your position was in the link without providing quotations (it wasn’t), and even now complain that the fact that there aren’t any libertarians giving what you claim is the libertarian argument is because of a failing in the libertarians (rather than in your understanding of libertarianism).

                Please, tell me more about my failings, Stillwater.

                Or just say that I have them and compare me to people you don’t like. That’ll work too.Report

              • Avatar Stillwater in reply to Stillwater
                Ignored
                says:

                Workplace harassment is wrong, full stop. But the reason it should be actionable is not because it’s morally wrong*, but because it is a breach of contract/agreement/etc.

                Why? Murder isn’t a breach of contract.Report

              • Avatar Tom Van Dyke in reply to Stillwater
                Ignored
                says:

                I don’t want it this way, Tod. Bearded Spock Universe rules? No prob. Your call.

                KIRK: What I don’t understand is how were you able to identify our counterparts so quickly?
                SPOCK: It was far easier for you as civilised men to behave like barbarians, than it was for them to behave like civilised men. I assume they returned to their Enterprise at the same time you appeared here.
                KIRK: Probably. However, that Jim Kirk will find a few changes, if I read my Spocks correctly.
                MCCOY: Jim, I think I liked him with a beard better. It gave him character. Of course almost any change would be a distinct improvement.
                KIRK: What worries me is the easy way his counterpart fitted into that other universe. I always thought Spock was a bit of a pirate at heart.
                SPOCK: Indeed, gentlemen. May I point out that I had an opportunity to observe your counterparts here quite closely. They were brutal, savage, unprincipled, uncivilised, treacherous, In every way, splendid examples of homo sapiens, the very flower of humanity. I found them quite refreshing.
                KIRK: I’m not sure, but I think we’ve been insulted.
                MCCOY: I’m sure.Report

              • Avatar Mark Thompson in reply to Stillwater
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                says:

                What Will said.Report

              • Avatar Will Truman in reply to Stillwater
                Ignored
                says:

                Still,

                Some people can see things as being immoral but still outside the scope of the law. For a variety of reasons. You may not agree with their reasoning, but it can just as much be a question of the scope of the law as it is the wrongness of the act.

                Alienation of Affections is wrong, but not actionable (in most places). Infidelity against a loving spouse is wrong, but not actionable. Smoking while pregnant is wrong, but not actionable. Running an open casino is wrong, but not actionable. Being a racist jerk is wrong, but not always actionably so. And so on.Report

              • Avatar James Hanley in reply to Stillwater
                Ignored
                says:

                If she actually thinks that workplace harassment is wrong full stop, then she’s not making a libertarian argument.

                Why, because it doesn’t fit your definition of libertarianism? Because libertarianism must only be what a non-libertarian liberal thinks it must be? Come on Stillwater, you are not giving a bravura performance in this argument.Report

              • Avatar Ryan Noonan in reply to James Hanley
                Ignored
                says:

                Mark explicitly states lower on this post that libertarianism isn’t a system of morality. This is the problem that arises when we want to talk about what a group of people has to believe by virtue of some feature they share.

                And we all do this A LOT around here. “You liberals”, “you libertarians”, “leftpersons”, whatever. It leads to massive amounts of cognitive confusion.Report

          • Avatar Mark Thompson in reply to Stillwater
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            says:

            Still, if you don’t mind my intervening here, I think where you and Bertram are going off the reservation is in assuming that libertarians believe that the “harassment” part is severable from the “contract” part. A core element of any “harassment” is that the activity constituting the harassment be unwanted and, more importantly, without the consent of the victim. If, as in nearly all cases, you have an agreement in which being subjected to certain activity falls outside your job description, and you are subjected to that activity without your consent, you have harassment that the libertarian, as most anyone else, would find objectionable and appropriately prohibited by the state. If, however, you have the situation where the contract is understood at the outset to require being subjected to that activity, the employee knowingly agrees to these terms, and then changes her mind, resulting in her being fired, you don’t really have harassment at all under any definition of “harassment” that I’m aware of.Report

            • Avatar Tod Kelly in reply to Mark Thompson
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              says:

              I’d appreciate you or JB going a little deeper, actually. You each have lived on this block that I’m just passing through (and you’re both good people), so I assume you’re seeing something that I don’t.

              1. Would not a system lend itself to coercion? For example, in a low-income town where there aren’t many jobs, might an unscrupulous manager hold such a clause over someone’s head as a condition of employment?

              2. Is there not something more basic at work here? I think we can agree, for example, that there are certain things that should not be allowable in an employment contract regardless of circumstance. We would not allow an employment contract that had language that said should an employer commit a crime against you (theft, rape, arson, etc) you agreed continue working without recompense. I bring this up because I cannot help but notice that both on the other sites and here, this is a conversation being had (mostly) by men. I believe the assumption that this is contractual issue and not a moral stance against an actual crime would not be shared by most women – even at a “it really depends on the circumstances” level.

              I know that you and JB (the the BL gal) are each talking about unusual circumstances, but I think it’s this reframing a what should be viewed as a crime as a mere contract negotiation issue that makes me wary of libertarians.

              What am I missing?Report

              • Avatar Jaybird in reply to Tod Kelly
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                says:

                There’s a report here on how illegal immigrants are subject to a lot of sexual harassment, unwanted touching, rape, and so on.

                If I could take a stab at one of the Liberal arguments, I imagine it would be something to the effect of “oh, that’s so awful, we should pass more laws and/or enforce the laws that we already have!”

                One of the Libertarian arguments is something to the effect of “we should open the borders and make immigration easy, thus allowing migrant workers to go to law enforcement without fear of reprisal from their harassing bosses threatening them with La Migra.”

                People see the Liberal argument and they see the empathy. They see the Libertarian argument and they see a handful of Aspy folks treating it like an engineering problem.Report

              • Avatar Rod in reply to Jaybird
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                says:

                I’m an Aspy Liberal, educated as an engineer, and I agree with your Libertarian solution. Just sayin’… whatever.Report

              • Avatar Tod Kelly in reply to Jaybird
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                says:

                This seems to be a response that says, lets pretend that is not an issue and answer this other thing instead.

                One of the things I think I’m having a problem understanding is what Libertarianism does, or would do. I feel like my conversations about it here follow this pattern most of the time:

                A: The government will make things worse in this situation.

                B: But doesn’t it help by doing X, and wouldn’t a lack of government lead to these other kinds of coercion?

                A: Well of course the government needs to do that! I guess I’m just a “glibertarian!”

                Honestly, whatever mechanisms libertarianism wants to use seem hidden to me. I have enough faith in he people here that are liberts that I’m willing to concede this is my failing, but it always feels like punching vapor whenever I try to discuss this stuff.Report

              • Avatar Jaybird in reply to Tod Kelly
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                says:

                I’ll use my example here, if you don’t mind. (If you’d rather I address a different example, please tell me which one you’d like me to use.)

                In the case of the employer of illegal immigrants sexually harassing them, I’m stuck wanting to ask if illegal immigration is illegal, if hiring illegal immigrants is illegal, and if sexual harassment is illegal. (As rhetorical questions go, I’m pretty pleased with that one.)

                It seems like I’d be expected to spend time discussing how awful the employer is, how pitiful the lot of the immigrant is, and how much better it’d be if we had better laws and more police to enforce these laws.

                All of this strikes me as doubling down on what has failed in the past. (Talking about how much we care, passing laws, giving authorities more power.) Since it failed in the past, I suspect it would fail in the future.

                I don’t see what I am pretending is not an issue.Report

              • Avatar Stillwater in reply to Jaybird
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                says:

                Arguing from a specific example – or even a handful of examples – to a general critique is a bad inference (where “bad” means unsound.) You need more than that.Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                Well, he said “whatever mechanisms libertarianism wants to use seem hidden to me”. I figured that starting concrete and working back to the non-coercion principle and fundamental assumptions of individual sovereignty would be the best way to point out the gears and wheels and flanges and levers.Report

              • Avatar Stillwater in reply to Jaybird
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                says:

                I figured that starting concrete and working back to the non-coercion principle…

                Fair enough. Except for one thing. The non-coercion principle is precisely what’s at issue.Report

              • Avatar greginak in reply to Jaybird
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                says:

                Jay-The lets have open immigration, which i agree with, to deal with illegal immigrants being abuse is a bit of a change of the subject. I can see how it would go a long way to dealing with the problem. However illegal immigrants being abused is a subset of abuses by employers. Open immigration wouldn’t help citizens. Laws have not failed to deal with sexual harassment or employer abuse. In fact i’d say they have worked well in general and especially when they haven’t been weakened. So passing laws isn’t doubling down, its using something that works.Report

              • Avatar DensityDuck in reply to Jaybird
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                says:

                ” Open immigration wouldn’t help citizens.”

                But Jaybird wasn’t talking about citizens.Report

              • Avatar DensityDuck in reply to Tod Kelly
                Ignored
                says:

                ” whatever mechanisms libertarianism wants to use seem hidden to me.”

                Jaybird explained those mechanisms quite simply.

                1) There already exists a sizeable apparatus devoted to eliminating coercive behavior by the employer in the inherently power-imbalanced employer/employee relationship.

                2) However, illegal immigrants cannot make use of this apparatus, because our legislative system is written in such a way that kicking illegal immigrants out of the country is more important than improving their employment situation.

                3) If there were no longer a “kick them out” requirement, then they would be free to use the apparatus described in (1).

                “This seems to be a response that says, lets pretend that is not an issue and answer this other thing instead.”

                Or maybe it’s saying “instead of blowing your nose a million times and taking an asthma inhaler, why don’t you just wash your hands after you pet the cat?”Report

              • Avatar BlaiseP in reply to Jaybird
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                says:

                What makes you think Liberals want more laws or more stringent enforcement? Here’s how a Liberal sees it, well, one anyway.

                Long ago, a happy event went down: two friends at a firm I was consulting at got married. Knew them both, lots of us went to the wedding, company owner gave them a lavish wedding present. But one of them had to leave the firm. Company policy. He left, she stayed, the firm actually found him a nice job at Quaker Oats, right across Wacker Drive.

                In a work situation, amour becomes a big land mine. It’s pointless to cast aspersions on whether or not a particular relationship is coercive. Yes, it’s worse if someone behaves boorishly, rising to the level of harassment. We’ve got EEOC for that sort of thing. Seems to this Liberal EEOC is a gracious plenty.

                The larger problem remains: power is an aphrodisiac. Having roamed the corridors of corporate America for all these years, I’ve seen more than my share of how people react to power, in every possible configuration short of Saran-wrapped Bulgarian midgets singing Gilbert and Sullivan operettas. If sexual harassment is bad, and it is, what shall we make of suck-ups and toadies who ride the mattresses to promotions and favours?

                As a Liberal, I could care less what people do off-site. A corporation should care if it’s in the context of power relationships which affect how things go on the job. Some aging exec pulled into some torrid relationship with an ambitious and scheming underling, against his own better judgement and corporate policy to boot. It happens. I’ve seen it happen and I’ve seen the fallout. It happened to my father. Twice.

                It’s bad business all round. Turning a coworker into a lover ought to be off limits unless one of them is ready to leave that job.Report

              • Avatar Pierre Corneille in reply to Jaybird
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                says:

                Jaybird,

                If I could take a stab at one of the Liberal arguments, I imagine it would be something to the effect of “oh, that’s so awful, we should pass more laws and/or enforce the laws that we already have!”

                One of the Libertarian arguments is something to the effect of “we should open the borders and make immigration easy, thus allowing migrant workers to go to law enforcement without fear of reprisal from their harassing bosses threatening them with La Migra.”

                I don’t want to indulge to much in the “all we need to do is pass more laws” mentality, but there seems to be a functional difference b/w the “liberal” and “libertarian” view, expressed in this comment, that leaves the “libertarian” view wanting.

                The liberal view here says that if we do x, we’ll probably get y. If we pass more laws or enforce the laws we have more aggressively, fewer undocumented workers will suffer harassment or have better recourse if they do so suffer.

                The libertarian view (again, the one expressed in the comment) is that if we do x, we’ll probably get y, which will probably get us z. If we establish open borders, immigrants will feel freer to defend their rights, and more will probably so defend them. The libertarian answer requires an additional step. It’s more of a “if we build it, they will come, and if they come, then this good thing will happen.”

                That doesn’t mean the libertarian answer is without validity (in fact, I think it is with much validity and is one of the principal reasons why I’m an almost completely open borders guy), but it suggests an extra thing that has to happen in order for it to work, at least in this case.

                In a sense, of course, the liberal is also doing a similar thing here. Passing a law presumes not only that it will be enforced, but that the effects of the enforcement will not create perverse consequences. Those are, or can be, pretty big presumptions.

                These are just observations. I don’t really have a point other than that the libertarian seems to be presuming more than the liberal is, at least in this example.Report

              • Avatar DensityDuck in reply to Pierre Corneille
                Ignored
                says:

                “The libertarian answer requires an additional step. ”

                …except that the first libertarian step is to stop doing something.

                ” If we pass more laws or enforce the laws we have more aggressively”

                More laws like what? “No bathroom breaks” is now Double Secret Illegal? Introduce H.R. 43018138, “pay the minimum wage no really we totally mean it this time”?Report

              • Avatar Pierre Corneille in reply to DensityDuck
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                says:

                No, the first libertarian step is to repeal restrictive borders.

                More laws like what?

                Maybe to make it a crime to harass workers sexually? Maybe establish quadruple liability for claims, with a public advocate to assume all the legal costs? I’m not saying these laws would be good ideas, but that’s what some might have in mind.Report

              • Avatar DensityDuck in reply to DensityDuck
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                says:

                “the first libertarian step is to repeal restrictive borders.”

                You mean, stop enforcement of border restrictions and immigration controls?

                Although we’re getting back into “is the refusal to act itself an action”, which is a question that even the Supreme Court wouldn’t touch.Report

              • Avatar Mark Thompson in reply to Tod Kelly
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                says:

                I’m a bit confused by what you mean in saying “should be a crime.”. If we’re talking physical coercion, then we’re not really talking about harassment anymore. Even in the most extreme possible example where you have a contract for employment as a prostitute for your boss, decide not to honor the agreement one night, the boss says “sleep with me or your fired,” the prostitute says “no,” and the boss proceeds to force her to have sex with him, non-coercion would dictate that the boss be found to have committed rape – the employment contract doesn’t even enter into the equation, not even as a defense.

                But when we’re discussing sexual harassment (eg, a hwe claim) we’re not usually talking about conduct that anyone considers meaningfully criminal or even really thinks should be meaningfully criminal. However, just because something isn’t criminal doesn’t make it right, and doesn’t mean it should necessarily be legal, which is why we have lawsuits and civil liability.

                So the question is, what is the justification for civil liability for sexual harassment, whether of the quid pro quo or hostile work environment variety? Well, at root the justification, whether you’re a liberal, a libertarian, or whatever, is that harassment constitutes a material change in the conditions of employment. That justification might be expressed in different terminology depending on whether the speaker is liberal, libertarian, feminist, or whatever. But ultimately, it’s basically the same exact justification.

                Bertram himself actually seems to recognize this in complaining that, when pushed on issues of private power, libertarians often wind up sounding an awful lot like run of the mill liberals. To which my response was, in effect, “no shit, Sherlock.”. Both modern American liberalism and libertarianism ultimately have their intellectual roots in classical liberalism- it shouldn’t be a shock that, pushed far enough, they can wind up sounding a lot alike. That premise was and is indeed the basis for a lot of my writing on this site about liber-al-tarianism. The differences are more differences of means, not ends.

                Now the CT folks try to get around this by saying that it’s ridiculous to phrase things like this in terms of contract law or consent, that the far more important justification to any normal person is the protection of the less powerful from arbitrary and humiliating actions by the more powerful. But this is either a distinction without a difference or a totally bogus rationale. It’s a distinction without a difference to the extent arbitrariness does the heavy lifting or to the extent the humiliation comes from being forced to do something you’re uncomfortable doing; it’s totally bogus to the extent any other form of humiliation is doing the heavy lifting, as it places the lawmaker in the position of telling employees that they have been humiliated regardless of whether they actually feel humiliated.

                They also argue that the libertarian change of conditions rationale for sexual harassment protections fails since employment agreements and job descriptions are never complete. Well, sure. But I think we can safely say that there’s a big and relevant difference between being asked to make copies when your job description says “middle manager,” and being asked to sleep with your boss when you’re job description says “accountant.”. One is implicit in the nature of the job description, and is at minimum clearly related to achievement of the job’s objectives; the other is completely arbitrary and unrelated to the job to which the employee agreed, and represents a fundamental change in the terms and conditions of employment.

                They’re on somewhat better ground when they use the example of a company known for an atmosphere of nasty sexual harassment, to the point that one accepting employment would know to expect a sleep with me or be fired ultimatum, suggesting this would be permissible under the libertarian justification for sexual harassment laws. But this example fails too- you can’t get to the point where this reputation exists in a theoretically meaningful sense without first having the company lose a good number of sexual harassment claims (keep in mind that lack of consent is an assumed element of any harassment claim; without a number of successful claims, it would be reasonable for an applicant to assume the would-be victims consented to the activity). I’m skeptical that there’s a point at which enough successful claims would have been made that future applicants would be considered to have consented to the type of activity underlying those claims. In fact, to allow such a point would be to run up against thatother central libertarian belief: that of the Rule of Law- any point would inherently need to be arbitrary, varying dramatically on a case by case basis, meaning there wuld be nothing predictable about it. As bad, it would result in an inherently arbitrary legal standard in which a business could avoid claims it was violating employees’ consent by violating the consent of a sufficient number of employees.Report

            • Avatar Stillwater in reply to Mark Thompson
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              says:

              Mark, sorry it took so long to get to this.

              I have my own thoughts on how the libertarian *ought* to get out of this dilemma, and I also have thoughts on how even that solution fails to account for our normal judgments. But – like Tod – I would really like a libertarian to take this issue seriously and offer a solution to what strikes me as hard bargain for the libertarian. I mean, this isn’t a new topic to me – Hanley and I have gone rounds about some very closely related topics – so I have so priors involved. But I’d like to see a libertarian answer some of the arguments presented against them. It seems to me they aren’t trivial.Report

              • Avatar Mark Thompson in reply to Stillwater
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                says:

                I think the point is that it’s just not a dilemma at all for libertarians. Look, libertarianism is not a system of morality, and it is not a religion (Objectivism is, more or less, but only a small percentage of libertarians are objectivists, and fewer objectivists that you might expect consider themselves libertarians). Nor, I must jump to add, does it purport to be. It is a system of political theories about the proper role of government, no more, no less.

                So if the question is “why is workplace harassment morally wrong to the libertarian” then the answer is: for whatever reason the libertarian in question believes it to be morally wrong – their libertarianism has, or should have, little or nothing to do with it.

                If the question is “what, if any, libertarian justifications are there for legal prohibitions on workplace harassment,” though, then you’re going to get an answer such as that explained above – an answer that is ultimately pretty much the same as how a liberal would justify those prohibitions, just using different terminology.Report

              • Avatar Jason Kuznicki in reply to Mark Thompson
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                says:

                Exactly.

                The only remaining question is one of line-drawing. Where does just sort of shitty workplace behavior become downright criminal workplace behavior?

                That’s a difficult line to draw, but I don’t see any particular reason to believe that libertarians are eager to erase it.Report

              • Avatar Stillwater in reply to Mark Thompson
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                says:

                Mark, you propose two types of relevant questions here – (roughly) 1) what’s the libertarian’s individual moral judgment of situation X, and 2) what’s the libertarian’s philosophical (or conceptual) argument for the legal prohibition of action X. Are those exhaustive? If so, then I think the dilemma still holds.

                Bertram is interested in the application of the non-coercion principle by libertarians to private-sector power differentials. He imagines a scenario in which workplace harassment occurs (it need not be sexual harassment, by the way), and wonders what the libertarian response to that situation would be. He foists a pretty plausible – in my view – set of conditions on the libertarian here, conditions consistent with at least one prominent theory of libertarianism: that contracts and property rights coupled with non-coercion by the state are necessary and sufficient for a just society. If so, then it appears that the libertarian is committed to providing the following analysis: workplace harassment is impermissible if and only if it violates the workers contract. (Which is exactly what Flanigan argued.)

                One point to emphasize before moving forward is that this view (even if it’s incorrect!) is silent on both the individual morality of any particular libertarian as well as the specific legal mechanisms employed to effectively ensure that workplace harassment doesn’t occur (or whatever).

                Now, if the above analysis is right, then it follows that harassment is permissible if its agreed to in the contract. That much seems crystal clear to me (tho not others). And insofar as we think employer-employee harassment is bad, we uniquely identify harassment as inconsistent with the non-coercion principle, and the remedy is for the state to prohibit it. So the state actually does have an active role to play in prohibiting private sector coercion.

                And that’s the dilemma: the libertarian must choose between accepting that workplace harassment is wrong full stop, which justifies state intervention, or they bite the bullet and say that it’s permissible because concluding otherwise means that rights, contracts and freedom from state coercion aren’t sufficient for a just society. Notice that nowhere in this argument the law, or legal mechanisms mentioned.

                Now, personally, I think the way out of this dilemma was precisely what DD wrote upthread: given that harassment is by definition (or at least one definition) an action the employee didn’t agree to, harassment in a voluntary agreed-to contract is impossible. And here’s why I think that answer fails: the conditions a voluntary contract must meet to exclude in principle the possibility of harassment are impossible to meet in practice, unless there’s an independent conception of harassment – a free standing one! – that is already viewed as morally wrong.

                (This answer may be too quick, but I’ve gotta get to work. I’ll check back in for a few minutes and then pick it back up later tonight.)Report

              • Avatar DensityDuck in reply to Stillwater
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                says:

                “[T]he conditions a voluntary contract must meet to exclude in principle the possibility of harassment are impossible to meet in practice, unless there’s an independent conception of harassment – a free standing one! – that is already viewed as morally wrong.”

                I do appreciate that you quoted me, but I think that if you’re going to say that banning harassment via contract is impossible because harassment can only be identified ex post facto, then how is it possible to write a law making harassment illegal? Is not law effectively a contract binding all of society?Report

              • Avatar Stillwater in reply to DensityDuck
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                says:

                DD, I’m not talking about legal mechanisms at this point, tho those considerations certainly enter into a comprehensive account of the issues we’re talking about. It’s also not to say that the issues I’m talking about entail – one way or another – a specification of legal mechanisms. But that entailment has to be shown, I think, rather than asserted. (I gotta get to work, so I’ll have to delay a mo’bettah answer til later.)Report

              • Avatar DensityDuck in reply to Stillwater
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                says:

                Another post, addressing this:

                “[T]he libertarian must choose between accepting that workplace harassment is wrong full stop, which justifies state intervention, or they bite the bullet and say that it’s permissible because concluding otherwise means that rights, contracts and freedom from state coercion aren’t sufficient for a just society. Notice that nowhere in this argument the law, or legal mechanisms mentioned.”

                Okay, first off, the libertarian would argue that it’s not necessarily true that “wrong full stop…justifies state intervention”.

                To me, if you had to boil libertarianism down to a single sentence, it would be: “If the actions of private citizens can achieve a particular goal, then it is morally wrong for the state to act to achieve that goal”. Obviously this leaves out a lot of subtlety and special cases, but at the same time this sentence is at the base of every statement that a libertarian has made.

                Second, you say “nowhere in this argument is the law or legal mechanisms mentioned”, but what is state intervention if not “the law”?Report

              • Avatar Jason Kuznicki in reply to DensityDuck
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                says:

                One huge thing that people from Chris Bertram all the way down have missed in this debate is that the libertarian toolkit already has a very reasonable answer here: All law is based on an attempt to put into words the norms of rightful conduct and to assign what we judge to be proper penalties for violating those norms. That goes for contract law, too.

                But the norms and the standards of propriety that lie behind the laws are always intuitive and imperfectly articulated. Law derives its moral force in proportion to how well it achieves this difficult task of articulation — which is never going to be fully complete. Right and wrong are intuited, and philosophers and lawyers go running after it.

                This is all more or less to be found in Hayek, in the first volume of Law, Legislation, and Liberty. To apply it to the problem at hand: From time to time, we may find it necessary to articulate some of the bits of previously un-articulated understanding that we have come to find compelling, and write them down, and enforce them. It strikes me as neither absurd nor unlibertarian to recognize (as current U.S. law does) that sexual services are not to be demanded of employees, and that employers are not to create a threatening workplace environment in that respect.

                That type of adjustment is both allowed and even expected in Hayek’s philosophy of law, which I consider the most sophisticated and thoughtful treatment of the subject in the libertarian canon.

                That said, if prostitution were legal, and if the employee agreed to work as a prostitute, that’s an entirely different question. The presumption would be against sexual activity on the job, but that presumption might be broken, in a more libertarian world, by an explicit contract clause to the contrary.

                If we were very concerned, in this imaginary world, that non-prostitution contracts might be converted under pressure into prostitution contracts, we might easily legislate against that danger in any number of ways that still allowed both types of contracts.

                But anyway. The whole debate just irks me. It was never conducted with honest motives in the first place. There was nothing of theoretical interest at stake, and all the participants surely knew it. The only payoff was to kick libertarianism, much as Crooked Timber always does when it gets half an excuse to do so.Report

              • Avatar Stillwater in reply to DensityDuck
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                says:

                To me, if you had to boil libertarianism down to a single sentence, it would be: “If the actions of private citizens can achieve a particular goal, then it is morally wrong for the state to act to achieve that goal”. Obviously this leaves out a lot of subtlety and special cases, but at the same time this sentence is at the base of every statement that a libertarian has made.

                It does leave lots out lots of subtlety and special cases. In fact, if I were to provide a single sentence definition of liberalism derived from within a libertarian framing, it’d be this: insofar as private citizens cannot achieve a compelling moral or pragmatic goal on their own, the state is morally justified in intervening. So the divisions between us, on this issue, are precisely in the subtleties.

                Second, you say “nowhere in this argument is the law or legal mechanisms mentioned”, but what is state intervention if not “the law”?

                The comment ” which justifies state intervention” was misphrased. First, I should have left it out. Second, insofar as I left it in, it should have been in parentheses (since it’s the issue I ultimately wanted to get to). Third, insofar as it was included and in parentheses, it should have included the word “might,” since I didn’t want to beg any questions with the argument as it was presented.Report

              • Avatar Stillwater in reply to DensityDuck
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                says:

                The whole debate just irks me. It was never conducted with honest motives in the first place. There was nothing of theoretical interest at stake…

                Well, speaking only for myself here, I find the debate to theoretically very interesting. In fact, I’m not sure what topic or issue could be more theoretically interesting wrt libertarianism as a theory. And when I turn my gaze inward, to my own otherwise inscrutable motives, I find them to be very honest. That I’m inclined to think this is a problem for libertarians doesn’t meant that I’m dishonest in saying that I think this is a problem for libertarians.Report

              • Avatar Stillwater in reply to DensityDuck
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                says:

                Also Jason: I like you – respect you – as a thinker and a writer, and I’m both drawn to and appreciate the methodology by which advance the issues you find important. But I’m always sidewsiped and left in wonderment when you throw out this “libertarian persecution” stuff.Report

              • Avatar Mark Thompson in reply to Stillwater
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                says:

                Stillwater:

                And that’s the dilemma: the libertarian must choose between accepting that workplace harassment is wrong full stop, which justifies state intervention, or they bite the bullet and say that it’s permissible because concluding otherwise means that rights, contracts and freedom from state coercion aren’t sufficient for a just society. Notice that nowhere in this argument the law, or legal mechanisms mentioned.

                The reason that this isn’t a dilemma is that everyone involved in this discussion accepts that (1) workplace harassment is wrong full stop, AND (2) it is wrong in a particular way that warrants state intervention. You are incorrect, however, in asserting that nowhere in this argument is the law, or legal mechanisms mentioned: state intervention is definitionally a legal mechanism. Moreover, it is an outright synonym for “legal mechanism.”

                And here’s why I think that answer fails: the conditions a voluntary contract must meet to exclude in principle the possibility of harassment are impossible to meet in practice, unless there’s an independent conception of harassment – a free standing one! – that is already viewed as morally wrong.

                Now this is a point that finally leaves room for interesting debate, I think. It seems you’re saying, in effect, that “libertarianism either has an undisclosed morality or it’s basically of minimal use because it provides no definition or conception of harassment.” I suspect you might even push this a little further and say that “libertarianism is of limited utility, and even appears to be tautological, because it fails to define its terms.”

                Now this is actually quite an interesting challenge, I think. If I might toot my own horn a bit, it actually gets to what I view as the central reason why libertarianism is so factionalized despite its comparatively small size: it is premised on limiting government to the enforcement and protection of property rights, but provides little basis for defining those property rights. Nor, it must be added, does it even really give us an indication as to what external sources should be consulted to define those property rights. At best, the Rule of Law concept tells us that the system of property rights has to be stable and reliable and predictable, but it doesn’t tell us how to establish that system from scratch, and there are an infinite number of ways of determining property rights from scratch; meanwhile, the Non-Aggression Principle tells us that the system must reject the notion of “might makes right,” but doesn’t tell us how one acquires ownership of property outside of one’s own body and mind.

                Thankfully, we’re not looking to build a system of property rights from scratch. Applying the Rule of Law principle, this fact would seem to militate in favor of a definition of property rights that is either centered on existing cultural traditions, mores, and practices or on existing laws. But what happens when the status quo definition itself at least partially seeks to legitimize a violation of the Non-Aggression Principle? Which principle controls?

                In the alternative, to the extent the application of the Rule of Law principle is rooted in cultural traditions and mores, and those traditions and mores change to the point that the system of property rights must itself change in order to avoid the arbitrariness that the Rule of Law principle seeks to avoid, how do you implement that without violating the NAP?

                To resolve these conflicts, the individual libertarian must inevitably wind up looking to his own personal morality and interests, both financial and cultural. Depending on the makeup of those interests, the libertarian may wind up functionally resembling a liberal or a conservative on many/most issues.

                This may be why, on specific issues, I so often find myself in agreement with both Tod, who is neither a liberal nor a libertarian nor a conservative, North (and, dare I say, you), a liberal. It also may be why, on specific issues, it so often appears that some of the other self-described libertarians on the site so often appear to be in agreement with the site’s conservatives.

                So what use libertarianism, and particularly libertarian theory, if ultimately it must rely on either conservative, liberal, or purely self-interested values? Here is a post that perhaps provides an answer to that question: https://ordinary-times.com/blog/2009/07/standing-athwart-history-yelling-ha-ha/

                Mainstream libertarianism is, or ought to be, valuable to both liberals and conservatives because of its constant reminder that the duty of government is to protect its constituents’ fundamental rights to be individuals, and to be treated as ends rather than means, and that, in the process of performing that duty, it must take great care to avoid, or at least minimize, doing the the very thing that it is duty-bound to prevent.

                Anarchic libertarianism, though outside the mainstream of political debate, likewise serves a powerful purpose, reminding us that government is an imperfect cure that has the capacity to be worse than the disease.

                I suspect that if the Democrats and Republicans each came to be dominated by libertarian thought, the United States of America would still be quite recognizable compared to its current form since so much is dependent on culture. There’d be some important differences, though: both parties would care boatloads more than they do about basic civil liberties and respecting process – there’d be no War on Drugs (though many drugs would surely still be illegal); states would probably have comparatively more autonomy than they currently do, but less autonomy than they had before the Civil War; health care reform would have probably still passed by the skin of its teeth, but instead of being a bill written by to make Joe Lieberman happy, it would have been a bill written to make Ron Wyden happy. And so on.

                Basically, it’d be a world in which the opinion pages of the NYT and Washington Post were dominated by the likes of Glenn Greenwald, Bill Maher, Radley Balko, and Andrew Napolitano, while the likes of David Brooks, Tom Friedman, et al were relegated to the role of being the lunatics on the sidelines.Report

              • Avatar Stillwater in reply to Mark Thompson
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                says:

                Now this is a point that finally leaves room for interesting debate, I think.

                Well, thanks, Mark, for actually seeing the argument being made here. I mean, that was the point all along, and the libartarianish responded with overwhelming defensiveness, so the hoped for debate will have to be put on hold. So I thank you for your input on the topic. And DD, of course. And Jason K as well. Some people actually understood that there’s a real conceptual point underlying this. Others not so much.

                For my part, I’ve seen nothing to change my mind about the general point being made about libertarianism, tho my mind has definitely changed about libertarians.Report

              • Avatar James Hanley in reply to Stillwater
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                says:

                Stillwater,

                How does a purely pragmatic liberal with no a priori principles start taking such an absolute moral stand on sexual harassment? It’s coming across as awfully principled–you’re not satisfied with the effective outcome, but want a particular underlying justification, about which you are being absolutist–and not at all as a purely pragmatic policy position.Report

              • Avatar Roger in reply to James Hanley
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                says:

                All I can say is this has been a good discussion!Report

              • Avatar Mark Thompson in reply to James Hanley
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                says:

                James, while I agree with the point you’re making with this question, it seems like it belongs as a different thread or discussion.Report

              • Avatar James Hanley in reply to James Hanley
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                says:

                Mark,

                Perhaps. It certainly relates to another couple of threads. But it seems to me (and of course I could be wrong) to so contradict them, that I wonder if referencing them can have an affect on the direction of this discussion.Report

              • Avatar Stillwater in reply to James Hanley
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                says:

                James, you completely missed the point of our last pissing match (Mark didn’t, ask him) and because of that you’re completely missing the point of this one. (Ask Mark!)Report

  14. Avatar Jason Kuznicki
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    says:

    I did suggest the metric system, though I think without offering solid reasons why. I’ll post about that soon, either here or at Balko’s. The audience over there is a lot more conservative, so I expect they will have bigger conniptions.

    I’ll also say that the amount of either naivete or malice that you all seem to attribute to me is… really disturbing.Report

    • Avatar cfpete in reply to Jason Kuznicki
      Ignored
      says:

      To respond to your comment (up and to the right.)
      This was never about Libertarianism or Sexual Harassment.
      The point it is to advocate for laws that have produced unemployment in Spain above 20% three times in the last 30 years.

      Jason,
      Forget liberaltarianism – you (and other libertarians) have been turned into a progressive bogeyman.Report

  15. Avatar Chris
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    says:

    I just thought of one: because a woman’s body is her property, and her home is also her property, a woman should be able to abort her children until they no longer live at home.

    Alternatively: because not having sex denies the right of a potential individual to life, liberty, and the pursuit of happiness/property, everyone should have to have sex with everyone else at all times.Report

    • Avatar Jason Kuznicki in reply to Chris
      Ignored
      says:

      And you get all testy about politicians — politicians whom you don’t even support — being called “babykillers.”

      Seriously. Wow.Report

      • Avatar Chris in reply to Jason Kuznicki
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        says:

        Dude, where did your sense of humor go? Even if you don’t think these are funny, you must at least see that I’m just playing along with the joke of absurd things people think libertarians should believe based on stereotypes of libertarians. Because, you know, that’s what this thread started out as.

        I believe this and a previous conversation we had make it clear that you are simply incapable of accepting jokes about libertarians, because so many encounters with idiots who don’t know shit about libertarians have made you hypersensitive. My suggestion: ignore what anyone who’s not a libertarian says about libertarianism. That way you won’t miss the jokes and you won’t get pissed at the earnest mistakes.Report

        • Avatar Jason Kuznicki in reply to Chris
          Ignored
          says:

          There are jokes that one makes for some audiences, and then there are jokes that one doesn’t. Some of the ones here were funny, and some of them weren’t.

          I didn’t take the Crooked Timber discussion to have been a joke. I don’t think it was. Do you?

          As to yours, I did take it to be a joke. An eyebrow-raising one given that I understand you are pro-choice (like me) but anti-libertarian.Report

          • Avatar Chris in reply to Jason Kuznicki
            Ignored
            says:

            No, I didn’t take the Crooked Timber discussion to be a joke, but I took this one to be one (it explicitly started out that way). So my comments here were all meant as jokes. They weren’t necessarily meant to related to anything I believe or anything any libertarian believes.

            I do wonder, if you thought they were jokes, what this is supposed to mean, then:

            And you get all testy about politicians — politicians whom you don’t even support — being called “babykillers.”

            Seriously. Wow.

            Seriously? Wow? Did you take Tom’s “Babykiller” to be a joke? Did you really find my “kill ’em all” and “fuck ’em all” to be offensive? To whom? Obviously no one thinks that way.Report

            • Avatar Jaybird in reply to Chris
              Ignored
              says:

              While this thread was intended to be light-hearted, there are some barbs.

              Specifically, I realized how much of a strawman the argument given by Bertram actually was when writing the post. In trying to put together a serious argument against him, I realized that I just didn’t have the energy… for more reasons than merely that I had been run ragged after work.

              The foremost one being that nobody had argued the position that Bertram was arguing against. Bertram instead came out and said “Hey, shouldn’t Libertarians believe X?” and then argued for a bit against X.

              It was the ethical equivalent of asking if the logical conclusion of “you didn’t build that” was putting wreckers in work camps… except without a sense of humor about what words they were putting in the other person’s mouth.

              The joky nature of the post was treating the argument with the seriousness it deserved.Report

              • Avatar Chris in reply to Jaybird
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                says:

                Yeah, that’s what I figured. My first joke was something about libertarians thinking I should own a nuke and be able to use it against intruders. These two (contradictory) statements about what libertarians should believe was meant in the same vein: so absurd that, even if it’s not seen as funny, no one could possibly think I’m serious.

                I haven’t really followed the Bertram-BHL discussion. I read that initial multi-authored CT post and thought to myself, “Why aren’t they just saying that libertarians tend to not give enough attention to labor issues,” which, it seems, was what they ultimately wanted to say. After that, I saw no need to follow a discussion that was off to a bad start.Report

              • Avatar Jaybird in reply to Chris
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                says:

                Well, the BHL folks, atheist god bless them, treated the discussion seriously, which allowed CT to continue to treat it seriously. Here at the OG (atheist god bless us), we tend to argue the meta points more than the pedestrian ones (atheist god knows, the pedestrian ones are so very dull).

                Ain’t nothing wrong with arguing over what we’re *REALLY* arguing about seriously… any more than getting upset over someone pointing out that, hey, the road you’re walking down leads to the gulag, comrade is something worth doing even after the clown says “hey, I was just kidding… comrade.”

                There are jokes and there are jokes. Some jokes are funnier than others. The funnier ones are easier to forgive.Report

              • Avatar Stillwater in reply to Jaybird
                Ignored
                says:

                I find it amazing that you still don’t see the argument. Flanigan offers a contracts and rights account of which workplace harassment is impermissible: it violates the conditions of employment agreed to by the employee. If so, then presumably, workplace harassment is permissible if it is included in the contract. That much I hope we can agree on.

                You’re response to that argument is twofold: 1) that Flanigan never advocated for the permissibility of workplace harassment and 2) Flanigan personally thinks that workplace harassment is morally wrong. Neither of those address the objection, or the claim she’s committed to in her argument: that workplace harassment is permissible if its entailed by the contract.

                So, why are your answers misguided? First, 1) whether or not she’s personally advocating for workplace harassment (she’s not) irrelevant to the argument being made, which is limited to the ‘contract and property rights’ libertarian’s argument accounting for its impermissibility. That argument entails that if harassment is included in the contract, then it’s permissible.

                If you don’t see that, here’s how Mark T resolved the dilemma:

                Look, libertarianism is not a system of morality, and it is not a religion … Nor, I must jump to add, does it purport to be. It is a system of political theories about the proper role of government, no more, no less.

                The libertarian argument is that workplace harassment, in addition to always being morally wrong, may always be prohibited. Why may it always be prohibited? Because it’s impermissibly coercive. Why is it impermissibly coercive? Because it is undertaken against a person without their consent and unilaterally changes the fundamental terms of their employment.

                Mark’s answer as to why harassment is impermissible is that it violates the non-aggression principle. As such, workplace harassment is impermissible because it’s an instance of the otherwise general prohibition. So in effect, if Mark is right, then Flanigan’s argument is wrong. And while it may be true that the legal reason why workplace harassment is impermissible is because it violates a contract, the conceptual reason is that it violates the non-aggression principle, full stop.

                Make of that what you will, but Flanigan did make the argument you keep insisting she didn’t make.Report

              • Avatar James Hanley in reply to Stillwater
                Ignored
                says:

                Mark’s answer as to why harassment is impermissible is that it violates the non-aggression principle. As such, workplace harassment is impermissible because it’s an instance of the otherwise general prohibition.

                In which case boxing, football, and consensual S&M are all impermissible.

                Or we could say that if you’ve contractually agreed to something, it’s not actually aggression against you, so therefore is permissible.Report

              • Avatar Stillwater in reply to James Hanley
                Ignored
                says:

                The point, James, is that violating the non-aggression principle is impermissible, full stop. Mark made that argument – which I think is correct! Flanigan didn’t.

                James, you’ve missed the point of this whole thread right from the beginning. It’s not, as you’ve sorta hysterically assumed, an effort to undermine libertarianism. It began with JB making the claim that a specific view liberals attribute to libertarians is a strawman. When I presented evidence of libertarians making that claim, he denied the evidence. So I provided more detail and context.

                The point you want to talk about is very tangential to both the point I was making with JB, or the point I was making with Mark. In fact, I don’t really know what point you’ve been trying to make in the fiew comments you’ve made in this thread.Report

              • Avatar Stillwater in reply to Stillwater
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                says:

                The same goes for the other thread where you thought I was attacking libetarianism. You were wrong about that. But you were so enthused about arguing as you were I didn’t feel like correcting you.Report

              • Avatar James Hanley in reply to Stillwater
                Ignored
                says:

                Stillwater,

                No, I don’t think I have missed the point of the thread. I don’t think it’s about you attacking libertarianism. I think it’s about you misunderstanding the libertarian view of the non-aggression principle.

                We are agreed that violation of the non-aggression principle is impermissible. The question is, what counts as aggression? Boxing is aggressive–people are trying to literally cause brain damage to each other (every knockout is a concussion). Football is aggressive–players are trying their utmost to hit other players, hard. S&M is aggressive–one person is literally whipping another, or something like.

                If those aggressive actions violate the non-aggression principle, then they are impermissible. But I don’t think they are impermissible, and I suspect you don’t, either (of course, correct me if I mis-state your position). So clearly we are claiming they do not violate the non-aggression principle. That is, we have concluded that some aggressive actions that would be impermissible in certain contexts are permissible in other contexts.

                So what context makes them permissible? I argue that it is consent by the target of the aggressive act. A boxer consents to having another boxer try to damage his brain. A football player consents to other football players hitting him within the field of play during the time between the snap of the ball and the referee’s whistle. And the masochist consents to the sadist’s whip.

                A person, then, can surely consent to sexual aggression in the workplace. So how do we know if the person has consented? By the terms of the contract, explicit or implied. If the terms of the contract, explicit or implied, do not allow for the boss demanding sex, then it is an impermissible act of aggression, full stop.

                And because the lack of contractual agreement to the act means the act is impermissible, full stop, the person you referred to did not actually say what you are saying she said. She did not shy away from condemning sexual harassment/aggression–she said (and I paraphrase) “it is only sexual harassment under conditions where the contract, explicit or implied, is broken, because if the contract, explicit or implied, allows for it, then the employee has consented, and when there is consent, the otherwise impermissible action is permitted.” Just like punching someone in the head during a boxing match.Report

              • Avatar Jaybird in reply to Stillwater
                Ignored
                says:

                Remember when you said “JB, she never says harassment is wrong. She says that violating the agreed upon contract (“abrupt change in job decription”) is wrong.”

                Good times.

                Now we’re arguing over whether there are any circumstances under which there would be a contract that would allow for sexual harassment in Libertopia and whether the potential for the existence of such a contract in such a society indicates that Libertarians think that sexual harassment is not, in itself, morally wrong when it’s established beforehand that it’s consensual?

                Is that what we’re hammering out now?Report

              • Avatar Stillwater in reply to Jaybird
                Ignored
                says:

                JB, her personal views about the morality of harassment are irrelevant to the libertarian analysis she provides. I mean, I’ll just quote Mark again, since his view ought to hold some sway with you:

                Look, libertarianism is not a system of morality, and it is not a religion … Nor, I must jump to add, does it purport to be. It is a system of political theories about the proper role of government, no more, no less.

                I mean, do you really not understand your own theory?Report

              • Avatar Jaybird in reply to Stillwater
                Ignored
                says:

                Personally, I see it as being vaguely moral, as these things go, in the whole “choosing to not do wrong” can be said to be a moral action… but I totally see how other folks see it differently.

                I don’t think that he’s “doing it wrong”, however, given that there’s more than one way to do anything. If I disagree with him on this, it’s certainly not a disagreement where I see him as being wrong in such a way that requires my attempts to change his mind. He reached his conclusions honestly and, let’s face it, there are folks who will see his Libertarianism as preferable to mine.

                Let them go to his. Even if they do so for reasons I don’t agree with, they’ll end up in a place where they will be better off for having gone there.

                Which, at the end of the day, seems more important than making sure that one holds the right bell, book, or candle as one makes the incantation.Report

          • Avatar DensityDuck in reply to Jason Kuznicki
            Ignored
            says:

            “There are jokes that one makes for some audiences, and then there are jokes that one doesn’t.”

            Yeah, just ask Tosh about that.Report

      • Avatar Chris in reply to Jason Kuznicki
        Ignored
        says:

        Also, I should note that what irks me about “babykiller” has nothing to do with the particular individual to whom it was addressed. I don’t know that dude, except that he’s a Democrat and from Missouri, so I would probably dislike him on both accounts.Report

    • Avatar Jaybird in reply to Chris
      Ignored
      says:

      If you’re gestating a baby, you didn’t make that.Report

    • Avatar James Hanley in reply to Chris
      Ignored
      says:

      I just thought of one: because a woman’s body is her property, and her home is also her property, a woman should be able to abort her children until they no longer live at home.

      Come on, Chris, you know libertarians don’t believe women should be able to own property!Report

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