Intro. [Recording date: May 11, 2023.]
Russ Roberts: Today is May 11th, 2023.
Before introducing today's guest, I want to belatedly list your favorite episodes of 2022 from our Annual Survey.
We'll put links to those episodes in the transcript for this episode, so feel free to go back and listen to some of those if you missed them or to enjoy them again.
I want to remind listeners that we are also on YouTube. I want to remind viewers that we are also at EconTalk.org and any place where audio podcasts are heard.
I also want to just mention that we have many, many more downloads on the audio than we have views on YouTube. So, those numbers on YouTube are not representative. We will get about--listeners, we will get about 100,000 to 120,000 or sometimes more downloads of an episode on audio; and videos on YouTube are getting somewhere usually under 1,000--although there are exceptions, as this week's [May 8, 2023] episode with Eliezer Yudkowsky is quite popular on YouTube.
Russ Roberts: And now, on to today's guest, a man who placed twice in the Top 10 of 2022: Michael Munger of Duke University. This is Mike's 45th appearance on EconTalk. Mike is on about every 20 times. That's two and a half times a year, roughly. We're all glad he's here, but he has now--drum roll--his own podcast. So, before we get started on today's topic, Mike, tell us about your podcast.
Michael Munger: Well, it's typical Hollywood tactic of having a spinoff of--once there's been enough appearances, we'll have a spinoff.
I have for some time been interested in the problem of transactions cost and people are tired of me talking about transactions cost. So, typically, if someone is tired of hearing you say something, you should have a podcast about it. That seems to be the way that the world works. It's called The Answer Is Transaction Costs. I describe in the first episode the reason why that is the title, but basically, the premise of the podcast--it'll be about 15 or 20 minutes once a week, fairly short--and, the goal is to look at, explain norms, things that are surprising in the world around us and ask, 'Why do we do things that way?'
The premise is that we actually already know the answer, because the answer to every important question and many unimportant questions is transactions cost. The reason that we do that is transactions cost. And exploring why that might be true gives me the opportunity to bring in what I think are some under-recognized results and thinkers in the history of political economy.
Russ Roberts: Where can people find it?
Michael Munger: It is everywhere where fine podcasts are sold, so it's on Spotify, it's on Apple, but I will send you the link to the podcast. If you don't mind, then put it up on the show notes for this episode.
Russ Roberts: Well, for a modest charge.
Russ Roberts: No problem.
Michael Munger: May I make one note, also, about the list? There has already been a pretty vigorous protest to your listing of the ranking of listeners' favorites. Dwayne Betts wants to point out that my interview with you was not in fact a podcast by me.
Russ Roberts: Yeah, that's true.
Michael Munger: So, the highest that I did was 10th, which means that Dwayne beat me. He wants the world to know that.
Russ Roberts: Yeah, he's eager to pass you in the number, but you're making the point that your appearance on the list at number seven was clearly a sham, a hoax, and a fabrication.
Michael Munger: My response to that was that was the fourth time I think that I've been host and he has zero, so I'm ahead of him on that also. So, Dwayne?
Russ Roberts: But, I think we'll have to put asterisk there.
Russ Roberts: Okay. Today's topic is a rather extraordinary short essay, which actually was originally a speech and was transcribed verbatim, supposedly, by someone in the audience. The speech was given, we think, around 1919, 1918. It was published in The Atlantic in 1924; and it was given by a man who I'd never heard of, Lord Moulton, John Fletcher Moulton. He was an English mathematician, barrister, judge, and Member of Parliament.
In addition, he was in charge of ammunitions in World War I, which he received an amazing number of honors. I'm just going to mention them because it's just so entertaining. He got the Knight Commander of the Order of Bath in 1950, the Knight Grand Cross of the Order of the British Empire in 1917, the Etoile Noir of France, the Order of Leopold in Belgium, and was the last person to receive the Order of the White Eagle for the collapse of the Russian monarchy--taken from Wikipedia.
His speech, which he gave, was given at the Authors' Club of London, and the speech was titled--I don't know if it was titled by Moulton himself--"Law and Manners," which is a dreary subject on the surface.
Mike, you uncovered this speech and The Atlantic version of it and sent it to me. It was going to be the underpinning of our last conversation. So, in some sense, this is a sequel. We got off the track--shocking--and never got to this, but I have to say I found this very short article and speech to be quite remarkable and I would like to read the opening paragraph and get us underway. Sound okay?
Russ Roberts: Okay. This is Lord Moulton speaking in 1918, 1919, or so.
Michael Munger: And the fact that we don't know is amazing. I try to publish my grocery lists, and he had no thought of publishing this. He just gave the speech and then that was it. We only have it because someone gave a true transcription and later it was published.
Russ Roberts: Yeah, it's crazy. It was published after his death. So, we don't really know if it's a true transcription--just to be somewhat nitpicky. But I presume it's close to accurate.
Okay, here's the opening of the speech. It's called "Law and Manners," by Lord Moulton. Here we go:
In order to explain my title I must ask you to follow me in examining the three great domains of human action. First comes the domain of positive law, where our actions are prescribed by laws which must be obeyed. Next comes the domain of free choice, which includes all those actions as to which we claim and enjoy complete freedom. But between these two there is a third large and important domain in which there rules neither positive law nor absolute freedom. In that domain there is no law which inexorably determines our course of action, and yet we feel that we are not free to choose as we would. The degree of this sense of a lack of complete freedom in this domain varies in every case. It grades from a consciousness of a duty nearly as strong as positive law to a feeling that the matter is all but a question of personal choice. Some might wish to parcel out this domain into separate countries, calling one, for instance, the domain of duty, another the domain of public spirit, another the domain of good form; but I prefer to look at it as all one domain, for it has one and the same characteristic throughout--it is the domain of Obedience to the Unenforceable. The obedience is the obedience of a man to that which he cannot be forced to obey. He is the enforcer of the law upon himself.
So, the central idea of this opening paragraph is that there are laws that we have to keep. There are other areas of life where we have freedom. And in between is this strange, hybrid obedience to the unenforceable. That phrase--obedience to the unenforceable--to me, makes this a majestic essay in and of itself. Keeping that in mind, obedience to the unenforceable is really a magnificent concept. It gets at many ideas and concepts we've talked about many times on the program. Mike, what do you want to say to get us started?
Michael Munger: There's just so much here. Russ and I were talking before we started recording and I said that I had tried to go through and underline all the important parts. And, I realized I'd have been better off crossing off the unimportant parts because it would've been about two sentences. So, the thing that the freshman undergraduate does when they try to highlight stuff and then they highlight the whole book, it's not very helpful. But this is in fact magnificent. I think that I wish that we could take that word out of its box, the wrapping paper still crinkling and use it for the first time to describe this essay, because it is magnificent.
He later on gets to discuss the problem of free debate in Parliament. We'll get to this, but to foreshadow: The difficulty that he saw was that free debate presupposes that you don't actually say anything that you want because that destroys debate. So, free debate can be self-destroying if you actually take that seriously. You have to recognize that there are unenforceable obligations of self-governance.
That's where I wanted to start, was: this theme of self-governance is one that comes down to us through the ages in political economy and in moral philosophy. In fact, one of my very favorite summer activities when my wife and I go to the beach for five weeks is I listen several times to the six podcasts that you and Dan Klein did about the Theory of Moral Sentiments. That theme of stoicism and self-governance comes up over and over again. And, it seems to me that this really connects to that idea of self-governance.
But, let me start with the basis of the Platonic debate. The main question that Plato wants to ask in the Republic is: 'Why be moral? Why would we have obligations that we're actually bound to recognize and obey, to the larger society?' And, Thrasymachus--or at least the persona of Thrasymachus that Plato conjures--says that actually justice is the interest of the stronger. That means that if I have the power to do something and it is in my interest to do it, it's actually moral for me to do it.
Now, unsurprisingly, Socrates destroys this view, but that notion that if I am able to do something and I want to do it, I am allowed to do it, is the chain that it keeps popping up, and that's some of what Moulton is looking at here.
I have long argued--and let me just make a brief summary, as inadequate as it will be--I have long argued that the fundamental human social problem is the design or maintenance of institutions that make self-interest not inconsistent with the collective good, the larger good, what it is we're trying to accomplish as a society.
And, institutions are the rules of the game. They don't have to be formal laws, but they're the rules of the game that we all recognize and that we obey.
Now, if we only obey them because we're forced to, then that will be too hard to enforce. And that's a big part of what we're going to get to with Moulton here.
There's two basic approaches to solving this fundamental human problem of reconciling self-interest and the collective interest. One of them is to take self-interest as given and try to design a set of rules and institutions that make these two things coincident. And, those are often called--I think, probably unfairly given Smith's intention--but those are called invisible-hand mechanisms. We try to design institutions that make my self-interest actually advance or at least not damage the collective interest. Another thing--please?
Russ Roberts: Just to interrupt for one sec. I apologize. But, you say we 'try to design.' Many of these institutions emerge.
Michael Munger: I said design or maintain.
Russ Roberts: You did?
Michael Munger: Design or maintain.
Russ Roberts: I wasn't sure what you meant by that, but I just want to make it clear--
Michael Munger: Maintain if they emerged spontaneously.
Russ Roberts: Yeah. Okay. So, many of the norms and habits, customs, manners emerge spontaneously; and presumably Hayek would argue that those that are effective stay and those that are not may have trouble enduring. Carry on; I apologize.
Michael Munger: No, no, absolutely. You're right for bringing it up. It's an important point.
So, the difference--the distinction that we later think of between law and legislation--becomes really important in Moulton's essay, because by definition, these are not statutory. The things he thinks that should govern our behavior and allow us to self-govern are almost certainly emergent norms that we recognize are unenforceable, but we obey anyway because we want to preserve these norms. They have to be in a way self-preserving. So, you're absolutely right to raise the point.
So, let me say it again because there were a bunch of words there.
The fundamental human social problem is the design or maintenance of institutions that make self-interested individual action not inconsistent with the welfare of the collective. One way we often try to solve this problem is through invisible-hand mechanisms and the use, I should say, of institutions. Now maybe these are market institutions. Maybe it's like James Madison said: that ambition will be made to counteract ambition in having separation of powers. But there's all sorts of circumstances where we have individual self-interest lead to the collective benefit.
But, there's another way, and this connects to our discussion last time. There's another way of doing this and I guess I would think of it as the moral approach, the moral self-governance approach.
And, one of the most famous advancers of this perspective was Rousseau. Jean-Jacques Rousseau thought that we could basically redesign people to get them to internalize these norms. The way he described it--and it's very evocative--is that we'll inscribe the law on men's hearts. And, inscribing the law on men's hearts is what Moulton wants to advocate here. That is, not because it's written in some statute book, but because it is written on my heart and I do it because it's the right thing to do. In fact, it would break my heart to do the wrong thing.
I think many people on our side have underestimated the importance of these kinds of moral strictures that we obey because they are the right thing to do. And, Moulton does just a terrific job of explaining why this is so important.
Russ Roberts: Yeah, when you say 'on our side,' you're talking about people who want to maintain a large--Mike and I, I think, agree that in an ideal situation of governance, there is a large sphere of behavior that is not governed by legislation. Unfortunately, Lord Moulton calls that 'laws,' and that is the common everyday use of it. Hayek made a distinction, as you alluded to, between law and legislation. Legislation, in Hayek's terminology is statutes that are passed by the legislature or brought down by the king. Laws, in Hayek's words, are norms and other things that emerge.
And, I think for the sake of this conversation, we'll probably want to violate that Hayekian distinction and reserve the word 'law' for legislation as it's usually understood in everyday language.
We have lots of episodes on this. We'll put links up to those if you want to go further into this.
But, you said there are two ways. There's a third way, and this is the way of, I think, the modern trend. The third way is to expand the scope of legislation and what Moulton calls law to prescribe things through the power of the state. Things that are unattractive to us, which maybe should be our duty or should be part of being a well-mannered person, have become illegal.
And, one of the issues I just want to mention because I think about it a lot and I know you do: it's hard to understand, but things that are legal are not necessarily things that should be done.
And similarly, many things that should not be done perhaps should not be illegal. They should just be part of what Lord Moulton was calling manners. That is: obedience to the unenforceable. So, we don't enforce them through the state. We enforce them through our social interaction.
It's a very Smithian--I think we'll talk about Adam Smith a little bit later. But, they come from our own compunction, our own eagerness and willingness to, quote, "do the right thing." And, I would argue that that desire and willingness has been eroded--for many, many reasons; it's a whole longer conversation probably--but it has been eroded. That puts pressure on the state to use the power of the state to enforce the things that were once unenforceable. It also crowds out, tragically, the natural impulse of norms to emerge and institutions to emerge that would enforce these without the state.
And that play, that back and forth between our imperfection in creating a demand for government intervention and then that government intervention crippling at times or handicapping our ability to solve these problems through the methods you just talked about--either Rousseau or the norms-and-institutions method--that is, I think, a huge part of the dance between state power and individual freedom that has been the last 100 years or so. And, Lord Moulton makes you think about that.
Michael Munger: One way I've tried to illustrate this problem, the difficulty that we face in mechanism design--so, "Russ Roberts 1992" would say, 'Well, we have a bunch of principal-agent problems and we have to design'--for those who missed it, "Russ Roberts 1992" was a persona that we can conjure and call back from the past to tell us things.
Russ Roberts: And, mock and humiliate him. Yeah, I remember.
Michael Munger: Well, he came up in the context of Wild Problems and he had questions for "Russ 2022," 30 years later. There had been some changes in the script, but "Russ 1992" would say, 'Oh, these are all principal-agent problems. We understand those. All we have to do is design a set of rules and impose those. And yeah, there's transactions cost problems, but we'll optimize those.'
And, that's probably not really right. So, the idea that there's a 'we' is a problem, and the idea that we know enough to know the mapping from institutions into outcomes is a problem. In fact probably, what we need to rely on is the emergence of what James Buchanan called the relatively absolute absolutes, what Adam Smith called the sense of propriety.
And the reason I think that we--to start again with Adam Smith as we've already talked about a little bit, David Hume had this idea that if we see an action and it seems good to us, then there's a kind of evolutionary selection to make sure that actions that seem good to us are in fact also morally good. So, we get a sense of pleasure from seeing someone act something good, do something good. We respond positively. The person then feels good about it because they have deserved our approval.
Adam Smith elaborated this in his system of propriety and when he talks about the four different origins of moral sentiments. He thought that over time, human beings both individually and collectively, were capable of honing--of perfecting--this sense of propriety, this kind of self-governance. So that, much of our behavior would actually be governed by the reactions of others which we had internalized to such an extent, it was as if others were sitting on our shoulder--that others were just sitting on our shoulder in the person of the impartial spectator.
So, it's not directly that I only do this if I see that you were there and I worried about your approval. I act as if you were there, because I want the approval of the person--if that person were there--that is now represented by the impartial spectator or the man in the breast. So, that internalization of moral sentiments is the mechanism, I think, by which Adam Smith tried to spell out the problem we're talking about.
Russ Roberts: And Smith, in one of my favorite passages in The Theory of Moral Sentiments, basically says that: My desire for your approval and your desire to avoid my disapproval, etc., is really the foundation of civilization. That the norms that emerge from that process are what allow us to interact with each other with grace and pleasantness to make our plans. And he actually says that we are the deputies of the author of nature--meaning God doesn't need to strike down with lightning bad people. God put inside human beings this desire for the approval of others and to avoid disapproval. And that is sufficient to--it's not sufficient. It pushes us in a direction of doing the right thing.
He's well aware it doesn't work all the time. He's well aware that sometimes laws are necessary, but there's an impulse toward being a decent human being even when you don't want to be, because you don't want to lose the respect of the people around you.
Russ Roberts: I want to add one point, which I think Moulton does not talk about very effectively. I think it to me is the crux of the matter. That's my only complaint about it; but hey, it's an after-dinner speech and I cut him some slack. The puzzle is: What's the harm in expanding the law--the legislative impulse--and restricting unattractive activity, rather than leaving them as the unenforceable--that is, relying on our own self-governance? And I think this is really not natural when we think about this challenge.
So, we all agree that rudeness is bad. We all agree that hateful speech is bad. We all agree on many, many things. Yet to legislate those behaviors as areas for the state to prescribe them, I think the biggest problem with that--there are many, many problems with it--but one of them is the obedience to the unenforceable, this middle domain that Moulton emphasizes, what's magnificent about it is that it is flexible. It is nuanced. It is able to react to the facts on the ground that are unavailable to the state. The state's banning murder, banning theft, rape, horrible things--those are typically yes/no. Happened or didn't happen. It may be hard to determine, but there's very little question.
Eventually, there could be questions about whether the murderer had done things that--maybe it was self-defense. There are all kinds of legitimate questions. I don't mean to suggest it's straightforward. But I'll take a simple example--trivial--whether to jaywalk. Jaywalking is illegal. I've mentioned on the program before: here in Jerusalem, you get a ticket. It's not unusual. In New York City, jaywalking is encouraged. It is both legal, and the norm is, if you can get across, go. And people do walk the streets of Manhattan, [?]--
Michael Munger: Well, you get the disapproval of taxi drivers who will blow their horns.
Russ Roberts: Sometimes. But, otherwise, it's well-understood in New York that even if jaywalking is illegal, it's not enforced. I shouldn't use that word. The law is not really effective. I have[?] to say--it's not enforced.
And similarly--we've talked about in the program many times--55 mile an hour speed limit meant 62. If you went 58 in a 55 [58mph in a 55mph speed limit zone], you weren't speeding. There's a certain cultural exemption that everybody understands. The police understand it, you understand it.
I think I've told the story in the program before. A friend of mine is lost. He's trying to get to the Boston Museum of Science. He can't get there. He finally sees a police officer; he's so excited. He says, 'Officer, I'm trying to get to the Museum of Science. I can see it from every corner I've been on, but I can't figure out how to get there.'
And the officer says, 'Go down two blocks here, take a left, go straight for three blocks, and you'll see it.' And the driver--this is a true story: a friend of mine told me this. He said, 'I said to the officer, "But, Officer, that left you told me to take, that's going the wrong way on a one-way street."' And the policeman said to my friend, 'Take a chance.' Meaning in this situation: I'm going to let you do it.
That's the case where there actually is legislation or what Moulton calls law, but in many areas of life, what are the strictures?
The norms of behavior, they bend when the circumstances are extreme or when there's information that's available to the participants that could not be foreseen by the legislation. So, there are many, many areas like this in life where we figure out among ourselves what we need to do to make things go well in the moment. And, you don't want to have a one-size-fits-all piece of legislation.
Michael Munger: So, the reason that that example is so useful, I think, is that knowing that some roads are two-way and some are one-way is an important coordination device. So, we could have this not actually be a rule that's enforced, but: This road here is generally one-way; only use it if you actually have a very good reason for doing so. So, long as people only did it, so long as they literally had a very good reason for doing so, and it happened two or three times a week, it's really not a problem. It would be okay to have this as a coordination device and not a statute. But, if everyone says, 'Well, hell, it's shorter if I go that way,' and everybody starts to go the wrong way, then you have to have a law which is enforced and no one gets to do it.
Russ Roberts: Yeah, exactly.
Michael Munger: So, we've talked before about the Pittsburgh left turn, which is an example where it's actually against the law. There's an ordinance in Pittsburgh against the Pittsburgh left turn. But, the norm is that if I'm about to turn left and I'm the first car in the line of cars, the car going straight in the other direction lets me go. Now, if everyone were to do that--the second, third, fifth car, everyone just turns left across traffic--there's going to be accidents. We're going to have to outlaw it. We're going to have to prevent it. But so, long as it is used judiciously and when it's actually necessary, it's a big improvement. We don't need to have the left turn arrows, all this grid of one-way streets. It's much more efficient if we can use discretion instead of a rule.
When we substitute rules for discretion, we'd lose something, but the discretion can only be used if you're actually going to say, 'I only am going to do this if I really need to do so.'
Moulton gives a great example that made me think of Twitter or the U.S. House of Representatives right now, several more paragraphs after the one that you read. It's just prescient:
In the changes that are taking place in the world around us, one of those which is fraught with grave peril is the discredit into which this idea of the middle land is falling.
So, when you say we should have laws against--there are many people who say we should have laws against hate speech: 'We all know it's wrong, so there should be laws against hate speech.'
Well, I'm not sure that that's right, because deciding what hate speech is means that we're going to prevent a lot of speech that wouldn't have been hate speech but might have run afoul of the statute. So, it's better just to allow people to say hateful things and have social approval be the mechanism by which it's controlled.
First, I will take freedom of debate in the houses of legislature such as our own House of Commons. For centuries the members had unrestricted freedom of debate, and no inconvenience was felt. But in recent times some members of this House have said to themselves: "We have unrestricted freedom of debate. We will use it so as to destroy debate. The absence of imposed restriction enables us to do it."
So, the fact that it's not illegal means that I'm allowed to do it.
Well, only if you ignore the unenforceable rule that says you're not allowed to do this unless you really need it to make your point. If you want to do it for the sake of destroying debate--not for having a vigorous debate--we're going to prevent it.
This obstruction was developed, and it has destroyed freedom of debate. The freedom due to absence of positive restriction has been treated by the individual members as leaving their use of debate a matter of absolute choice, fettered with no duty that they were bound to regard. They shut their eyes to the fact that the freedom was given to them in trust to help forward debate, and that it was incumbent on them so to use it. Clumsy and even mischievous regulations [Mike Munger reiterates "Clumsy and even mischievous regulations!"] have necessarily been introduced which fetter debate but prevent its being absolutely stifled. The old freedom cannot now be entrusted to members, because when they possessed it they did not respond to it by the exercise of that moral sense which would have led them to treat it as a trust, and not as an absolute possession, unburdened by obligations which they should compel themselves to regard.
Russ Roberts: Yeah, rather incredible. And it reminds me of how fragile civilization is and how easy it is to destroy it and how hard it is to build it up.
So, if you have a set of norms surrounding speech, say, in the House of Commons--or many, many other areas where people are given freedom and there's very few formal restrictions and we rely on obedience to the unenforceable. We leave it alone. And if people abuse that and then you're forced by--[?] that you were talking about and that Moulton talks about, to impose clumsy and mischievous regulation, you do improve the situation. But, you said yourself, 'Well, wouldn't it be better--because it's clumsy and it's sometimes mischievous: things go very wrong, unexpected consequences--?' Again, we mentioned earlier the bluntness of the restrictions that doesn't allow for the flexibility that would normally be there.
And, you say, 'Well, okay. Well, let's get that norm back. Wouldn't it be better?' Very hard to get there from here. Very hard.
And I think the urge to create norms is very natural, but they're extremely difficult to create. They emerge. Almost by definition, they can't be created. Which means that we are stuck with the clumsier and more mischievous methods for restraining misbehavior.
And, that's a tragedy. We had Yuval Levin on the program and his book A Time to Build--that's what his book is about. His book is about how duty is dead.
People use their platforms, instead of to do what's right, to perform on that platform and to enhance their own reputation or their Twitter following or whatever or their own self-aggrandizement, their power, as opposed to realizing that they have an obligation--that is not going to be enforced.
And, once you fail to be obedient to that unenforceable obligation, creating that obligation is very difficult because you feel like a sucker. If everyone else is talking too long--as I am doing now--I'm violating some of the norms of the host of EconTalk only because it's Mike and we have long-term friendship and he understands that maybe next time he'll get twice as long.
But, if you violate that--if you don't violate it, everyone else talks twice as long as they used to and you're left with something smaller, you start to say, 'Well, I'm a fool. Doing what's right is foolish.' And then you've lost that norm.
I would argue that a lot of what's disturbing about the world right now is the erosion of those norms. We are left with either disobedience to the unenforceable and facing the choice of having to legislate improvements.
Michael Munger: This passage that we just talked about made me think of two things. One is practical and one is more theoretical.
Montesquieu, the French philosopher who was writing in the 1720s and 1730s, asked a really great, great question: Why is it that the members of society should be given liberty?
He wanted to argue in favor of a presumption of liberty. So, Adam Smith also wanted to argue in favor of a presumption of liberty, but many people who talk about the sort of libertarian invisible hand ignore the set of responsibilities that come with it.
Montesquieu is very explicit. He said, 'The reason that we have liberty is to do what we ought to will.' The reason we have liberty is to do what we ought to will. That is, there's a set of moral and ethical considerations that restrict what we can will.
If we systematically will things we ought not to will because they harm other people, we run the risk of losing liberty, because we're going to impose a set of rules rather than allowing our own discretion governed by what we ought to will.
So, the practical example that I thought about was: We're on the verge of losing a norm in the U.S. Senate, which I think is very valuable, and that's the filibuster.
So, the filibuster was a rule that even an individual Senator can hold up debate basically inevitably, indefinitely. And, several Senators, if they come together, can take turns in speaking unlimited free debate, the world's greatest deliberative body.
The Senate is not, now, the world's greatest deliberative body, because that right to filibuster--that right of the individual to prevent passage--can only be stopped by the passage of measure or resolution of cloture, which requires 60 members of the Senate. So, what's happened is, the rule of the filibuster, which was supposed to be used only rarely and in emergencies, has been taken to mean that any individual Senator can prevent the passage of any legislation they happen to disagree with for whatever reason. And, the only way that that can be prevented is if 60 Senators vote to shut off debate, which means that, de facto, it now requires three-fifths of the Senate rather than 51% of the Senate to pass basically any legislation at all.
That kind of gridlock forces the majority party in the Senate, whether it be the Democrats or the Republicans--I'm not making a partisan point. It means that we're probably going to lose the filibuster, which was a useful--this is exactly what Moulton was talking about--it was a useful mechanism of saying, 'I'm going to prevent the passage of legislation that I think is really damaging, but I can only do that once every three or four years. I can't find every piece of legislation that I disagree with to be worthy of filibustering.' So, the filibuster, because it a right, has become a tactic or strategy, which when overused is going to result in the elimination of that ability. And then, once we have pure majoritarian choice--once 51 Senators can do anything--we will have lost something really significant.
Russ Roberts: But, I thought you were saying that it requires 60 now to do anything significant.
Michael Munger: We have cut the filibuster back and back and back. It does require 60. And since it does--the filibuster is not in the Constitution. The filibuster is actually not even statutory. It's part of the rules of the Senate. And, at the beginning of every Senate, a majority decides what the rules are going to be. We are in danger, I think, of a majority, be it Democrat or Republican--whoever controls the majority of the Senate--they're going to adopt a set of rules that don't have the filibuster in them. And then, it'll be 51%. And then that's terrible.
So, there's three states of the world. Let's be clear. I realize it was confusing. One is it's 51% except that in an emergency, you can use a filibuster so long as you obey the unenforceable rule that you don't use it too often. That was the status quo for a long time. That's what I claim is good.
The current state of the world is that the unenforceable rule is broken so often that now it requires 60 votes to get anything passed. That's unacceptable.
I think we're going to move to the third state of the world where we're going to eliminate the filibuster. And that's way worse than the first state of the world where the unenforceable rule was still obeyed out of a sense of honor and what was called Senatorial courtesy. Senatorial courtesy would bring the smile, I think, to most people because there's very little courtesy among senators now. It's a snake pit. But it doesn't have to be that way.
Russ Roberts: Yeah. And of course, it's true of many, many, many other places where we interact as human beings.
Michael Munger: Exactly your example, where I don't want to be the chump. So, I want to filibuster this, but I think, 'You know, it's not that important. I shouldn't do. It's not right.' But, I see other schmoes filibustering things that are trivial, that some lobbyists paid them to say, 'You filibuster this.' Well, why would I do that? I'll filibuster anything I disagree with, too.
Russ Roberts: Yeah. I mean that phenomenon, that's a closed box--the Senate. But out in the real world, the bigger world, we all make our own assessments of whether we're chumps or not that is being taken advantage of. Tax compliance would be an example. There are many, many others. I think about, 'How do you treat the people who work for you? How do you treat them? Do you treat them well or do you treat them badly?' The marketplace will punish those who treat them particularly badly.
But, under certain situations, I would argue particularly the minimum wage, which allows you to have lots of people who like to work for you relative to a more free market setting, unfortunately, tragically, that allows people to be cruel to their employees because they're not going to find another minimum wage job. They're scarce. They're not around. There are very few of them. Many of those people will end up unemployed, without a job.
Michael Munger: Or accepting of abuse and mistreatment because they can't--so, the only two choices they have are stay in this job and accept abuse and mistreatment or be unemployed because they're not going to find something else.
Russ Roberts: And the flip side of that, by the way--I've been thinking about this week, I saw somebody talked about it on Twitter, don't remember who it was. They said, 'I feel bad hiring someone to clean my house because I'm more powerful than they are and I can afford to hire them. Why is it that I get to be the person who hires someone and that other person, the cleaner, has to be the person who cleans the toilet?'
I understand that, and I may have talked about this decade and a half ago, but indulging in that is punishing that person that you're supposed to be helping. By saying, 'I'm not going to stoop so low as to hire. I'm not going to be so offensive as to hire someone to work for me,' means that person doesn't have a job.
So, now they can work for someone else. But, if it's a widely held norm that it's unattractive to have cleaning people, then people who otherwise have no better alternative are going to be stuck doing that other unattractive alternative, whatever it is.
Instead, what you should do, folks, is treat the people who work for you, whether they're your cleaning people or maintenance people, whatever it is, with respect and dignity. Yes, if you make a horrible mess, don't say, 'Oh, I'll just let the cleaning person clean it.' Clean it yourself. Give that person some dignity that they're not cleaning up your mess. But, to vacuum and to dust and to polish or whatever it is, it's not demeaning. It may not be what your first choice is, but it's allowing someone to put food on their table.
So, do it in a dignified way, and that should be the norm. Not: My norm is I don't hire cleaning people because I think it's degrading. That means that the people who clean your house have to do something even more degrading.
Michael Munger: I have two responses. First, longtime listeners will recognize that Russ is referring to his experience with his housekeeper in Chile, who is a Colo-Colo fan, who I think he has talked about a couple of times on the show.
Russ Roberts: What a memory you have, Mike.
Michael Munger: Well, it's a really striking example. You followed her from room to room trying to talk to her in broken Spanish because you felt bad about her cleaning your apartment. She's thinking, 'This is creepy. I'm just here to clean the apartment. I don't need to have some personal relationship with this guy.'
Russ Roberts: Right. And I'm thinking, 'I don't want to have this person be subservient to me. We're just like equals, but she just happens to be using the broom.' And that was ignorant. She was a single mom with a child and she desperately needed--
Michael Munger: She needed to get done.
Russ Roberts: That too, but she needed the job.
Michael Munger: Yes, she needed the job and she needed to get done. She didn't need to have a conversation so you would feel better.
So, I use that example often because it is a perfect one and it doesn't involve me.
The second reason, the second thing that is important is there's an underlying principle here that my good friend, the philosopher Matt Zwolinski has talked about, which is that we should govern our moral impulses by what is called non-worseness. There's a famous book by a guy named Wertheimer on non-worseness. Non-worseness means that if I have a moral impulse, the first thing I should ask myself is, 'Does exercising it make the person that I care about worse off?' And if it does, don't do that.
So, we're not going to buy stuff from sweatshops because sweatshops are exploitative. So therefore, I will go into the sweatshop and say, 'I've come to save you. You're all fired.' That doesn't make them better off.
So, this principle of non-worseness is, I think, something that we should use as a habit. Which is the place that, if you don't mind, I wanted to go to next.
One of the things that Moulton's analysis suggests is that we have a set of impulses which, over time, we can either cultivate or we can say, 'No, that's actually wrong. Let's not do that.' So, if I have the right to do something and I always do it, then I am cultivating a habit of vice. But, if I say, 'No, I shouldn't do that: that would be wrong'--
Russ Roberts: I can, but I won't--
Michael Munger: 'I will not in this instance,' because it's not that important.
You talked about this a lot in Wild Problems in a way that I thought was really effective.
And, one of the reasons that the cultivation of habit is important is this idea of becoming. So, Marcus Aurelius said, "Such as are thy habitual thoughts, such also will be the character of thy mind; for the soul is dyed by the thoughts." The important thing about the fact that the soul is dyed by my thoughts is: over time, it takes on the hue of my impulses. And, that means that I am projecting to the world and I conceive of myself as being the sort of person--and this is what you said in Wild Problems--I'm the sort of person who does the right thing. And so, I'm presented with a situation; I know what the right thing to do is because I've made it a habit.
I find a wallet on the street. I don't look at the amount of money. I don't look around to see if someone has seen me. I say, 'This is someone else's wallet; I'm going to return it.'
And so, the cultivation of habits means that my soul has been dyed--in Marcus Aurelius' evocative metaphor. That soul, that character, is the set of virtues and vices that I have cultivated over time.
And, the reason that I think that is important in this context is that it connects, psychologically--Daniel Kahneman had a book Thinking, Fast and Slow. If we have internalized a set of habits along the lines of Moulton, where we just do the right-but-unenforceable thing out of habit, and we all cultivate that habit, then the society that we live in is much better--for me, and for everyone else.
If I'm the only one doing that, I'm a chump and it won't work. If everyone else does it but I don't do it, I start to corrode their commitment to those habits. So, it really is important that I look around, I see everyone else doing it.
So, in game theory terms, there's multiple equilibria. In social terms, there are multiple equilibria. One equilibrium is: we all do the right thing even if no one is watching. And another one is: we never do the right thing, even if someone is watching, because they're not going to approve. And, all human beings are capable living in either of those worlds. It's not human nature to be one or the other. That's something that's socially constructed.
Russ Roberts: And, the story I like, that I tell in Wild Problems--it's trite, it's corny, but I sometimes remember it--which is, that's a strong thing in its favor--is the story of the person who says, 'I have two dogs inside me, a good dog and a bad dog. They fight a lot.' And the other person says, 'Which one wins?' And the answer is, 'The one I feed the most.'
Michael Munger: That is great.
Russ Roberts: Isn't it great? I mean in many ways, I talk about--I tell the story of "The Happy Hypocrite," which is a story I recommend to people. It's magnificent. By Max Beerbohm.
Certainly, Dan Klein on this program talked beautifully about how habits change us, how behavior--doing the right thing--relentlessly as a habit starts to become who we are, not just who we aspire to be. And vice versa: If you acquire a bad habit and you feed it, you will start to become that person. We have that choice.
Michael Munger: And we can come up with justifications. We're all good at that. We can come up with explanations why in this case it was okay.
Russ Roberts: Yeah. And that's another reason why rules are so powerful relative to discretion. In theory, given that we're supposedly rational, discretion is always better than rules, because--along the lines of what we've been talking about. We've been talking about it for culture and society, that special circumstances often--it's okay to jaywalk or it's okay to speed. I'm taking my wife to the hospital to deliver a baby. No officer will enforce that law. It becomes the unenforceable and it's totally okay.
But, the problem with that is that my rationality is very limited and I'm really good at persuading myself. As Feynman said, 'The most important thing is not to fool yourself. You're the easiest person to fool.' That is very hard to remember, and that is the power of rules. And, it's hard.
Michael Munger: I used to dismiss these sorts of arguments as slippery-slope arguments--and a slippery-slope argument is a way of dismissing a claim that someone else has made without taking it very seriously. I really was brought up short by you and Dan Klein's discussion in Adam Smith, The Theory of Moral Sentiments, about the person who steals a little bit of money or corrupts the wife of a friend and then comes up with reasons why it's okay: 'Well, they weren't getting along anyway. It was an unhappy marriage.' Once you start to justify the fact that you don't need to obey the rules, that you can come up with reasons why it's okay in this instance not to obey the rules, you're starting to fool yourself. And you are the easiest person to fool.
And so, these are not slippery-slope arguments. What they actually are is equilibrium behavior. What equilibrium means in game theory is that my expectations are fulfilled by the actions of other people and their actions fulfill my expectations. You can break these surprisingly easily. It doesn't take many actions that are unexpected--that is, someone has acted badly--for me to say, 'Well, wait, maybe I don't have to obey the rules either.'
Russ Roberts: Correct. I want to just throw in one little monkey wrench to the narrative we're working on here. When I talk about a cleaning person or a minimum wage worker, I think there is a natural impulse to say, 'Well, that's true in this case that you should hire that person even though it may be painful to clean for another person, but the whole system is corrupt and we need a whole new system.' That is a natural impulse. I understand it. I respect it as an impulse. I don't respect it as a strategy. But, that would be another subject for a different day. We might talk about that another time.
Michael Munger: Well, I have some friends who I won't name, but who are politically on the Left. It drives me crazy--if I go into a classroom and the board has not been erased from the previous person--
Russ Roberts: That's a good one--
Michael Munger: And sometimes I'll know who it is that has done it, and it is one of my leftist friends, and they'll say, 'Oh, I do that to make sure that the cleaning people have a job.' No, you did that because you're a lazy son of a gun and you've just come up with this reason why it's okay for you to act badly. Clean your own damn board.
Russ Roberts: Yeah, I think about that a lot. Littering falls in that category. Creating work for people; you are, but it's not the right way to do it.
Michael Munger: Bastiat would say that that way--the broken window way--of creating jobs is probably--
Russ Roberts: Exactly--
Michael Munger: not the best way to do it.
Russ Roberts: So, I don't know what else you want to say. I have one more thing to say about Moulton. There's much more to say. I want to go to the end because he starts talking about the second word in his title. The title of the talk is "Law and Manners." Manners, for us in 2023, are seen as archaic. They're bourgeois. They are restrictive. They are unnecessary. And I have to say, living in Israel, you don't have to wear a tie. Almost never. I see you're wearing a tie today, Mike. That's lovely. You look good in it. But, I am not wearing a tie. I'm going to a wedding tomorrow. I won't be wearing a tie.
Michael Munger: I bet you're wearing pants though. I'm not wearing pants.
Russ Roberts: Oh, good point. That's an excellent point. I will. I wish I could have not laughed--too hard. I will be wearing pants. That's a norm. The norm is pants but no tie.
Michael Munger: So, Israel is a civilized country. That's good.
Russ Roberts: It is a civilized country with this great thing for me that I happen to love that you're not expected to wear a tie to a wedding. There are exceptions, but in general, most weddings are not just not black tie: no tie.
So, manners are, I would say, out of fashion in the modern world, but not just in Israel in terms of ties, but in many wealthy and civilized countries that no longer keep those rules that we call manners.
But for Moulton, manners are much broader. He's going to have a quote here: 'Manners makyth man.' Now this is an expression: 'Clothes make the man.' By man, of course, we mean the person. It's an old quote. 'Manners makyth man' comes from William of Wykeham. I hope I'm pronouncing that correctly.
I mean, it's a really wonderful phrase. When we say 'clothes make the man,' we're saying usually that how you're perceived is--if you're well-dressed, you're going to be thought to be a person of seriousness. But, manners maketh man is a much bolder claim. It's saying that--it's really closer to whether you're a mensch or not, a mensch being a person of upstanding behavior, male or female.
So, I'm going to read his last paragraph. He says,
Now I can tell you why I chose the title "Law and Manners." It must be evident to you that manners must include all things which a man should impose upon himself, from duty to good taste. I have borne in mind the great motto of William of Wykeham--Manners makyth Man. It is in this sense--loyalty to the rule of obedience to the unenforceable, throughout the whole realm of personal action--that we should use the word "manners" if we would truly say that "Manners makyth Man."
So, for Moulton, manners is the shorthand way of saying: When dealing with the unenforceable, you are obedient to the norms and expectations of those around you. And that is in many ways the highest compliment I think that a person can receive. It certainly was for Moulton.
And, I love this idea that manners aren't just about opening the door for an older person, letting somebody go ahead of you if they're carrying something heavy, making sure that you're wearing a tie in a certain situation, but it includes all the situations from fulfilling your obligations, your duty, all the way to the small things. And those are what make us who we are. I love that. I think it's very beautiful.
Michael Munger: And, it is important to recognize the reason that Moulton closes that way is, earlier on--and you read it--but he had said: Maybe there's three different things we could categorize this as. So, the way that I act in public, the way that I act around my family, and the way that I act when no one's looking.
And, if you segment those, then that's not really what Aristotle would've called character. So, this is an extremely Aristotelian passage in the sense that, what I've done is cultivate a set of virtues and vices with an active, reason-based set of impulses where I want to do the right thing.
And the reason that I do the right thing is that I'm the sort of person who does the right thing. I do it in public when I get credit for it. I do it around my family, not because I have to, but because I want to treat them well. And I do it when I'm all by myself because I don't want to have to think about these things: I do the right thing.
If I do that in all of those settings, then manners makyth the man. It creates a character, and your character is the set of virtues that you have actively cultivated until they've become a habit.
What I think is interesting about this essay and the reason that I've really enjoyed getting a chance to discuss it with you is that this idea of what he calls a middle country, using a sort of geographic metaphor--there's a nation--is that it has borders that have to be defended. The defense of those borders is something that all of us should be committed to.
And in fact, most of the time, we're just thinking of ways to take advantage, to go in and harvest some of the things that we want from this nation, rather than saying, 'No, we need to defend this against attack. Because if none of us defend it against attack, the nation itself will cease to exist and we'll be sorry.'
Russ Roberts: I want to say two more things before we close, and I'll give you the last word. You sent me a link to this essay and I opened it. It pulled up the text, but there was a button that says you can press it and turn it into a PDF [Portable Document Format] and see what it looked like when it came out in The Atlantic layout. I did that. I can't miss this, Mike. Because of that, looking at the PDF version, I get the first page of the next article in The Atlantic in 1924[?]--
Michael Munger: About skunks--
Russ Roberts: The title is "I Like Skunks," by Louise Dickinson Rich. I'll just say The Atlantic has come a long way. Although I'm sure--it's a mixed bag. You get Moulton and you get the skunk article.
Michael Munger: That was so charming.
Russ Roberts: But, the other thing I wanted to say, and at one point, I think you alluded to libertarianism. I call myself a classical liberal. A classical liberal believes in limiting the sphere of government and enhancing the sphere of personal freedom, as well as having a sense of obligation and responsibility as an individual to what I really understand now is the unenforceable. And I really think this is a nice way to think about ideology. I think libertarians often get parrodied--lampooned--as libertines. The libertarians say, 'We want legal drugs,' because they want to be able to do drugs without legal consequence. I want a world where I'm free to take drugs, but I choose not to. I think that is the road to human dignity.
So, there are many, many other things to say about where the boundaries--the borders--of that unenforceable territory should be.
So, one way to think about my worldview is that I want to expand the borders of this middle domain--this middle country--into the areas where law and legislation restrain me. But, I still want to avoid many of those behaviors, even though I'm free to do so, because either I choose not to do them for my own wellbeing or I think that they're not good for others around me. Not drugs, but I'm now talking about corruption and opportunism. I would like to live in a world where my own conscience restrains me and not the gendarme, not the police. But, I think it's interesting how libertarians and libertines often get conflated. And I think that's not helpful.
Michael Munger: That's such an important point. And, as someone who runs for office pretty often as a big-L Libertarian candidate, it is a question that often comes up. Whenever I do an interview with the media, they'll say, 'Would you legalize drugs?' and give me the microphone. And I'll say, 'I want to assure you that in a Munger administration, heroin use would not be mandatory.' And usually, they go on to say, 'Oh, wait. You're just kidding.' Because they're not paying attention. That's just a stupid question that you want to ask Libertarians.
However, we have not done--we, and now I mean small-l libertarians, classical liberals, all of the people who are skeptical of state intervention as the best means of achieving self-governance of a society of free and responsible individuals--and say, 'Well, we have to have the government do this.' We should have made more of an effort. We who want to advocate for that position, we spend too much of our time criticizing the state rather than celebrating people.
My definition of a libertarian is someone who thinks that human beings, for the most part, are capable of creating emergent structures and institutions of cooperation that are not coercive. Given time--given the ability to create supply chains, voluntary organizations, clubs--we can create a society characterized by cooperation that is also not coercive.
So, I believe that people are essentially good. And I don't think that that claim has been made enough by people on the classical liberal side. I think that it is possible for people to come up with new ways of cooperating without being coerced to do so.
And, the fact that we can use the threat of coercion often means that people bail out from the idea of cooperating and just take everything that they think that they're legally entitled to, which destroys the impulse to cooperate.
Russ Roberts: And having said that, I think you also agree with me that you don't want to eliminate the domain of what Moulton calls laws, or what Hayek would call legislation.
I am not an anarchist. I don't think you are either. Somehow this is too subtle for some people. I'm totally happy with government providing defense. I'm totally happy with government providing police and courts. There are many things government does that are great, because they can't be done well by the obedience to the unenforceable. And, the idea that you could have three countries is somehow mysterious to most people. But I think that's the right way to think about it.
Michael Munger: I would say that I'm in favor of a rebuttable presumption in favor of liberty and responsibility.
Both parts of that are important, liberty and responsibility.
And, only if people demonstrate that we're not capable of doing this, then might we reluctantly use the law.
But, there should be a very strong presumption in favor of individual, free, and responsible people making choices on their own, rather than having the first resort be, 'Well, we don't like this. Let's pass a law against it.' We need to think about the consequences of doing that for the fact that it's going to change the character of people's cultivation of being moral, ethical, responsible citizens.
Russ Roberts: I call it being an adult. We shouldn't treat people like children. And, it seems like the right thing.
Michael Munger: If we treat people like children and victims, then they will cultivate the ability to be able to collect the rewards of doing those things. And then you'll have a rent-seeking contest based on who can come up with the best story of being a victim.
What Moulton does very well is to say: An alternative would be to cultivate the approval of others for always doing the right thing, because manners maketh the man.
Russ Roberts: My guest today has been Mike Munger. Mike, as always, thanks for being part of EconTalk.
Michael Munger: Thank you, Russ.