The Consent of the Governed

In this episode of When We Disagree, political philosopher Daniel Layman dives into his book-length debate with anarchist Michael Huemer, tackling one of the most fundamental political questions imaginable: is government ever legitimate? Layman defends the messy, imperfect middle ground — what we call “the slog” — arguing that while governments can be unjust, they’re what make equal rights possible. We explore why nuance is hard to defend in a world that loves slogans and how to emphasize grey areas against radical positions. 

Tell us your argument stories!

• Email guest and topic suggestions to us at whenwedisagree@gmail.com
• Follow us on Instagram

Transcript

Michael Lee : [00:00:00] When we disagree is a show about arguments, how we have them, why we have them, and their impact on our relationships and ourselves. Let's bet on a coin flip heads. You win $150 tails, you lose a hundred dollars. Rationally, you should take this bet. It's even odds, and you stand to win more than you stand to lose.

But most people refuse. The reluctance stems from loss aversion, the psychological principle that losses hurt roughly twice as much as equivalent gains. Feel good. This quirk of human psychology explains why many arguments become so intractable. Danny Kahneman and Amos Ky discovered that people will fight harder to avoid losing something more than they will to gain something of equal value.

This isn't just about money. It applies to relationships, status, beliefs, even parking spaces. Once we possess something, we overvalue it simply because it's ours. Consider how loss aversion, [00:01:00] inflames, everyday disputes. Divorce negotiations turn vicious, not over acquiring assets, but over not losing them.

Neighbors. Feud for decades over inches of a property line. Employees resist new systems, not because the old way is better, but because change means losing familiar routines. That friend who won't throw away broken appliances, they're not just hoarding, they're experiencing the pain of loss, and in relationships, loss aversion creates peculiar dynamics.

We stay in unsatisfying situations because ending them feels like losing, even when staying in them means missing better opportunities during arguments. Conceding a point feels like losing ground, so we defend positions we don't even care about. The fear of losing face becomes even more powerful than the desire to resolve conflicts.

Organizations struggle with loss aversion constantly. Companies clinging to failing strategies because abandoning them, meaning means acknowledging losses. Employees won't share knowledge because they fear losing their unique [00:02:00] value. And teams resist restructuring even when current structures aren't working at all.

Even the endowment effect where randomly assigned coffee mugs suddenly become precious to their new owners, demonstrates how quickly we attach ourselves to things we perceive as ours. Reframing tra changes as trades rather than losses can reduce this kind of resistance. Instead of give up your old processes, try exchange your current process for one that saves you some time.

In negotiations, making the first offer anchors possession in your favor. When someone won't budge, consider what they might fear losing beyond the obvious stakes. I'm Michael Lee, director of the Civility Initiative and Professor of Communication at the College of Charleston. Our guest today on When We Disagree is Daniel Layman.

Daniel is an associate professor of philosophy and the chair of the Philosophy, politics and Economics major at Davidson College. He's written two books. Locke among the radicals, [00:03:00] liberty and property in the 19th century, and is political authority and illusion a debate. Dan, tell us an argument story.

Daniel Layman : Well, first, Mike, thanks so much for having me on the podcast. I'm excited to be here today and tell you this story. So. The story I have for you is actually about the second of those two books that you mentioned. As, as the title suggests, this book is a debate. This book is grounded in and even just is a disagreement between two people, between me and my co-author, Michael, humor of the University of Colorado.

And I was asked to do this book sort of out of the blue. No, Mike Humor is, is quite a, a big deal in political philosophy and everyone knows his views. Everyone knows that he's an an anarchist, right? Which is the view that governments of any kind, not just particular governments, you know, this one, that one, but just governments in general are, are not legitimate, that they do not have a right to tell us what to do ever.

Right? It's a [00:04:00] radical position. And he is very well known for having forcefully defended that view. So an editor at Ledge reached out, said, Hey, you disagree with Mike humor, right? I said, you know, I suppose I do. Mm-hmm. And he goes, well, would you like to write a book debating this issue with, with Mike?

And of course, and of course the answer was yes. And so one thing led to another, and then we were, you know, we were off to the races. So this debate was interesting in that. It's about a really fundamental issue about politics, right? It's something at the very, very foundation of how we think about our political lives.

It's not just, is this policy good? Right? What should social security be like? What should you know? What kind of government spending should we do? The disagreement is, is it, is it okay to have governments at all? Right? So I had to marshal sort of, arguments that were not only as strong as I could make them, but mm-hmm.[00:05:00] 

Sort of walked this really difficult line between, on the one hand being highly fundamental, right. Getting at the most basic issues of political morality while also being charitable, right? Mm-hmm. Mike and I had to find ways to charitably read one another's arguments, even though we don't, not only disagreed, you know, forcefully, but disagreed.

Spin about the most basic way you can disagree about this topic. Which yeah. A bunch of interesting challenges I'll be happy to talk about. 

Michael Lee : Sure. Tell us, overview the debate as, as quickly as possible. Yeah, 

Daniel Layman : absolutely. So Mike starts very powerfully with a story, right? So imagine that you live in a neighborhood and you have a, a neighbor who.

Correctly thinks that things have gotten pretty shoddy in the neighborhood, right? The parks are in disrepair. Maybe there's young hooligans who are littering on the street or causing property damage, whatever, 

Michael Lee : uhhuh. 

Daniel Layman : This neighbor takes it upon his or [00:06:00] herself to get this, get this in hand. So she does whatever needs to be done you know, picks up the trash, you know, pays for new benches that the hooligans have, have damage or whatever these hooligans, but then, but then comes to your house, says, and knocks on the door and says.

Here, here's what I did it really needed doing. And you say, that's cool. Mm-hmm. But then she says, and now you owe me about 22% of your income 

Michael Lee : Sure. 

Daniel Layman : To, to help offset the costs. And you say, well, I didn't really sign up for that. That's not cool. I didn't consent to 

Michael Lee : that.

Daniel Layman : I didn't really, I don't really wanna do that.

And she says, well, here's the thing though. It's not optional, and you will be locked in my basement if you don't pay me. Okay. Now Mike thinks plausibly that we think that's really not okay, and it doesn't become okay. No, it doesn't matter how good the, the purpose is that this person wants to achieve no matter how unsightly the damage to the park, no matter how bad the potholes in the road, whatever.[00:07:00] 

Michael Lee : Yeah. The 

Daniel Layman : fact is, even if she's doing a good thing, she doesn't get to demand our money and then threaten us with being locked up if we don't give her the money. Okay. 

Michael Lee : All right. 

Daniel Layman : So. This is supposed to be an analog to the state. Mike says, this is what the government does every day. They say, there are various things we wanna do.

We wanna, you know, build roads, schools, whatever. Let them be as good of of aims as you want them to be. And then says, and now you're gonna help us pay for it. And it's not optional and you will be imprisoned if you don't help. 

Michael Lee : Okay? What's your counterclaim to? This 

Daniel Layman : is what the government is like. Okay. I say not.

So here's the difference I say. We all have rights. Actually, Mike and I agree on this. Mm-hmm. We all have basic moral rights that people have to respect. But here's the thing. In my view, if in a world without an authority, right, who's answerable, not just to some of us, but to all of us, right? Whether my rights, your rights, any of our rights actually remain [00:08:00] safe is just up to what other people feel like and how powerful they are.

Right. So if suppose we didn't have a, a government at all existing between us. Well, you have aims. I have aims. You have rights. I have rights. What is, are any either, what is either of us able to expect rationally about the security of our rights? Well. It just turns on what you're able, what you want, and what you're able to make me do, right?

Mm-hmm. And, and vice versa. And I say, but the whole point of rights is that rights cannot depend on people's arbitrary wills like that. That's why we care about having them. The point of rights is to make sure we don't depend on other people like that. So my argument is the state is not like the vigilante who knocks on your door and demands money.

Because the state is what makes it possible for us to relate to each other as equal rights holders in the first place. So that's, that's the core of our disagreement. 

Michael Lee : I wanna talk about the, the debate itself. In other words, the kind of style of debate, [00:09:00] if I'm characterizing your position's right. Y this person is, is making a claim that essentially is, is really essentialist, is that all government is based on a foundation of coercion, of people telling, exploiting other people, of people, telling other people what to do.

And they have no right to of the rest of us basically enslaved without our consent by this completely irresponsive government. And that's. Every government, that's my current mayor, all the way up to pole pot and everything in between. So man, we're painting with such a big, ridiculously large brush here and your claim is somewhere in the middle, right?

It's not like, well, no, in fact, all government is good and individuality is a complete fiction, and therefore we have to collectivize to protect all of our security. Your claim is. Let's just not be ruled by capricious whims and maybe look at what's going on in stateless places. [00:10:00] Syria comes to mind right now where there is no responsiveness.

That doesn't mean, let's go back to Assad's regime, but it does mean that the rule by arbitrary decree is, is silly, a silly way to protect rights. So you're kind of in the middle. Making, you know, to characterize it, I hope, as fairly as possible. It's kind of a situational set of judgements that you're having to make, right?

You're not defending all government, whereas he's attacking all government. So this is a really long setup to, I think, I hope, a fairly simple question, which is, what is it like to occupy this kind of situational, contextual, it depends middle, when you're debating somebody at an extreme. 'cause that person's always gonna say, you're not as pure, you're being illogical.

You're betraying your own belief system. And here I am, the purest out on the ledge. 

Daniel Layman : Yeah, that's a great question, Mike. And it's, the answer is that it's, it's really tough because when you occupy that kind of position where you know, fine, fine lines make a difference, right? And a [00:11:00] lot of judgment about the details has to be made and, and really matters.

You can be pressed with questions like, well, okay, you think. Government has this unique feature that can make it legitimate. Well, what about, you know, this particular case, what about the American government, which you know, is not like an Assad regime, but you know, has been and continues to imprison people like Guantanamo without any legal recourse, right?

That seems to be a fairly tyrannical kind of action. What about the history of just staggering racial injustice? Right, which was. Perpetrated purposefully by this government in, in some ways continues to exist. W why, why should we think that when even our favorite governments, you know, the United States uhhuh, and we can have comparable lists of activities for other democracies, have these kinds of things going on.

Well, how can you say that there's this this legitimacy to any degree isn't the pure position. And then I found myself in the position of having to say, [00:12:00] well, yeah, that does damage legitimacy to some degree, but not the whole degree. Right? And think about how, you know, what the trade off would be of, you know, trading off all of the authority in its capacity for rights enforcement in order to avoid the admittedly high cost injustice being perpetrated by it.

Those kinds of moves are in a way less satisfying than. This whole thing sucks. Right, right. This whole thing is, is you know, shot. So that's, I found that very top, but I found myself in a position of having to make much finer grain and sometimes less immediately compelling moves than right the wrong absolutist position was able to make.

Michael Lee : Yeah. Let's stay here for a second. I find myself really drawn to this, the dilemma that you're in as a defender of a situational middle versus a radical on either side, frankly. Yeah. A radical to your left or a radical to your right, because. The, the real benefit of taking that radical position is that you look insufficiently committed to your principles.

So [00:13:00] you look like a, basically a charlatan, you know, or somebody who's, whose finger is in the air trying to figure out which way the wind blows. And the second problem is more of a rhetorical problem, which is. It's virtually impossible to slogan ear. It's virtually impossible to render your position into a really compelling bumper sticker when this guy is over here saying taxation is evil, and all government is slavery is coming from a position where you know, you can't distinguish between a bank robber and a bank because they're both robbing you, right?

They're all moral equals in this person's mind, but you can't make those kinds of. Really galvanizing slogans because it's quite so situational. 

Daniel Layman : Yeah. I sort of thought through at one point when I was writing this, what would a slogan position 

Michael Lee : look like? 

Daniel Layman : And it would be just the worst slogan ever. It be something like, you know, government is often, but not always legitimate a lot of the time, but in many cases, less than you would hope, which you know, one [00:14:00] doesn't fit on the back of your car.

And even if it did, you know who'd wanna read it? 

Michael Lee : I'd wear that t-shirt. I'm in you, you start selling that, man. I'm in. It reminds me there's a, a great essay that Margaret Atwood who wrote The Handmaid's Tale, many other things wrote in the Atlantic relatively recently, where she talked about this rhetorical dilemma and she was talking about it in terms of you.

You know, I believe in human freedom, but not at the expense of my ability to hurt you. I believe in free speech, but not in my propensity to galvanize immediate violence. I believe in representative democracy, but I don't think that we should vote on every bike lane every time. It's, there are limits to our participation in democracy.

And you see where I'm going with this? Absolutely. It's on Absolutely, and on and on and on is I believe in these things. But much like going to the gym or going to therapy, it is a bit of a slog and you have to make determinations about what's right in the moment with some [00:15:00] guideposts, with some larger principles in mind, but you're always defending those and to some extent sacrificing them.

Situational moments. And so she called it the slog. Right. This is the slog of the belief and the benefit Yeah. Is that it is very welcoming, it's very understanding of people, and the dis benefit is that there's no such thing as a revolutionary slog. 

Daniel Layman : Yeah. I think that's a great point. I, I need to remember that.

'cause I like the way she puts it. Mm. I think that I was, I found myself committed to a slog. Mm-hmm. And although that led to some frustrations mm-hmm. When the other person isn't sort of seeing their pursuit as. Slog. I really do think that the slog is where we need to conduct most of our social and political disagreements.

Mm-hmm. Because the, the reality of sharing a social world together is one in which principles, reasonable principles can and do and will conflict. When you try to apply them, they, there will be judgment that is, [00:16:00] is, you know, doesn't bottom out in something else. There's just judgment that has to be done.

And the there'll be, you know, disagreements about how to do that judgment and those won't neatly resolve. And at the end of the day, what you're gonna get is significant, if you've done it right, is significantly less than what you would hope for in your best. In your best case situation, which in a sense can feel less inspiring than, well, you know, ushering in the revolution, whether that's destroying the state for anarcho capitalism or, you know, ushering in the you know, the dictatorship of the proletariat, 

Michael Lee : right?

Daniel Layman : If you committed to the slog, you kind of have to say like, you know what? We're gonna argue, we're gonna use our judgment. It's gonna be hard, we're gonna screw it up, and at the end, well, you have to keep going and you probably haven't gotten everything you wanted.

Michael Lee : Yeah, that's right. 

Daniel Layman : That's I think, the truth about working deliberatively through a social world.

Michael Lee : That's right. That's right. And it is, it is a kind of, to my mind, a realistic function, a realistic goal, [00:17:00] but it can easily be characterized as, as pessimistic on the one hand. You know, and as weak need on the other. Let's talk a bit about the form of the debate and the outcome of this debate. It's one thing to, for you to, whether you're in the pages of, you know, some, some literary magazine or some big public venue, or you're on TV debating about the proper role of government and it's another to do it in the same book, why do it in the same book?

Daniel Layman : Yeah. So one reason, which I think is a very good reason is that the publisher Routledge, wants these volumes, and there's a number of them on different, different philosophical topics, 

Michael Lee : uhhuh, 

Daniel Layman : to present to students debates that are conducted at a high rigorous level in, in a single volume. So students can, can sort of interact with this as, as a sort of high quality argument unfolding in front of them.

Michael Lee : Right. But I 

Daniel Layman : think that's a very. Good pedagogical tool. Yeah. So that, that's, that's one reason why the, the [00:18:00] press and so, so many other presses put out these books, but the way it actually unfolds is chapter by chapter. So Mike wrote the first chapter arguing for the Truth of his View. Then I replied, then we, he wrote a shorter.

Then the first chapter reply to me and I wrote my second short, shorter chapter, and then we each got closing statements. So it was a kind of discursive back and forth, which actually I think works quite well. 

Michael Lee : Yeah, I, I agree with that. And as somebody who's very much pro debate, I'm very interested in, in books or shows or whatever that really showcases real debate.

I mean, I often ask people if there was, if your book was a television episode, if Netflix commissioned a show that had a reasonable moderator, you know, who's essentially just a decent debate coach trying to make everybody's argument better and hear all sides, not trying to promote a point of view, just a pro debate agenda.

And Netflix has this, and then they get experts like you. To come on. And here's the [00:19:00] proposition is, is government evil or something along those lines? And then you say no. And he says yes. And we go from there. It's a 30 minute episode. You get 15 ish minutes. That person, Mike, your co-author, gets 15 ish minutes and we call it a day.

You know, the question for me is, would you watch that show? And I, I think a decent number of people would watch it provided it doesn't descend. And this is where my question is going, provided it doesn't descend into the stereotype of debates as either acrimonious, angry fisticuffs on the one hand, or just people not answering the question and not dealing with the topic and having side by side completely unresponsive press conferences, but sharing the same stage.

So my question is, I. You obviously had a position, you were chosen or self-selected to write on behalf of a position you already believed. He was already relatively influential in this philosophical circle for, for being an anarchist or pushing anarchist ideas. Was there, did you come in [00:20:00] and rehearse the arguments you had already believed?

Was there anything in the debate that made you kind of change your mind or come to his side or him to come to your side or see the world differently? Or is the book a vehicle. For you to kind of concretize, to formalize the things you've already said, the things you already believe. 

Daniel Layman : Yeah, it's a great question and I would just say I would absolutely watch that show someone makes that show a reality.

Michael Lee : All right. 

But you and me both. 

Daniel Layman : Yeah. So I'd say I definitely did. Develop and in some ways change my view in the course of writing. Mm-hmm. This book. Mm-hmm. So I, in going into it, I had a general sense of why I, I took it to be possible for government to be legitimate. But I never actually published directly on that issue.

I published on. Issues sort of surrounding it or tangential to it, but never directly on it. So I had never been asked to actually sit down and work out really rigorously. 

Michael Lee : Mm-hmm. 

Daniel Layman : Why exactly I think this is true. [00:21:00] And why exactly? I think the kind of vigilante challenge is, is not successful and this, the act of doing this debate actually mm-hmm.

Gave me the opportunity to build out my sort of. Decently put together, but somewhat in Coit reasoning into sharp, clear, I hope. Convincing argument. I should say too, to your second part of your question. One point which we really interestingly did agree and I had actually not thought about until Mike pressed me to think about it, was jury nullification, 

Michael Lee : right?

So 

Daniel Layman : jury nullification is. What happens when a jury of, you know, a, a jury of, of appears in a, in a trial typically, but not necessarily a criminal trial decides that they're not going to find someone guilty? Mm-hmm. A crime that for which the the prosecution has in an ordinary sense presented sufficient evidence on the grounds that those jury members take the, the case or the law, or both to be egregious and unjustified.

Mike argued that, [00:22:00] this power of jury nullification is a very important kind of moral check on the power of the state. Which of course he'd prefer not to exist at all, but he thinks that it's a kind of little breaking in little 

Michael Lee : yeah. Sort of 

Daniel Layman : crack of anarchism. Yeah. In, in the edifice of the state.

And I actually took his point. I decided, you know, and I didn't put it quite the same way, but I wanted to say, you know what, this is, so far as we build this power of juries into our role, that's a kind of, sort of direct hardcore accountability of the state to the people that can help.

Michael Lee : That's right.

Daniel Layman : Drag state back into its rights protecting role under the most egregiously violating circumstances. So we've found ourselves actually agreeing that jury nullification is pretty great and we need to maintain it. 

Michael Lee : Yeah. Well, and, and there you are. Frankly, back to the slog. Because he can defend any kind of secession or separation from federal, state, or local law as a legitimate revolution, either capital R [00:23:00] revolution or as lowercase R Revolution.

But you are back to defending the rule of law as largely good, except when Rosa Parks violates. Bus ordinances or except when King writes letter from a Birmingham jail. 

Daniel Layman : Exactly. And I have to try and tell a story, which is a, a difficult story that I'm sure I didn't tell all the way correctly about how it's possible and sometimes necessary to defend the rule of law.

As a fundamental kind of both social apparatus and political value by way of sometimes violating laws. Mm-hmm. Which is, I think the, the correct logic of, of various forms of civil disobedience and conscientious refusal. But as you say, it's really hard, right? How do you draw lines both where are the lines and what's the proper method for drawing them?

And those kinds of questions do become a slog. There's cases upon cases, there's reasoning by analogy. Mm-hmm. There's judgment calls that are just gonna [00:24:00] have to be, have to be made and defended in piecemeal fashion. And yeah, that, that issue brings us right back to the slog. 

Michael Lee : Daniel Lehman, enjoy the slog and thanks so much for being on when we disagree.

Daniel Layman : Thanks, Mike. It's been a pleasure to be on

Michael Lee : When We Disagree is recorded at the College of Charleston with creator and host Michael Lee. Recording and sound engineering by Jesse k and Lance Laidlaw. Reach out to us at When We disagree@gmail.com.