There are dozens of ways to explain philosophically the key divides of modern politics: left- vs. right-wingers, libertarians vs. authoritarians, rich vs. poor, old vs. young, and so on. I'm sure a half-dozen more such classifications sprang to mind when you began to read that list. However, I've become convinced that there is another key philosophical difference about the role of law that underlies much of modern political debate, and is nevertheless poorly understood. For the purposes of this essay, I will describe this debate as that of "proclamation vs. policy." The "proclamation" perspective holds that the purpose of the law is to announce or express the moral views of society, while the "policy" perspective holds that law should be used to change the material conditions of society, including through indirect means. The unacknowledged difference between these two perspectives leads to proposed laws being justified in terms that their opponents find literally incomprehensible, causing confused political discourse. Likewise, the under-examination of this distinction leads to thoughtless, unjustified radicalism on this question. Even a cursory exploration of these two sides of the law can help clarify numerous legislative debates, past and contemporary, while allowing citizens to more clearly understand their own views and values.
Before exploring how the tension between proclamation and policy underlies contemporary USian political debates that express themselves in quite different terms, I'm going to explore the two perspectives at greater length, using a handful of unequivocal examples.
The "proclamation" model holds that the law represents an expression of moral values. Among the most lauded examples of the "proclamation" model of law  was the USA's Emancipation Proclamation. The Emancipation Proclamation marked an official declaration of the Union's position on slavery: unequivocally against. It was able to fulfill this goal without, in fact, freeing many slaves. Though it ultimately took several more years of military action and a Constitutional Amendment to end slavery in the USA as an institution, the Emancipation Proclamation is still understood as the key moment in the process of emancipation, because it articulated the Union's moral stance against slavery so incontestably. The most extreme form of proclamation-type law can be found in legislative proclamations without enforceable terms; for example, those designating a particular day a "National Day of Prayer" or a day to commemorate some particular cause.
Conversely, the "policy" model holds that the aim of the law is to change conditions as they actually apply; to address problems and improve the state. It is hard to find an independent, ideal example of legislative work of this form—as policy cannot be considered in isolation, and it does not tend to attract much notice. Thus, we can consider the example of a field rather than a particular law. Traffic law is a useful example for an initial approach. It involves a great number of small decisions which must be made, by the legislature or regulatory bodies. Few, if any, such decisions can be resolved by appeal to prior moral principle. There is no known way to derive, a priori, which side of the road cars should drive on. Decisions cannot be made in isolation. Policymakers must consider whether the impact of their rules improves or worsens conditions on the road, rather than assuming their rulings work toward the desired effect, because policy rulings often work indirectly toward their aims. Policy is inevitably a technical field, often boring those who do not have a personal interest in the matter under consideration. It can be accused of social engineering; in the case of traffic rules it does often reduce down to actual civil engineering, managing the timing of stoplights and the number of lanes a highway can support. However, it is clear that policy decisions make a real difference in the lives of citizens.
When put this way, each perspective on law seems to have its place. It would be foolish for legislators to declaim on the moral principle of a speed limit of only 55 miles per hour without reference to its consequences, or try to cite the great principles of democracy in service of alternate-side-of-the-street parking exemptions. It would have been inhumane for Lincoln to have sought to address slavery with, say, an "emancipation tax credit," or other such policy incentive. There are realms where there is a broad consensus that the legislature should be acting in the interest of policy, and others where it is clear that a moral proclamation is called for.
Furthermore, there are places where laws can serve both sorts of purpose simultaneously. Consider, for example, laws against perjury. At first glance, they might seem to be a proclamation. Certainly they oppose lying, and lying to a judge, both considered moral offenses. Laws against perjury could be justified on purely moral grounds: our society opposes such dishonesty. However, when considered in context of the other laws and rules of criminal procedure, laws against perjury clearly have a policy justification as well. By punishing dishonesty in court, they encourage honesty and promote the efficient operation of the justice system. Even if there was no moral reason not to lie to a judge, perjury laws could still be justified entirely on policy grounds. So laws need not adhere just to one perspective or another. Indeed, some of the most widely supported laws fit both: they are independent moral claims, and simultaneously promote the efficient functioning of society.
Conflict on this matter arises, however, in areas where there is debate over what role the law should play, and different perspectives—proclamation or policy—would yield different pieces of legislation. These areas encompass many of the most heated debates of modern politics. Furthermore, they entail a meaningful "dialogue gap:" a hidden difference in premises that undermines substantive dialogue about the matter under debate. Given that the democratic process seeks not only to produce majoritarian laws, but to allow for thoughtful reflection on legislative decisions, such failures to communicate are a real problem for our democracy.
Take, for example, the question of the War on Drugs. Proponents of decriminalization are liable to cite an array of studies suggesting that decriminalization of drugs has no significant effect on rates of usage. Those who favor criminalization certainly have their own studies to retort with. However, fascinatingly, they often don't. Instead, pro-Drug War rhetoric often parallels Steven Levitt's depiction of "the daughter test." In describing the rationale for some of his political positions, Levitt writes "[if ] I wouldn’t want my daughter to do it, then I don’t mind the government passing a law against it. I wouldn’t want my daughter to be a cocaine addict . . . [so] I don’t mind those activities being illegal." From a policy perspective, there is a crucial gap in this logic. If criminalization of drugs does not affect their rate of use, then cocaine's illegality does nothing to prevent Mr. Levitt's daughter from becoming an addict. However, from a proclamation perspective, Levitt's logic makes perfect sense. Levitt opposes the prospect of his daughter using cocaine. He would like the government to endorse this moral perspective, regardless of its impact on outcomes. Levitt believes that "it would probably be more economically efficient to legalize drugs and prostitution subject to heavy regulation/taxation," but his opposition remains.
Similar debates can be found on a range of other issues. I personally encountered one such question when talking with a pro-life friend. (I myself am pro-choice.) I made the argument that legal abortion keeps the procedure safe while not actually increasing its frequency, and that, on the other hand, the pro-life movement fails to endorse policies that would actually decrease the incidence of abortion. He granted this claim, more or less, but held that it was still important to outlaw abortion as a statement of what is right and wrong. Policy-relevant information will not affect the legislative preferences of someone thinking in proclamation terms.
This contention between proclamation and policy does not simply apply to the range of "social issues" that Levitt identifies—abortion, drugs, gambling—but is spreading to realms once firmly in the policy camp. The most notable examples are tax policy and healthcare. Taxes have been unpopular in America for a long time. Few people like to simply turn over their money, and in America, Justice Holmes's awareness that by "paying taxes [one is] buy[ing] civilization" is not a common one. There have been anti-tax protests for much of American history. However, these have mostly complained about an onerous tax burden. Such protests can be self-centered, and infused with moralizing rhetoric. However, the position that tax laws should represent the moral views on tax in general, or express a moral opposition to them, is a comparatively recent one. For example, President Bush said in his 2000 acceptance speech that "On principle, no one in America should have to pay more than a third of their income to the federal government." The notion of an a priori, "in principle" maximum marginal tax rate represents the encroachment of proclamation perspective upon the realm of tax policy. So does the Tea Party rhetoric. The Tea Party relied strongly on equating the problem of taxation without representation with taxation more generally, painting a categorical opposition to taxation as a moral stance.
Likewise, a similar shift occurred on healthcare. Liberal commentators noted throughout the 2009 and 2010, Republican elected officials decried reforms that they had supported in the early 90s. Mitt Romney spoke out against, and continues to oppose, a federal policy more rightist than the one he instituted as governor of Massachusetts. Jonathan Chait has argued that this shift represents more than a change in the Overton window. Instead, Chait says, the ferocity and character of the Republican attacks on health care reform demonstrate that the Republican party is not interested in improving health care outcomes. Rather, they are ideologically committed to smaller government, regardless of the outcome. Proclamation has overtaken policy.
Another area of relevance is the prevalence of accusations of the "nanny state." (For those unfamiliar with the term, it is used to convey the contemptuous belief that the government is meddling over-protectively in the affairs of its citizens.) Such accusations often confused me, but they follow simply if one realizes the accusers understand policy laws in proclamation terms. Consider laws against trans fats in restaurants. A policy thinker would argue that these laws simply represent a way to improve the life of individuals, like any industry or trade standard. Furthermore, they are decided upon by the government, and thus, indirectly, by society at large—quite a different process than the quasi-parental authority of a nanny. However, when one imagines laws against trans fats as proclamation, immediately the image of the government as a nagging parent begins to make sense. To a policy thinker, laws against trans fats need not entail any judgement of individual food choices. They simply work to reshape the environment so that individuals are more likely to make better choices. To a proclamation thinker, a law against trans fats necessarily implies that individuals were bad or wrong for choosing them in the past. The law cannot be written without scolding the citizenry.
The examples used thus far have aligned leftists with policy and rightists with proclamation. This connection, however, is not a necessary one. It is, instead, a consequence of the different sorts of rhetoric and philosophy espoused by the modern USA left and right—Democrats and Republicans might be an even better description. Of course it would have been possible to have a health care debate where one side insisted on universal care as a moral right, and the other wanted a more complex system of incentives because they had concluded it would have superior outcomes. However, such was not the debate that took place.
It is also important to note that over the course of this essay, the modern promoters of proclamation have lauded a model where women are the appropriate objects of implicitly male state protection and even paternalism (the "daughter test," administered by fathers), and now derided a model where a female-identified state acts protectively toward its citizenry (the "nanny state"). Something undoubtedly sexist is afoot here. Unfortunately, I confess that I can't explain it quickly, and I'm sure this subpoint could grow to exceed the full essay, so I'm forced to simply give three possible explanations. Hopefully we'll hash them out in the comments.
First, it's possible that the modern (USA) identification of proclamation with the rightist/conservative/anti-feminist axis had lead to a situation where proclamation-style thinkers are likely to be sexist, and thus articulate their philosophical commitments with sexist vocabulary. That would account for the fact that feminist and anti-oppression movements have also been able to use the language of proclamation, though its primary contemporary representatives are rightist. Second, it's possible that the sweeping moral and emotional claims of proclamation are susceptible to being expressed with sexist language in a way that policy claims are not susceptible. It's hard to imagine a sexist way of articulating the introduction of an extra tax bracket, for example. One would probably be forced to recast it as a simple moral action first, i.e., rewrite it as proclamation. Third, it's possible that I, as a feminist, am particularly struck by rhetoric that offends my egalitarian sensibilities, and so when I sat down to write an essay to explicate rhetoric I found disconcerting, I was drawn toward the sexist examples. I'm not sure which, if any, of those explanations are accurate.
All of examples laid out above show that the tension between proclamation and policy is a key one in the political debates of the modern USA. However, it is not explicitly argued. Political debates presume to be about the good at which laws are aimed, not what it means for a law to serve a particular end. Thus, the first step to resolving the tension is recognizing this gap. When one side of a political debate is making a policy case, and the other is making a proclamation case, neither can hope to persuade the other. We have to first establish why the matter under discussion is appropriately the target of one or the other (or some fusion of the two), and then much of the rest of the policy case falls into place.
Another important takeaway is to resist the unjustified expansion of one field into another. Politicians may desire to recast a policy issue as ripe for proclamation—as in the case of Bush's quote above, this move reduces complexity and allows a disinterested member of the public to take a strong stand on the issue. However, it leads to poorly constructed laws, with bad outcomes, and radicalizes a debate in which nuance is key. Policy in place of proclamation is a quieter evil, but still risky. For example, those who want to encroach upon worker protections or social security argue that they should be considered solely as instruments of economic policy. This attempts to change the terms of the debate from moral to practical. In each case, such transformations of the terms of debate can go unnoticed, but they can undermine sensible government work, and the meaningful but complex rights of the citizens of the welfare state.
Finally, in the case of the USA, it is important for each political party to regain a more complete voice on the matter. The two primary political parties are horribly unbalanced. The Democrats have renounced strong, leftist moral arguments. This deprives the American moral landscape of real advocacy for the poor, for equality, and for communal action. The Republicans have renounced policy thinking, leading to the recent failure to, for example, offer any real alternative to the Obama health care reform. The pre-midterm mantra of "repeal and replace" was entirely vacuous. There was no replacement in the offing, because Republicans were unable to formulate a complex policy response to a difficult practical problem.
I'm a strong leftist, and I've no doubt that this has colored my interpretation of the current political situation. But I'm willing to acknowledge that I'm probably wrong about at least some of the important decisions my nation faces. When one major current of politics has stepped out of morality, and the other has stepped out of careful policy thought, our decisions are impoverished. That has to change, and the first step is recognizing the real significance of the distinction between proclamation and policy.
Notes and links:
 and, in fact, the one that inspired its name.
 for the purposes of this article, the policy model is agnostic about both the set of persons and things which constitute the target of the state's assistance, or even what constitutes improvement. Similarly, the proclamation model is agnostic about which moral principles to espouse. This indifference to the actual content of policy or proclamation is deliberate. It serves to isolate the matter under discussion. Still, when this model is applied to contemporary political debate, there are differences in the visions of the good, which sometimes correspond clearly to the question of proclamation vs. policy. This complicates the conclusions of this essay, but, I hope, does not eliminate them.
 aside from anarchists or strong libertarians. When one's political philosophy is opposed to state action in general, every single item of policy constitutes a proclamation of state power, to be opposed. That said, I personally find it hard to maintain the image of a philosophically consistent anarchist legislator, so it is reasonable to disregard this perspective for the purposes of this essay.
 Were this an academic paper, I would like to a number of studies which are behind paywalls. For the purposes of this piece Wikipedia provides a good summary of the literature, Arguments for and against drug prohibition.
 This essay will address the considerable sexism implicit in the formulation and popularization of this test further on.
 I believe. I'd be fascinated to be proved wrong. However, given that American history seems to be a tale of the broadening of the tax base, sometimes with substantial popular approval (e.g. the 16th Amendment), I don't think I will be.
 The "Overton Window" describes the set of policies that are considered reasonable, live options within a particular context, primarily political discourse. The Overton Window shifts when the range of policies considered moves in one direction or another. For example, in the USA the current debate over the marginal income tax rate considers rates of 36% or 39%, and though a generation ago the rate of 90% was in force, no serious politician proposes it now. ↩
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