All Men Are Created Equal

I would like to examine a couple of things in this post, different but related.  The first, represented in the title, is this sentiment – perhaps the premier sentiment if one wants to capture, in one phrase, the thinking of the Enlightenment.  The second is a commonly offered sentiment about the NAP, which – it seems to me – is dependent on the first.

Keep in mind, this is my first attempt at stumbling through these concepts in a concise manner; be kind in your feedback.

All Men Are Created Equal

I will walk through the various interpretations of this statement – not chronologically, but from the most inane to the most rational…at least to me, and at least to this point of my thinking (and I will stay out of the “made in God’s image” discussion).

Some background: there was a time in my life when I thought this the most excellent statement upon which one might build a political philosophy; the opening of the Declaration of Independence would rarely leave me with dry eyes.  I would say that I have been cured of this sickness – both by the way that the phrase has been used to suppress excellence and by the result of eliminating natural governance institutions.

So, the most inane: all men are created equal…in ability.  For most thinking people, this can be dispensed with quickly.  The easiest place to see this falsity of this view is in athletics; for some reason, it seems the only (or at least the most) politically correct reason to point to regarding this view.  Mention it in other contexts and count the moments before the lynching.

How about all men are afforded equal opportunity?  Well, we know that there are countless laws on the books to bring this in order to attempt to bring this into fruition…as much as force, fines, and prison can make an unreality real.  But we know this also is not true.  The politically correct example?  Those born into wealth have much greater opportunities than those born into poverty.  This issue points to the reasons why it is easy for law to focus on equal opportunity.  Just remember, it doesn’t apply to the children of wealthy athletes!

Now, for the version that I was settled on for quite some time, the one that seemed most libertarian and grounded in reality as opposed to the previously noted interpretations / applications.  All men are equal under the law.  Yes, I know that it doesn’t apply to politicians, many wealthy and / or connected individuals, etc.  But as an ideal, I thought it couldn’t get much better than this.

I have been giving this some thought on and off for some time; it isn’t so easy to break from something upon which I felt so grounded for much of my life.  Then, recently, the light bulb went on…from darkness to light – well, a light bulb with a dimmer switch.  Or is it a train….

If I was to form the most libertarian statement on this matter, I would say that all men are equally free to live under a law regime of their choosing.  Of course, this runs into practical limitations, most certainly: what if no one else chooses to recognize or live within your law regime? 

Ideally, I would be able to create a law regime of my liking, but we live in a world with other humans.  Just like the market for any product, we don’t have unlimited and perfect choices, we just get to choose from available choices.  This is why I see decentralization as the practical application of the NAP.

I think about the law that I would live under in a libertarian society: the bare minimum law would be the NAP…but would this bare minimum be my choice?  What if I want something more?  It seems to me that everything above bare minimum of the NAP would be agreed to individually, not universally: call it by contract, call it oath, call it HOA rules, call it moral leadership, or call it acceptance of culture and tradition, whatever. 

I want to live in a neighborhood where sex orgies on the front lawn aren’t allowed, where grill-outs and fire pits are common.  You may want a neighborhood that excludes children.  I might be willing to pay some sort of association fees for upkeep and maintenance of the common property.

What about conditions of employment?  Who to hire, who to fire, benefits, etc.  Different people have different desires / requirements. 

So, it seems that “all men equal under the law” requires 100% of law to be made by a third party (however much “law” that is); a “universal” law.  “All men free to live under a law regime of their choosing” would mean 10% of your law is universal (the NAP) and 90% of your law is chosen – which, in practical application means 100% of your law is unique (not universal), as it will not look like the NAP to an outsider.

My point is…in a society of libertarian law, most of the law we would live under will be self-selected (within the limitations of finding others who feel the same as you do).  In other words, we aren’t all created equal under the law; we are equal in our ability to choose our law.

That, it seems to me, is about as libertarian as it gets…and, by the way, it is quite consistent with the philosophy underlying medieval law.

Which brings me to part two of this examination.

Libertarianism is For Everyone

Look, doesn’t everyone want to be secure in their person and property, not be murdered or robbed, have the freedom to exchange, not be artificially limited by others in our choices in life, etc.?

How could anyone answer “no” to this?  But I really don’t care about how someone answers it, what matters is what is meant by these words to different people.  As if in order to demonstrate that even at the extremes of a continuum, libertarians cannot settle on defining “aggression” or applying “punishment,” consider the following example: abortion is not considered murder by many libertarians. 

Imagine, a “non-aggression principle” that allows the most heinous aggression against the most vulnerable and innocent among us.  Some libertarians certainly feel otherwise.  Murdering an unborn child for the supposed crime of trespass?  This is even worse than shooting a child for stealing an apple – again demonstrating well that even at the extremes of the continuum, libertarians cannot settle on such definitions / applications.

Open borders, yes or no?  Intellectual property, yes or no?  The list goes on.  My law might have open borders, yours might not; my law might allow for abortion, yours might not; my law might allow for recognition of intellectual property, yours might not; my law might consider “proportional” what your law considers excessive when it comes to punishment.

Even before we get to the unique conditions people find themselves in around the world, we cannot even come to a “universal law” among western libertarians.

Who am I to tell someone – who lives in a culture, climate, tradition, etc., very different from anything I understand – that my interpretation is his interpretation; that “I have just the law for you”?  Well, beyond saying that libertarian law is law of your own choosing – in reality, via decentralization allowing for the maximum number of choices.

What matters is maximizing choice and having an environment that supports the possibility of individuals making their choice.

Conclusion

If all men are created equal to choose their own law, then to insist that libertarianism is universal is invalid – unless by libertarianism we mean each individual is free to choose his law.  If it is libertarian for each of us to choose our own law, then there is no such thing as a single universal law for all; if libertarianism (as you interpret its application) is universal, then I am not free to choose my own law (and for this, a strongman will be required).

And in this, we find the difference in the decentralization vs. universalist camps.  If it is ever to be found, liberty will only be found in decentralized society and decentralized law.

For Spooner

Spoonman, come together with your hands

Save me, I'm together with your plan

Save me

-        Soundgarden

Spooner,

I will go through your points one by one; I take these from your second post, and haven’t tried to check these against your first…so if I missed something, this is why.  Your comments are indented and italicized.  Other indented comments are mine, taken from the subject post and offered, when necessary, to make clear what I actually wrote.

First, although we have reconciled on the following, I believe some further clarification is in order:

The point of your post was to refute libertarians who offer that agreement by contract would be sufficient to form a libertarian community. I pointed out this is a strawman as no such offer is being made by any serious libertarian.

Two things: first of all (and of lessor importance), I have had direct and personal exchanges with one very prominent (“serious”) libertarian on this topic.  To each of my scenarios or points, he offered a contractual stipulation that would “work.”  His framework was all contract; further to this point, I can think of at least one “serious” libertarian whose “model” suggests just such a framework.  Maybe I am wrong on this, but not about the direct and personal exchange that I had.

Second (and more important), who cares about the “serious” libertarians?  Get three of them in a room and you will have five positions on any point of correct application of the NAP (one reason I have done my best over the last few months to quit debating with any “serious” libertarian).  More important is to have a dialogue and discussion with the many people who might be interested in liberty (as libertarians see it) but choose not to because, to them, most libertarians are kooks.

Now, on to the rest:

Your ‘main objection’ to covenant communities is that they are no different than hiring/electing a strongman.

This was my main objection to Victor’s idea for solving the issue of change to a for-profit corporation’s mission statement by finding the right CEO.  It was not my main objection to the idea of contractual communities.  I introduced the entire section about “for-profit” examples with the following statement:

While less relevant [than the non-profit world], one could also examine the for-profit world.  Why I say “less-relevant”?  The non-profit / foundation world is a world of ideas – an organization is funded and sustained in pursuit of an idea.  Libertarianism is nothing if not an idea.

So, if one considers what I wrote in context, one could not suggest that this was my “main objection.”

You complain that contracts can never capture all possibilities, and I pointed out that neither does old and good law, and asked what the difference was.

It is a good objection, and one for which I don’t think I have a good reply.  As circumstances and technology evolved, there were times that the old and good law was not sufficient.  Maybe I am biased by the benefit that the old and good law was very slow to evolve, providing stability in the law yet leaving room for flexibility given circumstance; that, ultimately, it was the broader community that would decide if the evolution was “good.”

This compared to the more codified law, when once written leaves little possibility for flexibility – only debate (at most) about interpretation; when individualized as in a contract, offers no opportunity for broader acceptance (somewhat necessary if one wants to live in liberty).

In other words, custom might leave more room for flexibility than does codified law.  As long as custom is respected – in other words, “old” is accepted by default unless shown to be deficient in keeping the “good” of the law – this flexibility seems to me to be a benefit.  For the old and good law to work, the nobles must actually be “noble.”  But I guess for a contract to work, all parties must act noble as well.  Alas, we are lacking such men.

In any case, this objection might be your most valid, at least in my opinion.  I am not sure I have a great answer on this.

The Missing Link

The Quest for Community: A Study in the Ethics of Order and Freedom, by Robert Nisbet

With this post, I will conclude my examination of Nisbet’s book.  After a brief review of the concluding chapters, I will come to the subject hinted at in the title of this post.

The Problem of Liberalism

Nisbet offers that at the same time we prize the gifts (in his view) of liberalism, including…

…equalitarian democracy, moral neutrality, intellectual liberation, secular progress, rationalism, and all the liberating impersonalities of modern industrial and political society.

Admittedly, I do not value all of these as I believe the list corresponds more to today’s liberalism and not classical liberalism.  And in this conflation, we find a bit of a missed connection in Nisbet’s work.

On the other we continue to venerate tradition, secure social status, the corporate hierarchies of kinship, religion and community, and close involvement in clear moral contexts.

He offers that present liberal thought is in crisis, as there is “correspondence between the basic liberal values and the prejudgments and social contexts upon which the historical success of liberalism has been predicated.”

The Contexts of Individuality

No fault is to be found with the declared purposes of individualism.

There is a valid ethical aspect of individualism, yet it loses its mooring when divorced from social organization. 

These qualities that, in their entirety, composed the eighteenth-century liberal image of man were qualities actually inhering to a large extent in a set of institutions and groups, all of which were aspects of human tradition.

Caught up in Newtonian mechanics, these group qualities were atomized – impulses and reason deemed to be innate in man.  As long as the group qualities retained some amount of social functionality, individualism could survive – and in fact did both survive and thrive.  But atomization was eventually to do its work to the remnants of these qualities.

Nisbet comments on the book by Karl Popper, The Open Society and Its Enemies:  Popper sees Athens of the 5^th century B.C. and the Renaissance in Western Europe as ages of “individualism.”

These are ages, he argues, recently released from the dead hand of tradition, membership, and tribalism.

Consider the following:

[George] Soros used his fortune to create the Open Society Foundations—a network of foundations, partners, and projects in more than 100 countries. Their name and work reflect the influence on Soros’s thinking of the philosophy of Karl Popper, which Soros first encountered at the London School of Economics. In his book Open Society and Its Enemies, Popper argues that no philosophy or ideology is the final arbiter of truth, and that societies can only flourish when they allow for democratic governance, freedom of expression, and respect for individual rights—an approach at the core of the Open Society Foundations’ work.

                                                                                                                                             

Enough said about that.

The Contexts of Democracy

Definitions of democracy are as varied as the interests of persons and generations. …but it is, fundamentally, a theory and structure of political power.

This, as opposed to liberalism which historically was to mean immunity from power.  Lincoln’s definition of democracy: government of, by, and for the people “cannot be improved upon.”  The problem is…what does one mean by “people”?

Is it a numerical aggregate of individuals (i.e. Soros “Open Society”), or is it something indistinguishable from a culture – inseparable from family, church, professions and traditions?  Certainly, Lincoln’s war offered a horrendous example of the former; a glimpse of the difference in these two views can be seen in the run-up to and aftermath of the 2016 US presidential election.

The liberal values of autonomy and freedom of personal choice are indispensable to a genuinely free society, but we shall achieve and maintain these only by vesting them in the conditions in which liberal democracy will thrive – diversity of culture, plurality of association, and division of authority.

I hope by now that the context of Nisbet’s work makes clear what he means by these last few words.

The Missing Link

There is something notably missing from Nisbet’s analysis, and this is captured in one of three “Critical Reviews” published at the end of the book; in this case a piece entitled The Enduring Achievement and Unfinished Work of Robert Nisbet, by Jeanne Heffernan Schindler.  I will focus on the “unfinished” part.

At the same time, the prescriptive dimension of Nisbet’s work remains incomplete, needing a more adequate theory of the state, human freedom, and the normative status of social institutions.  In this regard, the social ontology and political vision of Catholic social thought offers the resources necessary to correct and complete Nisbet’s already impressive achievement.

There you have it in a nutshell, and regular readers here will need no further comment to understand this meaning – whether in agreement or not.  Schindler points directly to the weakness – not specifically of “individualism” and modern liberalism, as Nisbet does, but a weakness with roots that are to be found much in an earlier time:

Without the sturdy roots of an inherited tradition, the lone thinker proved himself a weak reed, easily swayed by the current of popular opinion.

A transcendent tradition, one not created anew with every newly created rationalization….or excuse. 

The prescriptive elements in his work are also compelling, but they require fuller development and a more satisfying foundation.  To achieve social pluralism requires moving beyond historical description and sociological analysis to social ontology – that is, to philosophical and theological anthropology.

In the West, this is to be found in the tradition of medieval Europe, the combination and blending of Germanic tradition and the Catholic Church.

In what may provide (for me) a glimpse into a path of developing – within libertarian bounds – a proper and legal defense of culture and tradition.  From the Second Vatican Council and Gaudium et Spes:

Man’s social nature makes it evident that the progress of the human person and the advance of society itself hinge on one another….Since this social life is not something added on to man….(emphasis added)

Conclusion

If this “social life” is inherent in man, might a forced fracturing of this social life not be considered “aggression”?

Yes, I know.  It isn’t physical person or physical property.  But is that really so?  If it is inherent in man, how is this not physical?

Contractual Community

It is often offered that agreement by contract would be sufficient to form a libertarian community: the terms of admission would be spelled out and agreed to voluntarily; the rights and responsibilities are covered; mechanisms for dispute resolution are spelled out.  I would like to raise a few concerns with this idea.

I was prompted to this post via a discussion with Victor July 6, 2018 at 3:37 PM.  The relevant discussion:

Victor: Yeah bionic some sort of private club model could play the behavioral / disciplinary role now played crudely and ineptly by the state. Hoppe's private and privately supervised residential neighborhoods come to mind. If you have a bad reputation you are denied admittance. If you behave badly you get thrown out. Private club based society really encourages developing a good reputation and makes it very costly and inconvenient not to.

bionic mosquito: Victor, I believe for such a "private club model" to remain "libertarian" requires something transcendent, something beyond the values of the living members.

Think about organizational transition; think about all of the think tanks that have lost their way after the founder or first generation has passed on.

The examples are countless and demonstrate clearly, it seems to me, that absent something transcendent - something guiding the leadership beyond the goodwill of the existing members - such "private clubs for liberty" will not last long.

Sure, they all had Articles of Incorporation, By-Laws, etc. – in other words, the exact requirements for a “contractual private law society” envisioned by many libertarians: “oh, just sign a contract.”

Yet these “contracts” failed to protect the Mission beyond one lifetime.

The issue: how to stay true to the mission through various transitions, etc.  An example might be helpful:

Ford Foundation: Today [8 November 2015] I’m excited to announce that the Ford Foundation’s two-year transition is over… Back in June, I shared the news that we would focus on combating inequality and that we had landed on a set of thematic areas aimed at addressing what we have identified globally as the five key drivers of inequality.

The initial purpose of the foundation? 

The foundation was established January 15, 1936, in Michigan by Edsel Ford (president of the Ford Motor Company) and two other executives "to receive and administer funds for scientific, educational and charitable purposes, all for the public welfare."

And how soon did the mission change…the first time?

After the deaths of Edsel Ford in 1943 and Henry Ford in 1947…[t]he board of trustees then commissioned the Gaither Study Committee to chart the foundation's future. The committee, headed by California attorney H. Rowan Gaither, recommended that the foundation become an international philanthropic organisation dedicated to the advancement of human welfare and "urged the foundation to focus on solving humankind's most pressing problems, whatever they might be, rather than work in any particular field...." The board embraced the recommendations in 1949.

So much for the focus on science and education; the focus is now “equality.”

While less relevant, one could also examine the for-profit world.  Why I say “less-relevant”?  The non-profit / foundation world is a world of ideas – an organization is funded and sustained in pursuit of an idea.  Libertarianism is nothing if not an idea.  If there was money to be made in the NAP, why are so few people making it?  So…I see the for-profit world less relevant to this discussion, but will address it.

Victor offers a possibility in the for-profit world:

Big corporations deal with this problem by bidding up the price of good CEO's. Or good CEO's vie for control of companies which have lost their way.

Examples can certainly be offered about CEOs who have changed course from that which even their predecessor had set – Google’s “Don’t be evil” or whatever they said along these lines (HT Nick) is one of many examples, flushed down the toilet when the hypocrisy became obvious to all. 

But this isn’t my main objection to this idea.  My main objection is that this idea is nothing other than restating the need of hiring the right strongman: “if only we elect the right leader.”

In any case, one can examine contracts: this vehicle for a contractual community has a sufficient history worthy of examination.  Anyone with any experience dealing with such matters knows the following about contracts: no matter how detailed, one can never capture beforehand all possibilities; no matter how well thought-out, contracts are modified and revised.

No matter how well delineated, achieving a “meeting of the minds” between two people is often complex enough, let alone amongst a community of people.

Conclusion

At its core, what is a contractual community but a community in which all residents have signed onto the constitution?  And how well have constitutions – a piece of paper – been respected by even those who have signed or drafted it?  In any case, constitutions have virtually always been more effective at protecting those in power from the people as opposed to the other way around.

The longest lasting and most (relatively) libertarian society had law that was supported by something transcendent, something not human and more than human; call it respect for culture and tradition or call it God.  In its place, we have tried constitutions and we have tried strongmen. 

Neither has worked very well at securing and maintaining liberty.