Libertarianism and legal authority

Reason magazine hosted this debate between Kerry Howley, Todd Seavey, and Daniel McCarthy.

There is no way I’ll be able to summarize the discussion here. Rather, I’ll focus on one issue in particular: how libertarians ought to evaluate “social norms”; and, more broadly, whether a libertarian qua libertarian ought to be evaluating social norms at all. Call the “purely political libertarian” position the view that a libertarian, qua libertarian, has no intrinsic reason to criticize social norms — only legal norms, when they violate natural rights.

The phrase “social norm” is part of a distinction, which may not itself be tenable (indeed, part of this discussion is intended to clarify and ultimately criticize this distinction.) I contrast social norms with legal norms. Roughly, a legal norm is a norm that is enforced by a legal authority, e.g. the government. A social norm, for our purposes, is one that is enforced in some other way — through frowns against transgressors, social stigma, ostracization, and so on.

As should be clear, this distinction is meant to be an exhaustive one: if a norm is enforced by a legal authority, it is a legal norm. If it is enforced in some other way, it is not a legal norm.

This distinction depends on what sense we can give to the term “legal authority.” Indeed, making sense of that term is where all the action is, as I see it. Let’s run through some possibilities:

  1. A legal authority is that entity which is in the position of being able to establish laws.
  2. A legal authority is that entity which successfully claims a monopoly on the use of physical force in a given territory.
  3. A legal authority is that entity which is generally perceived or accepted as that which has the right to establish norms in a given territory.

Things get fuzzy as we go along, but I think (1) is clearly vacuous, or else it presupposes the acceptance of something like (2) or (3).

What about (2)? I think many libertarians will accept (2), but they shouldn’t. The reason goes back to H.L.A. Hart’s criticism of Austin’s version of legal positivism. For example, the mafia can successfully claim a monopoly on the use of physical force, and start issuing directives. But people would not call the mafia a legal authority — nor would the mafia itself, think of itself as a legal authority. Nor, in fact, would most people think that the mafia was “making law” as it issued directives, despite the fact that those directives would be backed up with threats of violence.

That leaves (3), which has the drawback of being fuzzier than (1) or (2). But only a little. What (3) brings to the table is the idea that public perception of an institution has a role to play in determining whether that institution is a legal authority or not. At a minimum, it must be generally believed that when the putative legal authority establishes a new norm, this also establishes a reason, independent of its coercive backing, for citizens to adhere to that norm. This is how we can say — as people do say — that a person has a legal obligation, e.g. to join the army if the draft is called, even if the person is able to escape to a jurisdiction where that norm has no chance of being enforced against him.

Hart and others talk about “the internal point of view.” On this analysis, what distinguishes the mafia from a genuine legal authority is not only a matter of differences in the ability to inflict physical force. There is a psychological component as well: people, by and large, think the legal authority has the right to set down new norms. If this perception is eroded (which it can be), the authority of the law can be lost. In short, the government can become the mafia, when its dicates no longer gain acceptance from the internal point of view.

This point has ramifications for how we should understand the relationship between social norms and legal norms. One might put it this way: the gap between social and legal norms cannot be that great, because whether a society continues to accept the legal authority from the internal point of view will depend, at least in part, on the content of the norms the legal authority establishes.

If I’m right, and there is a conceptual relationship between legal norms and social norms, then it follows — I think — that libertarians cannot be indiferent to the operating social norms. This may seem to be a trivial point, but I think there is more to it.

Consider a state in which the legal system is tightly connected to social norms, i.e. the gap is small, and the government keeps it small. The social norms could have virtually any content one likes; the result, I maintain, would be very un-libertarian. This is because people typically endorse social norms that “go beyond” natural rights, or the libertarian minimum. There are several reasons to think that this will almost always be the case, but here is one: social norms that emerge spontaneously will often replicate, even perpetuate, existing relations of superiority and inferiority. Social norms with a religious source will function to stabilize and expand the dominance of that religion.

It is highly unlikely, I submit, that social norms will naturally converge with libertarian ones.

One might ask: why is this a problem? As long as social norms remain social norms, enforced only through ostracism and frowns, why should libertarians be concerned?

Answer: because there is a conceptual relationship between social and legal norms. Even if the gap between social and legal is rather large, it can’t be too big. Some of those social norms will inevitably feed into the content of legal norms. The size of the gap that people will tolerate will itself be the result of one or more social norms. Call this norm a “connecting norm.”

Now suppose one wishes to convert this non-libertarian society into a libertarian utopia. How should one proceed? One way is to change the connecting norm: broaden the gap. But another way is to oppose and undermine the restrictive social norms that make the absence of a gap such a problem in the first place.

Both strategies have a place. Libertarians who push a natural rights agenda are trying to broaden the gap. But socially liberal libertarians seek to undermine social norms that, when converted into law, result in un-libertarian outcomes. My opinion is that the attempt to broaden the gap will ultimately be futile: the desire people have to see their norms implemented in law is too great, and too natural, for this strategy to have any long-term success. The legal system itself tends to re-enforce the connecting norm.

On the other hand, undermining the restrictive social norms that result in oppressive legislation has worked fairly well. People are more tolerant than they used to be, and this results in less oppressive legislation, even though the gap itself is hardly wider than it used to be.

Thus, I think the purely political libertarian position is ultimately untenable. Conservative social norms must be attacked and undermined even before they become law. We must anticipate patterns of oppression before they develop, and support pluralism and tolerance even in the social sphere.


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