Musings Of An Indie WriterScreeds
Thursday, September 02, 2004
Compromises
May 21, 2004
The life of the thinking man who elects to grapple with politics is a course in frustration. The thinking man yearns for clear, hard-edged principles that can be applied widely, without significant exceptions. Politics is highly resistant to such, by its very nature. It’s a scheme for arbitrating conflicts between groups that can’t reach agreement in any other way, but are inhibited from trying conclusions with one another by violence.
The inhibition arises from the existence of the State, a supra-individual construct that has the power to impose a politically chosen solution on the whole of its subject populace, including those who disagree with it. That power involves the possession of a privilege of coercing dissenters, mainly through taxation and the operation of a justice system.
Put another way, the State can get away with things permitted to no ordinary man.
The very existence of the State offends pure libertarians. Since it’s operated by individuals but possesses privileges no private individual would be allowed, justifying it by recourse to a natural-rights argument, or by induction from the properties of men or their societies, is inherently impossible. There’s no concept of justice that embraces both the defensible Rights of Man and the coercive powers of the State, no matter how it’s constituted.
However, the alternative to the State is no State: anarchy. That’s a condition few are prepared to contemplate. It appears to demand entirely too much trust in one’s fellow man.
Anarchist libertarians will argue that the alternative to trusting one’s fellow man is trusting the State, an institution with an exceedingly poor record for trustworthiness. It’s a good point. Still, T. C. Mits (The Celebrated Main In The Street), if asked to choose between the State with all its faults and its abolition in favor of…nothing…will seldom plump for the latter, no matter how badly oppressed he feels by the current state of affairs. Telling him that he needs to get educated is unlikely to win his regard.
The freedom-minded man with a sense for “what will fly” must look for a middle way.
A little more abstruse than your Curmudgeon usually gets on a weekday, eh? Well, the news has been static of late. But there is an anchor point to this: an exchange of views between bloggers James Rummel, of Hell In A Handbasket, and Myria, of It Can’t Rain All The Time.
Myria is incensed about mandatory seat-belt laws, and still more offended by the “public service” pitches that proclaim them to the public. James, despite his explicit agreement on the particular case at hand, finds Myria’s overall attitude unrealistic:
One of the main concepts behind government is “monopoly of force”. That’s where agents of the government have the ability to overwhelm resistance in order to enforce the law. This is necessary because the world is full of people who don’t want to comply with the law, even when it’s obvious that there’s a direct benefit to them and others.This most basic and fundamental aspect of government seems to drive Libertarians insane. They’ve never been able to come up with any alternative that would come even close to working, insisting instead that people would all work in everyone else’s best interests as long as big bad government wasn’t around bullying everyone.
But James does not grapple with the fundamental problem of that “monopoly of force”: its tendency toward tyranny. He has your Curmudgeon’s sympathies; it’s a tough problem. A middle way that provides for important public needs that must be uniform to be acceptable, yet guards against political overreach and the usurpation of power by unscrupulous men, has been sought by the scholars of all centuries.
Constitutionalism is a middle way. It attempts to reconcile the claims of the “common good”—uniform, impersonal justice and a modicum of truly public needs—with the claims of individual liberty. Constitutionalism worked very well in this country for about 125 years, if we omit the Civil War. But this past century, it’s failed to maintain the conjunction of order and liberty, and the barriers against the Omnipotent State, that it was designed to provide. Clever men driven by the lust for power found ways to subvert the scheme. Their ingress is now protected by the usages of decades and the habituation of the populace to its velvet chains.
Much libertarian thinking of our time focuses on how to restore the vitality of our Constitutional order. Though it failed over time, it performed better than any other scheme for guarding men’s rights that’s ever been tried. That alone is a good argument in favor of its revival, if it can be revived.
But the modern constitutionalist must confront a problem the Framers of 1787 didn’t have to face: the near-total destruction of the moral underpinning on which both liberty and justice depend.
“The moral underpinning” in this context doesn’t refer to some religious doctrine or theoretical model to which all men “ought” to cleave. It’s something far simpler, a compromise that was once reached among Americans, but which has faded with the rise of national populist demagoguery and special-interest coalition politics. Back when, it was called the rule of law.
The prevailing misconception about this venerable phrase is that it means that “no one is above the law,” and nothing more. To which your Curmudgeon deposeth and saith:
BALDERDASH!
The rule of law is first a set of rules about law, and only afterward an agreement to be ruled by law. If men are to agree to be ruled by the law, however arrived at, the law itself must be ruled by basic criteria from which it is not permitted to deviate:
- It must be publicly made, universally proclaimed, and reasonably compact, so that no reasonable person can claim to be ignorant of it.
- It must be clear to a person of ordinary attainments, so that no man judged competent to manage his own affairs can claim not to understand it.
- It must not embed any contradictions.
- It must not conflict with the survival requirements of Man.
A few seconds’ thought will suffice to find the moral principle that unifies these rules about the law: fairness. It is fundamentally unfair to demand that men obey laws of which they’ve never been made aware, or which are too voluminous for any man to know in their entirety, or which are phrased so obscurely that two intelligent men are as likely to agree as to differ about their meaning. It is fundamentally unfair to demand that men obey a law that puts them in violation of some other law. It is fundamentally unfair—more, it is ludicrous—to demand that men obey the law at net cost to their own lives or well-being, or the lives or well-being of their dependents.
This is not gamesmanship or wordsplitting. This is a foundational requirement of civilization.
The reader with some acquaintance with the history of law and the interpretation of the Constitution, the supreme law of the land, will easily grasp how we’ve deviated from those rules of fairness. Since to ask men to pledge fidelity to an unfair system of law automatically polarizes them into contending groups, all trying to seize the law for their own benefit, our subsequent descent into demagoguery and no-holds-barred political viciousness stands explained. No compromise can be reached among competing demands unless all contenders first agree to the rules of legal fairness—the rules of law.
In a constitutional system, where a supreme law sets out boundaries that lesser laws are not permitted to cross, the maintenance and clarity of the boundaries becomes one with the other rules of legal fairness.
Myria’s objection to mandatory seat-belt laws can be handled by recourse to her state’s constitution. Does it grant the state government the power to legislate on such matters? Can such laws be found to violate any stricture set out in the federal Constitution? Do the seat-belt laws violate any of the other rules about the law? The answers ought to be all that matter.
The central insight here originated with Mark LaRochelle of the National Journalism Center, who was the first to describe the rule of law to your Curmudgeon as a compromise. Given his druthers, every man would prefer that all others be constrained while he himself was unconstrained (“Freedom is that which you want for yourself but would deny to others”—Thomas Szasz). A fair scheme of law cannot abide such an asymmetry: the constrained ones would withhold their allegiance from it. A government immune to accusations of tyranny can only be based on a compromise that puts clear, compact, publicly made, non-contradictory, tolerable constraints on all men without exception. Only such a government will earn the willingness of the overwhelming majority of its subjects to abide by its rules.
The first task of the freedom activist of our time is to revive this understanding.
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