Libertarianism and the tyranny of contract
August 30, 2012 § 10 Comments
On a practical level a lot of what libertarians see as good governance overlaps with what I see as good governance, at least in the higher levels of government hierarchy, because of the principle of subsidiarity. Subsidiarity means that higher levels in the authority hierarchy should only do those things which are absolutely necessary at that level: that in general, legitimate authority derives from the common good, is bottom-up in nature, and higher authorities should butt out of local matters without some truly compelling, necessary interest. If it isn’t absolutely necessary to provide a certain kind of governance and enforcement at a higher level, it should be provided at a more local level.
Polities violate subsidiarity at their peril: embracing universal health care as a compelling federal interest has resulted, quite unsurprisingly, in the HHS contraception mandate and what will now be a scaled-up ongoing federal war on natural law morality under the guise of “health”. This should be no surprise to anyone who takes subsidiarity seriously, as opposed to merely giving it lip service and attempting to de-fang the requirement of subsidiarity by appealing to solidarity, as if solidarity and subsidiarity were in opposition rather than complementary. The idea that subsidiarity and solidarity are in conflict is of a piece with other atrocious modern ideas like feminism, which proposes that the natural complementarity of male and female are in opposition.
Liberalism in general cannot deal with complementarian realities, because complementarian realities imply that some discriminations and inequalities are natural and good in a way which trumps the whims of putatively free and equal citizens who get to decide for themselves what they want to be. As a result liberalism necessarily has to turn a blind eye to certain parts of reality; most especially those parts of reality where substantively good discriminations are enforced.
This willful blindness manifests itself in the language used under libertarian auspices. How often do we hear the issue of enforcing contracts between sodomites-qua-sodomites phrased as “allowing gays to marry?” The passive libertarian language of “allowing” deliberately conceals the reality; for what is advocated is not mere passivity. What is advocated at the most basic level is for society to enforce certain kinds of legal contracts, even though those legal contracts are grossly immoral. The passive language “allow gays to marry” is a lie. Enforcing contracts is an activity of government (not a passivity), and it is impossible to decide what to actively enforce and what not to actively enforce without making substantive judgements about the good. Substantive judgements about the good will necessarily discriminate: every function of governance, including contract enforcement, is an authoritative discrimination of some kind resting on some substantive concept of the good. What makes liberalism (including libertarianism) different from other political views is that liberalism has to make authoritative discriminations resting in a substantive conception of the good while at the same time denying that it is doing so. What makes liberalism different is that it has to lie about itself in order to invoke its own justifying principles, that is, nondiscrimination (equality of rights) and freedom from substantive discriminating authority.
We don’t “allow” – that is, actively enforce with police, courts, and jails – just any sort of contract whatsoever, and we shouldn’t. We also shouldn’t allow language to abused that way, because active enforcement of contracts is anything but the live-and-let-live passivity implied by the lying word “allow”.