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”.

§ 10 Responses to Libertarianism and the tyranny of contract

  • Mike T says:

    Most libertarians don’t understand that the only true process for “getting the government out of marriage” necessarily entails an outright elimination of jurisdiction and standing. If the government can enforce a contract that regulates a marriage, it is “in the business of marriage.” That also means that all of the attendant possible injustices can apply ranging from judges willy nilly declaring a contract unconscionable, to refusing to sic the Sheriff on a wife who refuses to give visitation rights, etc.

    In fact, I upset a number of people in the manosphere when I wrote a long post that In Mala Fide linked to explaining why the manosphere was almost completely wrong on this topic and why it was painfully naive. It’s easy to argue these slogans; it’s much harder to acknowledge that good government is very hard and very necessary if you want a shot at having less government.

  • Mike T:
    it’s much harder to acknowledge that good government is very hard and very necessary if you want a shot at having less government.

    Interesting idea: small government tends to be more an effect of good governance than its cause. If that is so then we might expect a classical liberal / libertarian polity (which has the relation backwards) to produce – in spite of and at the same time precisely because of its express priority favoring smallness of government over goodness of government – ever larger, more comprehensive and inefficient governance over time. Where have we seen that before?

    That’s one of those ideas I have to be careful not to jump on too quickly, because it naturally has a strong appeal to my dystopian cynicism. But you may be on to something.

  • […] recommend listening to it as it is textbook example of Zippy’s contention that Liberalism “has to lie about itself in order to invoke its own justifying principles, […]

  • Frank says:

    I want to respond to this; I am what people would call a libertarian. A very nice article, but I do not understand where you obtained the phrase “allow.” Libertarianism does not use such language. There just merely would be no law to prevent such a union be it gay or polygamous, etc. The word “allow” does not exist because that implies force, and at the heart of the philosophy is opposition to all force. Government is defined then, as only the use of force, nothing more.

    Personally, I do not use the word “marriage” for such unions. Also, nothing ever really prevents anyone from doing what they desire, except themselves — maybe a certain moral compass, or a calculated risk/payoff decision. Even laws cannot prevent a person from fulfilling their wish.

  • […] contract is mutual consent: if the contract is mutually consensual that is sufficient for it to be “permitted”, that is, enforced by the police, courts, bully pulpit and guns of the […]

  • […] noted before that the language used by libertines about the government “allowing” various contracts […]

  • […] One thing it might mean is that government should get out of the business of enforcing and adjudicating contracts altogether.  We’ve discussed that line of reasoning before. […]

  • […] And don’t fall for it when someone refers to it as “Allowing gays to marry”. As Zippy puts it: […]

  • […] ideologues are always trying to maintain frame, such that their active murders and other atrocities can be viewed as mere passivity: a ‘more rights less government’ passivity resting on the principle of equal […]

  • […] another is that libertarianism adopts its pose of moral superiority by pretending that it is a passive, hands off political philosophy in contrast to the active busybody interventionism of other “statist” political […]

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