This is an appendix to “Liberty as a Social Compact” and “Social Norms and Liberty.” In those posts I first made the case that

liberty is not an abstract ideal. Liberty cannot be sustained without the benefit of widely accepted — and enforced — social norms. A society that revolves around norms established within families and close-knit social groups is most likely to serve liberty.

From which it follows that

the attainment of something like liberty and happiness requires the acceptance of — and compliance with — some social norms that one may find personally distasteful if not oppressive. But it is possible — in a large and diverse nation where each social group is free to establish and enforce its own norms — to find a place that comes closest to suiting one’s conception of liberty and happiness. The critical qualfication is that each social group must free to establish and enforce its own norms, as long as those norms include voice and exit.

The validity of these observations depends critically on the source of rights. As I have argued at length,

[r]ights — though they can exist without the sanction of government and the protection of a state — are political. That is, although rights may arise from human nature, they have no essence until they are recognized through interpersonal bargaining (politics), in the service of self-interest. It is bargaining that determines whether we recognize only the negative right of liberty, or the positive right of privilege as well. The preference of human beings — revealed over eons of coexistence — is to recognize both liberty (usually constrained to some degree) and privilege (which necessitates constraints on liberty).

The liberty I alluded to there was the “pure” liberty of John Stuart Mill’s “harm principle” (see footnote), which can be summarized as the negative right to be left alone — in one’s person, pursuits, and property — as long as one leaves others alone. “Pure” liberty is a mere abstraction. Actual liberty must necessarily involve compromises (constraints), which are inevitable in a society of varied personalities that exists in a particular time and place.

In support of the argument that rights are political, I quoted from Denis Dutton’s review of Paul H. Rubin’s Darwinian Politics: The Evolutionary Origin of Freedom; Alan Fiske’s essay, “The Inherent Sociability of Homo Sapiens“; David Stephens’s “Impulsive behavior may be relict of hunter-gatherer past“; and a summary of J. Philippe Rushton’s article, “Genetic and environmental contributions to prosocial attitudes: A twin study of social responsibility.”

The full implication of those studies is that what we call “rights” — the kinds of behaviors in which we may engage with impunity — must be consistent with morality — the kinds of behaviors that society recognizes as “right.” The kinds of behaviors that society recognizes as “right” must, in turn, foster the survival and success of society. Robin Allott explains, in “Objective Morality“:

No society is healthy or creative or strong unless that society has a set of common values that give meaning and purpose to group life. . . . Empathy is seen both as the foundation of the unity of feeling which forms an aggregation of individuals into a coherent group and as the source of the effectiveness of the group’s code of behavior, the group morality. . . .

One can list various types of motivation which do, or may, lead individuals to accept and seek to observe the morality of their group. There may be childhood imprinting of the moral rules of the family or group, leading to a prerational application of the code, operating rather like post-hypnotic suggestion — automatic moral responses to predetermined situations. A variant or support of this takes the form of religious endorsement of moral principles — religious sanctions reinforcing introjected moral reflexes. Or morality may be rationalized as the pursuit of happiness, pleasure or utility — high level ethical theories perhaps, rather than practical motivations. Or moral behavior may result from prudence or superstition — following the rules for fear of something worse. . . . More generally, moral behavior may flow from a desire for a worthwhile, productive life, a rational desire of the individual to survive and avoid bodily or mental damage. This may be associated with empathetic identification with the group, its survival and prosperity. . . .

The objective necessity of morality has been demonstrated by life over many generations. However it is not open to immediate rational demonstration. Morality is concerned with remote consequences. The problem is that we have no easy way of seeing the long-term or otherwise distant consequences of following or not following moral rules or showing the consequences for ourselves, for our family or for the group to which we belong. What can we say to the immoralist who claims total moral freedom, who asks: Why not lies? Why not intemperance? Why not promiscuity? Why not theft or fraud? Why not murder? Why not cruelty?

One answer may be: In the absence of morality, you are in a world of powerful, clever, unpredictable animals. Only by understanding others can you protect yourself. Others in the group will only be predictable to the extent that they follow the same moral rules and are moved by the same emotions. A group’s morality is concerned not only with how an individual should judge his own action but with how other members of the group, and the group collectively will judge the individual’s actions and respond to them. Judge your own action so that you are not judged by others. Others will do unto you what you do unto them. So do not do unto them what you would not want them to do unto you. An individual who rejects the morality of the group rejects empathetic membership of the group and empathetic recognition by others of his membership of the group. The individual becomes a moral parasite living on the morality of the group which he does not observe. To him a different level of morality will apply — the more primitive kind of morality applied to those not members of the group, to outlaws and outcasts. By asserting your unlimited moral freedom, you risk losing your own freedom.

We ignore, at our peril, the lessons of the ages. Contrary to libertarian purists, the path to liberty is not found in Mill’s simplistic “harm principle,” which is a formula for atomism. The path to liberty winds tortuously through the complexity of human nature, which shapes — and is shaped by — a society’s mutual striving to survive and prosper. To give a stark but apt example: If you will kill an unborn child for your convenience, why should I trust you not to kill me for your convenience when I am old? And if I cannot trust you, why should I subscribe to the defense of your life, property, and pursuits?
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The “harm principle,” from Chapter 1 of On Liberty:

That principle is, that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil, in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

This is a continuation of “Liberty as a Social Compact.”

The Wisdom Embedded in Social Norms

Social norms can and do evolve. Moreover, in a society with voice and exit they will evolve toward greater liberty, rather than less, if exit is not mooted by legislative and judicial imposition of common norms across all segments of society. I will discuss, in a future post, how liberty is thwarted by governmentally imposed norms. Here I want to expand on the concept of socially evolved norms and their critical importance to ordered liberty. I begin by quoting from John Kekes’s essay, “The Idea of Conservatism“:

Traditions do not stand alone: they overlap, and the problems of one are often resolved in terms of another. Most traditions have legal, moral, political, aesthetic, stylistic, managerial, and multitude of other aspects. Furthermore, people participating in a tradition bring with them beliefs, values, and practices from other traditions in which they also participate. Changes in one tradition, therefore, are likely to produce changes in others; they are like waves that reverberate throughout the other traditions of a society. Since many of these changes are complex and have consequences that grow more unpredictable the more distant they are, conservatives are cautious about changes. They want them to be incremental and no greater than necessary for correcting some specific defect. They are opposed to experimental, general, or large changes because of their uncertain effects on good lives.

Traditions, of course, may be defective. Conservatives need a way of distinguishing between defective and non-defective traditions. A non-defective tradition has stood the test of time. It has endured for a long period, measured in decades, rather than months; people adhere to it voluntarily; and it forms part of their conception of a good life. It may happen that a tradition has endured because of coercion, that people have adhered to it because of indoctrination, or that the lives of which it formed a part were bad rather than good. Those who suspect a tradition of these defects must provide a reason for it, and defenders of the tradition must consider this reason. If the reason is good, the tradition should be changed. But if there is no reason to change, then there is reason not to change. That reason is that the tradition has stood the test of time. Conservatism, therefore, is not the mindless and indiscriminate defense of all traditions, but only of those that have passed this test.

Social norms may evolve beneficially, but they are overthrown by legislators and judges to the detriment of society. As Edward Feser explains in “Hayek and Tradition,”

[t]radition, being nothing other than the distillation of centuries of human experience, itself provides the surest guide to determining the most rational course of action. Far from being opposed to reason, reason is inseparable from tradition, and blind without it. The so-called enlightened mind thrusts tradition aside, hoping to find something more solid on which to make its stand, but there is nothing else, no alternative to the hard earth of human experience, and the enlightened thinker soon finds himself in mid-air. . . . But then, was it ever truly a love of reason that was in the driver’s seat in the first place? Or was it, rather, a hatred of tradition? Might the latter have been the cause of the former, rather than, as the enlightened pose would have it, the other way around?)

The rationality of tradition and the irrationality of hostility to it were themes of Burke’s Reflections on the Revolution in France. But it is possible that the work of F.A. Hayek (which was largely inspired by Burke [see here: ED]) presents the most fully developed and compelling account of these matters, an account presented in terms the post-Darwin enlightened modernist must find difficult to dismiss out of hand, viz., a theory of cultural evolution by means of a kind of natural selection. The aim of the present essay is to articulate and defend Hayek’s position—defend it against the objections of Hayek’s detractors, of course, but also against the misunderstandings of many of his admirers. Some of these admirers are keen indeed on the “evolution” part of his views, but, being less keen on the “tradition” part, make him out to be an advocate of constant change, of “dynamism” over “stasis.”

But he was not that at all, at least, not in the sense these would-be Hayekians imagine. Technological advance, market innovation, and the like were things of which he was a great defender, but those are not the things at issue here. Where fundamental moral institutions are concerned, Hayek was very much in line with the Burkean conservative tradition, a tradition wary of tampering with those institutions (including the specific moral institutions underlying the free market order rightly valued by libertarians). Of course, Hayek did not rule out all change to these institutions in an absolute way, but then, neither do conservatives. At issue is where the default position lies, with who gets the benefit of the doubt in the debate between the traditionalist and the moral innovator. And in this dispute, Hayek is indisputably on the side of the conservative. . . .

Hayek’s view is that the specific content of a traditional practice is indeed often important. It isn’t just a matter of its happening to be traditional; rather, its being traditional is taken by Hayek to be evidence that it has some independent intrinsic value. It is vital to keep this in mind, for Hayek’s position is sometimes mistakenly taken to entail a kind of relativism—as if the traditional practices prevailing in one society must be the best for that society, and the ones prevailing in another are the best for it, with there being no fact of the matter about which society’s traditions are superior. But Hayek believes nothing of the sort; indeed, he insists on the objective superiority of some traditions over others. This sort of relativism could be defended only with regard to traditions (like traveling specifically to grandmother’s house every Christmas) the value of which lies solely in the fact that they are traditional. Hayek is not primarily interested in that sort of tradition.

Hayek’s work clearly expresses ideas that resonate with this conception of tradition as the gradual, internal working out of the implications of a system of thought or practice. This is most evident in Rules and Order, wherein he examines the evolution of rules of practice—as embodied in systems of morality, and especially within the common law—as a process whereby often inexplicit or tacit rules gradually become articulated and their implications drawn out as new situations arise. Law and morality, in his conception, form an organic and evolving structure rather than an artificial closed system created by fiat—a spontaneous order which, in the nature of the case, cannot be fully articulated all at once, but only progressively, and even then not in any finalized way, for there is no limit in principle either to new circumstances or to the system’s inherent but unknown implications. This is part of the reason socialism is impossible, in Hayek’s view: Systems of law—including the laws by which a scheme of “just distribution” of wealth would have to be implemented—are simply too complex for human beings consciously to design, for the circumstances the law has to cover are, like the economic information a socialist planner would need in order to do his job, complex, fragmented, and dispersed, unknowable to any single mind. A workable system of law must, at the most basic level anyway, evolve spontaneously, with conscious human design involved at most in refining it, tinkering around its edges.

Liberty in the Real World

Social norms may be consistent with the abstract idea of liberty — that one may be left alone if one leaves others alone — but they necessarily go beyond that generality to set specific limits on acceptable behavior. Behavior that strays beyond those limits is that which may lead to the subversion of liberty, either through the direct harms it may cause or through its subversive effects on social cohesion. (Such prospects underlie much of the opposition to legislatively or judicially imposed abortion rights and same-sex marriage, for example.*)

Think of life in a small town where “eveyone knows everyone else’s business.” The sense of being “watched” actually tends to foster liberty, in that it discourages crime. As a result, one’s life and property generally are safer in small towns than in large cities. By the same token, the sense of being “watched” can seem oppressive; one feels less free to do things that might draw social opprobrium, even if those things do no more than offend others’ sensibilities.

Why should everyone in a small town have to put up with small-town mores for the sake of a safer, saner life, you may ask? Well, if you don’t like small-town mores, fine, pack up and go to the big city, but don’t forget to take your handgun (if you’re allowed to have one in the big city), and keep your life and homeowner’s insurance paid up. (Alternatively, you can stay in the small town and try, through example and persuasion, to change its mores so that there is greater tolerance of social diversity.)

The point is that liberty and happiness cannot be found in the abstract; they must be found in the real world, among real people (or totally apart from them, if you’re inclined to reclusiveness). Finding an acceptable degree of liberty and happiness in the real world means contending with many subsets of humankind, each with different sets of social norms.** It is unlikely that any of those sets of social norms affords perfect liberty for any one person. So, in the end, one picks the place that suits one best, imperfect as it may be, and makes the most of it. Sometimes one even tries to change it, but change doesn’t always go in the direction one might prefer.

Think of the constrasting visions of liberty and happiness represented in a hippie commune and a monastic order. The adherents of each — to the extent that they are free to leave — can be happy, each in his and her own way. The adherents of each are bound to, and liberated by, the norms of the community, which set the bounds of permissible interaction among the adherents. Happiness is not found in the simplistic “harm principle” of John Stuart Mill; happiness is not found in a particular way of life; happiness is found in the ability to choose (and exit) a way of life that, on balance, serves a person’s conception of happiness.

In sum, there is no escaping the fact that the attainment of something like liberty and happiness requires the acceptance of — and compliance with — some social norms that one may find personally distasteful if not oppressive. But it is possible — in a large and diverse nation where each social group is free to establish and enforce its own norms — to find a place that comes closest to suiting one’s conception of liberty and happiness. The critical qualfication is that each social group must free to establish and enforce its own norms, as long as those norms include voice and exit.
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* The knee-jerk libertarian (and “liberal”) will say, for example, that abortion and same-sex marriage are consistent with and required by liberty. But they are not, as I have argued in the several posts linked here. They are steps down a slippery slope toward the further loss of liberty, just as the “progressivism” of the Roosevelts nudged and pushed us down a slippery slope toward the regulatory-welfare state in which we are now enmeshed.

What few libertarians seem willing to credit is the possibility that abortion is of a piece with selective breeding and involuntary euthanasia, wherein the state fosters eugenic practices that aren’t far removed from those of the Third Reich. And when those practices become the norm, what and who will be next? Libertarians, of all people, should be alert to such possibilities. Instead of reflexively embracing “choice” they should be asking whether “choice” will end with fetuses.

The same principle applies to same-sex marriage; it will have consequences that most libertarians are unwilling to consider. Although it’s true that traditional, heterosexual unions have their problems, those problems have been made worse, not better, by the intercession of the state. (The loosening of divorce laws, for example, signaled that marriage was to be taken less seriously, and so it has been.) Nevertheless, the state — in its usual perverse wisdom — may create new problems for society by legitimating same-sex marriage, thus signaling that traditional marriage is just another contractual arrangement in which any combination of persons may participate. Heterosexual marriage — as Jennifer Roback Morse explains — is a primary and irreplicable civilizing force. The recognition of homosexual marriage by the state will undermine that civilizing force. The state will be saying, in effect, “Anything goes. Do your thing. The courts, the welfare system, and the taxpayer — above all — will “pick up the pieces.” And so it will go.

** There is a kind of pseudo-anarcho-libertarian who asserts that he can pick and choose his associates, so that his interactions with others need consist only of voluntary transactions. Very few people can do that, and to the extent they can do it, they are able to do it because they live in a polity that is made orderly by the existence of the state (like it or not). In other words, anarcho-libertarian attitudes are bought on the cheap, at the expense of one’s fellow citizens. But most people cannot and do not wish to escape the influence of groups. Think of the many kinds of groups to which we belong — even fleetingly — because our membership in them yields net benefits, even though we must sometimes make compromises in order to meet the expectations of the other members of the group. For example, most of us reside in a neighborhood where there usually are minimal expectations about how one keeps up one’s property, even if one avoids the neighbors. Working in a factory, office, or store is certainly a matter of group membership that requires one to make all sorts of compromises. Then, there are athletic activities (sports teams, gym workouts) which usually involve the observance of certain niceties. The list could go on for a long time.

Related posts:

The State of Nature
Some Thoughts about Liberty
The Paradox of Libertarianism
Liberty as a Social Compact

From “Introducing The Objective Standard,” the first article to appear in the new journal of that name:

[W]e reject the notion that man’s nature is inherently corrupt (i.e., the idea of “original sin,” or the Hobbesian view of man as a brute), making his character necessarily depraved or barbaric. We also reject the idea that man has no nature at all (i.e., the twisted, modern interpretation of man as a “blank slate”), making his character the consequence of social forces, such as upbringing or economic conditions. A person’s character is neither inherently bad nor the product of social forces; rather, it is a consequence of his choices. If an individual chooses to face facts, to think rationally, to be productive, and so on—and thereby develops a good character—that is his achievement. If an individual chooses not to face facts, not to think, not to produce, and so on—and thus develops a bad character—that is his fault.

See the strawmen rampant? Man is born either totally bad or totally blank. That false dichotomy clears the way for complete self-determination. In fact, we must strive to overcome our nature and nurture, to the extent that we find them a hindrance to self-fulfillment (see the preceding post). But nature, nurture, and choice* can — and do — lead many humans to a life of brutality.

Later:

Predation (the sacrificing of others for one’s own alleged benefit) is no more in one’s best interest than is altruism. Happiness, like everything in the world, is something specific; it has a nature. Happiness is the state of mind that follows from the successful pursuit of rational, life-serving values. Genuine happiness comes from achieving values, not from stealing them; from thinking rationally and being productive, not from relinquishing one’s mind and becoming a parasite on the thought and effort of others; from earning romance and making passionate love, not from raping people.

Try telling a Hitler, a Stalin, or a bin Laden that he is an unhappy predator. They are “happy” by their own, perverted standards. How can an Objectivist (of all people) presume to get into the mind of another person and declare him “unhappy”? The notion that happiness “has a nature” is typical of the Platonic idealism that seems to run throughout Objectivism. The world must operate as Objectivists say it does because . . . it must, that’s why.

As for Objectivists’ stubborn insistence that there is such a thing as altruism, read this. Objectivism, in large part, seems to be a rejection of

the morality of altruism—the idea that being moral consists in self-sacrificially serving others (whether the poor, the “common good,” “mother nature,” or “God”).

Because

[a]ltruism is not good for one’s life. If accepted and practiced consistently, it leads to death. This is what Jesus did. If accepted and practiced inconsistently, it retards one’s life and leads to guilt. This is what most altruists do. An altruist might not die from his morality—so long as he cheats on it—but nor will he live fully. Insofar as a person acts against the requirements of his life and happiness, he will not make the most of his life; he will not achieve the kind of happiness possible to man.

Which is just more mind-reading. What we call altruism is, in fact, a form of self-fulfillment. It simply happens to be of a different form than the Objectivists’ ideal. Which tells us a lot about Objectivists, who must have altruism as a foil for their adherence to egoism:

Egoism is good for one’s life. If accepted and practiced consistently, it leads to a life of happiness. If accepted and practiced inconsistently—well, there is no reason to be inconsistent here. Why not live a life of happiness? Why sacrifice at all? What reason is there to do so? In the entire history of philosophy, the number of answers to this question is exactly zero.

There is no reason to act in a self-sacrificial manner, which is why no one has ever provided one.

Oh, please! Just say “no” when the Red Cross calls and be done with it. You don’t have to rationalize your decision for my benefit.

Finally (for me), there’s this:

[W]e emphatically oppose the politics of libertarianism—the anti-intellectual movement that claims to advocate “liberty,” while flagrantly ignoring or denying the moral and philosophical foundations on which liberty depends. Liberty cannot even be defined, let alone defended, apart from answers to questions such as: What is the nature of reality? What is man’s means of knowledge? What is the nature of the good? What are rights, and where do they come from?

As for “reality,” “man’s means of knowledge,” and “the nature of the good,” Objectivism seems to rest on a priori assertions, circular reasoning, and nothing more. As for “rights,” read this if you seek something deeper than Objectivism has to offer. There is an excellent antidote to Objectivism’s cloud-cuckoo view of reality: reading Hayek. You might start here.
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* The link is to Judith Rich Harris’s website. Harris, the author of No Two Alike: Human Nature and Human Individuality, argues that we are formed by genetic inheritance and peer relations (as opposed to parental influence). I take peer relations to be a form of nuture, that is, an environmental influence.