Timothy Sandefur, an old sparring partner of mine, offers qualified praise for the state:
Cato Unbound has an excellent essay by Mark S. Weiner arguing that whatever its shortcomings, the state as a political entity is better than its likely alternative: clan rule. I remember having similar thoughts when Christina and I got married. As atheists, we occasionally face various forms of discrimination (fortunately only rarely, and typically minor) but we were still able to get married because we could obtain a civil marriage through the state. Lucky us. In centuries past, that alternative might not have been open to us. In this way, the state provided us with a service that in other times and places has not been available: secular marriage.
It’s a mystery to me why Sandefur and his spouse, both of them declared atheists and libertarians, want their marriage to be authorized by the state. Surely, they know that they could have entered into a cohabitation contract without the approval of the state. That contract could have included many provisions, including an agreement to submit their differences to binding, private arbitration.
Did they seek state approval to indicate that their marriage is just as legitimate as marriages sanctioned by churches? This strikes me as out of character for atheists and libertarians. If one doesn’t believe in God and is generally opposed to the workings of the state (beyond some minimal level of defense, perhaps), why would one unnecessarily emulate believers and acknowledge the state’s legitimacy in a sphere where its involvement is unnecessary?
All of that aside, I am bemused by Sandefur’s laudatory reference to Weiner’s essay, which begins with this:
Many conservatives argue as a basic tenet of their political thought that individual liberty thrives when the state is limited and weak. “As government expands, liberty contracts,” explained President Ronald Reagan in his farewell address, calling the principle “as neat and predictable as a law of physics.” This view is especially pronounced among libertarians, and for libertarians of an anarchist perspective, the opposition between the individual and the state is fundamental and irreconcilable.
I believe this view is significantly mistaken. From the perspective of comparative law and legal history, it represents a dangerous illusion characteristic of citizens who already enjoy the benefits of modern liberal government. Although the state can be an instrument of tyranny, robust government capable of vindicating the public interest is vital for individual autonomy.
As I argue in my recent book The Rule of the Clan, among its important benefits, a strong central state provides the most effective means to ensure that persons are treated as individuals, not merely as cousins. In its absence, people are forced to look to other institutions to address their social and legal problems, and the most enduring such organization in human history is the extended family, the clan—for which group loyalty trumps individual rights.
Because the rule of the clan provides many vital goods that liberal societies deliver less effectively, and because it is based on the natural fact of genetic affinity, it represents an ever-present gravitational force in human affairs.
One of the objects of modern liberal government is to resist this gravitational pull.
The fatal flaw in Weiner’s argument is his passing admission that “the state can be an instrument of tyranny.” The state not only can be an instrument of tyranny; it is an instrument of tyranny. When it comes to tyranny, the clan has nothing on the state.
Weiner writes as if the state were a kind of mechanical contrivance, free of human impulses and capable of a dispassionate defense of individualism. Would that it were so, but it is not so. The state — as a human institution — is powered by the operation of clannish institutions. As Daniel McCarthy writes in response to Weiner,
It’s not only the case that a strong central government—today’s “state” or the ancient empire—can safeguard the individual from being subsumed into a constraining group identity, but it’s also the case that the active component of liberty, the exercise of self-government, has tended to be a matter of group expression.
In republican Rome, the good (self-government) was inextricably mixed with the bad (rule by clannish elites). But this is the story of self-government everywhere. The House of Commons in England, for example, did not begin as an institution to represent all commoners; it began as a forum to represent the wealthiest towns and localities….
Reform of the boroughs, broadening of the franchise, and the introduction of the secret ballot were great struggles; at times they seemed almost revolutionary to Britain’s landed class. These struggles were fought and won not by individuals but by groups that were more than a little clannish and coercive. Clannishness was characteristic of the Catholic and Dissenting Protestant groups that also fought at this time—sometimes literally in streets—for their civil liberties. And in America, too, clannish groups, from racial minorities to religious and sexual ones, have had to battle for freedom. This was not at all an individualistic activity, either in its origins or its methods. The liberties we as individuals cherish today were largely won by clannish groups.
Such struggles, even when they are outlawed and cannot be conducted at the ballot box, are a kind of participation in power, as one institution of power—not the state, but the clan—compels another to recognize its demands and accede to at least some of them for the sake of peace. Even in ordinary politics at the level of Republicans and Democrats, clannishness rather than individualism is the rule, with religious, ethnic, and cultural blocs pursuing group objectives. Individualists tend to be blind to this reality; they are often at a loss to explain politics when, judged as a purely individual activity, even the act of voting is irrational. But it’s not an individual activity—it’s a clan ritual, one that bears some relation to the actual acquisition of power for the group.
Without groups, there is no participation in power—not outside of the tiniest direct democracy, at any rate. The ever present possibility of clan organization, well noted by Weiner, is a natural building block for group participation in ruling. As Weiner warns, the admixture of kinshp and government can lead to “clannism,” in which a kin group dominates the state and uses its machinery of power for selfish ends. Yet without strong clans, participation in power, for defensive as well as aggressive purposes, is forestalled. The result is Caesarism—the condition of the early Roman Empire, in which the citizen may have certain individual legal rights, but he has hardly any way of participating in government to safeguard or extend those rights….
The paradox of rule is that to secure one’s rights, one must participate in government, but participation in government means wielding power that can—and inevitably will—be used to oppress others. Participation in government necessarily has an illiberal dimension, even though it is also indispensable for securing liberty.
I call it the interest-group paradox:
Pork-barrel legislation exemplifies the interest-group paradox in action, though the paradox encompasses much more than pork-barrel legislation. There are myriad government programs that — like pork-barrel projects — are intended to favor particular classes of individuals. Here is a minute sample:
- Social Security, Medicare, and Medicaid, for the benefit of the elderly (including the indigent elderly)
- Tax credits and deductions, for the benefit of low-income families, charitable and other non-profit institutions, and home buyers (with mortgages)
- Progressive income-tax rates, for the benefit of persons in the mid-to-low income brackets
- Subsidies for various kinds of “essential” or “distressed” industries, such as agriculture and automobile manufacturing
- Import quotas, tariffs, and other restrictions on trade, for the benefit of particular industries and/or labor unions
- Pro-union laws (in many States), for the benefit of unions and unionized workers
- Non-smoking ordinances, for the benefit of bar and restaurant employees and non-smoking patrons.
What do each of these examples have in common? Answer: Each comes with costs. There are direct costs (e.g., higher taxes for some persons, higher prices for imported goods), which the intended beneficiaries and their proponents hope to impose on non-beneficiaries. Just as importantly, there are indirect costs of various kinds (e.g., disincentives to work and save, disincentives to make investments that spur economic growth)….
You may believe that a particular program is worth what it costs — given that you probably have little idea of its direct costs and no idea of its indirect costs. The problem is millions of your fellow Americans believe the same thing about each of their favorite programs. Because there are thousands of government programs (federal, State, and local), each intended to help a particular class of citizens at the expense of others, the net result is that almost no one in this fair land enjoys a “free lunch.” …
The paradox that arises from the “free lunch” syndrome is much like the …. paradox of thrift, in that large numbers of individuals are trying to do something that makes certain classes of persons better off, but which in the final analysis makes those classes of persons worse off. It is like the paradox of panic, in that there is a crowd of interest groups rushing toward a goal — a “pot of gold” — and (figuratively) crushing each other in the attempt to snatch the pot of gold before another group is able to grasp it. The gold that any group happens to snatch is a kind of fool’s gold: It passes from one fool to another in a game of beggar-thy-neighbor, and as it passes much of it falls into the maw of bureaucracy.
I call this third, insidious, paradox the interest-group paradox. It is the costliest of the three — by a long shot. It has dominated American politics since the advent of “progressivism” in the late 1800s. Today, most Americans are either “progressives” (whatever they may call themselves) or victims of “progressivism.” All too often they are both.
Sandefur’s “free lunch” is the state’s recognition and authorization of his marriage. Now, it’s true that the state was already in the business of recognizing and authorizing marriage, so Sandefur’s “free lunch” probably didn’t impose additional costs on the rest of us. But by beseeching the state for a favor, he joins millions of others in validating a panoply of state powers that, on the whole, suppress rather than uphold liberty.
Sandefur would argue that his right to be married wasn’t the state’s to grant. Rather, rights exist independently, and the state sometimes recognizes and enforces them. The state, in other words, is really in the business of bestowing benefits. But because of the interest-group paradox there’s always a price to be paid — in dollars or liberty — for those benefits. The price is often justified by referring to “the greater good,” “the people,” “the nation,” or “society” (to list but a few such shibboleths).
What does that have to do with individualism? Nothing. How does it differ from clannism? It doesn’t; it is simply clannism with a bigger army.
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