(cross-posted at Upturned Earth, where comments are open)
(This is the first of what I expect will be a series (of as yet unknown length) on the need for a new federalism that respects the need for communities to foster their own sets while at the same time seeking to protect the rights of dissident minority or relatively powerless interests within those communities).
In the United States, and really in most all of the developed world, some form of post-Enlightenment classical liberalism is the ruling philosophy. Critical to any such worldview is an emphasis on individual rights and freedoms. Of course, no modern philosophy lays as much a claim to classical liberalism as libertarianism - and yet few libertarians would call the world remotely “libertarian.” Why is this? Does the world just pay lip service to the idea of freedom and to Enlightenment ideals?
On the whole, with some exceptions, I think the answer is no. Instead, I think the answer lies in the fact that the boundaries of just about any concept are extraordinarily difficult to define in a universal manner. To be sure, we can all largely agree on the core elements of most important concepts, and those core elements must be protected. But on the edges, those concepts become very blurry and not subject to a priori universal definition.
Take for instance, the most basic of human precepts, the moral and legal imperative against murder, most absolutely stated by the Commandment “Thou shalt not kill.” You will find virtually no person or society who disagrees with the sentiment of this statement, nor with the necessity for it. And yet almost no one accepts it (in practice) as a moral absolute. Societies make varying legal and moral exceptions for self-defense, for war, for defense of others, for defense of property, or for enforcement of government laws. Indeed, as any doctrinaire libertarian will be quick to tell you, the very existence of government authorizes the use of lethal force since one who chooses to defend themselves against what they perceive as an unjust government action will be subjected to potentially lethal violence at the hands of that government.
Similar problems arise with just about any other significant legal or moral concept. The Non-Aggression Principle (which prohibits the initiation of force, and which many non-libertarians agree as being a worthy principle) for instance begs the question of what exactly is the “initiation of force.” Without resorting to utilitarian arguments (which inherently require a subjective weighing of costs and benefits), why is it a priori necessary to limit the definition of “force” to the use of physical force?
Short of anarchy (which has its own set of problems), there is simply no way to accommodate all these potential definitional boundaries within one government. Democracy seeks to do so, but must necessarily fail because of the manner in which it makes morality a function of the opinions of 50% plus 1 of those who vote - an arbitrary way of defining morality, to say the least. And yet, people need to have a clear set of definitions upon which to rely if there is to be any concept of a rule of law.
What is needed, then, is a system in which individuals have the opportunity to select, as near as possible, the set of definitional boundaries with which they most agree. The more freedom individuals have to select those boundaries, the more that government action for violation of those boundaries is justifiable and - as importantly - legitimate. Thus, the more centralized government becomes (and the more factions over which it has power), the less legitimate that government becomes.
Unfortunately, however, we don’t get to choose the government under which we are born. Nor is it terribly easy to escape that government, no matter how localized, if it imposes an unacceptably different set of definitional boundaries from you. Still, the more localized the government, the less difficult it will be to escape that government or, at a minimum, to effect a change in that government.
This thus implicates a system of federalism - but importantly one with a significantly different emphasis than the system with which we are most familiar - about which, much more later. But the big problem with our current concept of federalism is its emphasis on states’ rights, which fails to recognize that states are way too large an entity to respect individual rights or to rely on a valid concept of having the “consent of the governed”; indeed, many are larger than the entire United States at the time of the Constitution. This is also not an argument that implicates nihilism or moral relativism, at least not as I understand those concepts; instead, it seeks to permit - to the maximum extent possible - those with similar mores to live together under a common system of law and prove, in a non-violent fashion, their moral superiority or inferiority. Rather than demand a community accept behavior it deems immoral, it merely demands that a community tolerate the existence of other communities that it deems immoral.
NB: It may appear that I have conflated morality and the rule of law at various points in this post. That is not altogether unintentional. Indeed, part of my argument rests in part on the idea that: 1. A moral act requires some degree of voluntariness to truly be moral (i.e., an act is not made moral because it is legal, nor is an act made immoral because it is illegal); but 2. A community should have a right to protect its moral values to the extent there exists a consensus upon the definition of those values. In essence, the rule of law should, to the extent possible, reflect local consensus, both on matters of a moral and amoral (ie, things like weights and measures) nature. Regardless, this post is really just the tip of my arguments, so if you find my arguments lacking in some respects, please recognize this in your comments.
Monday, November 17, 2008
(cross-posted at Upturned Earth, where comments are open)
Posted by Mark at 2:43 PM