I have criticized some libertarians for communicating the worst aspects of libertarian philosophy. I, in contrast, prefer to emphasize other traits, such as cosmopolitanism. I think that a free society tends towards an erosion of undesirable prejudices, where their undesirability is decided collectively (e.g. if a majority of people morally oppose racism). But, my position does not imply that those “Auburn libertarians” — a category I use for convenience — are wrong. In fact, I am implicitly saying that they are more right than wrong, in most cases. My argument boils down to, “Even in a world where people are allowed to disassociate based on socially unacceptable prejudices, social outcomes will be similar to those in a world where these outcomes are forced through law.”
The problem is that us “bleeding hearts” — well, actually, I shouldn’t speak for those who know more than I do — are still in a pickle when it comes to issues like civil rights legislation. I’m going to use civil rights legislation as the main example throughout this post. I see three general approaches,
- We justify these laws;
- We continue to skirt around the issue by emphasizing other forces;
- We explicitly oppose these laws.
(1) is seemingly at odds with basic libertarian philosophy. (2) has its limits, and there is that ultimate dissatisfaction with leaving a controversial problem essentially unanswered. (3) would essentially put us in the same camp as the libertarians we disagree with.
I suppose there is some complicated way of justifying civil rights legislation. We can talk about past injustices. We can talk about minimizing injustice (utilitarianism). I don’t know much about these approaches to the problem, so I won’t embarrass myself by talking about them. Rather, I want to propose an alternative, influenced by Hayek and Buchanan.
In the first volume to Law, Legislation, and Liberty, Hayek discusses institutions (rules) that arise spontaneously. These kind of rules are abstract, often difficult to pin down and communicate. They are followed, oftentimes without even knowing of their existence, because they allow for a more accurate interaction between different persons’ expectations. The system of rules evolves over time, because better rules allow for more well-off societies, meaning bad rules will go extinct and good rules will be adopted by other societies.
As these rules come to be better understood by people, they can be encoded in a written rule of law, legislated by government. Legislating versions of these rules is not the best approach to institutional evolution, but it is a natural outcome of the belief that we can rationally plan society — the best rules aren’t implicit and spontaneous, but explicit and planned. Hayek argues that most “planned” rules are just versions of spontaneous institutions that are finally understood by legislators.
Racial prejudices were always strong in the United States, motivated by whatever reason. This fact is manifested in things like pre-1965 immigration laws, the Jim Crow laws, and the reaction to the civil rights movement. But, I think it’s fair to assume that racial prejudices were slowly eroding, at least in the context of specific races. It’s likely that in 1960 a greater share of Americans supported extending civil rights to African-Americans than in 1860. Reasons for this include a network effect to crumbling prejudices (the more people who accept some previously “alien” trait, the more socially acceptable it is), and the fact that racial prejudice is a cost — it’s a cost to do business, and it’s a personal cost (hate damages the hater more than the hated). Further, new generations will grow up surrounded by different cultural forces.
My point is that it could be that the U.S. government was legislating law that already implicitly existed, even it constrained to a lesser degree. Maybe the extension of civil rights, within the polity, was already taking place, because the share of people actively seeking to restrict them was falling. Old rules, based on racial prejudice, were costly, and newer rules allowed for better societies. If this is true, the U.S. government was merely strengthening a trend towards the extension of civil rights.
Still, how would we justify forcing people to accept these rules? Is it right to enforce a prohibition against disassociation on the basis of race? Or, is it better to just let these forces work themselves out voluntarily. This is where Buchanan’s and Tullock’s The Calculus of Consent comes in.
Ideally, democratic institutions allow for mutually beneficial exchanges that would otherwise be impossible, or much more difficult, to make through market institutions (think public goods). This is even more true of representative, and complex, democracies, which make the political process more inclusive and allow for a superior economization of knowledge. What do these exchanges look like? Suppose we are talking about an exchange between two people, where one wants the government to invest in building a road and the other in space exploration. Depending on the intensity of their preferences, there may be an opportunity for gains from trade. Person A can offer Person B a vote in favor of space exploration, as long as Person B votes in favor of road construction.
We don’t have ideal democratic institutions. But, that doesn’t mean our democracy doesn’t work at all, even if it’s too complex for us to fully understand (this reminds me of people who oppose markets, largely because their complexity make them difficult to understand — people don’t like what they don’t understand). Even if we are mostly unaware of how the process works, and we don’t feel directly involved in its planning, American democratic institutions are probably still better than the alternatives in allowing for mutually beneficial exchange outside of markets.
If we think of it in terms of exchange, civil rights legislation seems to have less to do with coercion than we might think. The intensity of prejudice was falling, and the intensity against prejudice was rising, so it makes sense that some kind of compromise was struck. Of course, given our non-perfect democracy, there are probably a large number of people who were forced to accept these new rules, without receiving of greater value in return. But, still, in principle, it’s not clear that things like civil rights legislation is “unlibertarian,” given that we can conceive of a situation where such legislation would arise voluntarily.
Borrowing a point from Walter Block, the most egregious aspects of public legislation would probably be avoided if people had the right to disassociate from government. This right would allow people to cease a relationship with a government, and, of course, the latter would cease its relationship with the former — no access to public benefits (unless they’re externalized). I have made this point before. And, it’s not radical, because it’s essentially what motivates the Tiebout model of tax revenue competition. I don’t think allowing the right to disassociate would lead to anarchism, only to greater competition between providers of public goods. The benefits of being able to exploit gains from trade through political institutions are just too strong.