Reply to Kling and McCarthy

Thanks to Cato Unbound and its editor Jason Kuznicki for organizing this forum and putting together such an outstanding, intellectually diverse group of respondents. And thanks to my respondents for engaging so generously with my work, even while taking fundamental issue with parts of it. I’m grateful to them for their productive disagreements and for our conversation. I also appreciate those readers who posted to the discussion board and shared their thoughts on Twitter and other social media. Although I haven’t been able to respond to you individually, please know that I’ve eagerly followed your comments.

To start us off, I want to clarify the issue of my own political affiliation. A number of readers have asked whether I’m a libertarian, and the answer is no. In general, I’m sympathetic with various forms of social liberalism and the social market economy. But I’m much less concerned with staking out an ideological position than I am with trying to clarify the stakes of our current political situation and providing some legal and historical perspective on it. My argument is intended to unite people across many partisan and ideological divides.

What I share with modern libertarians is a concern for protecting and enlarging the scope of individual freedom. I view the expansion of personal autonomy, consistent with human dignity, as the proper telos of societies dedicated to liberal Enlightenment ideals. That’s why I was so taken by Arnold Kling’s characterization of my argument as “a libertarian case for a strong central state.” His description makes it clear that among the political positions consistent with my analysis, the anarchist or anarcho-capitalist view is excluded. It also underscores that I judge a state’s legitimacy in terms of the substantive goals the state pursues, and that I believe robust government, frequently described on both the right and the left in collectivist terms, in fact should be understood as serving individualist ends.

Indeed, I believe that strong government is essential to the form of life we broadly call modern, cosmopolitan liberal society—down to the very psychological and spiritual sense of self each of us possesses. When I write that “the modern self is a creature of state development” (this comment is for “Counsellor”), I mean that the individual whose freedom libertarians admirably seek to advance was the historical consequence of the growth of the modern state, and that it very likely is inconceivable without it. Kling is correct when he contrasts me with Bennett and Lotus in this regard.

I am not a political philosopher, but I would take this historical perspective as pushing hard against arguments for democratic government based on social contract. In the same light, I’d resist the terms of the question posed by Michael Huemer in the stimulating essay Kling cites: what gives government the “right” to behave in ways that would be wrong for non-governmental agents? As our most public institution, the democratic state seems to me the only agent capable of ensuring that the public interest on which modern individualism depends is vindicated within an “open-access order.” More fundamental questions are to what extent this modern self should be valued above other forms of personhood—I think we all agree that it should be—and what structures guarantee it (there Huemer and I clearly differ).

Notably, neither my essay nor my book consider precisely what government institutions are necessary to advance the freedom the historically-contingent liberal self. Recasting my argument in Hegelian terms, one could describe the historical process I endorse as the dialectical overcoming of societies dedicated to the “particular altruism” of the extended family by those dedicated to the “universal altruism” of the individual as such. But what are the specific legal institutions and government policies of universal altruism? What state structures are necessary to support what Kling describes as a “universal brotherhood” of individuals?

I’m happy to leave this critical question for another day. In fact, I hope it will be the subject of my next book. But I’m inclined to think that the scope of services that government needs to provide, and not simply to ensure, to keep the rule of the clan in check and to advance the modern self is more substantial we typically recognize. The legal and state structures we take for granted lie hidden beneath the surface of daily life. But one issue I should emphasize, unless I be mistaken for a state centralizer: I think that advancing modern individualism is perfectly consistent with a federalist system in which there are strong traditions of local government.

And what of human nature, and what of the Anglo-Saxon cultural inheritance? Kling raises these two questions in the course of his thoughtful comments, which very helpfully enlarge the circle of scholarly reference for my argument.

Regarding human nature, from a historical perspective, I see the sociological pressures to organize into ascriptive, hierarchical status groups as overwhelming without the strong countervailing force of government dedicated to the public interest. For this reason, I’m deeply skeptical of the peaceable vision of anarcho-capitalist society sketched by Huemer in the essay Kling cites:

In this society, the services now provided by governmental police would instead be provided by competing protection agencies, hired either by individuals or by associations of property owners. Protection agencies, knowing that violence is the most expensive way of resolving disputes, would require their customers to seek peaceful resolutions of any disputes with other individuals. Agencies would decline to protect those who either willfully initiated conflicts with others or refused to seek peaceful resolutions; any agencies that acted otherwise would find themselves unable to compete in the marketplace due to the soaring costs created by their troublesome clients. The services presently provided by government courts would instead be provided by private arbitrators, hired by individuals who had disputes with one another. Laws, rather than being made by a legislature, would be made by the arbitrators, in the manner in which the British common law actually developed.

In my view, such a privatized socio-legal order would result in a radical stratification of society under which persons would be subsumed within their status groups. It would subvert the interests of persons as individuals and turn them into cousins; it would transform citizens into corporate subjects. As Daniel McCarthy summarizes, I view such privatization as a recipe for “freeing racial gangs, blood-bound crime cartels, and even clan-like corporations to oppress the individual.”

As for Anglo-Saxon culture, there’s no question that the relative importance Germanic society placed on the nuclear rather than the extended family was essential to state development in England and much of Europe. And as a cultural matter, the modern nuclear family has been a profound agent of psychological individualization. But it’s worth noting that in ancient and medieval Germanic society, group feud nevertheless played an important role in socio-legal organization. The story of Germanic state development is partly one of overcoming the legal institutions of the clan even in the context of a relatively stronger nuclear family orientation. I thus see no reason why we couldn’t witness the development of new forms of group socio-legal life even in a society possessing a deep Anglo-Saxon history. Moreover, the United States is profoundly diverse in its cultural inheritance, and my argument for strong government institutions is meant to apply globally.

McCarthy is intellectually generous in treating so kindly an argument with which I appreciate he has significant disagreements. Kling and I have engaged in a conversation elsewhere on the web; I’m glad to have a similarly engaged interlocutor from the right. Plus, I’m always happy to be reminded of the dystopian legal vision of “Mad Max.”

McCarthy makes many excellent points, among them that politics is an experience significantly mediated by groups. I agree, and indeed I believe that powerful group attachments within civil society are essential for liberal citizens to obtain many of the goods provided more directly under the rule of the clan. Modern liberalism is inconceivable without strong civil society institutions. It’s essential for liberal government to provide space for them to thrive if liberalism is to fulfill its purposes. And groups are important not simply to electoral politics, but also to the grassroots organizing through which people likewise advance their interests.

But though groups mediate our politics, they are not its end. In the American constitutional tradition, I take this to be the essential meaning of the Equal Protection Clause. And while choosing between Democrats and Republicans when voting in the United States can be viewed as a clannish ritual, it is the clannish ritual of a liberal society. It inculcates important habits of mind that undergird liberal government—habits furthered by the great historical achievement of the secret ballot (one of the legal institutions of universal altruism). The same could be said of the various rituals announcing the peaceful hand-off of power between political parties affiliated with their multitude of civil society groups. The fact that liberal politics actively imagines persons affiliating with such groups is a sign of its strength as a historical alternative to the rule of the clan.

But there’s an important difference between the groups that McCarthy and I both think are important and the groups that under the rule of the clan form the constitutive units of society, politics and law. Under the rule of the clan, those groups are immutable, ascriptive, typically predicate a person’s rights and obligations on their position within the group, and offer little if no opportunity for exit. Liberal civil society groups are voluntary. They may provide points of pride, and materially advance a person’s perceived political interests, but belonging to them is purely a matter of personal choice.

In this respect, the historical development of modern liberal society could be understood as a transformation from clan to club. Begging McCarthy’s apologies, I’ll note for humor’s sake, but with a serious purpose, that it seems his own clan recently selected its clan chief on the basis, it’s true, of tanistry, but happily supported by primogeniture. I imagine he had no idea. I’m also confident that if I walked into the latest Clan McCarthy gathering and wanted to take part for the sake of fun and interest, I’d be welcomed with open arms.

My concern is that by weakening government structures and eroding the public, democratic institutions that support universal altruism, such groups—and a host of others—will transform from soft markers of cultural identity and become hard, socio-legal institutions. As a result, modern individualism will erode. I share McCarthy’s condemnation of an overbearing state. But I take the growth of the post-modern rule of the clan as an equal if not greater danger.

I’m writing this post just before John Fabian Witt’s response will be published, and because of my personal schedule I’ll be taking a few days to think about his essay in the context of Kling’s and McCarthy’s comments before I respond. In any case, I don’t want to extend this post beyond a reasonable length. So in the spirit of our “unbound” conversation, I’ll close here by including two videos I made some time ago that may be of interest for the discussion (I create short videos now and then for my blog). The first video leads me to wonder whether the perspective on individualism and the state that I’ve developed through my historical writing doesn’t implicate the difference between individual liberty in the American constitutional tradition and human dignity in post-war German law:


The second video is an exploration of some of the legal ideals of Argentina, a society being led down a different legal path:




Also from this issue

Lead Essay

  • Mark S. Weiner argues that, while the state does often destroy individual liberty, an even greater danger lies in the rule of the clan. Clan-based societies have been found throughout the world, in many different times and places. In general they have been highly resilient, successful at replicating themselves – and markedly illiberal. Individual freedom may need a strong central state after all, one that can provide the rule of law, enforce contracts, and suppress clan-based feuds and prejudices. Without the state, we may find ourselves regressing from an egalitarian society of contract to a hierarchical society of status. Liberals of all persuasions, including classical liberals, should beware this outcome.

Response Essays

  • Arnold Kling argues that human beings require institutions to interact on the basis of trust and cooperation. Kling argues that the resurgence of the clan is possible but unlikely in Anglo-American societies because the nuclear family rather than the clan is our distinctive form of non-state order. Kling concludes that the natural individualism fostered by the nuclear family makes prospects bright for shrinking the state without the risks of clannism. He calls on libertarians to advocate institutions that would accomplish this task.

  • Daniel McCarthy argues that all political activity takes place in collectives and in the organizations they create. As a result, even liberal societies are never all that far away from the rule of the clan. Clannishness, rather than individualism, is the rule in politics, and it probably always will be. To McCarthy’s way of thinking, even voting is a clan ritual; his viewpoint gains credibility when we consider that individualist analysis of voting is hard pressed to explain the act at all. The paradox of rule is that, to secure one’s rights, one must participate in government, but that requires committing to a group, an act that necessarily has an illiberal dimension.

  • John Fabian Witt argues that Mark Weiner raises a fundamental question about the function of the state. Witt argues that a distinctive feature of the state is its fragility as a stopping point between the small kin group on the one hand and empire or world government on the other. The state seemingly forgoes both the primordial attraction of the kin group and the philosophically seductive vision of empire. While agreeing with Weiner about the state’s vulnerability, Witt is more skeptical of the claim that the state is naturally conducive to liberal values. Defenders of the state, Witt concludes, would do well to refocus on the precise character of the community the state defines.