My good friend Rick did me the great service of making excellent criticisms of my essay on libertarianisms. I started to post a response in the comments, but it quickly got too long. In any case, here is my response:
"I disagree with your premise that giving a social norm the weight of (sovereign) law is distinguishable from governmental intervention. Sovereign law, for better or worse, IS government intervention."
The point was not that it was or wasn't governmental "intervention" - sometimes it is and sometimes it isn't, but rather, a law doesn't require a government. See for example this post about the powers of text.
In fact, you find throughout history many laws that have no explicit punishments. That is because, often, none is needed. By intermarrying society and law, you can have laws that don't require governments. When you separate them, the only thing that enforces law is a government.
"Rather than allowing individuals to define the terms of their relationships (or to choose NOT to define them, a possibility you've overlooked)"
I am unclear how an undefined terms of relationship would work in a legal context, except, perhaps, by ceding authority to social norms!
"A market would exist (in fact, already does exist) for ready-made contractual arrangements, especially for relationships as common as marriages"
But this is only part of the point. The fact is that, (1) that there are always unexpected parts of a relationship which the law must handle. These are handled according to societal norms and goals, precisely because that is what is left when a contract breaks down, and (2) marriage impacts much more than just the people getting married. I pointed this out here. If marriage communication is, in fact, privileged, then who receives this privilege is a societal issue, and not one of the contractants of marriage. The possibility of children introduces players into the contract which were not a party to it. This means that either (a) the children are treated as simple property, or (b) that society establishes norms regarding their handling, which would have priority above the contractural relationship. In fact, even though there are many other places where society and law have a necessary interaction, the existence of children alone bring together societal norms and law in a very powerful way.
The fundamental problem of libertarianism is that it presumes that we can be, for the most part, disconnected from each other, and even elevates that to a societal goal - to be connected to only those people you choose.
In reality, though, this is neither possible nor desirable. Libertarianism, similar to liberalism, places extremely high value on the degrees of freedom that an individual can do. While I agree that there shouldn't be any unwarranted restriction on degrees of freedom, I find this highly suspicious as an end-goal. Is the ability to pick my nose in public really the purpose for which liberty aspires? I should hope not, for if so it makes it a goal not worth persuing. I agree that liberty is important. I also agree that the nature of liberty requires that society allow things that it normally doesn't agree with, and that society and law, while overlapping in many areas, are not coextensive.
Liberty is the combination of self-mastery, faith, and humility. It is self-mastery in that none of us are free unless we can get control of ourselves - the biggest source of bondage is actually the lack of personal control over ourselves, not other people. In addition, liberty is about the faith that others' may be persuing societal good by means which are radically different, and not necessarily completely understood. Also faith in the fact that most errors in this direction are not fatal. Finally, it is about the humility to accept that there is room for disagreement in everything.
From this perspective, while individual degrees of freedom are important, they are not the only consideration. Freedom to err is vitally important for the freedom to be correct, but this doesn't mean that liberty implies that I should be able to just do anything I want. That is the attitude of my children, I should hope that by the time they are adults they will have sufficient self-mastery to be beyond that.
"In addition, government recognition (aka regulation) of marriage also allows the government a guise of legitimacy under which to confer benefits on one group at the expense of another. Tax and other benefits are provided to married people but denied to gays, polygamists, and unattractive singles."
Just to point out, most of the "benefits" are actually to unmarried cohabitators. We found this out this summer. The state social workers were encouraging us to divorce so that we would have more access to benefits. They determined that we were going to need $89,000 in assistance each year, but that my salary (which is less than that figure) disqualified me from receiving anything. However, if we divorced, then Christa would be able to get the full benefits package.
"Your conclusions about contracts for burgers and lawyers attending weddings are nothing more than unsupported hyperbole."
I disagree. The fact is that law is actually moving more towards your view with regards to basic human interactions. And, with that, we are receiving a constant increase in the number of things we have to sign. We have crazy lawsuits because we no longer have a societal expectation for self-responsibility. Therefore, in nearly every interaction, we have contract which disclaim problems that occur from a lack of self-responsibility. We have idiotic privacy forms we have to fill out at the doctor's office. We have stupid EULAs we have to click through to install software. Why do we just click through them? Because we know what they say. However, if, instead of everyone lawyering up, we instead had a means of social expectations interacting with the law, we could do away with (a) the lawyers to draft them, (b) the lawyers to fight with them, and (c) having to read them all.
The problem with the libertarian position is that it assumes a lot of the societal interaction that it rails against. Most libertarians agree that lawsuits about stupid things are stupid. But that is just because they are assuming conservative, not libertarian, values. In libertarianism, society doesn't affect legal expectations, so why should self-responsibility be assumed?
The nanny-state of liberalism is simply the byproduct of the libertinism of libertarianism. When an ethical self-mastery is no longer part and parcel of what it means to be free, the only valid social response is the nanny state.
So, to sum up, I would say:
While I often assail the left-wing on this blog, I don't always find the time to do equal justice to the not-wing -- the libertarians. Conservatives and Libertarians are often lumped together because of two things (and really they are both the same thing):
However, I think that because of these broad-stroke similarities, many people miss the issues with libertarians.
I think there are a lot of ways in which you could separate libertarians from conservatives. This post is going to concentrate on one of them:
Libertarians tend to be reductionists in their thinking. They want all legal structures to follow contract law, and reduce everything else to that.
This is why many libertarians view marriage as an improper role of government. According to much libertarian thought, marriage doesn't have any role in law, except as two parties wish to establish a contract with each other. Only then should the law step in.
Conservative thought, on the other hand, views a number of different relationships as being governmentally important, and thinks that law should be engaged in dealing with those.
Here's are several reasons why I'm a conservative:
The thing that libertarians don't seem to understand is that it is precisely the fact that many of our social mores get encoded into law that allow us to operate with a small government, and with that government having minimal interference in our lives.
By giving norms the weight of law, it allows people to live simply by following common and respected patterns, without requiring governmental intervention. It is precisely these social forms and customs which make governmental intervention redundant.
Take marriage, for instance. It is true that in many societies marriages do not need approval from the state (like a marriage license). But that does not mean that marriage is any less within the bounds of law. Precisely because a society has norms and customs surrounding marriage (which are utilized directly within the law) means that two people can be married without any need for permission or approval from the government.
Can you imagine a society in which, in order to get married, you needed to lawyer-up and make an airtight contract defining the terms of your relationship? That would be ludicrous! It is precisely because we have social norms that are reflected in legal norms that two people who are in love can get married with minimal intereference with the government.
In fact, in absence of social norms reflected in legal norms, you wind up having to make a contract for everything you do. So, instead of dealing with governmental red tape every time you interact with them, you have to deal with red tape in every single interaction you make with any person at all! Our society is already moving this way, with all of the disclaimers, End-User-License-Agreements, privacy statements, and other idiocy we have to deal with every day. All of these stem from the fact that our social norms are being segregated from our legal norms in the name of "neutrality" (whether religious neutrality or some other form of multiculturalism).
You might object that it is not the libertarians who are doing this but the liberals. But in this aspect the liberals and libertarians are in complete agreement. Both agree that social norms are mere contrivances, and therefore do not merit the coverage of law.
Conservatives, on the other hand, view social norms as a vital part of an integrated society, which cannot be cleanly separated into "legal", "cultural", and "religious" aspects. Our law is meaningless if it is separated from cultural norms, and cultural norms are derived from religious ideals.
The fact is that the liberals are right about one thing - if you want to treat social norms as mere cultural artifacts, it takes a big beaurocracy to do so. The liberals want one big beaurocracy in the government, while the libertarians would like a signed contract completely stating all terms and assumptions when I go to purchase a hamburger, and for a team of lawyers to sit in the front row of the wedding ceremony.
Social norms, however, allow you to live peaceably in society with each other without the hassle. In a conservative culture, you can focus on loving each other, and not on the legal hassles which will result from loving each other.