Reading Dennis O’Keeffe’s recently published translation of Principles of Politics Applicable to All Governments by Benjamin Constant (1767-1830) – the IEA launch of which I reported on here – is like reading Samizdata.net on a really, really good day. Good in the sense that the writing and the ideas are good, I mean. Not in the sense that the story told is always a happy one. So I thought, why not turn that observation into reality, and recruit Benjamin Constant as a guest blogger? There was no editorial objection to the plan, so, here is the whole of Book IV Chapter Two, “The Idea Which Usually Develops about the Effects Which the Proliferation of the Laws Has and the Falsity of That Idea”:
People normally think that when the government allows itself to multiply prohibitive and coercive laws at will, provided that the intention of the legislator is clearly expressed, provided that the laws are not in any way retroactive, provided that citizens are told in time of the rule of behavior they must follow, the [84] proliferation of laws has no drawback other than cramping individual freedoms a little. This is not the case. The proliferation of laws, even in the most ordinary of circumstances, has the bad effect of falsifying individual morality. The actions which fall within the competence of government, according to its primary purpose, are of two kinds: those intrinsically harmful which government must punish; and arrangements contracted between individuals which government must uphold. As long as government stays within these limits, it does not establish any contradiction, any difference, between legislative morality and natural morality. But when it prohibits actions which are not criminal or demands the completion of those which have not become obligatory owing to prior contract and which consequently are based only on its will, there are brought into society two kinds of crimes and two kinds of duties: those which are intrinsically such and those government says are such. Whether individuals make their judgment subservient to government or maintain it in its original independence, this produces equally disastrous effects. In the first hypothetical case, moral behavior becomes hesitant and fickle. Acts are no longer good or bad by reason of their good or bad outcomes, but according to whether law commands or forbids them, much as theology used to represent them as good because they pleased God, rather than as pleasing to God because they were good. The rule of the just and the unjust is no longer in the consciousness of man but in the will of the legislator. Morality and inner feeling undergo an unfathomable degradation through this dependence on an alien thing, a mere accessory—artificial, unstable, and liable to error and perversion. In the contrary case, in which a man—by supposition—opposes the law, the result is first of all many individual troubles for him and those whose fates depend on his. But in the second place, will he bother for very long disputing the law’s competence in matters he considers outside it? If he violates prohibitions and orders which seem to him arbitrary, he runs the same dangers as he would infringing the rules of eternal morality. Will not this unjust equality of consequences bring about a confusion in all his ideas? Will not his doubts, without distinction, touch on all the actions the law forbids or requires, and in the heat of his dangerous struggle with the institutions menacing him, do we not have to fear that he will soon not be able to tell good from bad any longer, nor law from the state of nature?
Most men are kept from crime by the feeling of never having crossed the line of innocence. The more restrictedly that line is drawn, the more are men put at risk of transgressing it, however light the infraction. Just by overcoming their first scruples, they have lost their most reliable safeguard. To get around restrictions which seem to them pointless, they use means which they could use against the most sanctified of laws. They acquire thereby the habit of disobedience, and even when they want some end which is still innocent, they go astray because of the means they are forced to follow to achieve it. Forcing men to refrain from things which are not forbidden morally or imposing on them duties which morality does not require of them, is therefore not only to make them suffer, but to deprave them.
This is a really good analysis. I believe it is derivative of Burke. He posited that there are two elements essential to achieving an ordered society – by external (government) regulation, and internal (moral/ethical/self interest) restraints on behavior.
A certain amount is necessary to achieve order – call it “Z”. Call government regulation “X” and internal restraints “Y”. In an ordered society,
X+Y >or = Z.
Burke also posited that social institutions – habits like marriage, “life’s little platoons” like informal neighborhood associations, social mores – were an important moderating factor in this equation. In a society with strong social habits and taboos, order could be achieved with the minimal amount of government regulation.
But in a society where there is an increasing absence of personal morals, and stabilizing social institutions are decaying and under constant attack, there is an increasing need for government regulation to maintain order.
We in the West have proceeded into dire straits rather rapidly because we all realized in the 1960’s that we could gain additional personal freedom by kicking to the curb various oppressive bourgeois habits like 9 – 5 clock punching work, going to church, the “oppression” of monagamous heterosexual marriage, joining the parent’s association at your kid’s school, and so forth. All the little things that the “man” uses to keep us down.
The problem is, we didn’t all suddenly realize this in a moment of dope-driven innocence. It’s was fed to us by our college instructors and radical leaders. The seemingly intentional destruction of social institutions and traditional morals is the heart of the Frankfurt school philosophy of neo-Marxists Gramsci and Marcuse. They believed that we must destroy social mores and institutions, in order to create a radical egalitarian marxist utopia. Hence the infamous “Port Huron Statement” and the notions of “bad grooming to overthrow a bad system, man…”
The bitter irony here is that as we tear away at those old-fashioned “square” habits as oppressive, we gain a bit of temporary liberty for ourselves – even as we create the pre-condition for unchecked government growth. Face it, when your own morals don’t constrain your bad behavior, and your scowling neighbors don’t condemn it (or their smiles don’t encourage your good behavior) then it’s up to the government to ensure you don’t become a menace to everybody else in your community.
This is why I have little time for most left-libertarians. As a right-libertarian, I don’t care if you want to smoke spliffs in the privacy of your own home, nor do I care if you and two of your best friends want to share a bit of mad monkey love. But insisting that the government be hostile to local community imposition of local values, or that it be actively hostile to any display of religion in the public square, or that one’s right to watch live sex shows actually includes the right to do it in the public square and next to the local elementary school – while these things seem like the ultimate expression of liberty, they are ultimately the precursor to state regulation of personal behavior.
I believe it was Thomas Paine who said that the purpose of order was to secure liberty. Another wise man – may have been Jefferson – said that liberty in the absence of a moral people cannot endure.
It’s not that all of us have to be moral or pious to reduce government intrusion in our lives – it’s that most of us have to govern our affairs as if we were.
Yes, I know there is a libertarian alternative. Anarchy. And while it seems like a good idea when Murray Rothbard writes about it, most experiments in anarchy – Rwanda, Bosnia, 1917 Russia, my workplace when the coffee maker is out of order – most of these are abject failures.
It seems to me that the trick is to rely on libertarian principles to minimize government to the extent possible, but to also use government as a means to encourage and protect strong traditional social institutions of the type that Hayek would recognize – traditional institutions that have accreted over time and which serve a purpose of informally organizing society. This may include accomodating such religion in the public square as may be generally supportive of good order – not endorsing it, but if a local high school football team wants to pray for safety before a football game, why should the state be in the business of prohibiting it?
I guess maybe I’m becoming one of Perry’s Minarchists, huh?
Al Maviva: Your comment’s seeming logic hinges on two assumptions
1) “in a society where there is an increasing absence of personal morals, and stabilizing social institutions are decaying and under constant attack, there is an increasing need for government regulation to maintain order”
2) that marriage, abstinence from spliffs, etc, is “moral”, and that their converses are “immoral”, in the sense of “moral” which is relevant to point 1.
I dispute point 2 on two grounds. First: they aren’t immoral. Second, even assuming they were, it would be a different kind of immoral than that relevant to point 1. Basically, point 1 refers to heartlessness, surliness, lying, cheating, etc — immoralities directed towards other people. Not to “immoralities” which affect only the doer. (Taking offense where no offense was meant isn’t an affect, it’s an action, performed by the taker, and not a moral fault of the “offender”.)
I could also dispute point 1 by saying that the “need for government regulation” is nothing of the sort. People will clamor for regulation, but when it arrives, it won’t actually work. As was the point of the original post.
I certainly don’t have anything to add to Constant, but I too would like to attack Al Maviva’s assumptions.
The point Julian Morrison has marked as (1) is actually back to front.
Social institutions (of which “personal morals” are a part) decay because they have outlived their usefulness or because they have been displaced by something else. A lot of what Al Maviva interprets as hippy-socialist indoctrination is actually the consequence of Government intervention relieving people of the responsibility to look after themselves.
He also appears to hold that codes ought to be static, and social change is necessarily down to some bad influence. I’m more inclined to see the sex, drugs and rock and roll as wealth and technology giving lots of people the chance to behave as “badly”, i.e. inconsequentially, as the upper classes had before them.
If I understand Al Maviva’s argument correctly, he’s suggesting that imposed morality is a general consequence of a decline in personal morality. If that’s true, the historical record should show that “an increasing absence of personal morals” and social institutions that are “decaying and under constant attack” generally precede an increase in legally-imposed morality (as opposed to their being in the opposite order). I don’t have the historical knowledge to make that judgement. My inclination, though, is to think that the relationship isn’t so clear cut, and that legally-imposed morality frequently precedes the breakdown in personal morality.
For example, it seems clear that there was a PERCEPTION of decreasing personal morality before alcohol prohibition in North America, in certain quarters, but it’s not at all clear to me that that perception was accurate. It does seem fairly clear, though, that prohibition led to a habit of declining respect for the law along the lines that Benjamin Constant described, as well as to an expansion of organized immorality (i.e. organized crime). To decide whether the trade-off was worth it, I would need to know to what degree alcohol was contributing to “an increasing absence of personal morals” and whether or not stabilizing social institutions were “decaying and under constant attack” as a result of alcohol consumption. Perhaps someone with better historical knowledge than mine can comment on that?
I may be guilty of straw-manning, because alcohol prohibition might be a poor example of how society tries to protect itself from personal immorality through law. Other issues, particularly those dealing with sexual morality, may be more complex. Still, it’s difficult to image a theoretical argument in favour of prohibiting prostitution, for example, that doesn’t rely on the slipper-slope fallacy. Sure, there are very immoral things that co-occur with prostition, such as recruiting minors into the trade. But it’s possible to prohibit those things that truly are immoral while still allowing freedom in sexual relations between consenting adults. Also, many of the immoral acts that are peripheral to prostition, like those peripheral to the drug trade, exist primarily BECAUSE of prohibition.
I don’t want to overstate my case, because I’m not at all confident in my understanding of the history. But it seems possible to me to argue that the realization, in the 1960s, “that we could gain additional personal freedom by kicking to the curb various oppressive bourgeois habits” might itself have been at least partly a consequence of over-zealous attempts to legislate morality. I’ve long thought that the 60s was in some ways reminiscent of the 20s, an era in which the imposed morality of alcohol prohibition was publicly flaunted. And there seems to be little doubt that young people in the 1960s were, in part, reacting against the social conservatism of the 1950s.
“But in a society where there is an increasing absence of personal morals, and stabilizing social institutions are decaying and under constant attack, there is an increasing need for government regulation to maintain order. ”
Ah, those buts. The name for this practice is Caesarism.
Tedd,
I can’t offer an opinion as to what contributed to the introduction of prohibition in the USA but I would offer as a general comment that the decline of personal morality is directly proportionate to the decline of religious observance. Until WW2 I think people paid just a little more than lip-service to the moral philosophy inculcated by the Christian religion in the UK and the result was (in my view) a better ordered society.
Things seemed to change after WW2 as a liberal elite seemed to occupy most of the influential positions in our political and social institutions. The constraints associated with religion have been swept away and we have arrived almost at an “anything goes” society.
There are valid arguments for liberalising society of some of the prior constraints but this process has to be judged in the context of what problems the process may have introduced.
I have done business in France and I see the phenomenon that you describe there.
France has so many laws that it is impossible for a citizen to live a normal life unless he ignores or violates many of those laws. This breeds in the French an immorality expressed in the saying “Cheat before you are cheated.”
In order for a business to survive in France, it must ignore even more laws hence their immorality is greater. This immorality makes it very difficult for French companies to make deals or alliances with non-French companies. “Cheat before you are cheated” is holding back France economically and has lowered their standard of living.
I’m not referring to “why yes I went to church just this morning” morality – and if you pay attention to what I wrote, I also referred to social convention and informal associations as exerting a positive normative effect on behavior.
No, we don’t all have to be good Christians.
We do have to act in accordance with some loosely but widely accepted standards. I apologize if this is taken as some version of proselytizing. It isn’t – I don’t mean to offend the people ’round these parts who have proved God is dead / never existed or whatever.
For a purely secular example of how Burke’s theory works, look at contracts.
If one enters into a contract honestly, treats the agreement as bond, and executes it faithfully, no state intervention is needed. This can occur because the parties have an internal set of ethics or morals that compel good behavior, or because it is unacceptable in the local business community to breach contracts. These are internal controls, and controls imposed by informal social institutions – such as the chamber of commerce, or by the habits of the local business community who abjure from contracts with cheaters.
In the alternative, the state can regulate the formation of contracts, providing penalties for dishonesty in the formation of contracts, failure to execute, and so forth. The state usually only regulates such an area when people ask for it to be regulated. True, I agree that such regulation often isn’t effective, and often encourages lousy, lowest common denominator behavior.
Constant’s essay isn’t describing a unique phenomenon; I believe it is really a corollary and amplification of Burke’s thesis.
And Guy and Julian, removing the religion & marriage example from the process, would you say that contractual breach and the increasing litigation of contracts we see in the U.S. relates to the fact that the notion of contracts has outlived its usefulness?
As for the hippie-imposed stuff, no, I’m not imagining this. Nobody grasped Burke better than the Frankfurt School neo-Marxists Gramsci and Marcuse; they themselves state that tearing down traditional moral and ethical standards, along with moderating social structures, is a precursor to the imposition of their utopian police state. It wasn’t hippie imposed at all, in fact most of the hippies were dupes. It was imposed by hard core leftist revolutionaries, who based their attack out of our educational institutions.
would you say that contractual breach and the increasing litigation of contracts we see in the U.S. relates to the fact that the notion of contracts has outlived its usefulness?
No. Increasing litigiousness is an US cultural phenomenon with parallels in Britain, and a whole sphere of discussion. Increasing commercial litigiousness I relate to some cultural dysfunctions–self-righteous sense of entitlement (which has been fostered by statism, but also religiosity and legalism) and a desire to be seen as a winner in a win-lose model of commerce–but also to technology–we can now do business with more people at greater distance, and this has weakened the payoff of mutual trust.
From my experience as a contractual draftsman and commercial advisor, I’d assure you people find a breach when they wish to litigate at least as often as the other way round. Breaches while the relationship is working are usually dealt with amicably.
Oh, and BTW, I wrote “hippy-socialist indoctrination” as shorthand. I don’t suppose that all the socialists were hippies or the other way around.
The hegemonic control of eductional institutions among others by a leftist discourse was and is a problem. However, the key to a libertarian position has always been the denial of that discourse’s linkage between social change, personal freedom, and totalitarian politics. They say: “The personal is the political.” I say: “Oh no it isn’t. Get your politics out of my life.”
Guy, I think it’s a Rothbardian (or Rousseau-ian) fantasay, to think that our personal internal lives are distinct and disconnected from the moderating social institutions around us; and to think that our internal lives and the moderating social institutions are independent of government, and vice versa. Each has an effect on the other – and our behavior is the cumulative effect of the three. Granted, the “personal is political” crowd go too far to think that my thoughts and politics are of a piece and inseparable – hence the idea of banning “hate speech” – political speech with which they disagree.
As for increasing litigation stemming from increasing sense of entitlement, and this being fostered in religiosity – I don’t know where you get that from. Britain is probably the least religious that it has ever been, yet it faces a sudden flood of vexatious litigation. I would agree that increasing statism has fostered a sense of entitlement, but in the church I go to (Roman Catholic) I was reminded as recently as three weeks ago that “those who do not work shall not eat.” Sure, my local parish does a lot of charity work, but most of those helped recently lost a job, or are chronically mentally ill homeless – and our local soup kitchen puts recipients to work helping, to the extent they are able. It seems to me that this notion of private charity, along with that message about working & eating, is close to the libertarian ideal – voluntary & private charity, and a message of personal responsibility. How that fosters a sense of entitlement, and increasing litigiousness, is beyond me.
In my experience, most of the people engaged in “hit the lottery” litigation are unprincipled and amoral, looking for a quick score; they couldn’t be more irreligious and pious if they tried. And yes, among that class of plaintiffs were a goodly number of cheats – whether they were welfare cheats or perpetrators of insurance fraud, or just stiffs who tried to skip out of a contract.
I don’t believe everybody has to be religious, but that some common understanding of what is right and what is wrong has to govern most of our behavior as we interact with others. You and I agree that statism must be killed, and you seem to think that religion too must be killed.
Just out of curiousity, in the absence of the moral basis and social intermediation provided by traditional religion and/or traditional moral values, what would you substitute for people to use to govern their behavior?
Al M,
That’s the question I always ask! I have no time for organised or man made religion but I DO have a lot of time for the Christian moral philosophy. A lot of people throw that philosophy out of the window with the religion and leave a big vacuum. I don’t advocate moral absolutism but, as you point, out there has to be some commonly accepted definition of what is good and what is bad: what is right and what is wrong. They’ll be several grey areas but I think a consensus can be reached. The question is, though, without the power of religious belief or the authority of state laws, will that consensus be observed?
I hold a totally counter view to the tradition-adherents above. I think that anyone who’s not a self-made man in all respects, including thinking through morality for themself, is an incomplete human. To accept tradition is to scoop out half your brain and install therein a tape-recording of someone else’s opinion.
“To accept tradition is to scoop out half your brain and install therein a tape-recording of someone else’s opinion.”
Julian:
There may be a semantic problem here between you and Al. I doubt that Al means for anyone to not think for himself. And I suspect you would agree that reading the works of past philosophers will help you think through morality for yourself. Let’s not trip over the word tradition.
Religiosity and religion are not the same thing.
Religiosity is self-righteous and sentimental attachment to the public attributes of religion. By creating an investment in the conception of self as wholly right and moral, and other as wrong and deceitful, it tends to escalate conflicts of all sorts. I think that American conflict-seeking and conceptions of positive rights are directly buttressed by religiosity, but that Britain has caught the syndrome in an evolved form that has leapt the faith barrier and become a free-living cult of status-rights and self-esteem.
My point about traditional morals and religion is that it’s a pretty decent shorthand set of rules, a good baseline or jumping off point for living your life. If you lack the time or subtle mind necessary to ponder thousands of hard questions, those traditional standards work pretty well, if you choose to employ them judiciously. In my own life, I find things go much smoother for me if I stay off the neighbor’s wife, abstain from stealing his lawnmower, treat my parents decently, and refrain from murdering my boss in cold blood then dancing on his grave singing “hallelujah” in the moonlight. I believe Friedrich Hayek might argue that judeo-christianity in particular has survived in its post-enlightenment evolved form as an effective method of structuring society and mitigating conflict.
And I guess I owe Julian an apology; evidently, I’ve entangled him in an argument with a chap, at least half of whose brain was scooped out. You see, I haven’t really lived the contemplative life. Sure, I’ve thought about a lot of things, I’ve read a hell of a lot of philosophy and literature and history and law, and I’ve reached a lot of conclusions about what’s right and wrong, and what works and doesn’t, but my system of beliefs can in no way be described as a complete cosmogony. So as a shorthand method of responding to problems that I don’t have the time or energy to agonize over, I fall back on my traditional values. Treat others as I would like to be treated, don’t kill, lie and sleep around; and I’m generall observant of the Old Testament ones about washing yourself before you eat, not lying with the cloven-hoofed beasts of the field and so forth.
I would have thought it quite difficult for one man to have thought through everything for himself; I believed that man surely needed some shortcuts here and there. I’m wondering how you do it, Julian. Evidently, I’m not up to the task of it – having relied at the outset on various moral philosophers and others to assist in defining questions and so forth, and merely reserving most of the (what I perceive to be) important questions of right and wrong for myself. Thankfully Julian, you and some other brilliant souls are capable of working out a compleat system of moral philosophy for yourselves. I’m guessing you have little time for the vast mass of humanity, which has neither the time nor inclination for in-depth and wide-ranging moral thought; and indeed may lack the capacity to develop their own personal summae theologica.
By the way, what is your answer to Hayek, who felt that tradition was often an indicia of what works? He argued that most people don’t have the time or wherewithal to think through every little problem, but instead rely on a lot of received wisdom, trusting society’s spontaneous organization (based of course on harsh trial and error) to show the right way of doing things most of the time?
Awfully theoretical; I wish he get down to specifics and examples.
The State has one ‘moral’ if it can be called that. They must protect citizen’s life and property. This derives from it fulfilling its part of ‘the contract’ in which the individual contracts away his right to use force in proactive or retributive forms. Other than that I have little interest in the conduct of others to a level that I will use force to make the stop, or make them start, a certain behavior, or at least manifest compliance. I may allow myself to conjecture about the future, and bemoan the demise of customs, but using the State and its force to reinforce customs only makes the State the arbiter of taste and morality when it has little relation to direct threats to life or property. This makes the bureaucrat the executor of morality, and systems to maintain it, which seems to be beyond the scope of State. Morality is best left to individuals and associations, instead of the State, mutually free of obligation to each other.
I can put this another way in that everyone who wishes to use the State for the purpose of moral arbitration usually has a ledger filled with ‘proactive’ laws that state that, but for these laws, chaos would ensue, and is the lynch-pin for every despotic society ever created. One last notion is that in most cases those who are set up to administer morality usually excuse themselves from the laws created, usually due to their supposedly higher moral draft to begin with so that laws unnecessary for them.
I wouldn’t use the state for moral arbitration, Mr. Toolkien. Can I call you “Tool” for short? Just kidding.
I think the state ought to be in the business of encouraging or at least not hindering and discouraging social institutions that work; especially those which reduce the “need” for state involvement, i.e. reduce the public outcry for state intervention.
Ought the state favor private charities? Or should it wait until the public, by mandate of the voters, brings about state welfare payments?
Should the state do things to make it easy for private schools to flourish, and encourage education in that sphere? Or is it better to wait until a Thomas Dewey comes along to point out the inadequacies of the laissez faire system, and then saddle us with a bankrupt public education bureaucracy?
Should the state encourage the growth of churches, ethics societies, and the like by making them tax-free enterprises? Should the state encourage or permit nativity creches and Channukah displays on public property? Or is it better to drive the notion of morality out of the public square, and then (again) wait for the voters to demand the state do something about poor kids from broken homes (at high risk of criminality); about women driven into poverty when boyfriend / ex husband refuses to pay child support, and so forth?
I know “let ’em starve” is a principled libertarian position, but it doesn’t work if you live in a democracy where a critical mass of people are starving, going uneducated or behaving very badly, in sufficiently public fashion to cause a voter demand for greater order.
Most of the problems I could point to with respect to these social institutions don’t relate to inadequate state efforts to promote such institutions; they relate to active state efforts to destroy such institutions. Welfare, for example, is a direct attack on the nuclear family. Our supposed neutrality to religion in the public sqaure, is actually an attack on it; no ordinary person could possibly ever display religion on government time because we drive it out of the public square, but as long as you are a smarmy politician, you can display your ersatz and unappealing religiosity at will as part of your reelection campaign.
Rather than trying to impose purist libertarian solutions after-the-fact, it strikes me as a better policy to encourage the development and endurance of social mediating institutions, to prevent conditions that lead to creeping infringing statism. We need to at least get central government out of the business of destroying social institutions. What the people of your local town, or maybe your state or province want to do via the polls is a different story…
Of course, I start from the premise that achieving a libertarian utopia is as unfeasible as achieving any other type of utopia, therefore it’s better to get half a loaf than none. I realize this is a position that many here have probably rejected as terminally compromised and therefore not worthy of consideration…
“let ’em starve” is a misunderstanding. A more accurate rendition would be: you not only shouldn’t, you can’t feed the poor with stolen money. Your systematic theft creates far more poverty than your redistribution can ever hope to cure. Not only are you taking out of the back pocket to give charity to the front pocket, you’re wasting most of the coins en route.