Liberty As Legitimacy

Lots of ink has been spilled in political philosophy over whether liberty is valuable as an end in itself, or as a means to some other end. Usually the discussion veers into meaningless metaphysics.¹ Whether or not the individual knows his own interests best, whether or not we take choice to be a moral primitive, is mostly beside the point. Instead, I’d like to suggest that most discussions of political liberty can and should be understood in terms of legitimacy, and without invoking moral philosophy at all. Specifically, liberty as a norm is valuable as the least-cost way to legitimize differences in individual outcomes.

In order to unpack that, two questions are immediately raised: 1) Why do individual differences have to be legitimated? and 2) How does liberty do so?

Individual Differences

Humans are not equal in any meaningful factual sense.

Paeans to human equality are always (at least if they are defensible) meant in a moral or a metaphysical sense. Humans should be treated equally — or more precisely, certain agents should deliberately use only the most anonymous types when deciding how to treat other agents. I have a right to free speech vis-a-vis the U.S. government by virtue of my membership in the very anonymous class of U.S. citizens. It doesn’t depend on more concrete classes like sex, race, height, weight, etc. In a moral sense, employers should overlook concrete personal qualities and hire as if from a pool of anonymous humans of varying qualifications.² Human equality is a proposition very firmly on the ought side of the is-ought gap.

The fact that it’s so often treated as having factual content, however, is hardly surprising. Humans seem to be hard-wired to abstract away from themselves and consider others alongside themselves as anonymous equals. Adam Smith called this capacity the “impartial spectator” – a “man within the breast” who stands as if from outside and judges between the self and another party as if they were anonymous. In other words, a conscience. There is evidence from cognitive science that fairness norms are biologically innate, and that these are what enabled the formation of human societies at both small and large scales. Humans are hard-wired to think of each other as equals.

A History of Hierarchy

Norms of fairness overcame the big pre-human social hurdle: short-term self-interest. You and I on an island are both better off if we trade back rubs, but I’m even better off if you give me a back rub and I run away before returning the favor. In other words, society is a big prisoner’s dilemma. Fairness norms are the human way of committing not to run away before returning the back rub. If you’re pretty sure I’ll feel bad for doing so, you’ll be more likely to give me a back rub, and we’ll both be better off. Extend that to other cooperative endeavors and you’ve got the basic difference between chimpanzee community and the hunter-gatherer tribe.

But fairness norms have their own limits. Norms of fairness don’t just inculcate quiescence when you’ve violated the norm; more importantly, they stoke indignation when someone else violates the norm. And if I’m hard-wired to think of myself as equal (in some as-yet inchoate sense) with every other member of my tribe — well, why should this guy have nice clothes when I’m still in a loincloth? Why should everyone do what that guy says? Why should this guy be the only one who’s allowed to use that cow? And indeed, hunter-gatherer societies are extremely egalitarian, and usually have norms of enforced sharing, which retard the accumulation of wealth or capital.

The transition to larger-scale agricultural society, however, depends vitally on hierarchy and the accumulation of wealth. Initially this was done by subjugation. If fairness norms don’t apply across tribal boundaries, a sufficiently strong tribe can establish a hierarchy over weaker tribes and accumulate wealth to itself without worrying too much about what the other tribes think of as fair. Thus, differences among people can arise as sort of a group-level manifestation of the naked self-interest that fairness norms overcame on the individual level.

Subjugation, of course, is an extremely costly way to establish and maintain individual differences. This is where legitimacy comes in. There are varying degrees of legitimacy, ranging from “active opposition” at the bottom, through “passive resistance”, “passive acceptance”, to “active support” at the top. Subjugation, almost by definition, is a risky play to move from active opposition to passive resistance. In the first place it’s risky to try to subjugate another tribe – after all, you might lose and get subjugated yourself. Second, even if you succeed, the value of a subjugated people is likely to be rather minimal. Without legitimacy, it’s impossible to design any institutional structure to make the labor of your slaves as valuable as it could be, and impossible to be as secure in your own possessions as you could be. There will always be some unpunishable margin where the slave remains free to work less hard than he otherwise might, and the threat of revolt is ever present. As long as this is the case, there are gains left on the table, and the potential scale of accumulation will remain very limited.

Legitimacy

Over the ensuing millennia, there arose quite a few different ways of raising legitimacy. As the original subjugations faded from memory, time itself lent the hierarchy some legitimacy. We have possessions, and you don’t, because that’s the way the gods made things.

This is certainly less costly than outright subjugation. And given the fact that one segment of society will be subjugated to another, quiescence will usually better for both. (Of course, the subjugated would obviously be better off not being subjugated, however. This prospect is what makes the situation a prisoner’s dilemma.) Again, a credible commitment is necessary to overcome the dilemma. In the former case, that commitment was a costly constant exercise of power. If the subjugated can credibly commit to quiescence, say by converting to the civic religion of the subjugators, there’s a substantial social saving. In this sense, legitimacy is as close to a pure social gain as exists.

If legitimacy is the big $100 bill laying on history’s sidewalk, the reason it stays there is because legitimacy has to evolve. Legitimacy is fundamentally a phenomenon of the inside perspective. A legitimating myth has to ostensibly be about something else than the social structure it legitimates. The myth of the metals was “about” the gods, not about occupations. Trial by ordeal was “about” the justice of God, not a separating equilibrium. Even if from an outside functionalist perspective these were really about legitimizing certain social structures, they could never do so if they were understood to be fundamentally about that structure. As Samuel Hammond noted, “As soon as one takes a purely instrumental stance towards ritual, its power begins to wane.“

So social order can’t persist solely on the basis of self-interest, and you can’t deliberately construct legitimating myths. At best, you can piggyback on an existing norm and show how it legitimates some individual differences. This seems to have been the function of ecumenical paganism, for example. The fact that we Romans beat you in battle shows our gods are stronger than your gods – or perhaps that a cabal of gods, including those who previously legitimated your own rule, willed our victory – so you may as well be quiescent.

This worked passably well for a few millennia. This sort of rigid hierarchy was necessary for large-scale pre-monetary cooperation, and without money, mythology was the least-cost way of doing so. Societies with strong legitimating myths flourished – and conversely, societies fell apart as their legitimating myths crumbled.

It wasn’t until a good number of these societies had become sufficiently monetized that one of them – Britain – could stumble onto a legitimator of an entirely new sort of social order.

Why Liberty?

A legitimating norm has two important qualities: 1) How strongly does it legitimate individual differences? and 2) What sort of individual differences does it legitimate? At the dawn of the modern era, there were gains to be made in both areas.

Liberty as a Secure Legitimacy

First, a mythological society is fragile. Rome’s ecumenical and imperial paganism was vulnerable to the spread of Christianity. Catholicism in turn, which explicitly legitimated the feudal order, was vulnerable to Protestantism, which mostly refused to do so.³ The displacement of a legitimating myth entails deep social reorganization that may or may not be catastrophic. There’s a tradeoff on this margin: as a myth becomes more specific in its propositional content – as it demands more of its adherents both epistemically and normatively – it can motivate greater cooperation and undergird a more complex society. However, it also becomes more difficult to maintain credulity in the face of increasingly large departures from short-term self-interest. Marginal adherents become more prone to adopting (or creating) new myths, which are necessarily adopted mostly without a view to their consequences for social order.

When Britain fortuitously found an articulation of the right to liberty in its political tradition, it stumbled upon something which – while mythical in the sense of lying on the “ought” side of the is-ought gap – had the fortunate quality of appearing self-evident and requiring minimal propositional content. The whole intellectual scaffolding of religion was no longer needed for legitimating the social order, and could instead be devoted to focus more purely on its sacred ends. Instead, individual differences could be legitimated by individual choice. Liberty entails responsibility, and it is no accident that the first principle of the canonical statement of British liberty is self-ownership – or more properly, a sense of ownership over one’s own choices. If I am not as wealthy as my neighbor, I have no right to force him to share; for my choices led me to this station, and I own my choices. They command a self-evident legitimacy: choice, almost by definition, entails consent.

The Social Order of Liberty

The propositional content required to make this work is simply that one’s outcome is (or should be accepted as) mostly the product of one’s own choices. This is where the type of legitimated individual differences becomes important. Prior to widespread urbanization and monetization, social order could only be maintained by rigid social roles legitimated mostly by heredity. With money as a lubricant, however, the social order could bear a lot more moving parts without collapsing from the friction. Society still depended – and still depends – on individual differences, private property, accumulation of wealth, and hierarchy. However, the basis of those differences is no longer Deus vult or the long history of heredity. Why, after all, should I be bound by my ancestors’ station? Now, individual differences can be accepted to a great extent on the basis of active consent. If I fail to become fabulously wealthy, well, I judged the costs (and risks) of trying to do so to not be worth it. Even if I later regret that choice, the outcome still commands legitimacy.

By legitimizing differences in individual outcomes based on choice rather than heredity, liberty further boosts the legitimacy of those differences. Hereditary differences would most often command passive acceptance; active support could be bought only at the expense of a proposition-heavy mythology. But if one feels one has responsibility for one’s own outcome, if no one is there to prevent you from changing your station, it’s much easier to command active support. One is no longer working for society, or one’s betters, or an unseen deity; one is working directly for one’s self. With such a mythology, the cost of bringing forth effort in terms of enforcement is extremely low. Even more than the advent of legitimating myths, the advent of British liberty was perhaps the largest pure social gain in human history.

Conclusion

Social structure implies individual differences and hierarchy. A strict egalitarian society cannot be said to have much structure, and for this reason is limited to about 150 people – the upper cognitive bound of a structureless society. Social structure brings immense benefits. But those on the bottom of the structure can always do better for themselves individually by withholding consent from that structure, either actively or passively. Even if everyone doing so makes everyone worse off, the individual is better off joining the looters than not. This is the prisoner’s dilemma that makes the maintenance of social structure very costly.

These costs can be reduced, to the benefit of everyone, by a credible commitment to the existing social structure. This is the function of legitimating myths. These myths are fragile, however; they cannot directly legitimate the social order, but must presume to be fundamentally “about” something else. This is the cleft between the inside and the outside perspectives on social norms, a cleft which makes it nearly impossible to deliberately engineer legitimacy, and always leaves those norms vulnerable to displacement by norms which are “about” something else and legitimate a different set of individual differences.

In one sense, liberty and responsibility as legitimating norms are much more stable than the content-heavy legitimating myths of what North, Wallis, and Weingast called the Natural State. Especially in a world where cross-cultural communication is ubiquitous and instantaneous, where legitimating myths of one society can be easily compared against those of others, the prospects of a return to the mythological society are remote.

On the other hand, the propositional content of liberty and responsibility – “man is responsible for his own outcomes” – also has the mythological form of an ought-statement masquerading as an is-statement. From the inside perspective, liberty is “about” the inherent value of choice, not the legitimation of social differences; in the same way that Roman paganism was “about” the gods, and not the legitimation of Roman imperialism. If the legitimation of the latter in each case depends on the acceptance of the former as a factual proposition, then in both cases the propositional content of the myth is the Achilles’ Heel of social order.

Modern civilization depends on the legitimation of individual differences, and specifically on the legitimation of mutable differences that could – at least in principle – be changed. If civilization could not survive a reversion to the rigid myths of an agricultural society, how much less could it survive a reversion to the pattern of legitimacy of a hunter-gatherer society, where accumulation is forbidden and fairness demands the material equality of men in society?

Cataclysmic dioecism is the danger of the resurgence of egalitarianism and its own justifying myths. Or, more aptly, egalitarianism is the biological default after anti-normative leftism takes its wrecking ball to all the edifices of legitimacy. And the fact of an is-ought gap means there can never be an edifice of legitimacy which is not vulnerable to this critique. As Hayek noted in his final book, “While it is true that traditional morals, etc., are not rationally justifiable, this is also true of any possible moral code.” The general critique of legitimacy throws us back into the prisoner’s dilemma at the origin of society.

The 107 trillion dollar question, then, is: is mankind capable of reconciling the inside and outside perspectives? Can man choose to believe in the gods, knowing that the belief is “about” the social order in the end? Can man accept responsibility for his own outcomes, in full awareness of all the ways the world impinges upon him without his consent? And this even though he and all his peers can improve their individual prospects by rent-seeking, protest, or theft? Can he, in other words, credibly commit to cooperate without a mythology, and solely on the basis of a freely chosen ultimate end?

Footnotes

1. Which is not, contra Carnap, necessarily pleonastic.
2. It can be debated to what extent this is desirable or feasible, but factually, this is a very strong moral consensus in the Western world.
3. One might even say that rationalist modernism, which explicitly legitimated the modern nation-state, was vulnerable to postmodernism, which is much more capricious in what it legitimates.