The Messy Middle Between Hobbes and Locke

Here's a critical, but useful, appraisal of Rand Paul's philosophy from the New Republic. It'll touches on questions of the purpose of founding governments which we hit in the early days of 2301:

Speaking broadly, modern government moves between two poles, each of which has a seventeenth-century thinker as its champion, and each of which is focused on minimizing a particular form of injustice. On one side is Thomas Hobbes, who defended the creation of an authoritarian government as the only viable means of protecting certain individuals and groups from injustices perpetrated by other individuals and groups. On the other side is John Locke, who advocated a minimal state in order to protect individuals and groups against injustices perpetrated by governments themselves. Taken to an extreme, the Hobbesian pole leads to totalitarianism, while the Lockean pole terminates in the quasi-anarchism of the night watchman state.

Aside, perhaps, from the pretty thoroughly Hobbesian state of North Korea, every functional government in the world mixes elements of each of these pure forms—and partisan disputes within nations can often be reduced to conflicts over how Hobbesian or Lockean the state should be on a given issue. There are endless examples. Should health care be delivered by the state, by private entities, or by some mixture of the two? How much should the state regulate the market, and in what areas? And as Rand Paul has recently reminded us: Should racist business owners be free to treat black Americans as second-class citizens? Or should the federal government forbid such discrimination? In each case, to favor government action is to lean toward Hobbes; to oppose it is to favor Locke.

What makes Rand Paul’s position (as he originally expressed it on the Maddow show) noteworthy is that it’s a pure, unadulterated expression of Lockean anti-statism with little admixture of Hobbesian sentiments at all. Paul, like many libertarians and Tea Party activists, is so obsessed with the possibility that the state might commit an injustice that he’s indifferent to the reality of actually existing injustice at the hands of private citizens. As far as these radical Lockeans are concerned, the former is tyranny, pure and simple, while the latter is just life: yeah, it’s sometimes unfair, but freedom requires that we (or rather, in this case, blacks living under Jim Crow in the South) get over it.

But the reason why politics normally takes place in the messy middle between Hobbes and Locke—between the maximal and the minimal state—is that most of us don’t get over it. We recognize that both thinkers have a point. Decent politics—properly liberal politics—involves the attempt to combat both forms of injustice in full awareness that seeking to eradicate one form will often produce an increase in the other. The distinctive glory and pathos of liberal politics can be found in the endless effort to achieve and maintain precisely this precarious balance.

Those who give up on that effort and seek instead to realize one notion of justice to the exclusion of the other are history’s political mischief-makers.

The Right to Conscience and Public Order

If you are taking 2301 with me, consider this Stanley Fish article mandatory reading. It touches on the concept of the right of conscience and the ability of individuals to not just think for themselves, but to act on these beliefs, especially if those actions puts one in conflict with the law.

It concerns Obama's repeal of the Provider Refusal Rule, which had allowed doctors and others from performing certain functions (like filing out a birth control prescriptions if you are a pharmacist) if they had moral opposition to doing so.

Why shouldn't you be free from doing certain things if you were morally opposed, as an individual, to those things? What rights does society, acting through its government, have in limiting this individual freedom?

Fish reaches back to Thomas Hobbes, who Fish claims held:

that if one gets to prefer one’s own internal judgments to the judgments of authorized external bodies (legislatures, courts, professional associations), the result will be the undermining of public order and the substitution of personal whim for general decorums: “. . . because the Law is the public Conscience . . . in such diversity as there is of private Consciences, which are but private opinions, the Commonwealth must needs be distracted, and no man dare to obey the Sovereign Power farther than it shall seem good in his own eyes.”

As I take it, the shared conscience, as enshrined in various public and private entities, must take precedence over individual consciences because it provides for the steadiness necessary to civil society. Individual will is arbitrary and capricious.

This even applies to religious objections:

“As citizens, we should all be concerned when freedoms that are enshrined in the constitution (e.g. freedom of conscience and religion) are blithely swept away” (Susan Martinuk, Calgary Herald).

But while these freedoms may be enshrined in the constitution, they have not fared so well when they have come in conflict with laws passed with an eye toward maintaining order and predictability. In a series of cases stretching from Reynolds v. United States (1878) to Employment Division v. Smith (1990), the Supreme Court has ruled that when the personal imperatives of one’s religion or morality lead to actions in violation of generally applicable laws — laws not promulgated with the intention of affronting anyone’s conscience — the violations will not be allowed and will certainly not be celebrated; for, says the court in Reynolds, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

But while these freedoms may be enshrined in the constitution, they have not fared so well when they have come in conflict with laws passed with an eye toward maintaining order and predictability. In a series of cases stretching from Reynolds v. United States (1878) to Employment Division v. Smith (1990), the Supreme Court has ruled that when the personal imperatives of one’s religion or morality lead to actions in violation of generally applicable laws — laws not promulgated with the intention of affronting anyone’s conscience — the violations will not be allowed and will certainly not be celebrated; for, says the court in Reynolds, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

The last part especially is pretty radical. In case you didn't get it, the Supreme Court in 1870 basically stated that the rules of civil society are superior to religious doctrine. If a law is neutral to religion--does not single one for punishment or special status--it takes priority.

Agree? Disagree?