Canaletto (1697-1768). San Marco Square.
Posted on 01/20/2002 2:12:45 PM PST by annalex
Defense of Liberty
Defense of Liberty: The Contours of Victory
Defense of Liberty: Two Articles On Anti-Terrorist Policy by Peikoff
Defense of Liberty: Just Intervention
Defense of Liberty. Philosophy: Who Needs It?
Defense of Liberty: Attila In a Boeing
Defense of Liberty. National Self-Determination: An International Political Lie
Defense of Liberty: Foreign Policy and Natural Law
Defense of Liberty: Freedom and War
This article is a rehash of the comments I made on this thread: Year Ahead: The future of multiculturalism.
Another article of mine devoted to critique of libertarian approach to cultural issues is Pursuit of Liberty: The Culture War and Individualism.
Canaletto (1697-1768). San Marco Square.
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It is a common fallacy that libertarians try to detect a religious underpinning in a cultural bias of a community, and reject the bias on that ground.
-- It is, in most cases, forced on them.
The truth is that the dominant religion or religions attempt, all to often, -- to dictate the community standard of offensiveness, and the standard, with all its inherent biases, then rules. - Virtually without local appeal. -- This is not how a republican form of government works, -- or should work.
States or localities do have the power to set & regulate community standards. --- But these standards cannot violate the individuals rights to life, liberty, and property without due process.
- Thus, when an individual is charged with violating a community 'standard', or regulation to any more than a minor offense, a misdemenor, s/he must be given a trial by jury.
Such a jury must be able to judge both the law & facts of the case, and be so instructed.
This is not being done under our present system.
Although I disagree with several points of this article, this statement is extremely perceptive. The Libertarian Party cannot succeed in a democratic government, period. Democracy, by its nature, collectivizes property and moves everything into the public square. The failure of the Libertarian Party to take a firm stance on issues of culture makes them a party with no issues stance at all.
On the other hand, the libertarian is quite correct that the controversy surrounding cultural issues is a direct outgrowth of the existence of the commons. Obviously, it is a tragedy if the community is balkanized by a holiday display that contains a sap to every philosophy under the sun. No meaningful community can come from a "celebration of diversity" -- for that is a celebration of disagreement, of un-likeness. But if only the dominant members of a community are given a voice, the minority is now supporting a commons that does nothing for them. Neither of these situations is just and arguing over which view of the commons is "less unjust" is worthless.
Minority groups were able to flee a poorly run commons in the past. But as America's frontier closed, the cost of moving away from bad government began to exceed the gain. Since secession is unavailable as an option, the underrepresented minorities now began to agitate for more say in how the commons was used. The civil rights movement can be seen as a direct result of the closed frontier combined with the perceived illegitimacy of secession. The ongoing culture wars are part of this process.
As one the Founders pointed out (perhaps someone can remind me which one), there has never been a Democracy that did not destroy itself. Modern America is in the process of proving that. Essentially, those who consider the rights of the minority paramount will have victories until they have purged the culture of any real substance. Then those who consider the rights of the majority to have been disregarded will "restore order." Decadence will be followed by Dictatorship.
Anyone wanting to break this cycle will first have to admit that society does not need "areas of open access where various cultural players can project messages across property lines." Property defines boundaries, it makes the distinction between what is respectful and what is disrespectful clear.
Free Republic itself is a clear example of this ideal. FR is a forum of ideas, but it has rules of decorum and clear standards. This is precisely because FR is not a commons. The fact that FR is privately owned doesn't diminish its capacity to be a place where "cultural players can project messages" but it does allow for a just means of regulating how those messages are projected -- a feat which a commons in fundamentally incapable of producing.
Many forms of theft entail no initiation of physical force, yet libertarians claim to oppose these on principle. The above example though perhaps involves fraud, and so we could declare it covered by our opposition to the "initiation of force or fraud". I see the above as an example of theft, and not simply one of cultural disruption. Jim's house, and he need offer no reason for excluding anyone.
The idea that one could completely do without public institutions reflects a departure from the "back to the founders" idea that many identified with libertarianism. The founders don't seem to be anti-statist enough for some libertarians. The problem is that societies with no sense of the public may find it hard to defend themselves against foreign or domestic enemies. They may also find it difficult to rise above the rivalries of clans, factions, or tribes to the kind of impartial sense of rights, duties and obligations that characterize freedom and modernity.
With regard to the specific question you address, it seems to have a lot to do with the modern concept of the public square and with contemporary patterns of migration. Prior to the 1960s a public square would likely contain a war memorial or other monument. It might well have contained a temporary creche or candle display sponsored by some non-governmental institution. It would probably would not have contained individual artists' self-expressions. This is I think something new. The older idea was that such sculptures were representative of the community's ideals.
If the idea of "the community" having ideas of its own has disappeared, one reason is that affluence has made us more individualistic. Another is that totalitarianism has made us more distrustful of such singlemindedness and more determined to assert that individualism.
The third reason is that recent immigration has done away with the idea that we could have any single "culture" -- though technology, media, and economics do a lot to make us more uniform. An earlier America or an earlier West could proclaim the naked public square because it was presumed that society was Christian anyway. In a more "ethnically diverse" land, rivalries between groups do tend to become disputes over the public square.
Libertarian societies tend to be successful at attracting people from many different cultural backgrounds. The problem is that once groups reach a certain critical mass, they want society to reflect their own group norms, or at least give more weight to them. This is the downfall of libertarian polities, and one saw such developments in Britain, Austria-Hungary and elsewhere at the beginning of the last century, after decades of relatively liberal (in the classical sense of the word) economic and political policies.
BTW, William Ebenstein's classic introductory work Today's Isms has been revised and reprinted by his son with a chapter on libertarianism.
Good essay. And you nicely brought out the problems inherent in a public square. But your proviso about "offensiveness" opens up an almost infinite source of disputes. Which we're living with now. I dislike having government be the instrument for deciding these things. But I haven't figured out another way.
Seems to me that on the local level, in a democratic system such as ours, it is somewhat more managable. We recently survived a high school mascot (indians) controversy. The larger the government, the larger the problem. However, I also think the larger the government involved, tne less value that is derived from the "public" square in the first place. A local town square has value, IMO, which is worth the occasional grief.
"Essentially, those who consider the rights of the minority paramount will have victories until they have purged the culture of any real substance."
I have seen no such decadence, no 'purging of substance' taking place, yet the majority is very busy 'restoring order', and on the road to dictatorship, imo.
Our republic is set up, supposedly, to defend everyones rights against all tyranny, -- even a so-called benign tyranny of the majority. This constitutional principle is being ignored.
The missing 'way' of deciding these things is by restoring the power of jury nullification. Government hates this power, and has effectively removed it from our system by judicial decree.
Judges are actually instructing juries that they cannot factor the justness of a law in making their decisions as to the facts of a specific case. This is a travesty of justice.
There are two kinds of libertarians: liberals who rejected socialism and conservatives who rejected Republicans. I'm guessing you're of the former variety.
There is an alarming amount of homogeneity in American culture today. Regional differences are minor. America is tied together by the common blanket of faux rights given to us by the EPA, the ADA, etc. People think they share a common culture because they both watched Law and Order the previous night.
You may, however, be correct that the restoration of "order" is now in its beginning stages.
The word public has a number of senses. First is public in the sense of "open to just about everyone." Second is public in the sense of state-owned. Third is public in the sense of common property. It seems to me you're conflating these meanings. Just because a property is privately owned does not exclude it from being public in the first sense.
Also the notion of law as a creature of tradition rather than a product of legislation seems foreign to you. This is unsurprising given the gutting of common law in recent decades. It is difficult for me to see how criminal justice requires property that is public in the second sense (state-owned) in order to function. Do we really require politicians in order to have law?
And what exactly do you mean by a double burden? Are you saying that you think a person could not purchase police services without the existence of state-owned property?! This seems so odd as to verge on non-sequitur. Perhaps I'm misunderstanding your point.
Next, laws will be passed that ban what the majority thinks is offensive.
Next, a minority that is uncomfortable with that should sue to repeal or correctly interpret these laws. A jury will then decide if the offensiveness is objectively there or if the majority simply doesn't like the minority cultural expression, but cannot be offended.
At this point the standard is objectified through the tests in court and rules.
The present system stands all this on its head. The jury,. for most part, is out of the picture, supplanted by the executive branch. Instead of proposing a standard, looking for a court challenge, then seeking to adapt the standard, the government simply assumes that all expressions are rightful as long as they are minority, because they bring diversity. The government doesn't go to bat for extreme offensiveness, such as public pornography, not because it understands that pornography is offensive, but because it knows it can't win, not yet.
Free people in a free society will quickly make a public square out of nothing, because they will attempt to make conversations, exchange messages and do commerce. Regardless of who owns the physical square, the issues of cultural offence will not go away. For example, shopping malls (even the areas between individual stores) are private property. What does it change in terms of what is and what isn't allowed in those passageways? Precisely nothing. If a mall restricts some expressions -- for example, a political demonstration or an art show -- people just go somewhere else to do those things, and the owner of that place will face the same dilemmas of cultural policy the city government faces today.
True.
For example, shopping malls (even the areas between individual stores) are private property. What does it change in terms of what is and what isn't allowed in those passageways? Precisely nothing. If a mall restricts some expressions -- for example, a political demonstration or an art show -- people just go somewhere else to do those things, and the owner of that place will face the same dilemmas of cultural policy the city government faces today.
Except that in the private property instance no rights are violated by the exclusion of certain solicitors. In a public square, everyone is presumed to have an equal say in what goes on there. An act of exclusion cleary says otherwise and transforms the commons into state-owned property governed by the mayor, town council or whatever political body has assumed de-facto ownership.
Furthermore, since you have now asserted that cultural conflicts will exist regardless of the ownership of the public space one has to wonder what the benefit of a commons is. In fact, the privately owned public space has advantages over the commons -- once the owner says "no" to Satanist holiday displays, the issue is dead. The ownership paradigm you support leaves this a permanent point of contention.
Still at the root of it it is a cultural disruption, not theft. Jim framed his forum so that disruptions can be resolved through the mechanism of private property, which is to his credit. Someone else would make a forum where, by contractual promise, anyone is allowed to post anything, so there is no mechanism to reduce disruption to the owner's will. Disruptive posts would stil violate the rights of other posters.
Jim, I am just using your past predicament to illustrate a theoretical point, no judgement on your policies is intended.
Entelechy in 18: one has to wonder what the benefit of a commons is.
My contention is that if the commons is somehow prevented from happening (e.g. forbidden by the constitution), a private commons will be created to fill the need for unsolicited exchange; the owner of such private commons will have to resolve cultural disputes based on whether they actually disrupt, and not based on "because-I-say-so".
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