Is Liberty the Mother or Daughter of Order? It Depends on Your Presumption

The target of my criticism in my previous post responded to my critique in an update. Unfortunately, the author, Fritz, chose to close comments so I will publish my rejoinder here. The short of it is that the failure the author accuses me of–not sufficiently researching his true position and thus mischaracterizing it–is the thing he is actually guilty of with respect to criticizing my position. Succinctly stated, the author largely wastes his time with a straw man counter-attack. When I wrote that the definition of liberty is “do what you want, constrained only by the harm to others,” the author assumed that I was a subscriber to some type of moral universality of “platonic forms” before proceeding with a lecture on the distinction between a moral theory and a social theory. All very nice, but he is arguing against archetypes constructed in his own head.

Just as this particular blogger has his litany of posts regarding moral foundations, social theory, etc, I have my mine. If you read them you find that I am more or less a moral non-cognitivist contractarian. I am skeptical of any normative claims of regarding libertarian property rights regimes, etc. I place the primary value on coherence, not purity. Thusly, I separate libertarianism as political critique from a libertarianism as a social theory. I subscribe to the coherent political critique that stems from the 19th century French Liberal class critique(Thierry,Comte,Dunoyer, Say, Bastiat, etc) of political economy. I synthesize this with the methodology of modern rational choice.

And the social theory is indeed a social theory, not a moral one. Non-coercion(NAP) is useless as a basis for a social theory because all social interactions and contractual arrangements are coercive in that they necessarily impose moral constraints on agents as pure maximizers. Instead, I look to the Justice of Mutual Advantage as the foundational basis of the social theory. This is hardly radical in and of itself since liberalism, as a political theory, more or less roots political obligation in a rational JMA calculation. Libertarianism, in positive sense, observes that the State inherently violates the JMA constraint. It thus looks to alternative institutional means as the enforcement mechanism for justice. By justice, in an institutional sense, I mean a regime that is mutually beneficial to everyone(i.e., better off with the regime than without it).

Now since liberalism gives us civil society as natural and the State as artificial, if we subtract the State, we are left only with civil society. Obviously, civil society then has to be the source of governance. If we are actually interested in JMA regimes, then empirical observation has demonstrated that society is where they have to come from–both as the institutional source and the enforcer.

Framing the libertarian position in this manner provides a bit of clarity in regards to the typical claims of a Utopian or a Nirvana Fallacy objection. Is the Nirvana Fallacy the position that JMA regimes can emerge from civil society alone or is the fallacy inherent in the JMA objective itself. Or thirdly, does JMA have to be tempered by other principles of justice? Once we actually define the composition of the so-called Nirvana Fallacy, what the specific “unrealizable alternative” actually is, then we can actually begin to frame a coherent debate.

If the objection is to JMA itself, then the objector essentially repudiates liberalism and its social contract methodology to begin with. This is rooted in a simple moral objection.

If the objection is that JMA regimes cannot emerge from civil society alone, but the objector nonetheless accepts JMA, then the objector is forced to confront the problem that the State is a violator of the JMA constraint.

If the objection is that JMA must be tempered by other principles of Justice, then the objector still nonetheless has to introduce these “tempering justice principles” through the front-door of the social contract, meaning that they have to be (hypothetically) shown not to violate the JMA constraint.

The point: can a clever deconstructionist demonstrate that any deviation from the status quo is guilty of the Nirvana Fallacy. Answer: Yes. Translation: The Nirvana Fallacy can more or less be reduced to “leave well enough alone.”

Frankly, I don’t think “leave well enough alone” is a convincing counter-argument to libertarianism.

Does Order Come From Liberty or Does Liberty Come From Order?

In general, we can distill the essential differences between the libertarian and conservative worldview down to who is the rightful parent in the Liberty vs Order relationship. Is liberty the mother or the daughter of order? This former is the liberal position; the latter is the republican(communitarian) one1. The author here is claiming that not only is the conservative worldview the correct one but that the conservative position is the “true libertarian” one. I consider this an expropriation, and it merited a rebuttal.

Let us re-summarize the blogger’s argument:

(i) Libertarian moral foundations cannot be the foundation for liberty because libertarian moral foundations are artificial mental constructs that sow conflict and strife, not peace and cooperation

(ii) libertarians must respect evolved social norms because the norms have evolved for the purpose of creating the necessary order for cooperation and peace–and this is liberty

(iii) (ii) is given a Hayekian spin

My previous post addressed (ii) and (iii). It didn’t address (i). For starters, I’m the wrong type of libertarian to be a model for (i)–which I gather is supposed to imply morals deduced by means of abstract reasoning. I am more or less a moral non-cognitivist. I do not subscribe to “Natural Rights” nor to the proposition that reason is the source of moral judgements. Reason is a means to secure our moral ends but not source of the ends. So I say, of course, morality is relative; the “value” of moral judgements(“values”) are measured relative to a given moral foundation. A fancy way of stating this is that value judgments V are Statements S that have no truth content.

Now I do subscribe to the “presumption of liberty.” Following Anthony de Jasay, we can say that the “presumption of liberty” is an essential component of logical argument–of constructing an argument–so that an argument for liberty does not necessarily presume a preference for liberty. In this sense, the “presumption of liberty” is not a subjective value judgment.

But to get to the point, there simply is no such thing as “libertarian moral foundations” L. They are shared presumptions, such as the presumption of liberty(if you ascribe to the presumption of innocent before guilty, then you ascribe to it as well…so it’s not just “libertarians”), shared arguments, shared outlooks, but these things do not stem from a single moral foundation L. If we required them to–that everyone share L–then libertarianism would indeed be moral theory and not fit for social application(other than functioning similar to a religious industry).

And the social theory does not require shared moral foundations because JMA is rooted in a strategic calculation regarding cooperation–minimizing the price to be paid to gain the cooperation of others. We empirically verify this everyday with the observation of trade.

So the author’s argument (i) is rejected because the premise is false.

I will re-summarize the argument against (ii). It is flawed both conceptually and empirically. The conceptual flaw is the presupposition of the “order” itself as a static thing or a thing has settled into a final equilibrium. The blogger rejected having his position characterized as a “traditional ought” in terms favoring the order equilibrium. Instead, his claim for this settled thing appealed to its instrumental value regarding the produced consequences of cooperation and peace. The consequences are what he defined as liberty. But this violates the “Presumption of liberty.” The equilibrium is simply an arbitrary stopping point, and a presumption of order(or authority) is placed on any non-approved action disturbing the order. The problem with treating liberty as ends (instead of means) can be aptly demonstrated by Peace and Cooperation operating under a Presumption of Authority. If you click on my link to “The Theory and Practice of Oligarchical Collectivism” and read my brief introductory comments, you see that Orwell was describing a regime whose political and social hierarchy were in eternal equilibrium. This produced the de facto results of peace and cooperation. So, Big Brother would have to be classified as an example of “True Libertarianism.”

The empirical flaw with (ii) is that there is no such thing a single culture or norms C. I’m not merely referring to the different cultures across nations or continents. Any Culture C is composed of embedded subcultures(or counter cultures), each having their own informal set of institutions and norms. The reason I referenced Thaddeus Russell’s work,”A Renegade History of the United States,” is because it directly refuted our blogger’s contention that such things as abortion or homosexuality can only become accepted value norms via the coercive power of the State. Russell’s volume throughly debunks that canard by documenting the cultural norms of a large number of early Americans(the working classes, lower classes and slaves) who did not share the puritan norms. Homosexuality, abortion, interracial sex, drunkenness, leisure were accepted values of these classes. And as Russell chronicles, the governing classes devoted a great deal of concern with forcing these social convention rules regimes to conform with “republican virtues.” The emergent thesis from Russell’s book is that much our social freedoms originated from these alternative social convention regimes. So Russell’s scholarship counts as historical disproof of our blogger’s contention regarding homosexuality and abortion.


The difference between “Liberty is the Mother of Order” and “Liberty is the Daughter of Order” can be cast thusly: (i) the former treats liberty as means and operates according to a presumption of liberty (ii) the latter treats liberty as ends and operates according to a presumption of authority. The first is liberal and libertarian. The second is republican and communitarian. To claim that “true libertarianism” is (a) communitarian and (b) respectful of the presumption of authority is a gross expropriation. Any appeals to some Nirvana fallacy against (i) is rejected as nothing more than a mere Statement that the Status Quo is the final reality.


In anticipation of the blogger Fritz’s objection that his conception of liberty has to count Big Brother within the classification of “true libertarianism,” I will preemptively quote this from his website: “not all social regimes are regimes of liberty. Liberty requires voice — the freedom to dissent — and exit — the freedom to choose one’s neighbors and associates.”

Of course, “exit and voice” in Fritz’s conception are still subject to the presumption of authority. As Fritz himself demonstrates here: Illegal Immigration: A Note to Libertarian Purists

It is anathema to them that the United States exists primarily for the purpose of protecting its citizens and their liberty rights. (Well, it did exist for that purpose originally and for a long time, and it still does to some extent.) Libertarian purists seem to believe that, somehow, defense would be unnecessary and rights would be enforced even if the United States did not exist as a coherent, delimited entity. Good luck with that!

Exit and Voice operate under a presumption of authority that places a burden on the exerciser that the exercise of these “rights” does not disrupt the existence of the State as a coherent, delimited entity. Chuck Schumer would absolutely concur…

1 Please note: liberal and republican refer to the respective political philosophies/traditions and not to partisan politics or parties.

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