Political theory generally argues that individuals may affiliate with the state as superiors or inferiors. However that relationship is constructed, it must also respect two conditions: first, that both parties to the arrangement agree on its nature and, second, that the affiliation be consistent with a broader moral outlook. To succeed, that moral standing must be supported by the state and consistent with individuals’ worldview. Failure of the first condition results in resentment, crime, or revolution. Failure of the second reduces law to a positivist and disconnected set of conventions based on utility or repression. When government claimed dominance over individuals, the required conditions were nearly always met, but in the modern age as individuals assumed superiority to the state, the necessity for mutual agreement has foundered because citizens have found no means to reconcile their sense of the proper role of government with the entitlements their theory of its origin should guarantee.
Socrates regarded the state as superior to the citizens who compose it. He demonstrated that conviction in the most dramatic way possible: by calmly accepting his death at the hands of the Athenian authorities. Though thinking himself innocent of the charges of corrupting the young, he refused to protest or attempt escape, saying such efforts would teach disrespect to authority. In elevating the state above himself, Socrates represented his times. The etymology of idiot is from the Greek. meaning “one who separates himself from the state.” The idea that persons have a vital stake in political life was fundamental to the moral outlook of antiquity but no more so than the conviction that the state’s authority must be supreme to maintain order. We see echoes of that thinking in the U.S. founders’ distrust of democracy. They assumed that individuals need government far more than government needs individuals. Theocracies saw a template for that relationship in God’s to man.
The notion that the authority of the state must be beyond doubt proved highly resilient so long as authority itself remained the most powerful warrant for political affiliation. The era of emperor and pontifex maximus fractured into medievalism without the slightest crack in authority’s claim to precedence over the constituents of political order, whether they be castes, townspeople, or religious orders. It occurred to no one that the fundamental unit of civic life might be the individual who composed these estates or that the warrant for such a structure might be sought in anything other than a trust authority that required the moral agent to forfeit his own agency.
Challenge was slow to come and even slower to be recognized as legitimate. When Martin Luther confronted the Diet of Worms in 1521 and put his own conscience above its authority, he planted the seed that would grow into a challenge to the primacy of government, but this stalk of individualism was both exotic and tender and its stake in the soil of human reason shaky, and not just as a basis for political order. Authority did not fail gracefully. It still claims its place in moral life, though one much diminished because of its historical and structural failures (see “The Fragility of Religious Authority”). The lessons of the Protestant Reformation for early defenders of modernism were all negative: authority could never provide moral suasion or political unity if challenged by sources equally trusted. As Luther observed, the challenge could only appeal to and be arbitrated by individual conscience. What he apparently failed to see was that the resumption of rational agency that arbitration requires must in itself corrode the trust that is authority’s only basis (see “Authority, Trust, and Knowledge”). Particularly in politics, though, that painful truth carried a second explosive charge.
For if conscience saw fit to challenge established authority on the basis of being “convicted by reason,” it also found itself the arbiter of sanction bestowed by its individual possessor. And this must root political power not in tradition or divine command but in the rational and moral capacity of persons exercising their own agency. Though it would take well over a century to tease out the implications of such a relocation of power– and it is hard to overemphasize its bloody execution between 1521 and 1651 when Thomas Hobbes first articulated the social contract–that shift also guaranteed that the individual would now consider himself the author of the state of which he was a part. This new relation would be enshrined in the various incarnations of contractarian theory (see “Why Invent a Social Contract?”).
All of this seems only fitting to us. We see this process as progress. But social contract theory hardly resolved the relationship between individual and state either in theory or in reality, nor could it integrate that relationship into a larger moral framework that regarded law as something more than an issue of convenience and utility.
Its theory supposes a kind of consensus among all those atomistic rational entities that pool their reasoning into the contract and in its most sophisticated versions allows them to think better of their commitment so as to reverse it. But therein squats the problem. The modernist commitment is individuated, but the state is necessarily majoritarian. So even in theory, the contract faces the problem of protecting minority interests, a problem poorly resolved by attempts of adherents to enshrine pre-existing rights into the constitutions that structure the contract. Positing rights as either chronologically or morally prior to the contract bumps into the theoretical limits of the state of nature, which social contract theory pictures as persons’ original state, one that is compromised to whatever degree desired by the majority in compositing the contract. Where in this theory can be found room for retaining rights despite the will of the majority (see “Where Do Rights Originate?”)? Without a doubt, the structural weakness of social contract theory is further undermined by inconvenient historical realities: no state of nature ever existed, nor can the individual constituents of the modern state choose to accept or reject any contract already in force. Their relation as individuals to positivist law is no different from those living in authoritarian states. It is only as majorities (and in the U.S. supermajorities) that individuals may assert their putative power to “alter or abolish” the putative social contract their ancestors affirmed. So while the individual is seen as the force vitale of social contract theory, it is actually a utilitarian calculus of “the greater ‘good’” that moves the levers of state power even in the ideal. And nothing in social contract theory or practice requires the state to pursue justice even for the majority if they choose not to enshrine it as a goal. The contract provides no means either to define or defend individual rights unless specified in the constitution that details the contract, and there is nothing in the theory that demands such an enumeration (recall the dispute over the inclusion of the Bill of Rights in the U.S. version) or defines what should count as a right.
The disjunction between a theory of individual superiority to state power and the reality of the modern state is partially the result of social contract theory. If citizens think the state a conventional creation necessitated by human cravenness, an artifice whose very existence derives from the surrender of personal liberty, it is little wonder they find it a threat to their freedom. Further, if the reality of the state admits of neither individual assent nor veto despite the assurance of theorists who insist on the generational renewal of the contract with citizens as individuals, it is little wonder they doubt it.
We thus are left with a question all too relevant to contemporary life: is today’s widespread contempt for government rooted in its actual failures or in a defective warrant for its powers that must inevitably produce a sense of oppression? If both answers apply, it is still worth asking after their relative contributions to the flood of dissatisfaction with government as the usurper of individual autonomy.
But there is another headwater to that river of discontent. If social contract is modernism’s effort to offer a rational alternative to authority as the source of government power, one that shifted the locus to individual reason, the Romantic celebration of individual genius gloried in that power and questioned the morality of compromising it at all. “If that way led to chaos,” the Romantics might respond, “so much the better.”
Their relation to their Enlightenment elders embodied every adolescent cliché of rebellion, but their relation to our own age is more nuanced if only because elements of modernism, notably the empirical sciences, continued to thrive as Romantics urged their rejection. We can say with confidence that Romanticism benefited from the megaphone of new media permeating the nineteenth century, those means a response to increased education and leisure among the new middle class. Whatever ideas percolated through the early nineteenth century were sure to take hold of the public imagination like nothing before them simply because that public exulted in the novelty of a free exchange of information. The dawn of the internet age was but a faint echo of that first infatuation with mass society. The medium only magnified the message in this case, and the message the Romantics transmitted tirelessly was emotional intoxication, a savage thrust of excess into the wildly receptive hearts of a populace that today’s consumers would consider very naive (see “When is Civil Disobedience Justified?“) . It was both thrilling and frightening. Alienist artists have attempted to recreate that sensation ever since and with similar outcomes (see “Three Portraits”). Emotional excess must be increased (eventually exponentially) or it stales into conventionality and formalism. Ask any indie band.
The first flush of Romantic glory faded into an eventual stultification at the hands of the Victorians, whose attempts to domesticate Romantic feeling were all too successful. If the notion of controlled excess seems a tad psychotic, welcome to the Victorian mind, the breeding ground for all those Freudian neuroses, Nietzschean delusions, Marxist exploitations, and mangled bodies in the killing fields of the Great War. The Victorians are particularly interesting for those who study mental illness for their doomed effort to maintain Romantic enthusiasms while simultaneously employing the rational obsessions of the earlier age. This attempted synthesis was predicted by Hegel, who saw enough of the rationalist/Romantic antitheses in his lifetime to hope for some yet unseen resolution by a World Spirit. Instead, the contradictions produced World War I, the Russian Revolution, fascism, the human sciences, and postmodernism (see “Postmodernism Is Its Discontents“): all the result of a frantic and ruthless search for reconciliation of conflicting Victorian warrants for truth and goodness claims (see “The Victorian Rift”) .
Still, for all its perversions in the nineteenth century, Romantic rebellion still reverberates today. That vibration is magnified in political theory by the shaky foundations of social contract theory as a basis for contemporary politics. The Romantics might have rejected the Enlightenment, but they found something congenial in the atomistic and individualistic roots of state power the social contract theorists had developed. Like these theorists, they felt the individual superior to the state.
Their position could hardly be called an argument. It was more of an intuition, in their view a self-evident proposition that required no proof to yield its moral suasion. Ironically, they were handed convincing proof by that most rigorous and rationalist of thinkers, Immanuel Kant, who so effectively articulated the moral autonomy of the individual that few have dared to argue otherwise in the centuries since. One of Kant’s argument’s unintended consequences was to crush the remnants of respect for external moral authority, something the traditionalist Prussian philosopher could never bring himself to face. But his readers could, especially in the first flush of Romantic enthusiasms that washed over Europe in the early nineteenth century. Politically, Kant found himself defending both the autonomy of the individual and the authority of the Prussian kings, a most uncomfortable dilemma. He could only do this by invoking Jean Jacques Rousseau’s concept of the general will, essentially arguing that individual autonomy could somehow be reconciled with public order so long as persons– and in Kant’s view, rulers–conformed their desires to the good of the state. History demonstrates that this process could be facilitated with the gulag and guillotine but would hardly happen spontaneously. Kant’s powerful defense of individual autonomy could not be reconciled with social contract theory any more than Rousseau’s could. Two responses followed in the mid-nineteenth century. Unsurprisingly, Victorians found one rooted in the soil of Enlightenment and the other screaming through Romantic media.
The first response built on the efforts of modernists like Locke, Kant, and Rouseau and was an even more pronounced attempt to consider human nature as plastic and moldable than had the invention of general will. Hadn’t John Locke argued for the original state of the mind as a tabula rasa to be written upon by experience? Karl Marx argued that persons’ experiences must be wholly economic, and so economic class must wholly form character. Others would argue other determinants in later years and still do: they cite race, gender, nationality, or age as the makers of identity. This position conflicted with Romantic ideals. Rather than exalt character as self-created, mysterious, and even sacred, it regarded consciousness as formed by external factors of heredity or environment. It was not an accident that Marx and Lenin stressed that theirs was a scientific socialism. The notion that economic factors determine identity implied that revolution might create “the new man” thoroughly in tune with the state that serves his interests. Or perhaps it might work the other way round. If the state cannot read the will of its individual citizens, perhaps it might intentionally form a will it can gratify through propaganda. This had been tried in the radical phase of the French Revolution, and it had failed. But Marxists, and later fascists, thought that a more studied approach to inculcation, one more dependent on the emerging human sciences, might succeed where the Jacobins had failed. In practice, such efforts also restore the state to supremacy over the individual, and since by this view the individual is no longer an autonomous will, it avoids the problems of disaffiliation and moral anomie created by social contract. But the effort to create the new man was a twentieth century nightmare; the tabula rasa as a basis for identity utterly failed, though it is today still bruited in academia reluctant to abandon its centrality to their postmodern theories of the cultural root of personal identiy. Any calculation of its effects must highlight the shame it has heaped upon human sciences like economics, sociology, philology, educational theory, and psychology (see “The Calamity of the Human Sciences”).
The Romantic response to the errors of social contract theory went another way. By the end of the nineteenth century, Nietzsche could draw the clear contrast. “Socialism is the phantastic (sic) younger brother of despotism, which it wants to inherit. Socialism wants to have the fullness of state force, which before only existed in despotism. … However, it goes further than anything in the past because it aims at the formal destruction of the individual … who … can be used to improve communities by an expedient organ of government.” He spoke for those who distrusted both “scientific socialism” and bourgeois liberalism. “Everything the State says is a lie, and everything it has it has stolen.” Romantics embraced as the core warrant of their truth and goodness claims a kind of pantheist connection among moral agents that communicates indubitable truth and goodness to those receptive to it. They condemned both the rationalist obsessions of modernists and the materialist obsessions of the new middle class, proclaiming that both dulled the intensity that was their primary truth test (see “What Counts as Justification?”). With such a view, they were often violently opposed to the utilitarian appeals of democracy and social contract that claimed to anchor states, just as they also despised the ancient demands of authority, either divine or royal. If it seems that their antagonisms left them little room for constructive relations with government, they might respond, “So be it.” This was the source of the explicit rejection of any détente with state power, a movement called anarchism. Notions of anarchism found favor among those antiquity might have termed idiots, individuals who trumpeted their superiority over government, who regarded all law as impediment to personal liberty, who elevated that liberty as the greatest good of political identity. Sound familiar?
The second half of the nineteenth century was a pageant of Sturm und Drang. Efforts of Russian and German thinkers to systematize anarchism achieved more success than they deserved, perhaps, but the writing of Schelling and Herder and Bakunin and Kropotkin and the rest of the Victorian anarchists suffered in its political efforts from the same dichotomy the larger culture faced: how to both unleash and yoke the emotions, to elevate and communicate intuition, to use outrage to instill discipline. That recipe produced a simmering resentment against state power even when citizens were unwilling to take their grievances all the way to anarchy. No one captured that sense better than Nietzsche. In his resentment of “the herd,” the very mass of mankind that liberal democracy considered and utilitarians heeded as the fount of wisdom, Nietzsche paved the way for the great archetype of twentieth century media. What he called the ubermensch, novels and movies called the antihero (see “Freedom, Antihero, and Zeitgeist”) and while mass culture brought nothing new to the concept, it did disseminate it thoroughly into the zeitgeist in that rootless era following World War I (see “Modernism and Its Discontents“). The antihero was not made entirely in the anarchist mold. A system that rejects external power is too limiting to freedom; it prescribes and orders what the antihero must create for himself. He does not seek to overthrow an ominipresent state but to maneuver as he wills within the incompetent existing one. What better evidence of his superiority to its dictates could he bring to bear? It is this ideal so popularized by a thousand novels and movies celebrating heroes who “make their own rules” that dominates and diminishes political discourse today. As for the timing of contemporary disgust with government, it is worth remembering that for every reader of Nietzsche, there are a hundred thousand action hero movie fans.
It is likely that citizens who embrace liberty as the greatest good are unaware of the pedigree of their resentment, and it is also likely that even the most capable exercise of state power would not assuage their sense of outrage. The U.S. system of government is built on a fundamental distrust of political power rooted in social contract. Moreover, in practice, it refuses to recognize individuals’ legitimacy as the source of its power, refuses persons the license they consider their due, and applies an inconsistent and majoritarian calculus to determine the utility of the law, which it justifies on grounds of convention. And so libertarians seethe.
A more perfect recipe for disaffection would be difficult to imagine even without the corruption and waste we see in practice. Contemporary libertarians— let us use this term for those who embrace the primacy of the individual as expressed through both social contract and Romantic anarchism–consider government to be oppressive and incompetent, but fear even greater oppression should the incompetence be eliminated. They utterly reject efforts to instill government with moral power and favor a strictly conventional and positivist view of law, yet they also feel contempt for the majoritarian and Utilitarian bases for its decision-making. As if this were not sufficiently morally compromising, they frequently embrace religious authority while rejecting a pluralism that would increase their circumstantial liberty. Their position is, of course, rejected by their government that correctly interprets it as irreconcilable with social order in a morally pluralistic culture. Their objection to the coercive power of the state offers no moral alternative to settle conflict among the individuals who compose the polity, which is the major reason their political program is intentionally disruptive, seeking nothing more than to shrink government’s power. Tracing the origins of their position does nothing to make it more tenable or less contradictory.
It is highly unlikely that Western societies would ever return to governments deriving their power from authority, and the twentieth century efforts of totalitarian regimes to mold their people’s identity have proved bloody, wasteful failures. We are unlikely to accept that the state should be dominant over its citizens and equally unlikely to seek political identity in any other social unit than the individual (at least in the near term, though corporatist identity may be a future factor). And the pressures of population make a return to a frontier mentality a wistful act of nostalgia. The last three centuries have produced a sustained effort to see the individual as superior to the state, producing both the social contract theory that supports democracies and the egotistical anarchism, libertarianism, that resists them. A secondary cost has also been exacted: the severance of law from morality and the substitution of positivist and conventional theories of legal power rooted in the ahistorical fiction of the origin of government in social contract theory. It is likely that at least part of the current appeal of religious fundamentalism is rooted in this severance. Christian evangelicals find the Ten Commandments more powerful sources of legal authority than civil statutes in large part because God’s law is morally binding and absolute while civil law seems to them arbitrary and contentious. They seek to add moral heft to the utilitarian conception of positive law to make it more compelling and to integrate it into a larger pattern of desirable behavior. Considering the alternative now accepted, who can blame them? But their efforts in a pluralistic society are as hopeless as those of the libertarians (see “Theocracy and the Commandments”) who seek to maximize their freedom at any cost. If experience is the best teacher and history its text, we must be led to the conclusion that individuals are neither inferior nor superior to the government and that no state can separate its legality from morality if only because every law is a goodness claim appealing to warrants beyond individual utility (see “Natural and Political Rights“).
There is a better way, but it requires a bit of a reorientation. For all those millennia that government was justified by authority, a dichotomy between ruler and ruled seemed sensible. Indeed, authority required it if only to establish a qualitative difference to warrant its superiority over the individuals who so outnumbered it and so give them reason to surrender moral agency. When modernism reversed the relationship so as to set individuals as the fount of legality rather than government or God, the mythical social contract it used to justify that inversion required that government be seen as “the Leviathan” that is born of the common consent of individuals, a thing artificial and pragmatic invented to prevent war, protect property, and promote a general will. Contractarianism reduced not only the power of the state but its necessity. But to establish either the inferiority or superiority of individuals to government relies on a prior judgment. In either view, government is regarded as something separate and external and somehow comparable to the individuals who navigate it. I would like to argue that government is neither above nor beneath, that establishing any theoretical proportionality is a deep error. Would it make sense to say that education is superior or inferior to the individual who pursues it? Or recreation? Productive work? Friendship? A sentence that attempts to relate these components of life to the individual teeters on the verge of nonsense. I would argue that any attempt to establish a similar level of proportion between individual and government is equally ridiculous. While such efforts have a long history, they fundamentally misjudge government’s purpose, and so distort it, producing distrust and disdain at one end or subservience and submission at the other.
As long as humans have lived in communities, they have used government as a tool to accomplish the goods they seek. It is a means to the end of human flourishing, like education, recreation, work, and friendship and a vital component of “the good life,” what Aristotle called eudemonia (see “A Virtue Ethics Primer”). The goal in the relationship between government and individual is the pursuit of justice, meaning “to each her due.” Government facilitates that pursuit in three ways (see “Foundations of the Law: An Appetizer“).
First, it allows one to collaborate with other citizens to accomplish goals no individual can accomplish while she also goes about the necessary business of meeting her other needs. These goals may be simply too massive. Think national defense and infrastructure. Government is also citizens’ recourse for desirable goals that are too ephemeral or complex for individuals to master as amateurs. I can’t count fisheries stocks or monitor the side effects of new pharmaceuticals. I am grateful that government can. And since every community contains some few who cannot function independently, government serves as the last recourse of those citizens unable to satisfy their own needs: orphans, the sick and aged, and so on. Call these contributive needs.
Second, it assists individuals in limiting their own pursuits, in knowing where the lines are, so to speak, through the passage of laws that limit their desires to constantly maximize their own liberty at the expense of others, a moral offense properly called license. After a night of partying, I may not be the best judge of my capacity to drive. In a dispute with my neighbor over my property line, I might be tempted to nudge it a bit his way. Government helps direct our efforts to pursue our desires through laws, each of which sets a moral standard. Good laws direct those efforts toward fulfilling our needs without frustrating others engaged in that same pursuit (see “Functional Natural Law and the Legality of Human Rights“). The effort to draw these lines of legal behavior actively limit the abuses of others who might interfere with our own pursuit of our needs. And as needs are transcultural, universal, and timeless, we may say that such abuses also threaten your pursuit as well. So dangerous drugs, drunk drivers, and predatory financial institutions are public dangers that law rightly limits, not because they hurt all of us but because they potentially hurt each of us (see “Needs Anchor Morality“). Call these retributive needs.
Third, the collective will of strangers-writ-large that is government faces the thorniest of duties: to what extent should they assist those who are unable to satisfy their own needs or appeal to the subsidiarity of those they love for assistance? That question is challenging to libertarians, who wish to assume no burden not imposed by love and think their success entirely a product of their own efforts. They are unlikely to embrace a claim-right on their resources and find no justification for government response in the contractarian theories they support. A functional natural law perspective makes room for that claim-right, though. It derives from the universal needs that persons must satisfy to flourish and on the justice that defines the satisfaction of those needs. The satisfaction of these distributive needs simply cannot be recognized by contractarian or libertarian foundations for law, which helps explain why their satisfaction is a constant source of social tension in today’s democracies.
Notice that the enumeration of the benefits of government revolve around the individual fulfillment of needs. It is a mistake to value or define the common good as something other than the goods that individuals need (see “Two Senses of the Common Good“). To do so is to use terminology borrowed from the utilitarian ethic and social contract. It implies permission to abuse the minority in the interest of the majority under the assumption that we all seek different goods and so we may define “the common good” as whatever the majority desires, such desires generally enshrined in laws or contracts. But an ethic centered on universal human needs sees government’s purpose as protecting individuals’ rights to satisfy those needs that necessitate government in the first place. The core argument of this view founded upon a functional natural law theory, is based on the universality of needs, though not desires. People want all kinds of things, but their needs are derived from their species-specific nature as human beings, and it is to facilitate the satisfaction of these needs, these human rights, that governments exist, have always existed as surely as friendship and education have always existed as components of human potential. Make no mistake. The individual is the fundamental political unit who requires government as a fundamental means to her own and her fellow citizens’ flourishing. Her rights are sacrosanct and do not depend on constitutions, contracts, or the largesse of authority. Rights cannot be abrogated, a moral position that protects minorities by holding the needs of the one as inviolable and morally prior to positive law. Governments are morally obligated to deliver justice– what is due– to each individual, and her due is the satisfaction of her needs. Granted, government plays a minor role in that quest. Most needs must be satisfied by the person who bears the burden and enjoys the dignity conferred by the preferential freedom that guides her own choosing. But government’s role, while small in the mass of goods persons are morally obligated to pursue, is necessary if only because some human needs can be satisfied in no other way. History is rife with examples of governments abusing, frustrating, or neglecting the rights of their citizens, but those failures invalidate my contention no more than accounts of plague and famine negate our need for health. Since the pursuit of justice is government’s signal duty, and since arbitrating the distributive and retributive aspects of that pursuit is incredibly difficult, we might expect a low-grade rumble of dissatisfaction with even the most responsible government. But those objections should not center on the existence or necessity of government but rather on its competence to deliver justice to its citizens.
It is easier to despise government when it is seen as something external and disconnected, easier to inspect it from the outside as some Frankenstein creation gone awry, easier to embrace the myth of the frontier and the state of nature as lost havens of freedom. History tempts us to do so. For millennia, individuals were deprived of a say in their own political life by authorities invested in magnifying the difference between ruler and ruled. When authority itself was demolished as warrant for government in the seventeenth century, that same separation was maintained to falsely explain the origin of government and give power to the citizens who supposedly created it. And there is no doubt that in wielding its requisite power, government is often abusive and self-perpetuating, corrupt and self-seeking. In this, it mirrors the individuals who structure it. Could we seek any further proof that, contrary to our inclinations and the political myths that explain its origins and relationship to us, government is a part of us? Its excesses as well as its achievements mirror our own because they are our own. Government is not external. It is not a them. Even when unresponsive, especially when unresponsive, we should remember that government is us. And because “man is by nature a political animal,” we must also realize that we have nowhere else to go. There is no contract to tear up, no set of civil commandments to kneel before, no Eden to return to. There are only our common needs and a polity that either delivers justice or fails to. But either way, the needs do not disappear. If frustrated, they only demand more loudly to be met. The temptation to sneer and turn away is strong, but a more perfect union lies the other way.