Liberty Matters

One and a Half Cheers for Pluralism

Jacob Levy paints a rich and fascinating picture of “ancient constitutionalism” as a crucial foundation for a “pluralist” liberalism he regards as a valuable alternative to the social-contract tradition he associates with “rationalist” liberalism. I believe we ought to welcome pluralist liberalism, but doing so need not mean abandoning important features of rationalist liberalism.
For Levy, if I understand him correctly, the pluralism represented by the “ancient constitution” features a variety of competing, overlapping institutions—“legal regimes,” in my terms—that are simply accepted as givens, or, at any rate, that don’t need to be grounded in consent. They can doubtless be critiqued or reformed in various ways, but they don’t need any deep justification. These institutions foster liberty because they compete with one another, thus restraining efforts on the part of any to achieve absolute authority, and because the entrepreneurially minded can engage in a kind of legal arbitrage, taking advantage of the opportunities offered by differences in the rules upheld by different regimes to realize greater freedom in particular instances.
Ancient constitutionalism provides a particular sort of ground for pluralism. For the proponent of this approach, different institutions rest on different sorts of justifications or else don’t need to be justified at all. They may present themselves as authoritative, and people may simply accept them as such. And of course a broadly Humean account of political authority might treat this as sufficient: because they secure order and foster liberty, they should be accepted, left undisturbed.
“Rationalist” liberalism in this context seems to feature a set of diverse elements. It includes (i) the idea that political authority requires justification, (ii) the idea that this sort of justification can be provided by a social contract, and (iii) the idea that a centralized state can, should, and will “rationalize” social institutions by subjecting them to uniform laws.
It seems clear to me that (iii) is a nonstarter. This is both because states are dangerous, so that centralizing power in the hands of state authorities is an invitation to mischief of all kinds, and because (ii) is false, given that no state does, and arguably no realistically conceivable state could, derive its authority from a Lockean social contract, with the result that the state could not have consent-based authority to engage in the rationalizing activity contemplated in (iii).
As I understand Hobbes’s view, a Hobbesian social contract is primarily an imaginative device designed to make clear how it makes sense to reason about submission to the state. Locke, by contrast, really seems to have assumed that actual consent really does matter and that at least some states were established on the basis of actual agreements on the part of the citizenry. While I am doubtful that individual states really did come into being this way (the hypothesis that kings and other tyrants begin as “stationary bandits” or tribal warlords strikes me as more plausible), the notion that consent is ordinarily needed to justify the exercise of authority seems attractive and defensible.
In brief, this idea might make sense for more than one reason. For instance, (i) autonomous moral agents begin as equal in authority and moral value, so no one has any natural entitlement to exercise authority over anyone else; consent, however, could, it seems, confer such an entitlement. Further, (ii) since I wouldn’t want to be ruled without my consent, it’s unreasonable for me to attempt to rule others without their consent. Similarly, (iii) requiring consent contributes to the welfare of those over whom authority is exercised, since self-dealing rules won’t be able to retain consensual support. And (iv) violating consent in the course of imposing authority on someone may involve acts that are wrong on independent grounds—instances of presumptively unjustifiable interference with people’s bodies and justly acquired possessions.
The kind of rationalist reconstruction of pluralism I would favor need not depend on any “original contract or founding moment.” That sort of contractualism is, surely, historically most implausible. The point, rather, is that the kind of authority claimed by a legal regime, the authority to use force against people’s bodies and justly acquired possessions, requires, at least presumptively, consensual legitimation.
That there are multiple reasons to regard consent as important does not show that nonconsensual authority is never justified. One might imagine a variety of emergency situations in which there could be temporary justifications for the exercise of nonconsensual authority (though even in emergency situations it would be important to take seriously the possibility that those treated as legitimately exercising such authority might seek, and perhaps seek successfully, to exercise it after the emergencies had ended, with predictably problematic consequences). But, despite this possibility, there seems to be a strong general presumption in favor of requiring consent as a prerequisite to the exercise of authority.
If this is so, there will certainly be reason to critique the claims of some actual traditional institutions like those endorsed by ancient constitutionalists. But the pluralist model of which ancient constitutionalism provides one example will remain more attractive than the alternative, to which a rationalizing, and putatively rational and rationally justified, state is central. This is so for at least two reasons.
(i) While rationalist liberalism sees state authority as rooted in a social contract, it is not clear that any actual state has ever been established on the basis of such a social contract. Even if there had been such a social contract in the past, a contract made by the members of one generation cannot bind the members of another generation. And attempts to maintain that new members of a society governed by a given state can be understood to give tacit, even if not explicit, consent to that state’s authority on an ongoing basis seem strained and unpersuasive. (ii) The uniformity characteristic of state-based legal regimes (and characteristically celebrated by proponents of such regimes) tends to stifle diversity and experimentation as regards substantive and procedural legal standards. It is also likely to deny people legal options—and ready opportunities to influence legal regimes by means of low-cost exit decisions. 
These considerations give us good reason to prefer pluralism to rationalism. But they leave open the question of the kind of pluralism we ought to prefer. For the reasons I’ve already noted, I believe pluralistic institutions ought to be consensual. That is to say, legal authority should be vested in institutions the jurisdiction of which people ought to be able to choose to accept.
That is, in principle, quite compatible with endorsing many institutions that were not created consensually from scratch or formed on the basis of any sort of rational planning. Institutions can be consensual without being deliberate creations of the rational, or rationalizing, will. People might choose to be subject to rabbinical law or Catholic canon law, for instance (in general or with regard to a particular dispute), without anyone’s supposing that either legal regime was the product of democratic deliberation or ground-up formulation by experts. Perfectly defensible institutions may have developed in Burkean fashion—in the manner of Harriet Beecher Stowe’s Topsy, just growing. What matters, on the view I’m defending, is that they not impose authority on the unconsenting.
Realistically, then, an attractive pluralism will feature a combination of institutions, some given and some intentionally crafted from scratch (though even these will, of course, tend to develop in unplanned and frequently unexpected ways). This sort of pluralism will embrace the consensualism of rationalist liberalism without supposing that centralized territorial monopolists are legitimate or are essential guardians of liberty. And it will embrace the diversity treasured by adherents of ancient constitutionalism without regarding nonstate institutions as legitimately authoritative if they lack the consent of those they are intended to serve.
The right of exit from these consensual institutions, rather than the authority of the state, could be expected to reduce the likelihood and the seriousness of local tyranny. Institutional competition could winnow out undesirable legal norms and practices and encourage the adoption of ones calculated to foster the flourishing and fulfillment of participants. Obviously, the absence of an ideal liberal state would mean that this sort of societal structure could not (as it seems it would be, for instance, in Nozick’s Anarchy, State, and Utopia[13]) be enforced from above. Its viability would depend in large part on widespread acceptance of social norms treating the pluralist institutional framework and the bedrock pre-institutional rights of persons as valuable and worth respecting—and as legitimate. But that would not render this sort of structure any less secure than that of any currently extant liberal society, since all such societies depend, similarly, on the widely shared conviction that their institutions are legitimate.
Levy seems to me to be completely right to emphasize the merits of pluralism as a defender of liberty. Where I think I disagree with his position, if I understand it correctly, is in thinking that pluralistic institutions themselves need to be justified on the basis of consent. If the social contract tradition is understood as positing a direct relationship between individuals and states that renders all small-scale institutions secondary to states, then we have every reason to reject the idea of the social contract. This is so not only because small-scale, often nonterritorial, institutions offer important safeguards for liberty that states do not, but also because states lack precisely the kind of justification the social contract-tradition suggests they need. States do not enjoy consensual legitimacy. By contrast, small-scale, nonterritorial institutions can enjoy this kind of legitimacy, and, arguably, do so in some cases.
[13.] Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974).