Liberty, Prudence, Imperfection, and Law

“What Does Prudence Demand?,” By Scott Yenor

“Ben Todd Jealous Family” by MyName (Imperfect chaos) – Own work. Licensed under CC BY-SA 3.0 via Wikimedia Commons.

How does one proceed in an imperfect, erring world? What is a wise statesman to do amidst error? Differentiating wisdom from folly is only part of the story. Reintroducing wisdom into the world, slowly and in manageable chunks so that it can be digested even as it is not quite recognized as wisdom—that is a task too big for any person. This is the old problem of reconciling wisdom and consent.

Reconciling these two takes prudence. But what does prudence demand? We ask ourselves this question constantly in politics.

How does the actual presence of Obamacare, for example, affect prospects for a more workable healthcare reform? Should those concerned about liberty seek to replace the administrative state or to make rules more amenable to liberty? Should professors on today’s campuses seek to transform education by entering into dialogue with the enemies of liberal education or should they create niches or oases on campus for liberal education?

Or in foreign policy: When is containment of an evil or error the best strategy? When is rollback? When does one “stand on principle”? When is it best to seek an accommodation or to relent on principle for the sake of fighting another day?

Defending the wisdom in a prudent policy is half the trick; gaining acquiescence or consent from those with whom one disagrees politically is the other half; keeping the peace in a diverse polity is the other half of statesmanship and political moderation. I might add that contemporary liberalism complicates these, as it were, three halves—it adds to the mix more than a tincture of pride in allegedly being on the “right side of history,” which makes gaining consent or acquiescence from today’s liberals much more difficult.

Nowhere is the practice of statesmanship more difficult or more needed than in the lamentable condition of family life in the modern world. The public has a terrific stake in the practice of healthy family life, yet the public acting through governmental institutions can do little to secure that healthy practice. Healthy family life is a matter of culture, undercurrents, and fashions. Statesmen can shape laws much, much more easily than they can shape a culture—something which is, obviously, beyond the control of any person or any moment.

Lauren K. Hall is keen to find teachers of prudence who describe healthy family life and then seek to secure it in their times and places. Her Family and the Politics of Moderation: Private Life, Public Goods, and the Rebirth of Social Individualism first explores immoderation. Her analysis of radical libertarian and communistic thought shows the stumbling blocks that make such radical positions difficult to impose on our complex world. The author then turns to Edmund Burke and Montesquieu for a vision of political moderation, and she concludes with what immoderate and moderate thinkers alike tell us about how we might find a way through today’s mess.

The political immoderates in the book are Karl Marx and Friedrich Engels, and also Ayn Rand, all of whom wished the family away. Marx and Engels thought the bourgeois family a contradictory institution in the bourgeois phase of existence, where the equality of the sexes was acknowledged in law but not realized in fact. There would come a time, they hoped, when this and other contradictions were erased from human life and all people experienced equality and liberation.

Not so fast, says Hall. The fact that human beings come from families connects them to “the habits, customs and property of the past,” and this precludes any quick or radical wiping clean of the slate. The Marxist hope of overcoming the distinction between private and public is bound to fail because human beings have ineradicable private and public longings, neither of which can be reduced to the other. The private longings include a desire to have children, sexual passion, a hope for a decent future for one’s children, and a desire to love another with particular intensity. The failure of the Israeli kibbutz movement, not to mention that of Soviet communism, ultimately illustrates the collectivists’ inability to overcome these apparently ineradicable private aspects of our nature.

Hall’s treatment of Ayn Rand, the most interesting and path-breaking part of the book, yields similar conclusions. Rand, too, seeks to eliminate contradictions in our experience, but through the elevation of human independence instead of through Marx’s social collectivism. But again, family customs and genetics are beyond human control. Marriage and family life really cannot be trade relations, as they are based on “reciprocal altruism” and involve some dependence (consider, for instance, the life of a young child or the relationship between a lover and a beloved). Hall shows that there are limits on human independence and choice, mortifying limits that Rand simply wishes away.

Dependence, the divide between private and public, the presence of the past and the unchosen in human life generally and in family life specifically—these facts hinder those who would eliminate marriage and family life. They also provide resources that Burke and Montesquieu use to outline a prudent, moderate conception of family life. Emphasizing the limits of law, Montesquieu counsels that political communities need not penalize homosexual sodomy or incest, since nature and natural sentiments condemn these practices sufficiently. Laws should neither arrange marriages nor demand chastity before marriage, since laws lack the detailed knowledge of individual circumstances.

“It is better,” Hall writes, “to trust the natural feelings and inclinations” so that “our natural desires for intimacy and autonomy will create stable, affectionate families that preserve individual worth while supporting our natural sociality.”

Laws surely cannot and should not push overmuch against nature or the private or personal, but it is not so clear that nature speaks as loudly or, in the absence of a pro-family ecology, with sufficient strength to create “stable, affectionate families.” In observing the interplay between law, mores or culture, and human nature, human beings must take cognizance of how nature is guided and how culture and laws interact. Montesquieu wrote when the family culture was, perhaps, too strong or confining and the faith in the ability to direct culture through laws yielded efficacious results. The test for Hall’s book and for those interested in a prudent response to today’s family crisis is whether these principles can yield an effective response in the absence of sufficiently strong mores.

The touchstone for Hall’s prudence and moderation—and the important lesson from the teachers of political moderation that she learns—is monogamy (understood as a two-parent family), especially against single-parent and polygamous models of family life. She writes:

The ideal moderate family form will serve as a strong buffer between private and public lives, preserving both and harmonizing, as far as possible, the interests of individuals and their expansive self-interest with the interests of the communities to which they belong. Such balance requires a family with certain characteristics: self-sufficiency, permanency, internal balance between its members, affectionate bonds, and intergenerational strength. . . . In practice, the family form that is most likely to display these characteristics is a family consisting of a monogamous couple and two or more children.

When compared to the alternatives, each adult in a monogamous relationship contributes to the care of children and of each other—fostering self-sufficiency. Each is called to invest in the child in a healthy, limited way, preparing the child for adulthood and self-governance. The monogamous family allows for change, while ensuring and accepting that some intergenerational habits can endure. It serves as a buffer between individualism and the public, while reflecting the values of each. It allows for more than a little flexibility in how its common tasks are accomplished.

Hall’s recognition of the importance of monogamy sets a standard against which to judge other fashions and arrangements. She worries about single-parenthood and its effects on a self-governing people, the waning of the intergenerational family, and the birth dearth as fostering isolated individuals and weak communities. She believes that there are some cultural and legal resources to prohibit polygamy, a practice that frontally challenges liberty and equality (though, troublingly, these resources are not easily translated into support for monogamy). Liberal democracies mostly rest satisfied with laws and mores prohibiting the deleterious effects of polygamy (against spousal abuse, child neglect, and statutory rape) rather than trying to eradicate it directly. Moreover, Hall worries about the pressure women feel to work and hence limit their participation in families (and with the vision of women as baby-machines hence to lose their identities in their families); she endorses same-sex marriage as an idea, consistent with monogamy, whose time has come.

Let us think through a couple of these problems in search of the moderate, prudent ground. Nowhere does the author bemoan contemporary developments more than in the trend toward single-parenthood, which, studies show, leads to fewer thriving children, more marginalized and isolated parents, and greater interpenetration of the public sphere into what are otherwise private concerns.

What to do? Most policies that Hall mentions involve picking up the pieces, replacing the parent with state support or state-sponsored care, which, she insists, leads to impoverished emotional lives, fosters an erosion of individual worth, and reflects a misunderstanding of what a parent is. The fact that the state tries to help leads to a further decline in the role of parent.

Hall, to her everlasting credit, is among the lonely band in academia willing and able to notice the full scale of these problems. We are living amidst a widespread syndrome of moral and intellectual confusions relating to sex, gender, love, and nature. Within this syndrome are the following confusions or errors: one parent is as good as two; any two are equivalent to any other two; parents perform functions that can be divided out; fathers are superfluous or worse; and children are flexible and able to thrive in a variety of environments.

Even when we see a problem, we are not sure if a proposed solution wouldn’t instead make things worse. Our solution to single-parenthood, for instance—ramping up state aid—makes single-parenting more viable. Laws that might limit single-parenting—parental licensing laws, perhaps, or other more intrusive options—are unjust, invasive, and, in any event, run counter to the sexual liberationist tenor of our age. Laws that might make divorce more difficult to secure—waiting periods, demonstrations of cause—may, given our weak cultural commitment to marriage, lead to fewer marriages and more unstable cohabiting. What are defenders of the family to do in the face of these headwinds?

I might use other examples. The civilization-wide decline in population growth—the “birth dearth”—presents a whole host of economic, policy, and psychological problems.  It decreases the dynamism of a society and may reflect our ebbing hopefulness about the future or the goodness of life itself. It makes our welfare-state commitments more and more difficult to fulfill. It cuts the intergenerational connection and may lead to a retreat into a lonely self. Summoning the public to require all healthy adults to procreate (a counterpart to the Chinese state’s limitation on it) is as difficult to imagine as it would be to imagine making contraceptive technologies anything less than legal and widely available.

Indirect attempts to move the needle on reproduction—tax credits for births or family leave or Putin “love benches”—have proved failures nearly everywhere they have been tried. (Jonathan Last’s What to Expect When No One’s Expecting discusses these matters; I have reviewed Last’s book here and here.)

In each case, the legal levers prove unavailing while the problem remains. We are forced to ask once again: What does prudence demand? When cultures accept divorce, single-parenthood, and childlessness, prudence demands strategies of indirection and rearguard actions if these phenomena are harmful to human thriving.

Hall’s heroes prefer the policies of indirection, which can work as long as there are competing goods at stake in individual choices. She suggests stemming the coming tide of polygamy, for instance, by encouraging outside employment opportunities for women. Cultivating independence from the family through careers will make polygamy even less likely than when it is prohibited by law, or so the argument goes. Would this strategy used to discourage polygamy serve to exacerbate the problems of single-parenthood and the birth dearth? Hall suggests an acceptance of same-sex marriage, on condition that it is a monogamous, consensual relationship. Would this justification for same-sex marriage contribute to the view that children are products of our choice (insofar as parenthood becomes linked with reproductive technologies) or that children are outside the purpose of marriage (insofar as same-sex marriage is monogamy without serving a procreative purpose)?

Her heroes, moreover, recognize the great complexity of human affairs; pulling on a string in this side of the fabric has implications for the other parts of the fabric. Far from caving when majorities form around errors (which is where, in my view, Hall often leaves things), these heroes of prudence provide an alternative way of thinking through the demands of prudence. They show a way to attach doing the right thing to other, often neglected human goods and to build those neglected goods up in preparation for moving individuals to do the right thing. Goods associated with betrothed love, individual responsibility, self-government, and mature adulthood are those that must be built up if our society is to reverse its alarming trends associated with family decline.

Moderation involves mixing our family regime, making it less like itself and more representative of the range of goods at stake in family life. “The whole art of the legislator” lies, in Tocqueville’s felicitous formulation, “in discerning well and in advance these natural inclinations of human societies” and educating against them as one is able. Moderate statesmen foster a balance among the competing goods by prudently appealing to goods that run counter to the predominant tendency of their age or regime.  In our day, I would submit, we must appeal to goods associated with love or personal relations and personal responsibility against the independence and irresponsible autonomy that we see around us.

Our age tends to sever the connections between love and sex, sex and procreation, parenthood and procreation, and parenthood and marriage; it neglects permanency and faithfulness in marriage. Our regime will tend to work out the logic of these positions and thereby render family life thinner and more minimal over time.

The task for those interested in preserving our experiment in self-government is to counteract these tendencies because they lead to an unhealthy statist regime, they do not reflect a complete vision of what a thriving human person is, and they lead, indirectly, to the decline of our civilization. Lauren Hall takes us part of the way to this conclusion; we must fill out her conception of moderation and prudence to achieve an even more satisfactory result.

 

Scott Yenor is Professor of Political Science and Chair of the Department of Political Science at Boise State University. His most recent book, Family Politics: The Idea of Marriage in Modern Political Thought, was published in 2011. This essay was originally published in September 2014 at Liberty Fund’s Library of Law and Liberty, and it is republished here with gracious permission from that web-magazine.

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