Liberty as Decentralization

Libertarians tend to like political decentralization and the principle of subsidiarity (” do everything at the lowest feasible level”). The standard reasoning is that decentralization provides a check on government, especially when combined with mobility across jurisdictions. Thus, if one jurisdiction becomes too overbearing, people can flee to a more welcoming environment, and this possibility will actually prevent governments from running roughshod over their citizens’ liberties, for fear of losing their tax base. Dressed up in the language of rational-choice institutionalism, this is all Barry Weingast’s “market-preserving federalism” model really is.

I would like to posit that, under certain conditions, decentralization can in and of itself represent an increase in freedom, even if government does not shrink as a consequence (even if it grows!).

The argument

Why do radical libertarians think that taxation is theft? Presumably because taxation takes away citizens’ justly acquired property without their consent. But what if they did consent, e.g., through a social contract? Then taxation would be fine, so long as it is levied pursuant to the terms of the contract. But – “I didn’t sign no stinkin’ social contract!” Fair enough, neither have most people – and, eliding a long stream of philosophical argument, it ultimately seems clear that the arguments for empirical anarchism (“very few existing governments have a moral right to rule”) are compelling.

But could a government established illegitimately come to enjoy some legitimacy after a certain period, during which it has performed certain actions? Think about property entitlements. The long history of theft, extortion, and murder in human societies might seem to render virtually all property entitlements illegitimate. But then there are good reasons to think that the moral stain of illegitimate transfer eventually fades as the victims die out and the holdings are transferred justly to subsequent generations. Thus, property entitlements that are illegitimate in origin can eventually be “redeemed.”

In the same way, governments are generally not established by initial unanimous consent (the Mayflower Compact was an interesting historical exception). Therefore, they are morally illegitimate because they violate the rights of nonconsenters. But can governments eventually become legitimate through the establishment of consent? Clearly, no government (that I know of) has ever tried to obtain the signatures of all its citizens to a constitution after the fact. But surely, living under a government can, under some circumstances, convey consent. John Locke’s theory of tacit consent to government holds that “enjoying the dominions of a commonwealth” makes you morally subject to that government – you must obey its laws, or at least not interfere with their enforcement. This theory is inadequate when applied to national states, however, for their very size makes emigration impractical for most. It doesn’t really count as consent if you have no choice.

But what about a condominium association? Let’s suppose a CA was established improperly without all the proper signatures, but carried on governing. It was a morally illegitimate government at its founding. But if you continue to live there for a certain period of time without making a complaint, it seems fair to infer that you have consented to the arrangement. In these circumstances, tacit consent does seem to do some work. Why? Because a condominium association is so small, territorially, that it is easy to leave if you do not like it.

Now replace “condominium association” with “municipal government.” It is reasonably easy to move across municipal jurisdictions. I would venture to guess that there are many towns across the United States where, if all adults were surveyed, none of them would volunteer the belief that their municipal government is illegitimate and has no right to rule. In effect, these town governments enjoy unanimous consent to the basic contract (this does not mean, of course, that there is unanimous consent to every decision the local government makes – but all that matters for “right to rule” is unanimous consent to the basic procedures by which decisions are made).

So if radical libertarians were to go into a town like this and proclaim that resistance to local taxation is just, or that enforcement of ordinances against, say, houses of prostitution is wicked, they would be in the wrong. These policies would not necessarily be violating anyone’s rights, because everyone has consented to the town government’s right to make these decisions. (As an aside, libertarians would probably make more headway with their ideas if they openly acknowledged that local communities should have the right to zone out crack dealerships and brothels, thus cutting the legs out from under the easiest and most unfair reductios of libertarianism.)

In conclusion, decentralization, by placing political decisions in the hands of small-scale governments, can, under conditions of good mobility and respect for basic integrity of the person, inherently improve liberty. “Big government” at the local level need not be unjust, because it often enjoys the consent of the governed. Libertarians need not be complete anarchists, just radical decentralists.

UPDATE: In the comments, Mark LeBar poses a strong challenge to my view that really existing local governments enjoy a moral right to rule. In response, I concede that the right to rule is somewhat impeached by the lack of express consent, but maintain that what matters most is the contents of residents’ “choice sets,” i.e., their real ability to withhold or withdraw consent by moving. In practice, what an impeached right to rule may mean is that there are certain, very fundamental rights that citizens cannot give up except through express consent under conditions of a highly favorable choice set, while there are other rights that may reasonably be considered to be alienated simply through residence and absence of explicit dissent. Local governments would then enjoy a right to rule in the latter areas, but not the former. Levying low taxes might fit the latter category, while imprisoning private drug users might fit the former. This is admittedly a bit arbitrary & not totally satisfactory. Nevertheless, I don’t think I need the strong claim that local governments enjoy any kind of right to rule in order to make the weaker claim that limitations on freedom enacted by local governments are inherently less oppressive (if not totally non-oppressive) than the same limitations enacted by higher-level governments.

22 thoughts on “Liberty as Decentralization

  1. I predict this will stir up a hornet’s nest.

    I wouldn’t have as much of a problem with zoning if local communities had more authentic power to create different communities – such that there were a lot of true options for living (as you may know, I’ve been working on a post on this issue but haven’t finished yet). But in the current situation, doesn’t zoning just make things worse?

  2. Well, the way zoning works now is generally not great and not something I would defend. It’s a kind of central planning of land uses. I was just using it as a general term for any kind of policy regime that regulates the locations where certain types of businesses are allowed to operate. Having an ordinance that says, “No brothels in town limits” is a much lighter-touch regulation than having a zoning board that can approve or deny every single development project based on an arcane and rather arbitrary list of requirements.

  3. Jason, I see the point that mobility is at least suggestive of some sort of consent. Moreover, I’m inclined to think that it’s right that it does: it’s like “voting with feet.” But I’m not sure it delivers the results you suggest. We live in a world in which our choices are entirely about zones of such claims to exclusive legitimate coercive power. (This has to be cashed out carefully, of course, to recognize that in a federal system there is overlap of jurisdictions; still, within jurisdictions the claim is to monopoly authority.) Now, the question is, what is it that gives these claimants that title to monopoly authority?

    I don’t think consent gets you there. Suppose I want to move to Cleveland and buy a house from Sorens. How is it that my exchange with Sorens constitutes consent to the monopoly coercive authority of Cleveland? I can see two possibilities here. One is that it is explicit: Sorens writes it into his sale contract (as in the sort of encumbrance that developers use to bind buyers and their successors to CCA’s in condo associations). If I sign a contract, that’s about as clear as consent gets, and you’re home free. If I don’t like Cleveland, and Sorens imposes that condition on me, then it’s up to me to reject the deal. I don’t get to pick and choose terms of this contract any more than I do any other contract.

    But suppose Sorens doesn’t do this. What’s the basis for the claim that I am implicitly or tacitly consenting to Cleveland’s authority? That assumption is valid only if we think Cleveland is entitled to burden Soren’s property with that implicit commitment. And what’s the basis for assuming that? That’s the very thing we’re trying to establish. And of course that also holds if I am only renting from Sorens.

    So I think only if you can establish the legitimacy of that burden, even in tacit or implicit forms, on property, does your argument work. But those claims usually depend on monopoly coercive authority over a territory to work. You can pick your direction of argument, but you can’t have it work both ways.

  4. Mark – I agree that the core issue here is whether and how Cleveland has the right to encumber my property with the dual obligations to respect the coercive monopoly authority of Cleveland and to pass on the first obligation to anyone to whom the property is later transferred. I would argue that explicit consent is not an attractive criterion for determining this right, not just because it might prove too little, but because it could prove too much.

    Suppose that instead of Cleveland, we’re talking about the United States. And suppose that the United States actually was founded on explicit, unanimous consent 200-odd years ago, and that properties were encumbered with contracts in just the right way as to convey political obligations to the next generation. Would it be the case that we, living today and having apparently voluntarily undertaken obligations of obedience to the U.S. government, are morally bound to respect those commitments? Would the U.S. government concomitantly enjoy a moral right to levy more or less whatever taxes it wished on its apparently consenting citizens, to ban drugs, etc.?

    That doesn’t look much like “real freedom” to me. It would be very difficult to reject the contract & move out of the United States. While at the age of majority (say) I would have signed a contract agreeing to be bound by the laws of the U.S., I don’t think I could consider that to have been a real choice. It seems like an unconscionable contract.

    I don’t want to give any quarter to “welfarist” notions of liberalism, but it does seem to me that on the very fundamental issue of one’s lifetime political obligations and allegiance, the contents of my choice set (the opportunity costs of withdrawing or withholding consent) matter a lot, not just the formality of articulating consent in a certain way.

    In the same way, when you move to Cleveland, your choice set is fairly robust, though obviously the opportunity costs of leaving Cleveland are still going to be nonzero. So there again, having expressly consented to Cleveland’s authority doesn’t seem to matter a whole lot to the moral equation.

    Now, I don’t want to press this argument too far, because I do think real consent matters in most areas of life, and I would concede that Cleveland’s “right to rule” is impaired – just not vitiated – by not having a way to establish legitimate encumbrances on people’s property. So I probably need to dial back some of my policy conclusions here accordingly.

    1. Jason, that’s really a provocative thought experiment you have there. It seems to me worth thinking about a bit to try to extract what lessons we can from it. Here are my initial thoughts:

      1. Does it matter that, if you think the contract between you and the US government is unconscionable, you also seem to be committed to the unconscionability of the contract between you and the seller, conveying the property to you in the first place? If it does, what that suggests is that these covenants (binding successor owners to the US government) would have been set aside right away, not because of any story about the government (or perhaps, only indirectly so), but because the contract between you and the seller was unconscionable. (I don’t know what follows; whether that makes the contract void, or what. An interesting further counterfactual to consider.)

      If that’s right, then the Lockean argument that when you join a political society your lands ineluctably go with you, cannot be sound. I really don’t have any beef with that conclusion; there’s a lot of specious argumentation there for conclusions that Locke really needs to go through, but lacks good arguments for.

      2. I’m resistant to the idea that it is the composition of your choice set that does the normative work here, for just the reasons you are (if I read you rightly) a little ginger yourself about insisting on them. The way I want to advocate thinking about those cases instead is to think about the causes or explanations for why the choice sets are what they are. In cases of naked coercion, the story comes out just right: if someone jukes your choice set to get you to submit to his will, whatever you do doesn’t constitute consent. I do think there is something about the intentions of those to shape others’ choice sets in this way that is problematic; perhaps we get something like that effect when we consider the landowners of all the territorial US unanimously agreeing to bind their successors to the authority of the US government. What could explain that? I’m not sure. It’s a fantasy situation, but the fact that we could imagine it doesn’t mean that we can imagine it happening without the moral hijinx that we know undermine consensual choice. I’d say it isn’t the extension of the choice set, but the reason it comes to have the extension it does, that is where the moral work is going on (for good or ill).

      For just that reason, I don’t think the options available when I move to Cleveland matter so much as the explanation why those options are open to me (or not).

      Maybe the thought is this: when you sell property, you transfer a bundle of obligations and entitlements to the buyer. It might be that we just cannot imagine, morally, that a commitment to the authority of some monopoly coercive institution is plausibly among that bundle. Indeed, it’s hard to see how that could serve any useful purpose in property or contract. But that really undermines the claim that municipalities (or other distributed smaller governances) have legitimate claim to respect to that monopoly status. That, it seems to me, is really the pressure point.

      Thanks for the thought experiment!

  5. I think Jason may have gone into the wrong area of political science – though he’s frighteningly talented in that area too!

    1. According to my colleagues at Buffalo, political philosophy isn’t political science! And I’m actually inclined to agree; one wouldn’t want to sully the dignity of philosophy by subordinating it to a branch of an ill-defined social science. 😉

      1. Gotta love people who think the study of politics must be a science alone or who strictly define what they mean by science. So, given that they think ps is a real science, have they discovered a single scientific law of politics yet?

      2. Median voter theorem? I don’t know – even that doesn’t hold with quite the universality as, say, the law of supply and demand.

        I do think p.s. is a real science btw. But I have a broad conception of “real science.”

      3. If we are going to look to the hard sciences, I think we should model ourselves more on biology or meteorology than physics. Not as much F=ma which we’ll never get in the soft sciences. The most law-like observable is probably democracies not going to war with other democracies — but we have crappy theory to explain why (which might be because there is correlation without causation). And even that one has exceptions and other problems.

  6. Does it matter that, if you think the contract between you and the US government is unconscionable, you also seem to be committed to the unconscionability of the contract between you and the seller, conveying the property to you in the first place?

    It seems to me that the political obligation clause of the contract would be unconscionable, but the rest of it (including other kinds of deed restrictions) might not be. Why not? Well, it would have to be because in our scenario everyone includes these political obligation clauses in their conveyance contracts. It’s a kind of collusion that leaves no choice to the young dissenter. (Or even the old one. Even if you’ve previously consented to be governed by a state, you should be able to withdraw consent without paying extreme costs such as those associated with long-distance migration. Otherwise, citizenship starts to look a lot like slavery.)

    It’s a fantasy situation, but the fact that we could imagine it doesn’t mean that we can imagine it happening without the moral hijinx that we know undermine consensual choice. I’d say it isn’t the extension of the choice set, but the reason it comes to have the extension it does, that is where the moral work is going on (for good or ill).

    Well, what about the case of feudalism? There the moral hijinx came in the initial expropriation that established the system. But from then on, in some parts of Europe (England for instance), the land was passed down through voluntary bequest. But the large-scale sovereignties that resulted didn’t break down for a very long time, because the lordly class was able to use its fief rights to extract rents from the peasantry. So there’s a case where the moral wrongness of the initial expropriation doesn’t dissipate over a small number of generations, unlike, perhaps, the expropriation of North America from the natives by white family farmers (or from certain native tribes by other native tribes!). But why doesn’t the moral wrongness so dissipate? In both types of cases, voluntary bequest became the norm after the initial expropriation. It seems to me that the strictures feudalism placed on the choice sets of peasants made the system irredeemably wrong, while the small-scale pattern of landholdings in North America allowed a more generous choice set to its residents.

    Maybe the thought is this: when you sell property, you transfer a bundle of obligations and entitlements to the buyer. It might be that we just cannot imagine, morally, that a commitment to the authority of some monopoly coercive institution is plausibly among that bundle. Indeed, it’s hard to see how that could serve any useful purpose in property or contract. But that really undermines the claim that municipalities (or other distributed smaller governances) have legitimate claim to respect to that monopoly status. That, it seems to me, is really the pressure point.

    Hm… What about community associations then? They began because of the externalities involved in homeownership – if some residents didn’t maintain their properties well, that would reduce the values of other properties nearby. Most homeowners wouldn’t want to live near an adult video store, etc. For some people there’s a use for deed restrictions that exclude these things. And because potential threats to property values and quality of life aren’t always predictable, it might make sense for them to set up a governance body that could make decisions from time to time about what’s allowed and what isn’t. If their rulings can be enforced through the courts, that looks like a type of coercive monopoly institution established by contract – and if these are never legitimate, then some people may not make a certain type of mutually beneficial exchange.

    1. This is beginning to be one of those threads that is interesting in a variety of directions. I’ll see if I can follow your lead in keeping them corralled.

      1. I’m not sure that it is the fact that, if everybody does this (add these covenants to be subject to the government), then there is a problem for subsequent buyers. Normally, the restrictive covenants we respect have something to do with the disposition of the property itself, constraining what may be done with it. That’s not the nature of this covenant. It would in this way be analogous to a covenant stating that the buyer agrees to become a Methodist, say. We can respect contracts to do such things, of course, but there seems to me to be something fishy about tying ownership of property to such contracts. I admit I don’t have handy a theory of why that might be, which is why this line of thought is really interesting. But I think it is something about the nature of the contract itself, as a one-off, that is problematic, not just a consequence of universalization. (I have very little confidence in universalization tests to do significant normative work.)

      2. You very likely know much more about feudalism than I do. But I suspect that a good part of the explanation why the system didn’t break down was that the rights to either property or contract were pretty constrained. Certainly there was nothing like legal equality between lords and serfs, or robust protection of anything like rights to life, liberty, and property that emerged later. I don’t know the details, so I’m going to be short on argument here, but it wouldn’t surprise me that rights to contract and property have to be understood systemically, rather than as one-offs.

      3. HOAs are I think the interesting case. They begin typically within a structure of legal authority, with acquisition of property by a developer, who then parcels them out, imposing the CCRs on buyers. But again their reach is limited to the use of property. You could not, I suppose, have a CCR that established a body to determine where you could permissibly work, or where you could move on leaving. But I think the right way to think about such things simply is as contracts, enforceable (as with all contracts) by the courts.

      My way of thinking about these things, in other words, is to think about the specific obligation to submit oneself to the authority of a government, for purposes which may or may not be related to the use and maintenance of the property itself, as something that is problematic in these contracts. It’s an interesting question why that might be, however. I’d like to think more about it.

      1. Mark – I see the point you’re making now. Points 1 and 3 seem to be allied to the notion that there are some rights that are inalienable, that you may not delegate to anyone else even voluntarily. Certainly freedom of thought seems to be one of those rights, partly because it might just be physically impossible to follow through on maintaining certain beliefs just because one has promised to. If I come to believe not-A, how can I force myself to believe A? Also, general freedom of action might be one of those rights. It might be the case that I can’t alienate to you the right to make all my decisions for me. And that might be what governments that claim plenary power are trying to do – they are claiming the right to legislate essentially whatever they wish to legislate, in principle including requirements of specific performance of any nature. Criminal mala prohibita are examples – can I legitimately consent to allow someone else to decide to jail me if I do something morally innocent but contrary to her wishes? Perhaps not – if I can’t consent to be a slave, then I don’t see how I could consent to allowing someone else to decide whether or not to constrain my general liberty of action. If that’s right, then contracts establishing governments with plenary power are void, even if expressly consented to. I guess I’m saying I see the force of your argument!

        On point 2, I’m no expert on feudalism either, but certainly it’s the case that serfs lacked legal equality with lords, who also had the power to conscript them for military service, etc. But yet another example of how it is difficult for liberty to upset patterns of gross inequality in landholdings might be the parts of Latin America with large indigenous populations, where present-day landholdings are strongly determined by the conquest. Obviously, most of Latin America has lacked much economic liberty as well, so it’s tough to tease out the relevant counterfactual.

  7. Jason, you have the idea exactly. Something like the same principle prohibiting me from selling myself into slavery is what I’m thinking. But that’s too easy. The question is: what exactly is the story about why this principle would be at work in a property contract? And why think we could or should respect this restriction? I’m hoping some moral theory might help out there. That’s on the medium-range agenda for me. I hadn’t thought about it before now, but now that you’ve raised the issue, I want to think about it more.

    And I agree with you about the difficulties of these marginally-legal states. Your point about Latin America reminds me of the argument that de facto property rights there and elsewhere that do not acquire de jure status prevent the poorest of the poor from being able to begin to leverage their ways out of acute poverty. The buddha is in the details, obviously.

  8. May be I’ve not followed very well your thought, Jason, but in my opinion moving is not a solution, is a desperate action.

    While decentralization can lead to a better performing government because the tightest control by the citizens, it is far from to be a solution for the liberty alleging that unsatisfied people can move to an other municipality.

    Now, suppose I live in a town, where the government rules become unaccettable for me. This is happened in recent years. Supposedly I’m not alone, many other are unsatisfied and in your model all we would need to move in the neighboring Town (where plenty of liberties are in place).
    However in such town land and houses are very expensive, because many people wants to move there.
    By contrast, in the town where I live property prices are falling down. So I, and many others like me, will be de facto denied to move because our capital invested in that town, buying home, and creating some business, now is worthless.
    This is happened because the government we agreed to set rules become unfair. The guys who were appointed to drive the govern made laws to enhance their own personal interest and power, overwhelming the interest of the whole citizens, and demaging and absorbing their capital.

    I think that a real “dynamic-social-contract” is required to justify any government rule, and more, each government rule should be agreed by the vote of the citizen bound by such a contract, in a true direct democracy environment.
    The story I supposed above (for instance, a true story in certain places of the world) would never been happened if the citizens had the chance to vote for each law, and even suggesting abrogation or to vote for a law directly designed by the citizens (such as in committee of proponents), as it would be possible in a true direct democracy.

  9. Claudio – I think what your situation points up is the imperfection of any institution, even decentralization, in a world of scarcity (a small number of local jurisdictions and limited territory). Decentralization doesn’t mean perfect liberty, but it is better than the alternative. Imagine that your corrupt town were the only option, and no one were able to get out. Surely that would be worse! Of course, the value of decentralization doesn’t mean that we shouldn’t also be concerned about other reforms that can make the places where we already live better. Allowing citizen referendums on enacted legislation seems like one such reform.

    1. “Imagine that your corrupt town were the only option, and no one were able to get out.”

      But from this point of view, why not talking about multiplying the number of states or even of independent communities in the world, instead of decentralization?

      And more, why big governments would concede decentralization (we’re talking about true decentralization of course), when this would mean loosing power and money?

      Sure, for the purpouse of your discussion, the “theory” of decentralization is a possible solution for more freedom. But this would apply to new constituting entities only.
      When this will ever happen?
      And if it will happen, at that point why not focussing to the best solution which is the full direct democracy (and the spending agreement). By the way, a full direct democracy may work only in a decentralized contest, so talking about the first imply to involve also the second.

      1. why not talking about multiplying the number of states or even of independent communities in the world, instead of decentralization?

        Isn’t multiplying the number of entities inherent to decentralization? Let’s say that the Canadian government decides that drug policy will now be made by the 10 provinces rather than by the federal government. Now, there are 10 different policies to choose from, not just one.

        why big governments would concede decentralization (we’re talking about true decentralization of course), when this would mean loosing power and money?

        That’s a good political question. I think it can happen if enough people support decentralization. For instance, in the United States, if it became widely accepted across the political spectrum that it is better to have the states handle economic regulation whenever feasible, instead of the federal government, then the Supreme Court would feel much more willing to strike down centralizing acts of Congress, and Congress might be less willing to pass these acts in the first place. If we can show liberals that having a one-size-fits-all health care policy opens the door to a one-size-fits-all drug policy (and vice versa for conservatives), then maybe we can develop a national consensus in favor of robust federalism.

        And if it will happen, at that point why not focussing to the best solution which is the full direct democracy (and the spending agreement). By the way, a full direct democracy may work only in a decentralized contest, so talking about the first imply to involve also the second.

        I’m wary of direct democracy, if it means allowing citizens to propose laws that are voted on directly, a system known in the U.S. as the “popular initiative.” Evidence shows that the initiative in American states often results in bad policies, because citizens like to vote themselves benefits without paying for them, and to override the rights of minorities when the majority benefits.

  10. Evidence shows that the initiative in American states often results in bad policies, because citizens like to vote themselves benefits without paying for them

    How can ever be possible? Are they irresponsible?
    Please, may you provide a link or a reference where such a evidence is documented?

    I wish to remark that direct democracy is not only popular initiative, but it should also be linked to the participative budgeting (may be I haven’t used a clear terminology in my previous comment).

    and to override the rights of minorities when the majority benefits.

    This is a good point, on which I should think about.

    However there are other evidence that participative budgeting (a sort of direct democracy on public expenses) had released good results, such as in Porto Alegre, R.G.d.S., Brazil: http://www.unesco.org/most/southa13.htm
    And Switzerland is an other place where popular initiative is felt very positively, though I had some insight info that pointed me out some pitfalls that limits the full effectiveness of the direct democracy in that country.

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