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Libertarian Law by Democratic Means: Utilitarianism and the Demythologization of Authority

I have previously explained how for Ludwig von Mises, democracy is necessary for the libertarian society because of its usefulness in achieving and maintaining social peace, insofar as social peace is a prerequisite for economic and civil liberty.

This time I want to explain an idea that is implicit in Mises’s subjectivist philosophy and that leads him to defend democracy, understood as the consent of the governed, but which may go unnoticed because it is dispersed throughout his work: a “philosophy of consent.” Mises’s philosophy of consent is not a “value judgment,” but a “factual judgment”—a description of the functions—of human action in the realm of norms, authorities, and government.

Demythologization of Social Conventions

Mises explains that free-market liberalism, or libertarianism, is part of the Enlightenment movement and is its most faithful successor. Between the seventeenth and eighteenth centuries, this movement intellectually freed individuals from their obedience to authority based on mere tradition. Through the use of reasoning, they were freed from their philosophical chains forged with supposedly objective and eternal moral values—that demanded obedience for the benefit of kings, clergy, noble landlords, guilds, and other authorities. Mises described this process as follows:

The social order created by the philosophy of the Enlightenment assigned supremacy to the common man. In his capacity as a consumer, the “regular fellow” was called upon to determine ultimately what should be produced, in what quantity and of what quality, by whom, how, and where; in his capacity as a voter, he was sovereign in directing his nation’s policies.

However, the first generation of enlightened-liberals often confronted essentialist authoritarianism that appeal to an “essentialist” individualism—see “natural rights,” “absolute justice,” and other ethical fallacies of appealing to “nature”—something that in Misesian logic meant freeing oneself from some myths and replacing them with other myths. The old Enlightenment was then perfected in utilitarianism, with David Hume as a close precursor, and then restated by Mises, freeing itself from the myths of essentialism. Mises explained the value of utilitarianism as follows:

It is useless to emphasize that nature is the ultimate arbiter of what is right and what is wrong. Nature does not clearly reveal its plans and intentions to man. Thus the appeal to natural law does not settle the dispute. It merely substitutes dissent concerning the interpretation of natural law for dissenting judgments of value. Utilitarianism, on the other hand, does not deal at all with ultimate ends and judgments of value. It invariably refers only to means.

Utilitarianism overcame essentialist individualism with an “existentialist,” or subjectivist, individualism. This subjectivist individualism postulates that we can know nothing about the objective essences or moral values or purposes to which we are subject. We only know that there are individuals who construct and dynamically change the values of what they call “good” and “bad,” which in reality only means “I like” and “I don’t like.” As Mises explains:

All judgments of value are personal and subjective. There are no judgments of value other than those asserting I prefer, I like better, I wish. It cannot be denied by anybody that various individuals disagree widely with regard to their feelings, tastes, and preferences and that even the same individuals at various instants of their lives value the same things in a different way. In view of this fact it is useless to talk about absolute and eternal values. This does not mean that every individual draws his valuations from his own mind. The immense majority of people take their valuations from the social environment into which they were born, in which they grew up, that moulded their personality and educated them. Few men have the power to deviate from the traditional set of values and to establish their own scale of what appears to be better and what appears to be worse.

With objective values—suprasocial rights of essentialist individualism—eliminated as an impossibility, social norms become human conventions meant to facilitate cooperation and instruments (more useful or less useful) that serve to deal with the problems arising from interindividual coexistence. Mises sees essentialist doctrines as flawed because justice has no relevance prior to the formation of society:

All these ethical doctrines have failed to comprehend that there is, outside of social bonds and preceding, temporally or logically, the existence of society, nothing to which the epithet “just” can be given. A hypothetical isolated individual must under the pressure of biological competition look upon all other people as deadly foes. His only concern is to preserve his own life and health; he does not need to heed the consequences which his own survival has for other men; he has no use for justice. His only solicitudes are hygiene and defense. But in social cooperation with other men the individual is forced to abstain from conduct incompatible with life in society. Only then does the distinction between what is just and what is unjust emerge. It invariably refers to interhuman social relations.

All Authorities as Social Conventions

People create or accept conventions—past and present—because they think they serve their own interest, whatever they believe it to be. In Mises’s philosophy of consent there are no natural social norms or natural authorities, only conventional ones. While “the concept of absolute and eternal values is an indispensable element” of totalitarian authority, he says,

an ethical doctrine that does not take into full account the effects of action is mere fancy. Utilitarianism does not teach that people should strive only after sensuous pleasure (though it recognizes that most or at least many people behave in this way). Neither does it indulge in judgments of value. By its recognition that social cooperation is for the immense majority a means for attaining all their ends, it dispels the notion that society, the state, the nation, or any other social entity is an ultimate end and that individual men are the slaves of that entity. It rejects the philosophies of universalism, collectivism, and totalitarianism. In this sense it is meaningful to call utilitarianism a philosophy of individualism.

Consent, therefore, is not a suprasocial right to be claimed before a metaphysical court but an inevitable fact of existence—the logic of means and ends. This reasoning leads to a demythologization of the the social order, which ceases to be “sacred” and in thus becomes subject to scrutiny. Mises sees this demystification as decidedly good:

In such matters, no less than in all our other mundane affairs, mysticism is only an evil. Our powers of comprehension are very limited. We cannot hope ever to discover the ultimate and most profound secrets of the universe. But the fact that we can never fathom the meaning and purpose of our existence does not hinder us from taking precautions to avoid contagious diseases or from making use of the appropriate means to feed and clothe ourselves, nor should it deter us from organizing society in such a way that the earthly goals for which we strive can be most effectually attained. Even the state and the legal system, the government and its administration are not too lofty, too good, too grand, for us to bring them within the range of rational deliberation. Problems of social policy are problems of social technology, and their solution must be sought in the same ways and by the same means that are at our disposal in the solution of other technical problems: by rational reflection and by examination of the given conditions.

Mises arrives at antiauthoritarianism via demythologization, which should not be understood here as another essentialism but a rejection of all belief that does not recognize that all norms and authority are the result of dynamic social convention originating in consent.

Conclusion

Mises’s philosophy of consent is a Promethean message to all mankind that shows us that without consent, norms and authority—including government—are sustained by nothing and have no intrinsic value.

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