Cultural diversity and liberal society: a case for reprivatizing culture.

• Author: Ratnapala, Suri

Cultural diversity is an enduring fact of social life. Cultural differences exist within nations, and nations share a planet that is home to many different cultures. Even in the most homogenous of countries, where people recognize common ethnicity, speak the same language, and for the most part share one faith, there are subcultures shaped by conditions such as cast, occupation, wealth, and geography. In many countries, different ethnic, linguistic, and religious communities interact while seeking to retain their group identifies. In the history of humankind, it is difficult to find a social system more tolerant of diversity than liberal society. Religious and ethnic minorities live under the protection of liberal institutions, and even groups that bitterly oppose liberalism flourish within liberal democracies so long as they observe the laws of the land. Yet not all cultures are compatible with liberalism in the classical sense, and the failure to recognize this fact may imperil liberal society. The challenge for liberal society is to maintain the greatest degree of freedom compatible with its own existence. In this article, I consider the classical liberal responses to certain key questions that cultural diversity poses. Note that I use the term liberal in its classical sense, not in the modern North American sense.

Cultural diversity raises five issues for liberal society. The first concerns the extent to which liberal society can or should tolerate the illiberal norms and practices of cultural communities within it. How can liberal society protect its institutional flame-work without harming itself?. The second concerns cultural groups' claims for state aid in the preservation of their cultures. I consider here the politics and philosophy of multiculturalism. The third concerns cultural groups' claims for political self-determination leading to various degrees of devolution of power, from federal arrangements to complete separation. This kind of claim is most plausible when an ethnic, linguistic, or religious community occupies a historical homeland that has been forcibly absorbed into a larger state. The fourth concerns immigration into liberal societies. Will large-scale immigration of persons from culturally different parts of the world weaken the institutions of liberal society? If so, what is the appropriate liberal response? The fifth concerns the defense of liberal society against its external enemies. Samuel Huntington's thesis that in the post-Cold War era the major sources of conflict are not ideological but cultural, though flawed by its attempt to separate culture from ideology, nevertheless highlights the cultural element in the hostility that liberal society evokes (1996, 28). This last issue raises a plethora of questions that cannot be given the critical attention they merit within the limits of this article and hence must be left for another day.

In the following section, I explain the sense in which liberal society is understood in this article. I identify the fundamental value of liberal society as the freedom of choice. In the remainder of the article, I discuss in more depth the appropriate liberal responses to the first four issues raised. This article is not an attempt to resolve all these issues, but rather a discussion of the liberal principles relevant to their resolution.

Liberal Society

The liberal society of this inquiry is an ideal type that does not exist. Most societies that are considered liberal fall well short of this ideal. So why base this discussion on the nonexistent instead of the real? A useful way of improving our condition is to posit an ideal model and see how it works in relation to the problems we wish to solve. If the model is seen to work well, it will provide guidance to action, and if it is seen to fail, we still benefit from knowing why.

Two ideal models of liberal society compete for our attention. One is the natural order of the anarchist libertarian. In the natural order, all assets (including roads, rivers, and forests) are privately owned, and individuals deal freely with each other to satisfy their needs. No person or authority has coercive power over another, and necessary help in the protection of person and property from violence is secured by contract. There is no state and hence no state lands or state welfare (Hoppe 2002). This model, despite its great value as a description of the ideal condition of liberty, must be rejected not only for the pragmatic reason that very few people live in such conditions, but also because such a society is inherently unstable except perhaps on a very small scale. Among larger populations, as Nozick demonstrates, a minimal state can arise from anarchy, even though no one intended this outcome or tried to bring it about, by a process that need not violate anyone's rights (1974, xi). If it can arise, then it will arise in some societies.

The second and preferred model is that of a society that enlists the protection of a minimal state. This model is preferred for two reasons. First, it is closer than libertarian anarchy to the historical experience of societies that have aspired to be liberal, so we have greater familiarity with it. Second, it acknowledges the need for coercion to preserve the freedoms that liberal society values. As Ludwig von Mises observed, "The liberal understands quite clearly that without resort to compulsion, the existence of society would be endangered and that behind the rules of conduct whose observance is necessary to assure peaceful human cooperation must stand the threat of force if the whole edifice of society is not to be continually at the mercy of any one of its members.... This is the function that the liberal doctrine assigns to the state: the protection of property, liberty, and peace" ([1927] 1985, 37). In John Locke's theory, the state is born out of the need for protection from the insecurity that results from every man's being the judge and enforcer of his own natural rights ([1689] 1960, 368). Individuals escape this state of nature by creating a supreme authority under a trust or social contract that obligates the authority to protect individuals' life, liberty, and estate. Nozick shows that even without a Lockean social contract, an ultraminimal state can arise through free contracting for protection services (resulting in a dominant protective association) and that such an ultraminimal state may become a minimal state by the acquisition of a de facto monopoly of law-enforcement power and its consequent moral obligations to offer protection to nonmembers within the relevant territory.

The minimal state is the condition in which a dominant protective association has an effective monopoly of the power to protect its members from having their natural rights violated by members and outsiders within a given territory. The minimal state will establish the physical infrastructure to perform all these functions--courts, bailiffs, sheriff's, police forces, and even defense forces to protect members from foreign invasion. There will be no state land other than land acquired lawfully from members. The minimal state has no claim to unowned land and cannot gain ownership by occupation except to the extent required to perform its minimal functions. It will not have the power by its own will to create, extinguish, or modify its members' rights.

This model requires two further clarifications. The first relates to the natural rights of those who have no capacity to invoke the law for their own protection, such as children. Under a protection contract, the buyers presumably gain protection of their rights and of their dependents' rights. Would a protective association that is a minimal state have a duty to protect a child against cruel treatment by a parent or other custodian? What would be the basis of such a duty? Nozick does not answer the question directly, although he argues that children possess rights in relation to parents (1974, 38-39). A protective association's obligation to enforce a child's right against custodial abuse may arise in one of two ways. First, parents may contract on behalf of their children to secure their protection against all, including themselves. This provision is not fanciful because a parent can be expected to secure protection of his or her child in the event of the loss of custody to a separating spouse. Second, assuming that members would be loathe to live in a society that allows cruelty to children, protective associations that offer to protect children's rights may be preferred over those that do not. The association can give this protection without violating anyone's rights because no person has the right to violate the rights of defenseless individuals. It is also a nonredistributive service because we assume that members freely contract for this service. This function will not produce the kind of extensive criminal law that marks the modern (nonminimal) state. The state will be limited to undertaking, on behalf of a limited class of persons who are incapable of understanding their rights or of seeking legal recourse, the prosecution of wrongs known in classical jurisprudence as mala in se--self-evidently wrongful acts that harm life, liberty, and property. It will not have the power (currently assumed by the modern state) to create offenses at will (mala prohibita). It is worth noting that the modern state perpetrates its most outrageous assaults on liberty and property by criminalizing behavior that is perfectly lawful in the natural order of liberty. (For an illuminating economic history of criminal law, see Benson 1990.) The minimal state will have no such competence.

The second clarification is dictated by the dynamic nature of society. In a world in equilibrium, no need for legal change exists. The real world, though, is one of disequilibrium and evolution. In such a world, we still expect the basic rights concerning life...