Ed Feser responded to my post below in the comments a few days back, and I promised a reply, but didn’t get around to it until today. Here it is, in case anyone’s still interested. Feser writes:

Re: the remark you find “truly weird,” you have simply ignored the context in which it was made, which was a discussion about whether fusionists of the Meyer sort are right to think that libertarianism is, not only compatible with, but positively conducive to and maybe even required for, a society that fosters moral virtue (as traditional moralists would understand it). In other words, the question I was addressing was whether there is, as some fusionists claim, a natural moral and philosophical harmony between libertarian politics and moral conservatism, not merely grounds for a contingent political alliance. And seen in this light, it is surely relevant to ask whether this or that version of libertarianism is really compatible with moral conservatism.

By the standards he applies in his piece libertarianism itself is a “contingent political alliance,” because Kantian, utilitarian, existentialist, natural law, Randian, contractualist (and so on, and so on) moral views all conflict to various degrees. Obviously, it wouldn’t be worth talking about fusionism if all we were talking about was ad hoc collaboration on some handful of issues where there was contingent agreement. On the other hand, insofar as fusionism purports to serve as a point of (sorry Ed, I know how you hate Rawls) overlapping consensus for two types of views that nevertheless remain distinct views, and indeed already contain the kind of internal variety I’ve noted above, fundamental moral theory strikes me as a singularly unpromising place to start. Feser is effectively demanding that the hybrid exhibit higher-level conscilience than we find in the separate views. The principles it actually makes sense to examine are the medium-generality ones like “government action crowds out parallel private efforts, which are often more effective” or “people fail to develop the discipline autonomy demands if they’re always shielded from the consequences of their actions.”

Re: the consigning of traditionalist views to a cultural ghetto, what I have in mind — as, again, should be obvious from the context — is the attitude evinced by some libertarians (some but not all, as I acknowledged in my article) that free markets, limited government, and the other elements of libertarian political philosophy naturally go hand in hand with a more relaxed attitude about traditional morality, and in particular that capitalism is good because it inevitably makes us more cosmopolitan, socially tolerant, skeptical about authority, etc. If this view is correct, then obviously a traditionalist would have reason to worry about capitalism. And the point is not to determine whether this view is in fact correct, or whether it would be good or bad if it were, but rather to illustrate that one common argument for fusionism (in the sense of the belief that there is a deep philosophical harmony between libertarian political philosophy and conservative moralism) is too facile.

Let’s separate two very different issues here. One is the question of how (some) libertarians personally feel about the morality or propriety of various behaviors. The other is whether the substantive cultural effects of a libertarian policy program should be welcomed by traditionalists. Feser regards it as “obvious” that when he spends paragraph after paragraph discussing the former, he really means the latter. But the two come apart pretty readily. I guarantee that nothing Britney Spears has ever done could provoke more moral revulsion in Feser than I feel at the prospect of a fundamentalist parent pulling a bright, malleable child out of a decent public school in favor of one where he’ll be made to recite that the Earth is 6,000 years old and fossils a trick of the devil. But my preferred education policy nevertheless makes this more likely. More generally, as I’ve agreed, a “fusionist” doctrine or set of principles worth the name would be more than a hodgepodge of concrete policy proposals. Yet to know which kinds of “harmony” between the two views are relevant, which forms of overlap are promising and which differences are problematic, we do have to look at least to the broad possibility horizons of near-term political debate. It may be an effect of “capitalism” in the broadest sense that we’re becoming “more cosmopolitan, socially tolerant, skeptical about authority, etc.” Libertarians and conservatives may have divergent reactions to that fact. But since abandoning capitalism in that broadest sense is, mercifully, no longer on the table, this seems like the sort of thing to be taken as a background fact that need not be covered by the fusionist overlapping consensus.

Feser turns next to the idea of unregulated markets as generating conditions hostile to the cultivation of virtue:

My point is that [the fusionist argument] is superficial insofar as it fails to address the question of whether market trends might in some cases positively undermine virtue. So, suppose a fusionist thinks we ought to confine sex to marriage, but suppose also that deregulation of the airwaves, easily accessible pornography, etc. entail as a matter of empirical fact a society in which relatively few people will choose to confine sex to marriage. Then the fusionist has a problem on his hands if his main case for fusionism is that the market fosters virtue. The point, to be clear, isn’t to argue for this or that regulation, but, again, just to criticize a certain superficial argument for fusionism.

Granted, the argument as Feser summarizes it is superficial, since what he presents is just a bald assertion. On the other hand, it’s a little odd to make a blindingly obvious observation and claim it exposes the “superficiality” of what strikes me as a rather deeper point (once you actually reconstruct the argument) about the structural connection between choice and virtue. I somehow doubt that it just hadn’t occurred to the early fusionists that a lot of the cultural output of unregulated markets would be vulgar or otherwise not conducive to their preferred conception of virtue. (Of course, the plenitude of an open culture market also creates niches that allow people who don’t cotton to the mainstream culture to create a vibrant alternative media market for themselves and their children.)

The reason the point about democratic accountability from the original point is relevant, and the reason Feser can’t actually detach his critique from consideration of “this or that regulation” is that whether the objection hits home depends on what the points of comparison are. If someone argues that markets generally promote efficiency, it is not a valid objection to point out some instances of market failure, then note that you have a private fantasyland in which all-wise unicorns plan production better. The case for markets is not “superficial” any time markets fail to operate like chalkboard models.

Now, if you don’t want to concede that choice is an important constitutive component of virtue and the formation of virtuous characters, then you can just use the scenario in which you’re the philosopher king as the point of comparison. If, like Feser, you do concede this, then you don’t get to point out how markets sometimes work against virtue as though it exploded the fusionist argument without telling some kind of plausible story about how we democratically do better, when the most serious problem is supposed to be with the stuff that’s most wildly popular.

OK, on to Hayek:

Once again ignoring the context, you fail to note that I say he rejected the “libertarian” label only to go on immediately to show that there is nevertheless a clear sense in which he was enough of a “libertarian” to make his position a plausible way of grounding fusionism [….] In the Companion, I explicitly acknowledge the reasons you cite for why Hayek rejected the “libertarian” label (see p. 11, note 7) (though I also note there that by itself, the fact that his rejection was based on the artificiality of the term hardly shows that Hayek’s position really was “libertarian” in the imprecise popular sense of entailing a rejection of moral conservatism).

Well, full marks for intellectual honesty in the Companion, then. In the context of the essay, I’ll stick with my earlier position that the “rejected both labels” language is misleading, given that in context Feser seems to be angling to establish Hayek’s position as equidistant from the two poles, which is only defensible if you’re taking an anarchist position as representative of the libertarian pole.

Re: the passage you quote from CL, I might well ask whether you’ve read it yourself, since for my part I cannot see anything there that “_entails_ the decriminalization of so-called ‘victimless crimes’ like drug use and prostitution.” You might think this is hair-splitting, but if so that would only be more evidence of your failure to interpret my remarks in context. Most people — including most libertarians — think of libertarianism as a view according to which such practices must be decriminalized _as a matter of justice_ (a la Nozick). That, specifically, is the sort of claim I was saying has no grounds in Hayek, and the passage you quote does not show otherwise.

I’m not entirely sure what to say here. The claim that “generally speaking…the morality of action within the private sphere is not a proper object for coercive control by the state” seems to have a fairly obvious reading on which people’s sexual practices (recall, again, that homosexuality is Hayek’s example here) and private drug consumption lie outside the proper sphere of state control. The whole Millian tenor of Hayek’s argument is perfectly in line with that reading. I’m not sure precisely what distinction Feser wants to draw between this view and one like Nozick’s, but it seems awfully hung up on the semantics of how Hayek’s framed the question. If there’s a deep difference between saying that X is outside the proper boundaries of state coercion and saying that X should justly be decriminalized, it eludes me.

I might also note that absolutely no conservative advocates criminalizing things merely because of “the bare fact that an action is disliked by some of those who learn about it.” In particular, traditionalists who think pornography should be regulated, that same-sex marriage should not be legalized, etc. think both that these things are objectively wrong and that they have or would have bad social consequences. And whether or not they are right to think this, there is nothing in such claims that conflicts with what Hayek says in that passage. If Hayek’s defense of property and liberty is compatible with a social safety net, limited government regulation of business, etc., then it is hardly plausible to say that his defense of a private sphere of liberty _absolutely rules out_ (as other libertarian theories would) the regulation of pornography, prohibition of same-sex marriage, etc.

The passage I cited comes in the middle of a discussion in which Hayek clearly distinguishes between the state’s coercive functions and its function as a service provider. So the fact that Hayek departs from a pure libertarian position on the issue of a social safety net is neither here nor there as regards this argument. Indeed, the whole section is an explanation of why Hayek is less stringent about constraining the state in its service-provider role than its coercive-restraint role. In context (as Feser is fond of saying), it’s inadequate to point out a deviation from a more hardline libertarian position that Hayek specifically flags as a special case and make inferences about his views in a sphere of state action he clearly regards as distinct.

As for what Hayek’s theory entails: First, Feser wants to insist that conservatives don’t want porn and whatnot restricted because they don’t like it but because it’s objectively bad! Ah! Well, as long as your disapproval is a response to objective badness, I guess that’s OK then.

Now if we’re talking about “bad social consequences” that entail harms to others, we’ve got something firmer to get a grip on. Pick any libertarian theory, as pure as you like, and it will admit that harms to others provide a basis for regulation. (We can at least imagine a drug, maybe some kind of hyped-up PCP, that led so inexorably to harms to others that libertarians would grant its use could be proscribed on an ordinary prevention-of-harms rationale.) Whatever your theory here is, the question is always going to be partly empirical, since it’s always possible to discover that something we’d classed as a self-regarding act harms others after all.

That said, it strikes me as very much contrary to the spirit of Hayek’s argument to count the diffuse and indirect sort of “bad consequences” that might flow from, say, the “coarsening of culture” as a result of widespread pornography consumption. Recall that on Hayek’s conception “the rules of justice have essentially the nature of prohibitions, or, in other words, that injustice is really the primary concept and the aim of rules of just conduct is to prevent unjust action” and that “the injustice to be prevented is the infringement of the protected domain of one’s fellow men.” You could probably frame the bad consequences Feser’s alluding to as some kind of “infringement of the protected domain” of others, but it’s very much an uneasy fit.

A useful exercise may be this: Suppose that Hayek’s Millian argument for freedom in the “private sphere” generally parallels his argument for freedom in the economic realm. Then ask whether restrictions based on the sorts of indirect alleged harms Feser is talking about mesh well with Hayek’s defense of experimentation and emergent, unplanned order, supposing it to apply to lifestyles and business models alike. Again, maybe you couldn’t absolutely rule it out a priori without looking at the specifics of the argument for harm, but it’s an uneasy fit.