Yesterday’s essay explored the implications of material dependencies for the moral development of human beings. Humans are naturally dependent creatures. Public institutions, especially legal institutions, should not try to eliminate material dependence but should instead try to foster healthy dependencies and eliminate unhealthy ones. Healthy dependencies give people reasons to consider and act for the wellbeing of other people, and thus establish moral connections with each other. Unhealthy dependencies rest upon legal entitlements and breed moral entitlement, and thus impede moral development.
Any serious effort to reform the ways we provide for those in need should take this distinction into account. We should not be content to critique the incentives that our entitlement policies create for recipients. We should also consider the effects of entitlements upon those private institutions of provision and ordering that best promote healthy dependencies—the family, private charities, religious associations, and private property institutions, among others. We need to give those institutions room to grow.
Think of public entitlements as a cover crop, planted in barren fields. Cover crops do important work. They prevent soil from eroding during winter months, they fertilize the soil, and they control weeds. But they do not produce food. And the crops that do bear food must be planted in empty soil. So, before the food-producing crops can be cultivated and grown to harvest, the cover crop must be plowed under the soil. If the cover crop remains during the growing season it becomes a weed, which threatens to retard the development of, or destroy, the productive crops.
So it is with public entitlements and the regulations that attend them. Entitlements do their best work by filling in where the productive institutions of civil society have withered. But as long as public entitlements remain in place they threaten to prevent the growth of those fruitful institutions that we need.
The Limits of Public Ordering
The basic problem with entitlements is that they corrupt our understanding of law and civic ordering. Whoever has responsibility to distribute resources must have the authority to decide on what terms the resources will be distributed. Thus, once we accept the idea that government has primary responsibility to provide for material needs, we inexorably accept the idea that government has primary responsibility to order civic affairs.
This jeopardizes the moral development of communities and their members. Public law crowds out private law and eliminates the possibility of collaboration, compromise, and communal deliberation in the use and management of resources. In this way it suffocates the moral agency of citizens.
Private law has given way to public law in part to deal with the complexities of modern life and the abuses and failures of private institutions. But the publicization of law has costs. As the number of issues covered by regulation grows, the space left for communal deliberation shrinks.
Entitlements are largely to blame. The expansion of entitlements requires the expansion of statutes and regulations. Entitlements affect nearly every American, and someone needs to regulate their financing and distribution. Running an effective welfare state requires a lot of law.
Yet there is also a more fundamental problem. We now see a growing tendency to treat all rights as if they were entitlements, enjoyed at the pleasure and discretion of the government. As the Justice Department has argued in multiple cases during the last two Supreme Court terms, if private citizens are permitted to assert private rights against the regulatory state, then many of the objectives of public ordering can be thwarted.
This view leaves institutions of private ordering in a perilous position. The regulatory state can tolerate private ordering only as long as privately ordered institutions (such as churches and charities) stay out of its way. So, beyond the economic costs of expansive public entitlements, and the moral hazards they pose, there lurks the additional danger of crowding out the very institutions that our society needs in order to flourish.
Already, we have nearly lost the intellectual resources to understand the nature and extent of this problem. The concepts of private law and private ordering have all but disappeared from discourse about public policy. We need to recover those ideas.
Private Law and Moral Agency
Property ownership emerged not from legislatures but from the healthy dependencies of personal associations. Any association that meets the material needs of its members must allocate rights and responsibilities to promote the common good. The making of private law to govern resources is a central act in which private citizens take the wellbeing of others into their own deliberations.
In the common-law tradition that American states inherited from Great Britain, law was not primarily a set of legislative commands. It was a repository of practical judgment and wisdom, collected not only from legislatures but also from local customs and private institutions. Families created estates of ownership in order to provide for different members. Local communities developed customs to mediate the competing demands of their members, for example, the practice of holding beaches open to common use below the mean high-tide mark. Rights to use water were allocated among adjacent owners not by legislatures but rather by accommodations reached among the interested parties against a general standard of reasonable use. Law in the common law tradition adopted the practical judgments of those citizens whose conduct it would govern, and remained open to new judgments.
When the owners of a family farm decide together on a crop rotation plan, or a condominium association votes to permit some uses of common areas, or parents establish a schedule for use of the family car, private communities are making law. In all of these instances, private citizens decide together what uses and dispositions of resources would be reasonable, taking the needs and plans of all into account.
For this reason, private law has generally supported the moral development of private citizens in a way that legislation and regulation cannot. By carving out space within which communities of people can deliberate together about what to do with the resources available to them, private law enables healthy dependencies. It preserves the freedom and incentives for individual members of a community to take the interests and needs of others into their own deliberations and choices.
What the Publicization of Private Law Has Done
Harvard law professor Mary Ann Glendon observed more than thirty years ago that the law loosened the bonds of marriage and family at roughly the same time that it strengthened legal rights to receive support from public sources. She noted that states began allowing one spouse to get a divorce for no reason when they began abrogating at-will employment, the common law rule that allows employers to fire employees for no reason.
Glendon did not suggest that these legal changes were the sole or primary cause of the breakdown of American families. She viewed them as “simultaneously ‘motors,’ ‘indicators,’ and ‘multipliers’ of a vast reorganization of societal relationships.” Still, owing to that reorganization, “an individual’s economic security against illness and old age or family disruption … will no longer, in principle, be provided by the family” but instead will now be supplied “through her own work and work-related benefits, with government as a back-up system.”
Since Glendon published her trenchant observations, institutions of private ordering have fragmented further. Market institutions are not equipped to function like families, and it is not surprising that they have proven unable to bear the weight placed upon them as families have disintegrated. To take one example of increased strain, making it more difficult to fire an employee naturally makes employers more cautious before hiring. By raising the stakes in this way, the law makes employment harder to obtain.
The inability of market institutions to supply all human needs leaves government as the one stable institution that promises to help. For many, government is no longer the backup system but rather the primary or sole source of support. With the fall of the family has come the rise of what Yale law professor Charles Reich calls the “new property” of government-transfer entitlements.
What to Do?
The expansion of entitlement spending and public law threatens the ability of communities to promote healthy dependencies. Many entitlements must be ripped out by the root, and we must cultivate institutions of private ordering in their place.
This does not entail that we dismantle the regulatory state entirely. Some entitlements may turn out to be indispensable. Many old, poor, and vulnerable citizens have developed reliance interests. And veterans deserve special consideration for their service. But if we are going to subsidize individual consumption, why not subsidize private associations and families?
Medicaid and Medicare pay for medical care, including treatment for the results of neglect and unhealthy living. But many parents, charities, and private educational institutions use meager resources to help children live well, making medical care unnecessary. Aren’t they more deserving of subsidies?
The only serious proposal to save Social Security involves the creation of retirement accounts. Is there a way to prioritize family accounts, to create incentives for families to stay together?
Many subsidies for private institutions should not be viewed as permanent, lest the institutions become dependent upon entitlements. But even temporary measures might help to reinvigorate civil society. And it is unlikely that they would cause more moral harm than our current policies.
Adam MacLeod is an associate professor at Faulkner University’s Thomas Goode Jones School of Law and a 2012-2013 Visiting Fellow of the James Madison Program in American Ideals and Institutions at Princeton University.