Law and Order and Libertarians

A number of my libertarian friends— John Schwenkler , Joshua Claybourn , et al.—who have weighed in on the arrest of Henry Louis Gates have taken the side of the Harvard professor. Although they are skeptical of the claims that race was the motivating factor (at least on the side of law enforcement; it’s clearly the motivating factor behind Gate’s self-indulgent outrage) they contend that Cambridge Police Officer James Crowley was in the wrong.

While I don’t believe this incident reveals much about race (except that we are still obsessed with the issue even in the post-racial Age of Obama), I think the Gates situation helps to clarify the different views on law and order held by libertarians and conservatives.

Although we’d prefer to believe that we adopt our political views after careful consideration of the relevant principles and issues, more often than not we adopt philosophies that align with our personalities and life experiences.

For example, philosophically perceptive, right-leaning libertarians (as opposed to liberalartarians or leave-me-alone libertines) are a subclass comprised almost exclusively of white, middle-to-upper class, educated males aged twenty to fifty. Sociologically speaking, they are a demographic that is unlikely to have extensive experience with public disorder. It is understandable why they would be dismissive of such concerns when other interests, such as the rights of the individual, are involved.

Also, as individuals these libertarians tend to share common personality traits. From my experience, they tend to be calm, self-controlled, typically Stoic, and prefer cool reason to heated emotionalism. (Ironically, while they defend Gates’ actions they are unlikely to engage in such intemperate outburst themselves. Unlike Gates, they are quite capable of controlling their emotions.)

While these are admirable qualities, I wonder if the combination of these psychological and sociological traits leads them to have a lack of imagination when it comes to the delicate balance between order and disorder. Libertarians often appear to argue as if all humans were as rational and orderly as they are.

While I share much in common with my libertarian friends, I hold a more dour view of human nature and a fear that without constantly maintaining order on the individual and societal level, violence and mayhem would be the norm. Beneath the surface of society are buried the seeds of disorder—prevented from growing only by structures like civility and the 2nd Amendment.

Since I wouldn’t be all that shocked to find a brawl breaking out in a women’s prayer breakfast, I certainly have no problem imagining violence erupting in a tony neighborhood of Cambridge, Mass. I suspect most police officers feel the same. Whether Officer Crowley believed Gates would turn violent is unclear. But I’m sure he believed the incident had the potential to degenerate into violence.

After all, violence rarely occurs without a preceding breakdown of order on the personal or civil level. That is why order maintenance is one of the most imperative tasks for both individuals and society. Gates failed to do his duty in this regard. His conduct was inarguably disorderly, even if could be argued that it did not fit the state’s definition of disorderly conduct. He was on the wrong side of order, even if he was technically on the right side of the law.

Most of the libertarians that have weighed in on Gates’ defense have also taken the side of law over order. They parse the text of the legal statute and find that Gates’ actions fall short of an arrestable offense. This is a legitimate, judicious, and persuasive argument for why the charges should have been—and were—dropped.

But in making this their key argument, the libertarians reveal an implied belief that the primary function of the police officers is enforcing the law. In contrast, I share the view of noted crimnologist James Q. Wilson that the primary function of patrol officers—whether walking a beat or patrolling in a car—is the maintenance of public order rather than strict enforcement of the letter of the law.

Law-focused libertarians, giving primacy to the harm principle, contend that the officer should have acted only after harm had occurred (e.g., after Gates committed a violent act) in clear violation of the law. Order-centric conservatives like me, giving primacy to the entropy principle, believe that the officer should have acted in a way that prevented the situation from degenerating into public disorder. There is a natural tension between these two positions that requires finding the right balance; leaning too far in either direction leads to either civil unrest or violations of civil rights.

As applied to the Gates situation, I think we saw an acceptalbe, though imperfect, balance of interests. I see no contradiction in believing that the officer was justified in arresting Gates for disorderly conduct—a prudent action of order maintenance—and that it was proper to dismiss the charges because they did not fit the requirements for a disordelry conduct conviction—an action necessary to maintain the order of jurisprudence.

We don’t live in a perfect world where police officers are able to always know the course of action needed to maintain the proper level of public order. And we don’t live in a world of self-controlled libertarians who pose no threat to police engaging in their official duties of enforcing the law. Until we do, perhaps the best approach to avoid both public disorder and Gates-style conflicts would be for all of us to exhibit the deference due each other in our roles as public officials and private citizens.

Related: Virtue Ethics and Broken Windows or Why I Am Not a Libertarian