The Constitution of Order

Custom, Coercion and Societal Harmony

Editor’s Note: This essay is adapted from a presentation for the Academy of Philosophy and Letters delivered on June 3, 2022.

Have you ever attended a symphony? If you arrive early, before the performance begins, you might hear the players warming up. It’s not ugly, but it’s chaotic. Some instruments are slightly out of tune, and the players go about making apparently random sounds, without regard for what the other players or the audience is doing. Chatter and noise fill the venue. Then there is a moment when the conductor steps onto the stage, gives a bow, raises the baton, and begins to direct the players. A harmonious blend of sound replaces cacophony. At that moment, something exhilarating happens; there is a transition from the warmup to the performance. The new element is order.

In art, order is a component of beauty; in society, order is the basis of peace, prosperity, liberty, justice and any other good we seek in community. Civil disorder is deadly and destructive. An estimated 220 people died in 329 urban riots between 1964 and 1968. An estimated 25 people died amidst the protests and looting that occurred in 2020. We experience social order in so many settings–classrooms, meetings, church services–and it is so essential to so much that we do in life that we are liable to forget its importance until images and experiences of disorder jolt us toward a greater appreciation for it. We have seen many such images and had many such experiences over the past few years–civil disorders following the murder of George Floyd in Minneapolis, the violence in Kenosha following the shooting of Jacob Blake, the January 6th assault on the capitol, and the multiple instances of mass gun violence just in the last few weeks come to mind.

There are other indicators of a decline in order in our social relations: the rise of nonmarital births among white, black, and Hispanic women; the decline of marriage and other associational affiliations; the emergence of a normless, ostensibly sex-positive culture Christine Emba interrogates in her new book Rethinking Sex. There is the ongoing opioid epidemic and the rise in homelessness in California and major cities in other states. There are frequent episodes of violent crime in predominantly black inner cities of municipalities like St. Louis, Baltimore, Birmingham, and Detroit. All these phenomena and others suggest the need for renewed focus on the good of order. 

Scholars often point to freedom as the quintessential aspiration and value of Western political thought. A famous entry in this genre is Friedrich Hayek’s The Constitution of Liberty, where he describes the conditions and institutions necessary to establish individual liberty, narrowly defined as the ability to plan and live one’s own life free from the arbitrary coercion of others.[1. Hayek defines a “state of liberty” as one in which “that condition of men in which coercion of some by others is reduced as much as is possible in society.” (Friedrich A. Hayek, The Constitution of Liberty (Chicago: The University of Chicago Press, 1960), 11).] Yet, Hayek acknowledges liberty is not the only social good. In fact, order makes possible a society with a high degree of individual liberty.[2. “We understand one another and get along with one another, are able to act successfully on our plans, because, most of the time, members of our civilization conform to unconscious patterns of conduct, show a regularity in their actions that is not the result of commands or coercion, often not even of any conscious adherence to known rules, but of firmly established habits and traditions. The general observance of these conditions is a necessary condition of the orderliness of the world in which we live, of our being able to find our way in it, though we do not know their significance and may not even be consciously aware of their existence” (Hayek, Constitution of Liberty, 62).] Order is also a good; not the only good, but a good in its own right. My aim here is to discuss the value of order and the conditions that sustain it, and to offer a few preliminary thoughts on the challenge of restoring and preserving order in our time.

Here’s my argument: there are basically two ways for a people to maintain social order: law backed by coercion, and convention or custom backed by social sanctions.[3. I refer to Schelling’s use of convention in the sense of “tradition” or a “jointly recognized expectation” of behavior whose primary authority comes from precedent and a concern that an entire system of rules be respected (Thomas Schelling, The Strategy of Conflict (Cambridge: Harvard University Press, 1960), 260). Another way to talk about conventions is as “social norms,” both for coordination and cooperation.] To be sure, the two are intertwined, and every society employs a mixture. But establishing and maintaining an enduring order depends on a fairly low coercion-to-convention ratio. In other words, you need most processes of social control and order-maintenance to be based on voluntary compliance enforced through social sanctions. In the United States, since the 1960s, we’ve built a system of social control that has the ratio backwards. We’re lax on the convention side and overly reliant on the legal side. The social order is losing legitimacy because it’s overly reliant on coercion. While working to restore the legitimacy of law enforcement and criminal justice institutions, we need to strengthen and build social institutions that provide discipline and promote order. Yet, while proponents of defunding or abolishing the police are misguided in important respects, elements of their logic point us to the need to deal with root causes of social disorder rather than merely with symptoms. The real root causes, though, are deeper than the structural and economic issues many proponents of ‘defund’ logic have in mind: they are spiritual. We must ultimately attend to those root causes if we wish to restore an enduring, decent, and just order.

The constitution of order comes with costs to the individual and potentially to society, but it is essential to human flourishing. As conservative thinker Russell Kirk and others have taught, order, justice, and freedom are the goods political institutions aim to secure.[4. “The good society is marked by a high degree of order, justice, and freedom. Among these, order has primacy: for justice cannot be enforced until a tolerable civil social order is attained, nor can freedom be anything better than violence until order gives us laws” (Russell Kirk, The Roots of American Order, Third Edition (Washington, DC: Regnery Gateway, 1991), 6).] There is a sense in which order takes priority because without order, justice and freedom are insecure. Order is a paradigmatic concern for conservative thinkers, but liberal and social contract theorists too acknowledge that the maintenance of order benefits all the members of a society and requires limits on individual liberty.[5. Thomas Hobbes’s Leviathan is necessary to prevent the war of all against all that inevitably emerges in the state of nature: “Out of Civil States, there is alwayes Warre of every one against every one. Hereby it is manifest, that during the time men live without a common Power to keep them all in awe, they are in that condition which is called Warre; and such a warre, as is of every man, against every man” (Thomas Hobbes, Leviathan, 1909 ed., (Clarendon Press, 1651), available online https://oll.libertyfund.org/title/smith-leviathan-1909-ed, Ch. XIII). For Locke, the “inconveniencies” of the state of nature, where each man enjoys the right to punish infractions of the Natural Law against his person or his property, leading to excessive and unpredictable retaliation, that lead men to institute civil government in Locke’s Second Treatise: “civil government is the proper remedy for the inconveniencies of the state of nature, which must certainly be great, where men may be judges in their own case” (John Locke, The Two Treatises of Civil Government, Hollis ed., available online https://oll.libertyfund.org/title/hollis-the-two-treatises-of-civil-government-hollis-ed, Book II, §. 13). John Rawls, likewise, is concerned with constructing a “well-ordered” society, justice playing an important role in such a society (John Rawls, A Theory of Justice (Cambridge, MA: The Belknap Press of Harvard University Press, 1971), 4-5. See also pp. 453-62).] While Hayek, the theorist of freedom, focuses on the benefits of freedom for civilization, not necessarily each individual, theorists of order like Kirk and Simone Weil begin with the needs of the individual person, of the soul.[6. Hayek, Constitution of Liberty, 18, 31.] Weil famously described order, a clear sense of what one is to do in life, as “the first of the soul’s needs.”[7. Simone Weil, The Need for Roots (New York: Octagon Books, 1952), 10.]

What is “order”? At the least, a minimalist conception of ‘mere order’ would evoke notions of predictability, stability, and calm.[8. The definition I propose is minimalist, but it is informed by other theorists. Kirk describes order as, “the path we follow, or the pattern by which we live with purpose and meaning,” and as “a systematic and harmonious arrangement–whether in one’s own character or in the commonwealth” (Kirk, Roots of American Order, 5). He associates it with “the performance of certain duties and the enjoyment of certain rights in a community” (Kirk, Roots of American Order, 5). Simone Weil writes: “The first of the soul’s needs, the one which touches most nearly its eternal destiny, is order; that is to say, a texture of social relationships such that no one is compelled to violate imperative obligations in order to carry out other ones” (Weil, The Need for Roots, 10). James McClellan defines order as “the arrangement of duties and rights in a society so that people may live together in harmony and peace” (McClellan, Liberty, Order, and Justice, 6).] A situation of social order is one in which human interaction in the economic, political, and social spheres proceeds peaceably in accordance with broadly shared expectations.[9. Order in this sense is not liberty. It is not justice. It is not prosperity. Order may be a prerequisite for one or more of these other goods, but order in this minimal sense is only order.] We can think about order as a public good. Securing order requires solving problems of both coordination, which requires establishing shared expectations, and cooperation, which requires solving prisoners’ dilemmas that incentivize defection.[10. See Michael Hechter and Christine Horne, “The Problem of Social Order,” in Michael Hechter and Christine Horne, eds., Theories of Social Order: A Reader (Redwood City, CA: Stanford University Press, 2003), 1-5. See also James Buchanan, The Limits of Liberty: Between Anarchy and Leviathan, The Collected Works of James Buchanan, Volume 7 (Indianapolis: Liberty Fund, 2000), 11: “Politico-legal order is a public good; disorder is a public bad. There are two sides to the coin.”] We need to know which side of the road to drive on, and we need to be able to rely on other drivers to actually drive on that side–and to reliably do so ourselves. We need both the means and the motives to cooperate and, by and large, to act in accordance with the expectations others have about our behavior.

Though order is essential for human life, there exists a human impulse and a rational incentive at times to buck against order, to engage in disorderly behavior. While we frequently experience order, we also frequently observe, and perhaps commit, infringements of order. We encounter the “free-rider problem” of providing a public good: the fact that those who do not help to produce it may still enjoy it. And so, securing order requires institutions and systems of rules that channel and constrain individual behavior. These institutions generate behavioral expectations and also provide incentives raising the benefits of orderly behavior, along with the costs of disorderly behavior, such that orderly behavior is sufficiently attractive to most actors.

Law is an important institution of order, and coercion a necessary tool for raising the cost of disorderly behavior. The effectiveness of law itself, though, depends upon a prior acceptance of the law and those who enforce it as legitimate. The successful establishment of a government and of law occurs with reference to, and operates as one component of what Kirk called the “civil social order.”[10. Kirk, Roots of American Order, 5. “We couple the words ‘law and order’; and indeed they are related, yet they are not identical. Laws arise out of a social order; they are the general rules which make possible the tolerable functioning of an order. Nevertheless an order is bigger than its laws, and many aspects of social order are determined by beliefs and customs, rather than being governed by positive laws” (Kirk, Roots of American Order, 5).] Beliefs and ideas are central to maintaining the legitimacy and therefore the continued functioning of a governing authority.[11. As Francis Fukuyama writes: “Ideas are extremely important to political order; it is the perceived legitimacy of the government that binds populations together and makes them willing to accept its authority.” (Francis Fukuyama, The Origins of Political Order: From Prehuman Times to the French Revolution (New York: Farrar, Straus, and Giroux, 2011), 10). “What people regard as self-interest, and how they are willing to collaborate with others, depends critically on ideas that legitimate certain forms of political association. Self-interest and legitimacy thus form the cornerstones of political order” (Fukuyama, Origins of Political Order, 16). We need not entirely accept Hayek’s conception of spontaneous order or his historical claim regarding the spontaneous development of the common law to appreciate his insight, drawn from David Hume, that “though men be much governed by interest; yet even interest itself, and all human affairs, are entirely governed by opinion” (David Hume, quoted in Friedrich A. Hayek, Law, Legislation, and Liberty: A New Statement of the Liberal Principles of Justice and Political Economy, Volume 1: Rules and Order (Chicago: The University of Chicago Press, 1973), 69). I would only amend that to allow for the supervening role of Providence.] Legitimate authority rests largely on voluntary obedience. If a centralized authority cannot command the allegiance of the members of society, it will resort primarily to coercion, which reflects weakness, not strength.[12. As Anthony Barr points out, this is entirely consistent with the views of Sir Robert Peel, founder of the Metropolitan Police Force in London.]

Other mechanisms within the civil social order also work to secure order. Conventions, customs, and institutions, from language to rules of the road to rules of dating and marriage, serve coordinating and sanctioning functions, allowing us to generate reliable expectations even from numerous people we do not know personally, but with whom we share a society. Some of these are the sorts of institutions that political scientist Elinor Ostrom explored in Governing the Commons for regulating use of common-pool resources in a sustainable fashion.[13. I think we can draw a parallel to the commons problem in relation to the management of our ‘social commons.’ For the most part, we rely on convention to govern our social arrangements and interactions, though we also employ legal mechanisms.] Church discipline, which in earlier periods of American history played an important role in order-maintenance, is another example. 

Now to justify my claim that our regime of social order maintenance is imbalanced. Failing to discourage disorder through social sanctions, we have established a regime that overly relies on punitive legal sanctions, eroding its legitimacy. Research in law and economics and related fields has linked the notable rise of nonmarital births since the 1960s directly to both murder and property crime rates.[14. One caveat to note is that Todd Kendall and Robert Tamura found in their study that periods of high stigma toward nonmarital births, incentivizing the formation of less-than-ideal marriages, could also lead to bad outcomes for the children of those marriages.] The prevalence of nonmarital births is highest among black Americans, which likely goes some way to explaining the higher level of arrests, convictions, and incarceration rates among black Americans, particularly black men. This is an example of a failure of social institutions to effectively discourage behavior with deleterious effects for children, a failure that contributes to further disorder in the form of what Matt DeLisi and John Paul Wright call “behavioral poverty.” The issue of the family is the clearest example, but there are other ways we have failed to establish order through social conventions or through less punitive forms, leading to an overreliance on the criminal justice system. Former Dallas police chief and current police superintendent for Chicago made this point in a July 2016 speech, that Americans have sloughed the burden of dealing with social problems such as mental health and social dysfunction onto the police. 

Over the same time period, since the mid-1960s, we have seen the rise of “overcriminalization” and what many call the American “carceral state.” Partly as a response to the civil disorders and destruction of the 1960s, criminal justice policy grew increasingly punitive up to the mid-2000s before state legislatures began to pass reforms.[15. Elizabeth Hinton, From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America (Cambridge, MA: Harvard University Press, 2016), 12, 14.] Our rate of incarceration, the highest in the world, has roughly quadrupled since 1972. 

Once again, the effect is differential by race and economic status: black and Hispanic Americans together make up the great majority of those incarcerated and justice-involved across the country.[16. Hinton, From the War on Poverty to the War on Crime, 5.] In effect, our failure to promote and establish effective forms of conventional social control, combined with our punitive criminal justice policy, has meant, to borrow a point from Glenn Loury about the decision to crack down on sellers, rather than buyers in the drug war: we middle class Americans “balance our cultural budget on the backs of the weakest and darkest of our fellow citizens.”[17. Glenn C. Loury, The Anatomy of Racial Inequality (Cambridge, MA: Belknap Press, 2002), 80. Loury elaborates on this theme elsewhere.] The deterioration of social order is not limited to the inner city; it is a broader failure that nevertheless affects the most marginalized among us most intensely. 

What is to be done? Those advocating to ‘defund the police’ and promoting the discourse of ‘abolition’ do not adequately appreciate the role of law and policing in securing mere order, particularly in the poorest and most disadvantaged communities. Yet, while the ‘defund’ argument is misguided, a simplistic ‘law and order’ response is also inadequate.[18. While political conservatives have been champions of law and order politics, tending to support the prison buildup up until the 2000s, Kirk makes this point, citing Spanish philosopher Julián Marías: “It is quite possible, as Julián Marías suggests, to support an order stupidly and ineffectually; he writes of those ‘who immoderately espouse the cause of ‘Law and Order.’’ Failing to understand that order is subtle and complex, ‘They are the people who believe that problems can be solved with more and sterner police. If there is juvenile delinquency, they would not seek its causes and try to eventually modify the social conditions of wayward youth. They think it must be stopped ‘right now’… If some unwanted tendency appears within the country, no time should be lost in persuading others that it is bad; it must be immediately and inexorably cut out at the root.’… The intemperate zealot for instant ‘law and order,’ and the ingenious radical who demands perfection right now, are especially misguided in America.” (Kirk, Roots of American Order, 475).] There is indeed a need to restore legitimacy to police and criminal justice institutions. There is a need to pursue crime-reduction solutions that engage civil society and members of the community with authority. The ‘defund’ argument also suggests a focus on the ‘root causes’ of crime, disorder, and the rise of the carceral state. There may very well be a need for increased social services such as job training, mental healthcare, and improvements in education. The real root causes of disorder, though, lie elsewhere than the ‘defund’ proponents and the idea of systemic racism alone point us.

In making an argument for the Bible as an important component of primary education, Benjamin Rush in fact employed root cause logic to this effect:

In contemplating… the political institutions of the United States I lament that we waste so much time and money in punishing crimes, and take so little pains to prevent them. We profess to be republicans, and yet we neglect the only means of establishing and perpetuating our republican forms of government, that is, the universal education of our youth in the principles of christianity, by means of the bible.[19. Benjamin Rush, quoted in Daniel Dreisbach, Reading the Bible with the Founding Fathers (Oxford: Oxford University Press), 68.]

Many theorists of order teach us that order in the commonwealth is intimately related to order in the soul.[20. “The ‘inner order’ of the soul and the ‘outer order’ of society being intimately linked, we discuss in this book both aspects of order. Without a high degree of private moral order among the American people, the reign of law could not have prevailed in this country. Without an orderly pattern of politics, American private character would have sunk into ruinous egoism” (Kirk, Roots of American Order, 6).] Persons, members of the commonwealth, must acknowledge and adopt a moral order.[21. “Liberty, order, and justice are all made possible by sound constitutions; but a constitution is only a ‘parchment barrier,’ and even a well-conceived constitution will fall short of its goals if the people fail to support it. Many of the Framers of the American Constitution were of the opinion that constitutional government requires, above all, a ‘virtuous’ citizenry if it is to endure. Certainly a constitution cannot last if it is willfully ignored, or if there is no common understanding among the citizens and their elected leaders as to what the achievement of liberty, order, and justice requires” (McClellan, Liberty, Order, and Justice, 4). This is a solution to the problem Frank Knight identified: “The main, most serious problem of social order and progress… the problem of having the rules obeyed, or preventing cheating. As far as I can see there is no intellectual solution of that problem. No social machinery of ‘sanctions’ will keep the game from breaking up in a quarrel, or a fight (the game of being a society can rarely just dissolve!) unless the participants have an irrational preference to having it go on even when they seem individually to get the worst of it. Or else the society must be maintained by force, from without-for a dictator is not a member of the society he rules-and then it is questionable whether it can be called a society in the moral sense.”] Like Rush, a number of prominent contributors to the American tradition of ordered liberty have held that the Christian religion was the basis of personal and social moral order in this country. The recent work of Charles Murray, Robert Putnam, and Tim Carney also shows the importance of religious participation for the development of social capital and of orderly habits at the personal level. Professionals and activists working to address the causes and consequences of violence and disorder in the most challenging environments, such as Robert Woodson and Sylvia Bennett Stone, know well the continued relevance of Rush’s simple but controversial claim.[22. Robert Woodson makes this point: “America is in a moral and spiritual free fall that is consuming our young people of all races and of all classes. The greatest challenge facing any person is to wander without content or purpose in your life.” Loury also notes the importance of faith-based efforts to address disorder in inner-city environments: “The reports of successful efforts at reconstruction in ghetto communities invariably reveal a religious institution, or set of devout believers, at the center of the effort.”] We need to reclaim and newly cherish the deep moral and spiritual roots of our order.

Returning to the symphony image once more, we can glean two lessons as we prospects for a restoration of order in our society. One is the importance of competent and benevolent authority, embodied in the person of the conductor, freely respected and obeyed. Another is the importance of shared projects, common undertakings, for the establishment and maintenance of order. The symphony endows each player with a role, a sense of what to do and how to interact. The music, whether or not the conductor is the composer, provides a script, a form for the players’ harmonization. In the same way, our associations, shared projects, and common undertakings as family members, church members, and citizens provide the means of renewing the order we have inherited, ever aiming for the higher kind of order respecting the dignity of the human person and the authority of our Creator.[23. Kirk points out that any order, even the totalitarian Communist order, is preferable to total disorder, but he also makes reference to a “higher kind of order, sheltering freedom and justice,” and declaring “the dignity of man” (Kirk, Roots of American Order, 9). The earliest known law codes in Mesopotamia refer to a transcendent order, a divine order, with reference to which the law and the ruler who promulgates it claim legitimacy. The biblical law, the prophets, and the Christian gospel likewise hold political leaders, subjects, and citizens to a transcendent standard of justice, the divine law.]