Convention creates boundaries as thick as any border wall and ubiquitous as any surveillance state. In Min’s village, women are constrained by a centuries-old preference for male descendants. (Men are also constrained by this tradition, as families are less likely to permit their valuable sons to migrate to the city.) Most people will accept their assigned roles in the village ecosystem, of course, just as most Americans will quietly accept the authority of a government that bans access to developmental cancer drugs while raiding medical marijuana dispensaries. A door is as good as a wall if we cannot imagine walking through it.Later Howley adds, "A woman who has to choose between purdah and exile from her village is not living a free life, even if no one has bothered to codify the rules in an Important Book and call them 'laws.' "
It seems strange (at least to me, a refugee from the academic left) that one would even need to make an argument like this. The state is not automatically the explanation for every curtailment of personal liberty -- often the state must arbitrate between individuals when their pursuits conflict, serving as preferable (to non-crazy people) to the exercise of brute personal force in the war of all against all. The state can also override those conventions which serve to restrict the individual's opportunities when necessary. In fact, as Howley argues, the state is itself a quasi-cultural institution; it must win consent to protect property as most libertarians (as opposed to anarchists) concede it must.
Property rights are more than the conclusion of an academic argument; they are themselves a matter of culture. If they are useful to us it is because they govern our conduct and lend structure to everyday life. I may not help myself to the contents of just any wallet, take off in just any car, walk into just any house. A drop-dead argument for the authority of these constraints may exist in pure reason, but they are meaningless without a broadly shared sense of their legitimacy. Absent friendly social forces, property rights are an impotent abstraction. Rights come alive through convention. Culture makes them breathe. Strip away the context in which property rights are respected, and nothing much remains. Yet cultural context, in all its messy inexactitude, is exactly what propertarians wish to resist.
Howley's essay amounts to a noble effort to detach libertarianism from that intolerant branch of adherents who are basically concerned mainly with stopping the government from interfering with their racism, religious bigotry, gun-toting, and patriarchal prerogatives (think the fundamentalist Mormon sects in Utah, backwoods survivalist compounds, rabid John Birch types, that sort of thing) and make it a respectable political creed that is pro-individual liberty rather than merely anti-state. The crux of her argument to old-line libertarians is this: "it is the role of someone who professes to believe in the virtues of individualism—and emphatically the role of someone who believes that social persuasion is preferable to legal coercion—to foster a culture that is tolerant of nonconformity."
In order to foster tolerance one must have recourse to a state that can credibly restrain tribalism in its extra-legal guises once they are documented. Libertarians will need to trust government at least that far, that its investment in its own power might preclude its playing petty favorites among small-time groups. (Not that this is actually so, but that it might be forced democratically to approach such a balance. Perhaps there is hope for institutional thinking.)
And Mike Konczal argues that libertarians might have to cut ties with certain hard-line economistic types to take on a culture agenda. He points out how state-hating libertarians have found common cause in the past with regulation-hating free marketeers:
Did you know that women specialize in household work, and men in wage-paying work, because there are increasing returns to household work? Here’s some math from Becker to prove it. Did you know that discrimination can’t exist, because it would imply that markets are imperfect, leaving human capital $20 bills all over the sidewalk? So if minorities are discriminated against, it must mean that they have low human capital (and you can tell that they have low human capital, because they are discriminated against!).So cultural libertarianism ultimately must move beyond not only blaming the state for everything but also trusting the market to fix everything: "It’s one thing to say that we need to acknowledge a diversity of cultures, and let them play out in a market.... It’s another thing to say that the discrimination and culture oppression currently faced is a market outcome, pareto-efficient in its effects. Pushing to get more autonomy for women would be the same thing as rent control and price fixing in this mental picture of the world." Making reference to "normative economics" --to what rational choice theory says should happen -- is the way out of relativism for old-line libertarians, an absolute way of declaring what should and shouldn't be tolerated in the "culture of tolerance." But the problem is that most nonlibertarians find such a code intolerable.