Political Liberalism and the Temptations of Managing Private Conduct: Spain, the EU, and Legislative Control of the Private in Rights Based Regimes

There is a certain tension in the conception and operation of modern Western liberal states. On the one hand, these states are based on notions of rights--especially those that reduce the power of the state to intrude in the affairs of individuals. Europe especially has cultivated a cult of the private and even the communal sub-national right: human dignity, culture, language, association, sexual practices, private political and social belief, lifestyle, etc. At the same time, modern Western states have increasingly formalized their legal foundations in a peculiar kind of democratic theory and legislative positivism that suggests (and Rousseau would be pleased with the result) that the state, as the embodiment of the genius of the nation (that is the collective will of the population from which sovereignty derives), ought to be able to elect to govern (through positive law enacted by its legislature), when and as it will.

Very large receptacles could be filled with the extraordinary, and sometimes very interesting, material written on this tension and its effect on the construction of legitimate states. In the United States, the issues are sometimes considered from the perspective of the "counter-majoritarian difficulty." The object is to attempt to balance the rights of individuals against the power of the state (that is the power of the tyranny of the majority exercised through the legislative power) while preserving the democratic and participatory character of the state. In Europe and other parts of the world, the tension is more directly stated and governed by competing instruments: constitutions, human rights conventions, and supra-national treaties.

But my purpose here is not to consider again the difficulties of of institutionalizing some sort of legally framed balance between the collective and the individual. Rather it is to note a study, recently released by the Future Foundation on the attitudes of Europeans to the notion that government ought to take a more aggressive stance toward the regulation of private or social conduct ("El 37% de los españoles no quiere que se vendan refrescos en el 'cole','" Qué!, June 22, at 2). The Future Foundation conducted a survey of 11,000 Europeans to discern attitudes toward regulation. They discovered a willingness by a majority of Europeans to tolerate even fairly intrusive legislation, including the funding of government campaigns to change purely private social behavior. Most of the sort of legislative action approved is not surprising: reducing highway speeds, limiting the consumption of certain types of food at schools, eliminating vending machines from hospitals and the like. These are all actions and opinions that European share with Americans. But the more interesting result was in general opinion about the role of the state in private lives. "En él se recoge que el 53% de los europeos está en favor de imponer algún tipo de restricción en distintas esferas de la vida privada, y que un 37% de los españoles apoyaría campañas para reducir el consumo de alcohol . . . ¡en los hogares!" (id.). That is right-- at least 53% of European would favor intrusive legislation and a minority, though a substantial minority, of Spaniards even favor spending public money on government efforts to reduce alcohol consumption in the home.

As the state expands its role in social organization, as it seeks to take on for itself a monopoly role in the construction of the social state, it would seem necessary for the state to take on powers that, in an earlier day the West condemned in governments like those of the USSR under Stalin or the PRC under Mao. Still, it is not unusual for the state to seek to direct social policy, even in the most private of sectors. Princes since Augustus have sought to regulate everything from marriage and family formation, to the food and consumption behavior of its citizens, all with more or less success. And in a social order in which the state could not hold a monopoly of power over behavior, because it had to share that power with competing social, religious, ethnic and cultural communities, state power was a healthy ingredient. State regulation, in effect, provided the bond that tied all the disparate members of a political community together. In the old days, the balance would be tipped in favor of private communities when they managed to co opt the state. For example, institutional religions of one sort or another commonly used the state as a vehicle for the imposition of their "law" on all members of the political community, even those who rejected the view of that sect. On the other hand, in the absence of substantial competition for control, the balance can too easily be tipped the other way. When technology and a public policy favoring efficiency and harmonization of practices may tip the balance far too much toward state domination of social norms. But rather than use the state to protect individual social conduct choices, individuals prefer to use the state to favor one set of norms over another. And we are not speaking about the great foundational norms that affect the character of a nation or its foundational culture. Those norms appear to be out of bounds. Instead we are looking at a growing taste for formal. legalistic control of sub foundational matters--not whether one can drink at home, but what kind of wine is offered and how much is appropriate at table. This is the sort of micro-management that used to be impossible, but given technological advances who knows how well the state may be able to impose choices on individuals (and by state here I mean the majority of the people through their elected representatives exercising legitimate state power). Cf. Larry Catá Backer, Culturally Significant Speech: Courts, Society and Racial Equity, 21 U. Arkansas Little Rock Law Review 845 (1999).

The Future Foundation study, thus suggests that an important level, the population of many democratic states, are still more than willing to use the state to impose social conduct rules. The notion of soft law, or of rules that bind like minded members of affinity groups, like religious organizations, etc., seems to continue to fade in the public arena in favor of a more formalistic and legalistic approach to political regulation. The great irony here is that this sentiment, as it may affect government policy, arises just at a time when in other sectors of communal life, and principally in the economic sector, we have witnessed the rise of great systems of soft law and a growing movement in favor of functionalist, communal norms controlled by those who are affected. Thus, as business tends to lobby states for greater independence from control through legislation, individuals seem more disposed to direct control. Free markets appear to be good for business but bad for individuals. Or the great social communities that used to guide individuals before int he West--clubs, churches, social networks, etc, may no longer be strong enough to provide the foundation necessary to order everyday life, and into this void the state may step in.