Here are more reflections on Cass Sunstein’s notion that sovereign power is the necessary foundation of civil society.
Sunstein’s argument is not that sovereign power is a necessary part of the foundation of civil society. Instead, he argues as if it is the entire foundation.
Now I suspect that Sunstein would deny that he takes such an extreme position. But consider this passage from his admirably clear essay in the Summer 2005 Independent Review:
Without government protection of property, people cannot enjoy property in the way that a capitalist society requires. In this sense, property is itself a positive right, and so too is contractual liberty. It is all very well to say that people should be able to make contracts as they choose (subject to the limitations of the criminal law), but without a legal system to enforce contractual agreements, contractual liberty is often meaningless.
Let’s re-write this passage, substituting the agricultural sector for government:
Without farmers and ranchers to feed people who create, possess, and exchange property (and to feed those people who protect property), people cannot enjoy property in the way that a capitalist society requires. In this sense, property is itself a positive right, and so too is contractual liberty. It is all very well to say that people should be able to make contracts as they choose (subject to the limitations of the criminal law), but without farmers and ranchers to feed them, contractual liberty is often meaningless.
The re-written passage is just as true as Sunstein’s original. (Actually, the re-written passage comes much closer to being true than does Sunstein’s original. But I grant for now the truth of Sunstein’s version.)
Does it follow that all property and contract rights are ultimately the creation of farmers and ranchers?
Society is the product of literally millions of people, each doing his or her own thing – growing wheat, working in paper mills, writing computer programs, teaching kids to read, building houses, patrolling roads for drunk drivers, judging murder cases, etc. No one of these people is indispensable, and relatively few individuals as such even make a noticeable impact on society’s course.
And while not all of these different types of activities is indispensable (society existed without, and could exist again without, computer programming), many of these types of activities are critical – agriculture, shelter-building, delivering potable water.
Let’s grant that protecting people and their property from violence and theft is not only important but indispensable – as indeed it is. It does not follow that just because the person who specializes in protecting my cow from theft thereby creates for me the property right in my cow merely because he could refuse to protect my right. Does a surgeon create my life just because, if after he opens me up on the operating table, he could but doesn’t walk away from his contractual agreement to perform life-saving surgery on me?