Liberal and Illiberal Libertarianism
1LIBERALISM AND ILLIBERAL LIBERTARIANS
I appreciate the attention that Professors Boettke and Candela give in their article to my earlier essay, “Illiberal Libertarians: Why Libertarianism is not a Liberal View” (Freeman 2001). In that paper, I distinguish three positions that are commonly regarded as liberal in contemporary philosophical discussions: classical liberalism, libertarianism, and the left-liberal position that I term “the high liberal tradition.” The main argument of the paper, as its title suggests, is that, in spite of superficial resemblances, libertarianism is not a liberal view but instead closely approximates the doctrine of private political power that is feudalism. I used the term libertarianism in a narrow sense, one that Boettke and Candela, and most contributors to this volume, regard as too narrow: namely as representing the type of position defended, most notably, by Robert Nozick in Anarchy, State, and Utopia (ASU) and by others.
Nozick’s book is, after John Rawls’s A Theory of Justice, the most influential book in political philosophy in the last century. The two books, published within three years of each other, rejuvenated political philosophy. Nozick’s book contains one of the most sustained, sophisticated, and, for all its flaws, still powerful criticisms of Rawls’s theory. His arguments have been repeated and elaborated upon many times over by critics of Rawls. But the main accomplishment of ASU is that Nozick’s “entitlement theory” and argument for the minimal state made libertarianism academically respectable by brilliantly developing the philosophical intuitions in their favor. ASU appeared in 1974, at a time when there were few voices in philosophy, law, economics, and other social sciences that even argued against the welfare state and hardly anyone who defended libertarianism. Milton Friedman’s Capitalism and Freedom had appeared 10 years earlier, and the “new classical economics” defense of laissez-faire had begun to reassert itself within the “Chicago School.” But while Friedman and his followers argued for deregulation of all parts of the economy, like Hayek, he still supported government funding of public goods and even social insurance programs, arguing that the latter should be replaced by a negative income tax. This was a far cry from Nozick’s and similar libertarian accounts of the minimal state, which reject coercive taxation, the idea of the public good, and all that goes with it.
My paper, first drafted in 1990, was largely a response to Nozick’s position, though it also addressed similar claims made by Rothbard, Jan Narveson, John Hospers, Eric Mack, Tibor Machan, and others. To review briefly the main line of argument: I associate classical liberalism with Locke’s account of robust property rights and the economic liberalism that grew out of Adam Smith and others in the eighteenth century, which was more fully developed by David Ricardo, Thomas Malthus, the young J. S. Mill, J. B. Say in France, and other classical economists in the nineteenth century. Classical liberalism was then, and still is, to a large degree associated with the doctrine of laissez-faire (Schumpeter 1996: 395). Hayek and Friedman were major twentieth-century representatives of classical liberalism, along with James Buchanan and the “Virginia School” of public choice theory, Gary Becker and other members of the “Chicago School,” Ludwig von Mises of the Austrian School of Economics, David Gauthier among philosophers, and Richard Posner and Richard Epstein among legal scholars. Most if not all of these thinkers were utilitarians or at least welfarists of some variety.1 Of course, they all put a great deal of emphasis on liberty, especially economic liberty, but this normally was justified by appeals to the “invisible hand,” the “spontaneous order,” and related historical processes, the indirect benefits of which are purported to be economic efficiency and greater individual and overall welfare.
My phrase “the high liberal tradition” is intended to cover a range of positions that argue for and incorporate positions variously known as new liberalism, modern liberalism, progressive liberalism, and left-liberalism. High liberalism evolved out of J. S. Mill’s account of ‘individuality’ and related idealist accounts of autonomy; arguments for social equality and for democracy in Rousseau, Mill, and others; and Mill’s and similar liberal responses to the socialist critique of laissez-faire capitalism.2 High liberalism’s major philosophical representatives in the twentieth century are John Dewey and John Rawls. Ronald Dworkin, Joseph Raz, Thomas Nagel, T. M. Scanlon, Bruce Ackerman, and many others also work within this tradition. High liberals endorse political equality and more economic regulation, public goods, and social-insurance programs than classical liberals do; they argue that economic liberties and property rights are to be qualified by the public good, and that society has a duty to guarantee as a matter of right and justice everyone’s basic needs and the material conditions of their well-being. Perhaps the most distinctive claim of the high liberal tradition distinguishing it from classical liberalism is that there are not only standards of economic justice that govern markets and the specification of private property but also standards of distributive justice that determine the fair distribution of income and wealth. Rawls’s difference principle, Dworkin’s equality of resources, van Parijs’s basic minimum income, and “prioritarian” accounts by restricted utilitarians and other consequentialists are notable among contemporary liberal accounts of distributive justice.
Still, in spite of their very significant differences, classical liberals and high liberals agree on a wide range of basic social institutions that comprise a liberal constitution and society. These include a political constitution that guarantees the rule of law and equal basic rights and liberties that are inalienable and that maintain the free and equal status of citizens; some conception of equality of opportunity, to compete for and occupy open positions; free and efficient markets, to allocate productive resources and distribute consumer goods; a governmental role in the provision of public goods; a social minimum that at least meets individuals’ basic needs; and implementation of a public conception of political power, the duty of which is to impartially promote the public good.
Of course there is much disagreement about how to interpret and specify these basic liberal institutions. Classical liberals, unlike high liberals, regard full economic liberties and robust rights of private property in productive resources to be on a par with basic rights and liberties of the person, such as freedoms of conscience, speech, and association; freedom and integrity of the person and of tastes and pursuits; freedom of occupation; and the right to hold personal property. They also normally conceive of equality of opportunity in formal terms as an absence of legal discrimination on grounds of race, religion, gender, and so on. Classical liberals further regard capitalist markets as not only essential to the efficient allocation of productive resources and labor but also as the fundamental criterion for the just distribution of income and wealth. Finally, the classical liberal “safety net” is normally regarded not as an individual right or social duty of justice but as either a prudential measure to maintain order and stability (Hayek), or as public good (Friedman), or as a charitable public duty to provide a decent level of subsistence to those who, because of disability or other misfortune, are unable to provide for themselves.
High liberals, by contrast, regard most economic liberties, other than freedom of occupation and choice of careers, as non-basic liberties that can be restricted for reasons other than protecting basic liberties and maintaining conditions for their effective exercise. They are prepared to regulate and restrict economic rights and liberties not just to maintain the fluidity and efficiency of markets but also to reduce inequalities of real political power and concentrations of wealth, to achieve greater equality of opportunities, and to promote a broader conception of the public good and a larger social minimum. And while high liberals endorse free markets and the price system as normally essential to the efficient allocation of productive resources and labor, they do not regard market outcomes and other consensual transfers of property as the fundamental criteria for the just distribution of income and wealth.
I argued in my paper that libertarianism, for all its superficial resemblance to liberalism, in fact rejects each of the basic social institutions that are characteristic of the classical and high liberal traditions. Because libertarianism endorses absolute property rights and unrestricted freedom to contract and transfer away any and all rights in one’s person and possessions, including personal and political rights that liberals regard as basic, it rejects the inalienability of the basic equal liberties that secure the freedom and equality of persons and citizens. Once these rights have been alienated, libertarianism is willing to coercively enforce inequalities of the basic rights and liberties that define the moral equality of persons at a fundamental level. Moreover, the libertarian minimal state (insofar as it exists at all) has no authority to guarantee equal opportunities and non-discrimination on grounds of race, religion, gender, and so on as a matter of law. Similarly, nothing requires businesses to serve or employers to even consider despised minorities for employment, and (in Nozick’s account) the minimal state is not required by justice to even sell them political protection services. Libertarian absolute property and contract rights also mean that government cannot protect markets against gross inefficiencies, such as price fixing and other forms of collusion or monopolies in crucial resources. Other than protecting libertarian property rights and enforcing contracts, the minimal state has no role in providing public goods—libertarians reject the idea. Of course there is no provision for a social safety net or any other public assistance for the destitute and disabled. Finally, a consequence of absolute property and unrestricted contract rights is that political power is regarded as a private economic good, to be sold in “protection packages” with different “political services” as people are willing and able to pay for them.3 In this regard, libertarianism is, I argue, a kind of feudalism. It is not feudal because it permits coercive serfdom (though it does not forbid it, just as it does not forbid slavery if contracted into). Rather, libertarianism is a kind of feudalism in that, in treating political power as an economic good, it regards it as a private power that is to be bargained for and exchanged for compensating benefits—whether that be fealty with military service, or a share of one’s harvest for one’s lord in medieval or Japanese feudalism, or payment for protection services dispensed by a minimal state acting as dominant protection agency in libertarian feudalism. Political power is not then a public power as it is for liberals, a fiduciary power that is held in trust and that is to be impartially exercised only for the public good and the benefit of every citizen. 4 It is rather dispensed like any other private good, depending on a person’s willingness and ability to pay for the political services he or she can afford.
2LIBERAL LIBERTARIANS
I turn now to address Professors Boettke’s and Candela’s article. They say, “Freeman’s critique is not fundamentally characteristic of libertarianism in general” (2016: 5). They do not take issue with my characterization of libertarianism but rather they see it instead as addressing an extreme position that they themselves call “illiberal.” 5 They do not claim that my depiction of this illiberal version is inaccurate or even that my criticisms are in error. Instead, they argue that I mistakenly believe that libertarianism in general must be grounded in an idea of absolute property, and that I ignore the fact that there is an alternative libertarian position, “liberal libertarianism.” As a form of liberalism, this alternative form of libertarianism, they say, is not based on absolute property rights or on a principle of non-aggression. It is rather grounded in a “basic right to liberty,” which (by implication) is inalienable. (“We define ‘basic’ here in the same manner as Freeman.”) In response to my claims that libertarianism is fundamentally about absolute property and that liberty is simply one among the property rights we have, Boettke and Candela say:
The metanormative principle paramount to liberalism is the basic6 right to liberty, not the individual right to private property. In other words, the right to liberty is not the right to private property itself; rather, the right to private property is corollary to the right to liberty and arises in a context in which individuals are free to self-direct their lives according to their own purposive plans.
To reply: I do not deny that there could be a form of libertarianism that is called liberal, so long as it is understood that it differs substantially from Nozick’s and similar views. What I am less sure of is whether and if so how it differs in significant respects from what I call classical liberalism. Nothing the authors say about liberal libertarianism seems to deny any of the basic institutions that I argued are characteristic of both the classical and high liberal traditions. (But then, other than basic liberty and perhaps efficient market systems, they do not seem to directly address the remaining institutions I discussed—equality of opportunity, public goods, the social minimum, and the public nature of political power.) Assuming they are amenable to incorporating these institutions also into a liberal libertarian society, it seems that we may be simply stipulating different definitions of libertarianism and disagreeing over the extension and use of the term—which means there is no substantive disagreement between us.
For purposes of this discussion, I’ll distinguish “orthodox libertarianism,” represented by Nozick’s and similar views and which was the subject of my initial paper,7 from the “liberal libertarian” position that Beottke, Candela, and perhaps other contributors to this volume advocate or are sympathetic to. Assuming that liberal libertarianism endorses all the basic institutions that are characteristic of the classical and high liberal traditions, what might be the point of conflating two such fundamentally different positions (in my view)—liberalism and orthodox libertarianism—which disagree so profoundly about basic social institutions and their philosophical rationale? I argued in my 2001 paper that the classical and high liberal traditions, for all their differences, agree at a fundamental level on the outline of basic social and political institutions, and that none of these basic institutions are endorsed by orthodox libertarianism. The point of the argument is not so much a reductio ad absurdum (as Beottke and Candela contend) as it is to map the political landscape and encourage those liberals on the right who think of themselves as both liberal and libertarian to consider where their real philosophical and moral commitments lie—with liberalism or with orthodox libertarianism.
An intriguing question and test of classical liberals’ intellectual commitments and moral sentiments is this: If they had to choose between the lesser of the two evils, how many classical liberals would choose orthodox libertarianism over high liberalism? I believe many would. Many classical liberals, forced to choose a “second best,” would be willing to compromise and even abandon all of the basic social institutions that have characterized liberalism since the eighteenth century in order to defend something that they regard as even more essential to justice than liberalism itself. What might this be? It is not “basic liberty,” for classical and high liberals generally all agree on basic liberties with one very important exception. It is that exception—namely, the laissez-faire conception of robust private property, contract rights, and other economic liberties—that fundamentally distinguishes the classical and high liberal positions. Their refusal to surrender laissez-faire rights and liberties for a more qualified conception of property and the distributive role of markets, one that guarantees a basic income or otherwise imposes limits on the economic disparities, would lead many classical liberals to choose the orthodox libertarian account of absolute property and contract rights over the qualified conception endorsed by high liberalism. But as we’ve seen, absolute property and contract rights require the rejection of basic liberal institutions.8
One way to understand liberal libertarianism that perhaps renders the term non-redundant is that it represents the position of those classical liberal philosophers who, if given the choice, would endorse orthodox libertarianism as a second best arrangement of society, ranking it above high liberalism. Classical liberal libertarians in this sense might be distinguished from what can be called orthodox classical liberals, who would decline to give up the basic institutions I’ve argued are central to liberalism and who would rank high liberalism over libertarianism as their second choice. These facts might explain why some philosophers who are classical liberals (in the sense I’ve suggested) acquiesce in being recognized as both liberals and libertarians, as opposed to those classical liberals who would decline or object to having the term applied to them. It’s a matter of whom one would rather associate and be associated with.
A different way to characterize liberal libertarians is that it is a hybrid position, as its name suggests, lying somewhere between orthodox libertarianism and classical liberalism in that it rejects one or more though not all basic liberal institutions. Clearly, the most objectionable feature of orthodox libertarianism, for Boettke, Candela, and most others, is the complete alienability of basic rights and liberties that is a consequence of absolute property and unrestricted contract rights. Especially troublesome is the complete alienation and forfeiture of freedom and integrity of the person that results in slavery or other forms of involuntary servitude. Liberal libertarians, as Boettke and Candela define them, reject the alienability of basic rights and liberties.9 But with respect to other liberal institutions, liberal libertarians may not be so adamant. (I leave aside for now the question whether a liberal libertarian must reject the alienation of all or only most basic liberties. The alienation of political rights and liberties by those who do not meet property qualifications or who are on public assistance may not be regarded as such a bad thing by many liberal libertarians, or even by some classical liberals.10 What is more likely is that liberal libertarians would not regard the political liberties as basic rights or liberties at all11—which is one way to answer in the negative the question of whether any basic liberties should be alienable.)
The first liberal institution that most liberal libertarians seem ready to discard is the social minimum, even in the meager form of the classical liberal safety net inherited from the English Poor Laws. Hobbes (not a classical liberal) argued for Poor Relief on grounds that no one should be made dependent on the charity of others for their means of subsistence—not because it is undignified to be put in that position, but because most people are indifferent to the welfare of the destitute, who threaten peace and social stability if not provided for. Classical liberals of the nineteenth and twentieth centuries endorsed the Poor Laws for similar or additional reasons. From a classical utilitarian perspective, one can see how provision of at least means of subsistence would be justified. Early on, Hume noted that the poor derive far greater utility from an extra shilling or dollar than do the wealthy. Friedman regarded poverty relief as a public good that all benefit from, and Hayek defended the safety net on the Hobbesian prudential grounds just mentioned—without it, the destitute would be driven to crime in order to survive (Friedman 1962: 191; Hayek 1979: 55, 187).
Most who endorse both liberalism and libertarianism do not regard themselves as utilitarians, welfarists, or liberal Hobbesians—or if they do, it is only in the most indirect sense, where direct public appeals to welfare play little or no role in political decisions. Instead, most contend that their fundamental moral commitment is to liberty and individual freedom, or to non-coercion and non-interference, or respect for persons, or moral desert, or similar deontic concepts. On one or more of these grounds, they argue that public assistance is not a right of individuals or even a duty for governments to provide. To justify their rejection of the safety net, some appeal to the idea that no-one has a claim upon others’ largesse unless they deserve it.12 Or they may argue (as has Speaker of the House Paul Ryan) that to have self-esteem and be worthy of the respect of others, the poor must be self-sufficient “makers,” not “takers” dependent on food stamps, housing allowances, subsidized school lunches, and other undeserved handouts (unless of course such handouts are gifts freely bestowed by family members).13 The rejection of anti-poverty programs has come to be a familiar position among many Republicans (especially the Tea Party). A similar position is endorsed by a large number of Americans who believe that the poor are “undeserving” because they do not work. Systemic economic unemployment is not an excuse, even for those with children.
From a high liberal and orthodox classical liberal perspective, this position, however well intentioned, is unreasonable, especially as applied to children in poverty, people with serious physical and mental disabilities, orphans, and other vulnerable populations unable to care for themselves. It violates a basic tenet of minimal reciprocity: Those who are legally required to comply with a system of social rules that imposes stringent obligations to respect the property rights and claims of those far better off cannot reasonably be expected to do so when their basic subsistence needs are not met by a society that enforces such obligations.
Opponents of government anti-poverty programs (those who are not social Darwinians) think that programs are unnecessary; they contend that once government eliminates the safety net, private charity will step in to fill the void. This is an odd position for those liberal–libertarians who think that individuals act on self-interested motives in interactions with unfamiliar persons in both market relations and in political settings. Why should we expect people to be charitable to the poor and voluntarily contribute to adequately meet their basic needs when there is no historical evidence for this, especially during economic depressions and recessions before government programs ever existed (Konczal 2014)? Only 12 percent of charitable contributions now go to the poor, with the vast majority going to contributors’ universities, churches, their children’s local schools, or nature conservancies, cultural institutions, and similar organizations that contributors have direct interests in (Kenny 2014). It is unrealistic to expect that their private contributions would increase manyfold to fill the void left by the elimination of all poverty programs, social security, Medicare, and Medicaid. Hobbes was right: People are generally indifferent towards the poor; hence those who “by accident inevitable, become unable to maintain themselves by their labor; they ought not to be left to the Charity of private persons; but to be provided for (as far-forth as the necessities of Nature require), by the Laws of the Commonwealth” (Hobbes 1991: 239).
Another basic feature of liberalism that liberal libertarians are prone to compromise, even if not entirely surrender, is the public nature of political authority. “Private governance” is a popular idea among many libertarians.14 This is not simply “outsourcing” public goods and services to private providers who are paid with public funds, such as school vouchers for private schools or privately run prisons, water and sewer works, sanitation services, and so on. Friedman argued for privatizing the supply of public goods on grounds of the benefits of competition, and this has become a successful political movement since the Reagan era. Private governance is rather the elimination of public participation, provision, regulation, and perhaps even oversight of many public goods and services altogether. One example is the substantial increase in the private arbitration of disputes between businesses and consumers, pursuant to consumers’ contractual waivers their right to a civil trial. Another example is exclusive reliance on restricted covenants, instead of zoning laws, to regulate or curtail uses of real estate (allowing structures only for residential use, for example).
In defense of the privatization of public functions, advocates draw on public-choice theory and contend that government is misguided and grossly inefficient, that political officials are often corrupt and normally driven by self-interest and by the private interests of lobbyists and contributors, and that markets and private associations perform the same functions better than government.15 They might also contend that, even if government were more efficient and less costly than private provision of services (as advocates for the “public option” claim Medicare is), the basic right to liberty itself requires minimizing governments’ role in the provision of services. The aim purportedly is to minimize the role of government in most aspects of peoples’ lives, except those that are regarded as most crucial to liberty. This would include primarily the protection and enforcement of individuals’ rights, liberties, and the rule of law, and the adjudication of disputes—the same essential services provided by Nozick’s privatized state. Also included may be other essential public goods, such as public-health measures for the prevention of epidemics and serious disease; and building ports, canals, highways, streets, tunnels, bridges, and other infrastructure in areas where economic demand is insufficient to pay for and sustain them, all of which are essential to freedom of movement and travel, economic prosperity, and so on.
The downside to “private governance” and the privatization of government functions in essential public goods and services is its exclusionary nature—only those who are able to pay for privatized public services obtain them, and some who are willing to pay will be excluded on racial, religious, and other grounds by providers who want to serve only homogenous group members. For example, racially segregated neighborhoods historically have been the inevitable outcome of politically unregulated reliance on restrictive covenants. But for courts to uphold racial covenants makes it complicit in enforcing segregation.16 Moreover, without government oversight, there is the danger of the often-biased administration of services and settlement of claims, which is normally in favor of those with economic power. The privatization of public goods and functions, most orthodox liberals would say, means the loss of impartiality in making, applying and enforcing laws and other social rules, greater favoritism for those with economic power, and the loss of enforceable protections and services for the weak and the poor. Exclusion and partiality in the administration of what liberals regard as public goods and services seriously undermine fundamental liberal values and institutions that guarantee equal protection of laws and equality of opportunity. These are among the liabilities of private governance in the domains it covers, especially as it increasingly approaches the point of completely privatized political power that is feudalism.
A position that eliminates the safety net and leaves to private governance many of the less crucial public functions and provision of goods and services provided by the liberal state might still be called liberal in a qualified sense. This is a good way to understand what “liberal-libertarianism” is about and how it differs from orthodox liberal positions. Any further serious compromise of basic liberal institutions—especially to one or more inalienable basic liberties, formal equality of opportunity, or the provision of more essential public goods—would further impoverish the liberal element within liberal libertarianism, perhaps beyond recognition, and result in a non-liberal qualified libertarian view. It is hard to conceive of any liberal government today enforcing contracts that alienate any of the equal basic liberties or formally equal opportunities, or the constitutional rights that specify them, that define the equal status of citizens. This is implicit in the Equal Protection Clause of the 14th Amendment. Once upon a time, of course, women, Blacks, and those who did not meet property qualifications did not have the right to vote or hold office, but classical liberals today would say that such civic inequality was a failure to realize the promise of liberal institutions, which guarantee the equal civic status of citizens. For liberal libertarians who denigrate government, equal political rights may be most susceptible to alienation if not elimination; in either case, they would not recognize equal political rights and liberties as basic.17 When equal political rights and liberties are no longer basic, then groups of people can be deprived of their rights to vote and hold office for trivial or even unjust reasons (because they do not meet property qualifications, cannot pay a poll tax or pass literacy tests, or because of their race, religion, or political affiliation). In that event, civic equality is lost and the liberal element in liberal libertarianism is seriously impoverished if not abandoned. Moreover, surely the basic personal liberties of conscience, association, expression, tastes and pursuits, freedom of the person, freedom of occupation, the right to hold property, protections guaranteed by the rule of law, and formal equality of opportunity are all essential to anything that pretends to be a liberal view. Without protection for those equal basic rights and liberties, social equality is eliminated and with it, public recognition of the moral equality of persons. Finally, a government that protected these basic rights, liberties, and formal opportunities and adjudicated disputes but failed to maintain a semblance of competitive markets or provide any other public goods or services (public-health and sanitation measures, water and sewer works, ports, highways, etc.) or any social minimum would be hard to regard as liberal and is a qualified orthodox libertarian position.
Here I think it is notable that liberal–libertarian arguments for non-government involvement in basic liberal institutions is normally grounded largely in considerations of greater efficiency of the private sphere in providing these same goods. Thus it is argued that anti-poverty programs create dependency, and that the poor are better off without them. Or that private arbitration of legal disputes is more efficient and equally impartial as judicial procedures and saves the public money. These are largely empirical arguments (not a great strength of philosophers), and they imply that, if false, then liberal libertarians might be willing to allow government to fulfill the same roles left to markets and private benevolence. These are not the same kinds of arguments that orthodox libertarians make against liberal institutions. No amount of dire poverty unalleviated by private charity could convince an orthodox libertarian to enact coercive taxation to pay for public assistance, since it would violate absolute property rights. This suggests that many liberal libertarians may be simply classical liberals who are willing but skeptical that government can successfully perform the functions assigned to it by the basic liberal institutions, and that it is better to leave these up to private enterprise and charity.
This is one sense in which liberal libertarianism is a hybrid view. Unlike orthodox libertarianism, its rejection of certain basic liberal institutions is not grounded in philosophical principles of absolute property but in empirical conjectures regarding the greater efficiency of markets to achieve aims of classical liberal political institutions. And if they are wrong about the effectiveness of markets to do what they promise, then liberal libertarians have a choice to make—whether to endorse orthodox classical liberalism or give up their impoverished liberalism altogether and become orthodox libertarians.
Finally, liberal libertarianism—like orthodox libertarianism—is distinctly American. It reflects the naïve individualism of nineteenth-century rural and small-town life, where people of the same race and religion knew almost everyone else and would help their neighbors and take care of the vulnerable among themselves through tight-knit families, neighborhoods, and religious organizations. This ideal still plays well in the same white middle-class milieus (which many of us grew up in). As a political ideal, it is hard to imagine it gaining much popularity, or credibility, in large cities and especially in North Philadelphia, Southside Chicago, the Bronx, Detroit, and other impoverished areas, where unemployment is at depression levels, many people survive on less than $2000 per year, and, given our mottled safety net, some have no reliable source of income at all.
3REMARKS ON LIBERTY AND PROPERTY
The primary difference between orthodox libertarian and liberal views is the conception of absolute property and unrestricted contract rights grounding the former. Often if not always this stems from the libertarian claim of self-ownership: Each person has absolute ownership and control over his or her own person, to act and dispose of themselves as they will, so long as others’ rights are not violated. Absolute ownership of one’s person transmits to absolute property rights in un-owned things appropriated from nature and/or that one invests one’s labor with. We may exclusively use, consume, transfer, impose conditions on others’ future use of, and dispose of rights in things and in ourselves as we will, without encumbrance and limited only by others’ similar rights in themselves and their holdings. The orthodox libertarian ideal of absolute property pushes to the limit the classical liberal laissez-faire view: All rights are in effect property rights, including rights to basic liberty, opportunity, and human rights to the integrity of the person.18 Absolute property envelops everything within its reach.
Professors Boettke and Candela invert the priority that orthodox libertarianism assigns to absolute property over basic liberty, restoring the latter’s priority: Property rights are “corollary” to basic liberty, they say, not vice versa. This raises the complex question of the relationship between liberty on the one hand and the laissez-faire or similarly robust private-property rights they endorse on the other. One of the ostensible benefits of orthodox libertarian self-ownership is that it seems to provide an unambiguous way to address the problem of justifying absolute private property in external things; it emanates from the absolute ownership we have in our own persons. But if basic liberty is inalienable and we no longer “own ourselves” in the absolute way orthodox libertarians claim—(“But then who does?” libertarians ask; the answer is surely “No-one.”19)—then how can we come to have robust laissez-faire private rights in things?
The traditional classical liberal argument for laissez-faire property and contract rights is the indirect utilitarian argument from the invisible hand: The private self-interested pursuit of economic advantage within competitive markets with laissez-faire property rights and complete rights to income results in greater aggregate wealth and greater overall economic satisfaction for members of society as a whole. But this is an empirical claim that is readily challenged by liberal utilitarians, among others, who advocate the capitalist welfare state, arguing that transfers from the more to the less advantaged can further increase greater overall welfare in society. Classical liberals’ insistence that, to maximize welfare, market income has to remain in control of economic agents who “produce” it (or whose property produces it) comes across as flat-footed and unconvincing to many.20 So the natural move, made by Hayek, Friedman, and other classical liberals, is to add that liberty, including economic liberty, is “an end in itself,”21 an intrinsic as well as instrumental value that justifies owners’ complete property rights in the income and wealth created by their market activity and obtained by consensual transfers.
To show convincingly that liberty and its cognates—liberty as such, basic liberty, non-interference, non-aggression, maximum liberty, minimal coercion, and so on—justifies laissez-faire property and contract rights is fraught with serious difficulties. For unlike personal liberties of religion, speech, association, and so on, exclusive property rights, and especially extensive rights afforded by laissez faire, impose enormous constraints on and interfere with everyone else’s “natural” freedom, and this interference is only multiplied by coercive enforcement. No-one’s expression of an idea, or faith in and practice of a religion, by itself interferes with anyone else’s personal freedom to express the same idea or believe and associate with the same religion. But ownership of external things excludes “all the world” and interferes with everyone’s freedom to occupy the same space or use or consume the same objects and resources.22
Of course, laissez-faire private property gives to owners greater economic freedom to use, consume, transfer, and dispose of their holdings than more qualified property rights do. But this is trivial; it’s simply what laissez faire means. Laissez-faire rights and liberties do not mean that everyone’s liberty or freedom, in anything but this purely formal sense, is on the whole increased, maximized, or better realized. Depending on the distribution of property, and especially in a grossly unequal society where many reject laissez-faire property norms, all that really may be increased is the sum total of interference with and coercion required to enforce the laissez-faire property system against those who oppose it.
These are of course complex issues requiring far more discussion than can be given here. But my view is that ideas such as maximizing liberty or basic liberty, or non-coercion, non-aggression, and similar cognates mentioned above, cannot by themselves make a convincing case for laissez-faire economic rights and liberties or, for that matter, any conception of property. We need some antecedent theory of individual rights that justifies laissez-faire property as somehow essential to individuals’ free pursuit of their legitimate purposes and projects. Only then is content given to the ideas of not illegitimately coercing others, or not interfering with them as they legitimately exercise these rights, or having the liberty to exercise one’s rights as one chooses, and so on.
Boettke and Candela make suggestive comments along these lines. They say on several occasions that libertarian rights, including property rights, are justified since they enable “human flourishing” and “cooperation under the division of labor.”23 Part of human flourishing, they suggest, is individual independence and autonomy.24 This and related lines of argument that appeal to an ideal of persons as flourishing, autonomous, or as free, equal, and independent seem far more promising as non-utilitarian arguments for the laissez-faire economic rights and liberties than do appeals to liberty as such, non-coercion, non-interference, and others mentioned above.
But arguments for laissez-faire rights that rely on human flourishing, autonomy, independence, being a project pursuer, and so on make it difficult to avoid the guarantee of a liberal social minimum. Surely meeting one’s basic needs is a minimum condition for the effective pursuit of one’s purposes and projects, or for human flourishing, autonomy, individual independence, and so on. As one philosopher who identifies with classical liberalism (perhaps liberal libertarianism too) says:
If a person is otherwise unable to secure that which is necessary for his ability to live as a project pursuer, then he has a rightful claim to provision by others who have a surplus beyond what they require to live as project pursuers. In that strictly limited but crucial respect, basic rights extend beyond liberty rights to welfare rights.
(Lomasky 1987: 126)
Basic welfare rights may be more than liberal libertarianism can bear. They go beyond the charitable classical liberal safety net and come perilously close to, if they do not cross the border into, high liberal terrain.
Still, conceding a duty to provide or even a right to a social minimum does not imply an account of distributive justice, which is one of the most distinctive features of high liberal views. Classical liberalism and libertarianism resemble each other in that they endorse such extensive property rights and economic liberties that there is no room left for a required pattern of distribution, other than one accidently generated by consensual exchanges and transfers. The classical liberal and libertarian conception of extensive property rights and economic liberties preempts the need for a separate account of economic or distributive justice.25 Distributive justice, assuming there is such a thing, is whatever distribution results from the consensual transfer and exchange of these rights and entitlements.
Unlike high liberal views, classical liberals and libertarians, in determining individuals’ entitlements, pay no heed to the effects of the accidental contingencies of nature, society or (mis)fortune—including the talents a person is born with or without, the family circumstances and social class he/she is born into, and the accidents of fate that befall a person throughout life. There is no attempt to neutralize the effects of these “arbitrary contingencies” on individuals’ life prospects, as Rawls’s difference principle does, nor to equalize the effects of “brute luck,” as Dworkin’s equality of resources does. This is perhaps the major similarity between classical liberal and libertarian views of all kinds, and it helps explain their advocates’ affinity for one another, in spite of their otherwise fundamental differences: It is the idea that starting with the appropriate specification of extensive property rights and economic liberties, just distributions consist in the outcome of a historical process of transfers and exchanges of entitlements among economic agents within an entirely or largely free (but for classical liberals, also competitive) market system. All the difficult argumentative work has to be done up front, in justifying the complex system of laissez-faire (or absolute) property rights and economic liberties that underwrite eventual distributions of entitlements. Once that system is in place, then any distribution of entitlements that results from the historical process is just, regardless of the amount of “brute” or “option” luck that goes into it or the degree of inequality that results. Economic justice is about the enforcement of extensive property rights and the fair execution of a fair process, not about adjusting the outcomes that result from this process to meet some pattern or other requirement external to it. Economic justice is then an unadulterated example of “pure procedural justice.”26
4CONCLUDING REMARKS ON INALIENABILITY
Boettke and Candela claim that I engage in an argumentative strategy of reductio ad absurdum by arguing that libertarianism is ultimately committed to “the right to contract oneself into slavery” (p.8). They note that some libertarians, such as Rothbard, do not recognize this right. My claim was not that the right to contract oneself into slavery is essential to libertarianism. Instead, my argument was that absolute property with unrestricted freedom of contract is essential to libertarianism, and that a consequence of this, as Nozick concedes, is a right to sell oneself into slavery. Even if some orthodox libertarians do not recognize this specific right, the general problem of the unrestricted right to alienate all other basic rights and liberties remains.
The general problem is this: How much freedom should we have to enable others to enlist the power of the state or private persons to coerce us to do things we do not want to do and that we may even strongly object to on religious or moral grounds? In any liberal society, people can give others the freedom to legally coerce them to pay their debts, or repossess autos or real estate they have not fully paid for, or vacate premises they reside in. But they cannot give others the legal power to force them to practice a particular religion, or take away their right to own property, or decide their occupation, or give up any other basic right or liberty they enjoy.27 But given the absolute or near-absolute status assigned to unrestricted freedom of contract by orthodox libertarianism, the question is: what are the limits, if any, on our right to give the state or anyone else the legitimate power to coercively force us to act against our will and conscientious convictions, once we have agreed to give someone that power at some time in the past? Self-inflicted slavery, or transforming oneself into someone else’s property for legal purposes, is just an extreme example of this more general problem with orthodox libertarianism.
The primary problem with unrestricted freedom of contract is that it puts almost no political or moral check on outcomes—not simply economic outcomes that libertarians regard as unfortunate but not unjust, such as economic destitution in a wealthy society, but also outcomes that the vast majority of reasonable people would regard as grossly unjust or even evil. People, if desperate enough, will contract themselves into virtually anything in order to salvage that which they most value, love, and cherish (most notably their children, parents, or other loved ones). Depending upon the magnitude of the evil motives of those they contract with, they can acquire an enforceable legal obligation to do horrible things to themselves and other unfortunate contractors, and government and the rest of us would have a moral duty to stand by and permit this. There’s a moral compass missing in a view that puts no moral limits on outcomes and what people coercively can do to a person once he has agreed to it at some point in the past, no matter how remote. It is one thing to voluntarily act as another’s slave or enter and voluntarily execute a suicide pact; it is quite another for the state or anyone else to coercively enforce, or stand by and allow coercive enforcement of, slavery contracts or suicide pacts or similar violations of basic human rights in the face of a person’s objections.
In response, it’s been said that libertarianism in this regard does not differ from democracy, which high liberals especially value; there are no limits on the evils that democratic majorities can agree to and coercively enforce either, as is shown by the democratic authorization of Nazism in Germany, or slavery, legalized segregation and Jim Crow laws in the United States. But the difference is that democracy, so conceived, is a voting procedure, a political institution argued for by most modern accounts of justice, including some liberal libertarian accounts.28 It is but one among several social institutions that are to be designed to achieve the moral ends and principles of theories of justice. According to liberal theories of justice, a constitutional democracy imposes moral limits on the genuinely bad outcomes that majoritarian consent can result in when it goes morally awry. But unlike a liberal constitutional democracy, orthodox libertarianism and its institutions put no moral limits on what people can consent and be coercively forced to do by the exercise of (private) political power.
For liberals, it is precisely because political power is a public fiduciary power that is not to be exercised contrary to the public good that liberal governments refuse to coercively enforce or permit the private enforcement of unconscionable contracts, especially those that violate individuals’ fundamental moral rights and liberties. The fact that someone has willingly consented that his basic rights and liberties may be coercively violated by the state or others against his future will is of no more moral significance than the fact that democratic majorities have sought to permanently alienate their own basic rights and liberties and accept dictatorship or totalitarianism.
Some orthodox libertarians may try to avoid this outcome (as Boettke and Candela say in noting that Rothbard declined to make slavery contracts enforceable). They recognize that some contracts are morally “unconscionable” (as the common law says) and hence unenforceable and legally void. But which contracts are void, and for what reason? Surely the moral intuition that rejects the enforcement of slavery contracts would also apply to coercively enforcing mutual “suicide” pacts or permission to kill or cannibalize contracts as well. But then what other fundamental norms of human decency should be included in the class of void contracts; the non-violation of basic human rights, such as the right not to be tortured, imprisoned without trial, or forced to have sex with others? But now it seems we’ve entered a different moral domain that says that respect for persons as such requires that certain wrongs cannot be inflicted upon them, even with their prior consent. To reply that this is paternalism suggests that one has a misguided sense of what paternalism is or why limits on it are morally important.
Brennan, J. (2012) Libertarianism: What Everyone Needs to Know. New York: Oxford University Press.
Freeman, S. (2001) ‘Illiberal Libertarians: Why Libertarianism Is Not a Liberal View,’ Philosophy and Public Affairs, vol. 30, no.2: 105–151.
Freeman, S. (2011): ‘Capitalism in the Classical and High Liberal Traditions,’ Social Philosophy and Policy, 28 (no. 2): 19–55.
Nozick, R. (1974) Anarchy, State, and Utopia. New York: Basic Books, Part I, ‘How to Back into the State without Really Trying’ on the Minimal State, pp. 3–120; Part II, ‘Beyond the Minimal State,’ §1 on the Entitlement Theory, pp.149–182.
REFERENCES
Boettke, P. J., and R. A. Candela. (2017) “Liberal Libertarians: Why Libertarianism Is a Liberal View,” in The Routledge Handbook of Libertarianism, ed. Jason Brennan, Bas van der Vossen, and David Schmidtz. New York: Routledge Press.
Brennan, J. (2012) Libertarianism: What Everyone Needs to Know. New York: Oxford University Press.
Dicey, A. V. (1914) Law and Public Opinion in England. London: MacMillan.
Freeman, S. (2001) “Illiberal Libertarians: Why Libertarianism Is Not a Liberal View,” Philosophy and Public Affairs 30: 105–151.
Friedman, M. (1962) Capitalism and Freedom. Chicago: University of Chicago Press.
Gaus, G. (2016) The Order of Public Reason. Princeton: Princeton University Press.
Hayek, F. A. (1960) The Constitution of Liberty. Chicago: University of Chicago Press.
Hayek, F. A. (1978) Law, Legislation, and Liberty, Vol 2: The Mirage of Social Justice. Chicago: University of Chicago Press.
Hayek, F. A. (1981) Law, Legislation, and Liberty, Vol 3: The Political Order of a Free People. Chicago: University of Chicago Press.
Hobbes, T. (1996) Leviathan, edited by R. Tuck. Cambridge: Cambridge University Press.
Kenny, C. (2014) “Why Private Donations Aren’t Helping the Poor,” Bloomberg Business Week, October 13, www.bloomberg.com/news/articles/2014-10-13/why-private-donations-arent-helping-americas-poor.
Konczal, M. (2014) “The Voluntarism Fantasy,” Democracy 32 (Spring), http://democracyjournal.org/magazine/32/the-voluntarism-fantasy/?page=all.
Locke, J. (1980) Second Treatise on Government. Indianapolis: Hackett.
Locke, J. (1983) A Letter Concerning Toleration. Indianapolis: Hackett.
Lomasky, L. (1987) Persons, Rights, and the Moral Community. New York: Oxford University Press.
Los Angeles Times. (2012) “Despite Working Class Image, Ryan Comes from Family of Wealth,” August 25, http://articles.latimes.com/2012/aug/25/nation/la-na-ryan-assets-20120826.
Media Matters. (2016), June 6, https://mediamatters.org/research/2016/06/06/will-media-fall-paul-ryan-s-sham-poverty-proposals-again/210750.
Mill, J. S. (1871) Principles of Political Economy, 7th ed. London: Longman, Green, Reader, and Dyer.
Narveson, J. (2001) The Libertarian Idea. Boulder: Broadview Press.
New York Times. (2012) “Conservative Star’s Small Town Roots,” August 12, http://www.nytimes.com/2012/08/13/us/politics/family-faith-and-politics-describe-life-of-paul-ryan.html?_r=1&hp&pagewanted=print.
Rothbard, M. (1977) Power and Market. Kansas City, MO: Sheed Andrews and McMeel.
Schmidtz, D., (2006) The Elements of Justice, Cambridge, UK: Cambridge University Press.
Schumpeter, J.A. (1996) A History of Economic Analysis. New York: Oxford University Press.
Steiner, H. (2013) “Directed Duties and Inalienable Rights,” Ethics 123: 235–36.
Stringham, E. (2015) Private Governance: Creating Order in Economic and Social Life. Oxford University Press.
NOTES
1.Buchanan and Gauthier, though contractarians who argued against utilitarianism, are still welfarists and rely heavily on economic efficiency in arguing for classical liberalism.
2.See Mill 1871, especially book II, ‘Distribution’, chs.1–2 on property and socialism; book IV, chs.5–6 on the stationary state and the future of the laboring classes, and book V on government.
3.Nozick provides “minimal protection packages” for the poor who are unable to pay for political services, but it only covers aggression by “clients” of the “Dominant Protection Agency.” He argues that the fee charged to clients to pay for this is not a coercive tax on them but simply is part of the cost of protecting clients against non-clients’ aggression. In Nozick’s account, there is no political protection for “non-clients” of the minimal state against aggression by other non-clients. There is in this and other respects no impartial administration or equal protection of the laws.
4.This is essentially John Locke’s definition of political power, 2d Treatise, ¶3) and A Letter Concerning Toleration, and it is one of the most fundamental features of liberalism.
5.“Freeman’s claim, one in which the right to property is equivalent to the right to liberty, is indeed indicative of an illiberal understanding of libertarianism.” Boettke and Candela (2016).
6.Here appears a footnote: “We define ‘basic’ here in the same manner as Freeman (2001).”
7.I prefer the term orthodox to the terms extreme or hard or radical libertarianism, largely because I see it as an ideal that many liberal libertarians wish could be true, were it not for some of its unfortunate implications. Rawls at one point called Nozick’s position “ideal libertarianism.” His reason, I believe, is that he saw Nozick’s libertarianism as ideal theory, an idealized “historical process view,” that assumes full compliance among individuals initially situated within a hypothetical state of nature. Nozick’s entitlement theory implies that existing holdings in our non-ideal circumstances are just only to the degree that they were arrived at by an actual historical process of consensual transfers that approximates the ideal historical process set forth in his view. Since other orthodox libertarians may not endorse ideal theory, I will not apply Rawls’s term to their position.
8.The distinction between absolute and qualified property is Mill’s. For my purposes, to say a right is ‘absolute’ means that it is unencumbered by any duties, disabilities (in Hohfield’s sense), encumbrances, or deficiencies, and that its legitimate exercise is incapable of being overridden by any other obligations except to respect others’ rights. To use Joel Feinberg’s well-known wilderness case: The absolute property rights of the owner of an unoccupied cabin in the wilderness have been violated when campers break into the cabin in order to save their lives from a blizzard, or from grizzly bears, or for whatever reason. Or a person who jumps into my yard to avoid being hit by a car, in spite of No Trespassing signs, has violated my property rights. Even if these violations may be morally and legally excused because of extreme emergency, my rights are not overridden and the violation is not morally or legally justified, simply excused. Both trespassers must pay for any damage they cause, and even if none, they can be fined a nominal amount ($1) for their trespass at common law. My auto example responds to Jason Brennan’s claim that most libertarians do not endorse absolute property rights since it would not be wrong for the pedestrian to dodge the car by coming onto my land. See Brennan 2012: §67. Whether or not it’s “wrong,” it’s still a trespass, even if there is a legal excuse for it. See also Steiner 2013 for this use of Feinberg’s wilderness example and his claim that the owner’s rights are not overridden.
9.Again, as implied by their claim that basic liberty in my sense of ‘basic’ is the foundation of their view.
10.See Friedman’s seeming approval of A. V. Dicey’s claim in 1914 (194) that those on public pensions and other forms of “poor relief” should not be allowed to vote for members of parliament.
11.See Brennan 2012: §38: “Libertarians usually do not believe that the political liberties—the rights to run for office, hold positions of power, or vote—are the same kind of thing as the civil and economic liberties.” This downgrading of political rights is perhaps related to Brennan’s claim that “democracy, like all forms of government, is inherently repugnant,” but that constitutional democracy is still superior to all others since it is the least likely to abuse its (limited) powers.
12.Cf. Gaus 2016: 363–4, who argues that a “strong duty of assistance” is not justifiable since it “is not stable under full justification.” Some citizens’ “strong devotion to principles of desert,” he says, is a “defeater [of] the argument for a positive right to assistance.” Whether this apparent rejection of both a right to assistance and even a public charitable duty of assistance also means that Gaus would reject Hayek’s Hobbesian argument for a safety net on grounds of maintaining social order and stability is unclear. Aside from apparently rejecting a social minimum, Gaus otherwise seems to endorse the remaining basic liberal institutions I have discussed.
13.See Media Matters 2016 for a list of references to Ryan’s proposals to eliminate anti-poverty programs, including school lunch programs, and his remarks on the poor. Congressman Ryan seems to experience no loss of self-respect, moral shame, or work initiative as a result of his and his wife’s inheritance of several million dollars from his grandfather and her parents. Having inherited it, he no doubt thinks they now morally deserve it. See Los Angeles Times 2012. See also New York Times 2012.
14.I take the term from the book by Edward Stringham (2015). In the foreword, Peter Boettke gave high praise to the book and the idea of private governance.
15.See again, Jason Brennan, sections 35–36, “Libertarians believe that in politics, the worst often get on top” and that many “politicians are inept, counterproductive do-gooders.” It’s an interesting question whether the widespread self-interest, corruption, and ineptness that government officials are allegedly prone to also includes those common-law and federal judges, legislators, and governors who in the nineteenth and early twentieth centuries shaped and enforced the laissez-faire property and contract rights that ground classical liberalism and liberal libertarianism.
16.As was suggested in Shelley v. Kramer, 334 U.S. 1, (1948), which held that the judicial enforcement of racial covenants on real estate is unconstitutional on Equal Protection grounds. Such covenants were almost universal in many regions of the United States prior to this decision.
17.Cf. Jason Brennan, who in The Ethics of Voting (2012) holds that people should be allowed to buy and sell the right to vote on particular occasions if not to completely alienate the right on a permanent basis.
18.See Rothbard, who says, “In the profoundest sense there are no rights but property rights” (1977: 238). Jan Narveson says: “Liberty is Property...the libertarian thesis is really the thesis that a right to our persons as our property is the sole fundamental right there is” (2001: 66).
19.The idea of absolute ownership—that someone, either government or private persons, has to “own” all the rights in a person or thing—is related to the idea of absolute sovereignty—that someone ultimately must possess absolute political power with no limits. As the history of constitutional governments shows, absolute sovereignty is unnecessary and a mistake. The same is true of absolute ownership.
20.Cf. Hayek (1960: 95–8), who argues that unless a person gets “all the credit or gain,” or the full value of his marginal contribution, he would have no basis for deciding whether a pursuit is worth the effort and risks. This allegedly would destroy incentives and he would have to be told what to do.
21.Friedman (1962: 8).
22.Loren Lomasky (1987: 116–8) makes the point well that property rights are “uniquely exclusionary” in a way that personal liberties are not.
23.See Boettke’s and Candela’s reference, p.102 in this volume, to “human flourishing as the normative premise upon which individual rights and peaceful social cooperation ought to be based” as an alternative basis for libertarianism instead of the “non-aggression axiom.”
24.Boettke and Candela, p. 98 of this volume.
25.See David Schmidtz (2006: Part 6, 183–227).
26.Rawls says that his difference principle is also an instance of pure procedural justice, which perhaps explains why Hayek says of Rawls that “we agree on what is to me the essential point” (1973–79: xiii, see also 100). But in fact for Rawls, economic outcomes reached via markets, gifts, bequests, and other consensual transfers are subject to adjustment according to redistributive property rules, which Hayek presumably would not endorse given his allegiance to laissez-faire property with complete rights to income and wealth.
27.Indeed, the remedy of specific performance is rare as a remedy for the breach of most contracts and is used only in limited cases like real-estate contracts, unlike the far more common remedies of paying damages for loss or restitution.
28.See Brennan 2012, pp. 62–63, who endorses constitutional democracy.