The Non-Aggression Principle (i.e., Respecting Liberty) is Necessary and Sufficient for Libertarianism
Matt Zwolinski tells us that “Many libertarians believe that the whole of their political philosophy can be summed up in a single, simple principle … the ‘non-aggression principle’ or ‘non-aggression axiom’ (hereafter ‘NAP’) ….” And this is what he intends to refute. Despite having criticized some interpretations of the non-aggression principle myself, I should here like to defend one version of it. For I see no inherent confusion in using the NAP as a shorthand reference to how people ought to behave and what is necessary and sufficient for interpersonal liberty fully to exist. However, in the event of a clash of liberties (e.g., I need to have a fire but you would suffer from my smoke) we need to resort to the MAP: minimization of aggression principle. And it seems reasonable to interpret the MAP as an attempt to apply the NAP as far as possible. Therefore, I view the MAP as practically implied by the NAP rather than as a separate and additional principle. This should become clearer as we proceed.
Zwolinski continues that the NAP “holds that aggression against the person or property of others is always wrong….” Except that, as we have seen, very often two parties cannot help impinging on the liberties of each other (for instance, whether pollution is allowed or prohibited: one side or the other side must suffer an interference/constraint/cost). And in such cases “aggression” may not seem to be exactly the right word, though it will do. And what is inevitable is not obviously “wrong”.
Zwolinski writes that “aggression is defined narrowly in terms of the use or threat of physical violence.” I had rather say, somewhat less imprecisely, “aggression” is proactively interfering with another’s person or property (when these are not themselves the result of any proactive interference). Is it true that “From this principle, many libertarians believe, the rest of libertarianism can be deduced as a matter of mere logic”? Most libertarians appear to have supplementary or additional principles. However, my own view is that only a pre-propertarian conception of libertarian liberty can fully allow that “the rest of libertarianism can be deduced as a matter of mere logic.” But that is, indeed, a single principle and one that I wish to explain and defend.
As an implicit criticism, Zwolinski observes that “The libertarian armed with the NAP has little need for the close study of history, sociology, or empirical economics.” That is surely a great virtue in a practical principle for everyone. Moreover, this appears to overlook that, because study is bound to be finite, no study can support a universal theory such as the NAP—although it can test it and possibly refute it. He continues that “With a little logic and a lot of faith in this basic axiom of morality, virtually any political problem can be neatly solved from the armchair.” And such simplicity is clearly highly desirable. Strictly speaking, no faith is required or possible: we do not choose what to believe. However, any—necessarily conjectural—solutions can be derived. And they are then ready for criticism and testing.
What is the philosophical significance of the fact that “On its face, the NAP’s prohibition of aggression falls nicely in line with common sense”? Common sense is a fallacious criterion of truth or morality. So it is similarly irrelevant to say that “it is far from common sense to think that its badness is absolute.” But it is relevant to present “any other possible consideration of justice or political morality” as a criticism of the NAP conjecture. It might seem that “There is a vast difference between a strong but defeasible presumption against the justice of aggression, and an absolute, universal prohibition.” But in practice our, necessarily conjectural, theories are always open to potentially refuting criticism no matter how “absolute” we might think them to be. Zwolinski approves of Brian Caplan’s view that “if you can’t think of counterexamples to the latter, you’re not trying hard enough.” But counterexamples that are merely logical possibilities and unlikely scenarios are beside the point. Real systematic refutations of the practical morality of the NAP/MAP do not appear to exist, as far as I can tell.
We then move on to the “six reasons why libertarians should reject the NAP.” And we ought to note immediately that to refute one, dubious, interpretation of the NAP is not to refute every interpretation of it.
1. Prohibits All Pollution
Zwolinski asserts that “industrial pollution violates the NAP and must therefore be prohibited” moreover, even “personal pollution produced by driving, burning wood in one’s fireplace, smoking, etc., runs afoul of NAP.” As I have explained, prohibiting pollution (for instance, coercively preventing someone from lighting his fire for needed warmth and cooking) also violates the absolute NAP. Hence the MAP comes into play.
2. Prohibits Small Harms for Large Benefits
Zwolinski asks us to “suppose, to borrow a thought from Hume, that I could prevent the destruction of the whole world by lightly scratching your finger?” And here I would reply that the NAP is about the real world rather than about every logically possible world and thought experiment. He goes on to “suppose that by imposing a very, very small tax on billionaires, I could provide life-saving vaccination for tens of thousands of desperately poor children.” This is slightly less implausible but it is still not realistic. We don’t need to tax anyone to develop new vaccines. And the institution of any taxation would disrupt productivity immediately and then do cumulative damage as the economy has its growth slowed. Moreover, that growth would probably have included new advances in vaccines sooner or later. Zwolinski concludes by asking “is it really so obvious that the relatively minor aggression involved in these examples is wrong, given the tremendous benefit it produces?” And the obvious answer appears to be that implausible assumptions do not refute a practical principle.
3. All-or-Nothing Attitude toward Risk
Zwolinski asks, “what if I merely run the risk of shooting you by putting one bullet in a six-shot revolver, spinning the cylinder, aiming it at your head, and squeezing the trigger?” And the answer is that it is an aggressive act to take such a serious risk at someone else’s expense. In monetary terms, the degree of the aggression is something like the amount of money that the victim would have to be paid to accept such a risk (I don’t mean to imply that everything can be reduced to money, of course). Without such an agreement, you are using someone else’s property—his head—without his permission for your dangerous game. Imposed risks are aggressions; actual damage is not necessary. Otherwise, by analogy, you may as well say that coercing someone to do something at gunpoint only becomes an aggression if you actually shoot them when they fail to comply.
Zwolinski then observes that “almost everything we do imposes some risk of harm on innocent persons” and that “Most of us think that some of these risks are justifiable, while others are not” but our reasonable explanations “carry zero weight in the NAP’s absolute prohibition on aggression.” And, again, this overlooks that there is aggression whether such risks are allowed or coercively prohibited. But there is no insuperable problem with applying the MAP, as long as we have a reasonable account of what policy best deals with the clash in an unbiased way (it need not be perfect or admit of cardinal accounting).
4. No Prohibition of Fraud
Zwolinski asserts that “Libertarians usually say that violence may legitimately be used to prevent either force or fraud.” Do libertarians “usually” use the word “violence”? “Coercion” seems more likely and more appropriate. He continues that “according to NAP, the only legitimate use of force is to prevent or punish the initiatory use of physical violence by others. And fraud is not physical violence.” This is easily answered. A fraud is an aggression because it violates the property rights that the relevant agreement establishes. All this talk about “violence” is merely confused.
5. Parasitic on a Theory of Property
We are told that “Even if the NAP is correct, it cannot serve as a fundamental principle of libertarian ethics, because its meaning and normative force are entirely parasitic on an underlying theory of property.” In fact, it need not be “parasitic on an underlying theory of property.” It is true that some NAP advocates argue along the following lines: “aggression” is the violation of legitimate property, and legitimate property is only established using assumptions that libertarians independently argue to be legitimate (self-ownership, labor-mingling ownership, etc.). That is because they don’t have an abstract theory of liberty from which to derive property. However, if we say that libertarian ‘liberty’ is ‘the absence of aggression’, then we can interpret this in a pre-propertarian way. Property comes into existence in a libertarian manner when that property does not aggress on (i.e., proactively constrain or interfere with) other people. For instance, I make and claim this spear, hut, rabbit stew, at no cost or loss to you: you are not worse off as a result. And if there is some vestigial cost or loss to others (for instance, you cannot now use the very same natural resources that I did), then we again resort to the MAP. I hope the gist of this view is clear enough (I have written at length in other places to deal with myriad details, but some readers become lost in their own inaccurate paraphrases of the details without first showing that they have grasped the basic problem or the basic idea of the solution). In this way, respecting liberty—as the absence of aggression—can indeed be the “fundamental principle of libertarian ethics.”
By way of illustration, Zwolinski asks us to “Suppose A is walking across an empty field, when B jumps out of the bushes and clubs A on the head … If it’s B’s field, and A was crossing it without B’s consent, then A was the one who was actually aggressing against B.” It seems worth noting that a disproportionately large retaliation itself becomes a new act of aggression. I won’t give a theory of proportionality here, but it is derivable from the NAP/MAP.
Thus we can readily agree with Zwolinski that “‘aggression,’ on the libertarian view, doesn’t really mean physical violence at all.” And we can even agree that “It means ‘violation of property rights’”—as a rule of thumb. But property rights themselves can be derived from whatever control of resources does not aggress, i.e., proactively constrain or interfere with others (or, in the event of a clash, what minimizes such constraints or interferences). Hence, it is false to say that “It is the enforcement of property rights, not the prohibition of aggression, that is fundamental to libertarianism.” As we have now seen, it is liberty itself—interpreted as the absence of interpersonal aggression—that is “fundamental to libertarianism.” That conclusion should not be completely astounding.
6. What About the Children???
Zwolinski then tells us “the NAP implies that there is nothing wrong with allowing your three year-old son to starve to death, so long as you do not forcibly prevent him from obtaining food on his own.” An analogy might help to answer this point. A child will not swim in the pool without a lifeguard. You volunteer to be the lifeguard, and as a consequence he gets into the pool. Then to allow the child to drown flouts the claim to your protection that you have previously given him: it is thereby an aggression against the child (positive actions are not always necessary to aggress against the claims we cede to people). In a relevantly similar way, a parent has assumed a duty of care for the vulnerable person that he has brought into existence. Negligently to allow one’s own child to starve to death is to flout that duty and thereby commit an aggression against that child. Therefore, one has a libertarian obligation either to feed him or to discharge the parental duty by finding someone who is willing to take it on. (I have some reservations about this position, but I won’t discuss them here.)
Consequently, it is incorrect to say that the NAP “implies that it would be wrong for others to, say, trespass on your property in order to give the child you’re deliberately starving a piece of bread.” As the starving child is having his given claims aggressed against, anyone has a right to come to his aid in his defense. Any duties that we create by our behavior, including but not limited to explicit contracts, may be coercively enforced if that is what is necessary to minimize any overall aggression.
Zwolinski then sums up his position with a few observations. He first notes that “There’s more to be said about each of these, of course. Libertarians haven’t written much about the issue of pollution.” Is that correct? For what it’s worth, when I typed “pollution” into cato.org I saw “465 results.” Then he observes that libertarians “can think up a host of ways to tweak, tinker, and contextualize the NAP in a way that makes some progress in dealing with the problems I have raised in this essay.” And, indeed, the Rothbardians have already done this with their interpretation of the NAP. But Zwolinski concludes that “There comes a point where what you need is not another refinement to the definition of ‘aggression’ but a radical paradigm shift in which we put aside the idea that non-aggression is the sole, immovable center of the moral universe.” However, this overlooks a third possibility: one can have a paradigm shift within the interpretation of what constitutes “non-aggression” (or ‘liberty’). And this is what I claim to provide.
Zwolinski’s concluding sentence is that “Libertarianism needs its own Copernican Revolution.” The analogy is more apposite than he realizes (although, of course, Aristarchus of Samos long antedated Copernicus). For the “Copernican Revolution” that we can have here is to stop trying to theorize “non-aggression” (or liberty) ultimately in terms of legitimate property and do the reverse: to theorize legitimate property ultimately in terms of non-aggression (or liberty). And with this approach all six given reasons to reject the non-aggression principle can be comprehensively refuted.
Yet I fear that this ‘revolution’ is seen as ‘heretical’ by some libertarians—where it has been noticed at all—and this is compounded by my ‘incomprehensible’ rejection of all supposed justifications in favor of the critical-rationalist epistemology that I apply (see my earlier reply on this matter). And so I should just like to emphasize that this position is not a criticism of libertarianism or any kind of compromise with non-libertarian principles. Rather, it is intended to clarify and unify much currently diverse libertarian theory behind a single principle of liberty itself. With that aim, at least, real libertarians ought to have some sympathy.
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This next piece in my series on arguments for libertarianism looks at virtue ethics. Which presents something of a problem. Most of the ways to justify a libertarian state begin with a moral philosophy and then extend it to politics. This was the case with the last three installments on Robert Nozick. Nozick takes the idea of basic rights already familiar to most of us and asks what sort of state they allow. Similarly, consequentialist libertarianism–where I’ll likely turn next–draws on another familiar moral philosophy: what’s right is whatever produces the best results.
But unless you’ve studied moral philosophy, it’s unlikely you’ve even heard of virtue ethics. And, unless you’ve studied virtue ethics, it’s unlikely you have much of a sense of what it’s all about. This is in large part because virtue ethics looks almost nothing like other schools in its basic approach to addressing moral issues.
Which all means I probably can’t assume the kind of background knowledge I did with Nozick or I will with consequentialism. And that means first writing a post introducing virtue ethics, before moving on to what it’s all got to do with libertarianism. Before undertaking that task, however, it’s important to be clear about something. Just as “consequentialism” isn’t a single, agreed upon moral theory but rather a name for a category of theories often in disagreement, virtue ethics is a school of thought, with multiple, often conflicting forms. In what follows, I do my best to stick to the areas of agreement and paint with broad strokes, avoiding the niggling–and for now, unnecessary–details.
Let’s start with the biggest difference between virtue ethics and other schools of moral philosophy. Typically, the key question of morality is “What’s the right action?” For consequentialists, the answer is whichever choice produces the best results. They’ll differ on what “results” means, though typically they’ll say it has to do with “the most happiness” or “the least pain.”
Deontologists hold that the right action is whichever conforms to proper rules or duties. While the content of those duties varies among deontologists, most libertarians align them with natural rights. Thus the morally right action is the one that doesn’t violate another person’s rights. Any action violating rights constitutes a moral wrong.
Libertarians will recognize this divide. On the consequentialist side, you have people like Ludwig von Mises and David Friedman, who argue that free markets just work better than the alternatives. On the deontological side, we find Murray Rothbard and Robert Nozick, grounding their libertarianism in fundamental human rights. Writes Nozick, “Individuals have rights, and there are things no person or group may do to them (without violating their rights).”
Virtue ethicists think they’re all starting with the wrong question. Rather than “What is the right action?,” we should ask “What is a good (i.e., virtuous) person?”
A good person is a person living a good life by the standards we share because of our common humanity. In other words, what’s a good life for humans is not the same as a good life for cats or a good life for tulips. We have a nature, and that nature defines the contours of the good life, just as our nature defines the contours of good nutrition.
But does this mean there’s really only one sort of good life? That we can’t reasonably disagree about what makes a life good? Yes and no. Yes, in the sense that two lives, both equally good, may look rather different in their details. A good life lived by an urban business woman isn’t much like a good life lived by a member of the Amish. And clearly we don’t want to say that only the Amish live good lives or only cosmopolitan city dwellers do.
But at the same time, enormous commonalities exist between good lives of any sort. To have a good life is to be loving and be loved. It is to pursue–and one hopes, achieve–meaningful accomplishments. It is to be fair and honest and kind. No one really believes otherwise. Would any of us defend as “good” a life without love, without accomplishments? One filled with dishonesty and animosity? A life of violence and insecurity? Certainly not.
It is that sort of good life, defined in broad universals, that virtue ethics is all about. It’s the sort of life we’re talking about when we say, “He’s a good man.” We all know what that means.
The ancient greek philosopher Aristotle, whose writings inspire and inform most modern virtue ethical thinking, called this good life one of “eudaimonia.” While often translated as happiness, the term more precisely means something like “human flourishing.” Eudaimonia isn’t found in a moment but rather in a lifetime. Only at the end of our lives can we be sure we’ve achieved it, as it takes into account the life as a whole. Eudaimonia is the well-lived life. Thus we can be on the path to it even at those times when we are immediately unhappy, as those temporary bouts of displeasure can have effects that enrich and improve our lives as a whole.
Our purpose as humans is to find eudaimonia. (And this isn’t just a purpose, but a strong desire. Who, after all, wants to lead a bad life?) The way we assure our lives will be good is to possess virtues and to make choices in accord with them. In order to achieve eudaimonia–to live well–we need access to goods and we need to possess virtue.
Goods are things like food, shelter, clothing, books, health, education, and so on. Without them, we won’t have the resources necessary to let us cultivate virtue. Clearly this is one of the points by which virtue ethics can lead to libertarianism. For free markets represent the best way humanity’s found for delivering goods. Thus if goods are necessary for virtuousness, which is necessary for eudaimonia, then a system of markets will be preferable to one without.
Next, we need virtues of character. These we’re all familiar with: compassion, courage, hope, integrity, honesty, benevolence, and so on. They can be thought of as both skills and dispositions. We have to fully understand the content of the virtue, which is why virtue ethics places such emphasis on moral education. We must also be disposed to act in accord with the virtue. I may understand benevolence, but unless I’m inclined to act in accord with it, I’m not myself benevolent.
Finally, we need the virtue of practical wisdom. This is the skill of understanding what virtues apply to a situation and how to act in such a way as to manifest them. Practical wisdom is the trait of being morally wise. Without it, I may act out of a sense of benevolence, but my actions could do harm to those I intend to help, and so I won’t truly be benevolent. Thus practical wisdom is a necessary component of–or prerequisite to–all the virtues.
Thus a virtuous person is one who has learned about and fully internalized all of the virtues. They have become a key part of who he is, such that his actions are always motivated by them. And he has the practical wisdom necessary to ensure that his motivations and his actions are in line.
Really being virtuous means we don’t try to behave morality, because if we have to try–if our urges tell us to do something else–then we haven’t properly internalized the virtues. Instead, we aim to be virtuous people and, when we are, one of the results will be morally right action. Here again we see an important connection between virtue ethics and libertarianism. Virtue is a character trait, not a command. It is something we must achieve ourselves (though certainly with help from others), not something that can be forced upon us by the state. The state may provide part of the framework that enables us to achieve virtuousness, but it cannot (and so should not try to) make us virtuous.
Taking morally right actions isn’t why one cultivates virtue, of course. Rather one cultivates virtue because being virtuous is just what it means to achieve eudaimonia. The virtuous life is the good life.
With all this in mind, we can finally answer the question of moral action. To act well when faced with a moral dilemma is to do whatever a virtuous person would characteristically do in a similar situation. A fully virtuous person possesses all the virtues, as well as the practical wisdom to act well. We say “act well” instead of “right action” because virtue ethics acknowledges that not all dilemmas have a right answer. Two virtuous people, in the same circumstances, could take different actions, while both acting in accord with the virtues.
Notice that this formulation is not a recipe for acting morally but, rather, a means to evaluate the morality of an action. If presented with a moral dilemma, we shouldn’t ask, “What would a virtuous person do in this situation.” Rather, we should act in accord with what our own virtue tell us to do. Thus a person lacking virtue will not be able to behave virtuously–though he can still stumble upon the right moral action by accident.
In one sense, this means virtue ethics isn’t as clear a path to right moral action as the alternatives. You can’t just apply a rule and get a result. Rather, virtue ethics says, “Let us start by enabling people to develop kindness, honesty, prudence, caring, and so on. Then we we can trust those virtuous people to act well.” In fact, the acting well will simply be whatever choices those virtuous people make.
It’s possible to argue that much of the wisdom of consequentialism and deontology can find a place within a virtue ethical framework. A virtuous person will care about the consequences of his actions and he will act in ways that respect the autonomy of others. We cannot achieve eudaimonia by actively and consistently doing harm, nor can we achieve it by treating our fellow humans as means instead of ends.
And all of this has profound implications for the state, a topic I’ll turn to next time.
For more on what distinguishes virtue ethics from consequentialism and deontology, as well as what advantages it may have over both, take a look at Why Virtue Ethics is Better Than Consequentialism and Deontology at Philosophus Autodidactus. ?
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During his recent diatribe against libertarians Bill Maher said, “Libertarians also hate Medicare and Social Security and there are problems with those programs but here’s the thing: It beats stepping over lepers and watching human skeletons shit in the river and I also like not seeing those things.”
Libertarians hear this sort of thing a lot. “You don’t think there should be limits on campaign spending? Then you must want corporations to buy elections!” Or, “You’re opposed to public schooling? What, you think all our children should just stay ignorant?”
We call this a false dilemma, a well-known logical fallacy. A person commits it when he limits the available choices in an argument too much. You can pick between A or B, he says, when in fact there’s an option C (and D, E, and F), as well. For Maher, either we keep Medicare and Society Security or we allow horrific poverty.
The false dilemma’s a logical fallacy for good reason and so by itself is never a good argument against, well, anything. But that doesn’t mean we should just ignore it. Instead, once we’ve noticed how many people employ false dilemmas against libertarian proposals, we should take a moment to ask why.
I submit that the false dilemma’s prevalence results in part from the way many libertarians talk about, and argue for, their political views.
If you have no reason to think options exist beyond just A and B, then if you hear someone arguing strongly against A, it’s not stupid to assume he’s either in favor of B or at least prefers B to A. So if you aren’t aware of any ways to prevent destitution besides Social Security, and you hear a libertarian arguing strongly against the morality of Society Security, then it’s rather likely you’ll conclude that he either wants destitution for the poor or at least would rather see the poor destitute than suffer the moral harm of Social Security.
Libertarians bear some of the blame for this. Quite often when choosing our rhetoric, we have a tendency to focus on “not A” instead of saying, “B’s not good either, so let’s instead do C.” For example, folks on the left are less likely to attack us with false dilemmas if we focus not so exclusively on the rights violations inherent in paying for Social Security, but instead point out that Social Security doesn’t work all that well or efficiently if the goal is to prevent destitution, and then offer better alternatives.
This “not A” tendency could result from the simple fact that offering alternatives means having persuasive alternatives in mind. And while they’re myriad, not all of us have the time or inclination to learn them. Call it a kind of rational ignorance in political debate. Far easier to just apply a single principle, a “universal acid” as Daniel Dennett calls it.
But we’re often also motivated by a desire to maintain our principles. Principles are good, of course. That libertarians say we value freedom and mean it is a crucial difference between us and conservatives and progressives. On the other hand, we need to recognize that non-libertarians don’t accept our core principles. If they did, they wouldn’t be non-libertarians. So if our goal is not just to be right, but to be persuasive, then starting with common ground can be rather more effective. Yes, we take a principled stand against the state coercion behind Social Security, but we also don’t want people to suffer from rampant poverty. In fact, much of what’s appealing about libertarianism is that it’s a genuine path to both: we can be free and prosperous. We shouldn’t water down our libertarianism but we should pay attention to when leading with the argument from prosperity—and using it as a way to then persuade on the issue of freedom—can be more effective than making only the argument from freedom.
Bill Maher’s fulmination just shows that the way we express our ideas is often as important for their persuasiveness as the ideas themselves.
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Libertarians generally believe that aggression against innocent persons is morally wrong, and that the only just use of violence is to prevent aggression by others. For some of the more moderate libertarians (or classical liberals) like Richard Epstein, the norm against aggression is a very strong presumption, but one that can be overridden in certain cases when weighty enough considerations are amassed on the other side. To other libertarians like Ayn Rand or Murray Rothbard, the prohibition on aggression is absolute, or very nearly so.
When we think about cases of rape, or theft, or slavery, an absolute prohibition on aggression makes good sense. It’s almost always wrong for you to steal my money, even if you need it more than I do, even if you know I’m going to spend it on something that’s bad for my health, or even if you’re going to give it to the world’s most efficient and beneficent charitable organization. In this respect, at least, the liberal egalitarian philosopher John Rawls was on precisely the same page as his libertarian colleague, Robert Nozick:
Each person possesses and inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason, justice denies that the loss of freedom for some is made right by a greater good shared by others. It does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by many. (Rawls, A Theory of Justice, p. 3)
So far, so good. When it comes to the big ways in which we aggress against each other, libertarianism’s absolute prohibition seems plausible on its face.
But what about the smaller ways? Suppose I aggress against you not by beating you over the head with a club, but by blowing tobacco smoke into your face? The smoke-blowing, just like the clubbing, is a physical invasion of your body. And it is a harmful invasion. Not, perhaps, as immediate or as severe a harm as the clubbing, but the difference is only one of degree, not of kind. Stealing a nickel from my piggy bank is just as much an act of theft, and therefore just as much a violation of my rights, as stealing $100. If, then, aggression is to be prohibited absolutely, it seems that consistency will force us to prohibit not just big aggressions like beatings and grand theft, but little ones like smoke-blowing too.
Few libertarians have adequately come to terms with the full implications of this point. One of the earliest attempts to do so can be found in Murray Rothbard’s popular work, For a New Liberty. Chapter 13 of that book contains an extended discussion of the problem of environmental issues, and in it Rothbard makes the point that industrial pollution is a form of aggression, and thus impermissible according to basic libertarian principle.
The vital fact about air pollution is that the polluter sends unwanted and unbidden pollutants—from smoke to nuclear fallout to sulfur oxides—through the air and into the lungs of innocent victims, as well as onto their material property. All such emanations which injure person or property constitute aggression against the private property of the victims. Air pollution, after all, is just as much aggression as committing arson against another’s property or injuring him physically. Air pollution that injures others is aggression pure and simple.
Industrial pollution is, of course, generally a byproduct of economically productive activity. But Rothbard had little patience for the Chicago School argument that pollution could be justified by a kind of cost-benefit analysis, writing that such arguments are “as reprehensible as the pre-Civil War argument that the abolition of slavery would add to the costs of growing cotton.” For Rothbard, matters of basic moral principle trump merely pragmatic considerations. If stopping aggression sets back economic progress, then so be it. Such is the price of respect for human rights.
But while Rothbard’s attempt to grapple with the issue of pollution in a principled way was admirable, he appears not to have grasped the full, radical implications of his own argument. If air pollution is aggression because it “sends unwanted and unbidden pollutants…into the lungs of innocent victims,” then could not the same be said about a vast range of non-industrial, purely personal activity? Don’t I emit unbidden pollutants into other people’s lungs whenever I drive my car to work? Or whenever the fire in my home or in my yard sends smoke, unbidden, into the air you breathe?
David Friedman, in the postscript to the second edition of his Machinery of Freedom, draws the implications that Rothbard didn’t. If aggression is absolutely forbidden, then sending particulate matter into your lungs isn’t the only form it can take. Sending photons into your eyes ought to count as well. This seems clear enough when the photons come in the form of a thousand megawatt laser beam.
But what if I reduce the intensity of the beam—say to the brightness of a flashlight? If you have an absolute right to control your land, then the intensity of the laser beam should not matter. Nobody has a right to use your property without your permission, so it is up to you to decide whether you will or will not put up with any particular invasion.
This last point has special bite against someone like Rothbard, who combines 1) an absolute prohibition on aggression with 2) a strongly subjectivist theory of value. In a later essay on pollution, Rothbard argues that the constant bombardment of radio waves to which we are all subject are is not really an invasion of our rights because the radio waves are invisible and do no harm, and thus do not actually “interfere with the owner’s use or enjoyment of [his] property.”
But, first, this response does nothing to mitigate the problem of most air, noise, and light pollution, much of which is detectable by man’s senses and which clearly can interfere with his enjoyment of his property. And second, and more seriously, just who does Rothbard think has the authority to decide what counts as an interference with the owner’s enjoyment, if not the owner himself? If the owner of a piece of property wants it to be free from invasive radio waves, whether because the fear that they might give him cancer causes him distress or because he wants to use the parts of the spectrum they occupy on his property himself, on what grounds can a subjectivist like Rothbard tell him that he’s not really being harmed?
The consistent application of Rothbard’s absolutist principle of non-aggression thus seems to require a prohibition on all forms of non-consensual pollution. But the prohibition of all non-consensual pollution would, it seems, mean the end of most forms of industrial production, driving, wood-burning fires, radio transmissions…in other words, the end of life as we know it. Perhaps, then, the most consistent form of Rothbardian libertarianism is a kind of very, very deep ecology. This is not, of course, the conclusion that Rothbard himself drew. And it is not the conclusion that most libertarians who follow in Rothbard’s footsteps have drawn. The more reasonable conclusion, it seems to me, is that one that David Friedman drew, and the one that contemporary philosophers who have considered the issue like Peter Railton and David Sobel have drawn—that we should reject Rothbard’s absolutist version of the non-aggression principle. I shall defend this option myself in my next essay here.
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In this final post on Robert Nozick before moving on to other arguments for libertarianism, I want to look at the “entitlement theory” of justice and his closing words on how the minimal state can inspire us.
Last time, I presented Nozick’s argument against anarchism, where he tried to justify the minimal state against those who say it’s too big. Now let’s turn to his response to those who argue the opposite, that the minimal state is too small to be just.
The “too small” people tend to argue that Nozick’s state doesn’t allow for redistribution of resources, and so can’t address inequalities between citizens. If some people have far more wealth than others, for instance, this is either unjust itself, or else the lack of resources will place an unjust limit the ability of the poor to lead good/happy/autonomous/etc. lives.
Nozick’s response is that this sort of distributive justice is itself unjust. Resources aren’t initially “distributed” by anyone. Instead, they are gathered or created by individuals, who then exchange them. So any state distribution must, instead, be a form of redistribution. And that redistribution violates rights.
In place of this account of distributive justice, Nozick offers his “entitlement theory.” He argues that for any possession of property to be just, it must first evince justice in acquisition. Here Nozick basically takes the position advanced by Locke that we are entitled to claim a property right in unowned resource when we “mix our labor” with them. Next, there must be justice in transfer. If property got “transferred” to you because you clubbed the original owner over the head and stole it, then you aren’t entitled to that property. Instead, transfers must be voluntary.
If both these criteria are met, the current holder of the property is entitled to it. And, if everyone in a society is entitled to the property he or she holds, then the distribution of property in that society is just—and thus any forcible redistribution constitutes an injustice.
In one of the most famous passages in Anarchy, State, and Utopia, Nozick shows how “liberty upsets patterns” of distributions. Let’s say, he begins, that you have a favored distribution of property. A common candidate is perfect equality. Into this perfect distribution, drop Wilt Chamberlain.
Now suppose that Wilt Chamberlain is greatly in demand by basketball teams, being a great gate attraction. … In each home game, twenty-five cents from the price of each ticket of admission goes to him. … The season starts, and people cheerfully attend his team’s games; they buy their tickets, each time dropping a separate twenty-five cents of their admission price into a special box with Chamberlain’s name on it. They are excited about seeing him play; it is worth the total admission price to them. Let us suppose that in one season one million persons attend his home games, and Wilt Chamberlain winds up with $250,000, a much larger sum than the average income and larger even than anyone else has. Is he entitled to this income?
Nozick then asks whether this new distribution is unjust—and, if so, why? Because if it is unjust, “fixing” it would demand coercively taking resources voluntarily given to Chamberlain, and then keeping careful watch on all future, voluntary transactions, so as to engage in constant redistribution as needed to maintain the original pattern.
This, of course, only scratches the surface of Nozick’s arguments about distributive justice. But his conclusion is simple: Justice doesn’t demand redistribution. Rather, it demands respecting whatever distribution exists when the requirements of the entitlement theory are met.
Now I’d like to turn to what’s both the shortest and my favorite section of Anarchy, State, and Utopia: Part 3—but a single chapter—on utopia.
Here Nozick raises a question that, even four decades later, I fear many libertarians still don’t spend much time thinking about. “No state more extensive than the minimal state can be justified,” Nozick writes.
But doesn’t the idea, or ideal, of the minimal state lack luster? Can it thrill the heart or inspire people to struggle or sacrifice? Would anyone man the barricades under its banner?
So many non-libertarian political philosophies seem focused on utopia. If only the government does X, Y, and Z, then we will have the perfect society realized upon the Earth. But libertarianism frequently (but certainly not always) gets framed as simply a list of things the state isn’t allowed to do. Which is, of course, crucially important. Yet libertarianism presents a compelling vision not just because of its demand that we respect rights and prohibit force and theft, no matter who commits them and no matter what office that person holds: Libertarianism is also a vision of a radically better world.
However, unlike so many competing visions, libertarianism, Nozick argues, doesn’t aim at a utopia. Instead, it aims at a utopia of utopias. A libertarian state allows each of us to live not the best life as envisioned by a consensus of all, but the best life as each of us defines it. Libertarianism respects our differences and grants us true autonomy to define our own paths. The libertarian minimal state, Nozick says, is a “framework for utopia.”
And that should inspire us all.
“There is room for words on subjects other than last words,” Nozick wrote in Anarchy, State, and Utopia. He’s right. But so far as this series on his argument for libertarianism goes, I’ll give the remaining room to the last words of his book, because I’m simply incapable of saying it better:
This morally favored state, the only morally legitimate state, the only morally tolerable one, we now see is the one that best realizes the utopian aspirations of untold dreamers and visionaries. It preserves what we all can keep from the utopian tradition and opens the rest of that tradition to our individual aspirations. Recall now the question with which this chapter began. Is not the minimal state, the framework for utopia, an inspiring vision?
The minimal state treats us as inviolate individuals, who may not be used in certain ways by others as means or tools or instruments or resources; it treats us as persons having individual rights with the dignity this constitutes. Treating us with respect by respecting our rights, it allows us, individually or with whom we choose, to choose our life and to realize our ends and our conception of ourselves, insofar as we can, aided by the voluntary cooperation of other individuals possessing the same dignity. How dare any state or group of individuals do more. Or less.
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Nozick’s natural rights—particularly the right of self-ownership and the consequent right to the fruit’s of one’s labor—present an obvious problem if we desire any state at all, no matter how minimal.
In order for a state to really be a state under most definitions, it needs to make two claims—and have them obeyed. First, the state maintains a monopoly on the use of force within the geographical region it controls. Second, the state collects taxes. Both of these are clearly incompatible with anarchism—and both seem incompatible with an individual’s right to protect his own rights and with his right to keep what he’s earned.
If this is true, then Nozick’s natural rights necessarily demand anarchism. But Nozick doesn’t want to his natural rights to tie us to anarchy. Instead, he wants to argue that these rights are, in fact, compatible with a minimal state—what’s often called minarchism.
Nozick argues that we can get from anarchism to minarchism without anyone’s rights being trampled if we keep in mind the principle of compensation. His story goes like this:
Begin with an anarchist society. Every person is responsible for protecting his or her own rights. Soon, however, people realize that rights protection is a service like any other, and service providers will appear, selling protection to customers, and competing with each other for clients. Nozick calls these “protection agencies.” So far, this world looks very much like the hypothetical anarcho-capitalist worlds of Murray Rothbard and David D. Friedman.
Nozick thinks the natural progression will be from many, smaller agencies to fewer, larger ones. If I’m looking for an agency to protect my family and my property, chances are I’ll be drawn to the biggest and most well-established. Over time, this will concentrate clients among a handful of firms.
In order to handle disputes between clients of different firms, the agencies will either merge further or enter into agreements with each other on how to handle inter-agency conflicts. This will lead eventually to a single “dominant protection agency”—or a single dominant organization of large agencies.
We’re still living in anarchy, however. None of those agencies can compel people to accept and pay for its services and so the world still contains many “independents,” as Nozick calls them. These independents—either individuals or smaller, non-affiliated agencies—present a problem for the dominant protection agency. In the mind of that agency and its clients, independents take justice into their own hands. The dominant protection agency’s job is to protect the rights of its own clients, so it understandably gets concerned when an independent seeks to extract restitution from one of those clients. Not knowing for sure if the client is guilty, the dominant protection agency is obligated to prevent the punishment until guilt is assured. And the only way for the dominant protection agency to be sure (or sure enough) of its client’s guilt is to subject that client to its own procedures.
In other words, the dominant protection agency’s obligations to its clients prevent it from allowing the continued existence of independents. But notice that this move takes the agency one huge step toward statehood, because it has claimed for itself an exclusive right to the use of force (independents cannot use force without the agency’s permission). According to Nozick, the dominant protection agency has now become an “ultra-minimal state.”
The ultra-minimal state isn’t quite a state, not yet. For that, one more step is needed: taxation. Because independents cannot be denied rights protection entirely without that denial turning into a rights violation, and because the ultra-minimal state now prevents independents from protecting their own rights, the ultra-minimal state must itself protect independents. Put another way, the ultra-minimal state is obligated to protect the rights of everyone within the territory it claims jurisdiction over.
Doing so requires resources. If independents know they’ll receive protection even if they don’t pay, we’ll end up with a classic free-rider problem as the state’s clients gradually break off payments and become (still-protected) independents. So the ultra-minimal state has no choice but to force those it protects to pay for its service. It has no choice but to collect taxes. Because it’s giving independents rights-protecton services, it’s justified in forcing them to pay for those service.
Thus anarchism becomes the ultra-minimal state, which becomes the minimal state. And all, Nozick thinks, without anyone’s rights getting violated.
Does it work? The trouble for Nozick is illustrated by a single question: “What don’t the anarchists want?” Under anarchism, the independents were independents precisely because they did not want the protection agency’s services enough to pay for them. Maybe they thought the price was too high. Maybe they thought they could better protect their rights on their own. Maybe they took a principled stand against a market in rights protection. The precise reasons independents chose their independent status doesn’t matter. That they chose it—and thus rejected agency protection at agency prices—does.
But the ultra-minimal state, as it becomes a genuine state, forces independents to accept its services and then forces them to pay for those services. Nozick hopes to keep this force from turning into a rights violation by having the ultra-minimal state compensate the independents with services—services that were precisely what the independents didn’t want in the first place.
For this reason, most anarchists find Nozick’s moral justification for the state far from compelling. It’s as if Nozick said, “I’m going to force you to listen to my album even if you don’t want to—and I’m going to charge you for the album, too. But don’t worry! I’ll compensate you for all this coercion by letting you listen to my album.”
In the end, almost no one thinks Nozick’s argument against anarchism holds up. There may well be other ways to get from strong natural rights to a morally legitimate state, of course. But for those we’ll have to look elsewhere.
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Why begin this series on arguments for libertarianism with Robert Nozick? He’s certainly not the first person to offer a philosophical justification for libertarianism, nor is he even the most widely read.
No, the reason to start with Nozick is because his classic work, Anarchy, State, and Utopia (ASU), is where nearly everyone starts if they’re coming to libertarianism for the first time in a philosophy classroom. And, in most cases, it’s where they end, too. For in the academy, Robert Nozick simply is libertarianism—and the arguments he makes in ASU represents for many political philosophers the whole of libertarian philosophy.
Another reason to start with ASU is that it’s just such a wonderful book. Nozick writes unlike nearly every other philosopher. He’s playful and funny. And he has a wonderfully refreshing attitude toward philosophical argument. “There is room for words on subjects other than last words,” Nozick writes in the book’s preface.
Indeed, the usual manner of presenting philosophical work puzzles me. Works of philosophy are written as though their authors believe them to be the absolutely final word on their subject. But it’s not, surely, that each philosopher thinks that he finally, thank God, has found the truth and built an impregnable fortress around it. We are all actually much more modest than that. For good reason. Having thought long and hard about the view he proposes, a philosopher has a reasonably good idea about its weak points; the places where great intellectual weight is placed upon something perhaps too fragile to bear it, the places where the unravelling of the view might begin, the unprobed assumptions he feels uneasy about.
Nozick maintains that modesty throughout ASU. And if that’s the only lesson we take from the book, it would still be worth reading. But it’s not. ASU has much to offer in its defense of liberty.
So what is Nozick’s libertarian position? It begins with natural rights. Quite literally. Here’s the first line of ASU: “Individuals have rights, and there are things no person or group may do to them (without violating their rights).”
These rights are natural in that we have them because of what we are and not because they were given to us by someone. But just saying we have rights isn’t the same as giving an argument for why we have them. To do this, Nozick draws on Immanuel Kant’s famous Categorical Imperative, specifically its second formulation: “Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only.” Humans are by nature rational beings possessing dignity. This dignity prevents us from being used by others, and hence we have rights against such use.
Our rights function as “side-constraints,” Nozick says, limiting what others—including the state—may do to us. We can’t trade rights away for benefits. For example, we are prohibited from deciding that a little more happiness or a little more wealth (or a lot more) is sufficient grounds for violating a person’s rights. People “may not be sacrificed or used for the achieving of other ends without their consent,” Nozick writes. “Individuals are inviolable.”
From this Nozick moves to a basic principle of self-ownership. I own myself and thus have a right to do with myself as I please. You own yourself and have the same right. I don’t own you and you don’t own me. This gives each one of us rights not only to ourselves, but also to the fruits of our labor. (Nozick argues for this last point along Lockean lines.) In other words, Nozick takes our fundamental rights to be of the negative sort. These are rights to be free from certain acts by other people (assault, theft, enslavement, etc.), not rights to be provided with certain goods and services (a right to healthcare, or a right to education).
But this leads to an enormous question when it comes to politics, one Nozick helpfully points out: “So strong and far-reaching are these rights that they raise the question of what, if anything, the state and its officials may do. How much room do individual rights leave for the state?”
The shortest answer is “not much.” The slightly longer outline Nozick provides—before spending much of the book defending his claims—looks like this:
Our main conclusions about the state are that a minimal state, limited to the narrow functions of protection against force, theft, fraud, enforcement of contracts, and so on, is justified; that any more extensive state will violate persons’ rights not to be forced to do certain things, and is unjustified; and that the minimal state is inspiring as well as right. Two noteworthy implications are that the state may not use its coercive apparatus for the purpose of getting some citizens to aid others, or in order to prohibit activities to people for their own good or protection.
This sets Nozick up for arguments with two groups. First, those who think this vision of the state is too small: progressives, liberal egalitarians, communitarians, socialists, conservatives, and so on. Second, those who think this vision of the state is too big: anarchists.
In my next post, I’ll turn to Nozick’s dispute with the anarchists, specifically his argument that the move from anarchy to a minimal state can occur without anyone’s rights being violated.
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Is libertarianism best understood as a doctrine committed to the maximization of freedom? In my last post, I presented a moral argument against this interpretation. In brief: the goal of maximizing freedom is compatible with violating the liberty of the few, so long as their loss of freedom is sufficiently compensated by the greater freedom of the many. This stands in stark contrast to the libertarian view of freedom, in which each individual’s liberty is seen as a (nearly) inviolable constraint on the way in which other individuals or groups may legitimately pursue their goals.
In this post, I want to present a different kind of argument against this “maximizing” interpretation of libertarianism. Not only is the goal of maximizing freedom an immoral one, for the reasons I have already articulated. It is, arguably, an incoherent one. When we think about it in a casual way, it’s easy to fool ourselves into thinking that we know what it means to maximize freedom. But this is an illusion that can be quickly dispelled by pursuing a few lines of thought more deeply.
We can begin by noticing that the idea of maximizing freedom will only make sense if we are able to compare different people, situations, or social systems in terms of the amount of freedom they have or allow, and to say whether one has more or less than another. Is this something we are able to do?
It’s easy to think of a few simple cases where we seem to be. Consider the abolition of slavery in the United States. Prior to abolition, slaves lacked (among other important freedoms) the freedom to control the own labor. After abolition, they possessed this freedom to a much greater degree. If anything could make a country more free, surely the liberation of some 12 percent of the population from the bonds of slavery is it. The United States without slavery certainly wasn’t maximizing freedom, but it at least came closer than it did with slavery.
This seems like an easy and obvious case. And it would be an easy an obvious one if all that the abolition of slavery involved was the granting of new freedoms for some members of the population. If the freedom of all non-slaves was unaffected by abolition, and the freedom of slaves was unambiguously increased, then we could confidently conclude that the freedom of society (i.e. the sum total of the freedom of all individuals in society) had increased.
This is not, however, what abolition actually did. Abolition did, of course, increase the freedom of slaves. But it also diminished the freedom of certain non-slaves. Specifically, it diminished the freedom of slave-owners.
This sounds like a shocking claim. But it shouldn’t be. If we understand freedom in the way that most libertarians do – if we understand it, as Rothbard did, as the “absence of molestation by other persons” – then it is actually quite obvious. Prior to abolition, slave-owners were able to do certain things to their slaves without fear of interference by other persons. They could force their slaves to work, physically restrain them, beat them, and so on, all without the law doing anything to stop them. After abolition, they could no longer engage in these activities without fear of legal intervention. Before abolition, the law allowed them to do certain things. After abolition, it didn’t. Their freedom had been reduced.
Now, obviously, I think it is a good thing that their freedom had been reduced in this way. The activities that slaveowners were no longer allowed to engage in were ones that violated the moral rights of their slaves. A just society will not allow its members this freedom, any more than it allows its members the freedom to kill each other, or steal from each other. But from the fact that the exercise of these freedoms is unjust it does not follow that they are not really freedom after all. If I could snap my fingers and make it the case that you were able to do whatever you wanted, just or not, without interference from others, you would be more free as a result. If I snapped my fingers again and thereby magically prohibited you from doing anything unjust, you would be less free. Freedom is one thing; justice is another. And very often what justice requires, in the case of slavery and in many other cases, is that certain freedoms be curtailed so that others might be enhanced.
I will explore the theme of conflicting freedoms in more detail in my next post. For now, the important thing to note is that if the abolition of slavery increased some people’s freedom, and reduced the freedom of others, then determining the net effect on freedom becomes considerably more difficult. For now we must determine whether the gains in freedom were greater than the losses. And it is just not at all clear how we are supposed to do that. Presumably, we would have to add up the freedoms gained by the slaves, subtract from that the freedoms lost by the slaveowners, and see if what we’re left with is a positive number. But how, precisely, is this to be done? What is the “unit” of freedom on which our operations of addition and subtraction are to be performed?
This last question is especially important, and challenging. To make it clearer, consider the following example from the philosopher Will Kymlicka’s critique of libertarianism. Suppose we want to compare the freedom of people in London with that of people in pre-1989 communist Albania. People in London have freedoms like the right to vote, the right to practice their religion, and other civil and democratic liberties. People in Albania, let us say, lack these freedoms. “On the other hand, Albania does not have many traffic lights, and those people who own cars face few if any legal restrictions on where or how they drive” (143). Kymlicka’s sense, which I share and I expect most of you do too, is that Albania’s lack of traffic regulations does not compensate for its lack of basic civil liberties. It is, on the whole, a less free society than London. But the question is: can we account for this judgment simply in terms of a quantitative judgment about the amount of freedom in Albania as compared to London?
How would such a quantitative judgment be made? Should we count up the individual, particular action-tokens that are forbidden in Albania and compare them with the action-tokens that are forbidden in London? If we discovered that, over the course of a year, red lights produce 18,623,545 instances of people being prevented from acting in the way they desire to act, whereas denial of the right to vote produces only 42,658 such instances, would that be sufficient to demonstrate that the red-lights are more freedom-restricting than the denial of political liberty? Or should we be counting not individual action-tokens but more general action-types, i.e. “the right to vote” versus “the right to drive through intersections as one wishes”? And whether we choose types or tokens, just how are we supposed to individuate actions in order to add them up? Is the right to marry the person of your choice one action? Or a shorthand way of describing an enormously large number of discrete actions?
However we decide to count up actions, the whole exercise seems largely to miss the point. For it assumes that what we care about when we care about liberty is (merely) the total number of actions allowed or prohibited. But why think that all freedoms are of equal value? Why should the freedom, say, to be governed by one’s own conscience in matters of religious belief count for no more than the freedom to count the blades of grass on one’s lawn? Why believe that all that matters in assessing the freedom of a country is the numerical quantity of freedom allowed, and not the substantive quality of that freedom?
Libertarians are right to believe that freedom matters. They might even be right to believe that it is the highest political value. But it is a mistake to think that these ideas, however true they might be, can be fleshed out in terms of a commitment to maximizing freedom. Morally, a commitment to maximizing freedom is inconsistent with libertarianism’s proper concern for individual rights. And conceptually, it is based on the incorrect assumption that freedom is the sort of thing that can usefully be measured, compared, added, and subtracted. In certain easy cases this may be possible. But the possibility that certain cherished freedoms can be gained only at the expense of other freedoms makes generalized comparison in terms of freedom alone difficult, if not impossible.
This insight has important implications for libertarianism in general, but especially for a correct understanding of the relationship between liberty and property. And so it is to this topic that I will turn in my next post.
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What is the relationship between libertarianism and liberty? In my last post, I began to explore this question, and suggested that one popular answer—that libertarianism seeks to maximize liberty—is flawed. In this post, I will explain in greater detail why.
As I noted in my last post, the maximizing view is one that is more often attributed to libertarianism by its critics than by its sophisticated advocates. It holds that in choosing between two policies or institutional structures, we ought to choose that which yields the greatest amount of liberty, and that libertarian political institutions are justified because they yield the maximum amount of liberty.
There are several serious problems with this view. The first is one that is common to all maximizing views—most notably, classical utilitarianism. In classical utilitarianism, of course, the goal is to maximize utility rather than liberty. But the most serious objections to utilitarianism as a political morality really have nothing to do with the nature of the maximand. They have to do, instead, with the idea that morality should aim at the unconstrained maximization of some aggregate, interpersonal good.
What utilitarianism seeks to maximize is not the happiness of any particular person but of the aggregate of happiness across persons: the sum of my happiness, plus yours, plus hers, and so on. But maximizing aggregate happiness is compatible with leaving some people destitute. It is even, more disturbingly, compatible with making some people destitute. So long as the misery of the few is sufficiently compensated by the happiness of the many, the treatment of fate of any particular individual is of no decisive relevance for the utilitarian. It is for this reason that philosophers as distinct as John Rawls and Robert Nozick have both objected that utilitarianism fails to take seriously the separateness of persons.
The view that justice consists in maximizing liberty is subject to precisely the same objection. Insofar as it is aggregate liberty that is to be maximized, this view will countenance the sacrifice of some persons’ freedom for the benefit of others, so long as the net result is positive. Rather than freedom serving as a constraint on the ways in which others may permissibly act, freedom on this view serves as a goal to be maximized without any real constraint.
This has troubling implications for a variety of policy issues, such as (for example) questions involving the preventative detention of potentially dangerous individuals. On the maximizing view, there is no principled objection to imprisoning an innocent person X merely on the grounds that X is deemed likely to commit some offense in the future. Such preventative detention restricts X’s liberty, of course, but if it prevents X from acting in ways that would have restricted the liberty of sufficiently many other people (by killing them, or stealing from them, etc.), then, on this view, it is justifiable.
A defender of the maximizing view might argue that such trade-offs are unlikely to be beneficial in the real world as opposed to the world of philosophical thought experiments. And there is undoubtedly some truth to this response. I will simply note, however, that it is precisely the same response that a utilitarian might make to the charges of injustice we have leveled against his theory. And so whatever reasons we have for finding the response inadequate in that context (and I think we have plenty), apply here as well.
There is, however, a distinct line of response that is open to the proponent of maximizing freedom but not open to the proponent of maximizing utility. And that is to claim that the problem of unjust trade-offs does not arise for the maximizer of liberty because liberty, unlike utility, admits of a maximum conceivable limit. This seems to have been Murray Rothbard’s critique of Herbert Spencer’s “law of equal freedom,” which held that “every man has the freedom to do all he wills, provided he infringes not the equal freedom of any other man.” For Rothbard (following Clara Dixon Davidson), this formulation is redundant, since “if every man has the freedom to do all that he wills, it follows from this very premise that no man’s freedom has been infringed or invaded. The whole second clause of the law after ‘wills’ is redundant and unnecessary” (Power and Market, p. 266).
If Rothbard is right, libertarianism is immune to the kind of criticism we have leveled against utilitarianism. Libertarianism leaves every person free to do all that he wills. We thus need not worry that maximizing freedom will require unjustly sacrificing the freedom of some for the sake of greater freedom for others. And that is because it is conceptually impossible to give any individual more freedom than libertarianism already allows them.
Unfortunately, however, Rothbard is not right. Libertarianism does not hold that people are morally free to do all that they will. The freedom of all individuals is sharply curtailed by the rights of others. If I try to punch you in the nose, or trespass on your property, you may justly interfere with my doing so.
Libertarianism does, of course, hold that people are free to do all that they will provided they do not violate the rights of others. But this is a much less impressive claim. This claim does not render libertarianism immune to the objection we are considering, since it leaves open the possibility that freedom could be increased by abridging the rights of some and thus giving greater freedom to everyone else. Moreover, this version of the claim is entirely vacuous. Any theory leaves individuals free to do whatever they want as long as they don’t violate the rights of others—as those rights are specified by the theory.
So much for the idea that libertarianism is or ought to be about maximizing liberty. Or, almost so much. I have argued in this post that maximizing freedom is a morally unattractive goal, insofar as it licenses the sacrifice of the few for the benefit of the many. But there is an even more fundamental problem. The goal of maximizing freedom is not only unattractive, it is incoherent. Or so I will argue in my next post.
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