Why Libertarianism Is Mistaken
Libertarianism has experienced a noticeable re-emergence in the past few years. F. A. Hayek, Milton Friedman, and Robert Nozick have given new intellectual impetus to the movement1 while a growing concern for personal autonomy has provided personal ground for the sowing of the idea. Yet even though this theory is prima facie plausible and demands serious reassessment of the concepts of liberty and property, it ultimately fails. Once we admit, as the libertarian does, that the state justifiably takes on certain functions, for example, police protection of persons and property, there is no rational basis for believing that the state is unjustified in redistributing tax revenue. We cannot stop, as the libertarian suggests, with the minimal state of classical liberal philosophy. I will not, in this paper, say exactly how far beyond the minimal state we should go. I only argue that libertarianism is not a moral option. On the surface this conclusion seems meager, yet its implications are far-reaching. By eliminating a previously plausible and popular conception of distributive justice, we will narrow the alternatives. By identifying a major flaw in libertarianism, we will secure direction in our search for an adequate theory.
After briefly describing libertarianism I will argue that the theory is guilty of internal incoherence: the theory falls prey to the very objection it offers against competing theories. Then I will consider four possible libertarian replies to my argument. Each, I will claim, fails to disarm my internal objection. After concluding my argument, I will speculate on the roles freedom and property should play in an adequate theory of distributive justice.
A DESCRIPTION OF LIBERTARIANISM
Libertarianism also contends that in certain prescribed circumstances there can be positive in personam rights, that is, that individual X has a positive right to, say, $1,000 and someone else Y has a positive duty to give X that money. These positive rights, however, are not natural rights; they are not possessed by all persons just because they are persons. They can arise only consensually. For example, if A promises B that he will serve as a lifeguard at B's swimming pool, then B has a right against A and A has a duty to B--a duty to guard those in B's pool. But unless A so consents, he has no positive duties to B, or to anyone else for that matter. Consequently, for the libertarian, there are no general positive duties and no general positive rights. There are only alleged general positive rights; claims to such rights (or of such duties) are mistaken. For if there were positive general duties we would have to violate negative general rights to satisfy them. For example, suppose everyone had a positive general right to life; then everyone would have rights (entitlements) to those goods necessary to stay alive, e.g., food to eat. But food, or the money to buy it, doesn't grow on trees (or, if it does, the trees are owned). Those who own the food or the money have negative rights protecting their possession of these things. And negative general rights, for the libertarian, are absolute.3
There are no circumstances in which these rights can be justifiably overridden, in which one's liberty can be justifiably limited without his consent. Hence, X's rights to property (or life or liberty) can never be overridden for the benefit of others (to satisfy the alleged positive rights of others). X can choose to charitably give his property to, someone, or he can voluntarily give someone a positive right to his property. Nevertheless, morally he cannot be forced--either by legal sanctions or moral rules--to give up his life, liberty, or property. This moral/legal prohibition insures that an individual's liberty cannot be restricted in any way without his consent.
Thus we see two important features of libertarianism. First, the primary purpose of negative general rights is the protection of individual liberty, to insure that no one's life is restricted without his consent. Or as Nozick puts it: "Side constraints [which are equivalent to negative general rights] upon action reflect the underlying Kantian principle that individuals are ends and not merely means; they cannot be sacrificed or used for the achieving of other ends without their consent . . . .[These constraints] reflect the fact of our separate existences. They reflect the fact that no moral balancing act can take place among us."4 Secondly, the libertarian holds that a sufficient reason to reject any alleged moral rule or principle of distributive justice is that rule or principle restricts someone's freedom without his consent. Hayek, for example, argues that we should reject plans to expand governmental roles since such expansion necessarily undermines individual liberty.5 And Nozick's primary objection to Rawls is that Rawls's two principles restrict individual liberty without consent.
Consequently, everyone's life is not, given the presence of negative general rights and negative general duties, free from the interference of others. The "mere" presence of others imposes duties on each of us, it limits everyone's freedom. In fact, these restrictions are frequently extensive. For example, in the previously described case I could have all of the goods I wanted; I could take what I wanted, when I wanted. To say that such actions are morally or legally impermissible significantly limits my freedom, and my "happiness," without my consent. Of course I am not saying these restrictions are bad. Obviously they aren't. But it does show that the libertarian fails to achieve his major objective, namely, to insure that an individual's freedom cannot be limited without his consent. The libertarian's own moral constraints limit each person's freedom without consent.7
This theoretical difficulty is extremely important. First, the libertarian objections against redistribution programs (like those practiced in the welfare state) are weakened, if not totally disarmed. His ever-present objection to these programs has always been that they are unjust because they are non-consensual limitations on freedom. However, as I have shown, libertarian constraints themselves demand such limitations. Therefore, that cannot be a compelling reason for rejecting welfare statism unless it is also a compelling reason for rejecting libertarianism.
hink of it this way. Liberty, for the libertarian, is negative in nature. An individual's liberty is restricted whenever (and only if) his potential actions are restricted. This is essentially a Hobbesian view of liberty. So imagine with Hobbes and some libertarians that individuals are seen as initially being in a state of perfect freedom. In such a state, Hobbes claims, "nothing can be just. Right and wrong have there no place."8 To introduce right and wrong of any sort is to put moral limitations on individual freedom. To that extent, everyone's freedom is restricted. Each person has an external impediment-—a moral rule which can be coercively enforced—against doing some action A (and actions relevantly like A). Therefore, to introduce negative general rights and duties, as the libertarian does, is to admit that there are non-consensual limitations on freedom. And these limits--as I argued--are sometimes significant and far-reaching. They arise--and this is crucial--without consent; each person has them simply because he is a person. Now if one's freedom can be limited without consent by negative rights, then it is unreasonable to hold that these are the only limitations on freedom which can legitimately arise without consent. This is particularly apparent when we realize that in a number of cases the limitations on freedom imposed by negative duties are more--even much more--than limitations which would be imposed if some claims of positive rights or duties were recognized. For example, forcing a slaveholder to free his slaves would limit his freedom more than would a law forcing him to pay ten percent of his salary to educate and provide health care for his slaves. Or forcing Hitler to not take over the world (in other words, forcing him to recognize others' negative rights) would limit his freedom more extensively than would forcing him to support, by his taxes, some governmental welfare program. Yet the libertarian concludes that redistribution of income is unjust since it limits the taxed person's liberty without his consent. If redistribution is unjust for that reason, then so are libertarian constraints. Libertarian constraints also limit personal liberty without consent.
POSSIBLE LIBERTARIAN REPLIES
"Liberty" Is Normative, not Descriptive
The libertarian might object to this argument by claiming that I have misunderstood his use of the word "liberty." "Liberty" is not, he might argue, a purely descriptive term. On a purely descriptive model of liberty, anything which restricts an individual's options would be a restriction of his liberty. Hence, negative rights would be a restriction of individual liberty. But not just any restriction of someone's option is a restriction of his liberty. Prohibitions of unjust actions are surely not limitations of freedom. For example, a person does not have the liberty to knife someone even though he physically might be able to do it. In short, individuals have liberty to do only those things which are just. Consequently, "liberty" should be seen as a normative term such that if A has the liberty to do if then not only is no one prohibiting him from doing it, but it is also morally permissible that he do it. "Therefore," the libertarian might conclude, "your objection fails since negative duties do not really limit individual liberty. It is not just that people kill each other, so prohibitions against killing are not limitations of freedom."
This linguistic proposal is intriguing since "liberty" clearly does have a positive emotive force which suggests ethical overtones. My own hunch, though, is that "liberty " should be maintained as a descriptive term. That is, "liberty" is, and should be maintained as, a value-neutral term which merely states that there arc limitations, without any judgment as to their propriety. For although we all have some tendencies to vacillate between the descriptive and normative senses of the term,10 it seems clear that its basic sense is descriptive. It is only after we identify liberty descriptively that we are able to distinguish between just and unjust restrictions on it. For the purposes of this paper, however, I need not belabor the point. For even the acceptance of this linguistic proposal cannot patch up the libertarian's deflated case. For if "liberty" is a normative term in the way proposed, then we could not know if something is a restriction of liberty until we knew if the restrained action is just. For example, we would not know that taxing a millionaire's money and distributing it to the needy was a violation of the millionaire's liberty until we knew if it was just to so tax him. Hence, the claim that A has the liberty to do X (spend his millions any way he pleases) could not be a reason for believing that some action (taxing his millions) is unjust. The justificatory relationship on this model would be exactly opposite. We would have reason to believe that A had the liberty to do X only if we already knew that it was just that he do it. Consequently, the protection of individual liberty cannot be the purpose of (or consequence of) negative rights since the determination that someone had the liberty to do X depends upon the determination that he has the right to do it. For example, one would have the liberty to bequeath property P to Z only if he had the right of bequeathal. Yet the libertarian wants to ground such rights in personal liberty. Therefore, even if this linguistic proposal were acceptable, the libertarian's stated purpose of negative rights would be undermined. He would no longer be able to argue for stringent negative rights on the grounds that they protect individual liberties. Nor would he be able to reject other principles of distributive justice on grounds that they limited individual liberty without consent.
Liberty Should Be Maximized
There are three problems with this reply. First, on this view there would no longer be absolute prohibitions against restriction of liberty. Liberty could be justifiably restricted; it would not be an absolute good. True, it is only liberty which overrides liberty. Nevertheless, to say that one species of liberty overrides another is to say that there is something about one of them (liberty1) which makes it morally more potent than the other (liberty2). This something--e.g., good consequences following the action--which makes liberty, more potent, must be something other than liberty. Otherwise, there would be no rational basis for preferring libertyl over liberty2. This implies that this other feature (e.g., good con sequences) is more important than liberty or that liberty is morally good only when it has this (or some other) specific feature.11 Thus, liberty would be neither absolute nor supreme.
Individuals Tacitly Consent to Libertarianism
The libertarian could attempt another reply by appealing to the notion of implied or tacit consent. "You have correctly identified my criterion for justifiably restricting personal freedom," he might say. "An individual must consent to any restriction. Consent, however, need not be explicitly offered. An individual can, merely by his action, tacitly consent to some limitations of his freedom." 13 The libertarian then might go on to conjecture that by seeking interaction with others, all individuals tacitly agree to respect others' liberty in certain specified ways, namely, those ways protected by negative general rights.
Libertarianism Is Grounded in Immediate Intuition
Libertarianism is beginning to flounder. So the libertarian might attempt to salvage his theory by arguing that his view of morality, and its emphasis on negative general rights, is established by immediate intuition. "Rights are not grounded in liberty," he might say; "hence your arguments just miss the mark. I intuitively recognize that we have these and only these rights." Or he might offer a slightly more sophisticated intuitionist model: he claims to immediately intuit some fundamental moral "fact" which justifies all and only libertarian rights. For example, he might claim that he intuitively knows that people can never be used as a means for others' ends (a la Kant), and that this truth strictly implies his account of rights.
Besides, I could also point out, following my argument in the second section, that libertarian restraints themselves involve using some individuals as means for others. For example, the slaveholder is used against his will as a means for achieving the freedom of the slaves; he is forced to do something just to benefit others. In fact, all libertarian constraints use us to benefit others. They force us to do (or not do) certain actions as a means of allowing individuals to do other actions--actions which are deemed more important than the prohibited ones. The presence of other individuals uses each of us by limiting our range of permissible alterna- tives. Admittedly, we may sometimes not see ourselves as being used under these circumstances; but if we don't, I suspect it is because we don't desire (for the most part) to kill other people, enslave them, etc., or because we have been so ingrained with the view that such restrictions are morally required. But when the cost is significant, people often do, in fact, see this. The slaveholders, for example, argued that since they didn't agree to abolition, they shouldn't have to set their slaves free-- to force them to was a nonconsensual limitation of their freedom. And they're right: it was a violation of their descriptive liberty. It is just that it was a just violation. The libertarian, it seems, must agree. But, of course, that implies that there are no absolute prohibitions against using people.18
CONCLUSION AND SPECULATION
My argument is completed. I have argued that libertarianism is untenable.19 I have challenged four possible replies to my argument. I would like to end with some rather brief speculation on the direction an adequate theory of justice must go. My speculation emerges from the previous arguments. I have shown that neither property nor liberty (as defined by the libertarian) should be seen as the only social good; singling these out as the only social values is unreasonable. Instead, these should be seen as two values among many, all competing for recognition.
And what of liberty? Surely it is important. Just as surely it is not all-important. But in some societies, say, rather affluent ones, it (e.g., political and civil liberties) may be the highest (but even here not the only) value. The libertarian's claim that it is is mistaken.
2. These rights are natural, inasmuch as they exist prior to the existence of the state and set limits within which the state can justifiably act. They are negative since they prohibit external, other-agent interference.
3. E.g., Noizck, particularly pp. 28-32.
4. Although Nozick equates liberties and negative rights, there are good reasons to separate the concepts. See, e.g., W. N. Hohfeld's analysis, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning (New Haven, Conn.: Yale University Press 1953). Still since Nozick. does identify them—in fact many theorists do—I will in this paper adhere to that identification.
5. Hayek The Road to Serfdom (Chicago: The University of Chicago Press 1944).
6. There is serious question whether Kant would want his "slogan" appropriated by libertarianism. Still it is easy to understand why they gravitate toward Kant.
7. Some libertarians might object: Negative rights are not limitations of liberty. You have simply misunderstood they might say the very nature of libertarianism. One does not have the liberty to kill others. However, it seems to me that such rights are restriction‑ of liberty and hence my objections go through. Nonetheless I will consider this suggestion in some detail in the next section.
8. Thomas Hobbes, Leviathan, ed. Michael Oakeshott (New York: Collier Books 1973 edition) p. 101.
9. Eric Mack "Natural and Contractural Rights" Ethics, vol. 87 no. 2 (1977) pp. 153ff.
10. Actually I think it is the libertarian's vacillation in his use of this term that makes his case so initially compelling.
11. See Joel Feinberg Social Philosophy (Englewood Cliffs N.J.: Prentice‑Hall Inc. 1973) p. 19.
12. Nozick p. 28.
13. For two discussions of tacit consent see R. P. Wolff's In Defense of Anarchism (New York: Harper & Row 1970) and P. Singer's Democracy and Disobedience (Oxford: Oxford University Press, 1972).
14. Nozick. pp. 90‑95.
15. John Rawls A Theory of Justice (Cambridge Mass.: Harvard University Press, 1971).
16. Nozick p. 31.
17. It won't do for the libertarian to argue that this is a just "using" while violations of negative rights are unjust "usings." Such a distinction (between just and unjust "usings") presupposes that the Kantian ends/means principle is not the fundamental building block of libertarianism. Hence such a response would undermine the very ground of this objection.
18. A similar argument could be developed against any libertarian attempt to use the act/omission distinction to undergird his theory of rights. Let me explain: occasionally the libertarian will claim that there is an unbridgeable moral gulf between actively harming someone and "merely" letting harm happen to him. Active harms are always wrong while omissions (failures to act) are never wrong. This explains why all general rights are only negative the libertarian might say. Violations of negative rights are active harms while omissions never violate negative rights.
19. There is one possible variety of libertarianism that I have not examined here. Someone might offer a distinctly consequential argument for libertarianism. They might argue for example that a society which recognized only negative general rights would be freer, happier, etc. However this certainly does appear to violate the spirit as well as the letter of libertarianism. Libertarianism involves the claim that violations of negative general rights are always wrong, come what may and it is difficult to envision how such a theory could be compatible with anything but a deontological justification.