Free Thoughts Blog

Recent revelations about the NSA’s broad surveillance of Americans’ phone records has some invoking the terrifying surveillance state of Orwell’s 1984. Others, from both parties, are justifying the program based on countering terrorist attacks. A tiny loss of privacy is a small price to pay to avoid the infinite costs of a nuclear weapon being set-off in Central Park, they argue.

This is the conservative version of the precautionary principle. The left often uses the precautionary principle to justify policies that fight global warming, arguing that “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” In other words, the plausibility of substantial harm puts the burden of proof on those who choose not to act to curtail that harm.

But I prefer to call it “apocalyptic consequentialism.” As I’ve written before, many problems in world come from the fact that people like different things. Sometimes, when confronted with someone who doesn’t adequately, in our view, value something we value, we turn to apocalyptic consequentialism to try to make our point. We say something like, “Oh, you don’t like trees? Well, that’s fine until all the trees are cut down and we go through an environmental catastrophe. When that happens, I’m sure you’ll wish you valued trees a little more.”

Similarly, conservatives will invoke apocalyptic consequentialism when it comes to the war on terror: “Oh, you don’t like the government snooping on your phone calls? You like privacy for its own sake? Well, that’s fine until a nuclear bomb is placed under Central Park. I’m sure you’ll wish you valued privacy a little less when that day comes.”

Apocalyptic consequentialism is pervasive in modern political rhetoric. Modern environmentalism so resembles a religion because it tends toward apocalyptic consequentialism. Nearly every religion believes the world is run by false values and that one day there will be a comeuppance in retribution for those false values. Modern environmentalism invokes the sins of “materialism,” “globalization,” and “consumption” as false values, and ultimate environmental catastrophe as the “rapture” that will demonstrate of how false our values are.

Apocalyptic consequentialism is used to eradicate the distinction between private and public acts, or to eradicate privacy altogether. Your choice of light bulbs, toilet volume, sexual partners, or phone calls are no longer private if they will result in apocalyptic consequences, be it environmental catastrophe, a replay of Sodom and Gomorrah, or a nuclear bomb in Central Park.

In the 17th Century, French philosopher Blaise Pascal invoked something like apocalyptic consequentialism to argue for belief in God. In his famous “Pascal’s Wager” he asked people to compare what they have to gain by believing in God to what they have to lose by not believing in God. The rewards for believing in God might be infinite, whereas the losses are trivial. The argument is sometimes reversed to focus on hell and the possibility of infinite losses for not believing. Either way, the logic is the same. If you believe in God and he doesn’t exist, well, that was the right gambit in the face of the possibility of infinite gains and infinite losses.

This argument is horrible. First, it is not really an argument for believing in God; rather, it is an argument for believing in believing in God. Second, and more importantly, it is an argument for taking any action that has a non-zero chance of avoiding infinite harm. There may, after all, be a god who infinitely punishes those who shave their eyebrows. Similarly, there may be a god who infinitely punishes those who keep their eyebrows. What is one to do in the face of such contradictory choices?

The answer, of course, is to look at the actual probabilities of such gods existing, thus putting us back at square one—that is, are there good reasons for believing in a particular god or a particular claim for infinite rewards or losses?

Like Pascal’s Wager, political apocalyptic consequentialists hope to avoid the debate over probabilities and move straight to action. Environmentalists roll their eyes when the probabilities of global warming are questioned in the slightest: “Whatever the probability,” they say, “the consequences of it happening are so awful that we must do something now!” Those who question government environmental action have “forgotten when the Cuyahoga river caught fire.” Similarly, conservatives don’t want to hear anything about the probabilities of nuclear weapons being placed in Central Park (very very low, from what I understand) or the consequences of a dirty bomb (bad, but not that bad). “Whatever the probabilities, the consequences of it happening are so awful that we must do something now!” Those who question government snooping have “forgotten 9-11.”

But those who question government snooping have not forgotten 9-11, we’re simply remembering everything we lost that day.

People like different things, and that’s a problem. It’s one that only exists, of course, in a world with scarce resources having alternate uses. Competition over resources means everyone cannot get everything they want.

Although my libertarianism has many different “foundations,” I want to focus on this one in particular. I take it as a truism that people like different things, and likewise that the world is full of scarce resources with alternate uses. Any system of human “governance” (in the broadest sense of the term) must come to terms with these two facts. I am a libertarian, at least partially, because I believe the market system tends to better rationalize different tastes and to produce more abundance of those scarce things.

What is an example of the problem that people like different things? Take trees. Some people value trees as beautiful things having as much a right to live as we do. Others value trees as paper, firewood, or houses. These values seem to clash. 

How can we solve this problem? We could have tree-lovers and tree-harvesters physically fight over the trees. This happens in many cases of value disagreement, of course, but it is far from an optimal solution. We could try to convince tree-harvesters that there will be bigger environmental effects to tree-harvesting, thus eventually harm something tree-harvesters love, such as oxygen. Also, of course, we could simply ban tree harvesting.

But there is only one solution that produces a rational, socially optimal result: property rights and rights of transfer. Those who own trees are free to do what they want with them, and if someone would rather do something else with the trees, then they can acquire those property rights. As an added bonus, property rights in trees will engender tree cultivation, thus rewarding both harvesters and conservationists.

Those points are often made but less often understood. Property rights create social cohesion because they keep us from fighting over how property will be used. They are a socially optimal solution to the problem that people like different things, and they can be endorsed by people with severely contrasting tastes. I let you have dominion over your property because I want dominion over mine. I’ll let you play your Barry Manilow if you let me play my Bob Dylan. And if you’re playing your music too loud, I’ll knock on your door.

Yes, this doesn’t solve all the problems that come with people liking different things, but it does an amazing job of solving most of them. Moreover, a system of respect for property rights does not invent new, unnecessary problems. Under normal situations, it is not a problem that you listen to Barry Manilow and I listen to Bob Dylan, as long as we respect property rights. If we politicize music preferences, however, we will invent a problem out of thin air, namely what are “we” going to listen to?

But some people aren’t happy with property rights as a socially optimal solution. They aren’t happy because property rights allow people, such as Barry Manilow fans, to persist in liking different things. Some people want to have sex in strange ways with people of the same sex, and others don’t like that. Some people want to raise their children with different beliefs, and others don’t like that. Some people want to ingest certain substances so they feel better, and others don’t like that. They don’t realize that property rights help both Barry Manilow and Bob Dylan fans, gay and straight couples, creationists and evolutionists, and teetotalers and potheads.  

Those who cannot accept people liking different things then look for a solution to this “problem.” What they need is a type of physical force (because they can’t seem to convince others not to like different things) that doesn’t put them in danger (because physically stopping undesirable behavior yourself is scary), and is seen as legitimate by those whose behavior they are trying to change. They quickly find their way to politics.  If they just get 50% +1 to agree with them, then they can wield the state’s considerable power against those who insist on liking different things. It is easy to see why this option is so attractive.

With politics in the picture, the whole game changes. The equilibrium of a property rights system is based on the mutually beneficial theory of “stay out of my way; I’ll stay out of yours.” When politics intrudes the question changes to “whoever can win the political game is free to get in everyone’s way.”

And that game has high stakes. Losers don’t just walk home with their tails between their legs, they lose the ability to live their lives according to their values and consciences. Being on the wrong side of  50% +1 can mean you will not be able to educate your children how you want, that you cannot marry who you want, that you can’t work in your chosen profession, and that you cannot listen to Barry Manilow. 

No wonder politics is so vicious. 

After something is politicized, “keeping to yourself” is no longer an option. Instead, you have to play the political game if you want to live your life according to your values. Energy that could be spent building new and exciting technologies or beautiful art is now invested in trying to defend your way of life in the political process. A fleeting victory—for example, legalizing gay marriage—may cause you to hold your hands up in a pose of victory, and rightfully so. But why did you ever have to play this game in the first place? 

I am a libertarian because I hate the game. We live in a time that increasingly fetishizes democratic choice as a method of rationalizing our disparate preferences. This is ludicrous. Democratic choice is at best a method of solving some collective action problems that are truly problems, and it is hardly ever a real problem that people like different things.

“Every decent man is ashamed of the government he lives under,” H. L. Mencken said. He was right, of course. Good people don’t do the things government does. Good people don’t behave the way governments behave. In fact, if we want to be good people, we ought dramatically limit the state. We ought to be libertarian.

My goal here is not to offer a formal argument for libertarianism. Rather, I want to show how a sort of moral thinking the ancient Greek philosopher Aristotle gave us—today called virtue ethics—illuminates the “libertarian attitude” of skepticism, distrust of power, and an attraction to freedom of choice about how we live our lives. It also provides us with a way to think about the state that makes clearer the reasons our government functions so poorly.

Virtue ethics is particularly well-suited to this task because, I believe, virtue ethics is how most of us already think about morality. When we encounter moral problems in our lives, we don’t say, “What deontic rules apply to this situation?” Nor do we ask ourselves, “What amount of utility will be gained from each choice?” Instead, we say, “What would be the honest thing to do?” Or, “How can I be nice or kind or charitable?” We think more often of virtues than we do of rules or utility. And we find motivation not in explicit considerations of the right or the maximal, but in the desire to be good people.

My libertarianism, then, is an attitude about state power, but it’s an attitude grounded in the idea that the sort of life I ought to live—the sort of person I ought to be—means that I should reject the state in all but its most minimal form.

There’s something morally distasteful about both exercising state power and wanting the state to exercise power, about the desire to use the state’s monopoly on violent force to get your way. If we anthropomorphize the state, treating it as a moral agent and ask, in virtue ethical terms, whether it’s “good,” the only reasonable answer is no. Because “being good” means two things. First, the agent must possess and be motivated by the virtues. Second, the agent must be wise enough to act well.

Too much of what the state does fails this test. Instead of virtue, the state often displays its opposite, vice. Instead of wisdom, the state acts with foolishness. 

This shouldn’t surprise us. The state’s power makes it attractive to the unvirtuous. If you enjoy the use of force, there’s no better spot to do it than within government. If you want to rig the rules in your favor, the state’s where you turn. If you have an urge to rule, the best place for that is obvious. And it’s not just that the state attracts the already unvirtuous (i.e., the vicious). The reins of power also corrupt the virtuous, turning them toward vice. That was the lesson in Lord Acton’s famous line.

We witness this every day. There’s nothing virtuous about the war on drugs, as it destroys the lives of countless Americans, with no gain. The war on drugs represents one kind of vicious government action, where the harms are so enormous and the benefits so small that anyone who continues to support the policy must simply not care about the damage it does. To put it bluntly, drug warriors are of poor moral character.

Other policies are even worse, not just in harm they cause, but also in their motivation. These are policies whose proponents don’t just not care about the hurt they cause but actually see the hurt as part of the policy’s goal. Think Jim Crow or slavery.

While most vicious policies lack the staggering human costs of slavery or the war on drugs, they still represent a retreat from virtue. Instituting taxicab medallions in order to pay off groups who supported your campaign demonstrates corruption. So does banning food trucks to prop up restaurants. And so on through countless pages of regulations, countless bills, countless executive orders and under-the-table deals. Poor moral character finds fertile ground in the halls of power.

It’s always been that way. Viciousness is, after all, how the state began. We speak of social contracts, of people deciding to leave the state of nature by creating the civilizing force of government. But that’s not how it happened in real life. Instead, real states had their genesis in violence. Marauders settled down and set themselves up as kings.

Still, while the modern state has its share of viciousness, most voters, politicians, and bureaucrats actually care about helping, about doing good. They possess virtue as well as most people. But even if we can maintain our virtue while operating within the sphere of politics, the structure of state decisionmaking means we’ll face enormous difficulties in marshalling our wisdom in order to decide well.

Socrates was puzzled with the Oracle of Delphi told him he was the wisest among the Greeks. After all, he claimed not to know anything. But the Oracle was right. The foolish man displays what Will Durant called “the ready omniscience of the uninformed.” F. A. Hayek called it “the fatal conceit.” It’s the mistake of thinking that we have the knowledge to shape society for the better, to direct the economy, to forcibly order people’s lives. And that we have the knowledge not just to do those things, but to do them well. 

Yet the nature of politics—both for voters and for state agents—encourages just this sort of thinking. Too many seek to realize their virtues through the state. Thus while the state grew initially from viciousness—criminals wanting more power—it continues to grow via foolishness—good people doing a bad job of doing good.

Hayek showed us how planners will always lack the knowledge to plan well. For example, economic planners can’t aggregate the vast knowledge dispersed throughout society in order to draw upon it to make good decisions. But by turning away from the state and toward freedom, we can let the market and prices help us in making wise choices.

But it goes further than that. Rational ignorance means voters have no incentive to vote well. Public choice economics teaches us that lawmakers are often swayed by concerns unrelated to doing good. And the distance all this decisionmaking takes from the effects of those decisions means bad policies continue for far too long, and get worse as they’re taken over by groups with interest unrelated to the policy’s original goals.

A wise person would recognize these limits. He’d say, “I want to do good. I want to help people. But the chances of me helping through coercive state action are much smaller than the chances of me helping through other, voluntary means.” He’d also recognize that it’s unwise to give the state too much power, because that risks handing control over such awesome force to the vicious.

As we strive to be genuinely good people (i.e., people of good moral character, both virtuous and wise), we ought to develop the libertarian attitude. Skepticism finds its source in thinking that a person must not be very wise if he thinks he can run other people’s lives better than they can. Distaste for power grows from watching the imperiousness of politicians and the officious meddling of bureaucrats. And a deep caring for others as beings worthy of respect leads us to reject calls to override their judgements with the opinions of majorities or elites.

A virtuous agent of the state will possess beneficence, and so not use his power to harm others for personal gain, flex the state’s might to steal for the benefit of his friends, drop bombs on innocents, or lock people in cages for harmless acts. A virtuous agent of the state will possess integrity, and so apply the same standards to everyone, treating everyone equally, and not play favorites with the law.

A wise agent of the state will make sure the virtues that motivate him are actually reflected in the outcomes of the policies he enacts. He’ll be conscious of evidence and sensitive to results. He’ll abandon programs that don’t work in favor of those that do. He’ll set aside state action when private forces can do better. A wise agent will make the effort to see the unseen.

Very nearly everything the state does is either vicious or foolish, which is why the state so often appears as a cudgel wielded by clowns. So we have good reason to be skeptical of its claims to virtue and wisdom and its pleas for more power. A libertarian attitude finds itself on firm ground.

I’ll admit it: I’m a Rawls guy. I consider Rawls’s A Theory of Justice to be one of the most compelling pieces of political philosophy ever written, grounded in one of the most convincing justificatory arguments ever crafted. But I’m also a libertarian. This presents something of a problem: although Rawls is part of the liberal tradition, he is arguably the pinnacle of the “high” liberal tradition, which is a far cry from the “classical” side I’m more comfortable with. Indeed, Rawls maintained that out of five possible political orders—laissez-faire capitalism, welfare-state capitalism, state socialism, liberal (market) socialism, and property-owning democracy—only two such orders would be justified by the argument he sets forth: market socialism and property-owning democracy. (John Rawls, Justice as Fairness: A Restatement, 136-138.) Given my commitment to Rawlsian political philosophy and my staunch libertarian leanings, a pressing question arises: what gives?

Before explaining away the apparent contradiction I need to give a brief summary of Rawls’s overall argument from A Theory of Justice. Rawls saw himself as continuing the social contract tradition found in Locke, Rousseau, and Kant, though with a higher level of sophistication and abstraction than his historical predecessors possessed. In doing so he saw the social contract as a hypothetical contract: the principles of justice are the principles we would agree to if faced with an original bargaining position subject to certain constraints. The major constraint of the original position is that we consider potential political orders while behind a veil of ignorance: that is, we can’t know our particular position in society—whether we’re rich or poor, black or white, insanely talented or disappointingly average, hardworking or in a perennial state of torpor, religious or an atheist. In doing so we get rid of features Rawls considers to be morally arbitrary while also removing personal bias: after all, there is something suspect about billionaires arguing that capital gains taxes are unjust, as there is when the impecunious argue for radical egalitarianism.

The resulting principles of justice agreed to in the original position are as follows: First, each person is to have an equal right to the most extensive basic liberties compatible with a similar scheme of liberties for others. Rawls says those basic liberties are the right to vote and hold office, liberty of conscience and freedom of thought, freedom of speech and assembly, as well as the right to hold personal (not productive) property. (A Theory of Justice, 53.) Second (and this is an incomplete summary), social and economic inequalities are to be arranged so that they are to the greatest expected benefit of the least advantaged. (Ibid., 72.) This principle requires that we think about economic inequalities by first imagining a perfect state of equality. Deviation from this perfect state of equality is justified only if the least advantaged in this new state of inequality are better off than they would be in the original state of perfect equality. As a final note, we need to recognize one more salient feature of the two principles of justice: namely, that they are in lexical order. By this Rawls means to say that “infringement of the basic equal liberties protected by the first principle cannot be justified, or compensated for, by greater social and economic advantages.” (Ibid., 54.) In other words, we can’t go about messing with people’s basic liberties in order to make those worst off in society better off, as required by the second principle. The basic liberties are fixed.

Given these two principles of justice, how can we go about marrying Rawlsian political philosophy with libertarianism? There are two ways, both of which I endorse, both of which, to be fair, face problems of their own. First, we can take a route similar to John Tomasi’s in his excellent new book Free Market Fairness, though I do diverge with him in significant ways. This approach argues that Rawls’s list of basic liberties enumerated in the first principle is lacking. What should also be included is “thick economic liberties,” which includes (by my estimation) the freedom of contract, the right to own private productive property, as well as the right to keep most of the fruits of one’s labor. If these liberties were included then—given the lexical ordering of the principles of justice—it would follow that the pursuit of the satisfaction of the second principle through setting up redistributive institutions would be greatly handicapped, for we cannot do anything that violates our now-present economic rights. Thus, in shifting the content of the first principle we protect economic liberties while limiting the significance and scope of redistribution.

This approach is not without problems, though. One key feature of Rawls’s understanding of the basic liberties (particularly the political ones) is that it is not sufficient that we simply have them; we also must be able to realize their “fair value.” By this, Rawls means that we must be able to meaningfully exercise these rights. As an example, it is true that I have the right to run for political office. But given that I am a poor graduate student, and given that running for office costs a great deal of money, it is probably true that I cannot exercise this right in a meaningful way—that is, the fair value of my right is not realized. One of the reasons, cites Rawls, that the fair value of rights is often not realized is due to wealth inequality: “While it may appear … that citizens’ basic rights and liberties are effectively equal … social and economic inequalities in background institutions are ordinarily so large that those with great wealth and position usually control political life and enact legislation and social policies that advance their interests.” (Justice as Fairness: A Restatement, 148. ) And he’s probably right about this: massive wealth inequalities allow some individuals to exercise their rights more effectively than others. As such, there is a tension between wealth inequality and the realization of the fair value of the basic liberties enumerated in the first principle of justice.

The problem here is that if we are to achieve fair value for everyone’s basic liberties then we will probably need to do something about massive wealth inequalities—but we can’t, because we have just included thick economic liberties as basic liberties, which would mean that we would have to violate our newfound thick economic liberties in order to reach a state of distribution that allows for the fair value of our other basic liberties to be realized. This would mean, to put it in Orwellian terms, that some basic liberties are more equal than others. And the problems don’t stop there. Can a poor person realize the fair value of their right to own private productive property (if we are to include thick economic liberties as those whose fair value must be realized)? Probably not—after all, it costs a lot to buy a factory. As such, does the inclusion of thick economic liberties coupled with the fair value criterion require us to redistribute so we can allow the fair value of our new thick economic liberties to be realized? If the answer is yes, then it seems like we would be in the peculiar position of having to violate our newfound thick economic liberties in order to, in a sense, realize them. These problems are not incorrigible, though. Two solutions come to mind: we can lexically order the basic liberties as we did the two principles of justice, or we can get rid of the fair value criterion, and only require that we protect basic liberties in a formal, less robust sense.

Here is the second way we can marry Rawls’s political philosophy with libertarianism: We can keep the basic structure of the two principles of justice the same, and simply make an economic argument. We can argue that the political order best satisfying the second principle of justice is a free market capitalistic order—that, as a matter of fact, the worst off will be best off if we let the market run its course. This would essentially result in libertarians echoing Milton Friedman’s pithy line that a rising tide raises all boats. As someone who lacks formal economic training, there is not much I can say about this type of argument. This, though, is actually one of the argument’s weaknesses: Given the incredible lack of agreement we see among professional economists, it is doubtful that we can ever be sure what economic system will indeed best satisfy the second principle of justice. Thus, there will always be indeterminacy as to whether this argument is correct or not due to its reliance on empirical facts—an indeterminacy that could (presumably) be avoided with a knock-down philosophical argument, as the above approach requires.

In this essay I presented two ways one can reconcile Rawls’s political philosophy with libertarianism. As someone who broadly endorses the Rawslian approach to political philosophy I also endorse the two arguments presented in this paper. In the spirit of fairness I also tried to highlight the problems both these approaches encounter. I think this is an important thing to do. There is no perfect argument, as of yet, establishing libertarianism as the best, or most just, political order. By doing exercises like this—by presenting various arguments in support of libertarianism while also being open and honest about their weaknesses—we can hopefully make philosophical progress through constructive discussion, and, at times, through trial by fire. In the end, libertarianism as a whole will be better off.

The error of seeking a foundation or justification

Assumptions are unsupported propositions. All observations and arguments require assumptions, and thereby remain ultimately unsupported. Similarly, all theories—whether empirical, or a priori, or moral, or whatever else—require assumptions, and thereby also remain unsupported. Any attempt to support a theory beyond assumption would require an infinite regress (defending any assumption involves making more unsupported assumptions) or infinite evidence (which involves more unsupported theories, in any case). It’s not merely that there’s always a risk of error: no epistemological support is possible (even probability theories rest on assumptions). And because we face a universe of infinite unknown facts and infinite unknown theories with our finite and fallible minds, we cannot know what potential refutations of our theories we might have overlooked. Therefore, it’s an error to think that a theory can be given a genuine foundation or justification that takes it beyond assumption or conjecture.

However, while a theory logically cannot be supported by any amount of evidence or argument, it logically can be refuted by a single sound counter-example or counter-argument (although assumptions cannot be avoided there either, and so we must criticize any offered refutations). Consequently, a theory is better thought of as a floating boat that might be sunk at any time by some, as yet unknown, counter-example or counter-argument. And so we should conjecture boldly to attempt to capture more truth and then test severely to attempt to eliminate error. It needs to be understood that much evidence and argument that is often mistaken for ‘justifying’ or ‘supporting’ a theory (which is not possible) is really explaining, or applying, or defending, or testing the theory (which are entirely possible, but which usually involve various new conjectures). All this is an explanatory outline of the extreme fallibilist epistemology of critical rationalism as theorized initially and principally by Karl Popper.

Libertarianism is, therefore, best propounded as a bold conjecture in some form: for instance, “People should have liberty in normal circumstances (rather than in every imaginable case).” If we are asked what this theory is based on, then we should explain that it is ultimately and necessarily a conjecture—like all theories—albeit one that appears to withstand criticism as far as we can tell. We should then invite criticisms of the libertarian conjecture and answer people’s specific criticisms as best we can. This saves wasting time on elaborating impossible “foundations” and stands the best chance of convincing a critic that libertarianism is not refuted and so might be correct. However, we should also try to criticize libertarianism ourselves. For we want to eliminate errors where we can. And even if libertarianism is approximately correct, it is not complete and without theoretical problems.

The error of taking sides between deontologism and consequentialism, etc.

The first thing to notice here is that one can advocate libertarianism for a variety of more basic reasons without implying that any of these is supposed to be the foundation of libertarianism. For it is also a conjecture that libertarianism is required for protecting genuine rights and duties (deontologism), or has the greatest positive welfare, or utility, or whatever, consequences (consequentialism), or allows the society most conducive to people’s desirable flourishing (eudaimonism), or is the implicit social contract that promotes the good of all (contractarianism), or greatly enhances each individual’s self-control, self-realization, and critical faculties (autonomy), or even that its long-term effect is to maximize the welfare of the worst-off group and other “fair” outcomes (social justice). And the list might be indefinitely extended.

I usually prefer simply to say that I advocate libertarianism: liberty for all. I don’t mind saying that we have a strong prima facie right to have liberty and a duty to respect liberty. But that’s not intended to suggest that libertarianism is logically supported by, or even requires, deontologism. However, the real issue here is the common view that there are serious clashes in these approaches and in particular between deontologism and consequentialism. As far as I can tell, there aren’t systematic clashes in everyday practice between respecting libertarian rights and promoting human welfare. And so if one is advocating libertarianism as a practical ideology, then it’s irrelevant that we can imagine far-fetched or very rare cases where libertarian rights and human welfare clash. Therefore, it’s unnecessary to takes sides between rights and welfare.

That said, there is often a modern mistake about the nature of rights and consequences that earlier theorists tended not to make. Rights cannot plausibly be conceived of and held irrespective of the practical consequences of applying them. It’s absurd to suppose that there could be a genuine right or duty that had disastrous consequences for human beings. Rights and duties tend to evolve just because of their apparent usefulness to humans. Similarly, it’s absurd to suppose a valid form of consequentialism that in practice flouts rights and duties. In fact, libertarianism can be interpreted as a form of rule consequentialism: it provides the rule (respect liberty) that promotes the best consequences. Far from being incompatible, deontologism and consequentialism are more like two sides of the same coin. (And analogous arguments apply to the, obviously related, alleged distinction between rationalism and empiricism.)

Moreover, if conceptually pushed, deontologism and consequentialism appear to have at least some tendency to morph into each other. For if we ought to promote good consequences (however conceived), then presumably we must have some sort of duty to promote, and right to have, those good consequences. And if we ought to promote rights and duties (however conceived), then presumably we ought somehow to promote the consequence of more of those rights and duties being respected.

I don’t see that there are significant realistic clashes between any of the listed possible reasons for advocating libertarianism. However, I think it’s clearer to view them as various conjectural explanations of how libertarianism works or can be understood—especially in the face of incompatible criticisms—rather than as what libertarianism is “founded” or “based” on. In any case, libertarianism doesn’t need additional principles to make it acceptable. I don’t mean to imply by this that liberty is always an end in itself or the ultimate thing that ought to be valued. I’m a value pluralist: I don’t think it’s possible to reduce everything to a single desideratum. It’s simply that there’s no sound practical criticism of systematically allowing people to have liberty (or, at least, no alternative that withstands criticism better). It’s enough that libertarianism is an unrefuted practical conjecture.

The error of having no explicit, necessary, and sufficient theory of liberty

The biggest error of most libertarians is an absurdity hiding in plain sight: they don’t have an explicit theory of libertarian interpersonal liberty. They usually have some implicit grasp of liberty that works tolerably well once property is assumed. But they cannot coherently, consistently, and cogently explain exactly how liberty, as such, relates to anything. At the fundamental level, they tend to talk about self-ownership, “homesteading” (initial acquisition), property transfer, etc., and the “non-aggression principle”—but all with respect to “rights.” This not only fails to explain the role of liberty itself, it also confuses matters by conflating morals with the issue. What liberty is, and how it applies, is one question. Whether such liberty is moral is a separate question. (There is the explicit and non-moral zero-sum theory of liberty that a minority of self-described libertarians advocate: whereby, for instance, I gain the liberty that you lose by forcing you to be my slave. But this is not a libertarian theory at all because it fails to distinguish liberty from license or power. And the, occasionally cited, “liberty of action” is not in itself even a form of interpersonal liberty.)

However, the basic idea of libertarian liberty is not hard to explain. The “non-aggression principle” itself is close to being a necessary and sufficient way of capturing it, if correctly and charitably interpreted (for “aggression” can be misleading and the “non” can appear to be absolutist). The Rothbardians—and some of their critics—are mistaken in thinking that a theory of legitimate property is presupposed, or implied, by the non-aggression principle. For the principle can do it all by being understood ultimately in a pre-propertarian sense. First assume that libertarian liberty means not being aggressed against (or proactively constrained, or interfered with) by other people. Now assume that such aggressions need to be minimized in the event of any clashes. Then it clearly follows that secure self-ownership and the ownership-by-use of unowned resources are libertarian. For if people were not secure self-owners or could not have such ownership-by-use, then they could be objectively aggressed against by other people to a high degree: efficient economizing, and even personal safety, would not exist. One way of understanding this is that libertarian liberty tends to “internalize externalities” (as economists call this, but here meant in a pre-propertarian sense). And that also helps to explain why liberty is so productive: efficient economizing is possible and the “tragedy of the commons” is avoided.

Thus we can understand how self-ownership and all non-aggressively-acquired property are entailed by liberty itself. And in the event of any further issues or clashes arising, we can look at what “minimizes aggression” to work out what is most libertarian. For greater clarity and precision, I tend to theorize “liberty” as “the absence of proactively imposed costs” and “libertarian practice” as “the minimizing of any proactively imposed costs.” The details can become confusing unless one has first grasped the basic idea. But the basic idea of libertarian liberty is clear and uncomplicated.

1. The Task at Hand

We have been asked — in all modesty! — to reground libertarian political theory in light of Matt Zwolinski’s objections to the non-aggression axiom. I infer we must either:

(a) explain why the non-aggression principle is correct and axiomatic, objections notwithstanding;

(b) find a different principle, also axiomatic, that will fit the NAP-shaped hole, doing just the same work;

(c) find a principle that doesn’t quite fit the NAP-shaped hole, but that will do much of the same work, leaving only some less weighty objections;

(d) find a principle that can explain both why the NAP seems to yield solid conclusions in many cases, and also why it fails in others.

I respect him greatly, but I consider that George H. Smith has not succeeded at (a), and that I cannot improve.

I take (b) to be formally impossible. A principle that did exactly the same work as the NAP would be the NAP. And anyway, our problem is that we can’t accept some of the work it does.

I’m not smart enough to attempt (c) from scratch. The best (c)-like effort is utilitarianism, although utilitarianism is not always or necessarily libertarian, and it may even veer toward the inhuman. Neither is a good reason to abandon a true conclusion, of course, but my reasons for rejecting it must wait for another post.

That leaves me with (d), which I will try. Not, however, with any great originality. In short form, I think libertarianism aims at something like the Kantian kingdom of ends. In what follows, I will explain how I think this works. If needed, I will answer questions and objections in a future post. We all know they’re out there.

2. Who We Are

As with people in general, we can split libertarians into two camps, God and no-God. I’m in the no-God camp, although my reasons are outside the scope of both this essay and this website.

Is nothing sacred to me? On the contrary, many things are. The very first among these — the first by a long, long way — is the human mind. Why? Because it is the only part of the cosmos, so far as we know it, that is able to understand, to reason, to conceive of plans, to execute those plans, and thereby to improve both itself and its circumstances, according to its own judgment.

The mind’s reasoning power means that nothing is more fascinating, nothing more triumphant, nothing more holy in all the universe. Nothing else appears even to come close.

This fact has consequences.

Were there only one human being, and assuming him or her to be of good character, I would want that person to claim title to the whole universe, to enjoy it to the fullest possible extent, and to gather every natural advantage that might be found in it. I would want that person to be emperor of the universe.

We are simply that great. We are so amazing, in fact, that we have literally no idea how far we’ll go or what lies in store for us as a species. My bet though is that it’s wonderful. All because of the individual mind.

And yet — there are billions of us. And we all have minds. This fact too has consequences.

Whatever abstract rules I would set up for myself, I must hold out for you as well. All of you, equally. You may differ in your capacities, and obviously you do, but you all very clearly stand in the same relationship to one another and to the rest of the universe that I do. You are all reasoners, and to the extent that I respect reasoning powers in myself, so too I must respect them in you.

No, solipsism isn’t a way out. I couldn’t adopt solipsism without doing significant violence to my own reasoning power in the process. So I’m stuck with you. And you? You’re stuck with me, by exactly the same token.

But how does one ethically govern a planet full of such wonderfully dignified creatures? There are only so many possibilities:

• We can’t all be universal emperors simultaneously and in the same respects. Conflicts would arise immediately over scarce or unique resources, and these would admit of no resolution.
• Violence doesn’t help. It would be wrong to inflict harm on someone of an equal dignity to myself, merely to gain what would be for me at best a means to an end. I must act according to a law that treats like cases alike, and thus I must forebear. And so must you.
• We can’t hold everything in common. The decisionmaking would be too cumbersome, and we would rarely if ever achieve consensus. Knowledge problems would arise. And with common ownership, the incentives for dishonesty and irresponsibility would multiply.
• No, elitism isn’t a way out. Giving greater worth or dignity to a select few is tempting — tremendously, for some — but the society that adopts the rule of the greatest sooner or later ends in the rule of the most vicious.
• And so, whenever possible, we make sure that no one rules over anyone but themselves. 

We insist on liberty because it is the only approach to politics that consistently attempts to treat people as ends in themselves, not as the means to some other end. Command-based political orders all violate the categorical imperative. They all use some human beings merely as tools for the purposes of some other human beings.

The system of natural liberty is at the very least trying mightily to avoid that outcome. This is what I take Robert Nozick to have meant with his defense of rights as side constraints and his invocation of Kant in Anarchy, State, and Utopia:

Side constraints upon action reflect the underlying Kantian principle that individuals are ends and not merely means; they may not be sacrificed or used for the achieving of other ends without their consent… Side constraints express the inviolability of other persons. But why may not one violate persons for the greater social good? [Because] there is no social entity with a good that undergoes some sacrifice for its own good. There are only individual people, different individual people, with their own individual lives. Using one of these people for the benefit of others uses him and benefits the others. Nothing more.[1]

Nozick admits that adding enough side constraints to leave people complete self-rulers could be an “impossibly stringent condition,” but he does give the side constraint against aggression a strong philosophical grounding, and he demonstrates that it leads to very familiar libertarian conclusions: Kantians should be libertarians, or else something a whole lot like us.

Whether we can perfect Nozick’s “impossibly stringent” set of side constraints and achieve complete self-rulership is immaterial. To the extent that a free and equal liberty can be realized for all, it should be. In Herbert Spencer’s words, “[E]very man may claim the fullest liberty to exercise his faculties compatible with the possession of the like liberty by every other man.”

3. Why We Do Markets

“Yeah, but wait,” someone might say. “I thought you promised me the universe!”

I did. But only if you were all alone. Now, I trust that you probably wouldn’t want to be, and anyway, getting there from here would break the constraints we’ve just so carefully set up.

We can, however, do something a lot like giving everyone the universe: We can increase the stock of available goods, both in their quantity and in their quality, and we can distribute them efficiently. We do this through markets.

Indeed, living in a market order is to my mind clearly better than possessing the whole universe all alone. Markets mean more and better food. Markets mean books, and effective medicine, and music, and beer. I am unlikely to ever produce these things all by myself — or if I did, I would have to neglect many other things, and then I’d die from lack of them. Although I’m not exactly making the case in a rigorous way, it seems clear to me that that man the reasoning animal deserves not the whole universe to himself, but rather a society of similar beings. They are not a problem or an obstacle, but a distinct improvement over isolation.

We do markets because beings like us deserve the array of helps and enhancements that only systems with a significant market component can offer. Markets allow us to create a better world, and they reward us both directly, in the form of compensation for work, and indirectly, in the growing menu of goods and services we can choose from.

Most importantly, nothing about the market process properly considered violates our side constraints. This is what makes markets not simply advantageous, but morally permissible.

It is sometimes objected, when I have spoken favorably of the categorical imperative as a foundation for libertarian political theory, that this principle would forbid all market exchanges: Doesn’t the buyer use the seller as a means, and vice versa?

The answer is no. In a voluntary market exchange, buyer and seller formulate a plan together — a plan to redistribute limited amounts of money, goods, and/or services. These things are the tools being used, not the individuals.

The plan also functions as a means for them both, one that aims at the end of individual betterment, not for one person, but for two: I get bread, so I live a bit better; the baker gets money, so his bakery does well, and he lives a bit better too. Could I will that everyone proceeded along such lines? Of course I could, and I do.

4. Down with the Non-Aggression Axiom, Up with the Non-Aggression Presumption

What though about the non-aggression principle? Certain of Zwolinski’s criticisms still seem to me to miss the mark. This appears especially true of the claim that the non-aggression principle is “parasitical” on a theory of property.

Well, what if it is?

Consider that the vast majority of the world’s religions are also parasitical on a theory of property: Whenever a religion has declared “Thou shalt not steal,” that pronouncement has depended on contingent, changing, history-bound, human-made definitions of “stealing.”

Did the Almighty or his spokespeople — in Judaism, Christianity, Islam, Hinduism, Buddhism, Confucianism, and many others — just happen to overlook the fact that they weren’t supplying a theory of property rights, but merely piggybacking on one already in place?

No. They knew of and were wholly untroubled by this move. If we suppose God to have been the author of any of these systems, then He obviously wasn’t bothered. If we suppose the systems to be of human creation, the human authors appear equally unruffled.

Can Zwolinski really have been the first to notice this problem? (The first, perhaps, outside of Karl Marx?) I don’t think so. Much more likely is that’s not really a problem at all.

Without meaning to endorse any particular culture’s theory of property, and still less any particular religion, I note that it was commonly the intent of the world’s religious traditions to ratify something like the status quo in property rights, whatever that status quo may have been in a given time or place. (Recall that that status quo may have been bad: in slave societies, “thou shalt not steal” has perverse consequences, in that it condemns the liberator of slaves.)

So yes, the non-aggression principle is parasitical on a theory of property — but which theory is it? Happily, the answer in our particular historical moment is both obvious and good. 

In the Anglo-American world one theory of property is so well ratified by time and experience that it hardly needs much defense outside of an academic philosophy department. Roughly, property is possessed by individuals — by persons, under the law. Justice in holdings is validated by looking at the history of an item’s acquisition, alienation, and reparation, and by establishing factual claims about various events from that history. It is presumed that real and personal property can be bought and sold with a minimum of encumbrance unless specified otherwise, and that such transactions work a permanent change in ownership, again unless specified otherwise — in which case, we speak not of a sale, but of a lease or a rental agreement. These are separate matters in the law.

Reference to this theory of property allows us to do markets. It gets us to a peaceful way of allocating real and personal property in a way that tends to benefit those who work within it honestly. It also solves a whole lot of conflicts before they even get started.

To say that initiating physical force against someone is justified only if he or she violates this complex set of norms is itself a complex claim. By the same token, though, it’s not a vacuous claim, not a tautology, and not at all impossible to apply. On the contrary, applying it consistently will get us something a lot like a viable libertarianism.

(Its application will, however, necessarily give rise to disputes over particular matters. That’s exactly what property law does. To think that all disputes in a social order as complex as the law of property might be settled by an axiom is to misunderstand the nature of the legal order.)

But also: in the language of ethics, the non-aggression principle is not a categorical imperative. It’s not a principle to apply in all times and all places, without qualification. It is a hypothetical imperative — a principle to be applied only if certain circumstances arise. In those circumstances, good things on the whole tend to result from acting on this principle.

Yet the discovery that a particular system of political or ethical obligations usually has good consequences does not establish it as a categorical imperative. A categorical imperative can only come from considerations about one’s own nature, considerations about the like nature of others, and the consequences that follow necessarily from the two.

And so, in those rare circumstances where observing the non-aggression principle means that someone is treated merely as the means to some other end, we should abandon it in favor of respect for persons as ends in themselves.

Consider the case of the man who has fallen out the window of a high-rise apartment and caught hold of the flagpole one story below. His neighbor below forbids all trespassing, even to save a life. “It’s my property,” he says, “and that’s all that matters. Now, you may hang there until your arm gives out, but I will give you no help.”

Were the non-aggression principle axiomatic, we would have no recourse here. But consider: Could we will that everyone behaved likewise? Does it show respect for persons? Isn’t it clear that a person’s life is being treated as worth rather less than a few footprints on a carpet?

The neighbor’s behavior is appalling, and to will its maxim as a universal law would be tantamount to setting up a lottery, in which the unlucky were always permitted, even required, to die for the edification of the lucky, if the latter so chose. If we knew this from the outset and willed it anyway, then we would will that some people would (though rarely) be used merely as means to an end. This we have forbidden.

That said, we might still object that the state has no power to intervene. As we all know, some moral lapses aren’t properly subject to law, and this might be one of them. Then we should ask: could we will that the maxim behind intervention become universal law? The maxim that says it is okay to trespass, even forcibly, to save a life, particularly if the consequences of the trespass are trivial?

That seems fine to me. I don’t at any rate see atrocities coming out of it, not in the way that I do with the only other alternative. The non-aggression presumption has been defeated. Break down the neighbor’s door, open the window, and save the falling man’s life. Compensate the neighbor afterward. (Note that trespass can be compensated to the sufferer; death cannot. This may also be a relevant consideration.)

Respect for property is indeed somewhat weakened, but respect for human life is strengthened. Property is a means to an end, and that end is nothing other than human life, with all of us considered as individuals and moral equals, and none merely as a means to an end. 

Does the example yield enforceable positive interpersonal obligations? Yes it does, but only some quite trivial ones for the temporary use of property, and then only owing to some very unusual physical and moral circumstances. A left-liberal who was also ethically a Kantian might argue that the class of similar cases is on the contrary very large, but we need not agree with this claim, particularly when we consider the ways in which state interventions tend to use individuals directly and blatantly as the means toward other individuals’ ends.

So we strike a bargain: We admit that in an exceptionally rare set of circumstances and perhaps a few others like it, we will violate the non-aggression principle in consideration of a higher end. That higher end will if properly considered return us directly to respect for property in all other circumstances. In return for this concession, we re-connect libertarian political theory to its own rich and profound history — re-connect it to Hume, Kant, Spencer, Hayek, and many of the rest of the classical liberals.

That seems like a good bargain to me.

Note

[1] Robert Nozick. Anarchy, State, and Utopia. New York: Basic Books, 1974, pp 30-33.