February 28, 2013 columns

J. C. Lester Responds to Matt Zwolinski, Part 1: The Maximization of Liberty, Defining Coercion, and Voluntary Rights Forfeiture

It was suggested that it might be interesting to have a response from me to Matt Zwolinski’s “Liberty and Property”. However, I see that his post is one of several that form what is more or less one long essay. And so I take the opportunity to reply to them all. I shall try to keep my responses short and avoid repetition except where it strikes me as desirable for clarity or emphasis (though I notice it often does). Consequently, I shall tend to say less as the entries proceed. Where I agree with Zwolinski, or do not significantly disagree, then I shall say nothing. I keep Zwolinski’s titles for each section, and insert my comments below the relevant parts of the original text.

Libertarianism and Liberty, Part 1: A Complicated Relationship

… what else could define a commitment to “libertarianism” other than a belief in liberty? Other political ideologies pay lip service to freedom, and perhaps even hold it as one legitimate value among others to be balanced in the great political calculus. But what sets libertarians apart is their belief that liberty is the highest political value. …

There are several immediate problems with the idea of having a “commitment” to the view that “liberty is the highest political value”. 1) We cannot be committed to any view. We don’t decide what we believe is true or moral: introspection reveals our beliefs. And so a perceived refutation can stop us holding a view at any time. 2) Strictly, liberty is not a “value” (values only exist in people’s minds), but a concept or state of affairs. 3) Libertarianism is, in one sense, not “political” but anti-political in principle (at most, a minimal state is a necessary evil). 4) Libertarianism is not necessarily even the “highest” principle. A libertarian principle might be held to be inviolable. But even that does not entail that it is the “highest” principle. If it is held for modus vivendi reasons, for instance (as I suppose it usually is to some degree, at least), then all participants might have other principles that they would personally rank higher, or value more, than the libertarian principle. However, they realize that liberty is a safer way to promote those other principles than the use of aggression (i.e., flouting interpersonal liberty).

… let’s look at one popular and superficially plausible interpretation. What it means to hold liberty as the highest political value, on this view, is to hold that liberty ought to be maximized. …

Before jumping into issues of maximization, should we not first ask, “what is the best theory of libertarian liberty?” Otherwise, whether or how it can or should be maximized cannot be answered. My own preferred theory of social or interpersonal libertarian liberty is an objective and pre-propertarian “absence of proactive impositions” (on people by people). That is, I take ‘proactive impositions by other people’ to be the relevant aggressive constraints that fit what libertarianism requires to be avoided. Consequently, where an absence is not fully possible—as is often the case—then a minimization will be the most libertarian option. From this formula I have argued that we can derive self-ownership itself and all libertarian property, as well as solving various known paradoxes and newly arising problems. But I can’t go into detailed explanations here. See Escape From Leviathan: Libertarianism Without Justificationism (2012 [2000])

… I am unable to think of a single libertarian philosopher who defends a position like the one I am describing. …

I am inclined to the view that liberty ought to be maximized: why would a libertarian put up with less liberty if more were possible? However, I also incline to a version of what I call ‘rule libertarianism’ (rather than ‘act libertarianism’): as a general rule, don’t violate liberty even where it looks as though greater liberty can thereby be achieved—because it won’t work in the long run.

… The standard libertarian response to such criticisms, of course, is to point out that employment relationships are voluntary, and so whatever restrictions employers impose upon their employees do not actually count as a violation of their freedom in the relevant sense. Personally, I don’t find this response to be all that persuasive. For starters, it simply assumes that what libertarians believe ought to be the case actually is the case - viz., that employment relationships are entirely voluntary. But this ignores the myriad ways in which coercion infests our present system, …

There is considerable confusion about “coercion” among libertarians. Many of them use ‘coercion’ as meaning whatever is unlibertarian. However, libertarians cannot be against ‘coercion’ as such in its plain English sense: roughly, interpersonal force and the threat of force. They can only be against coercion that violates liberty. They cannot be against coercion that enforces liberty or is voluntarily or contractually accepted. And libertarians must also be against plainly non-coercive acts that violate liberty, such as fraud and most theft (some theft also involves coercion).

… often to the benefit of employers and to the detriment of laborers. …

Yes, the state interferes and confuses matters. But the crucial point must be distinguished and not lost: insofar as the state does not impose rules that flout liberty, then “whatever restrictions employers impose upon their employees do not actually count as a violation of their freedom in the relevant sense”. And then it cuts both ways: whatever restrictions employees impose upon their employers do not actually count as a violation of their freedom in the relevant sense. Of course, it would clarify matters to have an explicit libertarian theory of liberty or freedom to apply here, and Zwolinski does not have one.

… Second, the argument assumes that whatever is voluntarily agreed to cannot be a restriction on freedom. But this is either wrong or at least a very strange way of using the word “freedom.” Suppose I ask you to lock me up in your dungeon and throw away the key, perhaps in exchange for your writing a check to my child who I would otherwise be unable to support. However unimpeachable the contract may be on procedural terms, I am, once locked away in your dungeon, less free than I was when I was, well, free. Libertarians might be right in thinking that there is nothing morally wrong with the lack of freedom I now endure. But to infer from this that it must not be a lack of freedom after all is an abuse of language and logic.

This is a mistake that no libertarian ought to make. It comes from having no explicit theory of libertarian liberty. The sense of ‘liberty’ or ‘freedom’ as the absence of mere physical constraint is completely different from the libertarian sense of not being aggressively constrained (or proactively imposed on) by another person. Once voluntarily incarcerated, Zwolinski lacks physical freedom or liberty but he has suffered no loss of interpersonal libertarian freedom or liberty. There is no “abuse of language and logic” in making this clear distinction. The abuse is in conflating two conceptually distinct homonyms.

The fundamental problem with this line of argument is its reliance on what philosophers call a “moralized” conception of liberty.

Some libertarians are indeed confused in just this way. But there is no need to mention morals at all. Libertarian liberty has an objective content both theoretically and in its observance. It is an entirely separate matter whether such liberty or its observance is moral.

… If, as many libertarians assume, violent criminals voluntarily forfeit their rights to liberty when they commit their criminal acts, then punishing them by imprisonment might not be unjust. But, surely, this does not mean that the criminal is, all appearances to the contrary notwithstanding, perfectly free when the policemen handcuff him, throw him in their police car, and lock him away in a cell.

The criminal’s physical liberty has been reduced. But his libertarian liberty has not been infringed to the extent that the judicial system was only engaged in rectifying his infringements of the libertarian liberty of others. That ought not to appear paradoxical or unclear.

Freedom and Justice are both important values, and ones to which libertarians do and should give their allegiance. But we should resist the temptation to suppose that they are the same value. That they are not the same entails that it is possible, in principle at least, that they may in certain circumstances come into conflict. This is a possibility that I will explore in a future post.

Libertarian liberty, and freedom of action, and justice are three distinct concepts and states of affairs. But if what I call the ‘classical liberal compatibility thesis’ is true, then liberty will systematically be compatible with justice and human welfare in their practical applications.

Editor’s note: J. C. Lester’s response to part 2 of Matt Zwolinski’s essay  “Libertarianism and Liberty” will be featured in the next post in this series.