Libertarianism and Liberty, Part 2: Against Maximum Freedom

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.