What Libertarians can add to American life – if they take the time to understand their principles

UPDATE 4/26, 5/2

I have written a number of critiques of libertarian thinking recently, one a chapter in a just published book, and several shorter pieces on this blog.  Along the way I have emphasized I agree with their fundamental ethical principle of non-aggression against peaceful people, and argued I adhere to it better than do libertarians themselves.  But I have not developed the point much.  My target was demolishing an outlook I think stands in the way of clear thinking about a free society. Now I want to explore this more positive dimension, for the nonaggression principle provides us a good way to think about freedom.

When libertarians understand their nonaggression principle clearly, they end up on the right side of important issues, such as opposition to the aggressive wars we are waging in Iraq, Afghanistan, and elsewhere or to the so-called “War on Drugs.”  Given that no conservatives and very few liberals are clear on these issues, it is easy to see why many idealistic people are attracted to libertarian positions.

As they should be. These policies are clear and extreme violations of the principle we should not aggress against peaceful others.

But libertarians usually fall flat or worse when applying this principle in more complex contexts.  Their errors lie in their understanding how the non-aggression principle applies to two concepts under girding their theoretical foundation: property and what it is to be an individual.  If they would get clear about them, libertarianism would be a far more powerful, intelligent, and humane position.

Let’s start with property.

Property

Libertarian philosophy pretty consistently makes two arguments regarding property, one of which is correct.  The correct claim is that secure rights to private property are essential for individual freedom to exist.  The error enters with the second, that a coherent system of property can exist independently of government, which in fact usually seeks to take our property for its own purposes. There are many cases where those in power do exactly this, appearing thereby to verify this claim as a whole.  But the claim is wrong.

Robinson Crusoe needed no property until Friday came along.  He had access to anything he desired on the island, and there was no possibility of conflict with another as to how he used it.  But in reality “Friday” has always been around.  People have always needed ways to distinguish between what is their own from what is someone else’s, the group’s as a whole, or unowned. “Property” is a human institution.

To become property, a boundary distinguishing it from other things must be defined and considered legitimate.  Property’s  boundaries set it off from everything else, and legitimacy means I am justified in owning what is included within that boundary.  But simply defining boundaries does not give me ownership rights. Otherwise I could claim to own the moon if I were first to give its exact location and bounds.  So what does give us ownership rights?

John Locke based rightful ownership on use.  To use a Lockean example without coming to a Lockean conclusion, if I enclose land Locke claimed it gave me title to what was enclosed by my fence. But how does building a fence mean I “use” anything but what I actually walked on?  What if someone once walked across the land (using it) before I built my fence, and simply assumed he or she would thereby have continued access? Do they?  They left a path.  How far into the air or below the surface do I own what I directly used? Six inches, six feet, six miles or even farther?  Do I own a view if the reason I built a house is to enjoy that view?  The list of boundary questions is almost endless and honest disagreement exists on all of them.

Locke avoided these issues by making two claims. First “as much and as good” had to be left unowned. Second, since the first caveat was often not the case, in practice production by private owners increased the services provided by unowned property.  Today we know the issue is not nearly so simple.  To give two examples, sometimes there is value in land’s untouched beauty.  Further, some land cannot be increased, such as oceanfront property or land with mountain views.

Here is another example with no clear answer.  I want to play my drums late at night and I live in a house with neighbors who want to sleep.  At what point, if any, does my drumming become too loud? Clearly a decision has to be made and people will sincerely disagree about the appropriate volume.  Lockean-style reasoning is of no help here.

Cities have noise ordinances regulating property by establishing boundaries over acceptable volume. Those boundaries shift from one time to the next because drumming at 3pm is different from drumming at 3am. These rules also change if a city changes its noise ordinance and different cities have different ordinances.  The alternative to such ordinances is to let a sleep deprived neighbor ‘work it out’ with late night noise makers.  Reasonable people prefer ordinances because they establish secure and predictable rights for both parties, and do so in advance.

Consider another example. Just what powers do I get when I hire you and what powers do you retain when you work for me?  Can I lock the doors during work hours, as was once done, or be able to strip search you at the end of the day to make sure you have stolen nothing?  Can I demand overtime, and if so, must I pay extra wages or not? Do I retain ‘ownership’ of anything you learned on the job, so that you cannot take that knowledge to a competitor?  At what age can you sign a binding contract with me? Who settles disputes between us? Within the context of contractual relationships there are no clear answers to these questions. Libertarian Robert Nozick wrote I could buy you as my slave so long as the sale was voluntry.

Given that rules common to all must be found and people will disagree, the only way ordinances, boundaries, and rules, can be framed without aggressing on a peaceful person is to make the process for deciding them fair so losers in any given decision will feel the outcome was legitimate. The analogy is like losing a competitive game and feeling the winners did not cheat. It is easy to imagine everyone agreeing on fair rules knowing in advance that sometimes they will lose future disputes.  We do this every time we agree to play a competitive game.

Deciding and agreeing on general procedural rules for making specific rules means the process of deciding becomes a part of what makes the rule legitimate.

The only way a decision can be fair is if everyone affected by a decision has an equal voice in its adoption at some point in the process. Some kind of democratic principle must kick in BEFORE property rights can be justly defined. Property is free from violent appropriation against others only if it is legitimate, and this can happen only if the rules are decided democratically.

This task of boundary definition to property is never finished.  For example, as people grow more closely connected in cities, activities once harmless can become harmful. Often new limitations on the use of property rights must be defined. But these limitations must be seen in the context that has led to them. These denser communities also make richer opportunities available at all, which is why so many people are attracted to cities. People live longer, healthier, and more satisfying lives if the air they breathe is not poisonous, and the density that makes cities attractive to so many also makes certain kinds of pollution harmful that could once be ignored without ill effects.

This assumption of just property rights is the libertarian version of socialist central planners’ assumption that adequate knowledge exists to plan an economy. Both assume knowledge is known that must be discovered.  Both assume there is some objective standard for evaluating this knowledge.  Both assume stability when there is no stability. What matters with respect to private property is not the “sanctity of contracts” or “property rights,” which almost no one opposes, but the boundary details. Those details must be defined by people as equals if they are not to be coercive aggression by the more powerful against the less powerful.

These considerations expose the complete absurdity of libertarians claiming North Dakota is freer than New York or California because it has fewer regulations.  North Dakota has very few people per square mile. Living in North Dakota is like playing drums in the country.  New York is like playing drums in the city.  I have more limitations over drum playing there, but I have much greater opportunities to do different things with my life.  Almost everyone prefers New York to North Dakota, as comparative property prices attest.

There is one additional argument libertarians sometimes give as to why property right definition need not depend on government.  Supposedly common law is an alternative means. With common law, law deals with new issues by applying precedents from old cases to new.  They are right as far as the argument that legislatures cannot anticipate every possible case, and so judges developing a law’s application on a case by case basis is more flexible and just than a one-size-fits-all approach.  Indeed, that is what we have in the US today, and libertarians claim we could just rely on it alone and dispense with legislatures.

But why should losers in a common law proceeding accept the outcome as just? Where does the court get the authority to rule over me?  Either I consent in some way, or it is imposed.  There has to be a pre-existing agreement that the law is legitimate.  The only rational consent I can give is if I believe the law to be fair. The only way the law can be fair is if I believe I will be treated equally.  The only way In can be sure there is a chance to be treated equally is at some point to have influence equal to others. In common law my influence can never at any point be equal to a judge, who holds an unelected position. (Which raises the question of who selects the judges, but we will let that important point slide in this essay.)  We are led again to favoring some democratic approach, like voting for representatives who have the right to change the law if it takes off on a path of unwise precedents.  Otherwise the judges are sovereign in a way that no one else is, having the right to make coercive decisions over others, with them having no appeal.

In other words, the logic of common law, when combined with the nonaggression principle, again brings us to some form of democratic agreement as the ultimate standard for making rules and decisions that affect people who might not agree.

This point is particularly vital given that free societies always inherit pre-existing rules for ownership, rules formed when people were not equal and when the strong did aggress against the weak.  But given that a kind of order has arisen based on those rules and given that the rules are amenable to future modification by democratic processes, everyone might reasonably decide they are better off accepting what currently exists rather than trying to establish a new pattern of property distribution from scratch.  But the validity of this argument depends on those rules being open to future modification whenever a majority deems it appropriate it be done. Otherwise earlier domination is institutionalized in the name of ‘freedom.’

Starting off as they usually do by assuming a set of just property rights or a “libertarian legal code”  or invoking common law enables libertarians to avoid all the hard problems.

If they fully grasped the implications of wanting a regime of private property based on the nonaggression principle, libertarianism would become a variety of democratic theory, not an opponent of it. What would set libertarians apart from other democratic theorists is a deep suspicion of the adequacy of traditional democratic institutions to do their job without being taken over by those who would subvert their purpose.  On this point I agree with them.

Individuals

Libertarians treat individuals as discrete from one another. To some important degree this is true, and it is in those areas where modern libertarianism serves as a vital ally for people seeking to leave behind a better world for their children.

However, as with the libertarian view of property, there is a fatal, blindness to an important aspect of what it is to be a human being.

Libertarian theorists, especially modern ones, ignore millennia of philosophy and well over 100 years of scientific research demonstrating beyond reasonable doubt that we are intricately interwoven with one another and with our environment. Almost every libertarian emphasizes every individual’s ultimate isolation and ‘autonomy.’ That is why their social ideal is the contract, an enforceable agreement often made between complete strangers who remain strangers.

Our autonomy is quite real, but it is real in the same sense that a coin really has heads.  It is half of the picture.  Autonomy is one side of a coin whose other side is relationship.

To shift metaphors, in this respect we are like photons: when we ask some questions about ourselves we answer as individuals (particles) and when we ask others we answer as socially formed beings (waves). That we find waves and particles irreducible to one another and logically contradictory does not bother photons in the slightest.  I think it reasonable to suggest we are at least as complex as photons.

We are who we are because of our relations with the social world, from our upbringing, communities, nation, history, and times. Libertarianism itself is a powerful testimonial to that fact.  There are many libertarians in the US and few elsewhere. This can be explained by reference to American culture and history, not by the supposed internal qualities of American genomes compared to those of other human beings.

Their denial of this wave dimension to human beings leads libertarians to their otherwise strange hostility towards environmentalism. Environmentalists emphasizes we are individuals-in-relationship-with-others rather than individuals as fully autonomous. I suspect the reason Rachel Carson is hated by so many libertarians is because she demonstrated to millions that we are inextricably entwined with the world as a whole.  We have permeable boundaries between ourselves and the world.  I believe this one-sidedness also explains their hostility to science with respect to global warming.  In both cases, in the name of liberty libertarian ideology effectively attacks science , health, and the well-being of future generations while allying itself with the least libertarian elements of our society, as the Kochs have done with the Republican Party.

Recognizing these facts does not destroy individual rights. It does not make us ‘slaves’ of others.  It does not mean we are “aggressed” upon.  It does not limit our “autonomy.” Who we are and the kinds of autonomy possible for us grow out of our interactions with others.

In other words, our individuality reflects ourselves as existing in networks of relationships.  To return to my coin metaphor, an individual is not a two dimensional “head,” an individual is the three dimensional coin that arises out of the relationship of its having both a head and a tail. Perhaps this distinction accounts for the curious lack of depth in individualist depictions of human beings.  They are autonomous and have rights, but in every respect that is truly important, they are completely independent from one another.  There is no reason as to why we should care about them.  Such a view is inhuman.

As soon as we acknowledge this fact we are led to ask what the appropriate relationships are for free men and women.

The non-aggression principle is a very good start, and sensitivity to autonomy’s connectedness with relationship means aggression can take place in ways other than with the explicit or implicit threat of a gun. For example, using one’s greater economic power as the boss of a single mom in order to demand sexual favors on pain of being fired during a time of high unemployment is aggression.  A philosophy unable to see this is not a philosophy of human freedom, whatever else it might be.

The classical liberal heritage has important thinkers offering ways to integrate our individuality and our sociality. Adam Smith’s Theory of Moral Sentiments with his exploration of “sympathy,” which today we would call empathy, is an excellent start. So also is F. A. Hayek’s argument on how our rationality is the product of our living together as social beings. Approaches such as these would effectively vaccinate the libertarian mind from Murray Rothbard’s philosophy that argues parents have the right to watch their children starve to death or Robert Nozick’s acknowledgement of voluntary slavery as in keeping with freedom, or Ayn Rand’s nihilistic worship of the “superman.”

Democracy

Aristotle wrote that politics is the process by which people determine what is advantageous or not to their community and what is just or unjust.  For Aristotle politics is based on speech, not force. Man is a political animal because of the power of speech.  Democracy is the political recognition of these fundamental facts about human beings combined with the non-aggression principle.  We are individuals – every person has individual political rights to freedom of speech, press, organization, and the vote, to use as they choose, and every person is social – we decide together the rules by which we shall live. Those rules grow out of individuals exercising their individual rights to seek to discover what rules are best for them as members of a community.   Property rights are community creations defining the realm of agreements and obligations we have with one another and with what we own.  So are the rules of contract.

In a very real sense the best analogy for libertarians to think about the internal characteristics of a democracy is as a community cooperative which determines the realm of free contracts in exchange which its members will have and might even adopt services for all because their size enables low rates than if they were individually negotiated. This is way analogous to how businesses getting better medical coverage for employees than the employees could negotiate on their own. Other than their law enforcement activities, American states, cities, and counties  come very close to this model.

But libertarians constantly complain about “taxes” and “big government.” Even when these complaints are rooted in genuine problems, as they often are, they manage to miss the point.  What matters is not taxes and size, it is what those taxes pay for and what the government does.

Taxes in much of Europe are high partly because they pay for universal medical care. But financially they are wise investments.  Medical care is cheaper per capita in these countries than in America, where we pay more for more or less the same services for only a portion of the population.  That European model is analogous to a co-operative collectively purchasing medical insurance for its members.  Complaining about “high taxes” is childish until we know what those taxes pay for and what alternatives there might be for the same services.

Some libertarians might then argue that unless they explicitly consent to every tax levied, taxes are theft. I disagree.  If having a system of complex property rights requires an institution able to make basic determinations of what those rights are, anyone wishing to live in such a world can legitimately be called on to help pay for it. The minimal requirements for a society based on non-aggression where people will disagree about decisions common to all that need to be made is a system of equal input for deciding basic rules covering property and the values it serves.  That requires consenting to whatever is needed to support that system.  Otherwise in the most basic sense it is they who are the moochers, free riders, and parasites, using a culture they do not want to pay for. They are not friends of human liberty, they are friends of every individual having a veto power over any common rules for all. As such their logic leads not to a prosperous market order but the breakdown of complex societies into simple tribal ones, with all that this implies.

When people must live by common rules and disagree about the rules, there must be some degree of coercion.  Rules must be made and once made, enforced. Coercion is minimized when the community decides what to do based on rules fair to all, and that requires democracy at some crucial point.  From this perspective taxes are coercive in the same sense as the rules of a game are coercive.  If you want to live with others, rules common to all are necessary.  If the rules are fair, there is little to complain about. If the rules are unfair, the issue is not the rules, it is unfairness.

Which brings us to the issue of “big government.”

America’s freest state according to many libertarians is North Dakota. It has a small government that intrudes harshly into the most intimate parts of women’s lives.  It is deeply, and some like me would say viciously, coercive.  But libertarians claim North Dakota is our freest state because its government is small.  The issue here is obviously not size, it is what the government does. North Dakota is hardly the freest state for around half its citizens.

In response some will argue that North Dakota is both democratic and oppressive, so I have rebutted myself.

North Dakota is democratic and it is oppressive.  This reality leads us to the most enduring issues in democratic theory, grappled with from Aristotle to Madison to today: how to ensure a political process remains fair,  avoids oppression, and limits the chances of mistaken decisions. For example, often private interests in and out of government seek to take government over for their own benefit. Men and women with a lust for power and domination are always attracted to positions of leadership, and not only in government. They seek the top of any big organization, and then use their power to influence government in their favor. James Madison made important contributions to that question, and North Dakota compared to the US is actually a pretty good illustration of Madison’s argument in Federalist 10: that when there are many conflicting interests, what people can agree on is likely to benefit the group as a whole whereas in simpler societies majority tyranny is far more likely. North Dakota has majority tyranny in a way the US does not. Size of government is not the issue, the complexity of the society is.  When governed by democratic rules the simpler it becomes the greater the likelihood of measures being adopted oppressing minorities. From a standpoint that values freedom, this is why a bill of rights for the unimaginably complex United States is a safer guarantee against coercion than a bill of rights in the North Dakota constitution. The words might be the same but the context for interpreting those words is very different.

In addition, like all big organizations, governmental organizations can easily become interests in their own right, interests with privileged positions for influencing political decisions.  Often they ally with private interests outside government to preserve their power, and cement a deeply corrupt system often able to override democratic rules. The biggest American example is the military-industrial complex, but there are many more. Our Founders were aware of this danger as well, which is why from Jefferson to Hamilton, none wanted an aggressive foreign policy that would create the institutions needed for despotism, President Eisenhower made the same warning. It is here, in foreign affairs, and not domestic affairs, that the greatest threats to American freedom are rooted because it is here that government gets farthest away from democratic principles.

We need to rethink what makes a complex modern society democratic and how to keep it that way.  In my view applying Madison’s principles to our different circumstances is a wise guide. But as a rule libertarians have evidenced no interest in this task, Madisonian or otherwise, preferring to blame government while normally keeping quiet about the private interests that dominate it at our expense or claiming once government is gone the problem goes away. If my argument is correct, a wiser application of democratic principles is the only principle that can guide us towards a freer and less coercive society.  And libertarians reject it. In doing so their position departs from its ethical foundations.

Why?

They reject democracy because libertarians are blinded by their over-reliance on free market economic theory. It blinds them to much of human life because its basic analytic categories make those dimensions invisible.  For example, a citizen is neither a producer nor a consumer nor a combination of both.  A producer creates goods for others.  A consumer buys goods from producers.  In both cases their economic relationships are basically instrumental. These relationships are costs. Being a citizen is more complex. Most who vote realize their vote will almost certainly not decide the election.  If voting were truly instrumental, almost no one would ever vote. The more informed you were the less you would vote. But voting is skewed in favor of the most educated and economically successful.   This should signal that something is amiss with the analysis, but fr libertarians (and many economists in general)  it does not.

Developing that line of argument further will have to wait for another post but the point is clear: economic reasoning falls far short of human reasoning..

Libertarian principles have taken a serious hit from this ideological blindness.  They have been divorced from thinking about democracy, which is described misleadingly as “majority rule,” and so basically like other kinds of rule. Improving the functioning of existing democratic institutions (such as ending our two party oligopoly by replacing plurality with majority voting), is ignored even though libertarians would be major beneficiaries if this happened. This blindness only makes sense if “majority vote” is mistakenly considered akin to “majority rule” which is mistakenly equated to “rule.” Institutional alternatives to traditional democracies, such as democratic trusts and cooperatives, have received little if any attention.  In short, libertarians have paid a high price for not thinking more deeply about their basic principles. At a time when their biggest supporters have become major supporters of an authoritarian Republican Party perhaps it is time for genuine libertarians to wake up.

So yes, the libertarian non-aggression principle is valid. Yes, private property and voluntary contract are vital elements of a free society.  Yes, the market is the best means anyone has ever discovered for increasing material well-being.  Yes to all of that.  But to realize their potential those principles must be rooted in and grow out of a richer and more interdependent sense of individuality than libertarians have generally acknowledged.  Once they grasp this truth libertarians will see how the good things they praise best serve human beings only when situated within a genuinely democratic context. When and if they do, they will bring a sensitivity to alternative institutional structures, rooted in civil society, as well as alternative democratic structures, such as cooperatives, to enrich our palate of alternatives to today’s corruption. We need those alternatives.

 

New material added on 4/26, 5/2.