Sunday, April 6, 2014

Good-bye to Libertarianism

I find the hardest part of a political philosophy course to teach is the section on libertarianism because I can’t take it seriously. It is a philosophy for the 19th century age of the robber barons and 21st century Silicon Valley billionaires who want a gloss of theoretical respectability to cover their vast wealth. But for the rest of us it has nothing to offer.

One central pillar of their theory is that property rights are natural rights, but they have been completely unsuccessful at making a plausible case for such a claim. Locke’s attempt has been subject to withering criticism and Nozick doesn’t even try to prove there is a natural right to property, he just assumes it is a fact. Much of their case for a minimal state whose functions are limited to enforcing the criminal law, torts, property and contract rights rests on the assumption that property ownership is a natural right and therefore any taxation for purposes other than maintaining the minimal state are invalid without the individual consent of the property owner. Hence, any state regulation of private enterprises is unacceptable. This puts us back in the Lochner Era of a century ago when the courts agreed that state efforts to impose health and safety regulations for workers violated the rights of the property’s owners, as did labor unions (collective bargaining) and minimum wage laws. Nor could libertarians support, consistent with their theory, a progressive income tax or a tax on stock sales (like the Tobin Tax) and other forms of capital because they would violate property rights. Moreover, curbing extreme inequality of wealth is not part of their conception of justice.

As for the second pillar of their theory – the natural right to liberty – it is loosely understood as the absence of coercion, deceit, fraud, extortion and other sorts of deliberate effort to control the behavior of others, i.e., negative liberty. Libertarians appear to hold that a society with extensive negative liberty is all a person needs from the state to be self-determining. People are entitled to only as much self-determination as they can attain within the institutional framework of an unregulated free-market. But liberals look at it differently. They draw a distinction between the allocative function of markets and their distributive function. 

Liberals like me agree that market systems – when properly regulated – can do an effective job of producing goods and services efficiently; their allocative function. But they often fail quite dramatically at distributing income and wealth – the rewards of work – in a just manner. Markets distribute incomes in response to supply and demand. Wages and salaries fluctuate in response to the relative supply of workers and demand for the product or service produced, factors that are largely independent of the worker’s merits. Nor, as the historical record shows, does a market economy always guarantee employment for all who want it. So to ensure social justice, liberals see a need for fair equality of opportunity for all. Once again, that would require transfer payments in the form of taxes from the haves to the have-nots and that would violate the libertarian’s sacred natural right to property. So we can immediately see one of the ugliest features of a libertarian society: the only children who get an education are those whose parents can afford the tuition for private schooling or who benefit from charity. Nor would there be any public colleges or universities, still less, universal pre-school education or subsidized day-care for the children of working parents. So how serious are libertarians about the right to self-determination? 

One last point: Libertarians are well-known for objecting to governmental rules and regulations as yet another unnecessary restriction on people’s liberties. Sometimes they make the empirical point that regulatory bodies are open to capture by the very parties they are supposed to be regulating. No liberal would deny the point but that hardly shows regulatory bodies are necessarily bound to fail. More interesting is the conceptual point they sometimes appear to make: that regulations per se are restrictive of liberty. This is a dogma. Rules can liberate, provided they are intelligently made and judiciously administered. Just to take one example out of many, consider consumer protection laws. Given the technological complexity of the products consumers buy and the food and drugs they consume, it would be absurd to expect everyone to be their own safety control officer. Life is way too short for that. The information provided by properly done consumer protection laws can be highly liberating.

Contemporary libertarians may regard these arguments as shopworn and out of date. Maybe so, but I still hear them in political campaigns and the speeches of Congresspersons.

Clifford Anderson
Department of Philosophy
Sacramento State


  1. Cliff, this is a very concise and thoughtful evisceration of libertarian political philosophy. I often find myself enticed by libertarian ideals, at least by their willingness to prioritize the individual and her liberty. If carried through consistently it might actually bring about some much needed systemic changes (elimination of racial, gender, and class prejudices, for example). In those moments, I find myself wishing that prominent libertarians would actually be MORE consistent (individual liberty valued in choice regarding recreational drug use but not regarding women's reproductive choices, for example). But sitting back and being more contemplative and critical of libertarian political thought, as your post prompts, makes me wonder if there is a deeper moral limitation to the theory which you don't quite address. This deeper moral limitation is the reliance upon consent as the only or primary moral principle. Marx objected indirectly to this over-reliance on the principle of individual consent in his infamous analysis of alienation which resulted in the concept of "false consciousness." More recently, feminist and race theorists are concerned to identify the way in which choices are constrained, contorted, distorted, not merely innocently, but systemically, and with implications for the distribution of important other goods. I take your concern to be with libertarian theory as a complete political theory, one which includes an adequate and robust conception of justice. But it strikes me that this limitation, if I'm correct, is inadequate to the task of supporting a robust conception of justice. Hence, Adam Smith's famous "invisible hand" and stipulation for a series of moral virtues among economic agents to render liberty + property adequate to the task of justice.

    1. Chris, do feminist and race theorists think it's morally unproblematic to use coercion to interfere with the choices people make in cases where they judge that the more authentic versions of these people would make different choices? I suspect not and that the problem of adaptive preferences and the like is something that at least some libertarian philosophers are also attempting to address.

    2. Kyle, plainly very few feminists or other political theorists take coercion to be morally unproblematic. The concern to analyse the ways in which choice and consent are shaped is not unique to feminist nor to political analysis, but is also quite fertile ground for economic analysis. There's no need to posit a "more authentic self" to get the analysis going. The point, as far as I'm concerned is not to coerce individuals' choices where those choices are based on distortions (eg: prohibit women from marrying, or having children, or taking a job in a caring profession), but to change how we organize ourselves as a society to remove as many of those institutional and systemic structures as possible so as to allow women or racial minorities the broadest real options. It might, many have argued even result in liberating men, who mistakenly believe systems of gender discrimination benefit them as individuals. At best, they benefit them as men and only so long as they too choose accordingly yet men who deviate are often similarly marginalized (eg: the man who really does want to be a stay at home dad, the man who loves caring for others and wants to become a nurse not a doctor, etc). This might involve changes that seem coercive -- like mandatory arrest and minimum sentencing for domestic violence, prohibiting sexual harassment in the workplace, requiring equal pay -- to ensure that economic, political, educational opportunities are available to all according to effort and ability, rather than according to incongruous or distorted desires or self-images. But, that coercion should be justified as should any. My mentioning it here was intended to raise concerns about theoretical accounts which do not acknowledge that choice and consent can be constrained, or that they can be constrained in ways that systematically exclude or marginalize some in the interests of others, but that rely upon choice and consent as the primary or principle source of justification for developing (or not) policies of one sort or another. This problem affects the very conception of coercion relied upon by many liberal theories, including libertarian variations. Surely even a libertarian can accept that coercion can be justified and so is not always morally problematic. The difference, it seems to me, lies in when and how that coercion is justified and on what grounds. But I'm glad to hear that at least some libertarians are attempting to address it.

    3. Me too! But I'm actually not sure that this always depends on a different conception of coercion or even a very different account of how coercion is justified. Much depends on whether the normative principles they argue from are deontological or consequentialist or contractarian, etc. I mean, for at least some libertarians the main disagreement is whether or not, e.g., legally requiring equal pay would actually work to address the problem and whether there's potential for the policy to cause other, unforeseen, problems.

    4. Right, not always, but it could.

    5. Chris: (It's me, Cliff Anderson) Sorry for the very tardy reply. I certainly agree that consent is problematic. It can be the result of self-deception, gullibility, cowardice, ignorance and a host of other blinders. But it is still a useful theoretical ideal that we can always, in practice, work to improve. Also, I don't regard consent as the only fundamental political value. I'm a rawlsian-dworkinian liberal; I consider equality as an equally important political value, provided it is appropriately understood. And equality can sometimes trump liberty, e.g. on matters of wealth, power and influence. Otherwise I don't see how democracy can function properly. Libertarianism hobbles democracy too much. I'm a bit puzzled by your remark that if libertarianism were "carried through consistently" it might eliminate racial, gender and class privileges. I don't see that at all. The free market, left to its own devices, generates class stratification, as Thomas Picketty has shown in his recent book. And it took the civil rights movement to legally compel market players to stop discriminating on the grounds of race and gender.

  2. I have a bunch of nit-picky worries about your post, Cliff, and one larger one.

    I'll limit myself for now to just one nit-picky thing, about 'robber barons': Leftist historian Gabriel Kolko’s Triumph of Conservatism shows that the turn-of- the-century robber barons didn’t oppose the progressive era reforms; rather they argued for them, welcomed them and even in some cases helped write them with a mind to insulate themselves from various competitive pressures. So these attempts to restrain corporate power actually had the effect of giving them more power. This is the idea of capture you mentioned. But no libertarian would argue that capture is *necessarily* bound to happen. Rather, it's a somewhat non-intuitive conjecture that giving government more power to regulate corporations actually increases the size and power of corporations. But it’s one borne out by history since the progressive era through 5pm today.

    The larger worry is about the idea of libertarianism. I know all sorts of libertarians. Some libertarians are miniarchists who would like to limit the state to enforcing property claims, but some, like economist Milton Friedman, argue in favor of progressive taxation. F.A. Hayek argued for a guaranteed basic income. Libertarians also have a variety of views about public education. The kind of late 20th Century libertarianism still popular in strange corners of the internet is a peculiar hardline interpretation of a much broader classical liberal tradition. But this hard libertarianism clearly doesn’t resemble very much of what goes on in the mainstream of libertarian philosophy or political thought. There are big differences between Murray Rothbard or Ayn Rand and Friedman, Hayek or Nozick (and many, many other more contemporary philosophers).

    Contemporary libertarians in the classical liberal tradition (sometimes explicitly) argue that social rules and other institutions, in order to be legitimate, have to work sufficiently in line with the interests of everyone, including (of course) the least advantaged. In fact, among contemporary libertarians, the natural rights variety you seem to have in mind is probably the one with the fewest defenders. “Property rights are conventional” they’re more likely to say. “So what? That doesn’t mean that the state’s attempts to manipulate these rights according to someone’s notion of social justice won’t make people worse off.” In any case, it’s odd in the extreme to evaluate this tradition based on the way it’s presented by Rand Paul, Paul Ryan or internet loonies instead of professional academic philosophers. I can’t think of any other view where people would think it would be ok to do that.

    1. But Kyle, remember the collapse of the Soviet Union and Warsaw Pact? That historic moment was taken as an opportunity (especially in this country) for many in the public, including academic philosophers, to conclude that Marxism, as a theory, is fundamentally flawed. Not only Marxism but also that any flavour of welfare liberalism or egalitarianism which too closely resemble it were similarly flawed.

      The result was a boon for market deregulation (in theory and practice) in the early 1990s which, ultimately, laid the foundation of the recent near global economic collapse we euphemistically call the "Great Recession." It's not surprising that the financial catastrophe hit those countries worst where the deregulation was most wide-spread and extreme -- the US and UK -- while those where regulations were retained were significantly less affected and quicker to recover -- like Canada. So libertarians aren't the only ones to be adjudged by the actions of those politicians who seek legitimacy in the garb of a political theory.

      I take Cliff's worry to be in part theoretical but in other part, and largely motivated, by practical concerns that people including Rand Paul and Paul Ryan -- who have very strong popular support, not merely by fringe internet loonies -- will use libertarian political theory to justify their radical (not conservative) agendas to deregulate further, undertake to shrink the government revenue source (which makes it all the more dysfunctional), and reduce or eliminate the social safety net in favour of corporate expansion under the guise of individual self-reliance.

      I take Cliff's concern to be to point to ways in which the theoretical tool kit of libertarianism might be insufficient to resist, and in the cases of some notable (seminal) theorists like Nozick, to be inadequate even to identify the problems with the Paul-Ryan approach to governance. The existence of a website called Bleeding Heart Libertarians (which I read on occasion) tells an interesting tale... it seems oxymoronic, maybe not to much because libertarianism is fundamentally misunderstood, but, maybe because many of our contemporaries realize that there are deep problems with the theory as Nozick and others, including Hayek and Friedman, left it.

    2. Some more nits to pick. In the period from 1980 to 2009, for every policy deregulating financial markets there were four regulatory policies passed. Granted, credit default swaps weren’t regulated very much, but this isn’t because they were deregulated; it’s because they were relatively new. Specifically, it was a new thing incentivized (unintentionally) by regulations introduced in the late 80s and early 90s. This wasn't a period characterized by deregulation.

      But the main point of my post was that pointing to nasty things self-proclaimed libertarians do or say isn’t a very good reason to purge the view from one’s political philosophy syllabus. Again, libertarianism isn’t just one thing. There’s no such thing as “the theoretical toolkit of libertarianism” because different libertarians use a variety of different tools depending on whether they’re deontologists or consequentialists or contractarians or contractualists or virtue theorists. They’re all libertarians, though, because they conclude that their normative principles deliver recommendations about policy that limit the authority of the state.

      So, the other nit: Nozick’s project in ASU isn’t just to assume that there’s a natural right to property. His view of rights is owes more to a Kantian notion of respect for persons and the idea that power or authority over another needs to be justified in a certain way than it does to a Lockean (let alone Pauline) natural law theory.

    3. Hey Kyle, picking nits seems kinda fun, so let me try one. So, if you're reluctant to let us speak about "the theoretical toolkit of libertarianism" because there are so many variations, perhaps we could agree that NOT included in that toolkit, or toolkits, of libertarians, is any conception of social justice. I say this because some of the key libertarians, including Hayek, reject (and bemoan) social justice.

      Indeed, Hayek seems not to have offered a Minimum Basic Income as a matter of social justice nor to remedy wrongs, historical or current, nor to ensure that an economic system should be fair. He even seems to have rejected that it should require a redistribution of wealth. Indeed, he hardly says anything about it, having mentioned it only in a few passages of his 600+ 3 volume page tome, Law, Legislation and Liberty.

      Indeed, he offers it for two purposes:
      1. as a way to ensure individuals aren't dependent upon the luck or good will of family to support them when they cannot participate in the market. I kind of like that. Frees adult children from the obligation to support their parent's care in old age, frees elderly from having to depend on the goodwill of their children to care for them in their dotage, and maybe (since it was supposed to be universal and independent of any special features of the individuals or, worse, groups) free children from financial dependence on the good will or fiscal competence of their parents.
      2. as a way to mitigate the risk of individual failure in the market. I suppose, the idea is that reducing the risk of utter failure will allow people to be a bit more daring, try something new, develop an idea, retool and look for a better job, etc.

      What's odd, is that this is not offered as a matter of social justice, yet is to be universal. Further, this is not something which would necessitate a redistribution of wealth, though how that should happen is, well, left blank. Another odd aspect of it is that there already are at least patchworks of something like this in many welfare liberal democracies, though they are roughly based on groups -- social security, unemployment insurance, food assistance, housing assistance, medicare and medicaid (now ObamaCare). Yet, these are often the very social safety net sorts of programs that are exemplified as problematic by libertarians.

      I'm not a Hayekian, and probably not a libertarian (though by your account in the previous post, I might just qualify), but one of my grad advisers was, who made us read the entire tome along with Road to Serfdom (he was trying to cure me of my early fascination with Hegel and Marx), so I'm not ignorant of his work. I could be wrong about this, though. So, would some of those new and excitingly diverse libertarians you mention be willing to work with a conception of social justice, or could we fairly rule it out of the toolkit?

    4. The basic income guarantee in LLL is also foreshadowed in Constitution of Liberty where he gives an account of freedom as independence from the arbitrary coercive power of others so your actions can be guided by your own will, rather than that of another. I don’t talk about Hayek too much, but I develop this argument in a paper called “Republican Freedom”.

      Hayek’s antipathy towards social justice is more about terminology. The concerns that led him to endorse a basic income sound pretty social justice-y to my ear, but he connected “social justice” with an interventionist regulatory power to secure and maintain some favored distribution of income that a) violates the account of freedom above and b) sends all sorts of misleading market signals that produce all sorts of market inefficiencies (the allocative function of prices that Cliff talked about). Of course, he recognized that the spontaneous ordering of market processes will price goods and services in such a way that can lead to inequalities and even poverty, and there are really strong reasons to remedy this (in a way that doesn’t violate the account of freedom above and doesn’t interfere with an efficient price system). But he also thought it was incoherent to apply a moral notion like injustice to a spontaneous order, like a market, where people’s wealth and incomes emerge out of millions of individual valuations (what people want to do or buy, etc.) and millions of individual transactions. The distribution of a society’s holdings aren’t deliberately imposed by a central distributor, they’re large-scale patterns, neither foreseen nor intended, that emerge through a process.

      I think one can sensibly deny Hayek’s semantic intuitions about social justice. But if you do, it becomes a lot harder to rule it out of his toolkit. And, yes, as Miles noted below, many libertarians explicitly use it. A great example is John Tomasi’s recent book, Free Market Fairness.

    5. Thanks for the clarification, Kyle. Send me your paper!

    6. Kyle: "Anonymous" is really me, Cliff Anderson. Sorry for the tardy reply, I've been swamped grading papers. Thanks for the historical clarification on the robber barons. I realize I'm attacking the hard-libertarian position of writers like Nozick, Eric Mack and (the loathsome) Ayn Rand and I'm not very well-read in recent libertarian thought. (I plan to do some catching-up come June.) But judging by what I have read, contemporary libertarians are looking more and more like liberals. Your own remark that "Contemporary libertarians ....argue that social rules and other institutions, in order to be legitimate, have to work sufficiently in line with the interests of everyone, including (of course) the least advantaged." looks a lot like Rawls' Difference Prinicple, except for the fact that he required inequalities work to the greatest advantage of the least well off. I guess what I'm in the dark about is whether contemporary libertarians still think the free market, when left to its own devices, produces a just society.

    7. Thanks for replying, Cliff. Two quick things in response. First, yes, what makes these contemporary social-justice libertarians still libertarians is that they think free markets do a better job protecting/promoting people's interests than deliberate attempts on the part of the state to hit some pattern of distribution do. Second, this is no less true of Nozick, though, who shouldn't be lumped in with Rand. Nozick's aim in Part I of ASU is distinct from that of Part II. I think he's pretty clear about this in the preface. He may seem to offer something like an argument that self-ownership implies the minimal state, but that's only in the context of his argument in Part I against anarchists. He doesn't rely on an argument anything like that in Part II, which is directed against those who try to support a more extensive state. He argues there merely that their attempts to justify greater state power fail, and not that greater state power violates some kind of self-ownership principle (in fact, as a friend reminded me, "self-ownership" appears in ASU just once).

  3. I at least think I know a good number of libertarians, so I have to agree with Prof. Swan that the existence of a spectrum on the issues you cover is neglected and would add that (in my estimation) most libertarians would not agree with the characterization (or, caricaturization) of the view presented here. Since you lay your cards on the table as a liberal, I'd suggest taking a look at the blog "Bleeding Heart Libertarians" for a representative sample of the views of professional political philosophers who both identify as libertarians and find themselves deeply concerned with issues of social justice.