Libertarianism is Illiberal - Why I am not a Libertarian series

AKA, Libertarianism has already been tried, it was called Feudalism.

This post is part 2 of what I am calling the "Why I am not a Libertarian" series. Part 1 is located here. In this post, I am going to argue that libertarianism is not a liberal view. Although the differences between libertarianism and liberalism appear subtle, they are indeed so significant that I feel that the adoption of libertarianism would lead to the undoing of the open society. This is because libertarianism has more in common with feudalism than it does with liberalism. These are bold claims that require explanation. I think the best explanation I have found is in the essay "Illiberal Libertarians: Why Libertarianism Is Not a Liberal View" by Samuel Freeman. The essay can be found HERE. I will follow the essay closely with a few thoughts on my own, but Freeman's essay is worth reading in full.

Like Freeman, I will not be focusing on philosophical liberalism but on liberal institutions and the primary features of a liberal constitution. [1] I will also follow Freeman in his three-part categorization. To understand the political conception, he divides it into three contemporary views:

Classical Liberalism
High Liberalism
Libertarianism

Here Freeman is not making a value judgment that high liberalism is somehow better than classical. Some choose to call high liberalism egalitarian liberalism but Freeman thinks this is a misleading name. First, it implies that classical liberals do not care about the welfare of the poor and secondly it puts the emphasis in the wrong place for example Rawls denies he is arguing for the welfare state. [2]Since I could not come up with a better name than Freeman I will be sticking with his label.

Classical Liberalism

Major proponents were - David Hume, Adam Smith, and the classical economists. Contemporary theorists include David Gauthier, James Buchanan, and Friedrich Hayek. Classic liberals generally endorse laissez-faire and accept the justice of efficient market distributions, but allow for redistribution to preserve the institutions of market society.

High Liberalism

Major proponents were Immanuel Kant, John Stuart Mill, John Rawls, Amartya Sen, and Ronald Dworkin.

Libertarianism

Major proponents were - Robert Nozick, Jan Narveson, Ayn Rand, Murray Rothbard, John Hospers, and Eric Mack. These people had different ideas and disagreed with each other, but there are certain basic principles and institutions which they all endorsed. More on this later.

My argument is that although many people today might call themselves classical liberals and use the term interchangeably with libertarianism, their similarities are only superficial. Liberalism stands in defense of the open society, while libertarianism undermines it. The reason is libertarianism rejects essential liberal institutions. As Freeman writes,

Correctly understood, libertarianism resembles a view that liberalism historically defined itself against, the doctrine of private political power that underlies feudalism. Like feudalism, libertarianism conceives of justified political power as based in a network of private contracts. It rejects the idea, essential to liberalism, that political power is a public power, to be be impartially exercised for the common good. (pg 107)

By way of explanation of these claims, following Freeman, I will focus first on liberal institutions, then focus on libertarianism and then finally explain how libertarianism rejects liberal institutions.

Institutional Features of a Liberal Constitution

I. Equal Rights to Basic Liberties

An open society is tolerant of diverse beliefs and ways of life. Liberalism institutionalized this toleration by the political recognition that some liberties are more important than others. Basic Liberties are designed to maintain through the rule of law the security and integrity of persons and their freedom to live as they choose. These liberties apply to all citizens equally regardless of social or economic status. Liberal philosophers offer different ideas of what constitutes basic liberties but they all agree on the liberty of conscience. Liberty of conscience allows for toleration of religious, ethical, and philosophical beliefs.

Philosophers such as Mill include in his basic liberties, liberty of conscience which encompasses freedom of speech and discussion, but also freedom of association. Rawls adds equal political liberties such as the right to vote, the right to hold office, the right to assembly, and the right to organize and join political parties.

These liberties are basic, according to liberals, in that they are both fundamental and inalienable.

Fundamental - they have absolute priority over other political values; they cannot be sacrificed or weighed off against non-basic rights.

Inalienable - a person cannot contractually transfer basic liberties or give them up voluntarily.

Inalianbility is of crucial importance for the purposes of this post. No open or liberal society would enforce a contract where people agreed to sell themselves into slavery or indentured servitude. Nor would they enforce a contract in which someone gives up their freedom of association to permanently join a religious sect. People are not like property in the fact that they cannot transfer basic liberties, in a way they can transfer properties. Note that this is not the case of someone breaking the law and ending up in prison, involuntary forfeiture is not the same as voluntary alienation.

There are many arguments for inalienability that merit their own post. Freeman presents one by Kant in his essay and provides references to others, which I'll link to some in the notes [3].

Libertarians might object and state that respect for a person might include allowing for individual choice even if these choices are irrational. Why should an individual be restricted from voluntarily entering a binding agreement that limits their freedom?

The Liberal argument for inalienability comes down to the basic design of basic legal institutions, specifically the institutions of property and the use of governmental power to enforce personal agreements. Liberalism allows for people to voluntarily enter master and subordinate relationships to nearly any degree individuals choose. This is allowed by freedom of association. However, the inalienability restriction implies that a person has the right to exit that relationship. The problem then comes with the introduction of the legal mechanisms of contract and the institutions of private property, with their coercive enforceability.

Alienability of basic rights, if recognized politically, would force us as a society in participating in the debasing of individuals. Society would be forced to treat individuals as property to enforce contractual obligations. Liberalism holds that individuals do not have the right to impose such extraordinary duties upon others. Liberals refuse to treat people as objects without rights, even if the individual wishes to be treated this way.

It is because contract and property are matters of publicly enforceable right imposing uniform duties upon all that liberals do not respect the outcome of any given private agreement as a valid enforceable contract. This is why property and freedom of contract are not part of the basic rights listed earlier and is indeed in need of clarification, as to not confuse this with the right to own property.

To clarify on the right to own property Freeman writes,

Here the formal right to own property needs to be distinguished from the right to particular properties, for instance, my right to homestead. Like the right to enter binding contracts, the formal right of ownership -- the capacity to have rights in things as they are defined by law, and to have this capacity equally with other citizens-- is arguably basic for liberals...To be incapable of ownership and contracts, as these rights and powers are defined by law, is one of the marks of dependence and/or servitude. but the formal capacity to ownership implies little about the content of one's rights, or the kinds of rights in things people ought to be allowed to have in any particular property system.

Liberals of the classical and high traditions can agree that legal capacities for ownership and contract are basic rights. Having exclusive control over some personal property and protected domicile are conditions of individual independence. But this does not mean that rights to particular things are themselves basic (or fundamental) rights. On any liberal conception, government can regulate and proscribe uses of property and even appropriate property by eminant domain procedures if necessary for the public good (so long as fair compensation is made).

Liberalism holds that the Rights of property, as legally specified, are revisable by law to meet changing conditions, such as for efficiency, public safety or convenience, or some other social value. The rights of property are not fundamental in this regard.

An essential mark of Libertarianism is the contrary claim, namely that the rights of property are fundamental. A person has the right, according to Libertarianism, to use and transfer a possession without any interference for the sake of other social values. Freeman calls this "absolute" - Absolute property right is the most significant right in the libertarian view.

II. Equal Opportunity

Liberal constitutions hold that there should not be any restriction on entry to political positions based on race, gender, ethnicity, religion, philosophical views, or socioeconomic status. Equal opportunity was developed as a rejection of the notion that people's political positions are assigned at birth and are unchanging throughout their lives. Classical and high liberals interpret equal opportunity differently but at the minimum, they agree that there should be no legal or conventional restriction on socially disadvantaged groups. High liberals argue that we ought to go further than this minimum. I think to further the development and protection of the open society, the high liberals are correct in this assumption.

III. Markets, Allocative Efficiency and the Social Minimum

The third feature of liberalism is the significant role markets have in economic relations. The reason for the emphasis on the market differs between high and classical traditions. For high liberals such as Kant and Mill, the market is primarily seen as a condition for freedom of occupation and association; as well as achieving fair and equal opportunities. Markets also play an important role in the allocation of productive resources for all liberals. But for high liberals as a matter of right and justice, people ought to have access to an adequate share of material means. Without sufficient income or wealth, one's freedom and opportunities are worth little. High liberals then advocate non-market transfers of income and wealth to some degree to be arranged by public institutions.

Classic liberals by contrast do not advocate non-market mechanisms to give each person a right to income and wealth. However, this does not mean classical liberals do not advocate for a social minimum too; they do, but they do not recognize it as a requirement of justice. Instead, a social minimum is conceived as a matter of public charity so that people will not starve, as argued by Friedman. Or as a way to prevent social strife as argued by Hayek. [4]

IV. Public Goods

The fourth feature of liberalism, in both the classical and high tradition, is the role of public goods. They both envision a prominent role for the government in the provision of economic public goods. Such as national defense, public health, and sanitation, police, and fire protection. Highways, street lighting, ports and canals, sewer works, and education. [5]

Freeman writes,

Classical liberalism is associated with the doctrine of laissez-faire. But it is important to see just what laissez-faire meant to the classical economists of the Scottish and English schools who advocated it. It did not mean rejection of government's redistributive powers and the acceptance of the "night-watchman state." The role of government in providing public goods and even in alleviating economic distress was affirmed by Smith and other classical economists. Instead, laissez-faire implied the absence of governmental intervention the side of allocation of productive factors, and non-interference with markets except to maintain their fluidity. Something quite different (we will see) is involved in libertarian views.

V. The Public Nature of Law and Political Authority

Finally, the last feature of liberalism is not embodied in any one liberal institution but it is represented in all of them generally, and that is that political power is public power. This is where the feudalism accusation may start to take shape in your mind, but before I get ahead of myself let me expand further on the public nature of political power under liberalism, and I argue under any open society.

Political power is sometimes characterized as a monopoly on force held by those who claim the authority to rule. However, liberalism conceives of political authority differently, that is society is possible only if people observe common rules. And for rules to be effective, they must be public and generally accepted. What is essential is that necessary public rules be issued and uniformly applied by a commonly recognized authority. Political power is seen as a public power by liberals meaning,

Political power is institutional and not personal - it is not held by a specific individual but by an artificial person, a publicly recognized institution (the Body Politic in the liberal contract tradition)
Political power is continuous - the public institutions vested with political power periodically appoint individuals to occupy offices of authority
Political power is held in trust as fiduciary power - those who occupy political offices act in a representative capacity for others' benefit.
As a fiduciary, government has political power delegated to it by the Body Politic; as the People's agent government is to exercise power solely for the benefit of those represented.

Libertarianism Formative Principles

It is quite understandable that people mistake Libertarianism for a liberal view because libertarians endorse individual rights, individual freedom, and the liberal idea that people ought to be free to determine their conduct and lives as they see fit, as long as they do not violate other's rights. However, libertarians define peoples' rights to take view outside of the liberal conception. It is not that libertarians accept all the usual basic rights liberals do then add some more rights such as the freedom of contract. Liberals already recognize that these rights, suitably construed, are important to exercise other basic liberties.

Libertarianism's basic formative principles often depict their view as based on a moral injunction against coercion, or aggression, or against forcing people to do what they do not choose to do. Libertarians don't condemn all coercion or aggression, for example, they endorse coercive enforcement of personal and property rights and contractual agreements.

Coercion Coercion Coercion Coercion...

I have written elsewhere about the problem that exists on this view of coercion here. There are a few more things to say about it though. For one it is very misleading to suggest that the coercion required to enforce the rules of a libertarian society will be less than in other systems. Whether libertarianism requires less or more coercion depends on its popular support and the degree to which members of the libertarian society see its principles as legitimate.

Libertarians might answer that it's not just any force that matters but it is the use of aggressive interference with another's rights. People are not coerced when prevented from actions such as theft. This moralized definition of "coercion" has peculiar consequences. Carried to its limit, the moralized definition of "coercion" implies that any justified use of force is non-coercive. Prisoners are not coercively kept locked up.

As I've said before, the moralized version of "coercion" does not advance the argument for libertarianism. Even if you accept the moralized definition, nothing of real consequence follows. ANY political conception prohibits the unjustified use of force against others, and this is what the libertarian constraint against coercion really amounts to. Arguments regarding the content of these rights and entitlements are the burden that libertarians must argue, not claims about coercion.

What of the libertarian declaration of minimal interference. This declaration cannot mean that libertarians seek to minimize the number of interfering actions, for it is easy to imagine a libertarian society without popular support, where the majority of people do not accept (mostly because they simply cannot afford to) its absolute property rules. In this situation, interference would be higher than in a liberal society.

Property

Libertarians often appear to take 'property' to be an intuitive notion. Involving unrestricted freedom to control and determine what is done with that property. However, as a legal and moral category, property is more complicated than this. It presupposes an elaborate system of institutional rules, which specify the kinds of rights powers, duties, and liabilities persons have concerning the use of and control of property. There are more or less an uncountable amount of property systems. These concepts of ownership and property rights are definable by reference to this institutional background. To say a person owns something is to say that this person has a certain key right of use and power of control within a property system. As a consequence moral claims regarding the right to property or rights of ownership commit one to a specific property system. Libertarians assume these concepts to be self-evident, that property entails unrestricted rights to use and dispose of things.

What makes libertarians' notion of self-ownership and property in oneself doubles this difficulty. What does it mean to say one legally, and morally owns oneself?

Why Libertarianism is not a Liberal view

Rejection of Liberal feature I.

I agree with Freeman (though he uses different terminology) that the most central liberal institution, and I argue crucial to the open society, is the protection of the basic rights and liberties needed to secure individual freedom and independence. Libertarians would have us believe they accept these basic rights and simply add more liberties but this is misleading. When these added "liberties" are combined with the libertarian account of self-ownership then basic rights just become one among several kinds of rights. Basic liberties are then of no greater moral or political significance than any other kind of property right.

There is no room in a libertarian scheme for inalienability. Within the context of libertarianism acceptance of complete freedom of contract, it implies the invocation of the coercive powers of the state (or anyone else) to force you to comply with your earlier agreements, no matter what you have agreed to or how much you presently object to it. Assuming the transaction was freely entered.

It is a mistake to conceive of servitude agreements as simply private matters between consenting adults protected by freedom of association. If it were the case then either party could terminate the relationship freely. Libertarians, however, describe the full alienability of rights as if it were a matter of showing respect for people's freedom and voluntary choices.

Libertarians' lack of concern with the preservation of basic rights and liberties marks the essential difference with liberalism. No liberal society would enforce or permit enforcement of an agreement against a person who has tried to alienate one or more of their protected basic rights. These are the rights that define a person's status as a free agent. Liberalism affirms the idea of free moral agency and seeks to secure it via the institutional recognition of basic rights.

Rejection of Liberal feature II.

Libertarians endorse absolute property and invidious discrimination. Freeman writes,

Jim Crow laws were not the primary cause of segregation in the South. In many places few laws, if any, explicitly restricted blacks from entry into desirable social positions, from purchasing property in white neighborhoods, from entering private schools and colleges, or from using hospitals, restaurants, hotels, and other private businesses frequented by whites. Because of privately imposed restrictive covenants, discriminatory business practices, and backs' abject economic status, there was little need for laws imposing segregation and discrimination. It could be left up to the invisible hand.

Libertarianism has no principles and allows for no laws or institutions that prohibit such invidious discrimination.

Libertarian property rights provide cover for bigotry and discrimination against what liberals see as the basic rights of its citizens.

Rejection of liberal features III and IV.

Markets -

This one is fairly straightforward. Unrestricted markets allow for freely associating individuals to enter agreements designed to restrict other's options.

Public Goods -

Also, libertarians reject the redistribution of income or wealth by the state. As to them, this is coercive. Showing no concern to allow the disadvantaged access to health care, education, or temporary relief in emergencies or cases of unemployment. Some libertarians even call this indifference a virtue. Libertarians also reject the idea of public goods such as roads, healthcare, fire protection, police, and others. Instead, they think these ought to be private.

Rejection of liberal feature V.

Libertarianism has been tried it was called Feudalism

This is another crucial difference that makes libertarianism different from liberalism, the acceptance of political power as private power. Liberals such as Locke maintain that the three primary functions of governments are:

1. to legislate public rules and revise them to meet changing circumstances

2. to adjudicate disputes arising under these rules

3. to enforce rules when necessary against those who violate them.

According to Locke, these three powers are necessary to remedy the defects of the state of nature. In contrast, for libertarians there is no place for institutions with these authorities, favoring instead protection rackets. That is, performed by private protection agencies and arbitration services. Libertarianism then rejects the liberal idea of public power, favoring instead of private political power. Favoring then the ideology that historically liberalism stood against, which is Feudalism. Feudalism here as written by Freeman,

the elements of political authority are powers that are held personally by individuals, not by enduring political institutions… subjects’ political obligations and allegiances are voluntary and personal: They arise out of private contractual obligations and are owed to particular persons.

Liberalism emerged to a large degree as a rejection of the idea of privately exercised political power, whether it was from a network of private contracts under feudalism, or whether it was due to owned and exercised rights under royal absolutism. Libertarianism apes feudalism in that it establishes political power in a web of individual contracts. Leaving no room for legitimate public political authority, rejecting the "body politic." People's rights are only protected insofar as they can afford to pay to have them protected.

Conclusion

Following Freeman, hopefully, I was able to show what the primary institutions endorsed by the liberal political traditions are. And this allowed me to highlight why they are not compatible with libertarianism. I did not argue that liberal society is necessarily the best at protecting the open society. I am still unsure on this point but I know that through all its faults, liberalism is a far superior system to feudalism.

I do not know whether our liberal institutions will remain stable enough to protect us from a widespread adherence to libertarianism. One can only hope that liberal institutions can hold.

Notes

On philosophical liberalism, Freeman writes,

Philosophical liberalism maintains that, first, there is a plurality of intrinsic goods, and that no single way of life can encompass them all. There are then dif- ferent ways of living worth affirming for their own sake. Second, what- ever intrinsic goods are appropriate for individuals, their having the freedom to determine and pursue their conceptions of the good is essential to their living a good life. Finally, necessary to individuals' good is that their freely adopted conceptions of the good be consistent with justice. All have an interest in exercising their freedom so as to respect others' basic rights and other requirements of justice. While this does not mean that justice is necessarily an intrinsic good (al- though it can be), it does mean that observing justice's demands is a normal precondition of living a good life
John Raws, A Theory of Justice, preface of revised ed.
See Mill, On Liberty, chap. V, pp. 113-15; Rousseau, Social Contract, Book I, chap. 4, "On Slavery," in Rousseau, The Basic Political Writings, translated by David A. Cress (Indianapolis: Hackett, 1987), pp. 144-47. In The Metaphysical Elements of Justice, translated by John Ladd (New York: Library of Liberal Arts, 1965), p. 98 (Ak VI:33o), Kant says: "No one can bind himself by a contract to the kind of dependency through which he ceases to be a person, for he can make a contract only insofar as he is a person." In "On the Proverb: That May Be True in Theory but Is of No Practical Use" (Ak VIII:293, quoted in Perpetual Peace and Other Essays, translated by Ted Humphrey [Indianapolis: Hackett, 19831, P. 75) where Kant says that no person can lose his equality as a person except through transgression; equality cannot be alienated "through a contract ... for there is no act (neither his own nor that of another) that conforms with right whereby he can terminate his possession of himself and enter into the class of domestic animals."
Friedrich Hayek, The Constitution of Liberty. makes the argument that "poor relief' is instrumental to preventing widespread theft and disorder. Hayek endorses society's "duty of preventing destitution and providing a minimum level of welfare," but rejects the "welfare state" since it aims at "egalitarian distribution" (p. 289). Hayek also endorses social insurance measures such as compulsory payment for health insurance and old-age pensions (p. 298).
Milton Friedman seems to advocate a public charity position based on beneficence; he states a need to "assure a safety net for every person in the country, so that no one need suffer dire distress." See Milton Friedman and Rose Friedman, Free to Choose.
For a discussion of public goods, see Rawls, Theory of Justice, sec 42.

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