Robert H. Bork critiques Libertarianism

[The following (rather long) critique of Libertarianism is found on pages 150-152 of Robert Bork's popular book, "Slouching Towards Gomorrah." Thanks to Joe Steve Swick III, who posted this to the net.]

Libertarians join forces with modern liberals in opposing censorship, though libertarians are far from being modern liberals in other respects. For one thing, libertarians do no like the coercion that necessarily accompanies radical egalitarianism. But because both libertarians and modern liberals are oblivious to social reality, both demand radical personal autonomy in expression. That is one reason libertarians are not to be confused, as they often are, with conservatives. They are quasi- or semiconservatives. Nor are they to be confused with classical liberals, who considered restraints on individual autonomy to be essential.

The nature of the liberal and libertarian errors is easily seen in discussions of pornography. The leader of the explosion of pornographic videos, described admiringly by a competitor as the Ted Turner of the business, offers the usual defenses of decadence: 'Adults have the right to see [pornography] if they want to. If it offends you, don't buy it.' Those statements neatly sum up both the errors and the (unintended) perniciousness of the alliance between libertarians and modern liberals with respect to popular culture.

Modern liberals employ the rhetoric of 'rights' incessantly, not only to delegitimate the idea of restraints on individuals by communities but to prevent discussion of the topic. Once something is announced, usually flatly or stridently, to be a right --whether pornography or abortion or what have you-- discussion becomes difficult to impossible. Rights inhere in the person, are claimed to be absolute, and cannot be deminished or taken away by reason; in fact, reason that suggests the non-existence of an asserted right is viewed as a moral evil by the claimant. If there is to be anything that can be called a community, rather than an agglomeration of hedonists, the case for previously unrecognized individual freedoms (as well as some that have been previously recognized) must be thought through and argued, and "rights" cannot win every time. Why there is a right for adults to enjoy pornography remains unexplained and unexplainable.

The second bit of advice --'If it offends you, don't buy it' -- is both lulling and destructive. Whether you buy it or not, you will be greatly affected by those who do. The aesthetic and moral environment in which you and your family live will be coarsened and degraded. Economists call the effects an activity has on others 'externalities'; why so many of them do not understand the externalities here is a mystery. They understand quite well that a person who decides not to run a smelter will nevertheless be seriously affected if someone else runs one nearby.

Free market economists are particularly vulnerable to the libertarian virus. They know that free economic exchanges usually benefit both parties to them. But they mistake that general rule for a universal rule. Benefits do not invariably result from free market exchanges. When it comes to pornography or addictive drugs, libertarians all too often confuse the idea that markets should be free with the idea that everything should be available on the market. The first of those ideas rests on the efficacy of the free market in satisfying wants. The second ignores the question of which wants it is moral to satisfy. That is a question of an entirely different nature. I have heard economists say that, as economists, they do no deal with questions of morality. Quite right. But nobody is just an economist. Economists are also fathers and mothers, husbands or wives, voters citizens, members of communities. In these latter roles, they cannot avoid questions of morality.

The externalities of depictions of violence and pornography are clear. To complaints about those products being on the market, libertarians respond with something like 'Just hit the remote control and change channels on your TV set.' But, like the person who chooses not to run a smelter while others do, you, your family, and your neighbors will be affected by the people who do not change the channel, who do rent the pornographic videos, who do read alt.sex.stories. As film critic Michael Medved put it: ' To say that if you don't like the popular culture, then turn it off, is like saying if you don't like the smog, stop breathing. . . .There are Amish kids in Pennsylvania who know about Madonna.' And their parents can do nothing about it.

Can there be any doubt that as pornography and depictions of violence become increasingly popular and increasingly accessible, attitudes about marriage, fidelity, divorce, obligations to children, the use of force, and permissible public behavior and language will change? Or that with the changes in attitudes will come changes in conduct, both public and private? We have seen those changes already and they are continuing. Advocates of liberal arts education assure us that those studies improve character. Can it be that only uplifting reading affects character and the most degrading reading has no effects whatever? 'Don't buy it' and 'change the channel,' however intended, are effectively advice to accept a degenerating culture and its consequences.

The obstacles to censorship of pornographic and viloence-filled materials are, of course, enormous. Radical individualism in such matters is now pervasive even among sedate, upper middle-class people. At a dinner I sat next to a retired Army general who was no a senior corporate executive. The subject of Robert Mapplethorpe's photographs came up. This most conventional of dinner companions said casually that people ought to be allowed to see whatever they wanted to see. It would seem to follow that others ought to be allowed to do whatever some want to see.... Any serious attempt to root out the worst in our popular culture may be doomed unless the judiciary comes to understand that the First Amendment was adopted for good reasons, and those reasons did not include the furtherance of radical personal autonomy.

To complaints about those products being on the market, libertarians respond with something like 'Just hit the remote control and change channels on your TV set.' But, like the person who chooses not to run a smelter while others do, you, your family, and your neighbors will be affected by the people who do not change the channel, who do rent the pornographic videos, who do read alt.sex.stories. As film critic Michael Medved put it: ' To say that if you don't like the popular culture, then turn it off, is like saying if you don't like the smog, stop breathing. . . .There are Amish kids in Pennsylvania who know about Madonna.' And their parents can do nothing about it

I see where he's coming from but I still disagree. There are only two ways to decide what 'rights' are; one is to allow the community to decide based on any number of subjective criteria and the other is to try to define them objectively. Letting the community decide is fine if you and your ideology are in the majority but its dangerous. I'm sure there are tens of thousands of militant homosexuals that believe your teaching your children to interpret the Bible literally has the "negative externality" of them getting bashed in back alleys. GOD forbid this view ever come to prominence or those of you who have already conceded that rights are based on the whim of the community (and thus have ceded the moral high ground) may find yourselves painted into a proverbial corner.

You might say this talk of objectivity is puffery, any system of rights will be subjective. But I say 'rights' are meaningless without at least a pretence of objectivity. If 'rights' are whatever the community subjectively determines them to be at any given time then 'rights' are merely 'permissions' which may be given or taken away at a whim. At least libertarians have tried to pin down what rights are, they say rights are X and then they are willing to defend that position. They've created a formula, call it the Non-Initiation of Force Principle or the Non-Aggression Axiom. You can plug a situation into one side of the formula and get a remarkably consistent answer out the other. Sometimes the formula isn't enough like in the abortion controversy which involves the meta-question of whether fetuses have rights in the first place. It's not perfect but its a very good foundation.

RE: explaining the right to pornography
The question is when a consenting adult takes naked pictures of herself and another consenting adult looks at those pictures who has been aggressed upon? Who's rights violated? No one's. And the only legitimate purpose of government is defending the rights of it's citizens. Its simply not the government's function to prevent consensual behavior.

And we don't just say "Just hit the remote control and change channels on your TV set." The fact is you can call the station and complain, boycott advertisers, throw your TV away or any of a nearly infinite list of actions EXCEPT use force to stop the broadcast you find offensive(and government IS force). Its persuasion vs. coercion; one is Kosher, the other not.

The funny thing is that by resorting to coercion you are tacitly admitting the poverty of your position or at least your impotence to persuade others to the rightness of your cause. Once again, inside the framework of consent why should people be forced to behave in ways which they cannot be freely persuaded?

You would probably be surprised if you read his book. Though you may not agree with his "moralism", Bork would have reduced judicial activism. He would have severely limited federal powers and strengthened state and local authority in all areas. I guess you are glad we have Souter and O'Connor instead?

Bork's defeat was not due to his morality, but the fact that he would have worked to dismantle the entire imperial court system. He would have forced Congress to address issues they consistently avoid. His defeat was staggering blow — not just to conservatism, but to the very concept of separation of powers.

May your chains rest lightly upon you.

One problem with both liberals and libertarians is their notion that if something is allowed, it should be allowed almost everywhere and the right to universal access codified into law.

For thousands of years, mankind has done well setting aside certain areas for vice. In colonial Connecticut, iron workers consisted of extended families, families who had a reputation for vice. The state needed them but gave them their own town, outside of New Haven. Red light districts have always worked well. Laws were not usually passed allowing what went on within the districts, police simply ignored the laws on the books. In the case of the Combat Zone in Boston, it was the safest place to be in the city. Making people expend a little effort to indulge is not a bad thing. Besides, men like to crawl thru sewers to get sleaze.

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Robert H. Bork Critiques Libertarianism