Posted on 02/01/2002 12:30:35 PM PST by Exnihilo
Our more and more intrusive, restrictive, paralyzing, and costly government makes the sweeping libertarian ideology quite appealing. Thus, what was once regarded as a crank nostrum is becoming a fad. But libertarianism has also attracted some good minds and bears serious examination. So does the well-financed libertarian movement.
Both libertarians and conservatives believe that only a free market can produce widespread prosperity: neither believe in vast coercive redistributive schemes which are self-defeating— the intended beneficiaries hardly benefit— and (libertarians believe) immoral. Both believe that people are entitled to whatever they can earn in a free market: that individuals should have the right, singly or incorporate groups to own, produce, buy, and sell whatever they wish, at whatever prices they can get and to hire whomever they wish, at whatever wages are acceptable, with a minimum (none for libertarians) of government regulation or monopoly. Both groups believe that economic freedom is essential not just to prosperity and efficience but also to individual freedom. "Liberals" make the government the star player. Conservatives see the government as umpire, or rule-maker, -interpreter, and -enforcer. Libertarians feel that the game goes better without an umpire.
Libertarians oppose all taxes and all public services (not always the services, but always their public, legal, and tax-paid character). Libertarians favor activities only when volunteered or privately coerced. 1 Libertarians oppose public courts, laws, police, armies, roads, parks, education, health. They want no government whatsoever. Conservatives oppose many public services altogether and would have others performed by private industry. But unlike libertarians, conservatives do not believe that all laws, all taxes, or the state are immoral per se, or unnecessary. Liberty requires a social order articulated by laws. Government is needed to secure the rights of the citizens.
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cess with compensation ("eminent domain"), e.g., to build a road. Libertarians would eliminate the licensing of planes, or pilots, or surgeons, of any profession, activity (e.g., marriage, or hunting), or installation: and anybody would be free to buy or sell any drugs.
Conservatives, too, want to replace most licensing by certification. Just as there are CPAs, there could be certified physicians, plumbers, teachers, or barbers. Certification could be private or public, but would not grant a monopoly, as licensing does. There is no settled conservative doctrine on this, or on drug prescriptions, heroin addiction, or subsidies for mass transit. (A major part of conservative doctrine is not to settle things by sweeping principles but rather to look at one thing at a time and consider experience with alterative solution. Libertarians, in contrast, have principles for everything.) Many conservatives are willing to modify public education through Milton Friedman's voucher system, which would return the choice to educational institutions to parents. But some education— however achieved— would remain compulsory. Nothing would be, in a libertarian system.
If not abolished altogether in a libertarian society, armies or police would become private groups without legal authority, financed by voluntary contribution. Communal health, welfare, and educational activities also would be financed by voluntary contributions. A number of ingenious (but doubtful) private devices would take the place of laws, of public authority, and of public enforcement. Legal tender would be abolished. People would use gold as money— unless they decided on something else: no contract monetary authority would control the quantity of money and credit creation.
Conservatives are, well more conservative. Convinced that there is by far too much government activity (taxing, subsidizing, licencing, and regulating), they would greatly reduce it. But they would consider that specific merits of cash activity and decide case by case. About half the present government activities, employees, and expenditures could be done away with, with no significant loss to society. But it is the other half about which conservatives disagree with libertarians.
Conservatives believe in public (as well as private) roads; they believe in public defense, police, law, central banking, legal tender, and in taxes to pay for these things. Fire departments and other services might well be privatized to advantage— on the merits, however, and not as a principle. Government would remain, its power curtailed in some respect. Conservatives believe in limited government. But in some respects state power might be extended. Most conservatives would strengthen the ability of the government to apprehend and punish criminals, to impose the death penalty, and to control pornography.
Since libertarians have turned away from their anarchist ancestors toward a free market, their views on economics overlap with conservative views. The libertarian's new name also is great public relations; "anarchism" does have a bad image. Old-style anarchists were opposed to private property and to capitalism. With the exception of Max Stirner, they believed in some woozy and incoherent form of decentralized communal socialism. In contrast, new-style anarchists— libertarians— take their cue from Ayn Rand; or (via Murray Rothbard) from Ludwig von Mises; or finally, via some of his Chicago disciples, from Friedrich von Hayek. Oddly enough, none of these would agree with the libertarian (anarchist) development of his doctrine. 2
Thus, von Mises wrote "Government as such is not only not an evil but the most necessary and beneficial institution, as without it no lasting cooperation and no civilization could be developed or preserved." Hardly a libertarian doctrine. Friedrich von Hayek writes: "Freedom is an artifact of civilization made possible by the gradual evolution of discipline [which] protects [man] by impersonal abstract rules against arbitrary violence. . . . Since we owe the order of our society to the tradition of rules which we only imperfectly understand, all progress must be based on tradition." This anti-utopian doctrine, too, is inconsistent with libertarianism. Libertarians are antinomians, i.e., opposed to law and traditional institutions. They oppose government in principle. They want to invent a social organization based not on history but on their rationalist principles.
Finally, Ayn Rand, who admittedly inspired many libertarians, has vehemently dissociated herself from their development of her views. She regards her would-be followers as silly and intellectually inadequate. She may have a point. So may the libertarians who attribute the repudiation to her personality.
There is something refreshing about the libertarians' unabashed defense of the free market and their attack on government interference everywhere. Some conservatives feel that libertarianism deserves support as a perhaps exaggerated, version of their own belief in the free market— just as some liberals kept a soft spot for Communism as an exaggerated version of their own beliefs. They were wrong. So are conservatives who keep a soft spot for libertarianism. There are unbridgeable chasms on moral, political, and social issues: despite the shared belief in free markets— despite the shared opposition to big government, to excessive taxation and interference, to the restriction of our freedom in favor of a phony equality (actually of bureaucracy)— libertarian and conservatives beliefs are mutually exclusive on essential matters. Libertarianism is opposed to all conservative tradition, to tradition itself. It is inconsistent with the anti-utopian conservative view of life and society.
Conservatives believe that (limited) constitutional government is essential "to secure these rights"— to life, liberty, and the pursuit of happiness. Libertarians repudiate this insight of the Founding Fathers. They oppose all government, and they repudiate the need for social cultivation of the social bond, for public authority, and of legally enforced rules. They are opposed to the Constitution and to the American heritage. Indeed, libertarians repudiate essential elements of civilization as it has historically developed everywhere.
To paraphrase Lord Keynes, they "repudiate all versions of the doctrine of original sin, of there being insane and irrational springs of wickedness in most men. [They are] not aware that civilization [is] a thin and precarious crust erected by the personality and the will of a very few, and only maintained by rules and conventions skillfully put across and guilefully preserved. [They have] no respect for traditional wisdom or the restraints of custom. [They] lack reverence . . ."They are a belated offspring of the eighteenth century Enlightenment, of rationalism in its most virulent form. They believe that we can do away with the perennial tension between the individual and the group by denying the legitimacy of any social authority.
Libertarians rely on the rationality of individuals, thought of as rational economic calculators 3 — actually on the rationality of the living— to supply all the bonds and norms that are presently generated and enforced by the traditional social institutions. Emotions, values, philosophies, religions, national feelings, and symbols are not denied by libertarians: but they are rigidly confined to a private sphere, of which society need take no account, except by allowing liberty. (Although not by protecting it: in a libertarian society individuals have to find their own way of protecting their liberty from others.) Society is denied the ability to impose or even to publicly cultivate social norms and bonds. Only individuals and private groupings of individuals can do so. There could he no public regulation or enforcement of parental obligations, or indeed of any obligations— from serving in the army to not smoking in the subway.
I doubt that I would like a libertarian society, but I needn't worry because it is wholly utopian (the word means "nowhere"). However, utopian, thought can be dangerous. The desired Utopia cannot he achieved: but the destruction of an existing society may be. And it is quite likely to be succeeded by a worse one.
Societies of insects, animals, or men, survive and are held together by the solidarity produced through the mutual identification of members. Among insects or animal groups, mutual identification is secured by scent or other natural characteristics. It is thus that members of a species, or subspecies, or group— a swarm of bees, a termite society, or a herd of elephants— can have a shared organization, a society, and can act together to survive and to ward off outsiders. They have a social bond.
In human societies the social bond is psychic. A common culture, including language, shared institutions and traditions, animating, all of these shared values, takes the place of physical characteristics, or supplement them, in making possible human societies and subsocieties. Culture, added to nature, makes it possible for members of any society to recognize one another, to identify with one another and to develop a minimal human solidarity which restrains them from eating one another and generally from using one another solely as means. We recognize that others, like us, are ends in themselves.
Solidarity starts within families and extends to ethnic groups, nationalities, and ultimately societies. All social life rests on it: we are human qua social, and social because socialized by social institutions, which impress on us shared values which we internalize. (Historically, religion has played a prominent role in this process.) Without these shared values and institutions, which are cultural and not instinctual, no society has survived. Nor can individuals, however much they may disagree with some values or laws.
Institutions form a social order, ultimately articulated and defended in essential respects by the state, through the monopoly of legitimate coercive power exercised by its government. Any particular coercion (law) of the state may well be contested. But libertarians object not just to specific laws, but to legislation, to the authority of the state, and to its coercive power per se. Libertarians dissent from history and from the political institutions it has created in all known civilization. For, although political institutions vary no society has been able to do without them, as the libertarians propose.
How do libertarians deal with the Hobbesian bellum omnia contra omnes [war of all against all]? In one of two ways: 1) by denying that, in the absence of coercive laws, homo homini lupus [man becomes wolf]. This was the view of most anarchists in the past. They thought that the state creates the evils it is presumed to control. However, most libertarians now admit that people are not necessarily "born good" as J. J. Rousseau thought. Hence, 2) they admit the need for the enforcement of some rules; they contend that these rules could be enforced privately. Coercion would be imposed by private organization that would form spontaneously. They would gain their power from the voluntary, rational, collective actions of members, who would be free to leave or join.
Your life would be secured by a protective organization you may join. It would protect you and "punish" those who would interfere with you. They, in turn, would join protective associations which would defend them against yours. Competing protective organizations would agree on arbitration of conflicts, or fight in out. The monopoly of legitimate force the government now has would cease to exist. So would the authority of the law. The coercive powers— but not the legal authority— now exercised by governments would be held by competitive private organizations.
The advantage would be small, if the private organizations would actually do most of the essential things governments now do. Could it work? As well as the Mafia, which these private organizations uncannily resemble. There is no reason to believe that they would be more benevolent, or that conflicts among them would be settled without violence anymore than conflicts among Mafia "families" are. In fact anarchy is actually impossible. The monopoly of legitimate force held by the state can be replaced only by polyarchy— which cannot but be worse.
The situation conjured up with much ingenuity by David Friedman and other writers is the situation we actually have now among nations. 4 Peace is maintained by a precarious balance of power, by mutual deterrence, by negotiation and occasional arbitration. But it is a precarious peace because there is nothing above the power to adjudicate their conflicts and to deter violence, as the state does domestically. Thus, to abolish the coercive domestic authority which is the essence of the state it is force each individual to face domestically, the situation each power now confronts in the international area. Sovereignty, according the Bodin's definition, is potesta legibus absoluta: power not regulated by law. (The sovereign is the supreme lawgiver: he would not be supreme if he had to account to any earthly tribunal.) The individual would be fully sovereign in the libertarian non-society— and peace would be as precarious among individuals as it is now is among the powers.
The advantage of the present order is immense (despite international anarchy) precisely because anarchy and violence are confined to the relations among states. Owing to the authority and the coercive power of the government, individual life, liberty, and the pursuit of happiness can be secured— which is why "governments are instituted among men."
Contrary to what James Madison thought, government would be needed even "if men were angels." For the need for coercive authority arises not only from the wickedness of all, or of some, and from the infinite wish for power (palpable as these are): even among good men, even among angel, conflicts may arise that can be decided only by violence— unless there is a superior authority that can decide, and enforce its decision. Thus, although Ralph Nader thinks all good men are with him, some good men may feel that, in a given situation, nuclear power is better than no electricity. Other "angels" may disagree. Unless there is an authority (whether vested in a majority or in a court), force will have to decide the issue. Belief in a government authority, albeit a limited one, distinguishes conservatives, who continue to support the American Constitution and the principles underlying it, from libertarians, who reject it. Consider now a few particulars.
Externalities. Some things, are desired by most people. But the desired things cannot be so limited that only those benefit who are willing to pay. The benefits of national defense, of the education of children (if their parents cannot pay, or if they are orphans), of public parks, streets, traffic lights, police, etc. are indiscriminate and diffuse. Nobody can be excluded for not paying, and voluntary contributions will not suffice. If such things are to be provided at all they have to be paid for by taxes, which libertarians oppose.
Other externalities are negative. An activity that is profitable to some persons may generate costs to others who do not profit, and who have not volunteered, for, say, pollution, or infection, or for having truck traffic nearby. If it is unnecessary, one may prohibit such activity. If it is advantageous, one should tax the activity so that those engaged in it profit only after paying all the costs, including those born in the first place by other persons (who may be reimbursed with revenue). Without the prohibitive power, or the tax power, or the power of the courts to enforce the payment of damages, all this would be impossible. Upstream people must be compelled to refrain from, or to pay for, downstream pollution. It is hard to see how the private downstream associations would be able to prevail over the private upstream association. Nor would it be possible to compel an unwilling individual to defray his share of the costs of a dam that benefits him as well as others.
Punishment. Libertarians believe variously that punishment for crime 1) is unneeded altogether, or 2) could be administered by private associations, or 3) could be replaced by restitution. But all libertarians believe that crime is a matter between victim and victimizer, a matter of retaliation or compensation, not an act that organized society must punish according to law, regardless of individual victims.
Those who believe in restitution alone neglect the obvious fact that, if he had to pay no more than restitution to the bereaved, a rich man would have a license to murder, and that anyone could murder or abuse those who had no chance to join protective association— e.g., young orphans or those who have no one to whom restitution would be owned. Further, a burglar could go about his business, and pay full restitution— when caught. Since burglars are rarely caught, burglary would become even more profitable— and frequent— than it is now. What restitution does a spy owe?
If restitution involves more than payment of the actual market value of what has been lost, it becomes punishment (which at least some libertarians want to abolish). Since most criminals could not pay, we would be back to a system of forced labor, which Murray Rothbard contemplates in Assessing the Criminal: Restitution, Retribution, and the Legal Process (Barnett and Hagel, eds., Ballinger, 1977, p. 261).
Ingenious libertarians have tried to meet these problems. Where they have been successful, the solution remarkably resembles the institutions it was to replace. In other cases, I cannot see any solution. Consider abortion. The question is: Should the fetus have rights enforceable by society, against the rights of and wishes of the mother, when the two are in conflict? One can deny the fetus the status of a human being in spe. But there is nothing that commits libertarians to that position. Some, indeed, oppose abortion. But they could not outlaw it in a libertarian society: nothing could be outlawed. Nor could the fetus join a private security association to protect itself, nor ask for restitution or punishment. The parents, who are responsible for its extinction, certainly won't. Who but society could protect the fetus, or babies, incompetents, and orphans? Libertarianism ignores any social good unless individual will pay for it or are willing and able to defend it.
Lest I be accused of making up these paradoxes, let me quote Murray Rothbard. About murder, Rothbard writes: "The victim, or his heirs or assigns, could allow the criminal to buy his way out [Rothbard's italics] of part or all of his punishment." A rich criminal thus would be licensed to commit whatever murders he is willing to pay for, if the victim's heirs are willing to take the criminal's money, rather than (say) his life. Since libertarian principles require payment according to damage (not according to the criminal's means) wealth would license any crime so long as either only restitution is required, or the victim's heirs are willing to accept money in lieu of punishment. If no private claim for punishment or restitution is made— well, the criminal is lucky. People without heirs are bargains for murderers. If you want to get rid of your father whose only heir you are, you may hire a killer, or do it yourself. You are the only one who can claim compensation for the murder of your uninsured parent. You won't. Congratulations! You are an heir.
Rothbard contemplates no punishment, except what victims, their heirs, or their insurance companies want. He writes, "Suppose that A has severely beaten B, B now has a right to beat up A as severely, or to hire someone to do the beating for him..." It seems logical— though Rothbard is too discreet to mention it— that if A has ruptured B's spleen, B can have A's spleen ruptured.
To the objection that theft cannot be punished by theft, defamation by defamation, Rothbard replies: "...Theft and forgery constitute robbery [!] and the robber can be made to provide restitution and proportional damages... defamation is not a crime." Rothbard does not explain who determines whether defamation is, or is not, sufficiently victimizing to authorize retaliation. The non-existent legislation?
The idea that a crime is committed only when there is an individual victim rests on moral obtuseness and is incorrect even with regard to minor violations. Suppose one of my students cheats. There are no individual victims. (I don't grade on a curve.) Suppose he bribes me. No individual victims. Yet, I think punishment is needed, if grading is not to become so unreliable as to damage society.
Rothbard does not tell how to punish rape, if it occurs by threats without actual assault. (With assault the rapist would in turn be punitively assaulted. Would he be raped?) However, he refers approvingly to Thomas Jefferson's "Bill for Proportioning Crimes and Punishment," which he does not actually quote. I will.
Whosoever shall be guilty of rape, polygamy, sodomy with man or woman, shall be punished, if a man, by castration, if a woman by cutting through the cartilage of her nose a hole of one-half inch in diameter at the least. [And] whosoever shall maim another, or shall disfigure him...shall be maimed, or disfigured in the like sort; or if that cannot be, for want of some part, then as nearly as may be, in some other part of at least equal value...
Rothbard may not entirely agree with Jefferson's selection of crimes. But the punishments are in the retaliatory spirit with which Rothbard wishes to replace laws. (I don't really believe that Rothbard is as bloody-minded as his views would indicate. But if he is not, he is unbelievably frivolous, or what amounts to the same thing, infatuate with ideas the actual consequences of which he prefers to ignore.
Randy Barnett writes, "without a real victim there can be no crime, [and] no compensation without a harm having occurred." 5 and advocates replacing punishment with restitution, which he regards as a new (!) paradigm (!). He shares with all libertarians the idea that it is the individual victim alone (or his heirs or assigns) who has any claim against the criminal.
This notion is absurd. When a person fails to observe rules needed to secure everybody's life, liberty, or convenience (e.g., traffic rules) while others observe the rules as they wait in line, his jumping ahead may cause an accident with an individual victim to whom, indeed, he owes restitution by present law. But even if there is no individual victim, failure to observe the rules harms all those who did observe them and discourages them from doing so in the future. Unless punishment deprives the offender of the profit yielded by his violation, it remains profitable and places those who observe the rules at a disadvantage. They too could have gained by breaking the rules— they refrained because of fear of punishment. They lose the advantage they would have gained, while the violator gained at their expense. Of course, within a short span no rules would be left.
We all renounce rape, burglary, murder, and fraud because we are collectively better off that way. For this reason we try to make it costly for individuals to commit crimes. The criminal takes unfair advantage of our willingness to abstain from doing what he does. His crime does not merely harm the individual victim (if any) but all law-abiding people. Kidnapping or holding hostages on a plane harms specific victims. But even if they all were willing to forgive, or to be paid off, the kidnapper must be punished. His act endangers others besides the actual victims; it makes flying, and society, less safe. However necessary restitution to victims may be, the main issue is: shall we all submit to law— and punish those who don't— or shall each of us provide for his own security as best he can? On this issue conservatives are for, libertarians against, law.
Humor, for some reason, appears lost on you right there.
And George Bush is the one arguing for "free" drugs, so what in the hell does that tell you? I don't think anyone who wants to use drugs of any sort gives a sh&t what Stupid Government "thinks" about it. I sure don't; these are people who could only get government jobs, after all - I'm not impressed.
True indeed! The "real world" sheeple mostly favor either some form of socialism/communism or totalitarian tyranny. They haven't the faintest interest or understanding of what libertarianism really is. The author of this article is a perfect example. Sad indeed.
These are just a few of van den Haag's published writing. He is a very learned philosopher and legal scholar, in several languages.
It would be nice to see a reasoned explanation of Libertarian Philosophy/Theory rather than kneejerk name calling. Last time I looked (extremely not recent) they seemed to be advocating a society ala Bob Heinlein's "Friday". Has it changed?
(not that it's really any better than your pro-communist post)
I have no idea what this really means, other than it appears to be a silly insult.
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