View source for Illiberal Libertarians: Why Libertarianism Is Not a Liberal View
From Critiques Of Libertarianism
Jump to:
navigation
,
search
<!-- you can have any number of categories here --> [[Category:Samuel Freeman]] [[Category:Liberal Criticisms Of Libertarianism]] [[Category:Institutions]] [[Category:Descriptions Of Libertarianism]] [[Category:Libertarianism Is Not Liberalism]] <!-- 1 URL must be followed by >= 0 Other URL and Old URL and 1 End URL.--> {{URL | url = https://sites.sas.upenn.edu/sfreeman/files/illiberal_libertarians_ppa_2001.pdf}} <!-- {{Other URL | url = }} --> <!-- {{Old URL | url = }} --> {{End URL}} {{DES | des = An important academic paper that shows that libertarianism is incompatible with six fundamental liberal institutions. "[...] the primary institutions endorsed by the liberal political tradition are incompatible with libertarianism.[...] what we have in libertarianism is no longer liberalism, but its undoing. | show=}} <!-- insert wiki page text here --> <!-- DPL has problems with categories that have a single quote in them. Use these explicit workarounds. --> <!-- otherwise, we would use {{Links}} and {{Quotes}} --> {{List|title=Illiberal Libertarians: Why Libertarianism Is Not a Liberal View|links=true}} {{Quotations|title=Illiberal Libertarians: Why Libertarianism Is Not a Liberal View|quotes=true}} {{Text | Liberalism as a philosophical doctrine can be distinguished from liber- alism as a system of social and political institutions. Philosophical lib- eralism 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. Kant, Mill, Rawls, Berlin, Dworkin, Raz, Nagel, Ackerman, Barry, and many others endorse some version of these claims. Philosophical lib- eralism is but one way to argue for liberal institutions, including a I am gratefulto AmyGutmann,FrancesKamm,ArthurKuflick,Douglas McLean,Rex Martin, Joseph Raz, Andrews Reath, Henry Richardson, Russ Shafer-Landau,John Tomasi,JayWallace,and Susan Wolffor their helpful remarks,and to audiences at Co- lumbiaUniversity,NewYorkUniversity,SwarthmoreCollege,TempleUniversity,the Uni- versityof Californiaat Berkeley,the Universityof Californiaat Irvine,the Universityof Geneva, and the University of Kansas. I am also grateful to the Princeton Center for HumanValuesforits supportin 1992-93,when an earlydraftof this paperwas written and presented. An anonymous reviewerof this journal made many helpful suggestions regardingneeded clarifications.Finally,special thanks are due to John Rawls. ? 2002 by Princeton University Press. Philosophy& PublicAffairs30, no. 2 106 Philosophy & Public Affairs liberal constitution. Utilitarianism and other forms of welfarism histor- ically have provided an alternative foundation for liberal institutions.' Utilitarianism is philosophically non-liberal: since it affirms one ulti- mate good-overall utility or welfare-as the source of all value, it re- jects the plurality of intrinsic goods and subordinates to utility the goods of freedom and the virtue of justice. My focus is not philosophical liberalism but liberal institutions and the primary features of a liberal constitution. My aim is to situate on the map of political conceptions three contemporary views, each of which is called 'liberal': (1) classical liberalism, (2) what I will call 'high liberalism,' and (3) libertarianism. Major proponents of classical liber- alism include David Hume, Adam Smith and the classical economists (most of whom were utilitarians), and contemporary theorists such as David Gauthier, James Buchanan, and Friedrich Hayek. I use the term 'classical liberalism' in the Continental sense to refer to a liberalism that endorses the doctrine of laissez-faire and accepts the justice of (efficient) market distributions, but that allows for redistribution to preserve the institutions of market society. By 'high liberalism' I mean the set of institutions and ideas associated with philosophical liberal- ism, which I take to be the high liberal tradition.2 Its major philosophi- cal advocates in each century from the eighteenth to the present are Kant, Mill, and Rawls. Locke, the original liberal in many regards, ap- pears to accept philosophical liberalism as defined and thus also might be classified as a high liberal. But because of his account of property, 1. Mill says he is a utilitarian,but he understands that doctrine differentlythan clas- sical or contemporaryutilitarians.ForMill "individuality"and the exerciseand develop- ment of higher capacities, including a sense of justice, form the largerpart of individual well-being (see Utilitarianism,chap. 2, and On Liberty,in On Libertyand OtherEssays, edited by John Gray [Oxford:OxfordUniversity Press, 1991], chap. 3). See also Rawls's suggestion that Mill endorses a "liberalismof freedom"rather than a "liberalismof hap- piness"that is based in utilitarianismor welfarism.JohnRawls,Lecturesin MoralPhi- losophy (Cambridge:HarvardUniversityPress, 2000), pp. 330, 343, 366. 2. Some may object that "highliberalism"is tendentious, but the term no more implies moral superiority to classical liberalism than "High Renaissance"implies that Raphael'sart is superior to Botticelli's.To call it "welfareliberalism"wrongly suggests that classical liberals do not support public assistance for the poor (see below); it also puts the emphasis in the wrong place (especially given Rawls'sdenial that he is arguing forthewelfarestate).SeeJohnRawls,A TheoryofJustice(Cambridge:HarvardUniver- sity Press, revised edition 1999), pp. xiv-xvi, in Prefacefor Revised Edition. 107 Illiberal Libertarians: WhyLibertarianismIs Not a LiberalView he is often read as a classical liberal.3Locke'saccount of property has had a major influence on libertarianism too. By 'libertarianism'I pri- marily mean the doctrine argued for by Robert Nozick, and also in differingaccountsbyJanNarveson,AynRand,MurrayRothbard,John Hospers, EricMack,and others. These and other libertarianshave par- ticular differences, but there are certain basic principles and institu- tions that they all endorse (see sections II and IIIbelow). It is commonly held that libertarianismis a liberalview.4Also, many who affirm classical liberalism call themselves libertarians and vice versa. I argue that libertarianism'sresemblance to liberalism is superfi- cial; in the end, libertarians reject essential liberal institutions. Cor- rectly understood, libertarianismresembles a view that liberalism his- torically 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 impartiallyexercised for the common good. Toappreciatethese claims requiressome stage-setting. I begin with a discussion of primary liberal institutions. Section II turns to libertari- anism and discusses its interpretation of liberty as a kind of property. Then, in section III,I explain how libertarians'conception of liberty as a kind of propertyleads them to rejectbasic liberalinstitutions.5 3. Locke'swritings allow him to be interpretedeither way. Because Locke antedated classical price theory and the classical economists' emphasis on the efficiency of free markets,and did not foresee the conditions of a modern marketeconomy, the dispute whether Lockeis a classical or high liberalmay have no definite answer.Forinstructive accounts of Lockeon propertyand economic justice, see A.JohnSimmons, TheLockean Theoryof Rights(Princeton,N.J.:PrincetonUniversityPress,1992),chaps. 5 and 6;Jer- emy Waldron, The Right to Private Property (Oxford:Oxford University Press, 1988), chap. 6; and James Tully,A Discourse on Property (Cambridge:Cambridge University Press, 1980). 4. JeffreyPaul,for example, refersto Nozick'slibertarianismas the "recentsuccessor of Lockean liberalism."Reading Nozick, edited by J. Paul (Totowa,N.J.:Rowman and Littlefield,1981),p. 4. T. M. Scanlon says Nozick'sbook is "liberalin the nineteenth cen- tury sense of the term.""Nozickon Rights,Liberty,and Property,"in ReadingNozick, p. 107.Nozick himself claims he relies on a "classicalliberal notion of self-ownership"(An- archy,State,and Utopia[NewYork:BasicBooks,1974],p. 172[ASUin furthercitations]). 5. My purpose is not to establish "braggingrights"to the honorific term 'liberal',but ratherto point to a fundamentaldifferencein principles and institutions and to locate 108 Philosophy & Public Affairs INSTITUTIONAFLEATURESOF A LIBERALCONSTITUTION Equal Rights to Basic Liberties The most characteristic feature of a liberal society is its toleration of beliefs and diverse ways of life. Dissent, nonconformity, and an as- sured space of independence are accepted as normal in social life. Tolerationis institutionalized by the political recognition that certain liberties are more important than others. These basic liberties are de- signed to maintain, through the rule of law, the security and integrity of persons and their freedom to live as they choose, within prescribed limits. Basic liberties apply to all persons equally (or at least all citi- zens) without regardto social or economic status. The equality of basic liberties is the primary way that equality is recognized in liberal institutions. Liberalphilosophers offer different lists of basic liberties, but for all of them liberty of conscience is centrally important. Libertyof con- science includes freedom of religious beliefs, which was critical to lib- eralism'sorigins in the seventeenth century.6It has in modern times come to include freedom to form philosophical views and ethical con- victions about questions of ultimate value and life's meaning. Liberty of conscience is perhaps the most important liberal basic liberty since it secures toleration of religious, ethical, and philosophical beliefs and allows for pluralism of conceptions of the good. But other liberties have come to be regarded as of equal political significance. The list of liberties that Mill maintains as part of his Principle of Libertyare lib- erty of conscience; freedom of thought and discussion (including free- the principles that libertarians really endorse that lead to this difference. If anyone wants to continue calling libertarianisma "liberal"conception, this is fine so long as its differenceswith other liberalviews are understood as significant.But to categorizeliber- tarianismas a form of liberalismobscureswhat is reallydistinctiveabout both views. 6. After nearly two centuries of religious strife and civil war, enlightened opinion graduallybegan to accept that a religiousconfession was no longer capable of providing a basis for political unity and allegiance. It was seen that inevitably people will have conflicting religious views, and that for governments to try to enforce one faith is a recipe for perpetual strife. On the origin of liberalism in the wars of religion, see John Rawls'sintroduction to his Political Liberalism (New York:Columbia UniversityPress, 1993, paperback ed. 1996), pp. xxiv-vi; see also John Gray, Two Faces of Liberalism (Ox- ford: Blackwells, 2000), chap. 1. 109 Illiberal Libertarians: WhyLibertarianism Is Not a Liberal View dom of speech, press, and opinion, and inquiry into all subjects); "free- dom of tastes and pursuits," or the freedom to pursue a "plan of life" to suit one's character; and freedom of association.7 Rawls's list of basic liberties is similar.8 In addition to liberty of conscience, freedom of thought, and freedom of association, Rawls includes equal political lib- erties (including the right to vote and hold office, freedom of assembly, and the right to organize and join political parties), the rights and lib- erties needed to maintain the freedom and physical and psychological integrity of the person (including freedom of occupation and of move- ment, and the right to hold personal property)9; and the rights and liberties needed to maintain the rule of law.10 In holding these rights basic, liberals mean that they are both funda- mental and inalienable. To say certain rights or liberties are fundamen- tal means they have absolute priority over other political values; they cannot be sacrificed or weighed off against non-basic rights or other political values in ordinary political procedures. The basic liberties of citizens, then, are to be infringed upon neither for the sake of satisfying the preferences of democratic majorities, nor to improve economic effi- ciency, nor to achieve perfectionist values of cultural excellence. Liberal doctrine standardly holds that limits on the exercise of basic liberties are to be imposed only to protect and maintain others' basic liberties and the rights and duties of justice needed to sustain them.11 7. See Mill, On Liberty, chap. 1, pp. 16-17, near the end of the chapter. 8. See Rawls,PoliticalLiberalism,lecture 8, p. 291,for Rawls'slist of basic liberties, which elaborates the initial definition of basic liberties given in A Theory of Justice (Cambridge: Harvard University Press, 1971,revised edition 1999), p. 61/53 rev. Henceforth page references to the first and second editions are indicated as follows: '79/66.' 9. See Rawls,PoliticalLiberalism,p. 335,where Rawlssays that denial of freedom of movement and occupation violate the liberty and integrityof the person. In A Theoryof Justice, p. 61/53, and Political Liberalism,p. 298, Rawls says that the right to hold per- sonal propertyis part of freedom of the person. o1. The rule of law involves several requirements, including similar cases treated similarly,no offense without a law, public promulgation of laws, no ex post facto laws, fair and open trials, rules of evidence insuring rational inquiry,and a number of other rights associated with the idea of due process. See Rawls, Theoryof Justice,sec. 38. 11.For example, a person'sfreedom of speech can be limited if it causes imminent violence or fear thereof (e.g., threats, conspiracies, or inciting to riot), or deceptions regardingproperty (prohibitionsagainst fraud or false advertising),or unjustifiablein- jury to personal integrity (restrictionsagainst private libel, or breach of privacy).These are examples of what Rawlsmeans by "libertycan be limited only for the sake of lib- erty."See Rawls, Theory of Justice,sec. 39, and Political Liberalism,chap. 8. no Philosophy & Public Affairs More important for our purposes, the idea of basic liberties also includes their inalienability: a person cannot contractually transfer basic liberties or give them up voluntarily. No liberal government would enforce a contract or agreement in which one or more persons tried to sell themselves into slavery or indentured servitude, or agreed to give up liberty of conscience and freedom of association by making themselves permanent members of some religious sect. Because peo- ple cannot voluntarily transfer basic liberties, such liberties are not like property rights in particular things.'2 People might involuntarily forfeit certain liberties upon committing a crime that violates others' rights, but involuntary forfeiture is not the same as voluntary alienation.'3 Different arguments have been made for inalienability.14 One argu- ment stemming from Kant is that the inalienability restriction is needed to maintain the status of persons as beings with dignity. For Kant, our humanity consists in our capacities for freedom and reason. Having these capacities, persons have dignity, a kind of value "beyond all price." Having dignity, persons are due respect whatever their status or situation. Equal basic rights secure (because they partly constitute) 12. Some legal scholars argue that exclusive employment contracts are on a par with slavery and indentured servitude, differing only in degree. But this misconceives the nature of exclusive employment contracts. They do not involve the alienation of free- dom of occupation and control over one's person. At any time a person may quit and take up another career (althoughusually not the same careerfor the period coveredby exclusive services contract). For example, a professional athlete can retire and take up anotherline of work,but cannot compete in the same sport for anotherteam duringthe term of his contract. 13. A prisoner obviously surrenderssome of his basic liberties-freedom of associa- tion, freedom to pursue his good, freedom of movement, and normallythe right to vote, but not liberty of conscience or all freedom of thought and expression. 14. See Mill, On Liberty, chap. V, pp. 113-15;Rousseau, Social Contract, book I, chap. 4, "OnSlavery,"in Rousseau, The Basic Political Writings,translatedby David A. Cress (Indianapolis: Hackett, 1987), pp. 144-47. In The Metaphysical Elements of Justice, trans- latedbyJohnLadd(NewYork:Libraryof LiberalArts,1965),p. 98 (AkVI:33o),Kantsays: "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 contractonly insofar as he is a person."In "On the Proverb:That May Be True in Theory but Is of No Practical Use" (AkVIII:293, quoted in PerpetualPeace and OtherEssays,translatedby TedHumphrey[Indianapolis: Hackett,1983],p. 75) where Kantsays that no person can lose his equality as a person except through transgression;equality cannot be alienated "througha 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." 111 Illiberal Libertarians: WhyLibertarianism Is Not a Liberal View equal respect for persons as beings with dignity. Since basic rights se- cure equal respect, they are without a moral exchange value; agents cannot bargain their rights and humanity away. To attempt to freely alienate one's capacity for freedom is morally void since it disrepects one's own humanity. By securing the status of each as an equal due respect, inalienability maintains the dignity of persons. Some criticize the Kantianargument for inalienability for its "pater- nalism," defined as a restriction of the self-regarding free choices and agreements of competent and consenting adults to protect interests they may not endorse. Criticscontend that respect for persons implies respect for their voluntary informed choices, even if their choices are not rational. If maintaining one's own dignity and capacities for free- dom are not important enough to a person, why should that person be restricted from voluntarily entering binding agreements that limit free- dom to further "individuality"or felt interests?15This objection raises the controversial issue, about which liberals differ, as to why people should enjoy basic rights and liberties to begin with: Is it because of persons' capacities for reason and freedom (as Kantians claim), or be- cause of their capacities for happiness or desire (as liberal utilitarians may say), or because all are created equals by God (as Locke and natu- ral law theorists contend), or because of another reason (e.g., every- one's having a capacity for self-realization or perfectibility)? The liberal argument for inalienability can avoid this source of con- tention. Forthe issue of inalienabilitycomes down to a question of the design of basic legal institutions, in particularthe institutions of prop- erty and the use of government power to enforce personal agree- ments.'6 Nothing about liberalism'sinalienability restriction prevents people from voluntarily assuming the roles of master and subordinate to nearly any degree they choose. If this is the kind of life a person wants to live in relationship with another who consents, so be it; it is protected by freedom of association. The inalienability restriction im- 15. See Joel Feinberg,Harm to Self (Oxford:OxfordUniversityPress, 1986), pp. 94-97. 16. The argument that follows in the text assumes that one does not have to be a Kantianto recognize the following:duties of mutual respect and mutual aid; that inflict- ing harm upon others against their will and for one's own personal benefit is wrong;that slavery is wrong since it involves treating others as things; and that failure to respect others as persons with rights is wrong. Utilitarianand naturallaw theories can accept all of these as legitimate reasons. 112 Philosophy & Public Affairs plies that a person has the right to exit at any time this essentially private relationship.17The problem comes with the contrary sugges- tion: that into this private relationship should be introduced the legal mechanism of contract and the institution of private property,with their provisions for coercive enforceability. Then the voluntary servi- tude arrangement is no longer merely a matter "between consenting adults";it becomes a matter of civic law and a publicly recognized right. One party to the arrangement enters the public and political realms to demand, as a right, that others recognize and respect a pri- vate agreement bestowing ownership in another person. Society is called upon to adopt publicly a parallel attitude and to treat a person, not as a being with rights due moral consideration and respect, but as property,an owned thing. Alienation of basic rights, if politically rec- ognized, imposes duties not just upon the transferor,but also upon society and its members to respect and uphold such transactions. We are called upon to ignore the moral fate and political status of others as equals, and to participate in their civic and moral debasement. Moral and legal duties of mutual respect, protection from unwanted harm, and mutual assistance of others in distress are suspended, and society's members are obligated to apply their collective force to com- pel another's "property"to comply with contractual obligations.18By embracing alienation agreements as matters of enforceable public right, we accept a mandate to coerce and harm certain people against their will, and to regard and respond to them as if they were things. Moreover,in recognizing and enforcing these contracts, government and its agents are treating people accordingly. 17. BrianBarryemphasizes that a right of exit is essential to freedom of association. See his Culture and Equality (Cambridge: Harvard University Press, 2001), pp. 148-62. 18. To illustrate this problem, suppose slave contracts are accepted as legally and morally binding. I agree to grant refuge to an abused runaway who is contractually bound to slaverydue to youthfulexuberance,indiscretion,or desperation.AmI under a legal and moral duty to turn her in? Wouldn'tI be guilty of more than one crime if I did not: not simply aiding and abetting, but also crimes of propertysuch as conversion and receiving stolen goods? How can I fulfill my legal and moral duties in this society with- out harmingthis person, and treatingher accordingto rules appropriatefor things?The example can be developed in other disturbingdirections. Suppose the slave'sowner is a pimp. Does this mean forcingthe slave to engage in involuntaryintercourseis not rape so long as her/his owner consents? Or,if it is still rape, do "johns"nonetheless have a right to rape with the owner'spermission?Whateverthe case, if slavery agreements are permissiblewe have to assume it would be wrong, morallyas well as legally,for third partiesto interfereto preventcoerced sex. 113 Illiberal Libertarians: WhyLibertarianism Is Not a Liberal View Liberalismholds that consenting adults do not have the rights or powers to impose such extraordinaryduties upon others as a result of their private agreements. Beneficiaries of servitude pacts and other bargains alienating basic rights cannot ask government to recognize and enforce them. It may be in an agent's interests at the time to alien- ate her basic rights; nonetheless, the private demand to publicly rec- ognize this agreement as a binding contractual relationship conflicts with others' moral duties and interests (as liberals perceive them). Moreover,it conflicts with the public interest in maintaining the status of persons as free and equal, and the moral quality of civic relations. Liberalsrefuse to use public laws to treat people as objects without rights, even if people want to be treated this way. There is no place within the liberal conceptual order for the political or legal recognition of people as property or as anything less than persons with basic rights.19 So it is because contract and property are matters of publicly en- forceable right imposing uniform duties upon everyone that liberals do not respect the outcome of just any given private agreement as a valid enforceable contract. This is related to the omission of rights of property and freedom of contract from the lists of liberal basic rights and liberties mentioned earlier.Some may see this omission as glaring. Locke, after all, is commonly said to have argued for a "naturalright of 19. The public recognition of all as civic equals and as free is crucial here. This means that the liberal case for inalienabilitydoes not depend simply on the idea that liberal government and its citizens are not to be made complicit in the enforcement of servitude contracts. Suppose the defender of servitude contracts were to say: "Okay,so do not exercisethe coercivepowersof the stateto enforceservitudecontracts.Allwe ask is that beneficiarieshave immunity from criminallaws when they seek self-enforcement (perhaps with the help of their henchmen). No one else need dirty their hands." The liberal position is that servitude contracts are absolutely void, not deserving any legal recognition. The fact that the beneficiary of an involuntary servitude contract seeks to coercively enforce the contract himself is reason enough for government to intervene. (Afterall, it is a violent assault on a person.) As explained below, liberals see the exercise of coercive power ultimately as a public power. Individuals are authorized in certain instances to use coercive power (most commonly in self-defense), but then it may not be exercisedexcessively,or to undermine the public good. Centralto the liberalpublic good is maintaining the civic status of persons as free and as equals. Basic rights are the primarymeans for securing this status. As citizens have a duty to respect one anothers' basic rights (even when some are willing to abandon them), governments have a duty to protect these rights and maintain conditions appropriatefor their exercise. For this rea- son a governmentcannot sit idly by while one person seeks self-enforcement of a servi- tude contract. 114 Philosophy & Public Affairs property."20To many his argument seems to place rights of property on a par with basic rights. But whatever Locke intended by his account of property in a state of nature, neither he nor any other major liberal philosopher argue that governments have no authority to regulate property and contractual agreements, and burden them when neces- sary for the public good.21 Here the formal right to own property needs to be distinguished from the right to particular properties, for instance, my right to my 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 argua- bly basic for liberals. (Or,if not basic in the defined sense, rights to property and to contract are necessary enabling rights since they are a precondition to the effective exercise of most basic liberties.) 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 (as with married women and children in common law). But the formal capacity of 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 particularproperty system. Liberalsof the classical and high traditions can agree that legal ca- pacities for ownership and contract are basic rights (or at least are essential to exercising basic rights). Having exclusive control over some personal property and a protected domicile are conditions of individual independence. But this does not mean that rights to partic- ular things are themselves basic (or fundamental) rights.22On any lib- eral conception, government can regulate and proscribe uses of prop- erty (e.g., my use of my homestead for commercial purposes), and even appropriatepropertyby eminent domain procedures if necessary for the public good (so long as fair compensation is made). This intro- 20. This is not a term Lockeused; indeed, he rarelyreferredto "naturalrights"at all. Cf. his reference to "that equal Right that every man hath, to his natural Freedom" (Second Treatise,paragraph54, in John Locke, TwoTreatisesof Government,edited by Peter Laslett [Cambridge: Cambridge University Press, 1960], p. 304). 21. See Locke's Second Treatise, par. 73, 120, 138,139, for clear indications that govern- ment has the authorityto regulateproperty,tax it, and burden it for the public good. 22. Of course, they could not be basic in the defined sense implying inalienability,if particularpropertyrights are to retain their status as freely transferable. 115 Illiberal Libertarians: WhyLibertarianismIs Not a LiberalView duces an element of historical contingency into property: Rights of property,as legally specified, must be revisable by law to meet chang- ing conditions for the sake of efficiency, public safety or convenience, or some other social value. Rights of property are not in these regards fundamental: They can be regulated and revised for reasons other than protecting and maintaining basic rights and liberties. One characteristic mark of libertarianism is the contrary claim that rights of property are both plenary and fundamental (as defined above): A person's rights to use and transfer particular possessions (e.g., an automobile or income) cannot be infringed or burdened for the sake of other social values. Instead one's use of property can only be restricted to protect others' (moral) rights. I shall call this concep- tion of property "absolute."23Absolute property is perhaps the most significant right in a libertarianview (as discussed in section II). Equalityof Opportunity A second feature of a liberal constitution is the absence of political restrictions on entry into social and political positions. Positions are to be held open to everyone regardless of their racial, ethnic, or gender group, religious or philosophical views, or social or economic position. Equal opportunity developed out of the rejection of the idea that peo- ple are assigned social positions by birth, and cannot legally move out of their class into another. As Kant said, "Everymember of the com- monwealth must be permitted to attain any degree of status ... to which his talent, his industry, and his luck may bring him; and his fellow subjects may not block his way by [appealing to] hereditary pre- rogatives."24The requirement of open positions is part of equality of 23. The term "absolute property" derives from J. S. Mill's Principles of Political Econ- omy, "Of Property," book III, chap. i, section 3. Mill distinguishes absolute from "quali- fied property." Absolute property does not imply no restrictions whatsoever on property. For Nozick, "The central core of the notion of a property right in X ... is the right to determine what shall be done with X," but one's options are constrained. "My property rights in my knife allow me to leave it where I will, but not in your chest" (Nozick, ASU, p. 171)."Constrained options" designed to protect others' rights are compatible with absolute property. 24. Kant, "On the Proverb: That May Be True in Theory But Is of No Practical Use," p. 74. 116 Philosophy & Public Affairs opportunity. This is another way that liberals incorporate equality, in addition to equality of basic rights. Liberalsinterpret equality of opportunity differently.At a minimum, it is formally construed as an absence of legal or conventionally im- posed restrictions that bar socially disfavored groups access to social positions. Discrimination in allocating positions that are based on race, gender, and other natural or social attributes unrelated to job performance would then be legally prohibitable. The underlying idea is that careers should be "open to talents" (as Adam Smith said) or to "merit"(as others say), that is, positions should be accessible to all who are willing to compete for them and who are able to satisfy per- formance demands. The "system of natural liberty"affirmedby classi- cal liberals incorporates this formal conception of equal opportunity.25 This reading fits well with classical liberals' emphasis on economic efficiency. Other liberals contend that merely eliminating restrictions on entry to positions does not take equal opportunity seriously enough. The sense in which positions are open to the poor is nominal if not illusory under the formal conception, since the poor have no real opportunity (farless an equal or fair one) to compete for favorable positions with- out educational benefits. Society then has a duty to support an educa- tion system to even out class barriersso those with similar abilities can compete on an equal footing. Others argue that fairness requires still more, namely, both adequate universal health care so that all may re- alize their capacities, and preventing excessive accumulations of prop- erty and wealth.26These fuller conceptions of equality of opportunity are characteristic of the high liberal tradition, and mark one major difference with classical liberalism. It is sometimes said that equal opportunity can never be achieved, and that the idea is illusory.27But within liberalism, equal opportunity 25. The phrase "system of naturalliberty"derives from Adam Smith'sThe Wealthof Nations(NewYork:RandomHouseModernLibrary1,937),bookIVchap.ix,p.651.David Gauthierapprovinglyquotes the relevantpassage in Moralsby Agreement (Oxford:Ox- fordUniversityPress,1986),p. 83. 26. See Rawls's account of "fair equality of opportunity" (Theory of Justice, pp. 73f./63f., section 14, also section 46; and Political Liberalism,pp. 184,284, 363f). On the relevanceof adequate health care to Rawls'sprinciple of fair equality of opportunity,see NormanDaniels,JustHealth Care(Cambridge:CambridgeUniversityPress,1987). 27. Nozick makes this argument in ASU, pp. 235-39. 117 Illiberal Libertarians: WhyLibertarianismIs Not a Liberal View has never been interpreted to imply equal likelihood of success, an impossible aim under any system. Nor is it seen as value with absolute priority.In liberal thought, equal opportunity presupposes the priority of certain basic rights and liberties. We could perhaps better equalize peoples' chances if the family were radically altered or abolished, but that would infringe upon freedom of association. Liberalequal oppor- tunity means that society should eliminate legal barriersand mitigate the effects of chance in allocating positions, consistent with freedom of association, freedom of occupation, and other basic liberties. More- over,manyliberalsargueforsome degreeofpreferentialtreatmentfor disadvantaged minority classes, at least temporarily, to alleviate the current effects of past injustices. Markets,Allocative Efficiency and the Social Minimum A third feature of liberalism is the significant role assigned to markets in economic relations. Liberalsemphasize markets for different rea- sons, and this marks yet another difference between the classical and high liberal traditions. For such high liberals as Mill and Rawls, mar- kets are primarily seen as a condition of freedom of occupation and association, and achieving fair equal opportunity. Marketsare also im- portant for liberals generally since they normally provide for the effec- tive allocation of productive resources, and so better promote the effi- cient production of goods than non-market schemes. Markets then have an important function in the allocation of productive resources. The allocative role of markets is a basic precept in all liberal views. But it does not commit liberalism to using markets as the exclusive mechanism for distribution of income and wealth. The idea that peo- ple have a vested right to whatever income and wealth they can ac- quire by market exchange is rejected, at least by members of the high liberal tradition. A basic tenet of high liberalism is that all citizens, as a matter of right and justice, are to have an adequate share of material means so that they are suitably independent, capable of governing and controlling their lives and taking advantage of their basic liberties and fair opportunities. Without sufficient income and wealth, one's liber- ties and opportunities are worth little. For the destitute particularly, basic rights of free expression and the political liberties are virtually useless. To ensure that everyone's liberties and opportunities are of ll8 Philosophy & Public Affairs significant value, the high liberal tradition envisions nonmarket trans- fers of income and wealth of some degree, to be arranged by political institutions.28 Classical liberals by contrast do not envision a nonmarket mecha- nism that ensures each person a right to income and wealth adequate to individual independence. This does not mean that classical liberals do not provide for a social minimum too; they normally do, but it is not recognized as a requirement of justice and what each person is entitled to. Instead, the social minimum is conceived as a matter of public charity so that people will not starve (Friedman), or it is de- picted as an expedient required by some other political value, such as (in Hayek) the need to prevent social strife.29 Characteristic of classical liberalism is the idea that market distributions realized under competi- tive conditions, or distributions that would be realized under perfect competition, are to provide the basic standard for just distributions. Since real markets are imperfect, government has a role in regulating markets and even redistributing income and wealth if needed to cor- rect for market imperfections. Because classical liberals put great em- phasis on market efficiency as providing the standard for just distribu- 28. ThismaybetrueofLockeeveninhisday.SeeLocke,FirstTreatise,paragraph42, in Tvo Treatisesof Government,p. 170,where he says God "hasgiven no one of his Childrensuch a Property,in his peculiar Portionof the things of this World,but that he has given his needy Brothera Right to the Surplusageof his Goods, so that it cannot justly be denied him, when his pressing Wantscall for it." ForKant,see Metaphysicsof Justice,AkVI:326in (Laddtrans.,p. 93):By "theGeneralWillof the people ... govern- ment is authorized to requirethe wealthy to provide the means of sustenance to those who are unable to provide the most necessary needs of nature for themselves." For a discussion of the Locke quotation and his views on justice and the duty of charity,see A. JohnSimmons, TheLockeanTheoryof Rights,pp. 327-36. 29. FriedrichHayek, The Constitution of Liberty,pp. 285-86, makes the Hobbesian argumentthat "poorrelief' is instrumentalto preventingwidespreadtheft and disorder. Hayekendorses society's"dutyof preventingdestitution and providinga minimum level of welfare,"but rejects the "welfarestate" since it aims at "egalitariandistribution"(p. 289). Hayek also endorses social insurance measures such as compulsory payment for health insurance and old age pensions (p. 298). See also Hayek, The Mirage of Social Justice,(Chicago:Universityof ChicagoPress,1976),p. 87, on society'sinterest or duty to provide "an assured minimum income, or a floor below which nobody need to de- scend." Milton Friedman seems to advocate a public charity position based in benefi- cence; he states a need to "assurea safety net for every person in the country,so that no one need suffer dire distress."See Milton Friedmanand Rose Friedman,Free to Choose (New York:Avon Books, 1979),p. nlo;see pp. 110-17on the negative income tax as the way to provide this "safetynet." 119 Illiberal Libertarians: WhyLibertarianismIs Not a LiberalView tion, they also assign greater weight to rights of private property and freedom of contract. By contrast, such high liberals as Mill, Rawls, and Dworkin maintain that property rights should be decided by asking which system of property laws best enables citizens to realize their freedom and inde- pendence by effectively exercising their basic rights and liberties and by taking advantage of equal opportunities. Here markets have an im- portant but by no means exclusive role in determining just distribu- tions. Moreoverthere is no a priori assumption that mandates private property in the means of production. Liberal socialism, allowing for public ownership combined with market allocations of productive re- sources, is theoretically possible, and if feasible may be called for un- der certain historical conditions if needed to enable everyone to effec- tively exercise equal basic liberties.30The question whether markets have a preponderate or subordinate role in defining and achieving dis- tributivejustice marks the major division within the liberal tradition. Public Goods Classical and high liberals alike envision a prominent role for govern- ment in the provision of (economic) public goods.31Markets break down with respect to the provision of certain goods (because of their "indivisibility"),and all liberals accept that one of government's pri- mary roles is to exercise its powers of regulation and taxation to pro- vide public goods (or at least to ensure their provision through private means.) The provision of public goods is one standard argument lib- erals give for political authority and the need for government. Even when everyone respects others' rights and obeys the laws, there is still a need for political authority to coordinate peoples' activities so that public goods are provided. This argument goes back to Hume, and is given prominence by Adam Smith.32 30. See Rawls, Theory of Justice, pp. 270-74/239-42, 280-82/247-49, on the compati- bility of the Difference Principle with both liberal socialism and a "property-owning democracy." 31. Commonly mentioned among public goods are national defense, public health and sanitation, police and fire protection, highways, street lighting, ports and canals, water and sewer works, education, and so on, none of which are adequately provided forby markets.Fora discussion of public goods, see Rawls,TheoryofJustice,sec. 42. 32. Smith,WealthofNations,bookIV,chap.ix,p.651;bookV,chap.I,pt.3,p.68iff. 120 Philosophy & Public Affairs 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 or English schools who advocated it. It did not mean rejection of government'sredistributivepowers and accep- tance of the "night-watchmanstate."33The role of government in pro- viding public goods and even in alleviating economic distress was af- firmed by Smith and other classical economists.34Instead, laissez-faire implied an absence of government intervention on the side of alloca- tion of productive factors, and non-interference with markets except to maintain their fluidity. Something quite different (we will see) is involved in libertarianviews. The Public Nature of Law and Political Authority The final primary feature of a liberal system is not expressed by any single institution but characterizes liberal political institutions gener- ally-the principle that political power is a public power, to impartially issue and enforce uniform public rules that apply to everyone and that promote the common good. Political power is sometimes charac- terized as a monopoly on coercive force held by those who claim (un- justifiably,libertarians say) the authority to rule.35But liberalism con- ceives of legitimate political power differently.Society is possible only if people observe common rules, and for rules to be effective, they must be public and generally accepted. It may be that coercive sanc- tions are needed to enforce these rules (then again, they may not 33. On this, see John Gray,Liberalism(MiltonKeynes:Open UniversityPress, 1986), p. 27; and Stephen Holmes, Passions and Constraints(Chicago:Universityof Chicago Press,1995),chap. i. Also FriedrichHayek, ThePoliticalOrderof a FreePeople (Chicago: University of Chicago Press, 1979), pp. 55 and 187, n. 13. 34. See note 32 for Smith on "publicworks."On Smith'sconcern for the poor, see Holmes, idem. It is noteworthythat Smith takes the EnglishPoor Lawsfor granted,and does not object to public charity (Wealthof Nations, p. 135ff.).He objects ratherto the "settlement"requirement (that to be eligible for poor relief, it must be publicly known that one is a residentfor at least fortydays), since it discouragesthe "freecirculationof labor,"and freedom of movement and freedom to choose one's place of residence ("an evident violation of natural liberty and justice," ibid., p. 141). 35. EvenforNozick,wheretheminimalstatelegitimatelyacquiresanaturalmonop- oly on political power, it has no right to claim political authority or the authority of monopoly rule (ASU,p. 108). 121 Illiberal Libertarians: WhyLibertarianism Is Not a Liberal View be)36; but a monopoly on coercion is not what is most distinctive about a political system. What is essential is that necessary public rules be issued and uniformly applied by a commonly recognized au- thority. Political power is seen by liberals as a public power. This means: (1) Political power is institutional and not personal; it is ulti- mately held, not by a specific individual, but by an artificial person, that is, a publicly recognized institution (the government, and finally by the "Body Politic" according to Locke, Kant, and the liberal social contract tradition). (2) Political power is continuous; the public institu- tion vested with political power appoints individuals to occupy offices of authority periodically, and survives their demise. Certain commonly accepted rules of succession are needed to specify the steps for trans- ferring power.37 (3) Political power is held in trust, as a fiduciary power; those who occupy political offices act in a representative capacity, for others' benefit. Since it is held in trust, political power is not to be exercised for the benefit of the person who occupies political office. So far as political power is contractual, then, it is not based in a mutually beneficial bargain between ruler and ruled. Here a distinction is to be drawn between a social contract versus a mutually beneficial contract of government between ruler and ruled. It is the former idea, not the latter, that plays such an important role in the history of liberal thought, providing an account of legitimate political power. The social contract is conceived as a (hypothetical) agreement among equals, by everyone with everyone else. Its purpose is to form political society (the Body Politic), then to establish a constitution and create on its basis a government that serves as agent for the People. This is very 36. See H.L.A.Hart, The Concept of Law (Oxford:Oxford University Press, 1961), chap. o1,who argues against the position that coercive sanctions are a precondition for law and a legal system. 37. Continuityof rule does not mean that the form of government or political consti- tution itself is necessarily permanent. Locke for example envisions the possibility that the Body Politicmight "setLimitsto the Duration"of a form of government;still he indicates that the Body Politic itself, as a legal body, is permanent (Second Treatise,par. 243). Here I take Locke to envision the permissibilityof periodic constitutional conven- tions, where the form of government is reconsidered by the People. Thomas Jefferson went furtherand argued for a need for periodic constitutional conventions, so that the Body Politic could reconsider and recommit itself to the Constitutionwith each succes- sive generation of its members. Thanks to an anonymous reviewer for this journal for drawingmy attention to Locke'sposition. 122 Philosophy & Public Affairs different from a private contract between (unequal) parties for mutual benefit, which is the economic model used for contracts of govern- ment. (4) 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. But since political power is public, it is to represent everyone, and therefore is to be im- partially exercised and only for the common good. (5) Since govern- ment is to rule in a fiduciary capacity and solely for the common good, those who hold political power are recognized as having authorityto rule, and their legal actions are conceived as possessing legitimacy. Its political legitimacy in turn supplies government with its basis for de- manding allegiance and obedience to its laws. This account accords with Locke'sdefinition of political power as "therightof makinglaws ... only forthe PublickGood"(Second Trea- tise, par. 3, see also par. 171).For Locke the relevant contrast was the doctrine of divine right as argued for by Robert Filmer in support of absolute monarchy. According to this doctrine, political power is pri- vately owned by particularpersons or families, and extends over a ter- ritoryand all people within it. Politicalpower is exercised accordingto its owner'swill, without impediments or regulation by any worldly au- thority.38The liberal idea of the rule of law evolved to reject this claim that anyone's conduct can be beyond legal restriction. The rule of law, representative assemblies (elected and non-elected), separation of powers, and the convention that government acts solely as representa- tive of the people, are all institutional expressions of the public nature of political power. Democracy, or a universal franchise with equal rights of political participation, is a natural extension of this idea; for if what affects all concerns all, and assuming that adults are normally best situated to understand and advance their own interests, then it is naturalto conclude that each person ought to have a share of political authority to better ensure that no one's basic rights are undermined or interests are neglected in political procedures. Characteristicof con- temporary liberalism then is a further feature of the public nature of political power, namely (6) the requirement of open democratic rule. 38. The doctrine of divine right contemplated that the Crownwas responsible to God in exercising private power. Still, the Crown was beholden to no one on earth. Politicalpower remained unlimited de facto and by positive law, if not by moral right. 123 Illiberal Libertarians: Why Libertarianism Is Not a Liberal View The combination of liberalism and democratic government is a nine- It is not found in Locke or Kant, or in the classical liberalism of Hume, Smith, or Constant; Bentham and the classical utilitarians only gradually came to accept it.39 I have discussed six institutional features of liberal political systems: the public recognition and legal enforcement of basic rights and liber- ties equally provided for all citizens; some account of equality of op- portunity with open careers and positions; a central role assigned to efficient markets in allocating productive resources; government's role in the provision of public goods; government's duty to provide a social minimum; and the public nature of political authority. Assuming that these institutions are characteristic of liberal society, liberalism has to be distinguished from a view with which it is often confused. LIBERTARIANISFMO'RSMATIVPERINCIPLES Libertarianism is commonly referred to as a liberal view. This is under- standable. After all, 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, so long as they do not violate others' rights. But a great deal depends on how rights are specified within this liberal formula. My argument is that libertarians define peoples' rights so as to take the view outside the boundaries of a lib- eral conception. For it is not as if libertarians simply accept all the usual basic rights liberals do, then go liberals one better by adding additional liberties, namely, freedom of contract and freedom to do with one's possessions as one pleases. Liberals already recognize that these rights, suitably construed, are important to exercise other basic liberties. But given the absolute terms in which libertarians define these additional liberties, they come to occupy a predominant position and in effect eliminate any need (in libertarians' minds) for basic rights and for liberal institutions.40 39. See Joshua Cohen, "Structure,Choice, and Legitimacy:Locke'sTheory of the State," Philosophy & Public Affairs 15, no. 4 (1986): 301-24, on Locke's argument against a universalfranchise and for a "propertyowner'sstate." 40. Here it should be noted that there is much disagreement among libertarianism's majorproponents. Nozickargues,contraryto anarchicallibertarianism,that a minimal state's monopoly on political power is legitimate and necessary to protect rights and teenth-century accomplishment. 124 Philosophy & Public Affairs What are libertarianism's basic formative principles? Libertarians often depict their view as based in a moral injunction against coercion, or aggression, or against forcing people to do what they do not choose to do. (Nozick, for example, emphasizes the "libertarian side constraint that prohibits aggression against another," and Rothbard says his an- archism "abolish[es] the regularized institution of aggressive coer- cion.")41But libertarians do not condemn all coercion or aggression, or hold that no one can be forced to act in ways she has not chosen to. Libertarians clearly endorse the coercive enforcement of personal and property rights and contractual agreements. The need for such en- forcement provides the basis for libertarian arguments for a minimal state. Also it is misleading to suggest that the coercion required to enforce the rules of a libertarian society will be less than in other sys- tems. Whether libertarianism requires less (or more) coercion depends upon its popular support and the degree to which members of a liber- tarian society see its principles as legitimate and accept the many re- strictions that they imply. Libertarians may reply that the enforcement of a person's rights is not coercive interference with others' lives. "Coercion" in their account is not just any use of force but the aggressive interference with an- other's rights. People are not coerced when prevented from actions (such as trespass or theft) they have no right to perform. This mor- alized definition of 'coercion' may accord with common usage in some cases, but to extend this manner of speaking to all cases has peculiar entitlements. There are also disagreements over the philosophical foundations of liber- tarianism (contrast Nozick's Kantian and Lockean foundations with Narveson's Hobb- ism). I pass over these disputes. My concern is with the basic normative principles and institutions held in common by these views that distinguish them from liberalism. I also recognize that political philosophers cannot always be neatly categorized as liberal or libertarian. Some avowedly classical liberals endorse certain aspects of libertarianism, such as the absence of a social minimum. Even some nonclassical liberals, such as Joel Feinberg, reject inalienability of basic liberties. Whether these mixed views are coherent and have not unreasonable justifications would require separate discussion. 41. Nozick, ASU, pp. 33-35; Murray Rothbard, "Society Without a State," in The Liber- tarian Reader, edited by Tibor Machan (Totowa, N.J.: Rowman and Littlefield, 1982), p. 54. Carried to its limit, the moralized definition of 'coer- consequences. cion' implies that any justified use of force to enforce peoples' rights is non-coercive. Legitimate incarceration would not then be coercive ac- 125 Illiberal Libertarians: WhyLibertarianismIs Not a Liberal View cording to the moralized definition, nor would the use of force to ar- rest a guilty suspect or to evict an interloper.42 The problem with the moralized definition of 'coercion' is that it is stipulated; as such, it does not advance the argument for libertari- anism. But even if we accept the libertarian'smoralized definition, nothing of real consequence follows from their declarations against coercion and aggression. Any political conception prohibits the un- justified use of force against others, and this is what the libertarian constraint against aggression or coercion really amounts to. It is a prohibition against infringement of peoples' moral rights and entitle- ments. Arguments regarding the content of these rights and entitle- ments, then, must carry the burden of justification in libertarian ar- gument, not claims about the prohibition of coercion and aggression. Nor is the fundamental libertarianprinciple an injunction that peo- ple should be subject only to duties and constraints they have chosen or consented to. The non-consensual constraints on conduct recog- nized by libertariansare quite extensive. Ourduties to respect the lives and the physical integrity of others' persons, and their freedom of ac- tion and extensive property claims, our obligations to keep our con- tracts, avoid fraud, and make reparations for harms we cause, are not based in free choice, consent, or any kind of agreement (actual or hy- pothetical). These are natural rights and duties, libertarians claim, that people possess independent of social interaction. Despite their em- phasis on consent, voluntariness, and contract, libertarians are averse to appeals to consent or social agreement to justify their preferredlist of moral rights and duties. Freedom of contract plays a central role in defining the particularrights and obligations that people have within a libertarian society, and accounts for the origin of Nozick's minimal state. But the idea of a social contract has no role in justifying freedom of individual contract itself or in defining its scope; the same is true of the justification of any of the other moral rights and duties at the basis of libertarians'view.43 42. See here G. A. Cohen'sdiscussion of libertarians'moralized concept of freedom in "Capitalism,Freedom,and the Proletariat,"Liberty,edited by DavidMiller(NewYork: OxfordUniversityPress,1991),chap. 8; also, "TheStructureof ProletarianUnfreedom,"in Cohen'sown History,Labor,and Freedom (Oxford:OxfordUniversityPress, 1988),p. 256. 43. This is also true of JanNarveson'suse of David Gauthier'sversion of contractari- anism to argue for libertarianism.Following Gauthier,Narveson appeals to a "Lockean 126 Philosophy & Public Affairs What of libertarian declarations that "people interfere with each other's liberty as little as possible" (Narveson, p. 32)?This declaration cannot mean that libertariansseek to minimize the number of inter- fering actions. It is easy to imagine a libertariansociety without popu- lar support, where the majorityof people do not accept (because they cannot afford to) its absolute property rules, are prone to forage for their subsistence, and meet with constant and regular interference be- cause of legal trespass or theft. The point of libertarian arguments for minimizing interference is to keep to a minimum, not interfering ac- tions, but the kinds of political duties we have, and in particularany enforceable obligations to transfermarket-acquiredholdings to benefit the disadvantaged. There is still a need for some deeper principle that justifies complete rights to the control and disposal of market distribu- tions regardless of the resulting restrictions this places on peoples' freedom of action or opportunities. Can it be found in some notion of liberty or freedom? Libertarians commonly announce their view with such claims as, "The only rele- vant consideration in political matters is individual liberty"(Narveson, p. 7); or "Libertariansagree that liberty should be prized above all other political values" (Machan,p. vii); or "Theidea of libertarianismis to maximize individual freedom" (Narveson, p. 175).Nozick, more cau- tiously, makes no such general claim. But he does contend that "lib- erty upsets patterns" of distribution (ASU, p. 160), and argues as if anyone with a proper regardfor liberty should see that patterned theo- ries of distributivejustice violate a commitment to freedom.44 These announcements account for much of libertarianism'spopu- larity,for few would deny the political importance of individual free- dom. But libertarianism does not endorse freedom to any greater degree than does liberalism.Indeed, libertarianismassigns farless im- portance than does liberalism to freedom as individual independence Proviso"to moralize the Hobbesian state-of-nature baseline from which agreement takes place by bestowing a right to liberty and exclusive ownership rights on all involved priorto the social contract (TheLibertarianIdea [Philadelphia:TempleUniversityPress, 1987],pp. 175-77). 44. See Nozick, ASU, pp. 160-64, which contains Nozick'sfamous Wilt Chamberlain example and the claim that income tax "is on a par with forced labor."See Jonathan Wolff,RobertNozick (Stanford:StanfordUniversityPress,1991),pp. 83-92, for a valuable discussion. 127 Illiberal Libertarians: WhyLibertarianismIs Not a LiberalView and autonomy, the degree to which people are self-sufficient and can control their options and important aspects of their lives. Libertarians have a different conception than liberals of the kinds of liberties that are important and of the kinds of constraints to be placed on peoples' conduct to protect others' liberties. It is a fundamental libertarianpre- cept that people ought to have nearly unrestricted liberty to accumu- late, control, and transferrights in things (property),whatever the con- sequences or constraints may be for other people. To refine Nozick's claim-"liberty upsets patterns"-it is not liberty per se or any basic liberty that liberals recognize that upsets patterns of distribution. Rather,what upsets patterns is the unrestricted liberty to accumulate and to transfer to whomever one pleases full property rights. But why should this set of liberties be important, let alone fundamental? To support a claim for its significance, we first need an argument for lib- ertarian property and transfer rights. Some more basic principle still must underlie the right to these absolute liberties. I have suggested that the concepts libertariansnormally appeal to- liberty, consent, noncoercion, nonaggression, noninterference-gain their force and content by reference to a deeper principle. What is this principle? Libertarianismis grounded in a certain conception of peo- ple's individual rights; and in particular their property rights, that is, the kinds of rights and powers that individuals may exercise in the possession, use, transfer,and disposal of things. The centralityof the concept of property is evident in Rothbard'sand Narveson'sviews. Both conflate all specific liberties into a general right to liberty. Then they argue that the right to liberty, along with all other rights, are in the end property rights, bolstered by an ultimate right, property in oneself. Narveson says: "Libertyis Property ... the libertarian thesis is really the thesis that a right to our persons as our property is the sole fundamental right there is."45And Rothbardwrites: In the profoundest sense there are no rights but property rights.... Each individual, as a natural fact, is the owner of himself, the ruler of his own person. Then, "human" rights of the person . . . are, in effect, each man's property right in his own being, and from this 45. Narveson, The LibertarianIdea, p. 66. "Theidea of libertarianismis to maximize individual freedom by accounting each person'sperson as that person's own property' (p. 175). 128 Philosophy & Public Affairs property right stems his right to the material goods that he has produced.46 Nozick again is more cautious, avoiding such broad generalizations. Still he relies on what he calls the "classical liberal notion of self- ownership"The problem with all nonlibertarianprinciples of distribu- tive justice, Nozick argues, is that they involve "(partial)propertyrights in other people" (ASU,p. 172; see also 281-83). As for democracy, it too violates the absolute ownership rights each person has in himself, for it is nothing but "ownershipof the people, by the people, for the peo- ple" (ASU, p. 290). Such claims and arguments as these confirm the suspicion that lib- ertarianismis not so much about liberty as property.Libertarianism's regulativeinstitutional principle is that individuals ought to have abso- lute rights to accumulate, use, control, and transferrights in things. To ground these controversialinstitutions, libertariansextend the concept of property,via the notion of self-ownership, to each person's own per- son and powers. The fundamental libertarian claim is then that each person is absolute owner of herself, body and powers.47Because we each have absolute property in our persons, it is supposed to follow that each has absolute powers over what she owns or acquires consis- tent with others' ownership rights. On this conception a person'sliber- ties are among the things owned by that person; in this sense, "liberty is property." G. A. Cohen says "Nozick'spolitical philosophy gains much of its polemical power from the attractive thought ... that each person is the morally rightful owner of himself."48While it may have polemical appeal in contemporaryAmerican society, the idea of self-ownership is 46. MurrayRothbard,Power and Market(KansasCity:Sheed Andrews and McMeel, 1977),p. 238. See also John Hospers' definition of libertarianismas "the doctrine that each person is the owner of his own life, and that no person is the owner of anyone else'slife.""WhatLibertarianismIs,"in TheLibertarianAlternative,ed. TiborMachan (n.p: Nelson-Hall, 1974). 47. Othershave made similarbut more detailed observationsabout the centralityof property and self-ownership to libertarianism.Most notably, see G. A. Cohen, "Self- Ownership,World-Ownership,and Equality,"and other papers in his Self-Ownership, Freedom,and Equality(Cambridge:CambridgeUniversityPress,1995);see also Jonathan Wolff,RobertNozick, pp. 7ff., and p. 29. 48. See the original version of Cohen's "Self-Ownership,World-Ownership,and Equality,"Justice and EqualityHere and Now, edited by FrankLucash (Ithaca:Cornell UniversityPress,1986). 129 Illiberal Libertarians: WhyLibertarianism Is Not a Liberal View more confusing than attractive.If all that libertarians meant by 'self- ownership' is that each person has certain exclusive rights with respect to her person and her powers, then the claim of self-ownership dis- solves into standard liberal accounts of basic rights and liberties: lib- erty of conscience, freedom of thought, freedom of movement and in- tegrity of the person, freedom to act on a permissible conception of the good, and so on. But libertariansmean more than this; otherwise, they could not extract their most controversial conclusions regarding individual control of resources and their distribution. Whatever more is meant by "self-ownership"and "propertyin oneself' is crucial at this fundamental stage of libertarianargument. Libertariansoften appear to take "property"to be an intuitively clear notion, involving the nearly unrestricted freedom to control and determine what is done with a thing.49But as a legal and moral cate- gory,propertyis more complicated than this. Propertypresupposes an elaborate system of institutional rules, which specify the kinds of rights, powers, duties, and liabilities persons have with respect to the use, control, transfer,and disposal of things. Systems of property differ depending on how these rules are defined. Actions permitted under one property system (such as full rights to sell or bequeath one's es- tate) might be prohibited under others.50There are conceptually an indefinite number of property systems (although only some of these may be feasible, and far fewer are just.) The concepts of ownership and property rights are definable by reference to this institutional background;these are formal and secondary notions, which are given content relative to one or another system of property rules. To say a person (legally) owns something is to say that this person has certain key rights of use and powers of control within a property system; the family of rights and powers constituting "ownership"often differ from 49. The idea seems to be that because persons have absolute ownership rights in themselves, they acquire absolute property in unowned resources they appropriate,in the products of their labor made from them, and in whatever is exchanged for these products.SeeRothbard,PowerandMarkets,p.1.Nozickagainis morenuanced:"People do not conceive of ownership as having a thing, but as possessing rights ... which are theoreticallyseparable"(ASU,p. 281).Still, he assumes that initial appropriationof un- owned things bestows plenary propertyrights. 50. For example, at early common law the "fee entailment" prohibited owners from alienating their estates; landed estates passed by law to the eldest survivingmale issue. Entailmentswere abolished with the predominance of the market system. 130 Philosophy & Public Affairs one conventionally established property system to another.51 By exten- sion, moral claims regarding the right to property or rights of owner- ship commit one to specific claims about the kinds of rights, powers, duties, and liabilities people ought to have with respect to things within a just property system.52 If property is seen in this way, it is difficult to understand the famil- iar but complicated concepts of ownership and property outside of institutional contexts. Libertarians of course deny the institutional conception of property. Fundamental to their arguments are ideas of noncooperative natural property and pre-social ownership. They as- sume the lucidity of these concepts, and take it as self-evident that property involves unrestricted rights to use and dispose of things. What makes libertarians' notions of self-ownership and property in oneself doubly difficult is that they extend to a person's own capacities a normative relationship normally applied to things. Although one per- son may, within the legal institution of slavery, legally own another, what does it mean to say a person, legally or morally, owns itself? This is not to deny the conceptual coherence of 'self-ownership'; perhaps several accounts can be given (just as there are several accounts of the reflexive notion of self-consciousness). Locke (for example) used "prop- erty in one's own person" to mean that no one is born politically sub- ject to another, but that each has upon reaching maturity rights of self- rule.53 But I suspect that once we understand what libertarians mean 51. U.S. law rarely utilizes the concept of ownership. The most common concept used is "propertyinterest,"of which there are differentkinds, each of which is distin- guished by various rights and duties. 52. Libertariansand other proponents of self-ownership commonly claim that pri- vate ownership of one's person and powers implies ownership of the product of one's labors and, hence, ownership of the product of one's property.But the problem is that a person's"product"or "contribution"cannot be established independent of an institu- tional context. Libertariansusually assume, without much argument,that absolute ple- narypropertyrightsfollowfromappropriationin a state of nature.Fora fullerstatement of the Rawlsianconception of property relied on here see my "Propertyas an Institu- tional Convention in Hume'sAccount of Justice,Archivfuer Geschichte der Philosophie 73, no.1 (1991):20-49; and "Morals by Appropriation," Pacific Philosophical Quarterly 71, no.4 (1990):279-309. 53. Locke seems to mean, by the archaic sense of "property"in oneself, that each person has certain rights in his own person and is not politically subordinate to anyone else. Lockedid not endorse the libertarianidea that persons stand to their person in the same relationship that they stand to property in things. His social contract doctrine 131 Illiberal Libertarians: WhyLibertarianismIs Not a LiberalView by 'self ownership,' the concept will lose whatever intuitive attraction it has for most people, for what it inevitably implies is something Locke and all subsequent liberals deny, namely that a person has the moral capacity to make of himself a fungible thing. WHY LIBERTARIANISIMs NOT A LIBERALVIEW The Full Alienability of Basic Rights I claimed that the most central liberal institution is the protection of the basic rights and liberties needed to secure individual freedom and independence. Libertarianswould have us believe that they accept all the basic rights that liberals do and simply add more liberties, namely, absolute freedom of contract and of property.Libertariansthen claim their view offers us even greaterliberty,as if it they were just improv- ing upon liberalism, drawing its natural conclusion. The problem is these added liberties, when combined with the libertarian account of self-ownership, undermine the idea of basic liberties. For what liber- tarian self-ownership ultimately means is that we stand toward our person, its capacities, and the rights of moral personality in the same normative relationship as we stand to our rights in things. All rights are conceived as property rights. Rights to liberties then become just one among several kinds of rights that persons own and have at their dis- posal. Basic liberties are of no greater moral or political significance than any other kind of property right. But given the crucial role of absolute freedom of contract-that all contractual agreements are to be publicly recognized and enforced-it follows that all liberties can be alienated, just like any economic good. Consequently, there is no place in a libertarian scheme for inalien- ability,the idea that certain rights are so essential to maintaining the dignity and independence of persons that they cannot be given up by consent. So Nozick says, "My nonpaternalistic position holds that someone may choose (or permit another) to do to himself anything, unless he has acquired an obligation to some third party not to do or relies on the law of nature that persons do not have the right to alienate or dispose of their person, since all have a duty to maintain themselves exclusively as God's property (see Second Treatise, sec. 6). On Locke's use of "property" see Simmons, The Lockean Theory of Rights, 226 ff.; and Tully, A Discourse on Property, p. 116. 132 Philosophy & Public Affairs allow it."54Readwithin the context of a libertarianacceptance of com- plete freedom of contract, permitting another to do "anything"to one- self implies the capacity to give another the right to invoke the coer- cive 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. Not surprisingly,then, Nozick later says that a free system allows a person to sell himself into slavery.55 Assuming the transaction is freely entered into, it is the role of the minimal state to enforce it against the unfortunate person who once consented to enslavement, but who now, quite understandably,has had a change of mind. It should follow that there is nothing morally objectionable about owning slaves and treating people as objects against their will56;moreover,it is not unjust for the State, or any third party, to compel people to abide by their slavery or other servitude contracts. EarlierI argued that it is a mistake to conceive of servitude agree- ments as simply private matters between consenting adults protected by freedom of association. If genuine freedom of association were in- volved, then either party could terminate the relationship freely. But here we have something very different: contractual transfers of rights in oneself, the result of which negates a person's freedom of associa- tion as well as other basic rights. Contracts by their nature are no longer simply private relationships that leave others' rights and duties unaffected; they become publicly enforceable agreements altering others' rights and obligations. Contracts impose upon others duties to recognize and respect contractual terms, and upon governments du- ties of coercive enforceability.These facts should not be obscured by the common locution of "privatecontracts."Libertariansdescribe full alienability of rights as if it were a matter of showing respect for peo- ple's freedom and voluntary choices. A better description of a social 54. Nozick, ASU, p. 58. 55. Nozick, ASU, p. 331;see also p. 283 56. The libertarian may object that it is question-begging to say that enforcement of slave contracts is against purported slaves' will. "After all, they agreed to it! Free in- formed consent is binding precisely because it expresses (or represents, or even consti- tutes) the will." I assume that it is against a person's will to coerce her to act in ways she does not want to act. The fact that earlier she committed herself to act as she now is forced to act does not negate the fact that she is now being forced to act against her will. 133 Illiberal Libertarians: WhyLibertarianismIs Not a LiberalView system that enforces complete or even partial dominion over human beings is that it is a perverse property system. For it is not as if liber- tarians put a premium upon maintaining individuals' freedom of ac- tion, much less so their independence, or their capacities to exercise their rights and control significant aspects of their lives. Instead what is fundamentally important for libertarians is maintaining a system of historically generated property rights, whatever the consequences for individuals' freedom, independence, or interests. Libertarianismis, in the end, not so much about liberty as it is about protecting and en- forcing absolute property and contract rights. The liberties that liber- tarians provide are defined by reference to absolute property in per- sons and in things; who has these rights in the end is not morally important, so long as their holdings come about by observing liber- tarian transferprocedures and side-constraints. Libertarianswill insist that the distribution of property rights in per- sons and things still must be generated by rights-owners' free consent. But this does not show that libertarians value each person's freedom any more than giving equal consideration to everyone's (equally in- tense) desires shows that utilitarians place a fundamental value on equality and maintaining each person's happiness. In both cases we are dealing with a feature of a decision procedure for distributing goods (happiness for utilitarianism, rights for libertarianism) without any check on the distributions this procedure generates. For liber- tarians, each person starts with ownership of her person and any pos- sessions acquired by transfer. These property rights are deemed of equal significance, and each person is at complete liberty to transfer whatever rights she has. So far as any right is given priority,it is abso- lute liberty of contract and transfer that determines the procedural mechanism for distributing rights and powers. But no attention is given to maintaining the basic rights, liberties, and powers that (ac- cording to liberals) are needed to institutionally define a person's free- dom, independence, and status as an equal citizen. So we arriveat the peculiar possibility: the world and all within it can be someone's (or more likely some class's) property,with all but one (person or group) devoid of freedom and independence-and yet all is right and just since libertarianprocedures and side-constraints have been satisfied.57 57. Nozick'sLockean Proviso (that no one can be made worse off than in a state of 134 Philosophy & Public Affairs However unlikely, the example emphasizes libertarians' lack of con- cern with preserving basic rights and liberties, or individual self-gov- ernance and independence.58 This marks an essential difference with liberalism. No liberal regime would enforce or permit enforcement of an agreement against a person who has tried to alienate one or more of her constitutionally protected basic rights. For these are the rights that define a person's status as a free agent, capable of rationally de- ciding her good and taking responsibility for her actions. Liberalism affirms this ideal of free moral agency, and seeks to secure it via the institutional recognition of basic rights. For rights to be basic means they are not susceptible to being overridden by anyone's desires. Being fundamental, basic rights are secured against the (aggregate) wants of others. Being inalienable, they are secured against the wants of those who would dispossess themselves of their basic rights and abandon their freedom and independence. Libertarians will object that liberals still show "less respect" for lib- erty, since they refuse to recognize all of a person's free decisions. But no view says all a person's free decisions are to be respected; liber- tarians, like everyone else, require that free decisions not violate others' rights. The issue between liberalism and libertarianism then becomes whether all permissible liberties are on a par and are equally impor- tant, or whether some liberties are more significant than others. Liber- tarians assign priority to freedom of contract and of property. Liberals give priority to different liberties: liberties crucial to maintaining a per- son's status as a responsible and independent agent. Given the priority of these liberties, liberals do not recognize decisions to contract away nature) would not appear to prevent such an eventuality since its purpose is to put limits on appropriationsof unowned things, and not on transferof originalrights in oneself. See ASU, pp. 175-82. 58. Libertariansmay object that the same can be said of democracy,understood as bare majoritarianism."Justbecause democracy could result in totalitarianismdoes not mean that anythingis necessarilywrongwith democracy."I disagree,for the conceptual possibility shows the moral limitations of majoritariandemocracy.Pure majoritarian- ism-the view that whateverthe majoritywills is fair,just, or even legitimate-is unrea- sonable. Majorityrule needs to be subsumed within some largerdemocratic conception of justice to define its scope and restrict the kinds of laws majorities can agree to. For this reason, few people (if any) advocate pure majoritarianismas an adequate account of justice, but people do advocate libertarianismas adequate, even though it puts no restrictionson permissibledistributions. 135 Illiberal Libertarians: WhyLibertarianismIs Not a LiberalView all one's liberties or respect the liberty to do so. If this is all libertarians mean when they say liberals give "less respect to liberty,"it simply reasserts the main point: liberals deny complete alienability. Liberals can reply that the recognition of rights to alienate freedom is not to respect freedom but to debase it; it makes freedom a fungible thing, tradablefor something with a qualitativelydifferentand lesser value.59 Absolute Property and Invidious Discrimination Consider next libertarian attitudes toward liberal institutions affording equal opportunity. Even if narrowly construed, equal opportunity im- plies more than simply an absence of legal restrictions on entry into preferred social positions by members of salient social classes. Jim Crowlaws were not the primarycause of segregation in the South.60In 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 fre- quented by whites.6' Still, these events rarely occurred due to tacit (often explicit) agreement among whites. Because of privately imposed restrictive covenants, discriminatory business practices, and blacks' abject economic status, there was little need for laws imposing seg- regation and discrimination. It could be left up to the invisible hand. 59. Here further consideration needs to be given to the libertarian's insistence (men- tioned earlier) that ordinary contractual agreements are binding because they express, or represent, or constitute the will. This provides the main support for their argument that to deny authority to the will by not enforcing alienation contracts undermines the moral basis for enforcing even routine contracts. But if invalidating alienation contracts jeopardizes the authority of routine contracts because it negates the will, then it should also be the case that invalidating contracts to kill third parties or to commit other crimi- nal conspiracies also jeopardizes the authority of more routine contracts. The libertarian will reply that in the case of criminal contracts there is sufficient reason to override the will and freedom of contract (namely, to protect third parties' rights). But then the lib- eral argument for inalienability says there is likewise sufficient reason to void alienation agreements and not allow their enforcement, namely to protect the status of persons as free and equals. This returns the argument to the real source of disagreement between liberals and libertarians, namely, the basis for individual rights. Thanks to a reviewer for raising this objection on libertarians' behalf. 60. See the seminal work of C. Vann Woodward, The Strange Career of Jim Crow, Second revised edition (Oxford: Oxford University Press, 1966), p. 102. 61. See Woodward on each point, ibid., pp. 98, lo1, and 99. 136 Philosophy & Public Affairs Libertarianismhas no principles and allows for no laws or institu- tions that prohibit such invidious discrimination.62This is a conse- quence of the strict priorityassigned to absolute propertyand contract rights. The libertarian conception of property says that people may transfer their holdings to whomever they please, and may allow hold- ings to be used only by others they choose. Moreover,other than pro- hibitions against fraud and duress, no legal restrictions can be placed on contractual agreements. It follows that there is nothing unjust about racial, ethnic, gender, or religious discrimination in employ- ment, education, and the provision of goods and services. Libertarians may pay lip service to the classical liberal view of "careersopen to talents," but nothing in their doctrine prohibits widespread violation of this idea. Nor do libertariansallow for institutions that prohibit the intentional imposition of racially segregated housing patterns, and the same is true of the sale or provision of all other goods and services. Race, gender, and other forms of discrimination, while they may be uneconomical, unseemly, or imprudent, are still not unjust according to libertarianism. Libertarianproperty rights then come to provide cover for bigotry and invidious discrimination against what liberals see as the basic interests of citizens. Marketsand Monopolies Under competitive conditions, markets normally allow for efficient al- locations of productive resources and increased output of goods to meet (effective) demand. But if market activities are left unregulated, freely associating individuals can just as well enter agreements de- signed to restrict others' options, frustrating instead of promoting productive output. The right of unrestricted freedom of contract so central to libertarianism implies that markets are to be wholly self- regulating;government has no role to play in securing marketfluidity. There is then no place for laws and institutions designed to promote competition and deter noncompetitive agreements. Absolute contract rights, conjoined with rights of unlimited accumulation that inhere in 62. Narveson is quite open about this: see The Libertarian Idea, pp. 313-18. "Butif a business is reallyprivate,that means it is the propertyof its owners. They can do as they wish with it" (p. 315). 137 Illiberal Libertarians: WhyLibertarianism Is Not a Liberal View libertarian property, can then readily lead to cartels or monopolies. That someone may have acquired complete control over some scarce natural resource, such as timber, oil, or water supplies, and charge others whatever he pleases, is wholly consistent with libertarian prop- erty rights. Such arrangements are not allocatively efficient. But be- cause libertarians reject any interference with free economic transac- tions and individuals' complete control over resources, they must place subordinate value on the efficient allocation of productive re- sources. It is more important to maintain individuals' absolute prop- erty and contract rights.63In the absence of institutional arrangements enforced by government to prevent excessive accumulation of market power,the likely outcome of libertarianentitlements is a series of con- tracts establishing a cartel'scontrol in each industry. Once this stage is reached, nothing but goodwill can prevent libertarianism'sprogression into veritable economic serfdom. To say that economic efficiency is of subordinate importance to lib- ertarians does not mean that appeals to efficiency have no place in libertarian argument. My claim is that efficiency plays no significant role in establishing the basic principles of the system (i.e., absolute property and contract rights, and the distribution of income and wealth), and that efficiency considerations will be sacrificed to main- tain libertarian rights of contract and property. In Nozick's account, efficiency is one of several considerations to take into account in refin- ing property rights and resolving disputes64;moreover, a condition of initial appropriation in a state of nature is that others not be made worse off by an initial taking (the Lockean Proviso). But these appeals to efficiency are simply meant to put weak limits on what may be appropriated, and help specify the contours of property rights once appropriated. Once property rights are defined and acquired, there is no requirement that further uses, transfers, and disposals of property 63. See Narveson, for example, who says the idea of monopoly is undefinable in a rigorousway,and that "theuse of one'sresourcesforwhateverpurposes one will is the hallmarkof liberal [sic] freedom"(The LibertarianIdea, p. 203). 64. See for example ASU, p. 280, where Nozick suggests that "perhaps the precise contour of the bundle or propertyrights is shaped by considerations about how exter- nalities may be most efficientlyinternalized."The idea is at least worth furtherexamina- tion, he says. 138 Philosophy & Public Affairs be efficient. One may accumulate, use, and dispose of property at will, provided others' rights are not violated and they are not made worse off than they would be in a state of nature.65 By contrast, efficient use (either Pareto or Kaldor-Hicks) is determined by reference to the status quo ante at the time of use, and not by reference to a (real or imag- ined) state of nature that existed in the distant past. In this regard, efficiency considerations are not fundamental or integral to Nozick's entitlement theory.66 The Libertarian Rejection of Public Goods and a Social Minimum Libertarianism has no place for government to enforce the provision of public goods, those goods not adequately and effectively provided for by markets. The role of the libertarian state exclusively is to protect and maintain rights and entitlements against infringement, to enforce contractual agreements, and to resolve disputes. For governments to tax people to provide public goods is unjustly coercive, as is it for gov- ernment to tax some and redistribute it to others (for purposes of health care, unemployment, emergency relief, and so on). The state has no role to play in distributing income and wealth (other than en- forcing existing rights); distributions are to be decided entirely by peo- ple's free decisions. These matters require little discussion here, since libertarians emphasize them as central to their position.67 Political Power as a Private Power Since Locke, liberals have conceived of political power mainly in terms of three primary functions of governments: political power is the au- thority (1) to legislate public rules and revise them to meet changing 65. See Nozick, ASU, pp. 178-82, on the Proviso. 66. Contrast Gauthier'ssuperficially similar argument for natural appropriation, which says that propertyrightsin a state of natureare alwaysrevisablein the interests of efficient use. See his Morals by Agreement, pp. 293-94. Gauthier'sclassical liberal account is designed to accommodate considerationsof economic efficiencyat each cru- cial point. There is nothing comparable to Gauthier'sprovisional account of property rightsin Nozick'sstate of nature.ForNozick,individualsacquireabsolutepropertyim- mediatelyuponappropriationofunheldresources,due totheirnaturalrightsandliber- ties and considerations of individualautonomy and self-ownership. 67. See, for example, Nozick,ASU,p. ix. 139 Illiberal Libertarians: WhyLibertarianismIs Not a LiberalView circumstances, (2) to adjudicate disputes arising under these rules, and (3) to enforce these rules when necessary against those who vio- late them or who resist adjudicative resolutions. For Locke these three powers are needed to remedy the "defects" of the state of nature.68 These defects warrantthe creation of political society (via a social con- tract, on Locke'saccount). This political society (the "BodyPolitic" or "the People") has the authority to legislate a constitution and place limited political power in a government, which is appointed as the People's fiduciary agent to fulfill these functions on behalf of the People. One peculiar feature of strict libertarianismis the absence of legisla- tive authority, a public institution with authority to introduce and amend rules and revise social conventions. The need for new or re- vised rules is to be satisfied through private transactions and the invis- ible hand, by the eventual convergence of many private choices. Liber- tarians generally accept that adjudicative and executive powers are necessary to maintain personal and property rights. But these func- tions are performed by private protection agencies and arbitrationser- vices (in Nozick's account, a "dominant protective agency," which is the minimal state). No public body, commonly recognized and ac- cepted as possessing legitimate authority, is required to fairly and ef- fectively fulfill these functions. Political power is privately exercised.69 68. See, Locke, Second Treatise,sections 124-26 on the three "inconveniences" or "defects"(sec. 131)of the state of nature which give rise to a need for government, and secs. 136-37on the need forlegislativepowerto publiclyspecifythe Lawsof Natureand for an impartialJudge to decide disputes. The three defects are the lack of "an estab- lished, settled, known Law,"of a "knownand indifferentJudge,"and of a "Power... to give [law and sentences] due Execution."Locke does not advocate separation of powers (in the U.S. sense) but (as under the British Constitution) appears to subsume judicial power under the executive and holds that legislative power is "supreme"(sec. 132).In chap. 13 Locke distinguishes the "Legislative,Executive, and Federative Power of the Commonwealth,"thelatterbeinginchargeofforeignpolicyandwarandpeace (sec.146). 69. Nozick does recognize the need for a decision mechanism to determine the level of risk that individuals may impose on others. "Butthe precise mechanism to accom- plish this has yet to be described; and it would also have to be shown how such a mechanism would arise in a state of nature."The implication is that such procedure would have to be "reachedby the operation of some invisible-hand mechanism" (ASU, p. 74). Some may disagreewith my claim that libertarianismhas no place for legislative authority.But focus again on Nozick'sview (which I take as the paradigm).Why couldn't Nozick'sminimal state simply create a committee with the task of making rules that decide disputed and indeterminatematters of naturallaw?Take,for example, the prob- 140 Philosophy & Public Affairs The libertarian conception of private political power is evident from Nozick's account of the minimal state. Nozick's account is selectively Lockean, for he disregards Locke's duty to protect and maintain hu- manity and assist others in need and distress.70 This enables Nozick to contend that it would be irrational for the inhabitants of a Lockean state of nature to overcome the inconveniences of their situation by a social contract.71 Instead, they enter into separate private contracts with competing protection agencies to enforce their personal and property rights. Eventually, one protection agency achieves a natural monopoly in providing "protection services" for those willing and able to pay for them. (This "dominant protective agency" is the "ultra-mini- mal state"). Different "packages" of protection services are offered, de- pending on customer's wants, circumstances, and ability to pay. This dominant protective agency evolves into the minimal state when it provides a minimum level of protection services (the "least expensive protection policy") without charge to those unable to afford them. These services selectively protect nonmembers: They are guarded against the aggression of paying members, but are not shielded from aggressive nonmembers.72 lem of defining riparianrights:The committee could issue a set of rules saying, among other things, that river bed owners have no right to pollute, or to dam water flow, be- yond certainlimits. Wouldthis decision have the status of legitimatelaw?Recallthat Nozick'sminimal state is in effect a joint stock company with a natural monopoly on force. While it may have de facto power to make and enforce rules it does not have any right or authority to do so, nor does it claim any (see ASU, pp. 108-10). Any rights or powers the minimal state has must derive from its members. As no person or group has the right to unilaterallyissue rules applying to everyone, the same is true of the minimal state. "Thereis no right the dominant protection agency claims uniquely to possess" (ASU,p. 109),including, I assume, the authorityto legislate. 70. See section 159of Locke'sSecond Treatise,where Lockerefersto "theFundamen- talLawofNatureandGovernment,viz.That ... alltheMembersoftheSocietyaretobe preserved" (referred to also in secs. 6, 16, 18, 134, 135, 183). Because of the fundamental law, each has a duty "topreservehimself' as well as "topreservethe rest of Mankind" (sec. 6). It is consistent with Locke, if not explicitly required,to infer a duty to join political society and recognize public political authority,since governmentsjustified by the social contract are necessary background conditions for the effective exercise of each person'sduty to preservehimself and all of mankind. 71. "Anythingan individualcan gain through such an unanimous agreement he can gainthroughseparatebilateralagreements"(ASU,p. go). 72. Protection services against members are provided to nonmembers without chargein compensation for requiringthem to resolve disputeswith the agency'spaying 141 Illiberal Libertarians: WhyLibertarianism Is Not a Liberal View So conceived, the libertarianstate originates in and is sustained by a network of private contracts.73This network of agreements continues into the present, and is needed to maintain the minimal state. Clients of the minimal state must purchase their protection "policies,"just as they purchase auto or medical insurance. They contract for different services depending on their willingness and ability to pay; if they can- not pay, then they receive minimal protection against the minimal state's clients. They do not receive protection from the aggression of its nonclients (others equally unable to afford protection services.) How are we to assess this conception of political power? How does it compare with liberalism?Begin with the minimal state'slack of legis- lative authority.H.L.A.Harthas argued that any society is bound to be static and primitive if it entirely relies on custom and people's uncoor- dinated responses to new situations, and is without a commonly rec- ognized and accepted procedure that identifies rights and duties and that issues public rules to promptly respond to changing conditions.74 One challenge to libertarianismis to show that this is not its inevitable fate. No matter how knowledgeable and informative the Invisible Hand, libertarianagents are invariablygoing to be unsure of and will disagree about the application of their abstract rights and duties. The clients within the agency's arbitrationprocedures, thereby losing their rights of private enforcement of their rights.See ASU,chaps. 2 and 5, especially pp. 101-19. 73. This claim and the ensuing argumentin this section-that libertarianismresem- bles feudalism-applies to the minimal libertarianstate, and to the competing protec- tion agencies envisioned by anarchicallibertarianism.Though Nozick says the minimal state is "theonly morallylegitimatestate"(ASU,p. 333)and that "anystate more exten- sive violates people's rights"(ASU,p. 149)he still leaves open the theoretical possibility thata "moreextensivestate"couldariselegitimatelyout of the minimalstate,so long as it is unanimously agreed to. Nozick has a long discussion of how (something purport- edly resembling) democracy might arise out of a minimal state. His account of democ- racy is a caricature,since it involves everyone making themselves slaves to one another. He says this "tale"of how a more extensive state might arise is "designedto make such a state quite unattractive"(ASU,p. xii). In any case, as he says, "it is highly unlikely that in a society containing many persons"that a more-than-minimal-statecould survive,pre- cisely because unanimous consent is required.In light of these remarks,I see Nozick as contending that the minimal state, even if it may not be the only conceptually possible legitimate state, is nonetheless the only realisticallypossible legitimate state. This would explain his explicit statement that it is "the only morallylegitimate state."I am grateful to a reviewerfor this journal for calling this feature of Nozick'sview to my attention. 74. H.L.A.Hart, The Concept of Law (Oxford:OxfordUniversityPress, 1961),pp. 89- 96. 142 Philosophy & Public Affairs absence of a public institution that refines libertarian principles and authoritativelyissues public rules to apply to historical conditions and specific circumstances will result in (as Locke says) great "inconve- nience." Without institutions to publicly identify the principles of lib- ertarian natural law and to specify their rules under existing circum- stances, it is difficult to see how the countless sophisticated rules that make up the modern institutions of property, contract, securities, ne- gotiable instruments, patents and copyrights, and so on, could effec- tively evolve simply by the Invisible Hand. Even if these institutions were to evolve without legislative power, once in place no legal person possesses the authority to revise rules to meet changing conditions, eliminating ineffective rules and introducing new ones in their stead. No institution exists for changing norms to adapt to new circum- stances except for the gradual process through which all libertarian rules and institutions evolve. Political power is then truncated under libertarianismsince there is no commonly recognized legislative authority. Moreover,the judicial and enforcement powers that do exist remain in private hands. One of the most characteristicfeatures of libertarianismis that the protection and enforcement of people's rights is treated as an economic good, to be provided for by private market interactions.75Initiallyheld by each individual, these private political powers are transferred by each through separate contractual agreements to other private persons who compete on the marketto provide protection, arbitration,and enforce- ment services. Different arrangements are made depending on the po- litical services people want and can afford. In Nozick'sversion a single dominant protection agency eventually acquires a de facto monopoly in political power; its competitors go out of business. In Rothbard's and other anarchicalversions no such monopoly need exist; presuma- bly competing protection agencies can peaceably coexist. In both ac- counts political power is privately exercised for the benefit of those who can affordit and according to whatever favorableterms each per- son can bargain for.76The distribution of political "services"depends then on a person'swealth and relativebargainingposition. 75. See Nozick, ASU, p. 24: "Protectionand enforcement of people's rights is treated as an economic good to be provided by the market, as are other important goods such as food and clothing." 76. It remains true on Nozick'saccount that political power is exercised mainly for 143 Illiberal Libertarians: Why Libertarianism Is Not a Liberal View Is this a just and feasible arrangement? Libertarians place in private hands the role of identifying, interpreting, and coercively enforcing the conditions of social cooperation, including the most basic claims for restraint, protection, and assistance that are a condition of social life. Political power is privately exercised and is distributed like any other private economic good. Recall the features of public political authority as conceived by liberals, discussed in section I: (1) its non-personal, institutional nature, (2) its institutional continuity: political power is maintained over time by generally accepted rules of succession, (3) political power is recognized as authoritatively held and as legitimate, (4) because of its fiduciary nature, political power is to be exercised in trust for the benefit of those represented, and (5) the impartiality of political power: it is to be exercised equitably for the public good, and for the good of each citizen or subject. Can libertarianism meet these liberal conditions on public political authority? Assume, for purposes of argument that libertarianism can satisfy (1) and (2). We can imagine the libertarian state as a kind of corporate body (not simply the power of an individual or family) with settled procedures; it exists continuously due to its corporate rules for selecting and replacing officers, and it survives individuals' retirement or demise.77 Does this institution meet the remaining conditions for public political power? Beginning with condition (3), does the liber- tarian minimal state enjoy political legitimacy? Libertarian political power is based in private bilateral contractual agreements. So far as there is a monopoly on coercive power, it is a natural, not a de jure monopoly.78 Indeed, it is essential to libertarian the benefit of those who pay for it even when nonclients are provided protection ser- vices against clients' aggression. The protection agency provides nonclients with these minimal services only to compensate them for being prevented from apprehendingand punishing clients for alleged wrongs. Providingnonclients minimal services is just one of the costs incurred in providing protection services for paying clients. See Nozick, ASU, pp. 110-13. 77. Strictlyspeaking, corporations are products of public law, existing by virtue of statutes that prescribe their conditions and governing procedures. The minimal state can at most be a nonlegal institution, resembling a corporation but without legal or constitutional sanction or authority. 78. SeeNozick,ASU,pp.108-10.Thephrases"monopolyon coercivepower"or"mo- nopoly on force"(whetherde jure or de facto) does not mean that no one but the state actually exercises such power-obviously violent criminals do, as do people acting in 144 Philosophy & Public Affairs political power that it not claim a de jure monopoly on political power or any right to political rule. So the effectiveness of libertarianpolitical power is made to depend on its de facto exercise against persons who have not consented to its exercise against them (which is true even of clients of Nozick's dominant protection agency.) What exists to main- tain the effectiveness and stability of libertarian political power other than its de facto monopoly? Do people have reason to respect this power, or do they comply with its judgments, orders, and decrees sim- ply out of fear?If political power is based simply in a natural monop- oly, then in what sense can it be seen as the exercise of political au- thority as opposed to simply the employment of brute force? That some private body monopolizes political power is no reason to respect it (although it might be reason to fear it). There is then likely to be no general recognition of the moral or legal authority of the private state in libertarian society. But without the public's sense of its authority, libertarian political power lacks one of the most effective means for enforcing rules and judicial judgments, namely, the sense of allegiance and political obligation to authority.Moreover,the exercise of effective judicial power depends on such concepts as jurisdiction over parties and particulargrievances and disputes, as well as the validityof judi- cial judgments based in an authorized body of laws. The mere exercis- ing of judicial powers and making and enforcing judgments would seem to be insufficient to give rise to these normative concepts.79 These three attributes-recognition of a government's rightful au- thority to rule (accompanied by a corresponding sense of allegiance and political obligation), governments' jurisdiction over persons and disputes, and issuing valid and binding legal judgments-are central features of governments as enduring political and legal systems. They are all part of the idea of political legitimacy. It is doubtful whether the de facto monopoly on force possessed by the libertarianminimal state can ever give rise to political legitimacy in this sense (and even more doubtful that the competing protection agencies that anarchical liber- tarians defend can achieve it). This raises questions regarding liber- tarianism'sfeasibility and stability. It also implies questions of justice, self-defense-but that anyone exercising force must answer to the state-as-monopoly- holder,and show that the exerciseis justified or excused. 79. See again Hart, The Concept of Law,pp. 94-96. 145 Illiberal Libertarians: WhyLibertarianismIs Not a LiberalView for what gives political power its legitimacy ultimately is its fiduciary nature, its impartial exercise, and its primary objective, the common good.80 What then of the fiduciary nature (4) of libertarian political power? Libertarianpolitical power is exercised pursuant to the terms of eco- nomic contract: it is individually bargained for, sold for a profit at the going market (or monopoly) rate, and is normally distributed only to those who pay for it.81Economic contractual relations normally are driven by private interest; parties are indifferent about the good of one another and negotiations are conducted at arms length. Economic contractual relations are not fiduciary relations, which by their nature require acting for another parties' interests even at the expense of one's own. Moreover,a peculiar feature of the minimal state, and of competing protection agencies under anarchical libertarianism,is that political power becomes a sort of (private) corporate power. As a for- profit enterprise, the protection agency's primary duties extend to its owners or shareholders. While the manager-shareholder relationship may be conceived as fiduciary (as a matter of public law), this is very different from the fiduciary capacity of governments, in which the beneficiaries of political authority are supposed to be those who are governed. Here a libertarianmight reply,"Itsbasis in private contract does not by itself make libertarianpolitical power nonfiduciary,for lawyers and bank trustees are deemed fiduciaries. This is just the product they have to sell: they contract out their services (as guardians, trustees, agents, etc.) to represent and act in the interests of their clients." But they do so within the structuredsetting of a system of public laws and 80. It may be objected here that libertarianssuch as Nozick alreadyhave an account of political legitimacy that I simply ignore: that is, the dominant protection agency is politically legitimate insofar as it has a larger (or monopoly) share of the jointly held right to punish (and therewith interpret and enforce natural law) than any competing agency. But Nozick is explicit that the dominant protection agency does not enjoy a de jure monopoly; it simply exercises a de facto monopoly (ASU,pp. 108-10). (Indeed, it is crucialto Nozick'sresponse to the anarchistthat the minimal state not claim a de jure monopoly.) Also, Nozick nowhere says that the dominant protection agency possesses politicallegitimacy(whichisdifferentfrommorallegitimacy,whichhe doesclaimexclu- sively for the minimal state) (ASU,p. 332). Political legitimacy does not seem to be a concept that Nozick employs or even sees as significant. 81. The exception, again, is the minimal protection services provided nonclients against client's aggression in Nozick'sminimal state. See notes 72 and 76. 146 Philosophy & Public Affairs political institutions, which regulates their contracts to be fiduciaries and prescribes specific duties upon them above and beyond those specifically contracted for. Lawyers would not be allowed to reach agreements with their clients that relieve them of the fiduciary duties imposed on them by law. Moreover, lawyers are deemed to act as "offi- cers of the courts": they stand in a fiduciary relationship not just to their clients but to the public as well, and cannot pursue their own or their clients' interests contrary to the public interest (as conventionally defined). Lawyers are sanctioned when they breach these respon- sibilities. Within libertarianism, however, no structure of publicly rec- ognized principles and institutions imposes general duties on protec- tion agencies to act in a fiduciary capacity for their members' interests or for the public interest. In so far as it is exercised for benefit of an- other, libertarian political power is guided only by the obligations fixed by many bilateral contractual bargains.82 Consider finally condition (5)-political power is to be exercised im- partially and for the public good-and the sense in which libertarian political power is most conspicuously nonpublic. (a) Libertarian politi- cal services are not uniformly supplied, but are provided in proportion to a person's willingness and ability to pay. People receive only those protection, arbitration, and procedural rights they can afford to pay for. Political power is not then impartially administered. This holds true even for Nozick, who (unlike other libertarians) provides minimal protection benefits to nonmembers without charge: The level of pro- tection provided is not equal to others (e.g., no arbitration services are provided); moreover, minimal protection is not provided against the 82. I do not mean to say that the private libertarianstate does not act at all for the interests of its clients. If it did not then no one would buy its services. The point ratheris that it does not act as a fiduciarybut only performs those services that are specifically contracted for by each individual, and when there is a dispute about services to be provided, it is resolved by considerations of the "bottom line." A good analogy is pa- tients' relations with for-profitHMO's.Even in a competitive climate, for-profitHMO's provideonly enough servicesto keep a client'sservices,and only then if it paysto do so. (So they seek to clear the rolls of people who requirea lot of medical treatment.)Imag- ine now that a for-profitHMOhas acquireda monopoly over medical services, and does not need to fear the entry of a competing HMO into the market (e.g., it has made exclusive employment contracts with all the local physicians). Knowing how for-profit HMO'soperate even under competitive conditions, it is not hard to imagine how the monopoly HMOwill respond to claims for services in the event of inevitable contractual ambiguities.In this regard(and others) the minimal state, like the monopoly HMO,does not act in a fiduciarycapacity for the interests of its clients. 147 Illiberal Libertarians: WhyLibertarianismIs Not a LiberalView people most likely to attack nonmembers, namely, other nonmembers. (b) Further,in acting from private (corporate)motives and for the pri- vate benefit of its paying customers (and its stockholders), there is no objective or understanding that the minimal state acts for public bene- fit, for the good of society and all of its members. As it eschews public goods in the economic sense, libertarianism eschews the public good in the moral sense. Politicalpower is not exercised for the sake of jus- tice (even as libertarians define it), but for private ends. What is striking about libertarians'conception of political power is its resemblance to feudalism. By "feudalism"I mean a particular con- ception of political power, not the manorial system or the economic system that relies on the institution of serfdom (as in European medi- eval feudalism).83Feudalism is a system of personal political depen- 83. As G. G. Coulton notes, feudalism "is proverbiallydifficult to define" (Medieval Panorama[Cambridge:CambridgeUniversityPress, 1955],p. 45). For my purposes "feu- dalism" is construed as a conception of political power exercised as a private preroga- tive, and is grounded in a network of private agreements. Neither Aquinas (who saw politics as ideally grounded in a conception of the common good) nor any of the Scho- lastics endorsed feudalism in this sense; they endorsed a limited monarchy subject to clerical power in matters affecting religion (see St. Thomas Aquinas: On Politics and Ethics,editedbyPaulSigmund[NewYork:Norton,1988],pp.xxii-xxiii).Feudalismand kingshiparethen differentand opposed systems. Feudalismhistoricallyarose out of the breakupof the monarchical system in both Japanand in Europe (afterA.D.800, the end of Charlemagne'sreign). Under feudalism "in its most developed form-that is in elev- enth century France-the national system has become obliterated" (Coulton, p. 49). "Politicalauthorityand privatepropertywere merged together into the new feudal rela- tion" (ChristopherDawson, TheMakingof Europe,[NewYork:Meridian,1956],p. 227). Aroundn1oomonarchybegan reassertingits powers in the Frankenlands where feudal- ism was most prevalent.Feudalismand monarchismgraduallymelded into one system as monarchiesslowly regainedpoliticalpower,and feudal lords still retaineda good deal of theirprivatepoliticalpower.Itis duringthis syncreticperiod (not duringthe high era of feudalism from ca. 850-1100)that so-called "feudallaw" appears, regulatingamong other things contractualrelationsbetween lieges and lords. I emphasize that feudalism is intended here as a doctrine about political power. It does not imply serfdom or the manorialsystem. Feudalismin Japanhad nothing resem- bling the serfdom of Europeanfeudalism. Much less so should feudalism be identified with serfdom,for serfdom also occurredin non-feudal societies whose political basis lay notincontractbutintiesofkinship(seePeterDuus,FeudalisminJapan[NewYork: AlfredA. Knopf,1969],pp. 9, 15-16,77). The traditionthat identifies feudalism with serf- dom and the manorial economy stems from Marx'suse of "feudalism,"and receives its classic expression in MarcBloch, Feudal Society (Chicago:Universityof Chicago Press, 1964).If feudalism is understood in Marx'ssense, then of course libertarianismdiffers from Medievalfeudalism since libertarianismrejects hereditaryserfdom. Finally,I use "feudalism"to denote an idealized conception of political power.It may be thatno historicallyexistingpoliticalarrangementeverfullysatisfiedallthe featuresof 148 Philosophy & Public Affairs dence that is based in a network of private contractual agreements. Under feudalism, the elements of political authority are powers that are held personally by individuals, not by enduring political institu- tions. These powers are held as a matter of private contractual right. Individuals gradually acquire the power to make, apply, and enforce rules by forging a series of private contracts with particular individuals or families. Oaths of fealty or service are sworn in exchange for similar or compensating benefits. Those who exercise political power wield it on behalf of others pursuant to their private contractual relation and only so long as their contract is in force. Since different services are provided to people, there is no notion of a uniform public law that is to be impartially applied to all individuals. Instead, "custom and ver- bal agreement take the place of written law."84Moreover, subjects' po- litical obligations and allegiances are voluntary and personal: They arise out of private contractual obligations and are owed to particular persons. Political obligation and allegiance are not seen as moral im- peratives based either in a duty of justice or in duties to humanity or to members of any national or ethnic group.85 Of course, under feudalism proper in Europe, personal loyalty be- tween liege and vassal was seen as a moral duty arising out of contract. Loyalty was an important political motivation, and a complicated sys- tem of loyalty-norms cemented personal allegiances. Loyalty motives and norms are of course absent from libertarianism; it relies on self- interest and the obligation to keep one's contracts as sufficient incen- tives to keep one's political obligations (to provide protection services, for example). But in all other respects mentioned, libertarianism re- sembles feudalism. This resemblance stems from both doctrines' con- the conception set forth in the text. (For example, even in what is now France where feudalism was most prevalent,there was at least lip-service paid to the monarchy.)But in this sense, feudalism does not differ from liberalism or libertarianismas idealized political conceptions. Forhelpful discussions of the history of feudalismin Europeand Japan,see Coulton, MedievalPanorama,pp. 45-56; the books by Duus and Bloch cited above;NorbertElias, Power and Civility(Oxford:Basil Blackwell,1982),pp. 57-66; and Jean PierrePoly and Eric Bournazel, The Feudal Transformation: 900-1200 (New York:Holmes & Meier, 1991). 84. Coulton, MedievalPanorama,p. 47. 85. See Duus, Feudalism in Japan, pp. 73, 94. Contrast nationalism, where political loyaltyis nonvoluntary,nonpersonal in that it extends to the nation-state, and based in a noncontractualduty of allegiance. 149 Illiberal Libertarians: WhyLibertarianism Is Not a Liberal View ception of political power as a system of personal political dependence grounded in a network of private contractual relations. Like the provi- sion of any other individual service, contracting for protection and ar- bitration services is simply the way people defend themselves and se- cure their interests from others' aggression.6 Liberalism evolved in great part by rejecting the idea of privately exercised political power, whether it stemmed from a network of pri- vate contracts under feudalism or whether it was conceived as owned and exercised by divine right under royal absolutism.87Libertarianism resembles feudalism in that it establishes political power in a web of bilateral individual contracts. Consequently, it has no conception of legitimate public political authority nor any place for political society, a "bodypolitic" that political authority represents in a fiduciary capac- ity. Having no conception of public political authority, libertarians have no place for the impartial administration of justice. People's rights are selectively protected only to the extent they can afford pro- tection and depending on which services they pay for.88Having no conception of a political society, libertarianshave no conception of the common good, those basic interests of each individual that according to liberals are to be maintained for the sake of justice by the impartial exercise of public political power.89 86. See Elias, Power and Civility, pp. 57-65 on feudalism. Note here that the corona- tion oaths establishing relations between feudal lords and their vassals were explicitly referred to as "compacts." Moreover, the term "feudalism" derives from the Latin foedus, which according to one interpretation means "a contract, covenant, agreement between individuals." See Cassell's New Latin Dictionary (New York: Funk & Wagnalls, 1969), p. 252, under "foedus." See also Poly and Bournazel, The Feudal Transformation: 900-1200, chapter 2, on the feudal contract. 87. Divine right absolutism and feudalism differ of course in that the former recog- nized institutionally unconstrained political power, whereas under feudalism (as under libertarianism) political power extends no further than what is contracted for. Pure feu- dalism in effect recognizes no state, just a network of private contractual relations. In Europe, absolutism was a reaction to the quasi-anarchy brought about by feudalism, but absolutism retained feudalism's idea of political power as something privately held (no longer based in contract but now purportedly in divine right.) 88. Even in Nozick's account, where nonclients are minimally protected for "free" from clients' (but not other nonclients') aggression, they are still selectively, not impar- tially, protected. 89. Why couldn't Nozick's minimal libertarian state govern for the common good, understood as protecting people's libertarian rights? Since the minimal state is just a private for-profit business, which happens to have a de facto monopoly on power, it 150 Philosophy & Public Affairs CONCLUDINRGEMARKS My purpose has been to show that the primary institutions endorsed by the liberal political tradition are incompatible with libertarianism. I have assumed that liberal institutions can have different philosophical justifications and can be accepted from different points of view. This is to be expected given the reasonable pluralism (as Rawls calls it) that will exist in a well-ordered liberal society. Libertarianism will no doubt be advocated by some in any liberal society, but they will not endorse basic liberal institutions. Whether libertarianism will gain sufficient adherents to undermine a well-ordered liberal society is a question of the stability of liberal institutions. No matter how coherent its justifica- tion, classical liberal institutions may be prone to disintegrate into lib- ertarianism. Instability would most likely result from the extensive sig- nificance that classical liberalism assigns to private property and the desirability of market distributions. If people are led to believe in the inherent justice of market distributions and the "sanctity" of private property as defined by existing law, then regardless of classical liberal- ism's theoretical justification (overall utility, market efficiency, a Lock- ean argument, or the Hobbism of Gauthier and Buchanan), citizens will likely come to believe that they have a fundamental moral right to whatever they acquire by market exchange, gift, and bequest. If so, then liberal institutions will periodically be jeopardized. Those better off will resent taxation to pay for public goods, social security and health care for the elderly and handicapped, and minimum income supports and other assistance for the poor. Moreover, democratic gov- cannot be said that it governswith any intention of promoting and maintaininga com- mon good. It may be that the common good, understood as protectinglibertarianrights, in fact is promoted (as a kind of positive externality)by minimal state action; but this does not reallydifferfromthewayin which anyprivatefirm,in seekingprivatebenefit, incidentallypromotes a common good. So if the libertarianstate promotes the common good, it does so in the same way as does Microsoft,GeneralElectric,or PinkertonPri- vate SecurityServices.I assume, however,that the idea of the common good has more structurethan this in liberal political thought. It is an operative idea in liberal theory, not an incidental side effect, and government is instituted and designed with the inten- tion of securing the common good. Securing the common good, even if understood in libertarianterms, is not an aim of the libertarianminimal state, as argued in the text. (ForNozick'sexplicit rejection of the idea of the social good, see ASU,pp. 32-33.) 151 Illiberal Libertarians: WhyLibertarianismIs Not a LiberalView ernment's very legitimacy may be questioned. These are familiar and recurringevents in U.S. history.90 Among nations, the United States is distinctive in that it celebrates as part of its national consciousness the Lockean model (some would say "myth") of creation of political society by original agreement among free (and freeholding) persons, all equally endowed with cer- tain natural rights. Modify this national story slightly (mainly by sub- stituting a web of bilateral contracts for the social contract, and elim- inating the duties it entails) and we have the essential makings of libertarianism.Perhaps this explains why libertarianism is such a pop- ular and peculiarly American view. However slight these modifications may seem, their effects are far reaching, for what we have in libertari- anism is no longer liberalism, but its undoing. 90. High liberalism should not be prone to the same instability,for it distinguishes personal property that is part of or essential to basic liberty from economic rights to control means of production, and construes the freedoms implicit in the latter rights in terms of what is needed to secure each person's individual independence. See John Rawls,Justice as Fairness:A Restatement (Cambridge:HarvardUniversity Press, 2001), pp. 114-15,177.This complicated topic warrantsfurtherdiscussion since it goes to the main difference between the classical and high liberal traditions. }}
Template:DES
(
view source
)
Template:End URL
(
view source
)
Template:Extension DPL
(
view source
)
Template:List
(
view source
)
Template:Quotations
(
view source
)
Template:Red
(
view source
)
Template:Text
(
view source
)
Template:URL
(
view source
)
Return to
Illiberal Libertarians: Why Libertarianism Is Not a Liberal View
.
Navigation menu
Views
Page
Discussion
View source
History
Personal tools
Log in
Search
Search For Page Title
in Wikipedia
with Google
Translate This Page
Google Translate
Navigation
Main Page (fast)
Main Page (long)
Blog
Original Critiques site
What's new
Current events
Recent changes
Bibliography
List of all indexes
All indexed pages
All unindexed pages
All external links
Random page
Under Construction
To Be Added
Site Information
About This Site
About The Author
How You Can Help
Support us at Patreon!
Site Features
Site Status
Credits
Notes
Help
Toolbox
What links here
Related changes
Special pages
Page information
Guidelines To Create
Indexable Page/Quote
Indexable Book/Quote
Indexable Quote
Unindexed
Templates
Edit Sidebar
Purge cache this page