From Critiques Of Libertarianism
Jump to: navigation, search

Libertarians want laws and interpretations of laws that favor their own interests. They have invested in authoring and sponsoring laws. They have their ridiculous own schools of legal and Constitutional interpretation, and they sponsor training for law students and judges.


Coercion and Distribution in a Supposedly Non-Coercive State [More...]
Property systems are coercive. Robert Hale points out in 1923: [T]he systems advocated by professed upholders of laissez-faire are in reality permeated with coercive restrictions of individual freedom and with restrictions, moreover, out of conformity with any formula of "equal opportunity" or of "preserving the equal rights of others." A difficult read.
Common Law (6 links)
Libertarians often make ridiculous claims about the common law. Common law does not necessarily protect liberty: it certainly protected the practice of slavery. Common law is judge-made law, pure judicial activism.
Constitutional Rights and Civil Liberties (9 links)
Almost all US political groups want Constitutional rights and civil liberties preserved or extended. Libertarians have their own myopic viewpoints that they want implemented. They oppose incorporation of Constitutional rights against individuals and business. They deny civil liberties such as privacy rights, except when government is involved.
Foucault in cyberspace -- Chapter 2: Libertarianism, Property and Harm [More...]
(Starts on page 11.) Law Professor James Boyle points out that libertarianism fails to justify which rights we should have in three ways: common law, natural rights and Property. "When the vague first principles turn more specific, then the fun really begins."
Hohfeld’s typology of rights (8 links)
Wesley Newcomb Hohfeld created the standard legal classification of right, duty, privilege, no-right, power, liability, immunity and disability in his 1913 article Some Fundamental Legal Conceptions as Applied in Judicial Reasoning. (Privilege means liberty.) Libertarians (and lay people in general) are usually ignorant of these important definitions. The most important of these observations is that rights have correlative duties for others and a duty is the opposite of a liberty. Your rights destroy liberties of others.
International Law (1 link)
Libertarians have no use for international law, assuming that property will solve all problems.
Judicial Review (2 links)
Libertarians decry judicial review when it goes against their desires. They frequently charge that it is not an enumerated power, conveniently overlooking the fact that it can be construed as part of the Constitutional judicial power, and was discussed as such before ratification.
Jury Nullification (2 links)
Juries have the power (if not the right) to acquit if they oppose a law's results. This can be for good or bad: defying the Fugitive Slave Act or freeing white racists who have murdered blacks. This does not repeal or invalidate laws for more than the single trial. There is controversy about it, but it is not really important.
Law and Economics (13 links)
A respectable school of legal and economic analysis which is often abused by libertarian academics for ideological propaganda purposes. It has been used extensively to train judges in corrupt economic conservatism. It's the obvious omissions of interests besides libertarian values that makes those books bogus.
Libertarians Are Huge Fans of Economic Coercion [More...]
"Hale showed that all economic regimes rely upon economic coercion, laissez-faire ones just as much as socialist ones."
Mechanism, Not Policy: Creation Of The Second Invisible Hand
Libertarians and their right wing ilk read far too much into the Constitution. It was not meant to spell out many specifics: but rather to provide a mechanism for reigning in law.
Nullification (U.S. Constitution) (2 links)
State nullification of US law is a crackpot theory that has never been upheld in courts. Nullification arguments have long been the political tools of slaveowners and their successor racists. There is a strong overlap between conservative racists and libertarianism.
On Piketty's Capital: What Is Wealth? [More...]
"For Piketty, wealth and capital are ultimately socially constructed categories. [...] The pioneer of this legal constructivist account of market valuation was legal realist Robert Hale. [...] Laws do not just affect valuation of assets. Laws are the very core of asset values."
Order without Law: How Neighbors Settle Disputes (book)
How social norms can substitute for law in small, close-knit communities. Interesting, but not a substitute for law or state because (a) it requires close-knit communities, (b) it doesn't scale up to the size of modern states, (c) maintaining a close knit community requires severe limits on liberty, (d) communities rely on the state for the stability of their property and communities (the foundation that social norms are built upon), and (e) we'd expect out-group externalities to be maximized.
Originalism (7 links)
AKA as Original Intent, this is a method of picking and choosing among the many conflicting intents of legislators in favor of modern prejudices. Originalism is a conservative propaganda ploy much favored by libertarians.
People Have Rights. States Have Powers.
An incorrect statement based on an erroneous Constitutional interpretation. People, US states, and the US federal government all have both rights and powers.
Polycentric Law (4 links)
Non-monopolistic, competing law. We actually already have that in the USA, with federal, state, and local law plus local authorities and commonlaw. It may also include private law. Some libertarian academics have made careers describing other, rare or ephemeral historical examples. The big problem is preventing conflict over whose law prevails: this can be solved either with simple dominance or with division of responsibility. This is not a libertarian idea.
Sovereign Citizens (7 links)
An attempt to frustrate or disrupt the legal system with a "baffle them with bullshit" strategy. Also known as: Detaxers; Freemen or Freemen-on-the-Land; Sovereign Men; Church of the Ecumenical Redemption International (CERI); Moorish Law; OPCA litigants; and other labels.
States' Rights (1 link)
A term that in recent political usage is a dog-whistle code word for discrimination, segregation, and opposition to civil rights. It also has a valid constitutional law meaning.
Tax Protestors And Other Pseudolaw Cranks (11 links)
There is strong overlap between libertarians and tax protestors. Tax protestors have amazing reinterpretations of laws and history that they claim justify independence from paying taxes. Sovereign Citizens, Constitutional Militiaas and Jury Nullification are some of the many other crank theories.
Tenther movement (5 links)
Crank states' rights advocates who would prefer that the powers delegated to the federal government be construed VERY narrowly, invalidating most of the past 200+ years of federal law. They would prefer that the states retain these powers (10th Amendment), so that slavery or other state abuses could not be outlawed federally.
We understand the Constitution, they do not. (7 links)
This libertarian attitude shows a profound ignorance of how the law ascribes meaning to documents such as the Constitution. This is explained further.


Odes of praise to the common law, and mistrust of legislative modifications of it, allow libertarians to say that the true benchmark of rights is provided by the older rules, not the newer ones. Judged against this standard, of course, the rules that benefit employers, landlords and manufacturers simply define liberty and property rights whereas the rules that benefit workers, tenants and consumers are interferences with liberty. The rules one likes are the foundations of sacred property rights, those one does not like are meddlesome regulation. This is a nice trick...
James Boyle, "Foucault in cyberspace -- Chapter 2: Libertarianism, Property and Harm" pg. 19.
There is an alternative view of the state and law [...] found within the German historical school, the original American institutional economics, parts of the new institutional economics, and elsewhere. The basic proposition is that the state provides an essential social and legal scaffolding for all private enterprise. Consider property rights. Individual property is not mere individual possession; it involves socially acknowledged and enforced rights. Individual property is not simply a relation between an individual and an object. It requires some kind of customary, legal, and moral apparatus of recognition, adjudication and enforcement. Similar considerations apply to the market: rather than the mere ether of individual interaction, markets are social institutions. Most of them are structured in part by statutory rules.
Geoffrey Hodgson, "From Pleasure Machines to Moral Communities: An Evolutionary Economics without Homo economicus", pp. 158-9.
[S]ocial relations abhor a power vacuum. When state authority contracts, private parties fill the gap. That power can feel just as oppressive, and have effects just as pervasive, as garden variety administrative agency enforcement of civil law. As Robert Lee Hale stated, “There is government whenever one person or group can tell others what they must do and when those others have to obey or suffer a penalty.”
Frank Pasquale, "From Territorial to Functional Sovereignty: The Case of Amazon"
What’s amusing about libertarians and laissez-faire people (and the loose way certain economists talk) is that they will describe my choice to pay rent as non-coerced and voluntary while describing my choice to pay income taxes as coerced and involuntary. But there is no neutral construction of “coercion” that would ever support such a distinction. As Hale aptly demonstrates, coercion occurs when there are “background constraints on the universe of socially available choices from which an individual might ‘freely’ choose.”
Matt Bruenig, "Libertarians Are Huge Fans of Economic Coercion"