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Can Libertarianism Be a Governing Philosophy?

The discussion we are about to have naturally divides itself into two aspects:

First: Could libertarianism, if implemented, sustain a state apparatus and not devolve into autocracy or anarchy? By that I mean the lawless versions of autocracy and anarchy, not stable monarchy or emergent rule of law without a state. Second: even if the answer were “Yes”—or, “Yes, if . . . ”—we would still need to know whether enough citizens desired a libertarian order that it could feasibly be voluntarily chosen. That is, I am ruling out involuntary imposition by force of libertarianism as a governing philosophy.

I will address both questions, but want to assert at the outset that the first is the more important and more fundamental one. If the answer to it is “No,” there is no point in moving on to the second question. If the answer is “Yes,” it may be possible to change people’s minds about accepting a libertarian order.

The Destinationalists

As I have argued elsewhere[1], there are two main paths to deriving libertarian principles, destinations and directions. The destinationist approach shares the method of most other ethical paradigms: the enunciation of timeless moral and ethical precepts that describe the ideal libertarian society.

What makes for a distinctly libertarian set of principles is two precepts:

  • The self-ownership principle, with full rights to control and alienate both one’s own body and the products of one’s labor, unless these rights are explicitly and voluntarily transferred through some actual (not implicit) contract.
  • The non-aggression principle, which is a bar on the initiation of force, even if such force would have net social benefits in consequentialist terms. Note that “aggression” is taken here to mean the initiation of force; self-defense is not ruled out, and in fact is entailed by self-ownership. Of course, this implies that individuals cannot be denied the ability to acquire effective means of self-defense.

The extreme forms of these principles, for destinationists, can be hard for outsiders to accept. One example is noted by Matt Zwolinski, who cites opinion data gathered from libertarians by Liberty magazine and presented in its periodic Liberty Poll. A survey question frequently included in the survey was:

Suppose that you are on a friend’s balcony on the 50th floor of a condominium complex. You trip, stumble and fall over the edge. You catch a flagpole on the next floor down. The owner opens his window and demands you stop trespassing.

Zwolinski writes that in 1988, 84 percent of respondents to the “flagpole question”

said they believed that in such circumstances they should enter the owner’s residence against the owner’s wishes. 2% (one respondent) said that they should let go and fall to their death, and 15% said they should hang on and wait for somebody to throw them a rope. In 1999, the numbers were 86%, 1%, and 13%. In 2008, they were 89.2%, 0.9%, and 9.9%.

The interesting thing is that, while the answers to the “flagpole question” were almost unchanged over time, with a slight upward drift in those who would “aggress” by trespassing, support for the non-aggression principle itself plummeted. Writes Zwolinski:

Respondents were asked to say whether they agreed or disagreed with [the non-aggression principle]. In 1988, a full 90% of respondents said that they agreed. By 1999, however, the percentage expressing agreement had dropped by almost half to 50%. And by 2008, it was down to 39.7%.

If we take support for the non-aggression principle as a Rorschach test, it does not appear that most people, maybe not even everyone who identifies as a “libertarian,” are fully convinced that the principle is an absolute categorical moral principle.

The Directionalists

Of course, it could be true that many who identify now as libertarians, and those who might be attracted to libertarianism in the future, are directionalists. A directional approach holds that any policy action that increases the liberty and welfare of individuals is an improvement, and should be supported by libertarians, even if the policy itself violates either the self-ownership principle or the non-aggression principle.

A useful example here might be school vouchers. Instead of being a monopoly provider of public school education, the state might specialize in funding but leave the provision of education at least partly to private sector actors. The destinationist would object (and correctly) that the policy still involves the initiation of violence in collecting taxes involuntarily imposed on at least individuals who would not pay without the threat of coercion. In contrast, the directionalist might support vouchers, since parents would at least be afforded more liberty in choosing schools for their children, and the system would be subject to more competition, thus holding providers responsible for the quality of education being delivered.

Here, then, is a slightly modified take on the central question: Would a hybrid version of libertarianism, one that advocated for the destination but accepted directional improvements, be a viable governing philosophy? Even with this amendment, allowing for directional improvements as part of the core governing philosophy, is libertarianism—to use a trope of the moment—sustainable? The reason this approach could be useful is that it correlates to one of the great divisions within the libertarian movement: the split between political anarchists, who believe that any coercive state apparatus is ultimately incompatible with liberty, and the “minarchists,” who believe that a limited government is desirable, even necessary, and that it is also possible.

Limiting Leviathan: Getting Power to Stay Where You Put It

For a state to be consistent with both the self-ownership principle and the non-aggression principle, there must be certain core rights to property, expression, and action that are inviolable. This inviolability extends even to situations “where  initiating force would greatly benefit most people,” meaning that consequentialist considerations cannot outweigh the rights of individuals.

Where might such a state originate, and how could it be continually limited to only those functions for which it was originally justified? One common answer is a form of contractarianism. (Another is convention, which is beyond the scope in this essay. See Robert Sugden[2] and Gerard Gaus[3] for a review of some of the issues.) This is not to say that actual states are the results of explicitly contractual arrangements; rather, there is an “as if” element: rational citizens in a state of nature would have voluntarily consented to the limited coercion of a minarchist state, given the substantial and universal improvement in welfare that results from having a provider of public goods and a neutral enforcer of contracts. Without a state, claims the minarchist, these two functions—public goods provision and contract enforcement—are either impossible or so difficult as to make the move to create a coercive state universally welcome for all citizens.

Contractarianism is of course an enormous body of work in philosophy, ranging from Thomas Hobbes and Jean-Jacques Rousseau to David Gauthier and John Rawls. “Our” contractarians, the libertarian versions, start with James Buchanan and Jan Narveson. Buchanan’s contractarianism is stark: Rules start with us, and the justification for coercion is, but can only be, our consent to being coerced. It is not clear that Buchanan would accept the full justification of political authority by “tacit” contract, but Buchanan also claims that each group in society should “start from where we are now,” meaning that changes in the rules require something as close to unanimous consent as possible.[4]

Narveson’s view is closer to the “necessary evil” claim for justifying government. We need a way to be secure from violence, and to be able to enter into binding agreements that are enforceable. He wrote in The Libertarian Idea (1988) that there is no alternative that can provide “reasons to everyone for accepting it, no matter what their personal values or philosophy of life may be, and thus motivating this informal, yet society-wide ‘institution.’ ” He goes on to say:

Without resort to obfuscating intuitions, of “self-evident rights” and the like, the contractarian view offers an intelligible account both of why it is rational to want a morality and of what, broadly speaking, the essentials of that morality must consist in: namely, those general rules that are universally advantageous to rational agents. We each need morality, first because we are vulnerable to the depredations of others, and second because we can all benefit from cooperation with others. So we need protection, in the form of the ability to rely on our fellows not to engage in activities harmful to us; and we need to be able to rely on those with whom we deal. We each need this regardless of what else we need or value.

The problem, or so the principled political anarchist would answer, is that Leviathan cannot be limited unless for some reason Leviathan wants to limit itself.

One of the most interesting proponent of this view is Anthony de Jasay, an independent philosopher of political economy. Jasay would not dispute the value of credible commitments for contracts. His quarrel comes when contractarians invoke a founding myth. When I think of the “Social Contract” (the capitals signify how important it is!), I am reminded of that scene from Monty Python where King Arthur is talking to the peasants:

King Arthur: I am your king.

Woman: Well, I didn’t vote for you.

King Arthur: You don’t vote for kings.

Woman: Well how’d you become king then?

[holy music . . . ]

King Arthur: The Lady of the Lake, her arm clad in the purest shimmering samite held aloft Excalibur from the bosom of the water, signifying by divine providence that I, Arthur, was to carry Excalibur. That is why I am your king.

Dennis: [interrupting] Listen, strange women lyin’ in ponds distributin’ swords is no basis for a system of government. Supreme executive power derives from a mandate from the masses, not from some farcical aquatic ceremony.

According to Jasay, there are two distinct problems with contractarian justifications for the state. Each, separately and independently, is fatal for the project, in his view. Together they put paid to the notion that a libertarian could favor minarchism.

The first problem is the “enforceable contracts” justification. The second is the “limiting Leviathan” problem.

The usual statement of the first comes from Hobbes: Covenants, without the sword, are but words. That means that individuals cannot enter into binding agreements without some third party to enforce the agreement. Since entering into binding agreements is a central precondition for mutually beneficial exchange and broad-scale market cooperation, we need a powerful, neutral enforcer. So, we all agree on that; the enforcer collects the taxes that we all agreed on and, in exchange, enforces all our contracts for us. (See John Thrasher[5] for some caveats.)

But—wait. Jasay compares this to “jumping over your own shadow.” If contracts cannot be enforced save by coercion from a third party, how can the contract between citizens and the state be enforced?  “[I]t takes courage to affirm that rational people could unanimously wish to have a sovereign contract enforcer bound by no contract,” wrote Jasay in his book Against Politics (1997). By “courage” he does not intend a compliment. Either those who make this claim are contradicting themselves (since we can’t have contracts, we’ll use a contract to solve the problem) or the argument is circular (cooperation requires enforceable contracts, but these require a norm of cooperation).

Jasay put the question this way in “On Treating Like Cases Alike: Review of Politics by Principle Not Interest,” his 1999 essay in the Independent Review:

If man can no more bind himself by contract than he can jump over his own shadow, how can he jump over his own shadow and bind himself in a social contract? He cannot be both incapable of collective action and capable of it when creating the coercive agency needed to enforce his commitment. One can, without resorting to a bootstrap theory, accept the idea of an exogenous coercive agent, a conqueror whose regime is better than anything the conquered people could organize for themselves. Consenting to such an accomplished fact, however, can hardly be represented as entering into a contract, complete with a contract’s ethical implications of an act of free will. [Emphasis in original]

In sum, the former claim—that contracts cannot be enforced—cannot then be used to conjure enforceable contracts out of a shadow. The latter claim—that people will cooperate on their own—means that no state is necessary in the first place. The conclusion Jasay reaches is that states, if they exist, may well be able to compel people to obey. The usual argument goes like this:

The state exists and enjoys the monopoly of the use of force for some reason, probably a historical one, that we need not inquire into. What matters is that without the state, society could not function tolerably, if at all. Therefore all rational persons would choose to enter into a social contract to create it. Indeed, we should regard the state “as if” it were the result of our social contract, hence indisputably legitimate.[6]

Jasay concludes that this argument must be false. As Robert Nozick famously put it in Anarchy, State, and Utopia (1974), “tacit consent isn’t worth the paper it’s not written on.” We cannot confect a claim that states deserve our obedience based on consent. For consent is what true political authority requires: not that our compliance can be compelled, but that the state deserves our compliance. Ordered anarchy with no formal state is therefore a better solution, in Jasay’s view, because consent is either not real or is not enough.

Of course, this is simply an extension of a long tradition in libertarian thought, dating at least to Lysander Spooner. As Spooner said:

If the majority, however large, of the people of a country, enter into a contract of government, called a constitution, by which they agree to aid, abet or accomplish any kind of injustice, or to destroy or invade the natural rights of any person or persons whatsoever, whether such persons be parties to the compact or not, this contract of government is unlawful and void—and for the same reason that a treaty between two nations for a similar purpose, or a contract of the same nature between two individuals, is unlawful and void. Such a contract of government has no moral sanction. It confers no rightful authority upon those appointed to administer it. It confers no legal or moral rights, and imposes no legal or moral obligation upon the people who are parties to it. The only duties, which any one can owe to it, or to the government established under color of its authority, are disobedience, resistance, destruction.[7]

Now for the other problem highlighted by Jasay, that of “limiting Leviathan.” Let us assume the best of state officials: that they genuinely intend to do good. We might make the standard Public Choice assumption that officials want to use power to benefit themselves, but let us put that aside; instead, officials genuinely want to improve the lives of their citizens.

This means a minarchist state is not sustainable. Officials, thinking of the society as a collective rather than as individuals with inviolable rights, will immediately discover opportunities to raise taxes, and create new programs and new powers that benefit those in need. In fact, it is precisely the failure of the Public Choice assumptions of narrow self-interest that ensure this outcome. It might be possible in theory  to design a principal-agent system of bureaucratic contract that constrains selfish officials. But if state power attracts those who are willing to sacrifice the lives or welfare of some for the “greater good,” then minarchy is quickly breached and Leviathan swells without the possibility of constraint.

I hasten to add that it need not be true, for Jasay’s claim to go through, that the concept of “the greater good” have any empirical content. It is enough that a few people believe, and can brandish the greater good like a truncheon, smashing rules and laws designed to stop the expansion of state power. No one who wants to do good will pass up a chance to do good, even if it means changing the rules. This process is much like that described by F.A. Hayek in “Why the Worst Get on Top” (see Chapter 10 of The Road to Serfdom) or Bertrand de Jouvenel’s Power (1945).

So, again, we reach a contradiction: Either 1) minarchy is not possible, because it is overwhelmed by the desire to “do good,” or minarchy is not legitimate because it is based on a mythical tacit consent; or 2) no state, minarchist or otherwise, is necessary because people can limit their actions on their own. Citizens might conclude that such self-imposed limits on their own actions are morally required, and that reputation and competition can limit the extent of depredation and reward cooperation in settings with repeated interaction. Jasay would argue, then, that constitutions and “parchment barriers” are either unnecessary (if people are self-governing) or ineffective (if they are not). Leviathan either cannot exist or else it is illimitable.

But That’s Not Enough

What I have argued so far is that destinationist libertarianism that is fully faithful to the self-ownership principle and the non-aggression principle could not be an effective governing philosophy. The only exception to this claim would be if libertarianism were universally believed, and people all agreed to govern themselves in the absence of a coercive state apparatus of any kind. Of course, one could object that even then something like a state would emerge, because of the economies of scale in the provision of defense, leading to a dominant protection network as described by Nozick. Whether that structure of service-delivery is necessarily a “state” is an interesting question, but not central to our current inquiry.

My own view is that libertarianism is, and in fact should be, a philosophy of governing that is robust and useful. But then I am a thoroughgoing directionalist. The state and its deputized coercive instruments have expanded the scope and intensity of their activities far beyond what people need to achieve cooperative goals, and beyond what they want in terms of immanent intrusions into our private lives.

Given the constant push and pull of politics, and the desire of groups to create and maintain rents for themselves, the task of leaning into the prevailing winds of statism will never be done. But it is a coherent and useful governing philosophy. When someone asks how big the state should be, there aren’t many people who think the answer is “zero.” But that’s not on the table, anyway. My answer is “smaller than it is now.” Any policy change that grants greater autonomy (but also responsibility) to individual citizens, or that lessens government control over private action, is desirable; and libertarians are crucial for providing compelling intellectual justifications for why this is so.

In short, I don’t advocate abandoning destinationist debates. The positing of an ideal is an important device for recruitment and discussion. But at this point we have been going in the wrong direction, for decades. It should be possible to find allies and fellow travelers. They may want to get off the train long before we arrive at the end of the line, but for many miles our paths toward smaller government follow the same track.

[1] Michael Munger, “‘Basic Income’ Is Not an Obligation, but It Might Be a Legitimate Choice,” Basic Income Studies 6:2 (December 2011), 1-13.

[2] Robert Sugden, “Can a Humean Be a Contractarian?” in Perspectives in Moral Science, edited by Michael Baurmann and Bernd Lahno, Frankfurt School Verlag (2009), 11–23.

[3] Gerald Gaus, “Why the Conventionalist Needs the Social Contract (and Vice Versa),” Rationality, Markets and Morals, Frankfurt School Verlag, 4 (2013), 71–87.

[4] For more on the foundation of Buchanan’s thought, see my forthcoming essay in the Review of Austrian Economics, “Thirty Years After the Nobel: James Buchanan’s Political Philosophy.”

[5] John Thrasher, “Uniqueness and Symmetry in Bargaining Theories of Justice,” Philosophical Studies 167 (2014), 683–699.

[6] Anthony de Jasay, “Pious Lies: The Justification of States and Welfare States,” Economic Affairs 24:2 (2004), 63-64.

[7] Lysander Spooner, The Unconstitutionality of Slavery (Boston: Bela Marsh, 1860), pp. 9-10. <http://oll.libertyfund.org/titles/2206>

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on March 05, 2018 at 23:42:40 pm

When so many male libertarians assert that women have fewer rights than they do over their own bodies. women tend to ignore that philosophy as just another way for men to force women to be their slaves in fact (despite Ayn Rand's own words on the subject of reproductive freedom).

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excessivelyperky
on March 16, 2018 at 09:55:07 am

What is your definition of "so many"?

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Benjamin Bachrach
on March 16, 2018 at 10:10:10 am

The flag pole question example misunderstands the distinction between moral and political principles. While trespass can always be considered a moral violation, the political question is what should be done when someone violates another's property rights. Did the violation harm the owner, if so what are the damages? People are not good judges of activities involving themselves. Thus we need (hopefully disinterested) third parties to adjudicate disputes. Maybe all that is necessary to make the owner whole, is to have the trespasser say sorry. But if the trespasser broke the flagpole, or caused a mess when climbing through the window then the damages could be more substantial. If the owner was concerned about someone landing on his flagpole, he should have bought insurance to cover his damages. Then the insurance company would have a right to recover their loss from the trespasser.

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Benjamin Bachrach
on March 18, 2018 at 00:06:20 am

Does nationalizing health insurance and creating an enormous cash entitlement for all citizens qualify as a “directionalist” policies libertarians should favor, Prof. Munger?

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Juan Manuel Pérez Porrúa Pérez
on March 19, 2018 at 08:42:46 am

Compared to what? That's the directionalist question. Our current health care system is already sucking down huge amounts of tax money. And our welfare programs, just in terms of cash, are more than enough to end poverty. So, my answer to your question is "no," IF we can reform the current system. Do you see any evidence that we can reform the current system? It's getting worse, not better!

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Michael C. Munger
on March 20, 2018 at 23:26:35 pm

Pre-paleoconservative Rothbard's voluminous production pointed toward a freely spontaneous market order sustained by a society under voluntary government. Some patriarchal examples might be found amongst Old Order Anabaptists in Ohio and Pennsylvania or even in Peshawar in Asia, but the misogyny makes them poor templates. Surely an anthropologist or sociologist has reported on real-life examples?

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Robert Williams
on March 28, 2018 at 14:59:28 pm

The flagpole question is another gotcha lifeboat ethics question. Unpersuasive.

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D Frank Robinson

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

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