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Libertarians typically justify their beliefs in terms of civil liberties and human rightsREJECTING LIBERALISM FREEDOM, RIGHTS, AND LIBERTARIANISM Humanism is a valuable tradition. It has spoken with eloquence for liberty, tolerance and human rights. It provides an attractive foundation for government, a foundation that stems from fundamental respect for the individual. This foundation supports a reasonable and flexible view of government, one that fits with democratic traditions. Libertarianism is different. It denies the humanist view that the purpose of government is to enable citizens to improve their lives, but instead claims government should do as little as possible, period. Despite its incompatibility with humanism, libertarianism is popular today. This is understandable. Libertarianism is just a generalization of laissez faire, from the doctrine that government should not interfere in the economy to the claim that government should not interfere in anything. Given the popularity of laissez faire, it is understandable that libertarianism should be politically correct. Still, given the flaws inherent in laissez faire, we may wonder if libertarianism might be similarly flawed. In light of the contributions governments have made, we may also wonder why libertarians are so eager to summarily rule out any government interference. Given these contributions, we might think that libertarians must have powerful arguments to justify their desire to eliminate, or at least minimize, government. But the proposed justifications of libertarianism do not work. Laissez faire cannot support libertarianism, given how poorly it performs in its own field. Even the standard libertarian appeal to liberties, rights and freedoms raises more questions than it answers. Libertarians typically justify their beliefs in terms of civil liberties and human rights. They claim government interference is wrong because it jeopardizes these. Of course, liberty and human rights are unobjectionable. Since the Enlightenment the notion that each person has inalienable rights to life, liberty, conscience, and the pursuit of happiness has become a tenet of nearly all societies. We fought our Revolutionary War to defend our liberties and rights. Surely, no one would find fault with these institutions. Still, it is possible to be a champion of civil liberties and human rights and also a staunch opponent of libertarianism. Despite the roles liberty and rights play in our political system, we have given them little thought. Libertarians assume that the nature of these concepts is self-evident. Wrong! Careful analysis is needed if liberty and rights are going to be the basis of a political doctrine. For despite our knowledge that they are good, even the simplest questions about them do not have easy answers. What are rights? Our founding fathers talked about civil liberties, but also about inalienable rights. Are these the same? The Bill of Rights addresses civil liberties, rather than rights, in that its primary concern is to limit government action, not to facilitate intervention to provide rights. Is this a meaningful distinction? What is the source of rights? (People have argued about this for centuries.) Do all living beings have rights? Do living beings that have feelings have additional rights? Do sentient beings that are intelligent have yet additional rights? Do governments have rights? If so, what bestows rights on a government? Is it possible to give away rights or barter rights? Are certain rights inalienable while others are negotiable? What makes a right inalienable? What is it to violate a right? Presumably, a civilian retains his right to life even after being drafted. Suppose an enemy sniper shoots and kills him. Has that sniper violated his right to life? Does it matter whether the shooting takes place on the battlefield or in a hospital? Consider a person confined to a wheelchair. Does the lack of a ramp to a public building violate his right to enter that building? Or does he still have that right — nobody may eject him — even though he may be physically incapable of exercising it? Similarly, does a person’s right to see imply an obligation of society to provide him with glasses? If you drive while intoxicated, is it wrong to violate your right to drive on public roads? Or have you relinquished that right? What is it to involuntarily relinquish a right? In the same spirit, what happens to the inalienable right to liberty of a convicted felon? People speak of infringing on rights. Is that the same as violating rights? If you have the right to drive on public roads, is requiring you to take tests evaluating your eyesight, driving ability, and knowledge of the rules of the road infringing on that right? Is collecting a toll or requiring a license infringing on that right? If you have a right to bear arms, is requiring a license infringing on that right? Not only is the nature of rights far from evident, but rights commonly conflict with one another. These conflicts pose practical, as well as theoretical, problems. It is widely agreed that all people have the right to the benefits afforded by new medical technologies. But it is also claimed (in the 1948 U.N. Declaration of Human Rights) that individuals have the right to profit from scientific devices they invent. Where resources are limited, these rights may be mutually incompatible. Do you have the right to consume mass quantities, if doing so condemns others to starvation? Some religious communities bar women from education. Yet women, as much as men, have a right to an education. At the same time, communities have a right to practice religions of their choice. What determines the rights of a religious community? Rights of individuals, religious groups, and the state have often come into sharp conflict. How do you adjudicate such conflict? (Did the Indian government have the right to ban the Hindu practice of suttee?) Libertarians claim that government necessarily endangers our rights. To the contrary! Without a code of law and a government capable of enforcing that law, there can be no meaningful rights. (What is the significance of the right to anything if you have no recourse against someone bigger and stronger taking it away?) Even contractual rights presuppose government and a legal framework within which contracts are defined and enforced. Given that rights require at least the potential for government intervention, the libertarian notion that government is bad because it interferes with our rights is strange, indeed. Rights to receive material benefits illustrate independent problems. Long before the welfare state, Article 21 of the French Declaration of Rights of Man and the Citizen (1793) stated: “Public assistance is a sacred duty. Society owes subsistence to unfortunate citizens, whether in finding work for them, or in assuring the means of survival of those incapable of working.” More recently, Article 25 of the Universal Declaration of Human Rights claims each person has a right to “a standard of living adequate for the health and well being of himself and of his family, including food, clothing, housing, medical care, and necessary social services.” But rights entail obligations. It is common that rights are to do something (to believe or speak as one wishes, to own property, to vote, to bear arms), so that the corresponding obligation, applicable to everyone, is an obligation to not interfere. Rights against unlawful seizure or arrest entail an obligation of the police to refrain from certain actions. Rights to equal treatment under the law entail the obligation of judges and juries to be impartial. For a broad class of rights, it is clear what the obligation is and to whom it applies. Rights to receive something (except for contractual rights, which specify who is obliged to provide the benefit) are more problematic. Who is obliged to provide the entitlement? If rights to receive entail societal obligations, are these obligations of every society? If we are talking about rights to economic goods, this is unreasonable, for there are impoverished societies incapable of providing material benefits. What distinguishes societies that are obliged to supply entitlements from those that are not? If a society is too poor to provide entitlements, does the obligation to provide them fall on the international community? These considerations extend to other rights. Just as a government may be too poor to provide entitlements, it may be too poor to pay a police or firefighting force to protect private property. Libertarians often argue that while it is appropriate for government to protect private property and insure the integrity of the free market, it is inappropriate to redistribute wealth by providing material entitlements. But the protection of private property is an entitlement that can cost as much money and redistribute as much wealth as entitlements to food or medical care. If the tax system is not steeply progressive — and ours is not — then government protection of private property redistributes wealth, but redistributes it upwards, from the middle class to the wealthiest, who benefit most from this protection. What is the difference between the entitlement to the protection of private property and entitlements to adequate shelter, medical care, and nutrition such that it is appropriate for government to provide the former, but not the latter? If these questions about rights are difficult, this is because, contrary to the implicit libertarian message, the nature of rights is complex and subtle. It requires careful analysis. Freedom, too, is a subtle notion. Most who have written about freedom — even committed anti-libertarians — mistakenly equate freedom with license. In Slouching Towards Gomorrah, Robert Bork criticizes the liberal tradition for seeking to maximize freedom, to remove all constraints on action. Kant, by contrast, saw that freedom requires self-discipline. An addict is a slave to his addiction and is hardly free, even if he has no external constraints. Similarly, a person who is manipulated into beliefs and actions is not free, even if he has no external constraints. Replacing external constraint by understanding and commitment to internal restraint, encouraging the autonomous obedience of moral laws just because they are moral, is a worthy program, necessary to freedom. (To the extent this is part of the liberal tradition, so much the better for liberalism.) Basing a theory of government on the goodness of rights, freedom and liberty may sound appealing; but without careful analysis it is just empty sloganeering. Significantly, careful analysis does not support the libertarian position. “[R]ights should be associated not with a hands-off but with a liberal, as opposed to authoritarian, regulatory style.” (Holmes and Sunstein, The Cost of Rights, p. 154.) Rather than reflecting an understanding of the nature of liberty, freedom and rights, the libertarian position reflects a visceral reaction to the tension between liberties and rights, to the conflict caused by the fact that every right entails an obligation and so restricts liberty. Libertarianism values liberties, as opposed to rights. In the extreme, we would be in Hobbes’s state of nature. If less government is automatically better, the government that governs best does not govern at all. We would have complete liberty do anything we wish, but no rights — since others would have the liberty to violate any such rights. Despite, and because of, unconstrained liberty, a world of this sort would be an unpleasant and dangerous place. As Isaiah Berlin noted, freedom for the wolves means death for the sheep. Hobbes depicted the pre-government state of nature, characterized by unlimited liberty, as “ ...that condition which is called war, and such a war, as is of every man against every man... [takes] no account of time; no arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.” (Leviathan, chapter 13.) That condition is so miserable that any government, even a despotic one, would be an improvement. For this reason, Hobbes concluded, “No Law can be Unjust.” What a remarkable consequence of pure libertarianism! Some libertarians admit that their position, taken to an extreme, is unacceptable. They concede there could be no society without the ability of government to deter violence and fraud, to force citizens to obey laws. They claim the principle of non-intervention is not intended to be taken to an extreme. There are necessary rights that government must protect, but government interference should be restricted to the protection of just those necessary rights. This raises further questions. Are certain rights more important than others, so that government should protect only those essential rights? What makes those rights so important? Why, in general, should liberties be preferred to rights? In the face of such questions, it is doubtful an acceptable libertarian position could be articulated, much less justified. Libertarians tend to be particularly sensitive to economic liberties. They agree that we have the rights to our own bodies and to the product of our labors, but insist that nothing should constrain our liberty to exchange our labor for various goods. Presumably, if we were sufficiently desperate, we could sell ourselves into slavery in a futures market for labor. This in itself raises questions. The most urgent of these has implications for the role of government. Having greater physical power does not give anyone the right to injure, or even threaten, others. It is appropriate for government to interfere to protect our right to be free from physical intimidation. Do similar considerations govern economic power? Suppose Mr. Sluggo is in a position to fire Mr. Bill from a job he desperately needs. Is he entitled to extract anything at all from Mr. Bill in return for not firing him? After all, Mr. Bill does have the freedom to refuse the offer. And libertarians insist that economic interactions within the scope of the free market involve decisions made of one’s own free will and are therefore unobjectionable. But if Mr. Sluggo had pointed a gun at Mr. Bill’s head, offering to not pull the trigger in return for anything at all, Mr. Bill would have the very same freedom to refuse the offer. In both cases, refusal may mean death. But there is still the “freedom” to refuse. Is there a relevant difference between the two situations, based just on the difference between economic and physical extortion? If there is no relevant difference then it should be just as legitimate for government to protect Mr. Bill from economic extortion as from physical extortion. Yet many libertarians, even those who admit we have physical rights and that it is a legitimate function of government to protect us from physical extortion, adamantly deny there are corresponding economic rights. They deny it is a legitimate function of government to protect us from economic extortion. (There is irony in this denial. Marx’s most important error may have been his failure to appreciate the extent to which government intervention to limit economic extortion would increase standards of living for the proletariat, and even the capitalists. Intervention by European governments to implement radical suggestions Marx himself had made in The Communist Manifesto — to end child labor, to provide free education, to institute a progressive income tax — may be the primary reason Marx’s prediction of necessarily increasing misery of the working class failed to materialize. This may explain why communist revolutions did not take place in advanced states, as Marx had predicted, but rather in peripheral peasant economies in which governments did not intervene on behalf of their citizens. So it is ironic that while Marx denied the possibility of independent political action, libertarians deny its propriety.) Extortion is extortion. Why should it matter whether it is physical or economic? Libertarians insist that government must protect against physical extortion, but that it may not protect against economic extortion. Yet they fail to find a relevant difference between the two. As a result, libertarianism lacks coherence. Why, then, is this doctrine popular with many of our brightest minds? To answer this, it is necessary to address the tacit presuppositions underlying the characteristic non- or minimal-interference principle of libertarianism. |
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