Why I Am (Almost Certainly) Abandoning Libertarianism

Note: This is a series — that, quite frankly, I’m not sure anybody will be interested in reading, but whatever — on libertarian thought and where I stand in relation to it. Consider this part 1. Oh, and thanks to Jonathan Reed for his constructive feedback and criticism that helped me to shape my thoughts on this. 

Overview: In this article I intend to critique the (primarily Rothbardian) libertarian ethical philosophy of the non-aggression principle and utter sanctity of private property; to show these foundational pillars are inadequate when considered in light of certain moral situations, but ineffective even insofar as the primary appeal of libertarian political philosophy is to establish an impartial organizing principle among a pluralistic society. In both of these respects, I believe libertarianism, in its strong anarchistic presentation, fails. But the project as a whole — that is, of a more broad and less restrictive libertarianism (for example, minarchism, or libertarian-conservatism, possibly, anyway)  — I believe, can be redeemed through the support of a more robust moral theory — particularly that of traditional natural law. My second contention will be explored later; in this article I am only concerned with critiquing, rather than solving. Call me lazy if you want. You wouldn’t be wrong.  

I’ll start with what I think is the most obvious statement I can make. People do not usually come to their political affiliation through a searching examination of moral philosophy, hoping to develop a coherent and consistent worldview based on a deep yearning for a correct interpretation of reality. More often, it goes like this. A person latches on to some particular issue they care about, often emotionally — say, abortion or taxation or same sex marriage or what have you — locates whatever political party happens to match their position on that particular line of thought, and then unwittingly assumes virtually every position of that political party. They think — wrongly — that if that party agrees with them on that one, most important thing in their life (whatever that happens to be) they must, by default, be the more enlightened party and so must be right on everything else, as well. The errors of such a process of decision making should be so obviously egregious they hardly deserve comment. But does anybody seriously disagree that this is, in fact, just how many people go about becoming either a democrat or republican or libertarian or what have you?

Another possibility is this. A person is conservative because they grew up in the middle of Wisconsin and liberal because they were raised in New York City and Libertarian because Ron Paul was their family physician. No doubt geography and culture and familial heritage influence a person’s beliefs. But everything I have just said can serve only at most as an undercutting defeater of a person’s political and moral beliefs, but not a rebutting defeater. You often hear the same charge made against religion, particularly from those petulant and ever-agitated New Atheist types. “You are only Christian because you were born in Ohio. Had you been raised in Pakistan you would have been Muslim.” An undercutting defeater intends to demonstrate that the way a person came to hold a belief is not necessarily reliable, but it does not — and this is important — show that any particular belief is false (that would be a rebutting defeater).

Futhermore, the sharp edge of this “well, the only reason” approach typically cuts out the very branch the critic is resting upon, since the religious person (or vice versa) can just as easily respond that, had Mr. New Atheist been born in Pakistan, they would be a Muslim, as well. And the only reason they believe the things they do — or the only reason anybody here believes in equal rights, etc. — is because of their being born in American.

Now, typically a person, having thought about the matter for more than five minutes, will respond that being in America is not the only reason they believe in equal rights, etc., and so the religious person, or the conservative or liberal or atheist can say the same thing with respect to what they believe. So we must not take this charge too seriously, as common as it is. The only point I wish to bring up is that many people do, whether they admit to it or not, assume a political and religious (or non-religious) affiliation determined largely upon their geography and cultural conditioning. And that is itself, in my view, insufficient.

You might be wondering what all this — or rather any of it — has to do with libertarianism. We’ll get there. I am only, at this point, trying to establish that how many people come to hold a political position may not be entirely reliable, merely to invite a person to perhaps reconsider some of their views (as I am currently reconsidering mine), especially those which they may have merely assumed rather than examined.

My Personal, Political Background

I grew up in a mostly non-political home (though my non-immediate family members are heavily liberal) and abandoned religion in my teens because of my early interest in existential philosophy. H.L. Mencken brought me to Nietzsche and the rest, as they say, is history — that is, until, I found atheism completely unworkable (links on this below). And then, bringing the story forward about a decade, I became, not only a theist, but a Catholic. So while philosophy may have brought me away from faith, it was a continued and deepened study — particularly of natural theology and moral philosophy — that brought me back to the kneelers and smell of incense, or “smells and bells,” as some of my Protestant friends would say. This also, over time, significantly shaped my political outlook. People today ask what my political affiliation is, and I say: It’s all in the Catholic Catechism. Read that. But if I had to identify with any particular political party, perhaps libertarian would be closest, with certain, though often considerable qualifications. I must admit, however, that I am this-close to abandoning my libertarianism, since at this point it is so heavily qualified, I wonder if it’s even worth calling myself a libertarian to begin with. And that is the topic I would like to explore with you now.

Mere Libertarianism

Libertarianism, like Ben and Jerry’s Ice Cream, comes in many flavors. There are those so-called “hardcore” Rothbardian ancap (anarcho-capitalist) libertarians, and there are more Chicago-school libertarians (a la Milton Friedman), minarchists, and Hayekian libertarians somewhere in between, along with Ben Shapiro libertarians (something like libertarian-conservatism, perhaps? Though I’m not sure Ben falls exactly into that), etc., and, on the other end of the libertarian, ideological spectrum (depending on how you arrange such a spectrum, which itself is a project), anarcho-communist libertarians, syndicalists, and so on. That said, what brings many libertarians together — a “mere libertarianism”, if you will — is 1) a relatively deep suspicion of centralized power (typically in relation to the state, but also, in certain respects, businesses/corporations, as well, so far as they become state-like) and 2) a commitment, however tight or however loose, to the non-aggression principle with hopes of establishing an impartial, organizing principle for pluralistic societies. 

It is a common mistake to believe all libertarians are, by default, laissez faire capitalists, or advocates of unrestricted voluntary, market exchange, or whatever you want to call it. The anarcho-communist libertarians would take disagreement with this, at least until you’ve got some more precise definitions worked out. And so this brings in an entirely separate debate of who even gets counted as a libertarian to begin with. That is a debate I have no intention of attempting to solve now.

But here is the thing I believe most libertarian thinkers would agree on: The idea of societal–and specifically legal–impartiality. The proposal of libertarianism, predominantly through the non-aggression principle, is that adherence to such a “minimum effective” legality (or morality, as some would have it) would allow for social order in an otherwise pluralistic society, where people hold a wide range of diverging beliefs politically, socially, religiously, etc. I gladly concede that libertarian morality is, in effect, exceedingly minimal. What concerns me is that effective it may not be.

Perhaps it would be helpful to focus initially on what attracted me to libertarianism as a politically interested teenager, which just was the non-aggression principle. This starting moral (or legal, again, depending on who you read) axiom of libertarian thought is based on an agreement dedicated to not coercing people into things they haven’t consented to. One can perhaps immediately deduce from this that libertarians would be swift to reject anything like social contract theory — and generally, you’d be right. Simply put: It is wrong to interfere with an individual or their property by force. Now if you accept this as axiom, you can start to see where libertarians make the case against taxation, foreign invasion, conscription, and so on.

For example, if people have a right to property and if taxation is the coercive removal of that property, then taxation is tantamount to theft, according to many libertarian thinkers, anyway. Hence all the memes you see on the internet; some of which, I admit, are pretty funny. This is a point we can possibly revisit — we’ll see. For now, let it serve merely as a demonstration of how a seemingly extreme position falls out of an otherwise simple (and some would say obvious) starting premise. 

What attracted me to libertarianism as a frustrated, young person is it seemed to transcend the otherwise arbitrary collection of beliefs held both by liberals and conservatives by working itself out entirely upon the basis of a simple and (again, seemingly, at the time) sound moral principle.

But there are problems with the non-aggression principle — problems I have long struggled with — and even more so with the fundamental claim of impartiality which libertarianism hopes to promote within a pluralistic society.

A number of thought experiments, I believe, can show the problems inherent with the non-aggression principle, which is, in its strongest presentation, a form of moral absolutism, or the idea that context plays no role in determining right from wrong, good from bad. This is not to be confused with moral objectivity, which says there are, perhaps though contextually depend, truly right and wrong actions a person can take in life. A person can be a moral realist/objectivist and not a moral absolutist. That, I would say, is my position. But a further qualification must be made that, while some moral decisions may be context dependent (would you “lie” to protect an innocent hideaway from nazis, etc? — and is that even “lying” in any real sense to begin with?), others may not be. The murdering of an innocent human being, for example, does not seem to be something which can be morally justified under any circumstance, hence I would reject any form of “well, it’s for the greater good” mentality. (This aspect of libertarianism, especially when implied to drone strikes and collateral damage, has always appealed to me, and still does.) But does that hold generally for the non-aggression principle?

Imagine you are leaving the grocery store and see a grown man violently thrashing a young boy with a tire iron. While adherents to the NAP may generally say the young boy has a moral right to defend himself, it would also generally be considered an offense to the NAP if you assisted the young boy and restrained, by way of force, the grown man. (Doing so would obviously open up a “slippery slope” to engage in, say, foreign interventionism, which many libertarians hope to avoid, and for reasons that are, in many cases, entirely respectable.) But this is clearly the right thing to do, and we all know it. Nobody says you ought to kill the grown man, or even injure him if you can help it, but surely some degree of aggression is merited in this situation. And so far as this is true we can see, at a minimum, that the NAP must come with certain qualifications (and so the list begins, “it is wrong to use force, except…” until the axiom is so littered with exceptions you wonder why you bother using it in the first place.), otherwise it leads to situations that are clearly morally wrong, whereby following the NAP would have you contributing to an injustice, which leaving the boy to be beaten and possibly killed would surely be. This seems to me a fundamental problem with the NAP: Taken literally, it is too strict and leads to immoral outcomes given certain situations. Taken non-literally it becomes almost vacuous. What’s the point?

David Friedman, himself an anarcho-capitalist, gives a further example involving military invasion in his book The Machinery of Freedom, which goes something (but not exactly) like this. Imagine our country has no conscription (draft) and a very small army — or possibly no army — because of that. We have information, however, that a foreign invasion is coming which intends to kill off half the population and enslave the rest. Based on voluntary registration alone, our country’s defense is exceedingly paltry. We don’t stand anything close to a chance. Is it better, then, to conscript if we know in doing so we may very well be able to secure our country’s freedom and save the lives of so many of the people who live in it? In short: Is temporary slavery (if that’s what you want to call conscription) better than permanent slavery and annihilation? I will not attempt to answer this question, but leave it as an exercise for the reader with respect to the libertarian claim of impartiality, because clearly this seems like something rational parties in a pluralistic society could (and almost certainly would) disagree about, and so the NAP would not, in fact, be an effectively impartial organizing principle.

But there is another way to highlight this problem and with a much more current and real issue: abortion.

Many libertarians are pro-choice because they believe a woman’s body is solely her property and, therefore, whatever resides in her property is subject to whatever she decides to do with it. And to interfere with a woman’s decisions over her own property is to violate the non-aggression principle  — or so some would say (others, of course, argue that to kill the baby is to violate the non-aggression principle, so I hope you can start to see the problem, even given the NAP as a starting point.). Therefore, according to some libertarians, it is morally permissible to abort. Murray Rothbard famously took this position himself, even going so far as to call a child in the womb a parasite.

“What human has the right to remain, unbidden, as an unwanted parasite within some other human being’s body?” (For a New Liberty)

This, however, is scientifically incorrect, though rhetorically effective it may be. A parasite, by definition, entails a relationship between separate species. A child in the womb is not a separate species.

But put the parasite argument aside, as it’s not entirely clear if Murray meant that literally to begin with, I believe there is a much more fundamental contradiction at play, which, surprisingly, a man as intelligent as Rothbard was unable to see, or at least unable to admit.

The problem has to do with that between something having instrumental value or intrinsic value. And what we must realize is the NAP is only an appealing legal/moral axiom insofar as it affirms that people are intrinsically value, and, because of that, their lives and freedom and property and privacy, etc., should not be interfered with. So far so good… so far as it goes. But when we apply just a little more pressure, we can see certain cracks beginning to emerge. For example, with respect to property: Many ethicists we would say property is only something of instrumental value, if it has any value at all. And the reason we believe people have a right to property (if, that is, we believe people have a right to property, which most libertarians do) is because people are valuable in and of themselves and, and because they have a right to sustain themselves in existence, they have a right to acquire property in order to do so. Property itself is not intrinsically valuable. But human beings are intrinsically valuable. So property only acquires value in virtue of its relationship to the intrinsic value of human beings and its seeming necessity to support human life, since to deprive a person of the right to property is, as many Libertarians would argue, to starve them to death through the denial of what is commonly referred to as a “negative” right. In many respects, this is all very John Locke, though it surely has a basis in traditional natural law theory also. 

Now here is the fundamental logical obstacle with abortion. The case being made for abortion as a measure of respect for a person’s property is therefore elevating something only of instrumental value over something of intrinsic value, and it is here that have a straightforward contradiction. For example: We only care about a woman’s privacy or property because we only care about the value of a woman — more specifically human beings — to begin with. So in any case where we then put the value of property over the value of human life, we have undermined the very moral foundations we need for a respect of privacy or property to begin with, legally or otherwise. The position is philosophically unstable. To respect a woman’s’ privacy and property is, by either implicit or explicit admission, to respect the value of that woman by virtue of her inclusion in the human species, which we consider intrinsically valuable. But then to advocate for abortion — that is, the killing of an innocent human being — through privacy or property is just to erase the very thing of intrinsic value (human life) we need for anything of instrumental value. The position, in its final analysis, is logically unsupportable, and should give any serious libertarian pause who is currently pro-choice. Why this never gave Rothbard pause, I can only assume, is because he was so deeply committed to his utopian idea of anarcho-paradisio, that he just had to make the NAP work, come hell or high water, no matter the dead-baby body count, and so performed whatever mental gymnastics and cognitive contortions necessary to do so. This, I believe, has left him less of an effective intellectual than he could have been, and, unfortunately, a dogmatist to the wrong kind of religion: politics. All this coming from a committed Catholic convert, mind you. So I know a thing or two about dogma. Nobody — in my best Trump impression — is more dogmatic than me.

But put the abortion debate aside; we do not need settle that to see the more fundamental problem here being struck to libertarian philosophy, which is the appeal to impartiality, or a minimum effective way of establishing order in an otherwise pluralistic society. Also set aside the objection that libertarian philosophy would never work for a society where unreasonable (as most would consider them) people are flourishing or significantly influential–nazis, jihadists, etc. Let’s be as charitable as we can, and limit the impartiality claim to a pluralistic society of people who generally don’t think killing people who disagree with them is the best way of handling these kinds of human affairs. Does libertarianism still work? Well, it’s hard to see how, and this is where I am personally stuck, and may ultimately have to abandon the project entirely. Because what of disagreements, on say–and sorry to have to bring this up again–but abortion. Because either abortion is the direct killing of an innocent human being, or it isn’t. But if it is, then if the government has any role at all, surely that role is to protect innocent human life, and so this could very well be a possibility where some degree of aggression is merited, again leading to qualifications of the NAP, which is just what somebody like Rothbard was hoping to avoid. And surely that wouldn’t be impartial to people who think such a mandate somehow infringes upon their right to privacy or property, etc. Or — as another example, just to get off the abortion topic — pornography, which some feel is a form of sexual liberation and expression, and others a barbaric vice that degrades not only the sexual act itself, but women especially; particularly women who are kidnapped and enslaved for the very reason of producing pornographic material to begin with. While such a vice may not directly violate the NAP (except, obviously, in the latter example), many would argue the habit is so morally degrading that any truly good society should outlaw the production and viewing of pornography outright. Or the role of religion upon the state, or lack thereof. Or prohibition, drug restrictions, etc. Or people running around naked in plain sight. These are serious, incompatible issues, of which various positions are held among entirely reasonable parties. Libertarianism doesn’t seem to have any way to be impartial to these types of concerns, and so if Libertarianism has appeal precisely (and perhaps only) because it would be the most impartial way of organizing society and obtaining order in a pluralistic society, what we are saying is Libertarianism has just lost its appeal.

– Pat

PS – Of course, the libertarian can respond by saying in a society that adheres to the NAP, people can freely join communities (or societies within a society; a sub-society, let’s call it) where there are legal protections which they freely and contractually consent to (all privatized, by the way) that protect the newborn or outlaw pornography, heroine, running around naked, etc, but this, I believe, misses the point entirely. It’s not that the person who is pro-life only cares about the lives of babies who are born to persons who contractually assent to living in a pro-life libertarian sub-society. That is exactly what the pro-life position would reject. Pro-life advocates care about the lives of every person and every unborn baby, and so this solution is not a solution at all, quite frankly. It’d be just as absurd to say, “Well, if you don’t like slavery,  then just don’t live in a libertarian sub-society that practices slavery!” Obviously, the people who’d join such a pro-life sub-society aren’t probably going to opt for an abortion to begin with. It’s precisely the people who wouldn’t join a pro-life society that the pro-life advocate is concerned about. And so we’re right back at the problem we began with. Either the NAP is ineffective, or qualified to the point of becoming almost entirely uninteresting.

That said, I have not made my mind up about this issue. I’m willing to entertain how these problems could be solved within a libertarian framework. If you feel you have just such a set of proposals, and are willing to share, then allow me to read your thoughts in the comments below.  

PPS – Another problem that I believe plagues the NAP is a recognition only of negative, but not positive, rights. I will save this critique for a future post — part 2, perhaps. And while I am greatly against socialism and proposals of government systems of healthcare, etc, — for reasons, I should add, of prudential, economic consideration on the latter part, rather than outright moral objection — I do believe a sound moral case can be made for positive obligations (call them rights, if you wish) that one person owes to another. For example: children have a positive right to be cared for and instructed by their parents. Parents have a positive right to be listened to and obeyed by their children. Etc, etc.

Note, however, that traditional natural law theory would put certain, practical limits upon these positive right claims when appropriately drawn out. Children have a right to be cared for by their parents, since part of human nature is properly ordered to the having and raising of children. But what of Rothbard’s critique upon the danger of this “right to life” when citing Judith Thomson?

“If I am sick unto death, and the only thing that will save my life is the touch of Henry Fonda’s cool hand on my fevered brow, then all the same, I have no right to be given the touch of Henry Fonda’s cool hand on my fevered brow.” (The Ethics of Liberty)

Of all people, Rothbard, who himself was a proponent of traditional natural law theory, and propounded a defense of such in this very treatise, should have detected the disanalogy. By nature people are not generally ordered (“aimed at”, “pointed to”, etc) at keeping dying people alive by the laying of hands. Put aside the even more obvious error of there being a quite significant difference between a person who is in a state of imminent death requiring extraordinary means to survive, versus the person who is otherwise healthy and in need of reasonable, everyday provisions: in short, of basic love and care. Under natural law theory, our positive moral obligations take into account matters of proximity, relationship and circumstance (because I have an obligation to keep my kids alive does not mean I have an obligation to keep everyone in the world alive, nor is it clear how I could possibly do so; the whole “ought implies can”, etc), none of which would be sufficiently satisfied by this bizarre thought example to merit forceful, legal intervention into the life of Henry Fonda. To me, there seems to be an irrational and logically unsupported fear that if one opens the possibility of what are altogether obvious positive moral obligations, one must accept universal health care or the (albeit temporary) enslavement of certain celebrities, which, for anybody who examines the implications of traditional natural law seriously, is entirely ridiculous with respect to the latter, and certainly doubtful (even if up for debate) with respect to the former.

Final PS – Regarding “taxation is theft.” I believe the problem with this argument generally is that it assumes people have an absolute right over their property; in other words, they can do whatever they want with it. But surely this isn’t the case. If somebody walking their dog through the neighborhood accidentally trips and falls into my yard, do I hold such an absolute right over my property that I can, if I so decided, bayonet this person? Obviously not. But examples like this show that having an ownership claim entails, at most, a bundle of rights, and perhaps even a very large bundle, but not an absolute bundle. That is, there may be certain, extenuating circumstances where the moral claims of another may merit the withholding or relinquishing of some personal right to property to advance the basic and necessary good of another. Somebody is dying of dehydration in the woods. You own a nearby, abundant preserve of fresh water, and they decide to help themselves rather than suffer death. Is this theft? I would argue, no it is not. Our right to property comes — that is, if it comes from anything at all — from a combination of natural resources mixed with labor. By justice we are all entitled to our share of natural resources which are needed to sustain life. So even if our claims to private property are strong because of the labor we mix with resources, again, there are circumstances (even if they are rare) where a moral argument could be made for the withholding or relinquishing of that right because of the immediate peril posed to another if such withholding or relinquishing did not occur. And somewhere in there we have a moral basis for taxation, if only to provide for those who really and truly cannot provide for themselves. Please understand: I am still libertarian on the practical (read: impractical), negative, economic consequences of taxation, especially high taxation. But that’s a separate argument and something we’ll have to save for later.

Final Note: I am not saying that in a libertarian society people would become so utterly cruel as to deny a person of fresh water if they had some to give. Only in exceedingly rare — and, quite frankly, demented — circumstances do I think that would occur. The point of this illustration is not to argue how people *would* act under a libertarian legal framework, but only to show that which is lacking in the moral proposal of property rights as absolute.