Illiberal libertarians: Why libertarianism is not a liberal view

Philosophy and Public Affairs

Volumn 30, Issue 2, 2001, Pages 105-151

  Freeman, Samuel ^a  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

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EID: 3042681013     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.2001.00105.x     Document Type: Article

References (140)

1. Mill says he is a utilitarian, but he understands that doctrine differently than classical or contemporary utilitarians. For Mill "individuality" and the exercise and development of higher capacities, including a sense of justice, form the larger part of individual well-being (see Utilitarianism, chap. 2
2. and On Liberty, in On Liberty and Other Essays, edited by John Gray [Oxford: Oxford University Press, 1991], chap. 3).
3. See also Rawls's suggestion that Mill endorses a "liberalism of freedom" rather than a "liberalism of happiness" that is based in utilitarianism or welfarism. John Rawls, Lectures in Moral Philosophy (Cambridge: Harvard University Press, 2000), pp. 330, 343, 366.
4. Some may object that "high liberalism" is tendentious, but the term no more implies moral superiority to classical liberalism than "High Renaissance" implies that Raphael's art is superior to Botticelli's. To call it "welfare liberalism" 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's denial that he is arguing for the welfare state). See John Rawls, A Theory of Justice (Cambridge: Harvard University Press, revised edition 1999), pp. xiv-xvi, in Preface for Revised Edition.
5. Locke's writings allow him to be interpreted either 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 market economy, the dispute whether Locke is a classical or high liberal may have no definite answer. For instructive accounts of Locke on property and economic justice, see A. John Simmons, The Lockean Theory of Rights (Princeton, N.J.: Princeton University Press, 1992), chaps. 5 and 6;
6. Jeremy Waldron, The Right to Private Property (Oxford: Oxford University Press, 1988), chap. 6;
7. and James Tully, A Discourse on Property (Cambridge: Cambridge University Press, 1980).
8. Jeffrey Paul, for example, refers to Nozick's libertarianism as the "recent successor of Lockean liberalism." Reading Nozick, edited by J. Paul (Totowa, N.J.: Rowman and Littlefield, 1981), p. 4.
9. T. M. Scanlon says Nozick's book is "liberal in the nineteenth century sense of the term." "Nozick on Rights, Liberty, and Property," in Reading Nozick, p. 107.
10. Nozick himself claims he relies on a "classical liberal notion of self-ownership" (Anarchy, State, and Utopia (New York: Basic Books, 1974], p. 172 [ASU in further citations]).
11. My purpose is not to establish "bragging rights" to the honorific term 'liberal', but rather to point to a fundamental difference in principles and institutions and to locate the principles that libertarians really endorse that lead to this difference. If anyone wants to continue calling libertarianism a "liberal" conception, this is fine so long as its differences with other liberal views are understood as significant. But to categorize libertarianism as a form of liberalism obscures what is really distinctive about both views.
12. After nearly two centuries of religious strife and civil war, enlightened opinion gradually began to accept that a religious confession 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's introduction to his Political Liberalism (New York: Columbia University Press, 1993, paperback ed. 1996), pp. xxiv-vi;
13. see also John Gray, Two Faces of Liberalism (Oxford: Blackwells, 2000), chap. 1.
14. See Mill, On Liberty, chap, 1, pp. 16-17, near the end of the chapter.
15. See Rawls, Political Liberalism, lecture 8, p. 291
16. for Rawls's list 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.'
17. See Rawls, Political Liberalism, p. 335
18. where Rawls says that denial of freedom of movement and occupation violate the liberty and integrity of the person. In A Theory of Justice, p. 61/53
19. and Political Liberalism, p. 298, Rawls says that the right to hold personal property is part of freedom of the person.
20. 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, Theory of Justice, sec. 38.
21. For example, a person's freedom of speech can be limited if it causes imminent violence or fear thereof (e.g., threats, conspiracies, or inciting to riot), or deceptions regarding property (prohibitions against fraud or false advertising), or unjustifiable injury to personal integrity (restrictions against private libel, or breach of privacy). These are examples of what Rawls means by "liberty can be limited only for the sake of liberty." See Rawls, Theory of Justice, sec. 39.
22. and Political Liberalism, chap. 8.
23. 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 freedom of occupation and control over one's person. At any time a person may quit and take up another career (although usually not the same career for the period covered by exclusive services contract). For example, a professional athlete can retire and take up another line of work, but cannot compete in the same sport for another team during the term of his contract.
24. A prisoner obviously surrenders some of his basic liberties - freedom of association, freedom to pursue his good, freedom of movement, and normally the right to vote, but not liberty of conscience or all freedom of thought and expression.
25. See Mill, On Liberty, chap. V, pp. 113-15;
26. Rousseau, Social Contract, book I, chap. 4
27. "On Slavery," in Rousseau, The Basic Political Writings, translated by David A. Cress (Indianapolis: Hackett, 1987), pp. 144-47.
28. In The Metaphysical Elements of Justice, translated by John Ladd (New York: Library of Liberal Arts, 1965), p. 98 (Ak VI:330), Kant says: "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 contract only insofar as he is a person."
29. In "On the Proverb: That May Be True in Theory but Is of No Practical Use" (Ak VIII:293, quoted in Perpetual Peace and Other Essays, translated by Ted Humphrey [Indianapolis: Hackett, 1983], p. 75) where Kant says that no person can lose his equality as a person except through transgression; equality cannot be alienated "through a 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."
30. See Joel Feinberg, Harm to Self (Oxford: Oxford University Press, 1986), pp. 94-97.
31. The argument that follows in the text assumes that one does not have to be a Kantian to recognize the following: duties of mutual respect and mutual aid; that inflicting 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. Utilitarian and natural law theories can accept all of these as legitimate reasons.
32. Brian Barry emphasizes that a right of exit is essential to freedom of association. See his Culture and Equality (Cambridge: Harvard University Press, 2001), pp. 148-62.
33. 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 slavery due to youthful exuberance, indiscretion, or desperation. Am I under a legal and moral duty to turn her in? Wouldn't I be guilty of more than one crime if I did not: not simply aiding and abetting, but also crimes of property such as conversion and receiving stolen goods? How can I fulfill my legal and moral duties in this society without harming this person, and treating her according to rules appropriate for things? The example can be developed in other disturbing directions. Suppose the slave's owner is a pimp. Does this mean forcing the slave to engage in involuntary intercourse is 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's permission? Whatever the case, if slavery agreements are permissible we have to assume it would be wrong, morally as well as legally, for third parties to interfere to prevent coerced sex.
34. The public recognition of all as civic equals and as free is crucial here. This means that the liberal case for inalienability does 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 exercise the coercive powers of the state to enforce servitude contracts. All we ask is that beneficiaries have immunity from criminal laws 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. (After all, 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 exercised excessively, or to undermine the public good. Central to the liberal public good is maintaining the civic status of persons as free and as equals. Basic rights are the primary means 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 appropriate for their exercise. For this reason a government cannot sit idly by while one person seeks self-enforcement of a servitude contract.
35. This is not a term Locke used; indeed, he rarely referred to "natural rights" at all. Cf. his reference to "that equal Right that every man hath, to his natural Freedom" (Second Treatise, paragraph 54, in John Locke, Two Treatises of Government, edited by Peter Laslett [Cambridge: Cambridge University Press, 1960], p. 304).
36. See Locke's Second Treatise, par. 73, 120, 138, 139, for clear indications that government has the authority to regulate property, tax it, and burden it for the public good.
37. Of course, they could not be basic in the defined sense implying inalienability, if particular property rights are to retain their status as freely transferable.
38. The term "absolute property" derives from J. S. Mill's Principles of Political Economy, "Of Property," book III, chap, i, section 3.
39. Mill distinguishes absolute from "qualified 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.
40. Kant, "On the Proverb: That May Be True in Theory But Is of No Practical Use," p. 74.
41. The phrase "system of natural liberty" derives from Adam Smith's The Wealth of Nations (New York: Random House Modern Library, 1937), book IV, chap, ix, p. 651.
42. David Gauthier approvingly quotes the relevant passage in Morals by Agreement (Oxford: Oxford University Press, 1986), p. 83.
43. See Rawls's account of "fair equality of opportunity" (Theory of Justice, pp. 73f./63f., section 14, also section 46;
44. and Political Liberalism, pp. 184, 284, 3630.
45. On the relevance of adequate health care to Rawls's principle of fair equality of opportunity, see Norman Daniels, Just Health Care (Cambridge: Cambridge University Press, 1987).
46. Nozick makes this argument in ASU, pp. 235-39.
47. This may be true of Locke even in his day. See Locke, First Treatise, paragraph 42, in Two Treatises of Government, p. 170, where he says God "has given no one of his Children such a Property, in his peculiar Portion of the things of this World, but that he has given his needy Brother a Right to the Surplusage of his Goods, so that it cannot justly be denied him, when his pressing Wants call for it."
48. For Kant, see Metaphysics of Justice, Ak VI:326 in (Ladd trans., p. 93)
49. By "the General Will of the people… government is authorized to require the 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. John Simmons, The Lockean Theory of Rights, pp. 327-36.
50. Friedrich Hayek, The Constitution of Liberty, pp. 285-86, makes the Hobbesian argument that "poor relief" is instrumental to preventing widespread theft and disorder. Hayek endorses society's "duty of preventing destitution and providing a minimum level of welfare," but rejects the "welfare state" since it aims at "egalitarian distribution" (p. 289).
51. 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: University of Chicago Press, 1976), p. 87, on society's interest or duty to provide "an assured minimum income, or a floor below which nobody need to descend." Milton Friedman seems to advocate a public charity position based in beneficence; he states a need to "assure a safety net for every person in the country, so that no one need suffer dire distress."
52. See Milton Friedman and Rose Friedman, Free to Choose (New York: Avon Books, 1979), p. 110; see pp. 110-17 on the negative income tax as the way to provide this "safety net."
53. See Rawls, Theory of Justice, pp. 270-74/239-42, 280-82/247-49, on the compatibility of the Difference Principle with both liberal socialism and a "property-owning democracy."
54. 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 for by markets. For a discussion of public goods, see Rawls, Theory of Justice, sec. 42.
55. Smith, Wealth of Nations, book IV, chap, ix, p. 651;
56. Smith, Wealth of Nations, book V, chap. I, pt. 3, p. 681ff.
57. On this, see John Gray, Liberalism (Milton Keynes: Open University Press, 1986), p. 27;
58. and Stephen Holmes, Passions and Constraints (Chicago: University of Chicago Press, 1995), chap. 1.
59. Also Friedrich Hayek, The Political Order of a Free People (Chicago: University of Chicago Press, 1979), pp. 55 and 187, n. 13.
60. See note 32 for Smith on "public works." On Smith's concern for the poor, see Holmes, idem. It is noteworthy that Smith takes the English Poor Laws for granted, and does not object to public charity (Wealth of Nations, p. 135ff.).
61. He objects rather to the "settlement" requirement (that to be eligible for poor relief, it must be publicly known that one is a resident for at least forty days), since it discourages the "free circulation of labor," and freedom of movement and freedom to choose one's place of residence ("an evident violation of natural liberty and justice," Wealth of Nations, p. ibid., p. 141).
62. Even for Nozick, where the minimal state legitimately acquires a natural monopoly on political power, it has no right to claim political authority or the authority of monopoly rule (ASU, p. 108).
63. See H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961), chap. 10, who argues against the position that coercive sanctions are a precondition for law and a legal system.
64. Continuity of rule does not mean that the form of government or political constitution itself is necessarily permanent. Locke for example envisions the possibility that the Body Politic might "set Limits to 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 permissibility of periodic constitutional conventions, where the form of government is reconsidered by the People. Thomas Jefferson went further and argued for a need for periodic constitutional conventions, so that the Body Politic could reconsider and recommit itself to the Constitution with each successive generation of its members. Thanks to an anonymous reviewer for this journal for drawing my attention to Locke's position.
65. The doctrine of divine right contemplated that the Crown was responsible to God in exercising private power. Still, the Crown was beholden to no one on earth. Political power remained unlimited de facto and by positive law, if not by moral right.
66. See Joshua Cohen, "Structure, Choice, and Legitimacy: Locke's Theory of the State," Philosophy & Public Affairs 15, no. 4 (1986): 301-24, on Locke's argument against a universal franchise and for a "property owner's state."
67. Here it should be noted that there is much disagreement among libertarianism's major proponents. Nozick argues, contrary to anarchical libertarianism, that a minimal state's monopoly on political power is legitimate and necessary to protect rights and entitlements. There are also disagreements over the philosophical foundations of libertarianism (contrast Nozick's Kantian and Lockean foundations with Narveson's Hobbism). 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.
68. Nozick, ASU, pp. 33-35;
69. Murray Rothbard, "Society Without a State," in The Libertarian Reader, edited by Tibor Machan (Totowa, N.J.: Rowman and Littlefield, 1982), p. 54.
70. See here G. A. Cohen's discussion of libertarians' moralized concept of freedom in "Capitalism, Freedom, and the Proletariat," Liberty, edited by David Miller (New York: Oxford University Press, 1991), chap. 8;
71. also, "The Structure of Proletarian Unfreedom," in Cohen's own History, Labor, and Freedom (Oxford: Oxford University Press, 1988), p. 256.
72. This is also true of Jan Narveson's use of David Gauthier's version of contractarianism to argue for libertarianism. Following Gauthier, Narveson appeals to a "Lockean 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 prior to the social contract (The Libertarian Idea (Philadelphia: Temple University Press, 1987], pp. 175-77).
73. See Nozick, ASU, pp. 160-64, which contains Nozick's famous Wilt Chamberlain example and the claim that income tax "is on a par with forced labor."
74. See Jonathan Wolff, Robert Nozick (Stanford: Stanford University Press, 1991), pp. 83-92, for a valuable discussion.
75. Narveson, The Libertarian Idea, p. 66. "The idea of libertarianism is to maximize individual freedom by accounting each person's person as that person's own property (p. 175).
76. Murray Rothbard, Power and Market (Kansas City: Sheed Andrews and McMeel, 1977), p. 238.
77. See also John Hospers' definition of libertarianism as "the doctrine that each person is the owner of his own life, and that no person is the owner of anyone else's life." "What Libertarianism Is," in The Libertarian Alternative, ed. Tibor Machan (n.p: Nelson-Hall, 1974).
78. Others have made similar but more detailed observations about the centrality of 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: Cambridge University Press, 1995);
79. see also Jonathan Wolff, Robert Nozick, pp. 7ff., and p. 29.
80. See the original version of Cohen's "Self-Ownership, World-Ownership, and Equality," Justice and Equality Here and Now, edited by Frank Lucash (Ithaca: Cornell University Press, 1986).
81. 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. See Rothbard, Power and Markets, p. 1.
82. Nozick again is more nuanced: "People do not conceive of ownership as having a thing, but as possessing rights… which are theoretically separable" (ASU, p. 281). Still, he assumes that initial appropriation of un-owned things bestows plenary property rights.
83. For example, at early common law the "fee entailment" prohibited owners from alienating their estates; landed estates passed by law to the eldest surviving male issue. Entailments were abolished with the predominance of the market system.
84. U.S. law rarely utilizes the concept of ownership. The most common concept used is "property interest," of which there are different kinds, each of which is distinguished by various rights and duties.
85. Libertarians and other proponents of self-ownership commonly claim that private 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 institutional context. Libertarians usually assume, without much argument, that absolute plenary property rights follow from appropriation in a state of nature. For a fuller statement of the Rawlsian conception of property relied on here see my "Property as an Institutional Convention in Hume's Account of Justice, Archiv fuer Geschichte der Philosophie 73, no.1 (1991): 20-49;
86. and "Morals by Appropriation," Pacific Philosophical Quarterly 71, no.4 (1990): 279-309.
87. 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. Locke did not endorse the libertarian idea that persons stand to their person in the same relationship that they stand to property in things. His social contract doctrine relies on the law of nature that persons do not have the light 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).
88. On Locke's use of "property" see Simmons, The Lockean Theory of Rights, 226 ff.;
89. and Tully, A Discourse on Property, p. 116.
90. Nozick, ASU, p. 58.
91. Nozick, ASU, p. 331; see also p. 283
92. 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 informed consent is binding precisely because it expresses (or represents, or even constitutes) 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.
93. Nozick's Lockean Proviso (that no one can be made worse off than in a state of nature) would not appear to prevent such an eventuality since its purpose is to put limits on appropriations of unowned things, and not on transfer of original rights in oneself. See ASU, pp. 175-82.
94. Libertarians may object that the same can be said of democracy, understood as bare majoritarianism. "Just because democracy could result in totalitarianism does not mean that anything is necessarily wrong with democracy." I disagree, for the conceptual possibility shows the moral limitations of majoritarian democracy. Pure majoritarianism - the view that whatever the majority wills is fair, just, or even legitimate - is unreasonable. Majority rule needs to be subsumed within some larger democratic 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 majoritarianism as an adequate account of justice, but people do advocate libertarianism as adequate, even though it puts no restrictions on permissible distributions.
95. Here further consideration needs to be given to the libertarian's insistence (mentioned 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 criminal 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 liberal 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.
96. See the seminal work of C. Vann Woodward, The Strange Career of Jim Crow, Second revised edition (Oxford: Oxford University Press, 1966), p. 102.
97. See Woodward on each point, C. Vann Woodward, The Strange Career of Jim Crow, Second revised edition (ibid., pp. 98, 101, and 99.
98. Narveson is quite open about this: see The Libertarian Idea, pp. 313-18. "But if a business is really private, that means it is the property of its owners. They can do as they wish with it" (p. 315).
99. See Narveson, for example, who says the idea of monopoly is undefinable in a rigorous way, and that "the use of one's resources for whatever purposes one will is the hallmark of liberal [sic] freedom" (The Libertarian Idea, p. 203).
100. See for example ASU, p. 280, where Nozick suggests that "perhaps the precise contour of the bundle or property rights is shaped by considerations about how externalities may be most efficiently internalized." The idea is at least worth further examination, he says.
101. See Nozick, ASU, pp. 178-82, on the Proviso.
102. Contrast Gauthier's superficially similar argument for natural appropriation, which says that property rights in a state of nature are always revisable in the interests of efficient use. See his Morals by Agreement, pp. 293-94. Gauthier's classical liberal account is designed to accommodate considerations of economic efficiency at each crucial point. There is nothing comparable to Gauthier's provisional account of property rights in Nozick's state of nature. For Nozick, individuals acquire absolute property immediately upon appropriation of unheld resources, due to their natural rights and liberties and considerations of individual autonomy and self-ownership.
103. See, for example, Nozick, ASU, p. ix.
104. 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. 136-37 on the need for legislative power to publicly specify the Laws of Nature and for an impartial Judge to decide disputes. The three defects are the lack of "an established, settled, known Law," of a "known and indifferent Judge," 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," the latter being in charge of foreign policy and war and peace (sec. 146).
105. Nozick does recognize the need for a decision mechanism to determine the level of risk that individuals may impose on others. "But the precise mechanism to accomplish 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 "reached by the operation of some invisible-hand mechanism" (ASU, p. 74).
106. Some may disagree with my claim that libertarianism has no place for legislative authority. But focus again on Nozick's view (which I take as the paradigm). Why couldn't Nozick's minimal state simply create a committee with the task of making rules that decide disputed and indeterminate matters of natural law? Take, for example, the problem of defining riparian rights: 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, beyond certain limits. Would this decision have the status of legitimate law? Recall that Nozick's minimal 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).
107. Any rights or powers the minimal state has must derive from its members. As no person or group has the right to unilaterally issue rules applying to everyone, the same is true of the minimal state. "There is no right the dominant protection agency claims uniquely to possess" (ASU, p. 109), including, I assume, the authority to legislate.
108. See section 159 of Locke's Second Treatise, where Locke refers to "the Fundamental Law of Nature and Government, viz. That… all the Members of the Society are to be preserved" (referred to also in secs. 6, 16, 18, 134, 135, 183). Because of the fundamental law, each has a duty "to preserve himself as well as "to preserve the 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 governments justified by the social contract are necessary background conditions for the effective exercise of each person's duty to preserve himself and all of mankind.
109. "Anything an individual can gain through such an unanimous agreement he can gain through separate bilateral agreements" (ASU, p. 90).
110. Protection services against members are provided to nonmembers without charge in compensation for requiring them to resolve disputes with the agency's paying clients within the agency's arbitration procedures, thereby losing their rights of private enforcement of their rights. See ASU, chaps. 2 and 5, especially pp. 101-19.
111. This claim and the ensuing argument in this section - that libertarianism resembles feudalism - applies to the minimal libertarian state, and to the competing protection agencies envisioned by anarchical libertarianism. Though Nozick says the minimal state is "the only morally legitimate state" (ASU, p. 333)
112. and that "any state more extensive violates people's rights" (ASU, p. 149) he still leaves open the theoretical possibility that a "more extensive state" could arise legitimately out of the minimal state, so long as it is unanimously agreed to. Nozick has a long discussion of how (something purportedly resembling) democracy might arise out of a minimal state.
113. His account of democracy 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 "designed to 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-state could survive, precisely 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 realistically possible legitimate state. This would explain his explicit statement that it is "the only morally legitimate state." I am grateful to a reviewer for this journal for calling this feature of Nozick's view to my attention.
114. H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961), pp. 89-96.
115. See Nozick, ASU, p. 24: "Protection and 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."
116. It remains true on Nozick's account that political power is exercised mainly for the benefit of those who pay for it even when nonclients are provided protection services against clients' aggression. The protection agency provides nonclients with these minimal services only to compensate them for being prevented from apprehending and punishing clients for alleged wrongs. Providing nonclients minimal services is just one of the costs incurred in providing protection services for paying clients. See Nozick, ASU, pp. 110-13.
117. Strictly speaking, 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.
118. See Nozick, ASU, pp. 108-10. The phrases "monopoly on coercive power" or "monopoly on force" (whether de 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 self-defense - but that anyone exercising force must answer to the state-as-monopoly-holder, and show that the exercise is justified or excused.
119. See again Hart, The Concept of Law, pp. 94-96.
120. It may be objected here that libertarians such as Nozick already have 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).
121. (Indeed, it is crucial to Nozick's response to the anarchist that the minimal state not claim a de jure monopoly.) Also, Nozick nowhere says that the dominant protection agency possesses political legitimacy (which is different from moral legitimacy, which he does claim exclusively for the minimal state) (ASU, p. 332). Political legitimacy does not seem to be a concept that Nozick employs or even sees as significant.
122. The exception, again, is the minimal protection services provided nonclients against client's aggression in Nozick's minimal state. See notes 72 and 76.
123. I do not mean to say that the private libertarian state does not act at all for the interests of its clients. If it did not then no one would buy its services. The point rather is that it does not act as a fiduciary but 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 patients' relations with for-profit HMO's. Even in a competitive climate, for-profit HMO's provide only enough services to keep a client's services, and only then if it pays to do so. (So they seek to clear the rolls of people who require a lot of medical treatment.) Imagine now that a for-profit HMO has acquired a 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's operate even under competitive conditions, it is not hard to imagine how the monopoly HMO will 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 fiduciary capacity for the interests of its clients.
124. As G. G. Coulton notes, feudalism "is proverbially difficult to define" (Medieval Panorama [Cambridge: Cambridge University Press, 1955], p. 45).
125. For my purposes "feudalism" is construed as a conception of political power exercised as a private prerogative, 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 Scholastics 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, edited by Paul Sigmund [New York: Norton, 1988], pp. xxii-xxiii).
126. Feudalism and kingship are then different and opposed systems. Feudalism historically arose out of the breakup of the monarchical system in both Japan and in Europe (after A.D. 800, the end of Charlemagne's reign). Under feudalism "in its most developed form - that is in eleventh century France - the national system has become obliterated" (Coulton, p. 49). "Political authority and private property were merged together into the new feudal relation" (Christopher Dawson, The Making of Europe, [New York: Meridian, 1956], p. 227).
127. Around 1100 monarchy began reasserting its powers in the Franken lands where feudalism was most prevalent. Feudalism and monarchism gradually melded into one system as monarchies slowly regained political power, and feudal lords still retained a good deal of their private political power. It is during this syncretic period (not during the high era of feudalism from ca. 850-1100) that so-called "feudal law" appears, regulating among other things contractual relations between lieges and lords. I emphasize that feudalism is intended here as a doctrine about political power. It does not imply serfdom or the manorial system. Feudalism in Japan had nothing resembling the serfdom of European feudalism. Much less so should feudalism be identified with serfdom, for serfdom also occurred in non-feudal societies whose political basis lay not in contract but in ties of kinship (see Peter Duus, Feudalism in Japan [New York: Alfred A. Knopf, 1969], pp. 9, 15-16, 77).
128. The tradition that identifies feudalism with serfdom and the manorial economy stems from Marx's use of "feudalism," and receives its classic expression in Marc Bloch, Feudal Society (Chicago: University of Chicago Press, 1964).
129. If feudalism is understood in Marx's sense, then of course libertarianism differs from Medieval feudalism since libertarianism rejects hereditary serfdom. Finally, I use "feudalism" to denote an idealized conception of political power. It may be that no historically existing political arrangement ever fully satisfied all the features of 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 libertarianism as idealized political conceptions. For helpful discussions of the history of feudalism in Europe and Japan, see Coulton, Medieval Panorama, pp. 45-56;
130. the books by Duus and Bloch cited above; Norbert Elias, Power and Civility (Oxford: Basil Blackwell, 1982), pp. 57-66;
131. and Jean Pierre Poly and Eric Bournazel, The Feudal Transformation: 900-1200 (New York: Holmes & Meier, 1991).
132. Coulton, Medieval Panorama, p. 47.
133. See Duus, Feudalism in Japan, pp. 73, 94. Contrast nationalism, where political loyalty is nonvoluntary, nonpersonal in that it extends to the nation-state, and based in a noncontractual duty of allegiance.
134. See Elias, Power and Civility, pp. 57-65 on feudalism.
135. Note here that the coronation 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.
136. " See also Poly and Bournazel, The Feudal Transformation: 900-1200, chapter 2, on the feudal contract.
137. Divine right absolutism and feudalism differ of course in that the former recognized institutionally unconstrained political power, whereas under feudalism (as under libertarianism) political power extends no further than what is contracted for. Pure feudalism 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.)
138. Even in Nozick's account, where nonclients are minimally protected for "free" from clients' (but not other nonclients') aggression, they are still selectively, not impartially, protected.
139. 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 cannot be said that it governs with any intention of promoting and maintaining a common good. It may be that the common good, understood as protecting libertarian rights, in fact is promoted (as a kind of positive externality) by minimal state action; but this does not really differ from the way in which any private firm, in seeking private benefit, incidentally promotes a common good. So if the libertarian state promotes the common good, it does so in the same way as does Microsoft, General Electric, or Pinkerton Private Security Services. I assume, however, that the idea of the common good has more structure than 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 intention of securing the common good. Securing the common good, even if understood in libertarian terms, is not an aim of the libertarian minimal state, as argued in the text. (For Nozick's explicit rejection of the idea of the social good, see ASU, pp. 32-33.)
140. 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: Harvard University Press, 2001), pp. 114-15, 177. This complicated topic warrants further discussion since it goes to the main difference between the classical and high liberal traditions.