Bob Dole recently said that neither he nor Ronald Reagan would count as conservatives these days. It’s worth noting that John Locke probably wouldn’t count as a libertarian these days, either.
Michael Lind had a column in Salon in which he asked, “[i]f libertarians are correct in claiming that they understand how best to organize a modern society, how is it that not a single country in the world in the early twenty-first century is organized along libertarian lines?” EJ Dionne agrees. Several libertarians argue that the present is no guide, because the (seasteading?) future belongs to libertarians.
I’d actually go in a different direction and say the past belonged to libertarians. We tried libertarianism for a long time; it was called feudalism. That modern-day libertarianism of the Nozick-Rand-Rothbard variety resembles feudalism, rather than some variety of modern liberalism, is a great point made by Samuel Freeman in his paper "Illiberal Libertarians: Why Libertarianism Is Not a Liberal View." Let’s walk through it.
Freeman notes that there are several key institutional features of liberal political structures shared across a variety of theorists. First, there’s a set of basic rights each person equally shares (speech, association, thought, religion, conscience, voting and holding office, etc.) that are both fundamental and inalienable (more on those terms in a bit). Second, there’s a public political authority which is impartial, institutional, continuous, and held in trust to be acted on in a representative capacity. Third, positions should be open to talented individuals alongside some fairness in equality of opportunity. And last, there’s a role for governments in the market for providing public goods, checking market failure, and providing a social minimum.
The libertarian state, centered solely around ideas of private property, stands in contrast to all of these. I want to stick with the libertarian minimal state laid out by Robert Nozick in Anarchy, State, and Utopia (ASU), as it's a landmark in libertarian thought, and I just re-read it and wanted to write something about it. Let’s look at how it handles each of the political features laid out above.
Rights. Libertarians would say that of course they believe in basic rights, maybe even more than liberals! But there’s a subtle trick here.
For liberals, basic rights are fundamental, in the sense that they can’t be compromised or traded against other, non-basic rights. They are also inalienable; I can’t contractually transfer away or otherwise give up my basic rights. To the extent that I enter contracts that do this, I have an option of exit that restores those rights.
This is different from property rights in specific things. Picture yourself as a person with a basic right to association, who also owns a wooden stick. You can sell your stick, or break it, or set it on fire. Your rights over the stick are alienable - you don’t have the stick anymore once you’ve done those things. Your rights to the stick are also not fundamental. Given justification, the public could regulate its use (say if it were a big stick turned into a bridge, it may need to meet safety requirements), in a way that the liberal state couldn’t regulate freedom of association.
When libertarians say they are for basic rights, what they are really saying is that they are for treating what liberals consider basic rights as property rights. Basic rights receive no more, or less, protection than other property rights. You can easily give them up or bargain them away, and thus alienate yourself from them. (Meanwhile, all property rights are entirely fundamental - they can never be regulated.)
How is that possible? Let’s cut to the chase: Nozick argues you can sell yourself into slavery, a condition under which all basic liberties are extinguished. (“[Would] a free system... allow him to sell himself into slavery[?] I believe that it would.” ASU 331) The minimal libertarian state would be forced to acknowledge and enforce contracts that permanently alienate basic liberties, even if the person in question later wanted out, although the liberal state would not at any point acknowledge such a contract.
If the recession were so bad that millions of people started selling themselves into slavery, or entering contracts that required lifelong feudal oaths to employers and foregoing basic rights, in order to survive, this would raise no important liberty questions for the libertarian minimal state. If this new feudal order were set in such a way that it persisted across generations, again, no problem. As Freeman notes, “what is fundamentally important for libertarians is maintaining a system of historically generated property rights...no attention is given to maintaining the basic rights, liberties, and powers that (according to liberals) are needed to institutionally define a person’s freedom, independence, and status as an equal citizen.”
Government. Which brings us to feudalism. Feudalism, for Freeman, means “the elements of political authority are powers that are held personally by individuals, not by enduring political institutions... subjects’ political obligations and allegiances are voluntary and personal: They arise out of private contractual obligations and are owed to particular persons.”
What is the libertarian government? For Nozick, the minimal state is basically a protection racket (“protection services”) with a certain kind of returns to scale over an area and, after some mental cartwheels, a justification in forcing holdouts in their area to follow their rules.
As such, it is a network of private contracts, arising solely from protection and arbitration services, where political power also remains in private hands and privately exercised. The protection of rights is based on people’s ability to pay, bound through private authority and bilateral, individual contracts. “Protection and enforcement of people’s rights is treated as an economic good to be provided by the market,” (ASU 26) with governments as a for-profit corporate entities.
What doesn’t this have? There is no impartial, public power. There’s no legislative capacity that is answerable to the people in a non-market form. There’s no democracy and universal franchise with equal rights of participation. Political power isn’t to be acted on in a representative capacity toward public benefit, but instead toward private ends. Which is to say, it takes the features we associate with public, liberal government power and replaces them with feudal, private governance.
Opportunity. Liberals believe that positions should be open for all with talent, and that public power should be utilized to ensure disadvantaged groups have access to opportunities. Libertarianism believes that private, feudal systems of exclusion, hierarchy, and domination are perfectly fine, or at least that there is no legitimate public purpose in checking these private relationships. As mentioned above, private property rights are fundamental and cannot be balanced against other concerns like opportunity. Nozick is clear on this (“No one has a right to something whose realization requires certain uses of things and activities that other people have right and entitlements over.” ASU 238).
Do we need more? How about Rand Paul, one of the leading advocates for libertarianism, explaining why he wouldn’t vote for the Civil Rights Act: “I abhor racism. I think it’s a bad business decision to exclude anybody from your restaurant — but, at the same time, I do believe in private ownership.”
Markets. The same goes for markets, where Nozick is pretty clear: no interference. “Taxation of earnings from labor is on a par with forced labor.” (ASU, 169) Nozick thinks it is likely that his entitlement theory will lead to an efficient distribution of resources and avoid market problems, but he doesn’t particularly require it and contrasts himself with end-staters who assume it will. “Distribution according to benefits to others is a major patterned strand in a free capitalist society, as Hayek correctly points out, but it is only a strand and does not constitute the whole pattern of a system of entitlements.” (ASU 158)
I sometimes see arguments about how bringing “markets” into the provision of government services makes it more libertarian. Privatizing Social Security, bringing premium support to Medicare, or having vouchers for public education is more libertarian than the status quo. Again, it’s not clear to me why libertarians would think taxation for public, in-kind provisioning is a form of slavery and forced labor while running these services through private agents is not.
You could argue that introducing markets into government services respects economic liberty as a basic liberty, or does a better job of providing for the worst off, or leaves us all better off overall. But these aren’t libertarian arguments; they are the types of arguments Nozick spends Part II of ASU taunting, trolling, or otherwise bulldozing.
Three last thoughts. (1) Do read Atossa Abrahamian on actually existing seasteading. (2) It’s ironic that liberalism first arose to bury feudal systems of private political power, and now libertarians claim the future of liberalism is in bringing back those very same systems of feudalism. (3) Sometimes libertarians complain that the New Deal took the name liberal, which is something they want to claim for themselves. But looking at their preferred system as it is, I think people like me will be keeping the name “liberal.” We do a better job with it.
Jousting knights image via Shutterstock.com