TGIF: Social Order through Liberty

Human beings are self-actualizing social animals. We need to cooperate with others to flourish fully and (but?) we also need the freedom to make of ourselves the persons we wish to be; we need autonomy.

Can we do both liberty and social order? The answer is yes, and that is where rights come into play. I'll go with Ayn Rand's definition: "A 'right' is a moral principle defining and sanctioning a man’s freedom of action in a social context." Also, "Rights are conditions of existence required by man’s nature for his proper survival." Although rights theory is fraught with the potential for abuse -- many many counterfeit "rights" have been conjured -- it's difficult to abandon the concept.

Liberty and social order are often seen as in conflict with each other. The conservatives' fondness for the phrase ordered liberty. It is meant to suggest that liberty too easily becomes license and chaos. So we often hear that rights must be balanced against one another or against other considerations (such as state interest), indicating that all people could not possibly exercise their rights at the same time because that would produce intolerable social conflict. Hence the need for external limits.

But thanks to the work of genuine liberals -- that is, libertarians, we have good reason to reject this concern.

One of the great synthesizers of individual and social welfare was one of the most unjustly reviled political thinkers in history: Herbert Spencer. In discussing the human "tendency toward individuation in his 1851 (and first) book, Social Statics, Spencer wrote:

[The person] is self-conscious; that is, he recognizes his own individuality. . . . [W]hat we call the moral law—the law of equal freedom—is the law under which individuation becomes perfect, and that ability to act up to this law is the final endowment of humanity.... The increasing assertion of personal rights is an increasing demand that the external conditions needful to a complete unfolding of the individuality shall be respected. Not only is there now a consciousness of individuality and an intelligence whereby individuality may be preserved, but there is a perception that the sphere of action requisite for due development of the individuality may be claimed, and a correlative desire to claim it. And when the change at present going on is complete—when each possesses an active instinct of freedom, together with an active sympathy—then will all the still existing limitations to individuality, be they governmental restraints or be they the aggressions of men on one another, cease. Then none will be hindered from duly unfolding their natures.

"None will be hindered"? Even with "activity sympathy," how then can "an active instinct of freedom be reconciled with required social harmony? Spencer addresses the paradox:

Yet must this higher individuation be joined with the greatest mutual dependence. Paradoxical though the assertion looks, the progress is at once toward complete separateness and complete union. But the separateness is of a kind consistent with the most complex combinations for fulfilling social wants; and the union is of a kind that does not hinder entire development of each personality. Civilization is evolving a state of things and a kind of character in which two apparently conflicting requirements are reconciled.

It may sound odd, but Spencer anticipated “at once perfect individuation and perfect mutual dependence.” He wrote:

Just that kind of individuality will be acquired which finds in the most highly organized community the fittest sphere for its manifestation, which finds in each social arrangement a condition answering to some faculty in itself, which could not, in fact, expand at all if otherwise circumstanced. The ultimate man will be one whose private requirements coincide with public ones. He will be that manner of man who, in spontaneously fulfilling his own nature, incidentally performs the functions of a social unit, and yet is only enabled so to fulfill his own nature by all others doing the like.

This reminds me of Spinoza's belief that to be fully rational an individual must be surrounded by other rational free, individuals with whom he interacts respectfully through reason, persuasion, contract, and trade, not force.

Spencer, of course, is well known for what in Social Statics he called the law of equal freedom: "Every man has freedom to do all he wills, provided he infringes not the equal freedom of any other man.” This sounds good, and it is. But Murray Rothbard, in his discussion of the impossibility and hence senselessness of egalitarianism (in Power and Market: Government and the Economy), made an important observation about Spencer's law. Rothbard wrote:

This goal [equality of liberty] does not attempt to make every individual’s total condition equal—an absolutely impossible task; instead, it advocates liberty—a condition of absence of coercion over person and property for every man.

Rothbard pointed out that the terms equality before the law and equality of rights "are ambiguous and misleading. The former could be taken to mean equality of slavery as well as liberty and has, in fact, been so narrowed down in recent years as to be." He also wrote that the term equal is problematic in the study of human affairs because it suggests a unit of measure that does not exist. (For libertarianism conceived at equality of authority, see Roderick Long's "Liberty: The Other Equality" and "Equality: The Unknown Ideal.")

Finally, Rothbard wrote:

Spencer’s Law of Equal Freedom is redundant. For if every man has freedom to do all that he wills, it follows from this very premise that no man’s freedom has been infringed or invaded. The whole second clause of the law after “wills” is redundant and unnecessary. Since the formulation of Spencer’s Law, opponents of Spencer have used the qualifying clause to drive holes into the libertarian philosophy. Yet all this time they were hitting at an encumbrance, not at the essence of the law. The concept of “equality” has no rightful place in the “Law of Equal Freedom,” being replaceable by the logical quantifier “every.” The “Law of Equal Freedom” could well be renamed “The Law of Total Freedom.”

Rothbard credits the point to Clara Dixon Davidson, who in 1892 wrote in Benjamin Tucker's magazine, Liberty:

The law of equal freedom, “Every one is free to do whatsoever he wills,” appears to me to be the primary condition to happiness. If I fail to add the remainder of Herbert Spencer’s celebrated law of equal freedom, I shall only risk being misinterpreted by persons who cannot understand that the opening affirmation includes what follows, since, if any one did infringe upon the freedom of another, all would not be equally free. [Emphsis added.]

This leads to the conclusion that all people may be free to exercise their rights simultaneously without jeopardy to life-serving social order. No need for balancing rights exists. If all "ordered liberty" means is liberty that is consistent with social order, then we can rest easy so long as people think soundly about liberty. How surprising is this? After all, the very notion of rights stems from each individual's need to act in the world without conflicting with others. (This insight about rights theory has been called "compossibility" by the Georgist libertarian Hillel Steiner. For an opposing view to the Davidson-Rothbard argument, see this from Matt Zwolinski.)

This does not mean the boundaries between people's zones of freedom are always immediately clear -- far from it. Disagreements (both good faith and malicious) are inevitable. That's why, in addition to liberal customs, free societies will have contracts, formal associations, policing agencies, insurance, mediators, arbiters, and judges. Governance does not require government.

It seems that Benjamin Tucker's magazine motto (borrowed from Pierre-Joseph Proudhon) had it right: "Liberty: Not the Daughter but the Mother of Order."

TGIF: Disagreement without Conflict

Chandran Kukathas

I'll admit it: I'm a natural-rights guy. I think you can get to individual rights, including the right to property, from within the ancient Greek eudaimonist (virtue ethics) and Spinozist tradition.

But here's a separate point: rights-talk may not be the best way to bring unconvinced people over to the libertarian view of the good society. Heresy? I hope not.

This video interview with Chandran Kukathas, author of The Libertarian Archipelago, got me thinking about this subject. Kukathas (whom I've written about here and here) starts with what ought to be obvious to everyone: people disagree about all kinds of things. As he writes in his book:

In a world of moral and cultural diversity one of the subjects over which there is dispute, and even conflict, is the subject of justice. Different peoples, or groups, or communities, have different views or conceptions of justice. In these circumstances the question is: how can people live together freely when there is this sort of moral diversity?"

Even when they agree on ends, they often disagree about the means to those ends. Disagreement is here, has always been here, and ain't going anywhere.

So what, you ask? What does that have to do with winning adherents to the libertarian view of the good society? It has a lot to do with it. Much modern libertarian thinking has been shaped by theorists who at least implied that the way to a free society is to get widespread if not universal agreement about rights and hence justice -- in other words, assent to a libertarian law code deduced from the nonaggression principle. (Some even think the agreement must extend to other philosophical matters like metaphysics, epistemology, ethics, aesthetics.) As a libertarian I came up  (long ago) in that tradition. But now I wonder about its strategic, but not its truth, value.

If disagreement is and will be ubiquitous, how in hell can we hope for widespread agreement on a detailed code of law or rights theory? We can't hope for that, and we should stop acting as though we can because it looks to be a time-waster. It's been tried, so we must learn there are no magic words to do the trick.

Does that leave us in despair? Have we no hope for liberty? Maybe not. Chandran Kukathas gives us reason to hope.

Since broad disagreement is not going away, the most we can work for is an environment characterized as disagreement without conflict. I'm not a utopian. Conflict isn't going anywhere either, but it can be minimized through liberal institutions based on freedom of association within the current national territories, the "live and let live" principle, which would not require territory-wide agreement to a detailed doctrine. In other words, if we can't get universal agreement to a code of justice, how about to the principle of "mutual toleration"?

In this age of extreme and acrimonious polarization, doesn't that sound like a strategic approach worth pursuing? If no monopoly state is available, Group A won't have to live in fear that Group B will seize it and impose its preferences, and thus Group A won't have to seize the state apparatus first in self-defense.

Some may object to putting rights-talk on the shelf in favor of something less "pure." They may insist that in America, home of the Declaration of Independence with its stirring lines about inalienable rights that predate government, rights talk resonates as it does nowhere else.

That was my first thought. But then I remembered how the list of things that Americans are said to have a right to has grown exponentially over the decades. No one has been able to find the right incantation to stop, much less, reverse that growth. Believe me, many people have tried. And once you give flight to even legitimate rights-talk, you have no control over where it goes and what form it takes. Once "counterfeit rights" gain currency, we enter the realm of rights-balancing. And guess who's in charge of that.

So, Kukathas writes in The Liberal Archipelago, "The primary question of politics is not about justice or rights but about power, who may have it, and what may be done with it. Views about rights or about justice may have a significant bearing on any answer to this question, but this remains the important question."

As a consequence, Kukathas continues, "The principles of a free society describe not a hierarchy of superior and subordinate authorities but an archipelago of competing and overlapping jurisdictions." (Emphasis added. That is an extremely important adjective because it indicates that the authorities do not have monopolies even within "their" territories, suggesting a polycentric approach to law and governance.)

Kukathas clearly does not buy James Madison's famous line in Federalist 51: "In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."

Thus those who value liberty must cultivate a distrust of power of all kinds. Kukathas says in the interview that the government is always a they that "co-opts us on a regular basis," and never a we. "In a free society ... only the freedom to associate is fundamental." The freedom of exit of course is the corollary.

As you might expect, Kukathas challenges the conventional view of what even constitutes the good society. He is "skeptical" about the need for "social unity," suggesting it

is not nearly as important as has been intimated. On the contrary, the good society is not something confined by the boundaries needed to make it one. Political authority is necessary in any good society; but political authority should be understood as something which has a place in the good society, rather than as something which circumscribes it.

In opposition to the body-politic metaphor, Kukathas offers a metaphor "of society as an archipelago of different communities operating in a sea of mutual toleration.... [T]he liberal archipelago is a society of societies which is neither the creation nor the object of control of any single authority, though it is a form of order in which authorities function under laws which are themselves beyond the reach of any singular power."

Importantly, he adds, "Implicit in this is a rejection of nationalism, and of the idea that we should start with the assumption that the nation-state is the 'society' which is properly the object of concern when we ask what is a free society."

Summing up in the interview, Kukathas says,

Having asked how can a diversity of peoples live together freely given their differences, [my theory] asserts that the answer lies in the way authority is allocated. More particularly, it argues that in a free society -- which is to say, a liberal society -- there will be a multiplicity of authorities, each independent of the others, and sustained by the acquiescence of its subjects. A liberal society is marked by respect for the independence of other authorities, and a reluctance to intervene in their affairs.

That reluctance would be reinforced by the fact that people who might like to control other people's peaceful conduct would have to pay out of pocket for the pleasure. They would not be able to socialize the cost by imposing it on a large number of otherwise indifferent taxpayers. The more something costs, the less people tend to buy. Call it libertarianism by default.

That seems like a vision that could win wide assent.

TGIF -- The Goal Is Freedom -- appears on Fridays.

Replace Your Divots

I am not, nor have I ever been, a golfer. I did golf once, just before the turn of the century, and I disliked it. Nevertheless, I live by a cardinal principle in golfer etiquette: Replace your divots.

A divot, of course, is a chunk of turf that is dislodged by a golf shot, leaving a hole on the course. Golfer etiquette requires that you should put the divot back in the hole if that's possible. This is a common-sense act of consideration for other golfers because a ball in a hole is hard to hit.

We can readily see that Replace your divots is simply an application of the principle Be considerate of others. And that's another way of saying, Respect others. You can easily find many appropriate applications of the principle in everyday life.

We can go a step further. If Replace your divots is a worthy principle, then Avoid creating divots in the first place if you can is a worthy corollary. Off the golf course, avoid creating divots would include covering your nose and mouth when you sneeze and cough even when you're not in the middle of a serious pandemic.

We might be tempted to place this principle within rights theory. For example, the owner of the golf course probably has a rule, a term of use, that you must replace your divots. As a contractual matter, then, you are obligated to do so. Failure to comply is to violate the terms of your contract and hence a violation of the rights of the property owner. This reasoning is also used to show why falsely shouting fire in a theater is wrong.

I have no beef with that take, but there's more to the story because even if it were not a violation of someone's contractual rights, it would still be wrong to ignore your divots or falsely shout fire when it could endanger people. (You may shout fire, however, in a crowded online chat room. Context matters.)

Can this moral point be proved? Well, yes, in the sense that Aristotle thought ethics could be validated. Whenever we act we aim at an ultimate good: happiness, the good life, flourishing -- call it what you will. We can't help it because the idea of an ultimate end is baked into the very notion of action, which is the means that gets you there. (Sounds like praxeology, doesn't it?) "Every art and every kind of inquiry, and likewise every act and purpose, seems to aim at some good: and so it has been well said that the good is that at which everything aims," Aristotle wrote to launch his Nicomachean Ethics. "If then in what we do there be some end which we wish for on its own account, choosing all the others as means to this, but not every end without exception as a means to something else (for so we should go on ad infinitum, and desire would be left void and objectless),—this evidently will be the good or the best of all things."

What plausibly (or intuitively) appears to advance flourishing you may reasonably presume to be good. But such presumptions are in principle defeatible by evidence or by a clash with other well-founded moral principles. A Socratic inquiry would uncover such conflicts.

In the Aristotelian and Spinozan sense, the flourishing of rational social animals -- that's us -- is advanced by, among other things, reason-based relationships with other people (that is, no force, no injustice). I'm better off surrounded by people who live by reason (even if only by semi-conscious habit) than by irrational people. So I want to encourage other people to be rational, which in part means dealing with them on the basis of reason and respect. QED.

For more, I recommend Roderick T. Long's important monograph Reason and Value: Aristotle versus Rand and my "What Social Animals Owe to Each Other."

TGIF: What Social Animals Owe to Each Other

If I were compelled to summarize the libertarian philosophy’s distinguishing feature while standing on one foot, I’d say the following: Every person owes it to all other persons not to aggress them. This is known as the nonaggression principle, or NAP.

What is the nature of this obligation?

Read more.

TGIF: Rights Violations Aren't the Only Bads

The erroneous belief that only conduct for which a coercive response is appropriate — that is, rights violations — may be condemned leads too easily to the corollary error that if some conduct is deserving of condemnation, it must somehow be a rights violation. The initiation of force is not the only bad thing in the world.

The rest is here.