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Hunting Unicorns

Michael Munger has a fun essay (at FEE) on what he calls “the unicorn problem” (i.e., when people make the argument for statism based on a state they can imagine—benevolent, efficient, omniscient—rather than the state that actually exists). Munger’s solution:

  1. Go ahead, make your argument for what you want the State to do, and what you want the State to be in charge of.
  2. Then, go back and look at your statement. Everywhere you said “the State” delete that phrase and replace it with “politicians I actually know, running in electoral systems with voters and interest groups that actually exist.”
  3. If you still believe your statement, then we have something to talk about.

I run into this problem repeatedly with colleagues and students who somehow believe that the state could do all kinds of wonderful things, if only it behaved precisely as they imagined it should. “If only we had a single payer system,” they gush, “we would not have all of the problems of self-interest and greed that one sees in the current system.” That follows, of course, because we know that self-interest and greed have no place in any state we can imagine. It is at this point that I try to identify the underlying category error and introduce them to Buchanan’s argument for symmetry (albeit with little impact).

Munger concludes: “To paraphrase Hayek, then, the curious task of the liberty movement is to persuade citizens that our opponents are the idealistic ones, because they believe in unicorns. They understand very little about the State that they imagine they can design.”

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At the Daily Beast, Keli Goff has a piece on “Why Blacks Aren’t Libertarians.” In fact, however, she may be a libertarian; at least, nothing in this piece shows why she cannot be. However, she definitely rejects a kind of dogmatic, absolutist libertarianism that she has encountered – and reasonably so, in my view. Here is the rub:

I presented the caller with the same hypothetical I do to so many of my self-professed libertarian friends: I’m injured in a plane or car crash. There is one hospital located in the town in which the crash has taken place. Do you believe the hospital has a right to refuse to treat me on the basis of race, and that the government has no moral or legal imperative to require the hospital to treat me?

One can make a convincing argument that a florist refusing to provide flowers to a same-sex wedding, or an upscale restaurant not welcoming African Americans, aren’t really major civil rights issues. (Frankly, in this day and age, if a restaurant refused to serve me I might use the power of the Internet to help put it out of business, but I wouldn’t see the point in suing someone to serve me when there are plenty of other dining options.) But when it comes to issues like government-mandated access to health care and education for all Americans, there is more at stake.

I would say that the hospital has a legally enforceable duty to accept anyone at imminent risk of death or injury. This is the “safe harbor” exception to the right to exclude that constitutes part of the bundle of private property rights. The safe harbor exception holds that in cases of dire emergency, you lose the right to exclude others from access to your property.

There are at least two important categories of cases here. One consists of cases in which there is no time to obtain consent: my wife is suffering a heart attack, and to save her I have to break into a locked building and take out its defibrillator. We should be able to assume consent in many cases when it is costly to obtain an answer from the property owner, and the foreseeable costs to the property owner are nil (e.g., I will compensate for any damage I cause).

Another category consists of cases in which original appropriation ends up leading to a monopoly, which if exploited could cause severe harm. One such example is Bill Bradford’s old chestnut: you fall out of an apartment window and on the way down grab a flagpole; the owner of the flagpole leans out and demands, “Let go!” Obviously, you have no obligation to let go. Robert Nozick gave an example of appropriating an oasis in the middle of the desert and demanding all the worldly goods of those who pass by in dire thirst.

So it seems clear to me that the hospital example fits into the latter category. If you’re in a life-or-death situation, you must be given access to the hospital. Now, that doesn’t mean you could conscript (enslave) a person to perform surgery on you – the right to exclude from one’s own body admits of no exceptions. And in extremely rare cases, a free society might therefore result in people’s avoidable deaths from lack of care – but of course that sort of thing happens now, all too often.

Now, I don’t know what Ms. Goff means by “government-mandated access to health care and education for all Americans,” but if she means large bureaucracies that provide these services at immense taxpayer cost on an ongoing basis, then she is indeed not a libertarian, as libertarians would not support that agenda. But neither does such an expansive government role in those industries follow from the emergency exception to the right to exclude just explored.

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The Independent Institute has released a video of a talk given by Ron Paul on April 9, 2014 (“Liberty Defined: The Future of Freedom”).

Some of you may enjoy a little Ron Paul to start those engines this Monday.

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You have to admire the sheer gall of a man who defends compulsory national service on libertarian grounds. Pascal-Emmanuel Gobry does so in this month’s Cato Unbound. What really got my attention was this bit:

Libertarians think it’s legitimate for the state to use violence to take people’s money. If you don’t think taxation is legitimate, you are an anarchist, not a libertarian.

Well, military service is a form of in-kind taxation. Money is time. That’s what it is. When I buy a loaf of bread, I exchange a little bit of my time for a little bit of the baker’s time.

Perhaps it’s only legitimate for the state to take our time in the form of money and not in its original form, but we know that it’s not true.

Oh really?! When libertarianism really emerged as a distinct political force in the 1970s, it was thought that libertarianism excluded taxation that was not consented to (so homeowners’ association fees would be fine, for instance). The Libertarian Party platform long called for the abolition of taxation (and may still). Indeed, Robert Nozick argued that taxation is wrong for the same reason that slavery (“compulsory service”) is wrong. (Not, note, that taxation is morally equivalent to slavery or a species of slavery.) Gobry seems to accept Nozick’s claim that if slavery is always wrong, taxation is also always wrong, but by denying the consequent, is able to deny the antecedent.

But the bottom line is that you don’t have to be an anarchist to think that non-consented-to taxation is always impermissible.

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I have great respect and (in many cases) affection for my friends at Bleeding Hearts Libertarians. But I am not a bleeding heart libertarian, and from the outset I have resisted its siren song, mostly over its endorsement of “social justice” as a moral and/or political ideal. Unlike Hayek, I do not think the concept is incoherent. But I think Hayek has a point, and my resistance to the concept I think tracks at least some of Hayek’s motivation. But that resistance is normative, rather than conceptual. Recent exchanges on BHL have helped me clarify my thinking about the point that concerns me.

Kevin Vallier posted this week on the topic, responding to challenges from David Friedman as to the cogency of the concept. The discussion that follows Kevin’s post is excellent, and I am highly sympathetic to many of those resisting Kevin’s analysis. However, I would mount an objection slightly different than those on offer there.

Start with a point of agreement. Kevin says,

I take it that the term “social justice” can be used to cover individual rights-violations. For instance, if John rapes Reba, he has committed a grave injustice, one that could be called a social injustice. However, this is not the conceptual home of the concept of social injustice.

He is surely right about this. Individual rights-violations are, by their nature, unjust. Since they are transactions between two individuals, they are also social, and we can, if we like, uselessly append “social” to our description of actions as unjust. If that is all “social injustice” means, there would be no quarrel here. As Kevin suggests, we need to look elsewhere for its “conceptual home.”

Kevin thinks that “conceptual home” is in the class of emergent properties. Here is his central claim:

Social injustice is an emergent property of certain kinds of social, moral and political practices. Let’s illustrate with the familiar example of institutional racism. I take it that an institution is racist insofar as it reliably outputs states of affairs where a racial group fails to receive its due based solely on the racial properties of its members. Thus, even if no one in the institution is racist, they participate in practices that result, say, in blacks having fewer opportunities than whites simply because they are black. In other words, the institutional rules operate such that unequal outcomes are caused primarily by racial differences, even if no one person is acting in a racist fashion. Institutional racism is a paradigmatic case of social injustice. It is an emergent property of a social institution that commits an injustice without any individual acting in an unjust fashion.

Emergent properties are an important class of properties, but Kevin’s proposal is unusual in deploying the concept in this way. Why? He is proposing that a normative property — social injustice — is emergent from non-normative properties (perhaps the distribution of “opportunities,” however those are measured). And this is curious. The typical deployment of the notion of emergent properties would, I think, involve the emergence of non-normative (let’s call them “natural”) properties from other natural properties. Many of the spontaneous orders we see in both natural and social science are of this sort. The structure of crystals is an emergent property in the sense that crystals have that structure because of other physical properties they have. Language-use is a property that humans have in virtue of various neurological and other biological properties we have. And so on. Nothing to see here. Emergence of normative properties from other normative properties is also, I’d think, unproblematic. That would be, for example, the liberal analysis of slavery. We see the large scale pattern of injustice as caused by an assortment of unjust individual attitudes, beliefs, and courses of conduct. Again, nothing to see here.

But the proposal that normative properties might emerge somehow from natural properties oughtn’t to be dismissed simply because it is unusual. If you work much with normative concepts, you become accustomed to the idea that things work differently when you are contending with reasons, norms, and the like rather than causes. If the world is a causal order, and it has normative properties, then somehow we have to end up with normative properties emerging from natural ones. The form of emergence that moral and other philosophers typically deploy is supervenience. Normative properties like goodness, rightness, and so on supervene on natural properties, in the sense (some sense; different theories give different accounts of this relation) that the normative properties occur somehow because the natural properties occur. If you are a hedonist, for example, you think that badness supervenes on pain, goodness on pleasure. Something (an act, a state of affairs) has the property of badness precisely because it also has the property of being painful.

And this gets us to what is interesting. Remember that, if the concept of social justice is going to be at all interesting, it cannot simply be redescribing the sort of injustice that occurs when individuals violate the rights of others. What does the social injustice supervene on? The crucial point is: whatever the answer to that question, it is not a property of individuals.

Is that a problem? I’m not sure. I am inclined to think that the essence of individualism at the heart of liberalism is a kind of moral individualism — the idea, roughly, that all sources of value, obligations, and so on are individuals. Does Kevin believe that? Here’s what he says:

I can’t speak for my co-bloggers, but from my vantage point libertarians all too often ignore social injustices because of their sometimes flat footed (dare I say “cartoon”?) moral individualism. I’m a moral individualist in the sense that I think injustices can only be done to individuals, families or to voluntary associations. In a real sense, I don’t think injustices can be committed against “Americans” or “blacks” understood as groups defined independently of their members. So traditional libertarians are right that emphasize that the idea of social justice can sometimes be deployed in inappropriately collectivist ways.

But social injustices can be committed independently of human design. That’s a significant claim that departs from many threads of libertarian thought popular today. And my view on the matter is one of the reasons I joined the blog.

How does the moral individualism Kevin endorses differ from “cartoon” moral individualism? I’m not sure.  Is it an aberration that in a previous paragraph he spoke of “a racial group failing to receive its due”? I think it is not an aberration, but a natural slide invited and made possible by adversion to social justice.

I believe (and I think Kevin believes) that groups are per se not due anything. There are certainly moral and political positions (positions worth engaging) that disagree. But these are certainly not within either the classical liberal or libertarian tradition, and they require a rejection of the moral individualism that I think is worth endorsing, and to which Kevin is paying lip service. And the issue here isn’t the defensibility of such a claim, but whether or not those committed to libertarian ideals and principles should embrace or reject the use of the concept of social justice.

Is this then just an unfortunate slip? The problem is, without the thought that the normative property (the social injustice) supervenes on facts about groups, rather than individuals, there is no injustice here to be found. And that’s just where the BHL’ers would like to be able to find injustice. It’s tempting to revert to the idea that the individuals in the groups in question suffer, say, from a deprivation of opportunities. But either those deprivations are by individuals, to individuals, in a way that violates the rights of the injured parties, or those are not. If they are, then we have plain old injustice, without a need to appeal to “social justice.” And if they aren’t, then it’s hard to see where the moral complaint is, nor what individuals are “committing” the social injustice. Here the view Kevin is proposing is trying to have it both ways. Skeptics about social justice think that is endemic to the concept.

It’s worth noting that in Rawls’ hands the problem has to be located in a different place. I can’t see that Rawls ever locates the injustice of social injustice in properties of groups. (Though groups figure into the specification of the remedy, in the form of the Difference Principle, I take this to be a feature of the solution to the problem, not part of the formulation of the normatively problematic state of affairs — the social injustice — itself.) In that sense, Rawls’ moral individualism is intact. To get to social injustice, as I understand him Rawls has to build the social properties at issue into the obligations of justice we have as individuals. That is, part of what it is for us to treat each other justly, as individuals, is on his view to establish and sustain social institutions with the properties called for by principles of justice. That way of conceiving of social justice has its own problems, not for this post (which is already too long as it is). Is it compatible with thinking that social injustice is an emergent property (to return to Kevin’s basic proposal). Perhaps. But if so the emergence is a 5th wheel: all the work in generating the social injustice is done by individuals failing, in effect, to act justly in establishing institutional arrangements that satisfy the principles of justice. I am skeptical that we do have obligations of justice of the sort that this interpretation of Rawls requires. One reason for doing so is that (like Nozick) I suspect that these obligations of justice are incompatible with obligations of justice I am much more confident we have toward each other (such as obligations generated by desert). That’s why I think there is something deeply problematic about the Rawlsian conception of social justice. Those reservations are not alleviated by recourse to thinking that social justice (or injustice) is somehow emergent.

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Matt Zwolinski of Bleeding Heart Libertarians has written an excellent series of posts on the libertarian justification of property rights. Here‘s the latest.

The first and most important thing to note about both Locke and Nozick’s arguments is that, unlike utilitarian arguments, they are individualistic rather than collectivistic in nature. For the utilitarian, all that matters in justifying an action (or an institution like property rights) is its effect on overall well-being. On the utilitarian view, then, property rights are justified if the overall benefits they produce are greater than the overall harms they produce, regardless of how those benefits and harms are distributed among different individuals.

For Locke and Nozick, on the other hand, property rights are only justified if they benefit (or at least do not harm) each and every individual. Now, this probably seems like an extremely tough argumentative hurdle for the defender of property to clear. Could it really be the case that each and every individual is better off under a system of private property rights than he would have been without one?

The answer is, or can be, yes. Almost everyone today is vastly better off, and freer, because of the system of private property rights. In those rare, possibly pathological cases in which a person is worse off due to the system of property rights, the Lockean justification of property rights provides a rationale for some kind of “re”distribution as a matter of justice, a point that Matt notes at the end but defers to a future essay. In the event, this is one area where I tend to agree with BHL’ers: there should be a basic income of sort to replace the welfare state, which would probably have to be set at a few thousand dollars a year in the present-day United States in order to ensure that literally everyone is better off due to the private property system, despite its coercive nature.

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Over at Bleeding Heart Libertarians, there have been some interesting posts recently on moralized and non-moralized conceptions of freedom. Jason Brennan says defining liberty to mean only negative liberty is “linguistic revisionism” without philosophic import. He then makes the case that bleeding-heart libertarianism (or Rawlsianism or various other non-traditionally-libertarian conceptions of property rights) does not necessarily violate the “non-aggression axiom.” Finally, he argues against moralized conceptions of freedom. I agree with the first two posts but not the last one.

It’s true that people use “freedom” to mean different things. Hobbes infamously defined it as the absence of physical constraint. Jason prefers something like “ability to realize one’s ends.” Both of these definitions are non-moralized. As Jason makes clear, positive liberty is not only not good by definition, it is not always good. My freedom to swing my fist into your nose unprovoked does not deserve respect — but it’s still freedom, in this non-moralized sense.

Now, Jason is absolutely right that nothing substantive turns on how we define our terms. He’s also right that simply defining freedom as justice (that which is, in the final analysis, right) abuses ordinary language and is tautological. On the other hand, I will note a tension between the claim that positive liberty is not always good and this claim:

The thing that Marxists and others mean by “positive liberty” is valuable and worth promoting. One of the best arguments for classical liberal institutions is that as a matter of fact they do a good job getting people positive liberty.

But if positive liberty is not only not good-by-definition but is also not good-by-inference, then the mere fact that a system tends to promote positive liberty is not a point in that system’s favor. The fact that system X makes it easy for people to swing their fists into other people’s faces whenever they want, thus helping them achieve their ends, is not a point in favor of the justice of system X. Now, the claim might be that swinging fists into people’s faces hurts the positive liberty of those victims, and I agree — but I don’t agree that we can simply sum up positive liberties across people and truthfully say that everyone ought to try to maximize that sum. That’s a controversial moral claim. Indeed, Matt Zwolinski refutes the view strongly here, and even says, “No serious libertarian intellectuals think about libertarianism in terms of maximizing liberty.” I don’t know how this statement squares with what Jason says he and David Schmidtz are arguing about how we ought to evaluate the regime of negative liberty.

Furthermore, I don’t think we can rule out all moralized conceptions of freedom as tautological. People in ordinary language use freedom in a moralized but non-tautological sense all the time. When someone says, “I can say what I want, it’s a free country,” she’s not saying, “It’s a country where I can realize my ends.” She’s saying something like, “In this country, we are not supposed to be subject to the arbitrary domination of others’ wills.” Freedom as non-domination means a great deal to people, arguably more than the mere ability to realize one’s own ends. The reason slavery is so repugnant is not really that it makes the slave unhappy, but that it enshrines an extreme form of inequality and domination. (I’m making a substantive, controversial moral claim here.)

But freedom as non-domination is also not the whole of justice. Marxists like G.A. Cohen arguably accept non-domination just as much as libertarian anarchists like Murray Rothbard. They just disagree about the proper conception of property rights, which also belongs to the domain of justice. Now, if you are persuaded about the libertarian account of property rights, then a Marxist regime imposed without consent looks like unjust domination, un-freedom. Still, even if we read back into “freedom” claims about justice, freedom-as-non-domination is not tautological: it doesn’t simply define freedom as justice. Yet it is a moralized conception of freedom common in everyday discourse.

Update:

Jason Brennan responds by e-mail:

Thanks for posting that. Does this clear up things?

1. I don’t literally mean that positive liberty is always good, but rather that it tends to be good and tends to be worth promoting. Schmidtz and I talk at some length in BHOL about how there’s not clear measure of positive liberty, but that doesn’t mean we can’t make good estimates. If people are living longer, have more options, have more money, have more technology, etc, they will usually have more positive liberty.

2. I prefer to use non-moralized definitions of liberty: Neg lib = absence of obstacles, pos lib = power or capacity. But Schmidtz and I note that in common language, we often mean much more specific ideas when we use the terms “liberty” or “freedom”. If someone says, “X is a free country,” we assume she means they protect a wide range of negative liberties. My raise gave me the freedom to enjoy life, we assume she means positive liberty as capacity/power. And so on.

Schmidtz and I would agree with Matt Z and Nozick that negative rights are side constraints–we shouldn’t have a utilitarianism of rights. But negative and positive liberty are different. Negative liberty first and foremost should be respected, and then promoted. Positive liberty is to be promoted (when it’s good, and if doing so is consistent with our rights).

My response to Jason:

Thanks for the response. It clarifies a great deal. I clearly misread your position on positive freedom. I can’t quarrel with your description of the conceptual landscape below. Substantively, too, we’re not far apart, though I don’t think it’s generally morally impermissible to refrain from promoting the positive liberty of humanity in general (for instance, in order to focus on one’s own life projects).

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