READING: John Holbo (2010): Libertarianism, Property Rights, & Self-Ownership

One of the classics of the Classic Blogosphere...

READING: Libertarianism, Property Rights and Self-Ownership

by JOHN HOLBO on APRIL 15, 2010

OK, I’m going to try to raise the philosophical tone of this whole libertarian thing. It’s the least I can do. Snarking is a base motive, after all.

Jacob Levy has earnestly maintained in comments that it is unfair to judge libertarianism by the standard of Bryan Caplan‘s attempts to turn the Gilded Age into a Golden Age of ladyfreedom, and I would just like to say that, in a sense, Jacob is perfectly correct. Let me make this first point briefly (because lord knows this post is going to be long enough). Sometimes people distinguish ‘thin’ and ‘thick’. ‘Thin’ is the kind of ‘propertarian’ libertarian that Caplan can’t be because the whole inability to make contracts/own your own property thing is a straight-up deal-breaker. ‘Thick’ is the kind of libertarian Caplan can’t be because of all the Mill stuff in my previous post: can’t let society play the tyrant. It’s perfectly reasonable for Jacob to maintain that if you are going to pillory libertarianism, in a theoretical sense, you should pick one or the other of these two sorts – or both. But Caplan is neither, in his arguments about women’s freedom under coverture. What is Caplan really? I dunno. I suppose he’s a momentarily strayed ‘propertarian’, although I’m happy for him to speak for himself on this point.

But Brad DeLong and others fire back that it’s reasonable to hold libertarianism to account for the bad company that keeps it. Well, I dunno. I agree that it calls for diagnosis, but you still want to keep the theoretical point separate. Maybe that will even help with the diagnosis.

Here goes. I think it is not generally recognized – it seems right to me, correct me if I am wrong! – that the thick/thin libertarian distinction, even though it can be fuzzy, in practice, marks out two fundamentally distinct kinds of political philosophy, based on totally different principles. This gets disguised because there is considerable overlapping consensus at higher levels; and the thin side, in particular, tends to be systematically confused about where it is coming from (where it has to be coming from, to be what it is). Once we see this, a few things that are a bit strange about libertarianism, as a sociological phenomenon, look less strange. Also, maybe it turns out that libertarianism is a Bigger Tent than liberalism, philosophically, even though it is sometimes classed as a mere fringe of the liberal tent. Liberalism really is one kind of thing, broadly speaking. But not libertarianism – which is really two fundamentally different kinds of thing in one. (You could debate that, arguing that liberalism, too, has some pretty serious and deep internal divisions. But that’s not today’s topic.)

Let’s start with a paper that was recommended in comments to my last thread. Samuel Freeman, “Illiberal Libertarians: Why Libertarianism is not a Liberal View”, Philosophy and Public Affairs, 30, 2 (Spring 2002), 105-151. [Sorry, subscribers only.] Jacob Levy hints in comments that he doesn’t really like it. I can guess why, in part. Even if some forms of libertarianism are illiberal, others are perfectly liberal. It’s a bit annoying, if you are a liberal libertarian, that Freeman doesn’t acknowledge this. But if we grant this point, and extract what is right from Freeman’s analysis, I think we arrive at my point. Freeman argues that libertarianism – the illiberal sort – is better classed as a form of feudalism. And that’s right (so long as you are careful about what you mean by ‘feudal’. More about that in a moment.) So we really need to recognize that libertarianism can run the gamut from feudalism to J.S. Mill’s On Liberty. That’s really pretty weird.

Now: why would libertarianism be a form of feudalism, of all things? Here I would like to offer an argument of my own, which I came up with reading Jan Narveson’s The Libertarian Idea, a couple years back, which dovetails with Freeman’s argument. He discusses Narveson quite a bit along the way and has thereby gotten me off my butt, to write out these old thoughts. (Pardon me if someone else has already made this argument, or nearly. It seems like the sort of thing that someone has probably already tried on for size. I am not a literature hound on this stuff.) Libertarians – propertarians, anyway – rather notoriously maintain that you really ought to be able to sell yourself into slavery, if you want to. After all, you’re your property. You should be able to dispose of yourself as you see fit. (Some libertarians don’t go so far but many do. Nozick, for example. I think it’s pretty hard to resist this conclusion, in princpled fashion, once you’ve bought the strong self-ownership principle.)

Now: suppose we drop, experimentally, just the libertarian ‘self-ownership’ assumption, while keeping the ownership model. Imagine a society in which everyone belongs to their parents, at birth. (Or, if their parents belong to someone, to their parents’ owners.) The libertarian logic of this is clear enough, I trust. (I don’t say all libertarians should be bound by logic to embrace this vision of utopia on the spot, but they ought to recognize libertarianism, minus assumed self-ownership, as a form of the philosophy they advocate, albeit an extreme form.) You didn’t make yourself. You are not the sweat of your brow. Someone else made you. And people are the sort of things that can be owned. So you are a made-by-someone-else thing. And made to be owned. Why shouldn’t you be born owned by whoever went to the trouble (two someones?)

It would be kind of fun to sketch a hyper-propertarian society, organized along these lines. It’s not obvious how such a society would work. Obviously it could work (or fail to) in a lot of different ways. It wouldn’t have to turn out radically differently than what we’ve got now. Most parents love their children, so they would free them – officially at birth, or when they turned 18 or whatever. But it could turn out quite differently, if different social patterns developed. You could have your free children and also your slave children, and you might regard them very differently. This utopia doesn’t seem likely to shape up as a more free society than the one we’ve got, by any ordinary stretch of our ordinary notions of freedom. It wouldn’t be terribly surprising if it turned out radically … feudal. Libertarianism, in this extreme form, could turn out to be the road to serfdom. But beyond that, it would be quite feudal in the sense that Freeman actually has in mind, which is not the serf-sense. He means that political power is privately held. And a bit more. I’ll just quote Freeman:

Under feudalism, the elements of political authority are powers that are held personally by individuals, not by enduring political institutions. These powers are held as a matter of private contractual right. Individuals gradually acquire the power to make, apply, and enforce rules by forging a series of private contracts with particular individuals or families. Oaths of fealty or service are sworn in exchange for similar or compensating benefits. Those who exercise political power wield it on behalf of others pursuant to their private contractual relation and only so long as their contract is in force. Since different services are provided to people, there is no notion of a uniform public law that is to be impartially applied to all individuals. (148)

In other words:

Libertarianism resembles feudalism in that it establishes political power in a web of bilateral individual contracts. Consequently, it has no conception of legitimate public political authority nor any place for political society, a “body politic” that political authority represents in a fiduciary capacity. (149)

Now, to repeat: this Freeman sense has nothing to do with serfs (hence nothing to do with, say, Marx’s view of feudalism as tied up with serfdom.) Freeman emphasizes that feudal Japan, for example, fit his ‘web of bilateral individual contracts’ feudal model, but they didn’t have a lot of serfs around the place. Nevertheless, when we add a bunch of actual serfs to the picture—by making everyone be owned by someone else at birth—it isn’t hard to imagine the place could start shaping up as really, really feudal. Maybe in a 21st Century sort of way. (Or a 23rd Century way.)

But of course libertarians just don’t think you should be owned by someone else at birth. But why not? Because freedom, that’s why.

But seriously. Suppose an inhabitant of this feudal libertarian utopia objected to not being able to own his own children. Because creeping socialism, that’s why! (What will they take away from me next?) The government is stepping in and taking property, without compensation, and redistributing it to—well, to the property. And a very undeserving sort of moocher it looks, there in its crib. This welfare scheme—taking things from owners and giving them to themselves – is sure to lead rampant child abuse, typical liberal self-defeating perverse consequences idiocy. (Anyway, why should there even be an agency with the authority to take and redistribute property in this extremely expansive and unwarranted fashion?)

Now, to repeat, libertarians don’t have to buy this hyper-propertarian scheme, by any means. But I think libertarians should admit that it is a libertarian scheme. It’s roughly half of what libertarians believe, plus an argument that the other half is really inconsistent with the half we are keeping, hence ought to be let go.

Let’s get some quotes in here (I’m getting them out of Freeman, who sees basically the same features in these ideas that I am bringing out by my thought-experiment). Jan Narveson: “Liberty is Property … the libertarian thesis is really the thesis that a right to our persons as our property is the sole fundamental right there is” (p. 66). And Murray Rothbard:

In the profoundest sense there are no rights but property rights…. Each individual, as a natural fact, is the owner of himself, the ruler of his own person. Then, “human” rights of the person... are, in effect, each man’s property right in his own being, and from this property right stems his right to the material goods that he has produced. (Property and Market, 238).

Now obviously this is strictly inconsistent with making everyone someone else’s property (at least at the start); but only incidentally inconsistent: just as the question of who owns which house or car is hardly essential to the general idea of private property ownership, so the question of who owns which person ought to be separable from the general idea of libertarianism – which is, simply, that there are no rights but property rights. And liberty is but one form of (alienable) property, albeit a very important form of property.

What Freeman says about this sort of thing—the very thing I thought reading Narveson—is that it turns out that libertarianism isn’t about the importance of liberty. It’s about the nature of rights and property.

The response to this would surely run, rather angrily, as follows. Narveson: “The idea of libertarianism is to maximize individual freedom by accounting each person’s person as that person’s own property” (p. 175). I am sure that Rothbard and Nozick would chime in with more of the same. The obvious problem with making everyone belong to their parents, rather than themselves, is that you don’t maximize individual freedom that way. Hence the problem with dropping this crucial element of libertarianism, then complaining that libertarianism isn’t about liberty, is that of course a philosophy will lack any bit that you’ve gone and carved out of it.

But this is too quick. That’s a very funny sentence from Narveson I quoted. Compare:

The idea is to maximize individual freedom by locking everyone up.
The idea is to maximize individual freedom by a punch on the nose.

Ok, a bit more seriously:

The idea is to maximize individual freedom by providing a guaranteed minimum income and generous social welfare programs from cradle to grave.

And a bit more simply: The idea is to maximize individual freedom.

Now, plausibly, you can do all these things, if you choose. To maximize freedom by locking everyone up, I suppose you would try to build the very most open-ish, least restrictive sort of jail you could devise. To maximize freedom by punching noses, I guess you would study the ways of the Batman, or something. What is far from obvious, obviously, is that doing either of these things equates to maximizing individual freedom. Period. And the same goes for maximizing individual freedom by accounting everyone their own property. You can set out to do this by attempting to devise the most smooth and efficient system for treating everyone as their own property. But it obviously doesn’t follow that this is the way to maximize individual freedom. Period. It’s more plausible that you will maximize freedom by treating everyone as their own, alienable property than by punching them in the nose, but it’s not self-evident that you can do it either way. Maybe people would be more free, on the whole, if you do something else entirely.

So what do libertarians believe?

1. That we should maximize freedom.

2. That we should get the most freedom we can, by treating liberty as property, and everyone as their own property (at least at the start).

3. That in fact treating liberty as property, and everyone as their own property, necessarily will (or will tend to) maximize freedom.

4. That we should treat liberty as property, and everyone as their own property.

I take it that pretty much all libertarians would like to believe all of 1-4. This is what makes them a family. But 3) is not a normative principle of political philosophy so much as a falsifiable hypothesis. Suppose there’s a problem with 3 (we’re getting there). That will create a split. Some libertarians will stick with 1). Those are the liberal libertarians, the ‘thick’ sort, like J.S. Mill. Some others, on the other hand, will stick with 4. That is, there are no rights but property rights. Liberty is property. And everyone is their own property. This makes for a very serious and fundamental philosophic split down the middle, to put it mildly. Because 4 can be regarded as a kind of feudalism + minimum welfare state: everyone is given one lump-sum gubmint handout at birth—herself. Feudalism + welfarism is a cheeky formula for thin libertarianism, to be sure. But it brings out its genuine kinship with other views like: your parents owns you at birth. The king owns you at birth. God owns you at birth. The local lord owns you at birth. These ‘propertarian’ variants are but one step from propertarian libertarianism.

Yeah, but that one step is a doozy, freedom-wise. Let me quote Freeman again, quoting libertarians advertising their positions.

Libertarians commonly announce their view with such claims as, “The only relevant consideration in political matters is individual liberty” (Narveson, p. 7); or “Libertarians agree that liberty should be prized above all other political values” (Machan, p. vii); or “The idea of libertarianism is to maximize individual freedom” [Narveson again]. Nozick, more cautiously, makes no such general claim. But he does contend that “liberty upsets patterns” of distribution (ASU, p. 160), and argues as if anyone with a proper regard for liberty should see that patterned theories of distributive justice violate a commitment to freedom

The question is really what ‘liberty’ means. That last thought from Nozick is nice, because a defender of my hyper-propertarian utopia would no doubt deploy this thought against any socialistic scheme to redistribute babies to themselves. This sort of ‘patterned theory’ of distributive justice—everyone gets 4 limbs and a mewl, to have for their very own, at birth—violates proper regard for ‘liberty’. Everyone owning themselves is a flagrant violation of liberty. What sense of ‘liberty’ is operational here? Freeman:

Libertarians may reply that the enforcement of a person’s rights is not coercive interference with others’ lives. “Coercion” in their account is not just any use of force but the aggressive interference with another’s rights. People are not coerced when prevented from actions (such as trespass or theft) they have no right to perform. This moralized definition of ‘coercion’ may accord with common usage in some cases, but to extend this manner of speaking to all cases has peculiar consequences. (124)

Obviously, no one is in favor of someone ‘taking someone else’s life’—to focus on a paradigmatically extreme sort of aggressive violation. But if the life animating your biological organism doesn’t necessarily belong to you, because it is a piece of alienable property, we can’t just go assuming the killer wasn’t ‘taking his own life’, i.e. killing a slave that properly belonged to him. And libertarians are ok with ‘taking your own life’, if you want to.

And:

What of libertarian declarations that “people interfere with each other’s liberty as little as possible” (Narveson, p. 32)? This declaration cannot mean that libertarians seek to minimize the number of interfering actions. It is easy to imagine a libertarian society without popular support, where the majority of people do not accept (because they cannot afford to) its absolute property rules, are prone to forage for their subsistence, and meet with constant and regular interference because of legal trespass or theft. The point of libertarian arguments for minimizing interference is to keep to a minimum, not interfering actions, but the kinds of political duties we have, and in particular any enforceable obligations to transfer market-acquired holdings to benefit the disadvantaged. (126)

Jim Crow, for example. The social-legal lot of women in the U.S. in the 19th Century is a less extreme case, but similarly illustrative.

There is a very brief, oddly Buddhistic way to put this: if liberty means non-frustration of the exercise of legitimate property rights, you can be made perfectly free by being completely relieved of all property, including your own life. (Just as Buddhists may say that the route to freedom is killing all your desires, so they cannot be frustrated.) So: not only is slavery in principle acceptable to a libertarian (propertarian), the slave remains, technically, completely at liberty, even at the moment he is killed with impunity by his master. (His master has no duty to transfer title to the market-acquired slave’s life back to the disadvantaged slave.)

Whatever the merits of this view, it is radically at odds with our ordinary notions of freedom, to say the least. (We could dispute what those ordinary notions are, or should be: but ‘slavery is freedom’ is not among them.) Libertarians are, of course, not interested in maintaining that ‘slavery is freedom’ any more than liberals, but—because this is so—they really have to drop the advertisement that libertarianism (of the propertarian sort) aims at maximizing freedom, or minimizing people’s interferences with each others’ freedom. It does so only in the tricksy, Buddhistic sense.

To review. Why won’t libertarians like my ideal, hyper-propertarian utopia? Because it doesn’t maximize freedom, that’s why. But it does, in a technical sense. If everyone is a perfect slave, infringements of liberty are reduced to zero, by definition. OK, fine. We mean the ordinary sort of freedom. The sort we actually want. Fine, but now why stop at giving people themselves, and nothing else? This might get us only to Jim Crow, or to the lot of women in the 19th Century. That’s not freedom in the ordinary sense. So obviously we need to keep going along this path, if the goal really is to optimize the supply of liberty, and make sure everyone has essential access to that basically equal supply. The hypothesis that you actually will do this just by giving everyone self-ownership, and letting the market take it’s course, is empirically implausible. It is predictable that there will be ‘market failures’, and it is implausible that those failures can never be corrected except in self-defeating fashion, i.e. by creating greater loss of liberty on some other front. It just isn’t that hard to end Jim Crow without accidentally enslaving the white people, as an unintended consequence. So if ‘society is playing the tyrant’, in Mills’ sense, and you – a libertarian – don’t feel obliged to do anything about it, you are giving up on the ideal of freedom, except in this highly technical sense that really doesn’t have much appeal. Slavery can be freedom.

Turning this point around: if libertarians stick to their ‘thin’ guns they are sticking with feudalism + minimum welfare state and letting go of any ideal of liberty, in any ordinary sense. There is no other philosophical reason to stick with that position. (More realistically, you are elaborately apologizing for the status quo.) On the other hand, if libertarians stick with the ideal of maximizing (optimizing) the stock of freedom—making sure there is as much of the stuff as is consistent with everyone having that amount of it—then you are like Will Wilkinson or Jacob Levy. Namely, you have no fundamental philosophical disagreements with a great many liberals, only an instrumental, policy dispute over the best means of achieving what is basically a liberal end. You find yourself in the position of agreeing with ‘thin’ libertarians about a lot of policy questions, because you think that 3) is often basically true, even though it isn’t some sort of conceptual truth or absolute normative principle. You think liberals are perversely obstinate about resisting market solutions; but you are philosophically at odds with ‘thin’ libertarianism because you are in favor of liberty, whereas at bottom those others have this funny sort of feudalism + welfare thing going on. Which they are concealing under screwy usage of words like ‘liberty’ and ‘coerce’ that pretends to be no-nonsense usage.

Let me finish with a final note about the case of Bryan Caplan. I honestly feel a bit bad about having snarked at him so severely because, after I did that, I remembered that I have actually met him. (Hey, he doesn’t look anything like that picture up on EconLog.) And he seemed perfectly friendly and nice, and we got along fine, which causes me to feel irrationally remorseful for my high-handed mockery. Which doesn’t make a bit of sense, because either snarking is ok or it isn’t. And I don’t retract a word of my complaint, philosophically. But I think we can see the source of his error, possibly, in light of my brilliant analysis. Caplan is, I am pretty sure, a ‘thin’ libertarian. Self-ownership and the market and non-aggression and no fraud. The minimum libertarian package. He has this idea that men, in the 19th Century, in the US, were closer to his libertarian ideal than men today. Because less government and lower taxes, pretty much. He has been trying to make out that, functionally, if not strictly legally, the lot of women was not so much worse than that of men. Conclusion: women back then still better off, libertarian-wise, than women today. This isn’t plausible, for all the tons of reasons that have been piled on, and you aren’t really allowed to reason this way anyway, as a libertarian. As Jacob keeps begging him to admit. But the really simple problem here, which is leading to so much bafflement on the part of spectators, is that Caplan is measuring freedom in such a narrowly libertarian way. Liberty is not being interfered with, if the exercise of your legitimate property rights is not interfered with. But by that standard, not only might married women in the 19th Century qualify (if we accept the ‘put your foot down’ and force your husband to do it form of argument); but, actually, African-Americans under Jim Crow would quality. And indeed, African-Americans in slavery might qualify, if it had only been the case that their sales had been on the up-and-up, libertarian-wise (which they clearly weren’t). That is, you can’t tell that there is any lack of freedom, just by looking at the pre-Civil War South, and noticing there are lots of slaves. You have to ask: how did they get this way? Since Kaplan is not looking at how women in the 19th Century got into the general social state they were in, he is hardly going to conclude that there is anything necessarily ‘unfree’ about that state. Unless there are high taxes in it.

In short, everyone is looking at the screamingly feudal results and saying: how the hell does this look like liberty? And the answer is: Caplan is a libertarian, so of course it can look strangely feudal. That’s because it can be completely feudal. Jacob Levy and Will Wilkinson are pained by this, because, though they too are libertarians, the principles that they are working from—optimize the supply of liberty (in something like the ordinary sense)—are radically incommensurable with the principles that have to be behind Caplan’s philosophy. And I am sure Caplan would deny this, but I don’t think he can, in good philosophical conscience.

---

UPDATE: there’s a kind of thin/thick liberalism/propertarianism parallel that runs through the post, by implication, that doesn’t fully hold, on reflection.

LINK: <https://crookedtimber.org/2010/04/15/libertarianism-property-rights-and-self-ownership/>