A Libertarian Error
According to Wikipedia, libertarianism is described as follows:
“The term libertarianism originally referred to a philosophical belief in free will but later became associated with anti-state socialism and Enlightenment-influenced[8][9] political movements critical of institutional authority believed to serve forms of social domination and injustice. While it has generally retained its earlier political usage as a synonym for either social or individualist anarchism through much of the world, in the United States it has since come to describe pro-capitalist economic liberalism more so than radical, anti-capitalist egalitarianism. In the Stanford Encyclopedia of Philosophy, libertarianism is defined as the moral view that agents initially fully own themselves and have certain moral powers to acquire property rights in external things.”
Perhaps the best-known utilitarian philosopher also considered a fundamental contributor to modern libertarianism, Jeremy Bentham, is said to have asserted: “Every law is an infraction of liberty.”[1] These ideas are descended from other thinkers in the “liberal” tradition such as John Locke who posited that (in a reflection of the Old Testament’s essential myth of the Garden of Eden and Man’s “fall from grace”) men had come from a place of great, complete freedom for each individual, the “state of nature,” but had been unable to live peacefully therein thus finding it necessary to create government and law. Another, more contemporary way of stating the issue is found in the proposition that “without law there is no liberty.”
In modern terms, we have inherited the notion that our social, economic, indeed our spiritual existence is a zero-sum game in which all gains must be offset by at least equal losses. Modern American conservatism and libertarianism share the notion that government, law, and (especially for libertarians) many social restraints are thefts of natural liberty properly belonging to people as individuals. The latter is most often formulated for popular usage as “the less government of the individual the more freedom for the individual.” This reinforces the notion that “limited government” is a positive good and therefore the more limited the better. However lacking in cogency, confused and oversimplified these beliefs may be they are powerfully emotional drivers of contemporary political ideology, especially in the United States. The central question is must government and law always diminish the available “stock” of liberty? Or, conversely, can government and its law expand liberty?
These basic questions raise more fundamental questions. Is any law an infraction of all liberty that must be justified by some greater good? If not, then it may be an infraction of some particular liberty or some person’s liberty but not that of others. Can law add to liberty? In short, can law be “shown to add to the common good?” If law can be understood to add to the sum total of available liberty, under what conditions can it occur – how is the “greater good” to be understood? More fundamentally, is the relation between law and liberty to be seen as a zero-sum or as a non-zero-sum situation? As Thomas Hobbes might have pointed out “where every person may claim complete liberty to do as he or she wills no one can be free.” Even more bluntly, natural freedom cannot exist in human society.
The western liberal tradition often seems to be rooted in the zero-sum assumption that implicitly denies the possibility that humanity can add to its “natural stock” of liberty as a direct or indirect result of law or act of government. Since an unregulated or unlimited liberty in the natural state of existence (the basic classical liberal fantasy) produced, in Thomas Hobbes’ famous statement a “war of all against all” government is necessary to protect a more limited universe of liberties. The “natural law” theories propounded by Hobbes, John Locke, and others in the 17th and 18th centuries combined with the emergent liberal capitalism of the 19th to reinforce notions of individual freedoms defined by a predominantly economic frame of reference that assumed individual liberty to be given as a fixed quantity to be reduced by government only to the extent necessary to control the (irrational) behavior of those who might violate the liberty of others.
The emergent ideology of capitalism replaced the primary role of government with the economic market thought to act as an autonomous mechanism for punishing, and thus controlling, irrational behavior. The narrow self-interest of each individual as an economic actor would work through economic competition to control abuses and reduce or eliminate the need for government. Thus, the liberalism of the 19th century rejected the premises established in the previous two centuries, at least in significant part, even though lip service continued for them in ideological expression. Regardless, the emergent, and self-serving capitalist liberalism of the 19th and 20th centuries would take the fundamental position that little or no collective conscience or judgment would be needed to determine the content and effect of virtue or justice in society (and thus did 19th Century liberalism become 20th and 21st Century conservatism/libertarianism and reduce itself to an ideological fundamentalism). The economic market became, effectively, the “invisible hand” of God.
This negative idea of law and government has become so deeply rooted in American political culture that it has assumed a considerable degree of taken-for-grantedness. But, it is a standing myth that does not withstand close examination from either an empirical or logical perspective. As a political catch phrase, the idea is an often effective but gross simplification having a dangerously corrupting influence. It encourages an emphasis on more or less government rather than better or worse, more effective or less effective, more efficient or less efficient and thus encourages and abets hidden agendas inherently subversive of social order and well-being.
The negative perspective is especially central to current conservative and libertarian thought in the U. S. It seems to form a foundational assumption in those ideological constructs. It is a fundamental justification of their anti-government rhetoric and belief system. Their progressive (i.e. contemporary liberals) opponents, while often assuming a more positive conception of the purposes of government have yet to formulate a popular, clear or coherent alternative to the standing myth. (I set aside John Rawls for the purposes of this essay). A revised conceptualization of the nature and functions of liberty in the human community, and the path to its realization, is sorely needed. The original liberal project envisioned by the writers of the U. S. Constitution of achieving a just society wherein individual liberty and virtue (by which they meant rationality) could thrive is in serious jeopardy from the distortions arising from its own traditions and historical evolution.
Progressives and liberals also seem often to take the tradition for granted and rely on the utilitarian principle handed down by John Stuart Mill that individual liberty may only be constrained in order to prevent harm to others. Libertarians and many conservatives seem to accept the same principle but ignore any harm but the most obvious or serious and do not consider the substantial problem of the necessity of anticipating what harm to another might occur. The latter is critical to any claim of liberty since any inability to anticipate correctly denies the claim! Thus, much of our partisan conflict can be understood as a dispute over the existence, and the remedy for such “harm” and whether it exists at all. Indeed, this is a fundamental problem with Mill’s formulation in that both subjective and objective harms are not only difficult to define but even more difficult to agree upon. But, if the totality of available liberty is mutable and even expandable, then we must consider the probability that government, through law (no less than society through moral norms) can actually expand its possession and distribution. That abundant historical evidence can be marshaled for this view should be obvious. That American Federalism established a national market as well as a constitutional regime could be taken as an early example of such an expansion of liberty.
The principal error I perceive in the classic and contemporary arguments that individual liberty is a function of the lack of constraint by law (government) is that it fails to account for the distribution of liberty, and its concomitant, political power, across a polity. Put simply, no one has liberty if they lack the capacity to act – that is, if they have little or no power with respect to others or to their environment.
These arguments make a very common mistake of not explicitly accounting for the fact that politics and power are very unevenly distributed throughout all sectors and levels of society and do not reside only, or even predominantly, within governmental institutions. Although briefly considered by James Madison in the Federalist and having a heritage traceable to Aristotle, the relation between the distribution of power and the distribution of liberty has become all but lost in the fogs of time and distorted by ideological confusions and delusions. For those of the political right wing in the U.S. much of that confusion has been reinforced by the notion that any government interference in economic activity must produce not only economic weakness but such a loss of liberty as to put everyone on a “road to serfdom”, to take the title of Hayek’s book which serves as one of their favorite texts.
But, Hayek had it both wrong and backwards. A totalitarianism of the market is no less destructive of liberty than a dictatorial totalitarian state. For both the state and the market constraints are necessary to control abuses of power. Yet both are necessary to liberty itself since the failure to constrain the concentrations of power in the hands of a few, in either the political or economic realms, must operate to render most people into the serfs or slaves of those same few.[2] The classic formulation would put the problem rather starkly: Increasing concentration of wealth in proportionately fewer persons produces corresponding increases in social and political power in those persons. As a corollary, some of those persons will choose to abuse their power and move to protect their perceived interests and use political power to deny liberty to the majority. It is nearly axiomatic that economic inequality tends to produce social and political inequality and, hence, gross distortions in the distribution of power in a society. Thus, the libertarian formula of minimal government and maximum individual liberty is a functional oxymoron.
The analogy of the “Tragedy of the Commons” has already seriously challenged the notion that the free market driven by individual (rational) self-interest is sufficient to the achievement of a just society, especially a society that can survive. In addition, most of contemporary philosophy, economics and social science accept that much individual economic behavior is not rationally self-interested but more often a complex mix of the rational and the irrational, thus recognize, at least implicitly, limits to the earlier market construct. Although many of those who argue that the unrestrained market is the solution to the dilemma of the tragedy of the Commons, regardless of the rationality of its players, they do not seem to deal with crucial missing elements – the assumption that the market must eternally have access to unlimited natural resources and adequate human resources and the probability that individuals will develop an emotional need to measure their freedom in inverse relation to another’s loss of freedom.
Thus, again libertarianism describes the ugly consequences of zero-sum philosophy. It is obvious that the earth itself is an ultimately limited resource and Einstein’s relativity has left us an apparently insurmountable barrier to resources beyond our own solar system. Similarly, there is insufficient consideration of the questions raised by too many human resources as opposed to too few. Modern social science and philosophy has not yet come to terms with these ecological dilemmas.
The issue appears to be that a successful society cannot be founded solely on the basis of the operation of autonomous forces nor can it assume eternal resources available for its support. Societies must be constructed and managed by human beings using conscious individual and collective capabilities in concert with those autonomous forces. It may seem a paradox to some, but liberty is a social construct that depends on implicit and explicit political processes and may expand or contract its scope and domain or, indeed, create new forms within an ever-changing process of construction, destruction and reconstruction. And, it must do so within the context of the ecological dilemmas described above.
Bentham, and perhaps Hayek as well, might be revised by asserting that “every law that does not add to the net balance of liberty and well-being among all individuals is an infraction of liberty.” A law that neither adds to nor detracts from the net balance of liberty would seem to be pointless. This idea may appear obvious but it involves that perhaps difficult to comprehend notion that law can expand liberty as well as contract it. The basic reason for this reading is that the distribution of individual liberty in any polity is a function of the distribution of power (social, political, and economic, in particular the distributions of wealth and income – hereafter treated as inseparable) in that polity. Note that individual liberty and well-being can be understood as closely related in this reading. Imbalances in the distribution of power must necessarily affect both the distribution of liberty and the total stock of liberty. (This is one of the primary reasons why a universal, equal and enabled franchise is essential, although this begs the fundamental question of the virtue of the franchisee.) The last observation may be seen as unremarkable until it is added to the first.
There is a danger in the ideological assumptions of libertarianism in the underlying natural law fallacy that is hidden within it: that each individual is naturally and equally free as an a priori condition independent of the polity. We may agree with the proposition that each individual is naturally equal in possessing the right to liberty but must add that such right is utterly dependent on the polity in which the individual is found. To the degree that justice demands a fair distribution of liberty and well-being in society as well as power, perhaps some different thinking is in order? Strains and foreshadows of this notion can be found in many bodies of thought ranging from Aristotle through John Locke to James Madison, John Dewey and John Rawls, to mention just a few.
That political power is derived from social position and economic condition is not a unique perception, but it is necessary to deal with the ideological corruption of the idea of liberty that has become so widespread. If the quality and quantity of liberty is not assessed in terms of its distribution among all members of society it cannot be comprehended meaningfully. To follow an ideological trajectory that formulates liberty in terms of the popular absurdity that less law (read, “less government”) must result in more liberty for the individual simply ignores the issue of the distribution of power.
If power is both mal-distributed and abused in a polity by some individuals or collectivities of individuals by its use to constrain the liberties of some to the benefit of others whether or not in the presence of government action, then liberty cannot be increased by the simple expedient of reducing government. The simple ideological formula is that liberty exists in finite amounts available to individuals and is reduced by the extent of government enactment and enforcement of law but increased, within its natural limits, by the lack thereof!
In Ayn Rand’s formulation contributing to a modern cult of individual supremacy the exercise of liberty by a few successful and therefore superior individuals justifies the denial of liberty to everyone not included in their number. All this begs questions about the appropriate definition and understanding of the society and polity, politics and power, and their interactions. It is simply absurd indiscriminately to argue that less law and less government must increase available individual liberty, as it is equally absurd indiscriminately to argue that more law and government must decrease or increase available individual liberty. The essential matter at issue here is that in any society and polity individual liberties are constrained by myriad forces just as they may be exercised (the essence of having liberty) through myriad powers. The abstraction of liberty has never been an aspect of the real world but is always an artifact of the political world that regulates the distribution of power among people.
From the perspective of individual liberty in a society and polity, we should understand the relation among them in terms of complex interactions having the potential to enhance liberty as well as constrain it. If social power (and, thus, economic power) is inherently unequal, and we must take that as true in all but imaginary cases, then we must assume that it will be exercised unequally and to unequal effect. The peculiar task of the polity, considered from a concern for liberty as ultimately beneficial to society and the individual, is to find the means and a method of legislating rules that distribute liberty and allocate power to the net benefit of society and/or adds to it. To do so requires a restructuring of our view of society, economy, and polity and the individual’s roles and positions in them.
My view here is that the social, economic and political aspects of individual existence must be understood as complex integrated, interactive, and mutually interdependent sets of processes. To take the traditional disintegrated view is simply to take a position in contests for power advantages among individuals that takes on the self-limiting qualities of the zero-sum game and thus, perversely, constrain both individual liberty and the community’s potential for both qualitative and quantitative development.
Notes
[1] (Cited by Isaiah Berlin in Two Concepts of Liberty; as similar to “Every restraint on liberty is so far an evil: and it lies on him who proposes any such restraint, to shew the greater good by which this evil is counterbalanced.” -In Bentham’s Defence of Usury, 1787))
[2] I am forced by common language usage to abuse the meaning of “political” here since it should be obvious that the politics of government is mirrored in the politics of agencies in economic life wherein the distribution and exercise of power must take similar basic forms.
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