1
The Case for Libertarianism:
Sovereign Individuals
Tibor R. Machan
3
What I wish to argue here is that libertarianism, as the development
of classical liberalism and the political principles
sketched in the American Declaration of Independence, is the
best answer to the question, “How ought we to organize our
political societies?” Since the Declaration is an announcement,
not a detailed treatise, this concise statement of political ideals
needs to be fleshed out. The bottom line, though, of the
Founders’ idea, as well as of libertarianism, is that individual
members of human communities are sovereign, self-ruling or
self-governing, agents whose sovereignty any just system of
laws must accommodate.1
Throughout the world, the thinking about the United
States by ordinary folks—or at least in terms of the United
States as a political community—still brings to mind the substance
expressed in the Declaration. This is that people have
been created equal and endowed by their creator—be that
God or nature—with unalienable rights, and that the role of
government in a just system is to “secure these rights.”
The revolutionary element in the Declaration is that unlike
in most official political statements of the past, it deems
the individuals constituting society to be the focus of political
importance—not the monarch, chief, tribe, party, class, or
even majority. The reference to unalienability renders the
document an especially radical one. It affirms the uncompromising
priority, within the context of public-policy decision
making, of everyone’s rights—among others, those to life, liberty,
and the pursuit of happiness. It also assigns to the just
powers of governments the primary function of securing
these rights. Thus the Declaration of Independence is in its
essence a libertarian document—it is concerned with the basic
right to individual liberty of all those who are citizens of a political
community.2
Libertarianism—once referred to as “classical liberalism”—
proposes a strictly limited conception of politics, in contrast to
that embodied in, for example, monarchies (from absolute
types to those limited by the parliament), the welfare state,
fascism, or socialism. All such latter systems have top-down
structures and hierarchies of importance, in which certain
common ends or goals—or as the late Robert Nozick called
them, “end states”—are sought for everyone, rather than the
bottom-up type envisioned by the American founders, which
stresses procedural principles by which the society is to be governed.
Order, fairness, cultural superiority, and the like are not
the goals of “bottom-up” governance; consensual community
life is.
It is human individuals, living their lives on terms of their
own, who matter most in such a political system. Even the
much championed democratic aspect of such a system is
strictly limited. The method of democratic decision making is
to be circumscribed and restricted so that only those democratic
decisions can be construed as just and proper that do
not violate individual rights.
As a matter of history, the U.S. Constitution gave some, although
by no means full, expression of the ideals stated in the
Declaration. There were some major contradictions, including
slavery and some other coercive features within the Constitution,
supposedly allowed so as to appease some powerful
4 / Chapter 1
prospective U.S. citizens for the sake of creating a strong federal
union that would be capable of resisting foreign intervention.
Still, what has been perceived as particularly novel about
the American founders’ vision remains a serious political alternative
today and still energizes a great many people to seek
to emigrate to the United States so they may benefit from the
protection of individual human rights promised, albeit somewhat
confusedly, in that society.
What specifically are these energizing ideals? What does
the claim mean that every adult individual has unalienable
rights—rights that cannot be lost so long as one remains a human
being—to, among other things, life, liberty, and the pursuit
of happiness? That claim translates into a system of
political society wherein everyone is authorized to carry on
his or her chosen activities and pursue his or her objectives,
only if doing so does not violate others’ rights—and wherein
the government’s role is restricted, as already noted, to securing
these individual rights. Other valued goals and ends are to
be sought without the use of coercive force, even that which
government might lend in aid of such pursuits. There is an
underlying assumption in the Declaration and in libertarianism
that once human beings are forbidden to deploy coercive
force in pursuit of their objectives, they will tend to pursue
them peacefully, with one another’s consent, and that this will
produce as good a human community as is achievable among
human beings. Indeed, libertarianism stresses the ideal of civil
society—meaning a society that eschews dealing with one another
by subjugation, oppression, conquest, or similar coercive
means, means taken to be standard in the non-human
animal world.
It is worth noting here, parenthetically, that among libertarian
political philosophers and theorists it is generally understood
that there is a decisive difference between coercion
and force—the former is initiated, unjustified, and oppressive,
whereas the latter is the application of physical power for various
purposes, some of which can be quite justified, such as
The Case for Libertarianism / 5
self-defense or the defense of someone who has delegated this
authority to another, or, of course, various productive ends,
such as hauling bricks or moving boulders. Force is akin to violence,
which may be justified or not. Thus, being forced to
work may be unobjectionable if the source of this force is the
necessity to eat.3
(Not all libertarian thinkers keep strictly to
the distinction—some will use the phrase “coercive force” to
indicate the difference involved.)
One way to see this is to understand government as having
the professional duty to protect the basic rights of the citizenry
that has instituted, “hired,” or established it. This is
probably fruitfully illustrated by how at a sports event referees
are hired to carry out a strictly limited role, namely, to
make sure everyone plays by the rules of the game.4
(Just as
referees can come to the aid of injured athletes without their
job description being changed to “medics,” so government officials
are not barred from occasionally answering to emergencies.
The cop on the beat, though a peacekeeper, may now
and then give directions to someone who is lost, provided this
does not interfere with his essential task.)
Government’s role, like the referee’s, is important, without
doubt. The institution has been perceived as important, despite
much of the malpractice of various governments over
the centuries, because it is reasonably well understood that in
human affairs it is necessary and valuable to uphold standards
of conduct and have specialists to do so properly, adhering
to the complications of due process. This is to say that
justice must be secured justly. (For libertarians the debate concerns
mostly whether a government, with a monopoly over
the lawful use of force within some region, or whether various
“defense-insurance”—or justice—agencies, without any such
monopoly status, ought to carry out this task.5
Some libertarian
theorists call themselves “anarchists,” some “minarchists.”
The former substitute for government what they call
defense-insurance agencies, competing legal services or the
like, whereas the latter argue for a noncoercive system of law
6 / Chapter 1
enforcement that would amount to proper government, via
the full—explicit or implicit—consent of the governed, yet
that would be a natural monopoly within a given geographical
region.)
But politicians and bureaucrats, with the precarious task
of securing our rights without violating them as they do so,
are not also doctors, dentists, dance instructors, or members of
some other profession. Professional referees do some very
specific things, primarily to adjudicate disputes over rules—
and that is essentially what the libertarian or classical liberal
political position proposes. It rests on the idea that once they
reach adulthood human beings are sovereign individuals,
with no proper authority to govern another without that
other’s consent to be governed. As Abraham Lincoln put the
point, “No man is good enough to govern another man, without
that other’s consent.”6
Any coercion by one person of another
is thus deemed unjustified, and government is
employed to protect everyone against such coercion, including
itself. (Force used defensively or in retaliation is not, as we
have seen, the same as coercion—the use of force in violation
of people’s rights—although the distinction is not often put in
these terms.)
The mainstream political stance, in contrast, tends to be
represented by advocates of a more or less expanded welfare
state, both those on the Left and on the Right. What mainstream
politicians argue over are the expenses—and at times
the scope—of a democratically guided coercive welfare state,
not whether such a state should exist or is just.
I say “coercive,” but this begs the question, since advocates
of the welfare state often hold that what is taken from a
person, be it assets or labor time, is in fact owed to others by
a natural obligation of some sort, that others have a positive
right to it. If, for example, Charles Taylor is correct that we belong
to our communities, that we are a part of these communities,
then the services and resources we are made to
contribute are like dues we owe. As Taylor laments, “Theories
The Case for Libertarianism / 7
which assert the primacy of rights are those which take as the
fundamental, or at least a fundamental, principle of their political
theory the ascription of certain rights to individuals
which deny the same status to a principle of belonging or obligation,
that is a principle which states our obligation as men
to belong to or sustain society, or a society of a certain type, or
to obey authority or an authority of a certain type.”7
I have argued elsewhere, however, that rights theories in the
Lockean tradition do not take rights to have normative primacy.
Rights are derived from the requirements of the ethics of individual
flourishing within the context of human communities.
There is no denial of the essential sociality of human beings, but
the Lockean tradition maintains that the individual needs to be
at liberty to determine to what sort of community he or she will
belong—if only by means of tacit or implicit consent—and that
the right kind is one in which his or her sovereignty has primacy.
It is only such a community that is fitting—that is, meets the
standard of justice—for human beings.
Libertarians, following the political vision of the American
founders (who themselves took their cues from the likes
of John Locke), believe that people have to take care of their
own specific welfare, within and by the voluntary cooperation
of their various communities and associations—families,
churches, service organizations, companies, clubs, and so on.
Only the general welfare is to be promoted by government,8
the securing of our basic rights—just as referees may be said
to promote the general welfare of an athletic event by upholding
its rules. People, in turn, are capable of doing their
job of promoting their specific welfare—pursuing their own
happiness—effectively if the government sticks to this refereeing
role, namely, running the courts, the police, and the
country’s defense.
Obviously, there are nuances and complications when one
translates these libertarian ideals into practical policy. Still it is
fairly clear that libertarian political thinking would contrast
sharply with a great deal of the current mainstream thinking
8 / Chapter 1
in even the Western world, let alone the rest of the world, concerning
the purpose of politics.
Interestingly enough, in the international arena the language
of this libertarian classical liberal political position is vibrant
now. Ideas such as privatization, globalization, property
rights, and the infrastructure of a free market system concern
the extension throughout the world of the ideas laid out in the
U.S. Declaration of Independence. If the people of all the various
societies around the globe want to prosper and improve
their lives, they do better by adopting the principles of a free
society associated with the American political tradition than
those of competing systems. Although in the United States
such ideals are not fully embraced or manifest, there remains
throughout the world a rhetorical identification of America
with the ideals of a fully free, voluntarist society of civil liberties,
freedom of thought and worship, free trade, free markets,
and capitalism. It is these ideas that are exported in the movement
roughly identified as “globalization.”
Also, interestingly, when the foreign policies of the U.S.
government are evaluated, libertarian notions tend to appear—
such as the critique of preemptive military attack, which rests,
at least implicitly, on the idea that unless someone initiates force
against a country—or is about to do so—that country is not authorized
to take forcible action. In short, the idea that force must
be limited to self-defense is quite prominent in such discussions,
yet of course many abandon it when it comes to the role
they assign to government in domestic affairs (e.g., precautionary
government regulations of various professions, which arguably
violate the ban on prior restraint, the prohibition of
using force on those who have not violated anyone’s rights but
merely might do so).
Now, what is crucial is why this libertarian alternative is a
good idea. It is one thing to say “We’re for it” but another thing
to say “We’re for it because it’s right.” In a column in The New
Republic, the author once recalled having attended an economic
conference in Japan and being cornered by a Japanese official
The Case for Libertarianism / 9
who complained that the Americans are arrogant because they
try to implore everybody else to accept their views about markets
and economies. Certainly libertarians do this as well.
Of course, nearly all political ideals are championed for
all, although in recent times the doctrine of multiculturalism
has tended to soften that stance.9
One way of putting the point
is to ask, “Why should what was laid out for Americans work
elsewhere or be right for others around the globe? Why can’t
different communities have their own different political systems?”
Many people say that about Cuba or even North Korea
and (before March 2003) Iraq—why should these change
into more democratic, individualist societies rather than stick
to their more collectivist systems? Maybe within those societies
such a system is more suitable. Yet, of course, those societies
too are championed by some who would wish the whole
world conformed to their visions. So the problem of proposing
political ideas across the board, for all human communities,
faces not only libertarians. If the implicit notion that
liberation is a kind of imperialism made good sense here, one
could go on to argue that urging Cuba, Iran, or any other society
around the globe to “democratize”—on the American,
classical liberal model—would be to practice imperialism, of
attempting to impose on others a system that is suited not to
them but only to the society imploring them to change. It
would smack of empire building, making every society conform
to the principles of a dominant one. That is just the complaint
some make about American-style Western liberalism as
well as its purified version, libertarianism.
Yet, advocating everyone’s basic right to negative liberty—
that is, liberty from others’ intrusive or aggressive conduct—
and trying to export it peacefully, by persuasion and economic
pressures, imposes nothing on anybody (just as a strike by
workers does not constitute a coercive imposition on anyone).
Yes, an idea and policies consistent with it are being advocated,
suggested, and recommended. But no one is being
made to do anything. In fact, the situation is quite the oppo-
10 / Chapter 1
site. The libertarian proposal for others to follow is akin to advocating
the abolition of slavery. Slave owners looked upon
the abolitionists with the same attitude: “Why don’t you keep
your abolitionism to yourself? We like it here, we have our little
quaint tradition called slavery, and you shouldn’t come in
here and impose upon us your ideas of abolition.”10
That is the same line that Fidel Castro, Kim Jong Il, and
their defenders advance (as Saddam Hussein once did) in response
to those who advocate greater democracy and individual
rights in the countries they rule: “The Americans are
imposing upon us this idea of democracy and individualism
when they do not want us to force everyone into collective
farming and industrialization.” It is the same when others object
to free market globalization. What that idea comes to is
the freeing up of people’s commercial and related activities,
the removal of state impediments to them. The people who
complain most about it are those who believe they should
have the power to run economic institutions, in a top-down
fashion, just as monarchies ran their mercantilist societies.
In many corners of the world, this idea that governments are
responsible for everything—governments are supposed to establish
religions (like in Iran or to some extent even in Israel),
governments are supposed to establish the conditions or culture
for the arts, for economics, and so on—is still very prominent.
Libertarians hold that the American Revolution (and it was a
genuine revolution, unlike the Russian one, which was just a
change of rulers), had been genuinely radical because it placed
on record, officially, for the first time the idea that it is individual
human beings who matter most in society, not the tribe, clan,
ethnic group, religious organization, or even the family.
Now, libertarianism is sometimes advanced on the
grounds that when people enjoy the conditions of negative
liberty, everybody makes the best judgments and the most
beneficial consequences all around are realized. Such a consequentialist
approach is unwise, since it suggests that free men
and women always do the right thing while those who would
The Case for Libertarianism / 11
regiment them seldom do. No, libertarianism only requires
that everyone ought to be treated as somebody whose judgment
matters and who is owed such treatment that his or her
own judgment can guide his or her life. Only once this freedom
to act on one’s judgment is secured can we begin to talk
about whether one chooses to do the right thing or the wrong
thing, whether one decides correctly or incorrectly. Such a discussion
is supposed to be conducted in a civilized fashion,
through reason and not coercive force.
In a libertarian system no vice squad is sent to break up
prostitution, but prostitutes may be implored to stop their degrading
professional practices. Once we send in the vice
squad we actually deny the prostitutes their humanity, as if
they could not make up their own minds. Indeed, by the libertarian’s
understanding, any introduction of coercive, initiated
force in human relationships does violence to people’s
humanity. This is because human beings are by their basic nature
rational animals, whose primary tool of survival and
means of flourishing is thought, for which negative liberty is
the central prerequisite. So, even such vital objectives as helping
the poor, uneducated, or sick must be achieved not by subduing
others and conscripting them to take part in the mission
but by convincing them to do so.
There are better ways than coercion to solve problems. The
whole point of civilization is to imbue a culture, a society, with
the method of reasoning, argument, and persuasion rather
than coercive force. Force is supposed to be the major means
available to other animals, which do not have the capacity to
reason. Humans, in contrast, are supposed to be patient
enough to wait until they manage to convince other people or
learn to live with the fact that they have not managed that
task. That is what is made possible in a system in which rights
are the foundation of law.
One of the libertarian elements of the United States of
America, one that serves as an instructive model of how a
generalization of the position would work, is the guarantee of
12 / Chapter 1
religious freedom. About 4,200 different religions and denominations
range throughout America.11
Are they at war with
each other? They are in a war of words every time one of their
members speaks from a pulpit: we are right, our God is right,
our scripture is right, and all the other 4,199 sects are wrong.
But they do not go to war with each other. They argue. They
try to persuade each other.
Why is that possible? One of the reasons is private property
rights. They can buy themselves land, build a church, and
come together on it; nobody can legally go disturb them there.
They have the right to run their own affairs within the confines
of what belongs to them. We have that right in a free society, in
our backyards, our houses, our yards, our companies, our associations,
our clubs, and with our own “stuff.” If my stuff really
is mine rather than the government’s, as some people in
our political community believe, then I can assign the use of
that stuff either to myself or those to whom I am devoted or
some cause I want to support; it is not taken from me by force.
Let me summarize my rather cursorily laid-out points in
favor of libertarianism. Human nature consists of everyone’s
being a rational animal, one whose survival and success depends
on initiating the process of thinking about the world,
becoming aware, paying attention. In human communities the
unique danger that arises is not a matter of the natural obstacles
to one’s life and success—those one faces in or out of communities.
The unique danger is from other persons who would
wish to survive and succeed on the basis not of their own efforts
or good fortune but of wresting support from other people.
So it is sensible, prudent, to establish law and order with
the goal of resisting such efforts—criminal undertakings—that
impede one’s liberty to progress peacefully in life on one’s own
or with willing others. The right to private property, via property
law in developed communities, secures for everyone a
sphere of personal jurisdiction so that it can be determined
when one is acting within one’s own sphere or intrudes on the
spheres of others. The job of adjudicating disputes about these
The Case for Libertarianism / 13
“border crossing” matters falls to the legal authorities or government,
and they must rectify matters without themselves
violating anyone’s rights. As far as dealing with other societies
is concerned, all this implies that no aggression may be
used in international relations and that force may be deployed
only in retaliation, whatever internal injustices are perpetrated
in other societies.
The crux of libertarianism is, then, individual independence
in making decisions, including about associations with
others. Ideals such as cultural diversity, economic equality,
racial harmony, and the like must not trump this basic value.12
Individualism
One source of consternation for many political philosophers and
theorists—for example, Karl Marx, C. B. Macpherson, Charles
Taylor, Amitai Etzioni, John N. Gray—is the individualist element
in classical liberalism and, especially, libertarianism. They
have dubbed the version of individualism they associate with
these positions “atomistic,” meaning that human beings are
taken in these views to be isolated, separate, self-sufficient, independent
living beings, along the lines of Robinson Crusoe.
It will be useful, therefore, to put on record at least one libertarian
view of individualism that refutes this characterization.
Individualism is the view that, put briefly, human beings are
identifiable as a distinct species in the natural world and have as
at least one of their central attributes the capacity to be unique,
rational individuals. Whatever else is central about being a human
being, each adult person, unless crucially debilitated, has
the capacity to govern his or her life by means of the individually
initiated process of thought, of conceptual consciousness.13
Furthermore, excelling as such an individual human being
is the primary, proper goal of each person’s life. A just political
community, in turn, is one that renders it possible for all
(or as many as is realistically possible) to pursue this purpose.
14 / Chapter 1
As the novelist-philosopher Ayn Rand put the point—
following similar observations by Aristotle and Thomas
Aquinas—adult persons are “beings of volitional consciousness.”
This involves, among other things, the crucial capacity
to choose to embark upon—to initiate—a process of (thoughtful)
action.
If we are entities of a type that can be a causal agent, an
initiator of its own behavior, a crucial basis for individuation
arises—that different human beings can and actually do
choose to exercise their conscious capacities and direct their
ensuing actions differently. Putting it more simply, if we have
free will our diverse ways of exercising it can make us each
unique. So even if there were nothing else unique about different
persons, their free will could introduce an essential individuality
into their lives. (This is something with a major
impact on the social sciences, on psychology and psychotherapy,
and, of course, on ethics and politics.)
Yet different people are also uniquely configured, as it
were, as human beings; thus they can face different yet
equally vital tasks in their lives. Our fingerprints, voices,
shapes, ages, locations, talents, and, most of all, choices are
all individuating features, so we are all unique. This is the
crux of the individualist thesis. Nonetheless, since we are all
such individuals, we constitute one species with a definite
nature associated with that species possessed by each member.
This may seem paradoxical, that one of the defining attributes
of the human (kind of) being is the distinctive
potential for individuality, based on both diversity and personal
choice.
This position has certain implications that are very close to
those usually thought to follow from a somewhat different, often
labeled “radical,” individualism. These implications are
the existence of the libertarian political ideas and ideals of individual
rights to life, liberty, and property. We might call the
earlier version of individualism “atomistic” or “quantitative,”
the latter “classical.”14
The Case for Libertarianism / 15
Atomistic or radical individualism is distinct. It is usually
linked to Thomas Hobbes and his nominalist and moralsubjectivist
followers. Its most basic, ontological thesis is that
human beings are numerically separate bare particulars
(meaning “beings without a nature, without being classifiable
as any kind of beings”). Their individuality is quantitative,
not qualitative, primarily consisting of their existence as separate
entities, not of their capacity and willingness to forge
distinctive lives of their own.
A problem that some see with the neo-Hobbesian individualist
tradition is that it implies that political norms are ultimately
subjective—usually taken to be mere preferences.
For Hobbes, to start with, “whatsoever is the object of any
man’s appetite or desire, that is it which he for his part calleth
good: and the object of his hate and aversion, evil.” So the
classical-liberal polity is itself, by the tenets of such individualism,
no more than some people’s preference, one that others
may not share, and quite legitimately. As some critics
have put the point, in terms of the Hobbesian individualist
position liberty is just one among many different values people
desire. This political tradition has thus been vulnerable to
the charge of arbitrariness, of resting simply on preferences
that some people—for example, the bourgeoisie, capitalists, or
white European males—happen to have.
Even in Hobbes’s time there were other versions afoot,
usually linked to Christianity. By the tenets of a Christian version,
each person is a unique child of God, thus uniquely important
and not to be sacrificed to some purpose of the tribe
or state, for example.15
This, at least, is one path to the conclusion
that a just political community must make room for the
sovereignty of the individual human being—one’s ultimate
and decisive role in what one will do, be it right or wrong. Another
path is the secular, neo-Aristotelian view in terms of
which while human beings are rationally classifiable as such,
one of their essential attributes is that they can and usually
choose to be unique. So, in contrast to Marx’s claim that “the
16 / Chapter 1
human essence is the true collectivity of man,”16
the classical
individualist holds that “the human essence includes the true
individuality of every human being.”
In the radical individualist tradition a major libertarian element
is the subjectivity of values. Accordingly, free market
economists have tended to reject all government regimentation
of social affairs, seeing them as driven by subjective preferences
that cannot be known to anyone other than those who
hold them. Such a view has served to undermine all efforts to
impose values on individuals.
The classical individualist position argues that values are
objective but also quite often idiosyncratic and they require
free choice to give them moral significance. This too prohibits
government imposition of values but not for skeptical reasons.
Also, it enables one to defend the political value of liberty
as more than simply one of many subjective preferences.
As far as free markets are concerned, one main reason they
function more successfully than statist alternatives is that in a
free market individual aspirations, goals, preferences, values,
and such have a major impact on what will be produced. This
in turn results in a more prosperous society than one where
such individual goals and so forth are trumped by various socalled
public-interest considerations that, in fact, are no more
than the interest of vocal groups of individuals overriding
that of others. Even the famous calculation problem identified
by Austrian economists makes more sense if individualism is
true. The reason governments cannot allocate or price goods
and services properly is that such resources are ultimately (albeit
objectively) valuable for individuals, not collectives.17
The individualism that underpins much of libertarian political
economy has vital implications for public policy. In the
law, for example, the position of criminal culpability gains
support from it. The rejection of collective guilt—or pride—in
social theory also has its support. In environmental public
policy it makes clear sense of the ubiquitous phenomena of
the tragedy of the commons, suggesting that human beings
The Case for Libertarianism / 17
must have an individual stake in caring for resources before
those resources can be expected to be well cared for. Public officials,
since they can only represent a very general public interest—to
secure the rights of individuals—have no clear-cut
guide to policies of resource preservation and conservation.
Individualism also underlies the rejection of the precautionary
principle favored by environmentalists, whereby the mere
possibility of future problems can be invoked to justify violating
individual rights.18
Libertarianism is seen by most to rest on some version of
individualism, although there are exceptions. Some believe
that the betterment of society as a whole is what requires an
individualist social and legal policy, even though there is
nothing ultimately true about individualism. If, however, it is
treated in public policy as if it were true, the results will be
advantageous to the entire community. (Karl Marx held a
view akin to this, claiming that for at least a stage of humanity’s
development—namely, capitalism—the illusion of individualism
was very useful since it inspired a great deal of
productivity.)
Still, it is difficult to see how libertarians can avoid being
also individualists. This is especially true of those who stress
the need for the protection of basic human rights in the Lockean
individualist position.
Some Policy Implications
Libertarianism is, after all, a proposal to practice politics in a
certain way, guided by a set of principles, yet it is not a rigid,
deductive system of implied public policies. No functionally
effective theory can be that, since the future is not fully disclosed
to us and we need a system that provides flexibility.
Constitutional law is based, roughly, on this insight: certain
fundamental principles are accepted and supposed to remain
stable and lasting, but the application of them can be novel and
18 / Chapter 1
unpredictable. The basic principles are taken to be stable and
lasting because they pertain to human community as such,
meaning that they rest on certain known features of human nature
and its requirements within society. It’s akin somewhat to
medicine, where medical students learn the general principles
of human health but when they go into the field and apply
these, much diversity and novelty can be expected.
At this point I wish to present just a few more specific libertarian
ideas about political life. These are still rather general
ideas, as they must be within the context of a discussion of political
philosophy and theory. Also, they are not presented in
some order of priority. Yet they will point to more particular
issues than can be discussed when fundamental principles are
the focus.
Government Regulations
Libertarianism rejects the justice of government regulations
of business or any other profession or private activity—
gambling, prostitution, drug use, and commerce—on the
grounds that unless a person is violating another’s rights
(or is demonstrably threatening to do so), no one is justified
in interfering with what that person is doing. Just as in the
American legal system no one may interfere with any citizen
speaking his or her mind, worshiping, or publishing
written works, so in a free society no one, including the
government, is justified in such interference. Such interference
is best described by the legal term “prior restraint”—
that is, imposing burdens or restrictions on the conduct of
someone who has not been convicted of having violated or
threatening the violation of someone’s rights. It is only rightsviolating
conduct—involving one person or persons taking over
the sovereignty of another—that justifies restraining a person,
and the rights involved would have to be negative, not positive,
rights, since the latter are actually impositions of servitude
on persons. But let us spend a moment on the issue of
The Case for Libertarianism / 19
negative versus positive rights, a subject to which I will be
turning next.
Libertarianism—or those versions of the position that see
the function of a legal order as the protection of individual
rights—construes citizens as sovereign agents, whose selfgovernance
or self-direction while living in communities is in
need of respect and protection. Negative rights are the rights
that prohibit uninvited intrusions or interference by some on
others. An invited intrusion would be that performed by a
surgeon or dentist; an uninvited intrusion would be that of a
mugger or similar aggressor, as well as that of an official who
has not obtained the consent of the citizens in whose life he or
she is intruding. Negative rights are, then, borders that spell
out one’s sphere of jurisdiction or authority, and what belongs
within one’s jurisdiction includes one’s life and the results of
one’s productive activities or freely acquired assets.
Someone’s alleged positive right to health care or to the
education of his or her children could only be secured if those
who provide health care or education were required to provide
it whether they have consented to doing so—or, alternatively,
some would be required to perform productive labor
the payment for which would be confiscated from them so as
to pay the health or education providers. All of this is, as the
late Robert Nozick observed, “on a par with forced labor,” and
so unjustified.19
The claim that one has positive rights rests,
mainly, on the belief that one comes into the world with obligations
to other persons (not one’s parents, who are due certain
benefits for taking on the task of bringing one up). This is
well put by August Comte, the father of sociology:
Everything we have belongs then to Humanity . . . Positivism
never admits anything but duties, of all to all. For its social
point of view cannot tolerate the notion of right, constantly
based on individualism. We are born loaded with obligations
of every kind, to our predecessors, to our successors, to our
contemporaries. Later they only grow or accumulate before
20 / Chapter 1
we can return any service. On what human foundation then
could rest the idea of right, which in reason should imply
some previous efficiency? Whatever may be our efforts, the
longest life well employed will never enable us to pay back
but an imperceptible part of what we have received. And yet
it would only be after a complete return that we should be
justly authorized to require reciprocity for the new services.
All human rights then are as absurd as they are immoral.20
The idea is that since we benefit from what others have
done over the centuries, we now owe something to the rest of
humanity in return for these benefits. But this is to assume
that we have agreed to receive the benefits on the terms that
require us to pay up in this way. Moreover, it assumes that
there are certain select persons, officials of the government,
who are authorized to extract that payment. None of this is
true. We often gain benefits from others—nice looking or
smelling people we walk by, the works of art others have produced,
architectural wonders they have created—without its
being true that we owe them anything for this. (It is a fair assumption
that those who freely produced and created all of
this are well rewarded for what they did in a variety of ways,
not the least of which is the joy of the process itself.)
So, the attempt to justify government regulation of people’s
peaceful conduct on the grounds that they owe everyone
something—the basis of positive rights—fails. There are other
reasons some invoke to support such regulation but those do
not hold up either.21
Entitlements via Positive Rights
One of the most powerful ideas opposed to the free society
is a notion political philosophers call positive rights, which is arguably
another all-too-successful linguistic legerdemain, like
that which overtook the venerable concept of “liberalism.”
“Liberalism” once specified a political philosophy favorable
The Case for Libertarianism / 21
toward individual rights and (negative) freedom. Now, in today’s
lingo, it means nearly the opposite: an ideology prescribing
the systematic violation of liberty for the sake of
redistributing wealth and otherwise engineering society. (To be
sure, the new liberalism includes a subclause stipulating that
people may at least enjoy the sexual, pro-choice, and other
noneconomic freedoms distinctive to one’s chosen “lifestyle.”
But even these allowances are more and more falling victim to
the logic of this liberalism’s command-and-control statism—as
when liberals and conservatives team up to urge censorship of
sexually explicit fiction.) Just as the new “liberalism” is fake
liberalism, so the new “positive rights” are fake rights. In each
case, the heart of a valid principle has been gutted.
Natural rights—or, as they have been un-euphoniously
dubbed, “negative rights”—pertain to freedom from the uninvited
interventions of others. Respect for negative rights requires
merely that we abstain from pushing each other
around. Positive rights, by contrast, require the opposite.
Fealty to positive rights requires that we be provided with
goods or services at the expense of other persons, which can
only be accomplished by systematical coercion. This idea is
also known as the “doctrine of entitlements.” That is to say,
some people are said to be entitled to that which was earned
or will be or could be earned by other people.
“Positive rights” trump freedom.22
According to the doctrine
of positive rights, human beings by nature owe, as a matter
of enforceable obligation, part or even all of their lives to
other persons. Generosity and charity thus cannot be left to individual
conscience.
If people have basic positive rights, no one is justified in refusing
service to others; one may be conscripted to do so regardless
of one’s own choices and goals. (The class of
procedural positive rights—such as the right to vote, to receive
a fair trial—relates to the government’s obligations to citizens
once citizens have chosen to establish or institute a government or
similar legal agency for purposes of securing their basic rights. Thus
22 / Chapter 1
several critiques of the libertarian idea that basic individual
human rights are all negative—are misguided.23
They argue,
essentially, that negative rights come to nothing without the
positive right to have them protected which they then dub as
more fundamental than the negative rights that are to be protected.
What they miss is that such positive rights, like all bona
fide positive rights, are derived from the prior exercise of one’s
[not yet protected] negative right to establish a legal order.)
If positive rights are valid, then “negative rights” cannot
be, for the two are mutually contradictory. So the question is:
which of these two concepts is the more plausible, when we
consider how the issue of rights arise to begin with, in the context
of human nature and the requirements of survival and
flourishing in a human community?
The rights Locke identified—following several centuries
of political and legal thinking by theorists who had begun to
identify them more or less precisely—are “negative” insofar
as they require only that human beings abstain or refrain from
forcibly intruding on one another. Their existence means that no
one ought to enslave another, coerce another, deprive another
of property, and that each of us may properly resist such conduct
when others engage in it. Ordinary criminal law implicitly
rests on such a theory of individual rights. On a
commonsense basis, murder, assault, kidnapping, robbery,
burglary, trespassing, and the like are all easily understood as
violations of negative rights.
In the Lockean tradition, a conflict of (justified, true) rights
cannot exist. There may be disputes about boundary lines, the
exact historical record determining the propriety of a rights
claim, and similar practical detail. But once the facts of the
matter are unambiguously established, so is the specific right
of the matter. The justice of that specific claim (to a parcel of
land, say) is grounded in more basic, universal rights (to life
and freedom), in turn justified by a correct understanding of
human nature and what that implies about how we ought to
live and organize ourselves in communities.
The Case for Libertarianism / 23
That an understanding of human nature is even possible
is, among some philosophers anyway, a controversial issue.
Yet skepticism here, as in other cases, stems from an unrealistic
conception of what it takes to know something, to the effect
that we must know everything perfectly before we can know
anything at all. But if knowing something means to have the
clearest, most self-consistent, most reality-grounded and most
complete conceptualization possible to date (if not for all
time) of what it is we supposedly know, sweeping skepticism
is unjustified. We need simply admit that we will if necessary
amend our knowledge if later observation and thinking warrants
it, and go with what we know now. What we know now
is that human beings, uniquely among the animal kingdom,
survive by means of their reason (which is simultaneously a
faculty of choice and hence of morality), that this moral and
rational faculty does not function automatically, and that the
social condition required to gain and retain the fruits of its unhindered
exercise is freedom. If human beings are to survive
and flourish in a social context, the human rights to life and
liberty must be recognized and protected.
Those who sought to retain some elements of the political
outlook which Locke’s theory had overthrown—namely, the
view that people are subjects of the head of state (do, in fact,
belong to the state)—found a way to expropriate and exploit
the concept of human rights to advance their reactionary position,
just as they expropriated and exploited the concept of
liberalism.
So much had the concept of human individual rights been
perverted at its root that it came to mean not liberty from others
but service from others. Who needs the right to pursue happiness
when one has the right to be made happy (even if the
thus-extracted “happiness” should render the indentured
providers of it miserable).
This was a view of rights that wiped the fact of human
moral agency right out of existence. Positive rights, so called,
are thus nothing more than mislabeled preferences or values
24 / Chapter 1
that people want the government to satisfy or attain for
them—of course, by force.24
They are grounded in nothing
that pertains to the fundamental requirements of human nature
and human survival. The theorizers of such rights in fact
go out of their way to ignore such requirements. Yes, people
need bread, as stipulated. But they do not live by bread alone.
They are not ants, that can survive on whatever crumbs fate
happens to strew in their path. They need the freedom to
make the bread and trade the bread.
Also, they need consistent and objective governance. But
when the conceptual perversion known as positive rights becomes
the guiding principle of a polity, the state cannot govern
by anything like the consistent standards that emerge
from the theory of negative rights. The alleged positive rights
of the citizenry must clash constantly. To the extent one is conscripted
to serve another, one can no longer serve one’s own
purposes—nor, indeed, even the purposes of many others,
given the scarcity of the time and skills to which others are
supposedly naturally entitled. There is no principle implicit in
the doctrine of positive rights which could resolve the conflicts.
But positive rights conflict most of all with our basic
negative rights to life, liberty, and property.
Guided by such a doctrine, governments cannot merely
protect our rights. They must positively pit some rights
against other rights. Instead of simply “securing these rights,”
they must scrounge for some additional standard by which to
tell which and whose rights should get protection. Since no
such intelligible standard is available, the situation collapses
into one of rule not by objective law but by subjective men—
men who will decide which rights need protection and which
do not, on a shifting “case-by-case basis.” Perhaps the ascendant
pressure group of the moment will carry the day, or perhaps
the latest opinion polls. In practice, the working
(Hobbesian?) principle is: “You have a right to whatever you
can get away with,” the same consideration governing any
plain criminal.
The Case for Libertarianism / 25
The theories defending positive rights are just as incoherent
as the practice of them must be. Positive rights have even
been defended on the grounds that negative rights—of the
very poor, for example—entail these positive ones.25
Others
argue that all rights are in fact positive insofar as they are all
meaningless unless they are actively protected, and that the
right to the protection of one’s right to freedom is a positive
right, not a negative one.26
Both views suffer fatal flaws. The first generalizes into a
principle of law of an understandable but regrettable response
to what amounts to a rare moral emergency case—one that
becomes more and more rare the longer a society is free and
so able to build its prosperity. In some rare cases, an innocent
person might indeed be totally helpless and have no choice
but to obtain resources by stealing them. Perhaps only filching
that piece of fruit will stave off immediate starvation. But extraordinary
circumstances cannot generate laws granting a
permanent right to steal, not when stealing itself means taking
by force what by right belongs to others. There is no need for
a society to send the occasional Jean Valjean to prison for
twenty years; he might well be forgiven the transgression. On
the other hand, if the general concern for the plight of such individuals
is genuine, there is no reason private charity cannot
suffice to meet the need, either. Moreover, for the members of
a society to engage in theft as a regular way of life can only
undermine the production of wealth that everyone’s survival
depends upon, including that of the poorest.
Others believe that we already have positive rights to the
services of the state and, thus, to the earnings of taxpayers
who must pay for these services. But they fail to show that any
such right to protection provision can exist unless there already
exists the more fundamental—and “negative”—right to
liberty. To gain protection for something presupposes that one
has the right to act for that purpose, including the right to
voluntarily combine with others for the purpose of delegating
authority, forming the government, and gaining the protection.
26 / Chapter 1
The services of government are something people must
choose to obtain, by their consent to be governed. They do not
have a natural right to them prior to having freely established
that institution. Indeed, for this reason the institution of taxation,
which fit well those regimes that treat people as subjects
who live by permission or the ruling elite or monarch, is
anathema to the free society wherein even the funding of the
legal order must be secured voluntarily.27
A more recent version of the positive rights case for wealth
redistribution is the capabilities approach, introduced by
Amartya Sen28
and defended also by Martha Nussbaum.29
Just
as with positive freedom, the right to freedom becomes the right
to be provided by others with various goods and services, so with
the capabilities approach the burden is placed on those who
have goods and services—mostly funds that can be subjected to
confiscatory taxation—so as to facilitate the development of
those lacking them. The idea is defended on grounds, basically,
of need—or, to use Nussbaum’s terms, a “comprehensive concern
with flourishing across all areas of life” which for her, not
negligibly, also “is a better way of promoting choice than is the
liberal’s narrower concern with spontaneity alone, which sometimes
tolerates situations in which individuals are in other
ways cut off from the fully human use of their faculties.”30
So, in order to enhance flourishing, including significant
choice, Nussbaum and others seem to be willing to grant
some people—the government—the power to compel other
people to provide for those in need to at least whatever will
secure for them the materials that satisfies such “comprehensive
concern.” The need, of course, does not arise because others
have done anything to the needy, thus their enforceable
obligation to alleviate it is dubious. At most others ought to
extend help as a matter of their generosity.31
In Nussbaum and others, however, notice the assumption
that since “something ought to be done,” then “government
ought to do it.” Unless one assumes there is some semantic
equivalence or direct implication between these two claims, a
The Case for Libertarianism / 27
linking premise is needed. That this fallacious move places
others into the position of subservience—even servitude—to
those in such need appears to Nussbaum to be unproblematic.
In a sense Nussbaum & Co. generalize globally the rationale
offered for Good Samaritan laws, even though the latter pertain
to emergencies (such as an injured party in need of medical
attention after a car crash) and, in any case, are subject to
the criticism that no one is to be put in anyone else’s service
against his or her will.32
The bottom line is that in all these cases it is alleged that
human beings are entitled to provisions from unwilling others
who have them and government officials are very much in the
business of securing such entitlements. (Sen’s works routinely
use titles that include the concept of “freedom” but in the ambiguous
sense whereby both negative and positive freedoms
[!] are at issue for him and those who sympathize with his capabilities
approach.)
This approach is natural to socialists who see human beings
as essentially species beings. For nonsocialists, however,
the defense of positive rights and the capabilities approach
may be linked to the American idea—from the Declaration of
Independence—that “governments are instituted” so as “to
secure . . . rights.” Although the rights to be secured were negative
ones—to life, liberty, and the pursuit of happiness,
among others—it makes sense for those who see government
in the role of enabling people rather than protecting their sovereignty
to introduce the idea of positive rights. These would
then still require being secured by the government, although
now by means of a vastly expanded administration involving
wealth redistribution as a central function. The balancing between
securing negative and positive rights would naturally
become a central element of the political processes, issuing in
repeated class-warfare-type political activism.
Because it is itself arbitrary and incoherent, the doctrine of
positive rights leaves government free to be arbitrary and incoherent.
As long as some people are getting resources that were
28 / Chapter 1
earned by somebody else, that’s all that counts. One day it’s
aiding AIDS research that tops the to-do list; the next it’s fostering
the arts by splurging on PBS; the next it’s curing everyone
of smoking and plundering the tobacco companies. No
principles, no logic, no standards of restraint tell us from day to
day what one will be free to do and what one will be prohibited
from doing; there is no surefire way to know. As under fascism,
whatever the leaders say, goes, so long as they continue to genuflect
mechanically before the altar of democracy.
If we are to reverse course, and achieve a more consistently
free society, we must tear up the counterfeit standard of
rights and restore a gold standard—the standard that enables
us to actually pursue, and achieve, life, and happiness.
Against Mandated Affirmative Action
Over the last few years the United States has required all
government agencies at the federal and state levels—including
firms doing business with the state and schools that are
state administered—to practice affirmative action. Some claim
that the phrase itself refers to a uniquely legal or public policy.
It is, they claim, a term of art for this unique practice, not
matched by anything apart from what government does.
Actually, the practice itself has always existed and only recently
has been dubbed “affirmative action.” It amounts to
people’s making an energetic, vigilant effort to benefit, in
trade or other activities—including admission to schools, promotion
to higher ranks in fire or police departments—some
special group deemed to be disadvantaged. As such affirmative
action is a rather familiar practice in life, albeit not so designated
until recent times.
When one hires people or goes to a shop owned or operated
by someone from an actually or apparently disadvantaged
group—blacks, Hispanics, Italian, Hungarian, or Polish
Americans—one is often embarking upon what is the desired
behavior sought via affirmative action. Similarly, when one
The Case for Libertarianism / 29
selects a restaurant because one believes those who own or are
employed there need some extra support so as to gain a leg up
in the business, one is engaging in affirmative action. The buying
of works of art just to encourage artists or patronizing some
store in the hope that those who run it will remain in business—
even though at the moment one has no particular wish for its
services or goods—counts as affirmative action as well.
Consumers and producers have for centuries embarked
upon such practices. Some famous black Americans acknowledge
this, as did the late Carl Rowan, a black journalist, when he
told a group of students on C-Span that his “employer practiced
affirmative action” when he got his first job as a reporter from a
white publisher. The latter apparently decided to give Mr.
Rowan a chance because he was black and he wanted blacks to
gain access to journalism. This decision also paid off for the employer,
given Mr. Rowan’s excellent performance on the job.
The type of official affirmative action that’s at issue in contemporary
debate—for example, in connection with Proposition
209, the California referendum that went into effect a
while ago, banning all preferential hiring by state agencies,
whatever the motivation—has to do with government orders
to select students or contractors on the basis of racial or sexual
criteria not relevant for the purpose at hand. It is the government
that selects the (groups of) people who are to be proper
candidates for affirmative action, usually based on certain sociological
and historical facts pertaining to the disadvantage
many of the race or sex in question have suffered in the past
and the assumed advantage accrued from such disadvantage
to the dominant groups, usually Caucasians. By this means the
matter of deciding who is to be the beneficiary of affirmative
action and whether the practice is a good idea is taken out of
the hands of those who have to carry out the policy.
Thus often those required to act affirmatively cannot claim
credit for their occasional good judgment in adopting the
practice since they carry it out under the threat of punishment.
Of course, some might well have done the right thing anyway,
30 / Chapter 1
just as some volunteer for service in a war even when conscription
is in force. But for others, who act because the practice
is mandated by law, any credit for the deed is voided by
the bureaucrats, except in so far as having a minor say
through the democratic representative process is concerned.
Beyond this minimal genuine affirmative action expressed
during the vote for a policy or person, many of those implementing
affirmative action policies carry on as ordered, leaving
it indeterminate as to whether they followed their
conscience or merely complied.
When it comes to government’s following affirmative action
policies, another distinction needs to be kept in mind. A
government which is confined to its proper scope of authority
is under the fiduciary duty to serve well all those under its jurisdiction.
That is the spirit underlying the Fourteenth
Amendment to the Constitution—no citizen’s due process
(i.e., what the citizen is owed) is to be neglected by the government.
We ought all to be treated equally well under the
law, no one is special. That is what citizenship implies.
When governments engage in affirmative action, this principle
is violated.33
Government conducted affirmative action
is procedurally unjust. Governments must relate to people as
citizens, period, not as some special group in whom a special
interest is taken. That is the only way government can be
just—it is why justice is depicted as blind.
Some will argue that sometimes government must provide
protection to special groups when their members are the
target of injustice. Blacks, therefore, may receive special treatment,
as per affirmative action policies, because they are targets
of unjust discrimination, something that affirmative
action would redress.
However, injustice is never a matter of how groups, but
only of how their members, are being treated. Any redress
must, therefore, be a matter of rectifying or punishing those
who committed the injustice, not members of groups whose
other members have been unjust to some persons. Affirmative
The Case for Libertarianism / 31
action, therefore, administers collective punishment, something
that is anathema to a system of justice that must respect
and protect individual rights.
Let us return to private affirmative action. Even there it
would be valid only in emergency, rare cases, such as those
having to do with new arrivals in a country or, more generally,
with people who may need a temporary break, as it were. A
private company may elect to do this but is always open to
criticism if the policy persists, discriminates unjustly, and undermines
good business. Publicly held corporations, furthermore,
could practice affirmative action only when those who
own its stock have instructed management to do so. Since affirmative
action, rightly understood, can only have a valid
point when the details of a situation are well known—it must,
in other words, amount to local policy contingent on special
knowledge and circumstances—most publicly held companies
would have little justification to practice it. (An exception
might be if there is some disaster nearby and the company decides
temporarily to lend a hand to its casualties.)
Government-conducted and dictated affirmative action is
not only unjust but can become the source of serious resentment
to anyone, be they racists or not. The following might
help make this clear.
If one who is white were to call a black person a “nigger,”
that, however insulting it is, does not justify being beaten up
for it. No one should be assaulted for being insulting, period,
and that goes for whatever they say.
Now, in the same vein, people’s sovereignty—their freedom,
for example, to associate only with those who are
willing—should not be usurped by government, even if their
judgments and conduct leaves much to be desired. I may
choose rotten pals, an unsuitable mate, or the wrong employee,
but what I do must remain my choice, not that of others who
impose their judgment against my will. (Of course, if I announce
that my offer of a service or good is available to all potential
purchasers, it can be legally actionable if I then impose
32 / Chapter 1
an unannounced standard of selection after the fact. By the
standard of the “reasonable person,” it is to be expected that
without full disclosure of special criteria, none will be applied.)
In any case, freedom to associate with those who are willing
is a hallmark of a free society. This means freedom of association
across the board, even in cases where such association
is misguided by racial prejudice and where those affected
forgo serious benefits as a result, ones they would enjoy were
those with the prejudice acting more rationally, decently. The
reason is that in associating with others—except where contracts
specify otherwise or where one would violate another’s
basic and derivative rights—one is making a decision as to
how one will live one’s own life, be this judgment good or bad.
To make a person devote his or her life—or any portion of it—
to a purpose he or she rejects amounts to subjecting the person
to involuntary servitude. No free society can tolerate this, even
for purposes that can be quite admirable.
Law professor Richard Epstein34
of the University of
Chicago has argued the radical but sound thesis that even the
bulk of civil rights legislation of the 1960s cannot be considered
of real help to blacks and women in our society. Epstein
agrees that such legislation is in violation of a fundamental
principle of free societies, namely, freedom of association.
Civil rights laws violate the right to freedom of association by
forcing people to hire and promote folks they may not want
to. By this means the spirit, if not the letter, of a vital and
sound principle of the American constitutional system is assaulted.
Whatever gains may have been reaped through such
legal action are marred severely because of this fundamental
flaw that is embodied in securing them. Indeed, all civil rights
legislation is wrong that goes beyond striking down racist and
sexist policies by government, ones that violate the provision
of the Fourteenth Amendment prohibiting “the den[ial] to any
person . . . equal protection of the laws”—so that cops and
judges and government in general may not deliver services
differentially to the citizens they serve.
The Case for Libertarianism / 33
Mandated affirmative action programs are also an insult
to the people who are intended to be helped by it. Certainly
blacks and women have suffered in the past from injustices, as
have other groups throughout human history. To think that it
is now necessary and proper to “even the scales” is wrong
from several perspectives, not the least of which is that because
the really guilty parties are mostly dead, one can punish
only innocent people. This mirrors the practice in Ghana
where a young virgin from a family is given to a priest so as
to atone for the sins of some elder of that family. It is the
height of injustice to punish the innocent just because the
guilty are no longer around.
Accordingly, when citizens are restricted regarding who
they hire or do business with, their own judgment is superceded
by others and they are placed into servitude to others
by such a policy. Among other things, this serves to
obscure their own wrongdoing. It, furthermore, can seriously
obstruct their own appreciation of the wrong they do. Indeed,
policies such as mandated affirmative action encourage prejudice
to linger, even if underground. For what folks will focus
upon is not their own prejudicial conduct, which they might
have been prompted to reflect upon by being treated as free,
sovereign citizens who are in charge of their own lives, and
had they been addressed as capable of changing their own
free will of how they behave. Instead, they will focus upon the
fact that their sovereignty has been denied, their freedom
taken away, and in that regard they have a just complaint.
Affirmative action also gives the racists among us a rationalization
for racism, only now their animosity toward a
minority has some semblance of justification: if women and
blacks support mandated affirmative action, is there not really
something wrong with women and blacks? After all, they give
backing to tyrannical policies of government.
It is also worth considering that mandated affirmative action
may not really help those blacks and women who can use
the help. Instead it is the middle-class blacks who appear to
34 / Chapter 1
get from this government mandate a boost in their economic
or professional lot. The very people who ought to continue to
make it on their own and have every chance to do so appear
to get the extra, unfair advantage. Those in genuinely bad
straits often are not even touched by this facade of assistance.
But while arguably nothing much of substance gets done
for most blacks by affirmative action, the policy does everything
to boost the self-image of racist Americans. For now
they can submerge their racism within a legitimate rage. They
can now hate the government for imposing on people plainly
unfair, even racist, policies.
What irony! Supporters justify this program on grounds that
it supposedly creates a level playing field, one that is needed after
many decades of injustice inflicted upon those who are the
subject of mandated affirmative action. In fact it appears instead
to help exactly those who seem to have no desire for fairness
and good sense about matters of gender and racial justice. These
very people against whose mentality the programs were supposedly
enacted now finally gain public sympathy in its wake.
If one were a racist, this would be most welcome.
Another aspect of this policy is that it treats the minorities
intended to be benefited as if they were inept at recovering
from the damage that past injustice has inflicted upon them.
Are blacks and women unable to rise from the ruins of their
families? Jews, Hungarians, Poles, and millions of others
throughout history had to recover without the benefit of the
U.S. Congress, without allegedly remedial public policy in the
way of mandated affirmative action. Arguably, this approach
is only going to hamper the recovery itself, by instilling in
folks the conviction that they are, after all, not quite up to handling
problems the way others can. (Jim Sleeper makes this
point in his Liberal Racism.)35
In the social realm it seems progress has been forthcoming,
but it is obscured by all the hope invested in government
remedies. These days, for example, being racist is not acceptable
in the deep South. A while back I heard a hospital worker
The Case for Libertarianism / 35
in Opelika, Alabama, make a racist remark about a black colleague.
When I rebuked him for it—he made the racist comment
to me—he said “I am sorry, I am a racist, but I cannot
help it.” His response reflected not self-righteousness but a
desperate effort to seek some kind of excuse. This presupposes
that the man knew very well that his racism is not something
acceptable in a decent human being. Yet, I’ll bet that if
this guy were to lose a promotion to an African American because
of mandated affirmative action, he would feel comfortable
about hating them, under the guise of hating big
government. How convenient, not having to live squarely
with your vile, irrational feelings, having the government
help you to disguise them as anger at oppression.
If any group has very good reason for opposing affirmative
action mandates by the government, it is American
blacks. It is, as Shelby Steele noted on the PBS News Hour, a
way white liberals can feel good about themselves without actually
having to do much of substance.
Against the War on Drugs, and for Tolerance
In an important essay in the now discontinued publication
Heterodoxy [“Just Say Yes!” September 1996], Peter Collier dismisses
the libertarian view on drug abuse by saying that its
“strong appeal . . . is that it plays well with the American notion
of rugged individualism and don’t tread on me.” After
this dismissive, anti-intellectual characterization of the position’s
“appeal” (never mind the merits of the arguments behind
it), Collier goes on to say that “its defect is that it
nowhere acknowledges the enormous destructive power of
psychoactive substances and their ability to cause the disintegration
of individual personalities, families and communities,
and the fact that it is based on the questionable assumption
that individuals will act less anti-socially when drugs are legal
and guilt free than they do now when they are illegal and stig-
matized.”
36 / Chapter 1
As a libertarian who has often advocated drug legalization,
I know that Mr. Collier has got it wrong.36
Most libertarians
fully acknowledge all of what Mr. Collier claims they do
not. Most of them do not predict with any measure of certainty
that people “will act less anti-socially when drugs are
legal,” etc. What they claim is that people ought to and will be
able to act less antisocially and will no longer act criminally as
drug users, in light of the decriminalization of drug abuse.
Most of all, libertarians claim that it is morally wrong and
bad public policy to punish people who violate no one’s rights
and who already punish themselves by abusing drugs. They
argue that the mere fact that some vices are far more tempting,
far more difficult to resist, than others does not justify the paternalistic
actions of the state against those who lack the
strength of will and character to resist. They defend legalization
on the grounds of principles such as the right to one’s life,
one’s liberty of conviction and action, and the right to one’s
private property, all of which are relentlessly abrogated by the
drug war that Mr. Collier’s statist approach to the problem
supports. They add that allowing the state to intrude upon innocent
citizens for this reason more or less opens the door for
it to intrude for any other—as William Pitt the Younger noted,
“Necessity is the plea for every infringement of human freedom.
It is the argument of tyrants; it is the creed of slaves”
(speech on the India Bill, November 1783).
Libertarians—albeit summoning somewhat different arguments
for their conclusion (as it is to be expected from a diverse
and individualist lot)—not only find the drug war, as
well as all the drug, alcohol, and related prohibitions, be it in
America or anywhere around the world, not only a sustained,
unremitting violation of individual rights but a demoralizing
approach to helping people who find it very tough to deal
with drugs. They consider it a social calamity when governments
posture as Florence Nightingales, thereby displacing
the much more promising avenue of rescue via the work potentially
available from local communities—families, friends,
The Case for Libertarianism / 37
professional associations, religious groups, etc., all of which
are better positioned to address drug-related problems than is
any level of government.
Conclusion
Libertarianism rests on numerous ideas drawn from various
disciplines, and none of those could be fully explored here. The
thrust of the position should by now be plain enough: Individuals
are responsible to live their lives properly and ethically,
and this requires that they be able to choose how to act.
Further, within their communities they require a sphere of personal
authority or jurisdiction, which is best secured via a wellprotected
set of basic rights, including the right to private
property. Individuals have the right to pursue their happiness
by forming special communities, provided all members choose
to be part of them and everyone enjoys what the economists so
quaintly call “the exit option.” It is the role in their general
communities—in the polity—of the legal order or government
to secure their rights, and for this the people entrusted with
that role must strictly abide by due process, which is to say, eschew
the violation of rights as they secure rights themselves.37
Some have charged that libertarianism is utopian and for
that reason alone a bad idea. Libertarianism is, of course, the
consistent, uncompromising development of certain notions
we are all familiar with—for example, the barring of physical
force from human relations, the requirement that even as we
retaliate against or fend off coercive physical force, we need to
act with restraint, or that one of the differences between human
and other living beings is that the former can, if they act
with discipline and perseverance, exclude brute force from
their community lives (that is, they can be civilized).
As such, libertarianism is demanding, because it has no
tolerance for anyone’s, including government’s, coercive
meddling for any purposes whatever. Government—which is
38 / Chapter 1
to say, certain other people—is not to be our daddy, nanny, or
uncle; it is to be our civilized bodyguard.
The reasoning behind these ideas is not simple, but it includes
one crucial fact that immediately refutes the claim that
libertarianism is utopian. That is that human beings are in fact
incapable of being forced to be morally good. It is up to them
whether they will, or whether they will fail in that all-important
task. We have free will, and we ought to excel at being human
individuals, but there is no formula by which that goal can be
guaranteed. Indeed, one reason government must be limited
is that it wields a very dangerous weapon, namely, physical
force, a weapon that may only be used by people who know
their limits clearly and well; otherwise those in government,
who are just like us, become despotic, tyrannical.
Utopia, in contrast, is a form of society wherein morality is
guaranteed, where everyone is going to do what is right and
be happy and fulfilled. Shangri-La is a good example, as were
Sir Thomas More’s Utopia and Karl Marx’s communism. In
those proposed societies the objective is to secure for everyone,
by means of political organization and action, perfect fulfillment.
(That is why Marx could envision the withering
away of government itself, since once utopia has been reached
there will be no need for law enforcement—all of us will be
law abiding, automatically.)
It is clear from just this brief contrast between libertarianism
and utopianism that the two are opposites. No, libertarianism
is not dystopian—not, that is, based on the view that social
life must turn out terribly. It is entirely noncommittal about
how good people will turn out to be, with the one provision:
when people are free and their rights are protected, the chances
that they will be good and decent are better than if they can
dump their mistakes on their fellows with impunity (as they
can, for example, in the welfare state that we live in now).
There is no doubt, of course, that libertarianism is demanding.
But all standards are demanding—they require of us to do
our best, according to certain terms. However, libertarianism
The Case for Libertarianism / 39
recognizes that doing our realistic best requires freedom and
also runs the risk that we will fail. So there can be no guarantees
as far as the libertarian is concerned when it comes to how
good people will be once they are free. They are, however, more
likely to be better than they are when they are oppressed, regimented,
and ordered about in their daily lives.
The bulk of the challenges of human life, in all realms,
should be tackled without aid of coercive force, something
that critics of libertarianism seem to reject. Once the legal order
secures everyone’s rights—or does as well as possible at
this task—it needs to withdraw and leave free men and
women to meet the nonpolitical challenges they face. That is
the crux of libertarianism.38
Notes
1. There are different routes to libertarian political conclusions, and in
this discussion I will be sketching one within the normative natural law and
rights tradition, not a consequentialist, utilitarian, or positivist one. It is my
view that the widely championed consequentialist approach, which appears
to reject principles in favor of expected utilities—so that, for example,
a regime of liberty is just because it maximizes value—has serious problems,
since the value of consequences cannot be assessed without principles
as standards for evaluating them. There is also the non-consequentialist assumption
in most versions of consequentialism that the results of policies
can be correctly estimated before they occur. Yet that is just what the more
principled approach to politics—and libertarianism in particular—contends.
For more, see Tibor R. Machan, The Passion for Liberty (Lanham, Md.:
Rowman & Littlefield, 2003), chap. 3, “Against Utilitarianism: Why Not Violate
Rights If It Would Do Good?”
2. For a defense of this, see Tibor R. Machan, ed., Individual Rights Reconsidered:
Are the Truths of the U.S. Declaration of Independence Lasting? (Stanford
Calif.: Hoover Institution, 2001), especially Ronald Hamowy, chap. 1, “The
Declaration of Independence.” This, of course, is a mere historical fact, not
any argument for the stance itself.
3. G. A. Cohen’s complaint that disadvantaged workers are forced to
work, therefore, is no argument against a capitalist, free market system. Life
forces nearly everyone to work. See his “Are Disadvantaged Workers Who
40 / Chapter 1
Take Hazardous Jobs Forced to Take Hazardous Jobs?” in Moral Rights in the
Workplace, ed. Gertrude Ezorsky, 61–80 (Albany: State University of New
York Press, 1987). For a discussion of a libertarian view of labor, see Tibor R.
Machan, “Rights and Myths at the Workplace,” in Moral Rights in the Workplace,
45–50, and James E. Chesher, “Employment and Ethics,” in Commerce
and Morality, ed. Tibor R. Machan, 77–93 (Lanham, Md.: Rowman & Littlefield,
1988).
4. For more on this, see Tibor R. Machan, Generosity: Virtue in Civil Society
(Washington, D.C.: Cato Institute, 1998), chap. 6, “Generosity via Gov-
ernment.”
5. For a detailed discussion of this issue, see Tibor R. Machan, “Anarchism
and Minarchism, A Rapprochement,” Journal des Economists et des Estudes
Humaines 14 (December 2002): 569–88. See also Aeon Skoble, Freedom,
Authority, and Social Order (Chicago: Open Court, 2005).
6. Available at www.usdreams.com/LincolnW7.html.
7. Charles Taylor, Philosophy and the Human Sciences (Cambridge, U.K.:
Cambridge University Press, 1985), 188. For more on this, see Tibor R.
Machan, “Libertarian Justice,” in Social and Political Philosophy: Contemporary
Perspectives, ed. James P. Sterba, 93–114 (London, U.K.: Routledge, 2001). An
important element of rights theory is identified in Douglas B. Rasmussen
and Douglas J. Den Uyl, Liberty and Nature (Chicago, Ill: Open Court, 1990).
The authors understand rights to be meta-norms, meaning these are principles
of the societal framework within which action-guiding ethical or moral
principles may be followed or neglected. A society with basic Lockean
rights is one that secures for everyone the opportunity to be a moral agent.
8. See, for a libertarian interpretation of “general welfare,” www.house
.gov/science/taylor_4-9.html.
9. I have argued, in “America’s Founding Principles and Multiculturalism,”
chapter 6 of my book Classical Individualism (London: Routledge,
1998), that in comparison to other political systems, the relatively libertarian
polity of the United States accommodates the requirements of multiculturalism
better than do others wherein conformity to common practices is
stressed far more than is diversity and, especially, individuality.
10. Libertarians tend, in the main, to oppose wars of liberation or national
building, not because it is wrong to help with such efforts abroad but
a country’s military already has a job, namely, to secure and defend the
rights of the citizens there.
11. Available at www.adherents.com/.
12. Equality is, of course, a core value in libertarianism, only it is the
equality of respecting the rights of individuals—all of them—rather than
the equality of sharing benefits and burdens available in society. This latter
type of equality, perhaps better dubbed “fairness,” is supported from
The Case for Libertarianism / 41
various perspectives, but the crucial public policy implication of it concerns
regimenting people’s lives whenever benefits and burdens are not
shared equally. That, as Robert Nozick demonstrated in his famous Wilt
Chamberlain case, would require massive inequality of power and be not
only intolerably coercive but self-defeating as well. See Robert Nozick, Anarchy,
State, and Utopia (New York: Basic Books, 1974), 161–63.
13. A comparable approach is deployed by Martha Nussbaum, “Human
Functioning and Social Justice: In Defense of Aristotelian Essentialism,” Political
Theory 20 (1992): 202–46, albeit with different substantive results for
political theory—to wit, a robust welfare state and global wealth redistribution.
Nussbaum, along with Amartya Sen, defends the view that human nature
can be known from our historical encounters with human beings, but
what our knowledge of it suggests is that social justice must involve a
mainly egalitarian wealth-redistribution policy so as to enable everyone to
flourish. The libertarian insistence on the vital importance of individual
moral choice and responsibility is missing from her politics.
14. I draw on David L. Norton, Personal Destinies, A Philosophy of Ethical
Individualism (Princeton, N.J.: Princeton University Press, 1976), and my
own Classical Individualism: The Supreme Importance of Each Human Being
(London: Routledge, 1998) for this distinction.
15. J. D. P. Bolton, Glory, Jest and Riddle: A Study of the Growth of Individualism
from Homer to Christianity (New York: Barnes and Noble, 1973).
16. Karl Marx, “Critical Remarks on the Article: ‘The King of Prussia and
Social Reform,’” in Selected Writings, ed. David McClellan (Oxford, U.K.: Oxford
University Press, 1977), 126.
17. For more on this, see Ludwig von Mises, Economic Calculation in the
Socialist Commonwealth (Auburn, Ala.: Ludwig Von Mises Institute, 1990).
18. For more on this, see Tibor R. Machan, Putting Humans First: Why We
Are Nature’s Favorite (Lanham, Md.: Rowman & Littlefield, 2004).
19. Nozick, Anarchy, State, and Utopia, 169.
20. August Comte, The Catechism of Positive Religion (Clifton, N.J.: Augustus
M. Kelley, 1973), 212–13.
21. See Tibor R. Machan and James E. Chesher, A Primer on Business Ethics
(Lanham, Md.: Rowman & Littlefield, 2003), chap. 16–26; see also Tibor R.
Machan, Private Rights and Public Illusions (New Brunswick, N.J.: Transaction
Books, 1995) and Tibor R. Machan, “Government Regulation vs. the
Free Society,” Business and Professional Ethics Journal 22 (2003): 77–83.
22. Not, of course, in every sense of that term. “Freedom” can mean just
what positive rights secure for someone, as made clear in the discussion in
note 9. Consider, for example, the following: “No, life is always a struggle
for freedom. Whenever I sign a cheque for some idiot company or other, I
feel a little like a man in an electric chair or in a hospital bed, streaming with
42 / Chapter 1
wires and connections and linkages.” James Wood, The Book against God
(New York: Farrar, Straus and Giroux, 2003), where the first person protagonist
consider himself to be free if he can escape the bonds of obligation he
himself has incurred and that others, in turn, are made to assume.
23. In recent times the doctrine has been reshaped by such philosophers
as Ronald Dworkin, James P. Sterba, Henry Shue, and legal scholars like
Stephen Holmes and Cass R. Sunstein. Shue’s Basic Rights (Princeton, N.J.:
Princeton University Press, 1983) goes so far as to argue that no negative
rights exist at all, since in any realistic sense rights are meaningless unless
given protection, which is a positive service from others. But Shue forgets
that the libertarian establishes secondary, derivative positive rights without
contradicting himself, via compact and contract. Holmes and Sunstein, who
echo Shue twenty-one years later, also fail to appreciate the idea that protecting
rights via government and law requires consent. As the Declaration
of Independence puts it so succinctly, governments derive “their just powers
from the consent of the governed.”
24. For a full exposition of the positive rights doctrine as developed by
theorists of the political left, see Tom Campbell, The Left and Rights (London
and Boston: Routledge, 1983).
25. See, Sterba, note 7 above.
26. See, e.g., Shue, note 23 above.
27. For a more detailed discussion of this issue, including viable alternatives
to taxation, see Tibor R. Machan, “Dissolving the Problem of Public
Goods: Financing Government without Coercive Measures,” 28, in The Libertarian
Reader, ed. T. R. Machan (Lanham, Md.: Rowman & Littlefield, 1982).
28. Amartya Sen, “Markets and Freedoms: Achievements and Limitations
of the Market Mechanism in Promoting Individual Freedoms,” Oxford
Economic Papers 45 (1995): 519–41. See, on the recently launched capabilities
approach project, the explanation provided at: www.fas.harvard.edu/
~freedoms/capability_defined.html.
29. Nussbaum, “Human Functioning.” A similar conception of human
rights to welfare or empowerment is defended by Alan Gewirth, Reason and
Morality (Chicago: University of Chicago Press, 1978). For libertarian critiques
of Gewirth’s political views, see Eric Mack, “Deontologism, Negative
Causation, and the Duty to Rescue,” and Douglas J. Den Uyl and Tibor R.
Machan, “Gewirth and the Supportive State,” in Gewirth’s Ethical Rationalism,
ed. Ed Regis, Jr. (Chicago: University of Chicago Press, 1984).
30. Nussbuam, “Human Functioning,” 225–26. Another contemporary
theorist who advances an argument along similar lines is Jürgen Habermas,
The Inclusion of the Other: Studies in Political Theory, eds. Ciaran Cronin and
Pablo De Greif (Cambridge, Mass.: MIT Press, 1998), whose conception of a
just society based on discursive democracy involves various prerequisites
The Case for Libertarianism / 43
that will enable the citizenry to be able to take part in the discussion of public
policy. Of course, the discussion then focuses on incidentals, since the important
issue of whether such provisions must be made is already settled
before the discussion gets under way. For more on this, see Tibor R. Machan,
“Individualism and Political Dialogue,” in Classical Individualism (London:
Routledge, 1998), chap. 13.
31. See Machan, Generosity, Virtue.
32. One standard justification for Good Samarian laws is that they apply
to professionals, such as doctors, who have gone on record offering their
services to those in dire medical need, that the law merely spells out the occasion
when that offer must be delivered. Still, even this rationale has problems,
as shown in Mack, “Deontologism.”
33. That is one reason the California law enacted by Proposition 209
makes good sense, though its substance should never have required a ref-
erendum.
34. Richard Epstein, Forbidden Grounds (Cambridge, Mass.: Harvard University
Press, 1992).
35. Jim Sleeper, Liberal Racism (New York: Viking, 1997).
36. See, for example, Tibor R. Machan and Mark Thornton, “The ReLegalization
of Drugs,” Freeman 41, no. 4 (April 1991): 153–55.
37. This is not the whole story or the whole problem with critics of the
libertarian stance. In any case, those who wish to explore the various libertarian
approaches to the problem of drug abuse—including the failed policies
of the federal and local governments on this problem—can begin by
checking the bibliography of (and reading) Mark Thornton’s essay, “The Repeal
of Prohibition,” in Liberty for the 21st Century, eds. T. R. Machan and
D. B. Rasmussen (Lanham, Md.: Rowman & Littlefield, 1995).
38. For a somewhat longer outline of libertarianism, see Tibor R. Machan,
The Liberty Option (London: Imprint Academic, 2003). For a good selection
of varied libertarian ideas, see Tibor R. Machan, ed., The Libertarian Alternative
(Chicago: Nelson-Hall, 1974); Machan, The Libertarian Reader; and David
Boaz, ed. The Libertarian Reader (New York: Free Press, 1997).
44 / Chapter 1
2
The Errors of Libertarianism
Craig Duncan
As a political philosophy, libertarianism has a certain seductive
allure. Who among us, after all, enjoys paying taxes or likes
having his or her actions constrained by laws? Our aversion to
these things makes it tempting to think, like libertarians, that
taxes and laws either should not exist or should exist only in
forms radically reduced from their present levels. Despite its
somewhat seductive allure at the abstract level, however, we
have good reason to reject libertarianism. In arguing against it,
I will make four major objections to it: the “Unanchored Property
Objection,” the “Inadequate Defense of Dignity Objection,”
the “Dilemma of Consent Objection,” and the “Insufficiency of
Charity Objection.” To these objections I now turn.1
1. The Unanchored Property Objection
Interestingly, Professor Machan’s libertarianism and my democratic
liberalism (which I defend in chapter 4) share something
in common at the level of foundations: they both purport
to be grounded in respect for human beings’ distinctive capacity
for choice. Despite sharing a common foundation at the
45
most abstract level, however, Machan and I differ very significantly
in our concrete interpretations of the moral ideal of respect
for the human capacity of choice. For instance, according
to Machan this ideal entails that individuals have an absolute
moral property right to all the money or goods they receive via
market exchanges, whereas on my view the ideal instead entails
that legal rights to property should be defined in a way
that ensures all individuals have fair access to a life of dignity.
Exploring this difference will reveal a large gap in the argument
for libertarian property rights.
According to Machan, taxation is a form of theft (p. 26).
This claim of Machan’s has to be understood with care, however.
As the law stands, you do not have legal title to all the
pre-tax money that others pay to you in form of wages,
salaries, sales, etc. You only have legal title to your after-tax
earnings. Thus libertarians like Machan must concede there is
no illegal crime of stealing involved with taxation. Instead,
Machan must argue that taxation is the moral equivalent of
stealing. Hence he must argue that people have a moral right
to keep and control all their earnings—that is to say, a right
that exists independently of any government-created laws or
other conventions, much like the human rights not to be murdered,
tortured, enslaved, and so on.
Several fatal problems beset this view of moral rights to
property. An analogy will help make these flaws vivid. Suppose
Annie is an antiques dealer who sells her wares from a
small stall housed in a large building containing an antiques
market, with many other dealers selling their wares at similar
stalls. The building’s owner, suppose, charges vendors a percentage
of their sales intake—say, 20 percent—as payment for
the opportunity to sell from one of the building’s stalls. If Annie’s
earnings in sales for a given month were $2,400, then although
that amount of money is in her possession, it is not
hers, if by “hers” is meant legal ownership; $480 of those dollars
in fact legally belong to the building’s owner. The owner
is not stealing her money when he demands this sum from
46 / Chapter 2
her. Suppose that Annie recognizes this but goes on to protest
that the antique mall owner’s commission charge violates her
moral right to keep all of her sales earnings. The obvious reply
to Annie’s charge is that but for the market owner’s initiative
and effort—in constructing the building and the stalls,
in maintaining it, in securing it, in advertising its existence,
and so on—Annie would not have had the opportunity to acquire
any sales earnings in the first place. This makes it churlish
at best and exploitative at worst for her to insist that she
has a moral right to every penny of her sales.
Something similar is true of government taxes; after all,
the existence of our economic opportunity is highly dependent
on the government’s activities of enforcing contracts,
protecting legal property rights, keeping the peace, maintaining
the national defense, printing currency, insuring bank deposits,
preventing monopolies, fighting inflation, negotiating
trade agreements, maintaining transportation infrastructure,
and so on.2
As in the case of Annie the antiques vendor, then,
to insist that one has a moral right to all of one’s income earnings
is to ignore the efforts of one’s fellow citizens who work
in government or who as taxpayers contribute to the support
of the government.3
“Sure, without my fellow citizens’ work I
wouldn’t have been able to earn the money I did,” the libertarian
seems to say, “but that doesn’t mean I owe my fellow
citizens anything for their work.” The exploitative nature of
this is obvious; this surely means that in fact one has no moral
right to all of one’s pre-tax earnings. A moral right to commit
the moral wrong of exploiting one’s fellow citizens would, after
all, be a strange moral right indeed.4
Importantly, this skeptical conclusion certainly does not
mean that taxation is always immune to moral criticism. There
can be schemes of taxation that are tilted too heavily against
low-income earners, or schemes that are tilted too heavily
against high-income earners, so that the taxes levied are justifiably
judged unfair. The guiding ideal in judging this question
of fairness is one of reciprocity: there should be at least
The Errors of Libertarianism / 47
some rough balance between the benefits one gains and the
burdens one shoulders in contributing to society. (For more
details on this ideal of reciprocity, see my essay in chapter 4.)
This potential sort of moral criticism of tax schemes, however,
is off limits to libertarians like Machan, for according to him it
is wrong for ideals of fairness to shape laws and public policy;
laws and public policy must be confined purely to defending
individuals’ rights. (In the following section, I will in fact argue
that individuals have rights to fair treatment, but in this
section I will not pursue this line of thought.) Hence Machan’s
need to object (implausibly) to taxes on the grounds that they
violate an absolute moral property right to all of one’s pre-tax
earnings, rather than on grounds of fairness.
There is another important objection to Machan’s claim
that one has a moral property right to every penny of one’s
pre-tax earnings. This is that Machan’s claim does not follow
from the foundation he provides for it. In fact Machan devotes
scant attention to the task of justifying property rights—much
less attention than this task warrants, given the importance of
property rights to libertarianism. What argument there is apparently
comes with the following sentence: “The right to private
property, via property law in developed communities,
secures for everyone a sphere of personal jurisdiction so it can
be determined when one is acting within one’s own sphere or
intrudes on the spheres of others” (p. 13; cf. p. 38).
The problem is that legal property rights of the sort we already
have in the United States—rights that legally allow for
taxation—suffice to define adequately each individual’s
sphere of personal jurisdiction. One does not need rights to
every penny of one’s pre-tax earnings in order simply to define
these spheres. How many of us, after all, currently have
our lives blighted by uncertainty as to whether the actions we
take with our possessions are legal or illegal?5
I presume Machan’s actual thought is that maximal property
rights are necessary to create a maximal sphere of personal
jurisdiction—a maximal sphere of liberty, in a word. It is
48 / Chapter 2
fallacious, however, to think that maximal property rights
lead to maximal liberty, even when the liberty in question is
negative liberty. To see this, consider that if, say, Susan owns a
field, then although she has negative liberty to use the field, as
a result of her ownership other people lack the negative liberty
to use this field except by her permission; unauthorized users
of it will find themselves on the wrong side of the law.6
This
can all be quite proper; I agree that there should indeed be
some sort of legal property rights to personal belongings
available to citizens. My point is just that libertarian property
rights are not straightforwardly entailed by the value of negative
liberty. This fact is easiest to appreciate if one imagines
that the libertarians’ wishes are granted and everything that
can be privatized is, so that all roads are privately owned toll
roads, all parks are privately owned admission-charging
parks, all libraries are run like Blockbuster Video stores, and
so on. In such a scenario, a poor person who could not afford
road tolls, admission charges, and the like, might have no negative
liberty to go anywhere whatsoever.
There is yet another well-known problem facing any account
of a moral right to property, commonly known as the
problem of “initial acquisition.” Machan’s proposed moral
right to property is, after all, a right to keep whatever items
come one’s way through voluntary exchanges. But what are
these voluntary exchanges? They are voluntary exchanges of
property, of course. Thus the moral value of voluntary exchange
presupposes the existence of property rights of some
form; one cannot derive such rights from this moral value
alone. Consider an example: I give you fifty dollars, say, in voluntary
exchange for your jacket. In order for this to be a permissible
exchange, I must already own the fifty dollars, and
you must already own the jacket. Also, of course I acquired my
fifty dollars and you acquired your jacket via earlier voluntary
exchanges of things we previously owned, and so forth and so
on back into time. But how did the whole process get going?
There must have once been a point where some unowned
The Errors of Libertarianism / 49
resource—a parcel of land, say—came to be owned by someone,
in an act of initial acquisition. But how should this acquisition
have happened ideally? Through some process of
“finders keepers,” or something else? Machan does not say.
I conclude, then, that Machan has supplied no foundation
in which to anchor the incredibly strong moral rights to property
that lie at the heart of his libertarianism.7
2. The Inadequate Defense of Dignity Objection
We have seen that both Machan’s libertarianism and my democratic
liberalism purport to be grounded in an ideal of respect for
the distinctive human capacity for choice—that is, an ideal of respect
for the distinctive dignity of humans. We have already seen,
however, one important difference of interpretation regarding
this idea, a difference concerning property rights. In this section I
will examine another difference in interpretation, one concerning
the legitimate uses of force in defense of others’ dignity.
According to libertarianism, force can be legitimately used
in only a few types of situations.8
The kernel of truth in libertarianism’s
hostility to force is that there is indeed a strong
moral presumption against force, inasmuch as subjecting others
to force bypasses their valuable capacity for choice. On
Machan’s extreme interpretation of this truth, we can apparently
override this presumption and permissibly use force
only in two cases: when the person subjected to force has himself
or herself earlier authorized the use of force (by consenting
to a legally binding contract, say) and when the person
himself or herself fails to respect another person’s dignity by
intentionally using physical force to interfere with the other
person’s choices, as is the case with murder, assault, and theft.
By contrast, my theory allows the use of force in additional
cases. This is so because a person can fail to respect another’s
dignity in more ways than just the single way of intentionally
using physical force to interfere with the other’s choices.
50 / Chapter 2
These other ways are possible because there is after all such
a thing as economic power over others.9
The power to hire a person
(or not) is obviously a significant form of power. Additionally,
being fired from one’s job can be a serious disruption to
one’s life. Afailure to be promoted as expected can also seriously
disrupt one’s plans. Thus people with the ability to hire, fire, and
promote other people (or not) have a significant sort of power.
This is inevitable, so long as firings and refusals to hire or promote
people are possible, as they should be in some fashion. But
as with political power (the abuse of which libertarians are so
fond of noting) this private economic power can be abused: on a
societal level, economic discrimination against minorities can be
used to maintain a castelike system of social stratification; on an
individual level, employees can (among other things) be threatened
with job loss or lack of promotion unless they dispense sexual
favors, perform unreasonably dangerous tasks, work an
insane number of hours, or do other humiliating things they
would never do but for their employer’s power over them.
Fortunately, the state’s power can be used to make these
private forms of power more accountable, by (among other
things) enabling some form of sexual harassment suits; enabling
the formation of employee organizations (e.g., unions);
and by passing anti-discrimination laws, health and safety
laws, minimum-wage laws, and mandatory overtime-pay
laws. The abuses of economic power listed above are abuses in
virtue of being acts of exploitation, which we can define as taking
unfair advantage of a person’s vulnerabilities. More specifically,
exploitative exchanges are not appropriately reciprocal;
in them, one party is treated more as an instrument for another’s
private gain, rather than as a person in his or her own
right. In this way the exploited party’s dignity as a person is
insulted. The same is true of unfair treatment generally—the
recipient of unfair treatment is not treated as a person whose
worth is equal to others. Unfairness is a threat to dignity.
In short, there are other serious sorts of threats to human
dignity beyond the threat of intentional, forcible, physical
The Errors of Libertarianism / 51
interferences with other people’s choices. If the importance
of dignity grounds rights against this threat to one’s dignity,
as libertarians believe, then surely it also grounds rights
against other threats to dignity. Such rights include a right
to fair access to economic opportunity, a right to fair access
to personal security (for one’s body and property), a right to
fair access to political influence, and a right to fair access to
criminal justice (that is, a right to a fair trial).
We should now ask whether these rights are “positive
rights,” as Machan understands them. Asimple answer of yes or
no is not possible here; these “fairness rights” are like Machan’s
idea of positive rights in some respects, and unlike them in others.
Fairness rights are like Machan’s idea of positive rights in
that their observance will require positive efforts from others,
rather than merely the sort of forbearance shown in refraining
from murder, assault, and theft. This is so because (as I say in
chapter 4) like most other good things in life, fairness is not free
of charge. Fairness does not spontaneously occur, like the beauty
of a sunset. Fair access to political influence will require the
funding of voting booths, ballot printing, tallying machines and
workers to operate them; a right to fair trial will require the
funding of highly trained judges, stenographers, and public defenders
for indigent defendants, not to mention courthouses,
law books, and the like. Fair access to economic opportunity will
require some system of publicly funded education so that ignorance
does not radically reduce the opportunities open to children
of poor or negligent parents. Fair access to personal
security will require some public protective system of police,
prisons, and armed forces. The rather horrifying alternative of
private protective associations (private, for-profit police forces,
which one hires on one’s behalf) would at best lead to a situation
in which the wealthy have superb protection and the poor have
meager protection or none at all—a security analogue of the current
health care situation in the United States.10
Thus fairness rights are like Machan’s idea of positive
rights in that their observance costs something. However, they
52 / Chapter 2
are unlike Machan’s idea of positive rights in other regards.
First, they are not a “right to be made happy,” as Machan says
(p. 24). Instead they are access rights. A right to a fair trial, for
instance, does not guarantee you will be found innocent. A
right to fair access to economic opportunity does not guarantee
you will be happy; you must make yourself happy by
working to make use of your opportunities. A right to a fair
vote does not guarantee your favorite candidate will win—
and so on. Second, fairness rights are not necessarily rights
against everyone in the world. Instead they are first and foremost
rights against the institutions that possess power over
you; that is, they are rights to fair treatment at the hands of
these institutions, and thus they are rights against all those
participants who have the power to shape these institutions.
For example, the right to fair access to economic opportunity
is most fundamentally a right against your government, insofar
as its laws create and sustain the economic system that prevails
in your country. Inasmuch as our government is a
democracy, moreover, the right to fair access to economic opportunity
is a right against your fellow citizens, who have
power to influence the government. Note, however, that correlative
with this right there is also a duty. As an economic
participant, we might say, you have a moral right that the economic
system into which you were born ensure you fair access
to economic opportunity, but as a citizen you have a moral
duty to do your fair share of the work needed to support a fair
economic system. Thus these are not rights to get anything for
free.11
In short, Machan’s objections that positive rights are rights
to be made happy, or to get something for free, do not work
against the fairness rights that I have defended. One other objection
Machan makes is that positive rights conflict with negative
rights. “If positive rights are valid,” he says on page 23,
“then ‘negative rights’ cannot be, for the two are mutually contradictory.”
This is mysterious. The rights to a fair trial, to fair
access to economic opportunity, and so on, certainly do not
The Errors of Libertarianism / 53
stand in contradiction to one’s negative rights against murder,
assault, censorship, religious persecution, and so on. A state can
define and protect all these rights simultaneously. To be sure,
inasmuch as respecting positive rights requires economic contributions
from many people, positive rights do conflict with one
alleged negative right, namely, a property right to all of one’s
pre-tax earnings. As I have argued in section 1, however, it is implausible
to suppose that this alleged negative right exists.
Finally, it is likely that Machan would make yet another
objection, namely, that it is a mistake to see these rights (as I
do) as fundamental, pre-legal rights. Instead, says Machan
(p. 22), these rights, when they exist, are established contractually,
by citizens consenting to a government. If by this he
means that the rights to a fair trial, to an equal vote, etc., exist
only in the case where citizens have created a government that
legally recognizes these rights, then I disagree. Fairness rights
exist whenever relations of power exist. Since government is a
power-wielding institution, we can and should judge its laws
by asking whether they respect citizens’ fairness rights. The
problem with Machan’s alternative, consent-based view will
be explored in the next section.
3. The Dilemma of Consent Objection
Machan places himself in a tradition dating back to John
Locke by insisting that in order to be legitimate a government
must obtain the consent—even if only the tacit consent—of all
the citizens under its authority.12
Unfortunately Machan’s failure
to provide much detail regarding the nature of tacit consent
leaves his position open to several important objections.
First, what counts as tacit consent to a government’s authority?
Does mere residence in a country suffice, as Locke be-
lieved?13
If this is Machan’s view, it is unconvincing. As the
eighteenth-century philosopher David Hume pointed out in
criticism of Locke, the burdens of exiting one’s society and set-
54 / Chapter 2
tling in a new one are high enough to make exit an intolerable
or nonexistent option for most people. There is the cost of
moving to and resettling in a foreign country, in addition to
the burdens of adjusting to a new culture and possibly a new
language.14
One may have moral duties (e.g., caring for elderly
parents) that tie one to a specific locale. Finally, and most
decisively, one simply may not be able to find another country
that will legally let one in. For the majority of people, then,
remaining in the society of their birth is not a choice in any
significant sense, and thus their residence cannot plausibly be
construed as an act of tacit consent to society’s authority.
Even if Machan were somehow able successfully to rebut
this objection, it is not clear to me that a “residence = tacit consent”
claim genuinely supports his position. For, of course,
Machan wants to limit sharply government’s authority, but an
undemanding account of tacit consent threatens to legitimate
all manner of activities that he regards as illegitimate. For example,
the Swedish government, with its heavily regulated
economy and its high levels of redistributive taxation, is antithetical
in most ways to libertarianism. But if simply remaining
in Sweden counts as tacitly consenting to the government
there, then Machan must concede there is nothing illegitimate
about Sweden’s decidedly non-libertarian government.
Alternatively, Machan can opt for a more demanding version
of tacit consent. There are problems, however, with this
option. If residence does not suffice for tacit consent, there will
surely be individuals living within a country’s borders who do
not consent to the government there. Maybe they want no
government at all, or a more socialist government, a more libertarian
government, a more religious government, or whatever.
Will such individuals be permitted to stay in society but
be exempt from its laws? This would destroy the rule of law.
Instead, will such individuals be told to secede and convert
what land they own into their own sovereign nation? This will
not do either. A choice of “either consent or secede,” like the
choice of “consent or move abroad,” is an empty one for most
The Errors of Libertarianism / 55
people; rejecting the unrealistic option of secession hardly suffices
for tacit consent. Moreover, even when someone is willing
to convert his land into a separate nation, it is foolish to permit
this. Swiss cheese–style secession is undoubtedly a recipe for
eventual societal breakdown and its attendant dangers.
Hence, making government’s authority contingent on all of
its citizens’ consent runs into problems no matter how one understands
consent. The best response to this dilemma is simply
to concede that political society, owing to its territorial nature,
is unlike other associations to which one might belong; one is
simply born into it, rather than voluntarily deciding to join. It
would be nice if it were otherwise, but realistically we must
concede it is not. From this observation, one can proceed in two
directions: like anarchists, one can claim that all governments
are thereby illegitimate; alternatively, one can argue that the
benefits of (some forms of) government are so substantial that
government is legitimate, despite the fact that not all citizens
consent to it. The second direction is surely the right one.
This has important implications for the fairness rights discussed
in the previous section. Since society and its laws cannot
be founded on the consent of all of its members, we have to settle
for the next best thing to a consensual society, by creating a
society (a democracy) the basic structure of which has the consent
of the majority of its members and deserves the consent of
all of its members. That is to say, we should create a society the
basic structure of which we can reasonably ask all others to accept,
even though we can predict that some unreasonable citizens
will not in fact accept it. (For further discussion of this
idea, see chapter 4, section 3). Since we cannot reasonably expect
citizens to accept institutions that treat them in fundamentally
unfair ways, this means that when governments exist at
all, they must create laws that respect citizens’ fairness rights.
Of course, this will hardly settle the matter as far as
Machan is concerned. “Even if Duncan is right that there exist
fairness rights,” he might say, “it is up to citizens voluntarily to
protect them, by voluntarily funding a legal system that gives
56 / Chapter 2
citizens a fair trial, by voluntarily funding an education system
that gives citizens a fair start in life, and so on.” Indeed, on
Machan’s extreme view, even his own favored libertarian
rights to security of person and property can legitimately be
protected only by a police force that is funded in a voluntary
fashion, rather than by tax revenues. So we must ask: Why not
leave the funding of rights-protecting institutions to charity,
rather than taxes? This is the subject of the following section.
4. The Insufficiency of Charity Objection
According to Machan, all taxation is “on par with forced labor”
(p. 20 , quoting Robert Nozick), on a par with conscription
(pp. 12, 25, and 31), or on a par with indentured servitude
(pp. 24, 28, 33). A government escapes these evils only by renouncing
taxation altogether and opting for a voluntary system
of funding. This view, however, suffers from several
severe flaws. For starters, note the numerous and obvious disanalogies
between taxation and forced labor, which make any
serious assimilation of the two little more than overheated
rhetoric. Under a scheme of taxation, and unlike a scheme of
forced labor, you get to choose what sort of career you will
pursue and where you will live. You can choose whether you
value material goods more than leisure time, or vice versa, and
choose between more demanding and less demanding jobs accordingly.
Indeed, if you are ultra-wealthy, you may not have
to work at all, for you may instead live off of investment income.
It surely shows a serious lack of proportion to think of
some multimillionaire—who may well at this moment be sipping
scotch on the deck of his yacht in the ocean waters near
his second home—as anything like an indentured servant.
Putting aside Machan’s overheated rhetoric, one can also
object to his view on grounds of realism. This objection has
two aspects. First, the current behavior of many citizens
shows that it is foolish to believe that leaving things to charity
The Errors of Libertarianism / 57
will generate sufficient funds to protect citizens’ rights to security
and fairness. Many individuals and corporations currently
exploit each loophole in existing tax law, setting up tax
shelters, moving their domicile abroad, and so on.15
What reason
do we have to think that repealing all tax laws will suddenly
lead these individuals, via some unprecedented
conversion to civic-mindedness, to make sufficient contributions
to the maintenance of government institutions? Second,
it is not only the tax avoidance of current individuals that
gives cause for alarm; one should also be alarmed by the behavior
of many individuals in real-life economies of the past,
which in a great many ways were nearer to the laissez-faire
ideal than our own. For instance, two centuries ago, at the
start of the Industrial Revolution, and onward until the appearance
of the welfare state in the twentieth century, laws
regulating workplace safety, working hours, etc., were either
nonexistent or minimal at best and barely enforced. Many rich
landowners and industrialists then showed themselves to be
serenely indifferent to the plight of their fellow citizens, living
in conspicuous luxury while masses of people suffered.
And suffer they did. In a study of Great Britain, for instance,
the economic historian Roderick Floud reports that as
late as 1914 “much more than half of the population lived at
or close to levels at which their health was affected by the lack
of food, warmth, or housing.”16
For many people—an estimated
30 percent of the population in London, for example—
these health effects were serious enough to render them
unable to work a normal day as adults. For those who could
work, life was hard. In 1856, for instance, the average work
week was sixty-five hours(!)—twelve hours a day Monday
through Friday, and a half-day on Saturday. Many workers
worked longer hours than these. Work, moreover, was often
dangerous, with many miners dying prematurely from black
lung, potters dying from lead poisoning, needle-grinders suffering
from “grinder’s asthma,” match-factory workers becoming
disfigured by phosphorous-caused “phossy-jaw,” and
58 / Chapter 2
so on.17
It would be foolish to jeopardize the tremendous gains
that have been made since the start of the Industrial Revolution
by returning to a laissez-faire economic system and trusting
in the charity of the well-off.
This cautionary point draws further strength from an
awareness of what social scientists and philosophers call “collective
action problems.” Consider, for instance, the safety of
factories in a libertarian regime with no workplace safety
laws. Suppose you are a charitably disposed factory owner
who wants to make his or her factory safe. The problem is that
safety devices often cost a significant amount of money, and
safe procedures may be slower at producing goods. Hence
your goods will be more expensive to produce, and you will
be unable to sell them as cheaply as your competitor, Joe
Sleazo, who cares nothing for the safety of his workers except
insofar as this affects his profit margins.18
Thus you will likely
lose sales to Joe Sleazo, forcing you eventually to choose between
cutting your factory’s safety standards or going out of
business. In this way, then, even if you are charitably disposed
to your workers, the structure of the unregulated economy
may force you to lower your standards. This is the “race to the
bottom,” and in addition to being true of workplace safety, it
is true of many other business policies. As a factory owner you
may wish to pay your workers a decent wage, give them decent
working hours, avoid polluting the environment, and so
on, but if Joe Sleazo pays his workers subsistence wages,
works them ragged, and pollutes, then decent behavior on
your part may make your enterprise uncompetitive and put
you out of business. What a society needs to avoid this pernicious
downward spiral is a change of the rules of the game, in
the form of workplace safety regulations, minimum wages
laws, overtime regulations, anti-pollution laws, and so on.
Moreover, there are other collective action problems, beyond
the “race to the bottom,” to which libertarianism is exposed.
Consider for instance Machan’s insistence that all
government institutions be funded by voluntary contributions
The Errors of Libertarianism / 59
rather than taxes. Problems arise for this proposal even if we
restrict our attention to the institutions Machan himself approves
of, namely, the legal system, police forces, and the
armed forces. This is because these institutions are, in the language
of economists, “public goods”—that is, goods the existence
of which requires the contributions of many people but
the benefits of which can be enjoyed by all people, even non-
contributors.19
If I live within the borders of the United States,
for instance, I will be protected against foreign attack like
every other resident, whether or not I pay money to support
the armed forces. I will also benefit from the deterrence of
crime created by the police force and legal system, whether or
not I pay to support these institutions.
This fact creates the incentive to become a “free-rider”: “If
I will acquire the benefit whether I contribute or not,” some
people will reason, “then why contribute?” This incentive to
free-ride is problematic for at least two reasons. First of all, if
enough people reason in this fashion, there will be insufficient
funds to supply the good. The good’s existence, then, is
made vulnerable or is ruled out entirely. Secondly, even if
there are enough scrupulous contributors (as compared with
free-riders) to fund the good, these scrupulous contributors
are being exploited by the free-riders. This is bad enough in
itself, but it may well have an additional bad consequence:
rather than be exploited by their fellow citizens, after all,
many initially civic-minded individuals may cease their own
contributions in disgust—better to be a non-contributor than
a sucker, they may reason—thereby further threatening the
good’s existence. The solution to these two problems is to
make contributions compulsory, that is, to pay for the goods
by taxes; this will protect the public good against the threat
that free-riding poses to its existence, and it will protect contributors
against exploitation. If citizens are entitled to use
the law to defend their dignity against threats to their person
and property, surely they can use the law to defend their dignity
against threats of exploitation.
60 / Chapter 2
Machan trivializes this line of thought by citing examples
of trivial goods. We benefit, Machan notes, from “nice looking
or smelling people we walk by,” (p. 21) but we owe them no
money for this benefit. This is right, but the good of a nicesmelling
person does not require many individuals’ contributions
for its provision, and more importantly, as goods go it is
hardly in the same league (to put it mildly) as the good of protection
against foreign invasion, murder, theft, and so on. This
good of protection is of fundamental importance, as any reasonable
person can recognize. The same is true of other goods
of fundamental importance, such as provisions to ensure that
trials are fair, votes are equally counted, access to economic
opportunity is fair, and so on.
Conclusion
I have focused on four errors committed by libertarians such as
Machan. First, they defend an extreme account of moral rights
to property but do not anchor these rights in an adequate
moral foundation. Second, despite their focus on the importance
of negative liberty to human dignity, they are blind to the
existence of threats to human dignity beyond intentional uses
of physical force, namely, threats posed by private economic
power and by social arrangements that give some people unfair
access to essential goods like economic opportunity, personal
security, political influence, and criminal justice. Third, it
is unpersuasive to claim that rights to fair access to these goods
exist only when all citizens consent to a government that recognizes
such rights in its laws; if governments, to be legitimate,
really needed the consent of all their citizens, then no
feasible government would be legitimate. Fourth, it is inadequate
to leave the funding of rights-protecting institutions to
charity. History suggests this is unwise, and in any case people
who contribute to the support of such institutions are entitled
to protect themselves against exploitation by free-riders.
The Errors of Libertarianism / 61
There are other problems with libertarianism besides these
four. But these problems are enough to refute libertarianism’s
claim to our allegiance.
Notes
1. In this critique I will focus on the fundamental claims of libertarianism,
rather than its policy implications regarding affirmative action, drug legalization,
and so on. The issue of affirmative action in particular is indeed
a complex one. For important defenses of it, see Ronald Dworkin, Sovereign
Virtue: The Theory and Practice of Equality (Cambridge, Mass.: Harvard University
Press, 2000), chaps. 11 and 12; and Elizabeth S. Anderson, “Integration,
Affirmative Action, and Strict Scrutiny,” NYU Law Review 77 (2002):
1195–271.
2. This is an oft-made point in the literature against libertarianism. For
some references, see Fried “Left-Libertarianism: A Review Essay,” Philosophy
and Public Affairs 32 (2004), note 49. See also section 4 of chapter 6 of this
book for quotations from “founding fathers” who make this very point.
3. One important disanalogy between the vendor case and the case of
taxation is the fact that vendors choose to join the antique market on the
owners’ terms, whereas most citizens are born into the state. I will explore
the implications of this important fact in section 3 below, “The Dilemma of
Consent Objection.”
4. This truth can be easily obscured by the terms used in sentences like,
“The government taxes your earnings.” For one might ask: If, as this sentence
says, the earnings in questions are yours, does this not mean that you own
them, and thus that government taxes do in fact confiscate money you own?
The answer to this question, however, is no. Possessives like “your,” “my,”
“his,” “her,” etc., do not always signify ownership. When you speak of “my
mother,” “my country,” “my shadow,” “my first kiss,” and so on, you do not
mean that you own your mother, your country, your shadow, or your first kiss
(whatever that would come to!). At a general level, the phrase “your x”
merely indicates that you stand in a relation to x that not everyone else in your
audience stands in; this leaves it open as to whether the relation in question
is one of ownership or some other relation. Legally speaking, then, the sentence
“your pre-tax earnings are $x” just means that you stand in a particular
relation to $x, namely, that this number is the amount that will be entered into
the tax equations that determine how much money you legally own.
5. Moreover, where there is uncertainty due to a vaguely worded property
law, one solution is to rewrite the law. Eliminating rather than rewriting
a vague law is like treating a case of dandruff with decapitation.
62 / Chapter 2
6. This point is extensively explored in G. A. Cohen, Self-Ownership,
Freedom, and Equality (Cambridge, U.K.: Cambridge University Press, 1995),
chap. 2.
7. For a survey of philosophical issues related to property rights, see
Lawrence Becker, Property: Philosophic Foundations (Boston: Routledge and
K. Paul, 1977). For a critical evaluation of Robert Nozick’s well-known libertarian
discussion of initial acquisition (building on John Locke’s theory), see
Cohen, Self-Ownership, Freedom, and Equality, chap. 3. Indeed, the gap in argument
surrounding the problem of initial acquisition has permitted the rise of
“left-libertarians”—thinkers who are absolutists about owning one’s own labor
but who are egalitarians about the ownership of external natural resources.
See Fried, “Left Libertarianism” for a recent survey of left-libertarian literature.
8. Libertarians’ recognition of only a few types of legitimate force, however,
does not mean that the number of instances that the libertarian state must
use armed force will likewise be few, however. I wonder whether a libertarian
state will need frequently to deploy anti-riot police squads to keep the unemployed
and impoverished from rioting, for instance. Machan might reply
that libertarianism, by permitting material inequalities that create incentives
for entrepreneurs to innovate, would generate the economic growth needed
to solve these problems (see for instance his claim on page 17 linking a free
market with “a more prosperous society”). The relationship between material
inequality and economic growth is a complex relationship, however, and one
that is much debated among economists. If anything, the empirical evidence
suggests a negative correlation between inequality and economic growth, due
in part to the wasted human potential among the poor and uneducated. For
further discussion, see Andrew Glyn and David Miliband, eds., Paying for Inequality:
The Economic Costs of Social Injustice (London: Rivers Orem, 1994);
Klaus Deininger and Lyn Squire, “Economic Growth and Income Inequality:
Reexamining the Links” (1997), www.worldbank.org/fandd/english/0397/
articles/0140397.htm; and the references in note 12 of Alan B. Krueger, “Inequality,
Too Much of a Good Thing,” unpublished manuscript available online
at www.irs.princeton.edu/pubs/pdfs/inequality4.pdf.
9. Though insofar as a person’s economic power depends upon the
state’s physical enforcement of his or her property rights, it is debatable just
how separate economic power is from physical power.
10. Machan, by labeling the doctrine of positive rights “arbitrary and incoherent”
(p. 28), must think that these judgments of fairness are arbitrary
and incoherent. But what is the ground for this assertion? That people disagree
about fairness? This ignores the broad consensus that exists regarding
many forms of unfairness—cheating, racial discrimination, childhood
poverty, etc. Moreover, people disagree about the limits and content of negative
rights, too; Machan cannot think that this makes the doctrine of negative
rights arbitrary and incoherent.
The Errors of Libertarianism / 63
11. The only exceptions concern those who are necessarily dependents:
children, and people who owing to profound disability are incapable of participating
in the economy. For them, fair access to the means of subsistence is
a right to be provided with means necessary for a decent life. (Note the misplaced
emphasis involved in Machan’s complaint [p. 20] that no parent has a
right “to the education of his or her children.” On the contrary, it is not the
parents who have the right to have their children educated; it is first and foremost
the children who have the right to an education.) Children, of course,
will upon reaching maturity assume the correlative duty of this right, namely,
a duty to support a system that gives children a fair start in life. The profoundly
disabled will not. This is one case where the fairness rights I am defending
take an asymmetric form—that is, are not counterbalanced with a
correlative duty. I cannot see that this is an objection, however; the plight of
the profoundly disabled is hardly an enviable one. As such, a complaint that
the profoundly disabled are exploiting their fellow citizens does not ring true.
12. Arguably, though, Locke waffles on the issue of whether the consent
of all or of just the majority is needed. See for instance John Locke, Two Treatises
of Government, ed. Peter Laslett (Cambridge, U.K.: Cambridge University
Press, 1960), 362, para. 140. For a non-libertarian interpretation of Locke
generally, see A. John Simmons, The Lockean Theory of Rights (Princeton, N.J.:
Princeton University Press, 1992), especially chap. 6.
13. John Locke, Two Treatises of Government, 348, para. 119.
14. David Hume, “Of the Original Contract,” in Modern Political Thought:
Readings from Machiavelli to Nietzsche, ed. David Wootton (Indianapolis, Minn.:
Hackett, 1996), 387–96.
15. In 2002, for instance, American multinational companies reported a
record $149 billion in profits in tax-haven countries (i.e., countries with low
or no corporate taxes). “Taxing Global Profits,” New York Times, September
17, 2004.
16. Roderick Floud, The People and the British Economy: 1830–1914 (New York:
Oxford University Press, 1997), 23. Quoted in Emmet Barcalow, Justice, Equality,
and Rights (Belmont, Calif.: Wadsworth/Thomson Learning, 2004), 216.
17. Floud, The People and the British Economy, 23, 31, 78.
18. I borrow the character of Joe Sleazo from Richard B. Freeman and
Kimberly Ann Elliott, Can Labor Standards Improve under Globalization?
(Washington, D.C.: Institute for International Economics, 2003), 37. This is
an example of the collective action problem known as the “Prisoner’s
Dilemma.” For further discussion of this and other collective action problems,
see Jon Elster, Nuts and Bolts for the Social Sciences (Cambridge, U.K.:
Cambridge University Press, 1989).
19. For further discussion of public goods, see Joseph Stiglitz, Economics
(New York: W. W. Norton, 1993), 180–82, and John Rawls, A Theory of Justice,
rev. ed. (Cambridge, Mass.: Harvard University Press), 234–42.
64 / Chapter 2