Monthly Archives: July 2017

Brink Lindsey of the Cato Institute recently wrote an article arguing that libertarians should abandon any arguments regarding natural rights. As Lindsey sees it, the concept of natural rights is an intellectual dead end and that adherence to natural rights arguments should be abandoned. His perspective can largely be boiled down into two categories: strategic pragmatism and the inadequacy of the natural rights doctrine in constructing a libertarian legal order.

Libertarians always have and always will debate strategy. This question is not very interesting to me as it can ultimately only be answered empirically. Lindsey argues that Instead of spinning utopias, libertarians should focus instead on the humbler but more constructive task of making the world we actually inhabit a better place. Im very open to this argument, and as soon as the Cato Institute can demonstrate that it has actually effected change in government policy in a libertarian direction, I am willing to consider capitulating to Lindseys arguments for a more pragmatic strategy. As of yet, however, his constructive approach to libertarianism has had no more reductive effects in government than the purist approach to libertarianism he loves to attack, so it is objectively impossible for him to proclaim his views to be any less utopian than the radicals who stubbornly cling to their principles.

More interesting to me is the claim that natural rights are insufficient in determining a full-blown, operational legal order. This statement is interesting because I was not aware that any natural-rights libertarian scholar ever claimed that it could. Lindsey argues that the problem lies not with the concept of natural rights, but in that concepts overextension because these principles fail to determine the specific guidelines upon which all disputes would be precisely adjudicated.

The first correction that must be made to Lindseys argument is that no serious libertarian thinker argues that natural rights are the beginning and end of libertarian legal theory. What these principles allow us to do is to establish, first, a property ethic and, from this, a theory of justice. Hans Hermann Hoppe offers what is arguably the most complete natural rights doctrine known as his Argumentation Ethics. Even natural rights libertarians who do not accept the ethics of argumentation generally agree on the principles it purports to prove: The Private Property Ethic (or, the Libertarian Property Ethic) and its logical derivative the Non-Aggression Principle, which we may call the libertarian theory of justice.

This forms an ethical basis for libertarianism without which we would have no means of determining what constitutes a libertarian position to begin with. In fairness, Lindsey is not claiming that natural rights are necessarily wrong; he is just saying that libertarians should abandon these ideas whether they are correct or not for pragmatic reasons, of course.

Brink Lindsey may desire a libertarian community that is held together only by a label representing a hodgepodge of contradictory political positions after all, this is the formula that has made the Republican and Democratic parties so successful! but we nave purists often desire something more consistent and principled to associate ourselves with, and there is no means of establishing principles aside from ethical philosophy. What the ethical philosophy of natural rights allows us to do is direct our own individual behavior according to libertarian principles and to prescribe political solutions that are ethically consistent with these principles. This does not mean that there is a precisely determined, canonical position on every conceivable issue for libertarians, but these disagreements stem from the fact that ethical philosophy can (and should) be debated. But it cannot be dismissed altogether.

However, Lindsey is correct in arguing that the establishment of this theory of justice is insufficient in determining legal structure and answering certain questions regarding positive law. He does concede that more sophisticated presentations of radical libertarianism do take note of some of these complexities but adds the caveat that they present these open questions as minor blank spaces in an otherwise determinate legal structure, to be filled in by custom or common-law jurisprudence. The problem with his objection is that this demands natural rights theory to be something more than it is intended to be. Thus, it isnt the natural rights libertarians who are overextending the theory of natural rights; it is Brink Lindsey who is doing so.

Natural rights libertarian theorists such as Murray Rothbard and Hans Hermann Hoppe also combine ethical principles with the economic methodology of Ludwig von Mises praxeology to determine what economic system is most compatible with the Private Property Ethic in maximizing prosperity (they determine, as anarcho-capitalists, that a purely free market is the most compatible with this end), and they derive from this economic framework the most compatible legal framework that, combined with the libertarian theory of justice, will most effectively handle disputes. The complete libertarian political framework provides both an ethical and a pragmatic answer to political questions, but Brink Lindsey appears to live in a world in which a libertarian must choose to deal exclusively with one category or the other. This one-sided approach to libertarianism is neither desirable nor possible (after all, even if one were to make an exclusively pragmatic argument, as Lindsey advises, then the assumption of any goodness of the results of the policies prescribed tacitly depend on some ethical value judgment to begin with).

Economic theory does not empower us to determine the specific manner in which a legal system will manifest in a given society. It simply tells us that on the assumption that human beings value peace above conflict institutions will emerge that will best facilitate the administration of justice according to the preferences of consumers. This is the economic basis for private courts.

Concomitant to private courts is the establishment of private law, which legal theorists will refer to as common law. As previously quoted, Lindsey assumes that no libertarian has ever offered any answer as to how common law will fill in the blank spaces of the otherwise determinate legal structure. This may be the case if one confines himself to the world of the Cato Institute, as Brink Lindsey appears to do in citing only Cato Institute adjunct scholars in reference to his arguments. But if he were to venture out into the wider libertarian world, Lindsey would find a plethora of scholarship on the issue of common law jurisprudence. Edward Stringham edited an entire collection of scholarly articles regarding anarchic legal theory. Bruce Benson has been conducting scholarship in this field since the 1980s, and his work The Enterprise of Law details the centuries-long Anglo-Saxon history of private dispute adjudication (this work is nearly three decades old, so it may be fair that Lindsey has not yet had time to read it). Even one of the Cato Institutes own senior fellows, John Hasnas, has written a great deal on the establishment of common law through the tort system!

Common law systems throughout history do not address rights violations in a uniform way, and it would be absurd to suggest that any theoretical system of private courts would do so either. However, what can be said is that in the absence of a coercive government, courts will manifest, there will exist an avenue for bringing perceived rights violations in front of an arbiter, and there will be a mechanism through which restitution can be enforced. Lindsey is perplexed by the fact that natural rights doctrines fail to determine the nuances of questions such as the specific boundaries of property rights (in a previous article attacking the Non-Aggression Principle, he asks How far below the surface should property rights in land extend? How high into the sky?), the extent to which a person may lawfully go in defending his or her property, or the precise magnitude of restitution paid to a victim in specific circumstances. These questions, of course, cannot be answered through natural rights theory (except for maybe the property rights one), but it is not a failure of the concept of natural rights that it cannot answer questions that lie beyond its scope! Such questions can only be answered by the individual arbiters in a given system (anarchic or not), and in the case of private law, a natural rights libertarian is in the position to contract with arbitration firms that best conform to libertarian ethics.

This last point was addressed in a simple but profound article by Ben Powell. In You Are an Anarchist. The Question Is How Often? Dr. Powell points out that, even for people who are classically liberal for natural rights reasons, No system will perfect human morality. And, because it is costly to monitor and prevent deviant behavior, some such behavior will exist under any governance system. So even a well-functioning anarchy would still have rights violations. The question remains one of comparative institutions. It would be nave to assume that even the purist libertarian political system (say, anarchy) would usher in a state of perfect and universal adherence to the Non-Aggression Principle; nirvana is not for this world. Muggers will still mug, and killers will still kill. The question is not how do we avoid these rights violations completely? The question is merely what society would best deal with them? What society would minimize rights violations? The natural rights philosophy does not give us the answers to how all the precise nuances of a legal structure will manifest, but it does give us a means of judging whatever legal systems emerge in the absence of government.

But to even ask these questions, one must first establish and defend the concept of rights at all. The libertarians who adhere to natural rights doctrines are simply arguing that in order to make the world we inhabit a better place, we have to have some means of establishing what that actually is, and that necessitates an ethical philosophy. These libertarians are not arguing for natural rights because they are libertarian; rather, they are libertarian because they recognize natural rights. Ignoring these ethics does not make libertarianism more practical, it just eliminates libertarianism altogether. All that is left in Brink Lindseys pragmatic world is the arbitrary political position that government should be smaller to some vague extent, and this would be good for reasons we have no means of offering.

Only in the world of Brink Lindsey is this approach to libertarianism more determinate than the philosophy of natural rights.

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Natural-Law Libertarianism And The Pursuit Of Justice - The Liberty Conservative

A section of the cover of Hobbes Leviathan with engraving by Abraham Bosse, 1651. Image via Wikipedia.

At first glance the fact that Donald Trump and Theresa Mays neo-Conservative agenda mixes a libertarian ideology with a strong authoritarian streak seems contradictory. In the United States we see Trump using an autocratic executive order to mandate that two rules for business must be repealed for each new one enacted in Congress. In Britain a similar mantra of a bonfire of red tape is accompanied by the attempt to use the Royal Prerogative to force through Brexit decisions. But autocracy was built into Libertarianism when it first appeared centuries ago!

It is not just in religious texts that people die and get buried only to be resurrected and live a far more celebrated second life; or at least their works do. It happened to the composer J.S. Bach, whose music disappeared for over a century before it was resurrected by Felix Mendelssohn in the mid Nineteenth Century. It also happened to a man who died just before Bach was born, the seventeenth century political philosopher Thomas Hobbes.

Ironically for one of the founders of liberal and libertarian thinking, (along with John Locke) a primary aim of Hobbes was a defence of sovereign power and autocratic government. Hobbes works include Leviathan, published in 1651 in which he developed his Social Contract Theory.

His efforts were largely aimed at opposing the radical politics which emerged during the English Civil War of the previous decade (partly as a result of the radical Leveller group) and the theories of the High Republicans during the English Commonwealth of the early 1650s (1).

Strangely, although Hobbes ideas were applicable to a Royalist settlement as well as the Council of State of their bitter opponent Parliamentarian Oliver Cromwell, both sides found his views unpalatable. So, just like the work of the composer Bach, Hobbes theories fell into obscurity for over a century to be revived during the debate over American Independence in the 1770s.

So what lay behind Hobbes insistence on an absolute monarch? It comes from Hobbes concept of society which viewed people atomistically, in perpetual motion trying to gain economic advantage and influence over each other. From this a natural structure to society emerges with individuals all seeking their own best interests.

But if society is of this nature, what stops it falling apart in some kind of anarchic fight for ultimate power? Why, none other than a universally accepted absolute sovereign charged with passing and enforcing laws to ensure the continued health of the competitive system.

To keep the sovereign above the throng he or she would have the power to appoint their successor (what better than the eldest son!). Importantly, the Sovereign was not necessarily an individual in the Hobbes system, but could also be an elite ruling group or even, surprisingly, a democratically chosen chamber. What concerned Hobbes was not so much the source of the power but the absolute manner in which it was wielded.

Hobbes claimed that the legitimacy for his theory came from the freedoms which man possessed in the state of nature. But as C. B. MacPherson showed in his book Possessive Individualism, this was a fallacy.

What Hobbes did was to take the contemporary mid-seventeenth century English economic structure of small traders and freelancers and hypothesize how they would behave if laws were removed. Crucially, his version of liberty rested on the fact that a person is free to the extent that he/she is not constrained by laws; the Sovereign is there merely for the stability of society and the health of a free market.

For Hobbes, so-called freedom by non-interference was key and as freedom is maximised when the number and extent of laws are minimised, it is actually irrelevant whether the laws are passed by an elected chamber or an absolute monarch. The idea of liberty through non-interference, also expounded by John Locke, was later developed by Jeremy Bentham and became the prevalent view which still dominates today.

But it turns out that this idea of liberty is not nearly strong enough and not only must there be non-interference, but there must be no possibility of interference (so-called non-domination). Furthermore, the state itself must also be free, prevented from being subverted by individual or sectarian interests. In this view a sovereign must be restrained from creating arbitrary laws to their own advantage or blocking new laws to extend liberty in some facet of society.

Thus to a modern day British Republican (and more widely to any real Democrat as a believer of rule by the people) the mere existence of the Royal Prerogative along with Royal Assent (though not used since 1707) and Queens Consent which can be used to prevent debate in the House of Commons is unacceptable. As Philip Pettit in his book Republicanism writes:

Liberty as non-domination republican liberty had not only been lost to political thinkers and activists; it had even become invisible to the historians of political thought.

As activists we need to recover this idea of republican liberty. Remember that the theory calls for the wielding of absolute power (or as close as we can get in the form of Prerogative or Executive Order). Although Hobbes can be seen as the progenitor of the concept, modern Libertarians are actually critical of Trump and May, viewing the size of the Government they propose as being far too large. Nevertheless the autocratic Libertarian elements of both leaders must be opposed for a compassionate and fair society with effective individual rights to survive. The recent debacle suffered by Theresa may in this General Election greatly increases the chances of a successful outcome in the near future. But the ideology is as old as the hills and we can be certain that sooner or later it will flourish again.

Notes

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Trump, May, and Autocratic Libertarianism - Bright Green

Within the past week, Ive had a drastic and sudden change of heart regarding my political ideology. For years, I considered myself a Thoreauvian Minarchist, a term I made up to reflect the influence Ralph Waldo Emerson and Henry David Thoreau had on my libertarianism. My ideology, until my recent conversion, can be summed up as a melding of the Founding Fathers rationale for the formulation of government, as can be found in The Federalist Papers, with the self-reliance and spirituality of Transcendentalism.

As Emerson and Thoreau would say, I am still following my own genius, but it has led me into a new ideological realm: modern progressivism.

First, a little background. In my extended family, my grandparents and most of my aunts and uncles are conservatives, whereas my cousins are mostly liberals. My mother is not very political, but she could be described as right-of-center, and my father is a Reagan Republican. My extended family is quite large, and we would often discuss politics at reunions. I pride myself in understanding and appreciating both left and right sides of an issue, though I typically agreed with the more conservative side; I was more or less a conservative for a long time, but became disillusioned when the size of government never shrunk when the GOP held the reins of government and studied, and then embraced, libertarianism.

However, I am jumping ship yet again. The recent political strife over repealing and replacing Obamacare has enlightened me to a fact heretofore unknown to me. In 2010, I was very much against the imposition of Obamacare, but in recent weeks Massachusetts Senator Elizabeth Warren has warned that if Obamacare is repealed, people will die.

I took a few philosophy classes in college, one of which centered on logic. By applying a critical lens to what Warren has claimed, I realized that if Obamacare is not repealed, people will not die. I may be an outlier, but I do not want to die. I eat healthy, exercise regularly, and am risk-adverse to the point of not engaging in any sport or activity that requires a helmet, I dont attend Scottish soccer matches, and I drive well below the speed limit, often with my four-ways flashing.

There is nothing wrong with changing a position upon the availability of new information. I was very critical of Obamacare upon its passage and implementation, but upon learning that Obamacare is a source of immortality, I am now one of its staunchest supporters.

***

When I first started seeing all these ads and interviews about people dying, I thought, Im pretty sure everyone dies eventually. Sadly, Im not as eloquent as one of my favorite writers.

Ernest Hemingway has a few good quotes about death. From A Farewell to Arms, his novel about a double-amputee: The world breaks everyone and afterward many are strong at the broken places. But those that will not break it kills. It kills the very good and the very gentle and the very brave impartially. If you are none of these you can be sure it will kill you too but there will be no special hurry. But you will receive good treatment if cared for by doctors subsidized by the state.

From his essay titled, Notes on the Next War: They wrote in the old days that it is sweet and fitting to die for ones country. But in modern war there is nothing sweet nor fitting in your dying. You will die like a dog for no good reason. But if you do not die on the battlefield, rest assured Veterans Affairs will neglect you and you will perish in a waiting room from an infection caused by a routine hip replacement.

Another from a letter he wrote to his family when he was 19: And how much better to die in all the happy period of undisillusioned youth, to go out in a blaze of light, than to have your body worn out and old and illusions shattered. And it is most preferable for death to come while protesting on a college campus some conservative bastards right to free speech.

The one I relate to the most is from my favorite short story Hem wrote, Indian Camp:

***

Democrats/liberals/progressives/hippy douchebags, whatever you want to call them, fancy themselves as fighting for the vulnerable. To them, everyone who isnt part of the 1% are the unwashed masses littering 19th century Parisian streets. They act as though they are champions of the poor and destitute, protecting them from the indifferent landed gentry riding in their horse drawn coaches trampling beggars underfoot. And yes, I will confirm for those of you suspecting, that I just watched Les Misrables, which stars Wolverine, Jor-El, and Catwoman.

Democrats fancy themselves pro-science (jurys still out on that one), but they are definitely not pro-math, and I daresay they are not pro-reality. They piss and moan that if Trumpcare passes and envelopes Obamacare, proposed Medicaid cuts (which are just reductions in projected annual increases) would lead to poor and middle class Americans dying in the streets.

Forgive me for changing metaphors midstream, but if you desired to keep a vulnerable people afloat, as well as add to their numbers, and were capable of logic, you might try to renovate the ship so it could accommodate more passengers, or design and build a new and improved ship. You wouldnt put more passengers aboard an already sinking ship, would you?

National Review writers state, Medicaid is really the low-hanging fruit of the entitlement wars. If Congress cant reform Medicaid, how can it ever be expected to make changes to Social Security and Medicare, which have wider and more powerful constituencies? & Arkansas is taking significant steps toward reversing Obamacares devastating impact. Other expansion states should take note. Mises.org ran an article stating, Believe it or not, the data suggest that if anything, ObamaCare actually caused more Americans to die and at the Federalist, [R]esearch has shown that being on Medicaid produces no better health outcomes than being uninsured.

I never would have allowed him to treat me if he wasnt also suffering from cancer, dear old dad said. How could I trust him to know how to properly provide treatment? From years and years of medical school and practice? Are you nuts?!

***

And thats the way it is, as far as you know.

Image: Fox News

This post was written by Dillon Eliassen.

The views expressed here belong to the author and do not necessarily reflect our views and opinions.

Dillon Eliassen is the Managing Editor of Being Libertarian. Dillon works in the sales department of a privately owned small company. He holds a BA in Journalism & Creative Writing from Lyndon State College, and needs only to complete his thesis for his Masters of English from Montclair State University (something which his accomplished and beautiful wife, Alice, is continually pestering him about). He is the author of The Apathetic, available at Amazon.com. He is a self-described Thoreauvian Minarchist.

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Shortcuts & Delusions: We're All Gonna Die! - Being Libertarian (satire)