A Passion for Liberty

Krugman’s Apologetic for Government Regulation

Tibor R. Machan

Paul Krugman, not unpredictably, once again (in The New York Times, Monday, May 14, 2012) went to bat to hit a home run for government regulation of, well, everyone (except the members of his own profession, namely, eggheads). His piece is titled “Why We Regulate?” but fails to address the most fundamental issue. This is “Who is the ‘we’ in his essay?” And why would “we” be wiser and more virtuous than those whom “we” regulate?

Are there, as is implicit in Krugman’s thinking, two classes of human beings, the regulators who are superior, and the regulated who are prone to vice and stupidity? Somehow this issue never gets addressed by him and his allies. Nor do they seem to cope with the critique from public choice theorists such as Nobel Laureate Jim Buchanan, et al., who have pointed out that regulators and other government personnel are motivated pretty much as we all are, and will use their station to advance their preferred goals, not some vague notion of the public interest (which no one has ever managed to identify precisely enough). Since, however, they have political and often unchecked power as well as sovereign immunity–they cannot be sued since they are “us”–they are far more inclined to malpractice than are the regulated (who mostly make mistakes but are rarely out and out mendacious).

I have studied government regulation of business for decades–even co-edited, with a fine economist, the late M. Bruce Johnson, the book Rights and Regulation (1983) which explores the topic from a great variety of perspectives, pro and con. Ok, never mind, I am and maybe so was Professor Johnson too low ranked to be worthy of Krugman’s attention. However, Professor James Buchanan and other public choice scholars are formidable within the terms that Krugman should take seriously. (Krugman got his Nobel for some technical work he did, which is rightly admired across the discipline, while Buchanan advanced a general theory in political economy and got the Nobel for that feat, something Krugman ought to recognize by dealing with his argument!)

The ordinary issue to be addressed by champions of government regulation of business is, of course, “Who are these people to qualify as regulators–i.e., dictators–of millions of citizens engaged in business?” When the interstate commerce clause was included in the U. S. Federal Constitution by the framers, “to regulate” was widely taken to mean “to regularize.” This makes sense since the helter skelter economic policies among the several colonies had to be regularized once the colonies got united. A free market, more or less, was created without duties and tariffs and such. It is only some among the framers who took “regulation” to mean “manipulation” or “dictation.” But that is how the term got interpreted in the New Deal.

But in a free society no such regulation, nor such regulators, make any sense, not when the citizens are all equally endowed by basic rights that no one may violate. Government intrusion in business does, however, violate those rights.

Sadly, there hadn’t been sufficient influential protest against the changed usage of “regulate” and the ideological direction of the FDR era was inclined toward top down economic management. Yet, folks like Professor Krugman ought to take up the task of examining government regulation of commerce more fundamentally, more deeply, than simply to accept a highly ideology laden version of the term.

I have no idea what reasoning might lie behind the fact that Krugman & Co. do not embark upon a serious examination of government intrusion in business, never ask just who are these people they wish to entrust with the power to order their fellow citizens about. I have my suspicions but I do not wish to deploy the ad hominem approach Krugman himself is so fond of when he deals with his intellectual adversaries.

From Machan’s Archives: Business Versus Business

One of Karl Marx’s less notable mistakes was his belief that people in the world of business would promote their self-interest. If by self-interest we include, as I believe we ought to, the most rational social-political principles in support of a sound human institution’s flourishing, then clearly people in business, not to mention the wealthy, often act in a self-destructive manner. They promote policies that hurt them economically.

Examples of such self-destructive business conduct are not hard to identify. Consider Ted Turner, the multi-billionaire mogul, who went to Congress some years ago and asked the politicians in Washington to “shove down the throats of” broadcasters a TV violence rating system, unless the broadcasters adopt one pronto. Or consider how New York City’s wonder financier, Donald Trump, wanted legal action take against native Americans who were running gambling establishments, just because they are not forced to pay the taxes he has to pay. Furthermore, consider a decision of the U. S. Supreme Court some years back, followed by some state supreme court rulings, to refuse to place a cap on the amounts of punitive damage money that juries may award to plaintiffs who succeed in proving that some service or product has injured them. (I won’t even bother with anti-capitalists like Warren Buffet and George Soros!)

In each of these cases it is people in the business community who are advocating getting the government involved in the operations of the market place or to cut some slack for them from the processes of our system of justice. (What is a fine that fits the crime anyway?)

Turner’s advocacy of government censorship of broadcasting is perhaps the most disgusting of the three examples. Ted Turner, who is rumored to have admired the ideas of Ayn Rand earlier in his career, was actually promoting government’s intrusion on freedom of expression. He wanted the First Amendment to be voided when it comes to broadcasting. He should, instead, advocate the extension of First Amendment protection to the entire broadcast industry. He should advocate repeal of the federal law that has established the Federal Communications Commission–earlier the Federal Radio Commission–so that broadcasters and cable television operators could be enjoying the same freedom of communication as do the printed media. Instead, perhaps to appease the left wing liberals with whom he has been so socially chummy, he is asking the state to tell broadcasters how to run their business, what to do about its content, etc.

Trump, et al ought to be advocating the reduction of taxation on every front, including when it hurts their immediate, short term business objectives, but instead they cry “unfair” and ask government to hit up the few people who have managed to escape its thievery. Trump ought to use the example of native Americans to point out that taxation is blatantly unjust and it would be best to recognize this fact not only regarding native Americans but all of us who live in this country. But the wunderkind of New York, Atlantic City and Las Vegas seems to lack the integrity and is proceeding in a truly short sighted fashion.

Those people in business who want the government to limit the punitive sums juries may award to injured parties evade that such a limitation would be rather arbitrary. No doubt some juries are willing to indulge their collective prejudices against corporations by awarding larger than reasonable punitive sums to victims of corporate malpractice. But the remedy for this is not to subvert the jury system but to embark on a program of giving business a better press, demonstrating to the public that the business bashing attitudes so typical of the liberals are wholly unjust and injurious to our society. The source of jury’s prejudices need to be addressed, but not by trying to subvert the jury system.

The short cut method taken by too many prominent people in business ultimately undermines the system under which businesses can flourish in a human community. Such an approach–which includes advocacy of protectionist legislation, begging for subsidies, government backed loans, and bailouts, as well as protection of businesses against competition from new entrepreneurs at home and abroad–is surely sabotaging the entire business community, even while it may give a few particular enterprises a temporary leg-up.

That business people do not realize how dear a price they are paying for the relief government gives them indicates that they are no less savvy concerning the relationship between politics and business than are academic left wingers who advocate out and out socialism. Marx was wrong–people in business are in fact insufficiently self-interested!

A potpourri of Issues, Minor and not so much.

Tibor R. Machan

Justice Kennedy’s observation that the mandate changes the relationship between government and the individual is doubtful since there really are quite a lot of actions that citizens are forced to take, like it or not. Jury duty, for one; sending one’s kids to school, for another; submitting to TSA searches if one wants to utilize air traffic, for yet another. And, of course, there is a yearly visit to the USPS to mail off the funds the IRS extorts from the citizenry!

Still, yet another step in this direction needs to be seriously resisted. Slippery slopes need not be succumbed to; freedom is too precious to lose because of a history of sloppy judicial reasoning. It’s time to take a stand even if precedence makes it look unreasonable.

“First priority” is redundant since priority means first

“the reason is because/that”

“different than/from”

“lie versus lay down”

“people that/who”

“A neighborhood of working people” refers to what kind of neighborhood exactly?

Some more language mangling: the use of “a couple…” not completed with “of”; Thus, I read: “…a couple examples…” This one is on the rise.

Revisiting a Confusion about basic rights

Tibor R. Machan

In his book Basic Rights (Princeton, 1970), Henry Shue argued that there is no valid distinction between negative and positive rights; his argument has recently resurfaced among so called left libertarians (otherwise also known as bleeding heart libertarians), a neologism if there ever was one. (I am tempted to start an association of no-nonsense libertarians to oppose them!)

The significance of the point needs to be stressed since if it were valid, it would pretty much consign everyone to the status of a serf or involuntary servant. If we are all by birth obligated to serve other people first and foremost–which is what the doctrine of positive rights or natural entitlements alleges–our sovereignty would be a myth. We would once again be viewed as belonging to others; maybe not the king or pharaoh or czar but to the majority of the people who are ruled by a few “at the top.”

The point Shue made is that since negative rights would require being defended in a society for them to have any concrete significance and since providing a defense of them would be the delivery of a service, having the negative right to, say, liberty or life, implies having the positive right to the services of the police and a sundry legal authorities. And so the floodgates are opened: everyone must be made to pitch in to obtain this service, leaving it to some elite to administer such a system.

But, not so then and not so now! First, having a negative right to liberty implies that others may not invade one, that a person may not be used against his or her will and not that the right must be defended. Of course, some will refuse to heed this fact and in the face of that it will be very useful to establish institutional protection of people’s natural rights to life, liberty, etc. But first one has to have the right, contrary to some contemporary sophistries about the matter (such as Cass Sunstein’s view that rights are granted by the government!). Then if violations are likely, predictable, etc., a means for protecting rights will most likely need to be found. For example, as the Declaration of Independence makes clear, governments are instituted to secure our rights but that may not be the only means available. (So if someone is powerful enough, no special agency would be required. One could just deter and fend off rights violators on one’s own or with members of one’s family, all, of course, in line with due process.)

But more likely in an advanced civilized society some would be hired to provide rights protection. The ensuing obligation to provide the specifics would be a matter of compact or contract. So citizens would then have a contractual or constitutional right to have their basic rights protected. And how this would be realized is an open question, part of jurisprudence. The issue here is only that people have the rights and those rights are negative. Then when they hire those offering the service of providing protection, then they will have the (derivative, secondary, non-fundamental) right to be provided with the protection.

It is not easy to know motivations for the obfuscation perpetrated by Shue and his current followers, including some who have the gall to call themselves libertarians; my guess is that once it looks like some basic positive rights–e.g., to be provided with rights protection–have been established, it is easy to move on to other positive rights, such as to health care, unemployment compensation, a good job, a nice home, and so on and so forth, the entire array of entitlements that welfare statists advocate and that impose involuntary servitude on those who are in the position to provide them.

Thus what appears to be a case for a libertarian legal order has cleverly been turned upside down so as to support its opposite.* It doesn’t wash, however.

* BTW, this happens to numerous points of view. As Sidney Hook told me, just before Marx died, he declared, “I am not a Marxist,” because of the circa 300+ versions of nearly unrecognizable versions of Marxism that had been cooked up by his followers. So libertarianism, too, will keep multiplying endlessly, especially since so many libertarians are also individualists who often tend to fashion their own unique version of the position as a sign of originality and ingenuity.

Machan’s Archives: “Left Libertarianism: Oxymoron?”

Left-Libertarianism—An Oxymoron?
Tibor R. Machan, Chapman University


 Let me state up front that I reject any division of libertarianism into left and right wings. To do so is nearly akin to dividing it into high and low, yellow and blue, or round and triangular versions. Yes, there are quite a few more or less enthusiastic supporters of the division; indeed, reading some of them suggests that they have a lot invested in this effort. However, I find what they are embarking upon, if not outright incoherent, then certainly confusing and a waste of good energy and time that could be devoted to more important elements of the task of advancing the cause of human liberty.
Combining libertarianism with elements of the Right or the Left defeats the purpose of conceptual clarity about a certain broad political topic. Historically, neither the Right nor the Left has shown a sustained, uncompromising loyalty to individual human rights to life, liberty, and property, while classical liberalism and especially libertarianism is exactly about such unwavering loyalty, one that requires the proverbial eternal vigilance.
By its nature libertarianism is about political liberty for all individuals to do whatever is peaceful or non-aggressive, including acquiring and holding property or valued items either found in nature or obtained through free trade and inheritance. Claiming that libertarianism can include more or less severe limits on the right to private property—imposed by public policy and law—as Left-libertarianism does, simply renders the view indistinguishable from what social democrats and welfare statists propose. It reminds one of market socialism, arguably another oxymoron.
Of course, the rejection of this notion as an oxymoron hasn’t by any means been successful in countering various efforts to construct a coherent notion labeled “Left-libertarianism” from the current political philosophical dialogue. Books and articles can be found discussing the position, some of them published in prestigious publications. Several well-known philosophers whose politics is self-identified as libertarian would very likely dispute my claim that the label “Left-libertarianism” is oxymoronic, perhaps out of respect for those who employ it in much of their works. Nonetheless, strictly speaking, what is meant by “Left” in the discipline of political theory and by “libertarian” are conceptually incompatible if one accepts, as I would argue we must, that libertarianism is a theory that includes as one of its central features adherence to the more or less Lockean account of the right to private property.
So upon close examination it emerges that Left-libertarianism belongs among efforts, like some others by some people on the Left and the Right, to appropriate a concept alien to its logical purpose. This includes such notions as positive rights, positive liberty, welfare rights, and social justice. Many invoke these notions, but quite arguably they are conceptual corruptions, however much one twists and turns to attempt to render them distinctly meaningful. (Of course, it is not possible to say this with finality, since, for example, tomorrow morning someone could well come up with a use of the idea that has merit.) These notions may not amount to an outright self-contradiction, such as “square circle,” but on analysis they come close.
Thus while the Left aims to divorce people from their work, from their valued attributes, and from the products of their labor, libertarianism opposes this and sees one’s property as the extension of oneself into the world outside of oneself—indeed, as an indispensable social condition for a self-directed life. Suppose that someone is very good looking, though not by his or her own efforts. According to Left-libertarianism, the benefits the individual comes by in virtue of these looks are to be treated as not belonging to the agent and thus perhaps to be taxed or simply confiscated by other people. On the Left-libertarian view, one can do all of this without doing violence to individual rights.
One of the ways that Left-libertarianism has been rendered palatable has been to associate it with John Locke’s oft-discussed and troublesome idea of “the Lockean Proviso,” according to which Locke says that although the right to private property is a fundamental, natural right of human individuals, if the protection of this basic right were to result in a monopoly of vital goods, it would not be justified to regard it as inviolable. As I have argued elsewhere, however, the Lockean Proviso is little more than a restatement of Locke’s concern that in certain dire circumstances or emergencies those rights are inapplicable. Only “where peace is possible” can there be respect and protection for basic individual rights. This makes sense once one realizes that such rights are what Douglas B. Rasmussen and Douglas J. Den Uyl call “metanormative” principles, that is, ones that provide a framework for peaceful conduct within societies rather than action-guiding principles such as those laid out in a system of ethics. Since such rights serve as the foundation of a just society or legal system, where no such society or system is possible, no such rights could be applicable. The Lockean Proviso, then, is mainly a warning that we not expect justice to be possible everywhere (say, in a back alley or in a region of the world where natural disasters are virtually constant).
A central feature of Left-libertarianism is, of course, its challenge to an unqualified right to private property. That’s what makes it “Left,” since those on the Left generally want to control other people’s property; by denying that other people actually own their property, they achieve their goal. How do they propose to do this? They do this by rejecting, as already alluded to, the connection between oneself and one’s attributes and works. So if one has the attribute of being very good looking or healthy and incurs benefits from it, these benefits are now supposed to be available for confiscation even while outright conscription of the individual is rejected. Then why protect one’s right to one’s life, if the living of that life is subject to intervention? This is akin to the point sometimes made that while someone may be imprisoned, this only limits his or her body, not spirit, which remains free. More generally, the effort to distinguish between inalienable and alienable property—between oneself and one’s goods—is misguided. It is rights, not property itself, that is identified as inalienable in the libertarian (Lockean) position and this means not only that one’s right to one’s car or home or firm is not something anyone may violate, but also that it is no violation of one’s rights if one trades or gives away what one has a right to, for example, one’s house or hours of labor.
A related matter might be worth considering. One may wonder whether those on the Left, including so called Left-libertarians, would apply their divorce of oneself from one’s works (or other valued attributes, say one’s good looks or health) to their own writings. Why, for example, should an author have full discretion as to what goes into one of his or her works—a book, a paper, an essay, etc.? These are not strictly speaking a feature of oneself, just as some argue that one’s home and car are not. So would these writers argue for limited censorship on the grounds that one has only a limited right to make use of one’s property, including the space in one’s written works? I would often like to have my writings featured in, say, The New Republic or The New York Review of Books or, especially, Philosophy and Public Affairs, but the publishers of these insist that they have an absolute right to determine who will appear in their publications’ pages. Would not Leftists and Left-libertarians consider this wrong and argue that publishers have no such absolute right at all, in the spirit of their objection to absolute private property rights?
It appears clear that libertarianism is to be dealt with apart from dealing with the Left or the Right in political theory. The attempt to fuse the Left or the Right with libertarianism just produces confusion; to put it somewhat more formally, deploying the concepts Left and Right here fails to distinguish or differentiate anything of significance in the realm of political theory.*

1 My own involvement in this discussion is precipitated by some having classified those such as myself as “right-wing libertarians,” in virtue of, e.g., our defense of the business corporation as being compatible with libertarianism. I reject being so classified or construing the business corporation, as defended by Robert Hessen in his Defense of the Corporation (Stanford, CA: Hoover Press, 1979), as anti-libertarian. For more, see http://www.enotes.com/topic/Right-libertarianism.

2 One of my books, a collection of some of my columns, is pointedly titled Neither Left nor Right (Stanford, CA: Hoover Institution Press, 2004).

3 For a very good discussion of the position, see Barbara H. Fried, “Left Libertarianism: A Review Essay,” Philosophy & Public Affairs 32, no. 1 (Winter, 2004), pp. 66-92.

4 For example, see Peter Vallentyne and Hillel Steiner, eds. The Origins of Left-Libertarianism: An Anthology of Historical Writings (New York: Palgrave Macmillan, 2001); and Peter Vallentyne and Hillel Steiner, eds., Left-Libertarianism and Its Critics: The Contemporary Debate (New York: Palgrave Macmillan, 2001). See also Eric Mack, “Right-Wing Liberalism, Left-Wing Liberalism, and the Self-Ownership Proviso,” in Liberal Institutions, Economic Constitutional Rights, and the Role of Organizations, ed. Karl-Heinz Ladeur (Baden-Baden: Nomos Verlagsgesellschaft, 1997), pp. 9-29; and Eric Mack, “What Is Left of Left-Libertarianism?” (unpublished manuscript).
Various websites on the Internet feature more or less serious discussions of the position, for example, by Auburn University philosopher Roderick Long: http://groups.yahoo.com/group/leftlibertarian/.

5 See Tibor R. Machan, “Self-Ownership and the Lockean Proviso,” Philosophy of the Social Sciences 39, no. 1 (March 2009), pp. 93-98. I use “self-ownership” quite reluctantly, since I find it incoherent that one’s self could own one’s self. Who here is the owner and what is being owned? However, a generous look at the idea suggests perhaps no more than what Locke held, namely, that one has a natural right to one’s life (not to one’s self).

6 Quoted in H. L. A. Hart, “Are There Any Natural Rights?” in A. I. Melden, ed., Human Rights (Belmont, CA: Wadsworth Publishing Company, 1970), p. 61, n. 2: “In conditions of extreme scarcity this distinction between competition and coercion will not be worth drawing: natural rights are only of importance ‘where peace is possible’ (Locke) . . . .”

7 See Douglas B. Rasmussen and Douglas J. Den Uyl, Norms of Liberty: A Perfectionist Basis for Non-Perfectionist Politics (University Park, PA: Pennsylvania State University Press, 2004).

*What might be worthwhile is the establishment of a Global Association of No-Nonsense Libertarians!