Archive for November, 2009
Recent Skepticism About Property Rights
Tibor R. Machan
In a wide ranging review essay of Amartya Sen’s recent ambitious book, The Idea of Justice (Harvard, 2009), Moshe Halbertal, a philosopher from the Hebrew University, unleashes some arguments against the right to private property that are supposed to be even stronger than those Sen himself offers. Sen himself regards this right as a strong one but not decisive, so some considerations can be morally powerful enough to overturn it. To block even a moderately friendly view of the right to private property, Professor Halbertal writes:
“Let us assume that … at stake for distribution is a rare medicine that Clara, the brilliant and productive child, somehow managed to invent. She is willing to provide the medicine to Anne, who is very sick, but only for an outrageous compensation. If she does not get her coveted [medicine], then Anne will die; and nobody–this is the libertarian claim–can take the medicine away from her, since she has ownership rights as a producer. In such a story, it seems clear that sticking solely to the libertarian approach to ownership rights, regardless of the outcome, is wrong. Even if we assert that there are such rights, surely, they should not be absolute….” [The New Republic, 12/2/09, p. 42]
This is certainly not the first time that the right to private property has been challenged along such lines. The needs of others have always seemed morally superior to some, versus the rights of those who can fulfill those needs without drastic loss to themselves. And in certain dire circumstances even libertarians will grant that a one-time theft should be morally acceptable provided efforts are made later to compensate for it. What the libertarian–or most of them, since they are a diverse lot themselves–insists upon is that a legal system make no systemic allowance for such takings. Though it is understandable that the takings would occur on rare–emergency–occasions, what is completely wrong is to build into a legal system this acceptability. (In some parts of France, which is largely a socialist country, extreme need serves as a legal justification for such takings!)
The case Halbertal offers has some problems to start with, though relatively minor. No one denies, libertarian or otherwise, that somebody “can take the medicine away.” It is not whether they can but whether they are morally (and should be legally) justified to do so. Criminals, after all, perpetrate such takings all the time, when they murder, rape, kidnap, and steal. Rights violations are possible but not justified, according to libertarianism.
More important is the way Halbertal misunderstands what libertarian political philosophers aim to do when they lay out a proper legal system. They aren’t discussing ethics or morality but politics or law. They are investigating what system of principles should govern a human community, what constitutional provisions should be included in a just system. That here and there an exception is possible to those principles is never disputed–such thinkers as Locke, Rand, Den Uyl and Rasmussen and I, routinely discuss emergencies and note that what’s at issue are general principles, not specific cases that may have elements that remove it from the norm.
It is interesting that just this element of the classical liberal, libertarian political approach is thoroughly investigated by Douglas B. Rasmussen and Douglas J. Den Uyl in their brilliant book, Norms of Liberty, A Perfectionist Basis for Non-Perfectionist Politics (Penn State University Press, 2005). Sadly, in the typical fashion of contemporary academics, Professor Halbertal settles for star gazing and pays no heed to Norms of Liberty, a work the theme of which would have informed him about how a classical liberal, libertarian would deal with matters such as he focuses upon.
The gist of the approach is that while difficult cases admittedly exist, instead of attempting to lay out some grand (ideal) moral theory that handles every conceivable situation (a strict moral geometry), they offer a system of metanorms–their term–by which a just society should be governed. These metanorms are principles of government or basic laws that everyone ought to choose so as to make possible a just social life for both oneself and everyone else–every other human being, in other words–based on our knowledge of human nature and what community life requires.
But getting back to Halbertal’s case, what would the classical liberal, non-Utopian approach to political philosophy advise about it? It might, for example, propose that Clara should not have her invention taken from her even in an emergency because although Anne desperately needs it, making it possible to violate Clara’s property right with impunity (and thus setting a precedent) will undermine the system of justice that keeps a free society intact. Or it could propose that an exception be made, via judicial discretion or some other device of the law, without allowing it to undermine normal legal procedures. And then there is the rarely considered option, as we see in both Sen’s and Halbertal’s discussions, of managing the problem without recourse to the law, mostly by relying on voluntary actions such as raising the funds and pressuring Clara by such means as a serious, organized boycott (with the leadership of, say, Sen and Halbertal).
It is interesting that both Sen and Halbertal are avid about their rejection of perfectionist politics yet do not appear to have much sympathy for solving dilemmas without insisting on a perfect resolution, one that guarantees that a perfect enforceable solution will be reached. This is a clear case of the perfect being the enemy of the good! Yes, Clara may have to be tolerated in her greed and lack of generosity but that is because the system in which one is free to be greedy and ungenerous is superior to one that aims to impose, by means of government–thus risking tyranny and undermining morality–the only right solution.
So it would appear that a system of law in which the right to private property is fully protected is better than one in which exceptions are permitted, thus leaving it open to government not by law but by men (who would ultimately be responsible to weight all the alternatives based on their intuitions, something Halbertal appears to grant at one point in his review essay).
My Palin Problem
Tibor R. Machan
I have always had problems voting. Not only have I been influenced by the likes of Professor Gordon Tullock about how ineffectual one’s vote tends to be but I have very rarely found any candidate who articulates clear and unambiguous principles of liberty to which he or she is fully committed, which in my view is the only way to gain justified trust from voters.
Recently I expressed my dismay about Sarah Palin, based mainly on my inability to find any sound political principles articulated by her. I simply wasn’t able to discover anything like a genuine American political philosophy or even ideology coming from the former Alaskan governor. When I pointed this out to a friend who considers her very promising, he listed for me a number of Palin’s achievements which, he believes, should lead me to change my mind. Here is what he identified as indications of Palin’s desirability for those who champion a fully free society:
* She sued the EPA for misusing the Endangered Species Act (no other governor has had the guts to do that)
* Advocated building nuclear power plants, clean coal and pipelines (all of them essential for energy independence and basic economic rationality)
* Came out against the punitive windfall tax on oil companies as a tax on investment.
* Approved of government subsidies only for market-proven alternative energies.
* Said publicly that global warming, even if true, is not anthropogenic.
* Spoke out forcefully and repeatedly in favor of free trade.
* Achieved 7% spending reduction as governor and instituted a hiring freeze.
* Vetoed half a billion of pork projects.
* Called for labor unions to ask permission from their members for political donations.
* Instituted an “ethics in government” reform which was opposed vigorously by the political establishment, left and right.
* Argued that adoption should be a state not a federal issue.
* Supported giving parents the right to opt out of school books they found offensive.
* Passed the most innovative energy bill of any state called the Alaska Gas Inducement Act including a 1715 mile gas pipeline to make available North Slope natural gas (currently being burnt) to the rest of the country.
* Advocated forcefully for drilling in ANWR and offshore waters.
* Opposed spousal benefits for same-sex couples, but vetoed bill denying benefits to gays as unconstitutional.
* Opposed setting up state boards on creationism despite her well-known views on creation.
Admittedly this is an impressive record of going against the current tied of relentless political correctness and bad piecemeal public policy. However, from the viewpoint of someone who believes in a very strict adherence to the principles of the American founding, those that restrict government to but on central task, namely, the securing of our basic (and derivative) individual rights, these achievements do not qualify someone as a dependable political candidate. To whit, there should be no EPA at all! Nuclear plants should be a private sector project, not something for government to mess with. Not only should there be no windfall taxes on oil companies and any tax on investments but the entire policy of extortion by taxation should be scrapped, just as another feudal institutions was, namely, serfdom. And so on and so forth. Every one of the policies listed above as Ms. Palin’s achievements is, as far as someone who is committed to a fully free society is concerned, but a small and uncertain step in the right direction with no full commitment to the free society in sight.
Of course, we live in a world in which advocating the kind of society that is built on the principles of the Declaration of Independence is hardly going to open the door to a political career. Instead it will not even get one on Fox TV, let alone any other mainstream media outfit from which one might champion one’s cause. But then so what? I have decided many moons ago to fight for a fully free society and not some compromise and half-way measure. At least some citizens must insist on the whole shebang, even if it be unrealistic and quite contrary to realpolitik. Others may well dedicate themselves to taking the small, gradual and admittedly needed steps toward such a socio-political system but one size doesn’t fit all. There needs to be at least a substantial number of citizens who insist on nothing but the best, which is a country in which society, including science, the arts, the economy, and so forth, are totally divorced from government (the job of which must be restricted to protecting our rights, period) and on politicians who fight for this, nothing less.
Then, of course, there is Ms. Palin’s very odd reported conviction that creationism is a position comparable to Darwinian evolutionary theory, which is blatantly false. She has said, “Teach both (evolution and intelligent design). You know, don’t be afraid of information. Healthy debate is so important, and it’s so valuable in our schools. I am a proponent of teaching both.” As far as I am concerned, this is a regrettable aspect of the lady’s education and renders her intelligence suspect. But, admittedly, this is not directly relevant–one could be a Moonie or Pentecostalist and still be loyal to the principles of a free society. So I mention the matter only to come clean with my own response to the lady.
Bottom line is that I will stick to working on the best society and its numerous often complicated features and keep championing these and let others take care of the intermediate task of identifying and supporting close-but-no-cigar folks to carry the torch for a second or third best system.
No Good News
Tibor R. Machan
For a while now I have been concerned with the issue of whether any argument advanced in support of violating private property rights might just have something going for it. Some argue, for example, that since one’s private property isn’t always the result of one’s own work and often even stems from plain old luck–as when the price on one’s home rises because of market conditions one had no hand in–one’s property rights cannot be inviolate, let alone inalienable. Others claim that when majorities decide, after widespread public consideration and discussion that someone’s resources or wealth should be taken from them for some important project, this suffices to limit or even void the right to private property.
The second argument underlies the very recent ruling of New York State’s Court of Appeals in support of the decision of the Empire State Development Corporation to condemn privately owned homes and small businesses so as to replace these with Mr. Bruce Ratner’s “Atlantic Yards” project of 16 huge skyscrapers. The court didn’t rule exactly as did the U. S. Supreme Court back in July 2005, in the case of Kelo v. City of New London, CT, which opened the door to take property simply to develop it better that how it is being used. The New York case backed the taking of private property because it is considered to be blighted. This is the “reasoning” of the lynch mob. And it is ominous because the very point of basic rights to one’s life, liberty, property (or whatever is involved in governing one’s own affairs–in other words, one’s sovereignty) is to bar others from being intruders, no matter what. The point of rights is to secure for individual’s their own realm of authority, wherein they and not others make choices, be these wise or not, prudent or not, generous or not. That is what it means to have jurisdiction over one’s own life and the only way to intrude on it is first to demonstrate beyond any reasonable doubt that one has violated someone else’s rights and needs to pay for this with one’s liberty or property. Having a bunch of other people decide about how important or sensible is one’s use of one’s belongings is no better, actually, than having them do this vis-a-vis one’s life! You aren’t living it as well as we believe you should, so we will take it over and direct it ourselves for far better purposes. What a crock this line of reasoning is!
As to the other line of argument, that, too, simply a gross non-sequitur. After all, no one has produced one’s own liver, heart, eyes, or most other personal attributes, so are these now to be available for others to take? The fact that I came by my pretty face or sturdy heart with no effort by me confers absolutely no authority on others to deprive me of any of these. Yet somehow certain influential people make just such an allegation. It seems to me that it is nothing but sophistry since logic, reason, common sense or anything else that might support a conclusion gives this no credibility whatsoever. That kind of reasoning serves to support an atmosphere of arbitrary intrusion by everyone into the lives of all, a Hobbesian war of all against all, with just a bit of legalistic window dressing. Talk about an uncivilized society!
Unfortunately the American Founders, who learned their political philosophy from classical liberals–most especially John Locke–didn’t manage to teach later Americans enough about the merits of the theory and principles underlying the founding documents of the country, the Declaration of Independence and the Bill of Rights. And there were some conflicts between those principles and the widely championed ethics of “service to others” or altruism, which helped to undermine a free American society. Never mind that most people actually act as if they believed that helping others comes after one has taken decent care of oneself and one’s loved ones. The rhetoric of morality has tended always to be altruistic since people attend to moral matters mostly when it concerns how other people ought to serve them! Yes, altruism gets much of its support from an insidious kind of narrow egoism: “Tell everyone to serve others since that will suggest to them to care for me!”
So there is a lack of solid ethical support for the ideals of individualism, and that weakens the support for individual rights. People consider standing up for those rights too selfish! And since this looks bad on their ethical CV, they do not put up a fight against those who would impose involuntary servitude on them, not at least until it may be too late.
Now we see the consequences: despite the superiority of the rights based free society when it’s compared to all other types, Americans are slowly losing their liberty and letting a bunch of dubious arguments disarm them. It is not too late to turn this around but, sadly, the prospects are minimal, judging by how nearly all the professional thinkers in universities and colleges favor an anti-individualist, anti rights-based society, collectivist.
A few words about Amartya Sen’s point of view from Tibor R. Machan, Libertarianism Defended (Ashgate, 2006), pp. 269-274.
…As for Sen, he is prominent in the area of developmental economics as well as in his critique of neoclassical approaches to values. He has a massive book out (the most recent one he has written – he has written many, books), Rationality and Freedom* (2002), and it contains quite a few of his powerful criticisms of market economics. He was very respectful of Peter Bauer and they often agreed as to what developing countries need in order to emerge out of their underdeveloped state.
Sen is what may be called a meta-economist, very concerned with the underlying assumptions of the discipline. For example, he has advanced an interesting critique of the tendency on the part of many economists to write off all values as preferences. He argues that there are umpteen ways the word ‘preference’ can be used, not merely the one many economists focus on. His ideas in this and other areas are very challenging.
In particular, however, when it comes to the concept of freedom – political- economic freedom – Sen deploys both a version of the positive freedom theory – namely, freedom as ‘freedom to,’ meaning being free to attain certain ends by virtue of having the resources to do so – as well as the idea of freedom found in classical liberalism, that dubbed ‘negative liberty’ – which means being free from coercion by others. Indeed, somewhat problematically he often lumps the two sense of ‘freedom’ together without alerting us to which he has in mind. This may be due, in part, to his stress on the form of negative liberty that leaves people free, via the democratic process, to enact public policy measures that secure positive freedom. Yet Sen is quite explicit in rejecting libertarianism and its conception of freedom. ‘In terms of its informational basis, libertarianism as an approach is just too limited … it also neglects the most basic freedoms that we have reason to treasure and demand.’3
What basic freedoms does Sen have in mind? Those that are made possible by confiscating resources from those who own them and providing them to those who lack them but could make very good use of them. The example that is perhaps most pertinent is what is provided by way of Good Samaritan Laws – for example, medical assistance to an injured person whose freedom of movement, of getting ahead in life, is seriously impeded by way of some accident or mishap and who would lack the capability to carry on a normal life. Similar, more massive, examples that Sen focuses upon include famines, disasters, poverty, and lack of employment. The freedom involved is what has been dubbed ‘positive freedom’ and it involves a demand, as Sen recognizes, on the resources, labor and talents of others whether or not they choose to provide them.
One thing we discuss in political theory is just what kind of freedoms there are. In the last fifty years or so, but starting much earlier with such writers as Thomas Hill Green, there has been a discussion as to whether freedom is best understood as a condition of not being interfered with or rather as a power to achieve something. Is it freedom from other people’s interference or is it freedom to achieve a certain goal?
Many people who support the welfare state, or the larger than classical liberal role for the legal system and government, tend to accept the notion of freedom to as an enabling condition due to someone from others and to be secured by government. So that those, for example, who are poor (although nobody is interfering with them or contributing to their poverty by limiting their negative liberty via trade restrictions or property rights violations) and, therefore, unable to achieve certain goals it is deemed by many that they ought to be able to achieve, are not free in this positive sense of the term. Even though no one is preventing you from flying to Russia, if you can’t afford to fly to Russia but it would be good for you to fly there, then you are not free to fly to Russia and those who might enable you to do so are deemed to be depriving you of your freedom. More pertinently, even though no one has deprived you of economic liberties – for example, to produce goods and services, to enter into contracts with others – the valuable goal you might pursue of obtaining health care or old age retirement is unavailable to you, thus limiting your freedom to flourish in your life.
This sense of freedom is very often deployed by people within the modern liberal political tradition. Yet many of them have some affinity with the classical liberal school but they believe that classical liberals unjustifiably and thus unwisely neglect this important kind of freedom. They hold that this freedom is required in society – the freedom to achieve various goals that are good for people, such as education, health, insurance, or social security. Some even argue that unless classical liberals acknowledge that at least the poor and deprived have a right to such positive liberty, their own theory of individual negative rights is incomplete. For example, University of Notre Dame philosophy professor James P. Sterba argues that for those entirely unable to act to advance themselves while enjoying their negative right to freedom that right is utterly meaningless – it cannot, thus, be reasonable for them to abstain from some violations of other’s rights to such negative liberty, especially property rights. And they believe that once it is accepted that a government ought to protect our positive freedom or liberty, room will need to be made for a lot more interventionist public policy such as wealth redistribution and economic regulation than most classical liberals would favor.
Why does Sen think that this freedom is equally important – if not even more so – as the negative freedom requiring that people not intrude on one another? Part of the reason is the underlying conception of human nature. What that conception is makes a big difference to the sort of freedom one will champion. If one believes that, as a rule or for the most part, human beings who are not being interfered with by others have the capacity (with some help from intimates, of course) to secure for themselves what they need so as to flourish in their lives, then one is going to emphasize being free from interference because the central condition that an adult needs to flourish is not to be oppressed by other persons – that is to say, not to have others constrain them. In short, human beings in society require, first and foremost, their sovereignty.
Once oppression stops, normal adults can get innumerable tasks accomplished, various goals achieved – maybe not all at once, not all equally effectively, but nonetheless with considerable promise. The major obstacle to our advancing in life, based on this idea of human nature, is other peoples’ interference (as identified by a theory of rights violation or freedom abridgement). Once that is fended off, prohibited, or penalized by law, people will have the chance to exercise their initiative – their capacity to make the necessary moves to improve upon their lives – and flourish in life. Thus they don’t need to have others conscripted to serve them – they will find mutually acceptable ways to attain their peaceful goals.
That, certainly, is the main theme of classical liberalism, with some variations on the specifics depending which classical liberal is talking. Having barred coercion or initiated force, the human potential to get things done successfully is unleashed; therefore, the idea that people ought to be forced to support each other is opposed and taken as the main impediment to their flourishing in their community existence. Of course, even for classical liberals, there are some exceptional cases where people are incapacitated or in a state of emergency such that they will probably need help, but the classical liberal, who champions freedom from interference, tends to maintain that even in those emergency cases free men and women will come to the assistance of those in need. There, in short, will be voluntary organizations, service groups and so on, so there is no need or justification to get government to meddle in these affairs – society is enough, politics is not necessary, to cope with exceptional cases or emergencies.
Those, however, who believe that human beings are ill-equipped to get ahead on their own – that they are either too ignorant, too weak, too poor, or in some other way deficient to pursue a fruitful life – will hold that being free from interference by others is not enough for human flourishing. Sen is amongst those. When he uses the words ‘development as freedom’ – for example, in the title of one of his most prominent books – the word ‘freedom’ there means not just the classical liberal freedom of not interfering with people, but it means a condition of being enabled by the legal order – first via the negative right to freedom to vote and then the positive right to wealth redistribution – to escape their poverty, ignorance, or sickness, and to move ahead via such support from others. To make this possible, it is necessary to conscript others who are already well enough enabled to do work for those in need, ergo extensive systems of confiscatory taxation in systems of justice that characterize the welfare state or democratic socialism. Those so conscripted may not want to do contribute to this goal; they may want to something else – either productive or wasteful – with their lives. But it is taken to be a matter of justice that they must be made to yield to the conscription and expropriation that is required to secure these benefits for the needful.4
The matter may be discussed in terms of either freedom or rights. So there are then positive and negative freedom or rights advocates. The classical liberals tend to embrace the notion of negative freedom or rights whereas welfare statists and socialists are more sympathetic to the positive freedom or rights position. The idea for classical liberalism in either cases is that no one is justified to intrude on the lives, liberties and property of anyone else who hasn’t given permission for this to happen, which implies that there is a prohibition against others entering one’s sphere without one’s permission. (The exact specifications of such a sphere are to be established by various ethical and legal proceedings.)
On the other hand, those who accept the notion of positive freedom or rights – or the right to capability – tend to think that everyone in need must be provided by those able to do so with goods and services. That is to say, just for being a human being, especially in modern societies, one who is deprived is entitled to other people’s support, especially when one lacks such support relying only one one’s efforts and those who would voluntarily help out. In other words, if unable to support oneself, that ipso facto imposes a duty on capable others to provide the support….
*Since I wrote Libertarianism Defended Sen has also published a formidable volume, The Idea of Justice (Harvard UP, 2009).
Revisiting and Expanding the Laffer Curve
Tibor R. Machan
The Laffer curve is about how much imposition or other types of trouble people are willing to tolerate from their fellows. Arthur Laffer, a professor at the University of Southern California, is supposed to have drawn a bell shaped graph on a napkin once to show that up to the peak point of it people are likely to put up with the burden of taxation. The peak isn’t the same for everyone, but everyone does have such a peak.
In particular, then, the Laffer Curve concerns taxation, a form of extortion, which government uses to obtain funds to operate its undertakings. Reminiscent of how organized crime groups, such as the Mafia, operate, the government threatens heavy fines and jail so those being threatened hand over funds. Since, however, many governments, unlike the Mafia, can be voted out of office, the severity of the extortion has to be gauged with the possibility of eventual electoral resistance in mind. This is no easy task and can often go awry. Yet in most countries tax revolts are relatively rare since few people wish to risk losing their forms of life just so as to retaliate against the powerful forces of the state. This, again, is similar to Mafia type extortions in which the victim is given some benefits in order to be placated—e.g., protection from vandalism (the bulk of it initiated by the gangsters themselves).
Now the Laffer Curve is extendable into much more than the sphere of taxation-extortion. Any sort of government intrusion is subject to its insight. Censorship comes to mind—a certain amount of it will not be widely resisted. Government regulation, all of it a violation of the prohibition of prior restraint—is also subject to it since it is taken to be more trouble at times to resist than to comply with it. Indeed, statism as such is subject to the Laffer Curve analysis—in most societies it is not significantly enough resisted for it to subside, let alone disappear. People subjected to statist measures of any sort simply will not mount effective resistance because to do so may involve greater losses than gains and they are, after all, often able to circumvent it reasonably successfully by using their own intelligence or hiring expert help in the form of specialist in various branches of intrusive law.
Finally, the Laffer Curve is useful, also, to explain why there is not enough political resistance to statism and why only a small percentage of the population bothers to mount any, especially in advanced, developed countries where people live quite well, and where mounting resistance is quite costly, relatively speaking—that is, the possibility of success is small while the cost of the revolt is considerable. In undeveloped countries the situation is different, which helps explain why so often it is in such countries that we see rebellion and revolt against prevailing authorities and why there is frequent regime change in many of them. Put bluntly, the bulk of the population has little to lose from rising up against the state. That is not so in most developed countries.
The small percentage of citizens who will insist on making an issue out of nearly any measure of statism in developed countries will not manage to achieve regime change, of course, but it will keep the idea of it alive. Yet this itself can contribute to the ineffectuality of such marginal efforts, since the rest of the population may perceive the small resistance as sufficient and proceed without given it any aid or even much attention.
Is there a remedy or is this normal? In a sense it is normal—most people will put up with some trouble from others. They will accept a certain amount of intrusive noise from neighbors, being bumped on the sidewalk as they hurry to some destination, even some fender bender type auto accidents, let alone insults and humiliation. Minor thefts or assaults are rarely reported to the authorities.
However, what is not normal is becoming habituated to such tolerance for invasiveness from others. Most of us fear the consequences of such habituation—just as we fear being habituated to anything that harms us in the long run.
If it becomes evident enough, via education or the example from other regions of the world, that statism even in small increments has bad overall consequences, that things could turn out measurably better without it, the peak of the Laffer Curve may become more easily reached for the bulk of the people and the level of tolerance of statism could diminish considerably.