Archive for March, 2012

Machan’s Arcchives: Disputing Positive Rights (or Liberty)

Machan’s Archives: Disputing Positive Rights (or Liberty)
Tibor R. Machan*

An influential idea in contemporary political philosophy is positive rights (or liberty). It has been advanced by political thinkers on both the Right and the Left. In contrast to the theory of basic natural rights that John Locke developed, in terms of which every individual must be left free from the uninvited interventions of other persons, positive rights (to, e.g., liberty) require us to provide resources and services to others who are in serious need and are deemed incapable of advancing on their own in their lives. It was mentioned on the third day of the U. S. Supreme Court’s discussion of Obamacare when an advocate of the measure noted that without such care citizens are not really free!

Champions of natural rights consider positive rights as imposing involuntary servitude on us, by requiring that people be forced to provide services and benefits for others. Positive rights theorists claim, however, that these resources or services are due to others, they are owed them. Positive rights arguably gave rise to the doctrine of entitlements among those involved in forging public policy.

Positive rights also check the principles of a fully free economy as understood in the classical liberal tradition of political economy. If people have such rights, one has no basis for refusing resources or services to them if they seriously need them. That implies that what people have in their possession may very well belong to others, including some of “their” skills, marketable attributes (e.g., good looks or talents). They could then be required by law—or, as the negative rights champions would have it, be conscripted or coerced—to serve the needs and wants of various other people regardless of their own choices. It is the government in a society that would secure the fulfillment of the obligations that arise from the existence of positive rights (that is, entitlements), either by means of direct performance (as when health care professionals would be mandated to provide their services to those who need them) or indirectly (as when government taxes the citizenry, usually along progressive lines, so as to provide resources or services for those who have a positive right or are entitled to them).

Furthermore, the doctrine of positive rights helps establish the case for government regulations, including of businesses. While negative rights proponents may construe such regulations as a type of prior restraint, supporters of positive rights tend to argue that others have a right to be provided with safety and risk prevention at that need to be paid for by those who have the resources to do so. The customary idea of free trade is, thus, rejected, at least to the extent that some significant portion of what is ordinarily taken to be one’s wealth is not one’s own to allocate as one sees fit. (This matter surfaces during efforts to cut taxes—are the taxes the property of taxpayers or that of governments and simply held by taxpayers or citizens?)

Some argue that all rights are in fact positive rights.[1] This is because the means of protecting all rights would have to be the provision of government services that would secure or protect them, services that amount to a performance of certain sorts of actions (e.g., the police answering calls, judges ruling on conflicting claims, the military defending the country against attacks).

Some others, such as James P. Sterba, have maintained that positive rights exist because the possession of negative rights, by the very poor or unfortunate, entails or implies them. Sterba argues that “a libertarian ideal of liberty leads to a right to welfare.”[2] That is because negative rights themselves are supported by the claim that without such rights no effort to live well is possible, if some cannot live well anyway, and only if others provide them with resources will they manage to make the effort to live well, then surely they do have a right to those resources, a right that is positive now, not negative.[3]

There are certain insurmountable problems with all these views. Shue, Holmes and Sunstein, who believe that we have positive rights to the services of the state and, thus, to the earnings of taxpayers who must pay for these services, fail to show that any right to being provided with protection exists without a prior negative right to liberty which one exercises so as to elect to have it protected and then delegates to an agency, such as government or a body guard, to do the protection for oneself. They ignore the “consent of the governed” provision in the establishment of government and so they treat that institutions as unproblematic or explainable by reference to positive rights. Yet, as negative rights theorists maintain, it is through the exercise of negative rights—say, the right to enter into a contract or form a compact—that some derivative positive rights are created.[4]

Yet, to obtain protection for something presupposes that one has the right to liberty to take such actions that will produce it. This right amounts to voluntarily combining with others for the purpose of gaining self-protection by establishing a government or similar authority that may act to protect rights because that authority has be freely delegated to it by rights possessors. That original right, however, is a negative one, requiring that others abstain from intervening in one’s affairs.

So, the services of government, according to negative rights theorists, are something people must freely choose to obtain, by their consent to be governed, and they do not have a natural right to those services prior to having freely established such a rights protecting institution.

Sterba, in turn, makes the mistake of generalizing into a principle of law what amounts to a rare moral emergency case—namely, when some innocent people are totally helpless and should obtain resources by stealing them. Pace Sterba, those extraordinary circumstances do not generate any rights for people, although those who attempt to meet them by way of stealing might very well be forgiven because of their very limited options.

The doctrine of positive rights has an appeal to those who are faced with the theory of government that guides American law and politics. This theory is a source of promise to their efforts to elevate what people badly need to what they have rights to. America was founded on a theory that every individual human being has the unalienable right to, among other things, life, liberty and property. These rights that John Locke first identified—following several centuries of political and legal thinking during which various theorists have begun to identify them more or less precisely—are, as noted already, negative. Those political theorists who consider it important to retain some elements of the political outlook which Locke’s position displaced, namely, the view that people belonged to the country—were, in fact, subjects of the country’s head, the king, not sovereign citizens—found a way to use the concept of human—but now positive, not negative—rights to advance their position.[5] They appropriated some elements of the concept of negative human individual rights and attached it to the idea of needs or important values that people often have so as to manage to secure what others might provide for them. That element is that if one has rights, one is not just authorized to but in fact ought to secure their protection. As the U. S. Declaration of Independence so succinctly put it, it is “to secure these rights [that] governments are instituted among men, deriving their just powers from the consent of the governed.” Now if we also have positive rights, then governments would also have the task to secure them, namely, the performance by us of those actions that will provide what others have a positive right to.

Probably the most serious problem of positive rights arises from how they compare with how negative rights are understood in the Lockean natural rights classical liberal tradition. In that framework a conflict of (justified, true) rights claims cannot exist. In this political framework when a claim is made as to someone’s having a basic (not, however, legal) right, this claim may be checked for whether it is true by reference to a correct understanding of human nature. That such an understanding is possible is itself a controversial issue that need not concern us for now.[6]

Why is the Lockean approach to rights superior to the positive rights approach? Because the natural rights position understands human nature to rest on our correct grasp of an aspect of reality. With the understanding of human nature and the character of human social life we discover that morality and politics have emerged as uniquely human concerns in reality. For example, we learn by the use of our reason, as Locke puts it, that men and women ought to strive to succeed in their lives but face avoidable threats from others who refuse to accept mutually supportive conditions for striving. In this light we need to answer a question concerning ourselves, namely, “How we ought to live?” This is because human beings lack the instinctual, innate or hard wired information that will just take care of their living for them, that will secure their successful living automatically. Furthermore, given our social nature, which Lockeans and other classical liberals and libertarians by no means reject[7]—pace the claims of Taylor and other communitarians who claim that this tradition assume an atomistic idea of human nature[8]—we need to answer the question “How should we organize ourselves in communities?”

As per the Lockean negative rights framework, in both these human normative spheres, ethics and politics, we are still, as in the sciences, dealing with reali­ty, albeit a special dimension of it. So here, just as anywhere else—say in economics and biology—no conflict is tolerable between true claims.[9]

Furthermore, the natural rights classical liberal tradition identifies the rights, for example, to life, liberty and property as basic for human community organization but not, however, for human life at the personal, non-political level.[10] No concern with rights can arise on a desert island for Robinson Crusoe. Only among strangers, in larger communities, does the issue of how we ought to treat one another become pre-eminent and thus of great significance for political and legal purposes.

None of this holds for positive rights. The very fact of scarcity introduces inherent conflicts between allegedly true positive rights claims. And, of course, for those who accept both negative and positive rights as basic to human community life, the conflicts multiply. For example, the negative right of a doctor to liberty is inherently in conflict with the positive right of a patient to health care. So, a serious problem of positive rights theories is that positive rights are unable to function as fundamental criteria of political justice, criteria that serve to assess the merits of claims citizens make concerning their range of authority in society. Instead, with positive rights, since they are in mutual conflict and since they also conflict with other rights many positive rights theorists accept as having at least some standing, there cannot be the rule of law, only the rule of rulers who will decide which of the inherently conflict rights will be protected. This way the whole point of rights as fundamental to a political society is lost and we are back to the arbitrary rule of government, be it monarchic, democratic or whatever.

Any bona fide political system must be organized in large measure so as to protect the rights to life, liberty and, in the practical aspect of both of these, the right to private property.[11] Thus any political rights—to be free to engage in decision making vis-a-vis political matters—must not violate those basic rights. Political rights include the right to vote, serve in government, take part in the organization of political campaigns, etc. Practically speaking, the exercise of one’s political rights may have an impact on who governs, various internal rules of government, and the organization of political processes. But there is no political right within the negative rights framework to override anyone’s right to life, liberty or property. Any evidence of some community’s legal system overriding these rights is ipso facto evidence of the corruption of that system from a bona fide civil polity into one of arbitrary (even if majority) rule. Indeed, one of the failings of contemporary conservative legal theory is not to appreciate the intimate connection between Lockean individualism and democracy. Because of this, many think democracy may trump our basic rights.

The main reason that the American founders established a government that was to secure our rights is that they agreed with Locke and a few others throughout human history that justice requires that communities fit human beings as moral agents, with their personal responsibility to govern their own lives. This is perhaps clearest when we notice their strong emphasis on the right to religious liberty. Worship has always been closely associated with morality and to argue that worship must be freely carried out, not coerced (as per, for example, the Holy Inquisition), strongly suggests a general belief in the justice of removing coercion from morality.

The founders also thought that the only chance of government by law, and thus justice, is the institution of a constitution that contains the criteria for justice, namely, basic rights that are coherent and consistent, that apply to all and can be protected for all.

With the introduction of the conceptual contrivance known as positive rights, it turns out to be in principle impossible for government to govern by a set of consistent standards, standards that had been provided with reasonable completeness by the theory of individual rights. Positive rights must be in inherent conflict. And they conflict, most of all, with our basic negative rights to life, liberty and property.

In the last analysis, the doctrine of positive rights leaves government free to impose its arbitrary standards of government—one day it is to help AIDS research, the next to foster the arts by supporting Public Broadcasting Service, yet another day the provision of our national interest[12] in oil in the Middle East and then the next day it is to solve the problem of immoderate smoking habits among the citizenry. No standards of restrain apply—indeed, as in a fascistic system, anything goes the leaders think is important. The only difference is that the leaders still abide some modicum of democracy.

As we judge communities across the globe, we must keep in mind that what is comparatively best is not always the best that is in fact possible. Thus we can affirm the greater merits of certain political communities or countries despite their evident violation of basic rights. Just as in personal assault cases we can distinguish between major and minor cases, as well as those in between, we can also tell when communities rest on principles that render those systems entirely corrupt, those that simply are confused and messy, and those that come reasonably near to meeting the standards of basic human rights. In a formal way we already apply this method of judging communities, even if not for all purposes. We should go much farther and apply it more strictly and substantively, including as we appraise our own country’s laws.

The doctrine of positive rights is seriously, probably fatally, flawed. With its abandonment a more promising idea may gain currency. This is that instead of positive rights, there are values some are in dire need of and some of those who can relieve them may have the moral responsibility to do so, one they ought freely to choose to carry out. Without the impossible dream of everyone have the right to such relief, as an enforceable obligation from others, this more promising albeit non-utopian view will gain greater impact, thereby fostering the solution of problems that the advocates of positive rights only pretend to tackle, however benign their intentions may be.

Endnotes:

*R. C. Hoiles Chair, Argyros School of Business & Economics, Chapman University, Orange, CA 92866.
[1] Among them are Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978), Henry Shue, Basic Rights (Princeton: Princeton University Press, 1970), and Stephen Holmes and Cass R. Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (New York: W. W. Norton, 1999).

[2] James P. Sterba, “Progress in Reconciliation: Evidence from the Right and the Left,” Journal of Social Philosophy, Vol. 28 (Fall 1997), p. 102. It might be worth pointing out that there is nothing at all that is “Right” about libertarianism. The Right is conservative, even reactionary, and has traditionally rejected many of the tenets of classical liberalism or libertarianism, even its principled adherence to the right to private property and free trade. One need but think of Pat Buchanan’s vociferous opposition to free trade to confirm this point or, if one wants more respectable evidence, of Edmund Burke’s and other conservatives’ (e.g., Russell Kirk’s) criticism of individualism, a central feature of the libertarianism at issue here. Indeed, by some accounts libertarianism is Left because it is close to Enlightenment ideas that champion reason and science.

[3] There are many approaches taken to defending the libertarian stance. Some that are advance mainly by economists do not involve rights, only the overall efficiency of free institutions. Others take rights as a starting point, while yet others rest negative rights on prior ethical theory about the responsibility to strive for excellence. Sterba has argued against those libertarians who take either liberty or the right to liberty as crucial in their positions. Others have argued against negative rights that they rest on shaky foundations and thus cannot be justified. For example, Adrian Bardon, “From Nozick to Welfare Rights,” Critical Review, Vol. 14, No. 4 (2000), pp. 481-501, rejects what he takes to be the two important arguments for property rights, based on autonomy (or respect) and on desert, respectively, he finds in Robert Nozick. The natural rights position relies on neither of these but on the unique identity and sovereignty of human beings that makes them unavoidable for involuntary servitude or public use and on their nature as free and morally responsible, thus in need of the moral space Nozick mentions so as to make decisions about right and wrong conduct. If there is any ground for respect, it lies in the fact that one’s humanity imposes on everyone the task of making life supporting decisions. If there is any desert, it comes from the routine but not necessary requirement that assets and resources one owns need to be allocated effectively, productively. Yet, initial assets—talent, beauty, inherited wealth—need not be deserved, only be a part of one’s identity as the individual person one is. It is one’s right to one’s life that justifies others’ obligation not to intrude on one, not that one has earned special moral respect or deserved the property one happens to have. This should be evident from the fact that it is absurd to think that one deserves one’s life, as if one had struggled to be born is now rewarded with freedom for having done so.

[4] For how children’s positive rights emerge, see Tibor R. Machan, “Between Parents and Children,” Journal of Social Philosophy, Vol. 23 (Winter, 1992), pp. 16-22.

[5] For the most thorough theorist now arguing for the idea that we belong to—and are not only members of—our communities, see Charles Taylor, Philosophy and the Human Sciences (Cambridge, England: Cambridge University Press, 1985), pp. 187-210. This belonging is akin to the way the heart, liver or nose is a part of the body and isn’t a member of it; so, by this account, human individuals are a part of society, not free members who may elect to cancel their membership.

[6] The skepticism here, as in many other cases, stems mainly from a wholly unrealistic conception of what it takes to know something. With the idea that when we know something we have the clearest, most self-consistent, and most complete conceptualization possible to date of what it is we supposedly know—in contrast to the idea that when we know something we have a final, perfect, understanding of it—the most serious and destructive kind of skepticism does not arise. I discuss this in Tibor R. Machan, “Epistemology and Moral Knowledge,” The Review of Metaphysics, Vol. 36 (1982), pp. 23-49.

[7] I discuss the mistake Taylor and other communitarians make in such an ascription of atomism to the classical liberal, libertarian school in Tibor R. Machan, Classical Individualism (London: Routledge, 1998) and Generosity; Virtue in Civil Society (Washington, DC: Cato Institute, 1998)

[8] Op. cit., Taylor, Philosophy and the Human Sciences; Amitai Etzioni, The Spirit of Community (New York: Crown Publishing Co., 1993); Robert Bellah, et al., Habits of the Heart (New York: Harper & Row Publishers, 1985), and Thomas A. Spragens, The Irony of Liberal Reason (Chicago: University of Chicagor Press, 1982). For a critical examination of the misattribution of atomism to classical liberal and libertarian politics, see Aeon Skoble, “Another Carica­ture of Libertarianism,” Reason Papers, No. 17 (1992), pp. 107-112.

[9] True ethical and political—including basic rights—claims are no less factual and thus no less in need of conforming to the criteria of consistency and coherence as those in the natural sciences. The reason is ultimately metaphysical, in the last analysis, justified in Aristotle’s defense of the Law of Non-Contradiction, a defense that still stands and the challenge of which is unavoidably self-defeating. For the details of this line of defense of the Lockean rights stance, see Tibor R. Machan, Individuals and Their Rights (LaSalle, IL: Open Court Publishing Co., Inc., 1989).

[10] This conflicts with Taylor’s claim to the contrary. Taylor says the following about the Lockean position, something quite wrong in light of Locke’s own reference to a law of nature—namely, ethics that our reasoning faculty can grasp “if we but consult it”—that is prior to and required for the conceptualization of negative rights:

Theories 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. (p. 188)

[11] See Tibor R. Machan, The Right to Private Property (Stanford, CA: Hoover Institution Press, 2002).

[12] In contrast to national security, which is but a generalization from the individual security from negative rights violations that citizens may elect to obtain via government.

The Tyranny of the Commerce Clause

The Economic Tyranny of the Interstate Commerce Clause

Tibor R. Machan

Here is an instructive comment from Supreme Court Justice Ruth Bader Ginsburg during the recent oral arguments presented about Obamacare:

“People who don’t participate in this market are making it much more expensive for the people who do; that is, they will get, a good number of them will get services that they can’t afford at the point where they need them, and the result is that everybody else’s premiums get raised? It’s not your free choice just to do something for yourself. What you do is going to affect others, affect them in a major way.”

Ergo, we may infer from this, Congress is authorized to regulate–including coerce–commerce for us all in the United States of America.

First of all, when one applies this view to nearly anything people purchase, it would imply that everyone must act in concert with everyone else. If you don’t purchase something I do purchase, say an orange colored sweater which I want badly, or blood pressure medication, which I evidently need to stay alive (judging from what my doctor suggested when she prescribed it for me), my purchase will very likely cost me much more than it would if you purchased these items as well!

One central point of having a free and not a centrally planned market system is that different people are at liberty to make very different choices in it. If just a few people buy certain goods and services, this will, of course, drive the cost of these up (if one wishes to put it that way–”drive” suggests an impersonal process but that is misleading.) Elementary economics.

Justice Ginsburg does not appear to appreciate the point of having a free market, indeed, a free society. After all, suppose that The New York Times is losing consumers, just as other publications have been on and off over the decades. Now for the few who continue to want to purchase the paper it will be much more expensive to do so when this happens. Are we then supposed to tolerate a government that coerces us all to purchase copies of the paper? It is a vital product, as far as many people believe (and maybe they are right).

Still, they need to be persuaded instead of coerced! That is what freedom means, regardless of the economic consequences. If someone refuses to buy the kind of merchandise or service I choose to buy, it could well cost me much more to buy it but that is one of the inescapable consequences of liberty.

This is akin to how if when running a marathon race someone passes me, I will lose my position, indeed may lose the race altogether. Well, that’s how it goes with free competitions, in a marathon or in the market place. And it doesn’t matter that some runners really need to win very badly–indeed, when the Soviet Union sent competitors to international races, they did need to win very badly since their government was very displeased with anything else but a win.

Which calls to mind that famous quip by Justice Oliver Holmes Jr. (in his notorious, Lochner dissent) that the framers didn’t mean to include the economic philosophy of Herbert Spencer in the U. S. Constitution. But they in fact did, if not in those terms then in very similar ones–e.g., through the principle of private property rights.

Here, too, is where it becomes evident that most of the framers of the U. S. Constitution didn’t mean by “regulate” commerce what that term has been taken to mean by many justices and legal scholars since the New Deal, namely, “regiment.” They meant, most likely, “regularize” since the issue was to eliminate the irregular measures the governments of different colonies used so as to control commerce between them. But once the colonies became one country, this was no longer deemed sensible–the entire country became the market and trade within it needed to be rendered free, that is, regularized, conducted without disparate obstacles facing traders in different regions of the country.

Quite apart from the sophistries used by the Obama team and its champions on the U. S. Supreme Court, the debate about Obamacare should really be put in terms of a free market versus a government planned one. That would put all cards on the table, face up! It would demonstrate that we are indeed confronted by a very pivotal issues in our time, namely, whether the laws of our country will serve liberty or tyranny.

Altruism isn’t Generosity

Altruism isn’t Generosity

Tibor R. Machan

A big error has haunted humanity for centuries: it’s the equivocation between generosity and altruism.

The former is a virtue any decent human being will practice: it asks of one to reach out to deserving others in times of dire need. The latter is a policy of devoting oneself to benefiting others above all. The former is admirable, the latter is suicidal.

Sadly the two are often confused in the minds of many folks who have forgotten their college ethics courses in which these distinctions are usually discussed (when the professor isn’t using the course to advance an agenda in support of the confusion!).

Aristotle knew that among the virtues human beings should practice one of them is generosity (or liberality). Of course, for him the others include honesty, liberality, prudence, magnanimity, courage, etc. Since Aristotle identified the purposes of practicing the virtues as human happiness–a virtue of a good-making attribute of a person and for persons the highest good is happiness–so clearly he was not championing altruism, which, as the philosopher W. G. Maclagan makes clear, amounts to “assuming a duty to relieve the distress and promote the happiness of our fellows….Altruism is to…maintain quite simply that a man may and should discount altogether his own pleasure or happiness as such when he is deciding what course of action to pursue.” (“Self and Others: A Defense of Altruism,” Philosophical Quarterly 4 [1954]: 109-110.)

As presented, ordinarily by ministers, priests, philosophers or in fiction, altruism means ranking looking out for others first in one’s list of moral duties. Because for much of our modern era prudence has been thought to be something we practice automatically–”everyone is selfish or self-interested”–the virtue has gone pretty much neglected. And since self-interested conduct was taken by many over the last four centuries to be innate, altruism is the doctrine that needed to be defended and practiced. As if people really did pursue their own best interest as a matter of an innate drive.

Yet, what is in one’s self-interest–real self-interest, not just what one would prefer or like–is not simple to ascertain. It requires understanding oneself not only as a human being but as the particular individual who one is. What Plato said about this in the Phaedo (115b) is instructive:

“Crito, ‘When you are gone, Socrates, how can we best act to please you?’ Socrates: ‘Just follow my old recipe, my friend: do yourselves concern yourselves with your own true self-interest; then you will oblige me, and mine and yourself too’.”

Indeed in Classical Greek ethics doing the right thing is what’s crucial, and that will be of benefit all around, helping oneself as well as others. But doing the right thing is something one must choose to do. It doesn’t happen automatically. In how ethics is viewed by a great many thinkers today, whatever the right thing is will be done automatically–we are hardwired to do it. Doctrines are proposed in various fields–including the latest fashion, namely, neuroscience–as to how people and other living things are programmed by biological imperatives to serve others (or not). Never mind that ethics is actually about what people ought to choose to do, not about what they are impelled to do by their biological constitution.

Wouldn’t it be advantageous if everyone instinctively did do what is right!? All would be just fine with the world then, at least as far as human affairs are concerned! But in fact there is a lot of mischief going around and it is often due to bad choices people make. What would bad choices look like? The ancient Greeks had a good clue–ones that thwart or undermine our human happiness. Even generosity was, for them, a virtue that enhances the life of the one who practices it.

Those who peddle altruism, often so as to instill guilt in most of us who are quite normally seeking to benefit ourselves first and foremost, are in fact misanthropes, like the extreme environmentalists, some of whom–e.g., David M. Graber–actually hope for the extinction of the human race. (Another is the radical environmentalist Bill McKibben who prides himself on no longer being a consumer. Perhaps he would like to explain the virtue of this in our time to all the unemployed among us.)

Machan’s Archives: Instead of Zoning…What?

Instead of Zoning…What?

Tibor R. Machan

I have argued before why zoning laws are inconsistent with a free society’s principles, in particular with the principle of private property rights. Basically they amount to impositions by some people on others of conditions for using property that are the owner is authorized to determine. No one else has that right, however tempting and desirable it may appear to imagine otherwise.

But what about the perfectly honorable wish to have a nice neighborhood in which to live, work and play? How, besides by means of zoning ordinances, could people protect their neighborhoods?

Before answering this question it must be noted, quite emphatically, that zoning ordinances by no means achieve what their advocates claim justifies their use. Indeed, in many communities that have stringent zoning ordinances there are neighborhoods that are a mess, to put it mildly. Especially right where the zoning provisions change, say from commercial to residential use, the areas are usually in a deteriorating condition. That is where buildings are usually dilapidated, shabby. And it is usually those who lack political clout who must live there.

In more general terms, by no means is the institution of zoning laws a panacea. Just as with the welfare state in general, which simply shoves around the misery it aims to eliminate, zoning laws, too, are mostly an expression of special interest clout. A drive through any of the heavily zoned communities will demonstrate this right away.

In fact, the record of the institution of zoning as far as making areas of residential, commercial and recreational living orderly and pleasant for all is by no means a good one. Let us look at this briefly, without entering the ample scholarship that exists on that topic. (But anyone wishing to check for detailed studies can examine William A. Fishel’s works, The Economics of Zoning Laws : A Property Rights Approach to American Land Use Controls, Regulatory Takings : Law, Economics, and Politics, Do Growth Controls Matter? : A Review of Empirical Evidence on the Effectiveness and Efficiency of Local Government Land Use Regulation, The Economics of Zoning Laws : A Property Rights Approach to American Land Use Controls, and Land Economics : Private Markets Public Decisions, as well as Bernard H. Siegan’s seminal book, Land Use Without Zoning.)

For one, there is a city in the USA that has enjoyed zoning freedom and has worked pretty well while it lasted. It is Houston, Texas. No disaster, no catastrophe, no mess, no property devaluation, nada. Just a city where what zoning was supposed to achieve had been achieved without it, more peacefully, more though cooperation than through coercion.

Second, a little imagination and history should suffice to teach us all that it is better all around to strive to achieve goals without forcing people to accept what they would freely reject. And this applies as much to education or military service as it does not keeping their neighborhoods in good shape. Free men and women simply do better, on the whole, than do those who are regimented by their fellows, made to act as they do not choose to.

Third, what zoning aims for can easily be achieved through voluntary agreements among members of neighborhoods. Restrictive covenants work to this end wonderfully, provided those concerned make the effort to establish them. As with all things, the free approach always appears at first cumbersome – talking someone into a course of conduct takes more time than doing this by beating up the person. But in the end the result is much more rewarding – all kinds of political hostilities, vested interest battles, and politicking in the worst sense of that term can be avoided if agreements are reached peacefully, through mutual effort.

Of course, in most communities this is at best an ideal, but more likely a political fantasy, along lines that abolishing prohibition had been at one time and substituting a private for a public education system is now. But that does not make it any less feasible and right! So in the current dispute about whether this or that kind of zoning ordinance is needed for a community, it is vital that some voices keep announcing what is the truly best solution, after all.

What is needed, once all the infighting has shown itself the fruitless effort it really is, is the abolition of zoning and the institution of market based, voluntary agreements among members of neighborhoods, commercial establishments and so forth to achieve what these members want to achieve. There will, of course, be limits to what is possible – one cannot live in Shangri-La if one isn’t financially equipped to do so; one cannot live far in the woods if one’s budget provides for only an apartment in the middle of town. But within the limits that one must live with in all realms of ordinary life, the solutions reached via voluntary negotiations and bargaining are far superior to those acrimonious ones that are reached via the political process.

Will this be done tomorrow morning at 9 AM? No. But should we stress its desirability and real availability for any community? Yes.

Column on How Not to Treat Ideas

How Not to Treat Ideas

Tibor R. Machan

The philosophical school I consider most sensible sees ideas as the means by which human beings gain understanding of reality. Ideas are what helps us navigate reality so we can live successfully. Which is why so much effort has been spent on developing, criticizing and analyzing ideas throughout human history, especially in the academy, not just in the sciences but in matters of public concern.

But in the modern age a good many thinkers have come to believe that ideas are actually expressions of passions or interests, brought about so as to promote the satisfaction of desires. Or, in other words, that they are simply ideology.

This attitude appeared to be what lay behind a question some journalists on TV were asking about Ron Paul. On a round table television program I was watching recently, several of journalists were discussing results from the various primaries and caucuses, and some of them asked, “What is Ron Paul after? What does he want? What is driving him?” This in part because, well, he isn’t very likely to win. And the answer that Ron Paul is actually interested in figuring things out and then teaching people something–for example about the US Constitution, about the Federal Reserve system, about the nature of money–just kept being overlooked. No, Paul has to have an agenda of some sort, like wanting to be a vice-presidential candidate, like getting appointed to some federal department, etc. Just advancing and defending certain ideas so as to promote understanding on the part of the electorate seems to be unfathomable to these journalists. There has to be an angle!

Here is one main source of the widespread cynicism about American politics. People look at candidates and office holders as always being out for something–power, wealth, fame, and the like. Wanting to be correct about political matters seems not to matter. Getting it right about the Fed or the US Constitution–that is, truth–is passe. Why?

There is also that related way of dealing with people’s opinions and ideas, namely, by explaining them away as having been caused by one’s upbringing. The often heard question, “Where is he or she coming from?” indicates this approach. When you hold that economic stimulus is folly or helpful, it doesn’t matter whether the idea is true; just explain it either linking it to the person’s special interest or background. Concern yourself with what put the idea in the mind. (Which implies, of course, that the answer to that question will also be treated as having been caused by someone’s background, history, or upbringing, ad infinitum!)

All of this may indicate why so many people in public life don’t really argue about the merits of ideas or positions on various issues but focus, instead, on the motivations and character of those advancing the ideas. And to undermine those ideas, then, will not require better ideas, sound criticism and so forth but, instead, the calling into question of the motivations and character of whoever defends them. Never mind if an idea has merit, ask, instead, what explains that someone holds it and is the motivation benign. Besmirching the thinker is what works, not criticizing what he or she thinks! So as to impugn Ron Paul’s or Mitt Romney’s or Newt Gingrich’s position, link it to some kind of questionable motive. He holds his foreign policy views because he has loyalties to certain foreign countries since his parents or associates were born there! He opposes the Federal Reserve Bank because he hates bankers who help his adversaries, not because the ideas are right and those who oppose them are, well, wrong.

I received an unsolicited email the other day that questioned President Obama’s loyalty to the United States of America, claiming, instead, that he is working for Kenya! I couldn’t resist replying that it doesn’t matter to me if he came from the moon or Mars, what matters is whether he has good ideas on public affairs. Immediately I got a reply saying well it should matter to me if I care about where this country is going.

This kind of reasoning bothers me not only because it commits the informal genetic fallacy, which questions ideas not because of their flaws but because of their origins, but also because I have been subject to similar dismissal of my own thinking: “You come from Communist Hungary, right? So obviously you would think this or that.”

Wrong.