A Critique of Scanlon's "Libertarianism and Liberty"

This post is a critique of http://www.bostonreview.net/BR36.5/ndf_t_m_scanlon_libertarianism_liberty.php

My critiques and statements appear like this:
[Inside brackets, in bold face, with red text, occasionally signed if the context might be confusing. ---KP]
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Libertarianism presents itself as a simple, clear, and principled view. It appears to provide a moral basis, in the value of individual liberty, for a specific political program of limited government and low taxes. The moral significance of liberty seems obvious even to those who believe it is not the only thing that matters. But the claim of the libertarian political program to be founded on this value is illusory. [Contested. --- KP] Three lines of thought lead to conclusions that might be seen as libertarian. But none of these shows that respect for the value of individual liberty should lead one to support the political program of low taxes and limited government that libertarians are supposed to favor.


• • •

One route to libertarian conclusions appeals to an idea of productive efficiency. As Hayek argued, the market is, in an important range of cases, a more efficient mechanism for deciding what to produce than decisions by any central planner. This is so for two reasons. The first is the flow of information: no planner could acquire information about what consumers want to buy as efficiently as the market does. The second is capture by interests: decisions by state-owned industries are likely to be guided by the interests of those who run or work in those industries rather than by the goal of efficient overall production. Where they apply, these arguments are powerful. As recent financial crises show, however, these considerations do not lead to the conclusion that government regulation is always a bad thing. And even Hayek would not deny that government intervention is needed in the case of externalities such as pollution and climate change.

[How does the author know what Hayek would or would not argue? Such a statement is an argument from authority, but one which is not verifiable. It is a logical fallacy, and a poorly executed one at that. --- KP]

The considerations just mentioned provide some guidance about how to deal with these problems, but they provide no reason for thinking that they should be dealt with by simply leaving it to the market.

[Many libertarians in support of a minimal state would likely argue that the court systems can deal with this. If a company/person upwind, upstream, or in reasonable range of effect to us, pollutes us with hazardous doses of chemicals, radiological, biological, carcinogenic, etc. items, what he have is either assault on our persons, or criminal trespass on our properties (i.e. oil spill). This can be solved within a court system.]

Whatever policies they support, however, these considerations are not based on the value of liberty for an individual. This argument assigns individual liberty only an instrumental value: it is important only as a means to economic efficiency.

[The author broke the argument down into three parts, not the libertarians. Therefore such a classification is not an argument against the side which did not chose it.][Inside brackets, in bold face, with red, occasionally signed if the context might be confusing. ---KP]

“Efficiency” sounds important. But efficiency is only as important as the goal that is efficiently promoted. The value that Hayek’s argument takes as fundamental is the satisfaction of individual preferences. More specifically, it is the satisfaction of preferences that can be expressed through the market, the weights given to these preferences being determined by individuals’ willingness and ability to pay for their satisfaction. Since individuals with more money are willing to pay more for the satisfaction of a given preference, this means in practice that what is maximized is the satisfaction of preferences weighted by the wealth and income of those whose preferences they are.

[This is an odd, maybe incorrect, interpretation of the theory of subjective value, which states than any rational (i.e. willful) actor values stuff. He knows what those values are worth in relation to other stuff. They do not have to be equitable or related for a person to decide on their relative value to him/her. For instance, to me there is no Coach purse worth $600. I won't pay that. It has not that value to me. To someone else, it may. Subjectivity. However, even an owner of siad bag would probably sell it for $10 if he or she were starving. ]

Many of the factors affecting the degree of control individuals have over their lives—such as the legal system and the organization of the economy—are not the subject of preferences expressed through the market.

[Yet. Private courts could exist with ease. Contracts of mutual submission to arbitration, ratings based on honesty, fulfilling one's contractual obligations, willingness to abide by arbitration are all voluntary and non-state-oriented. There are already a few such organizations in the US.]

To the degree that they are not, market outcomes will not be sensitive to the value individuals place on their own liberty.

[This is not necessarily true. In fact, it might not even be remotely true. I may have to come back to this later...]

For example: The productive efficiency of a market economy depends importantly on its ability to shift resources from industries that are no longer needed or efficient—such as typewriters manufacturers in an era of the computer—to those making products for which there is greater demand—such as computers and software to use on them. This efficiency is attained at a cost to workers, who must find new employment when such changes occur. Workers who are constantly subject to such disruption have less control over their lives than they would in a more stable society.

[So we should all use candles because the evil lightbulb manufacturers put the poor candle makers out of work? Come on.]

To determine what system is to be preferred, some decision must be made about how to balance the conflicting values of productive efficiency and individuals’ control over their lives.

[Which is a non-invasive and voluntary system is best. It allows the most variety, the most real-world laboratories for what works. You can have a communist enclave within a free-market system (we don't have one of these), but not vice versa.]

The market itself does not answer this question, since the choice between different systems is not something that individuals express a preference about through their market behavior.

[Part of his confusion seems to stem from this idea that individuals are somehow separate from the market, which is not the case. The market is generally defined by libertarians as the sum-total of all rational, voluntary, non-aggressive actions, taken place between two or more individuals. The market is not some fantastic or theoretical creature hovering around money-changing tables.]


• • •

A second, quite different view is what might be called “motorcycle-helmet libertarianism,” [This borders on a an ad-hominem attack, attempting to deride a point of view by giving it a childish title.] which gives fundamental place to the value of having control over how one’s life goes in important respects. The idea of control that this line of thinking appeals to is not a right but a value—something that individuals have reason to want.

[It is a right in that it is yours by virtue of being a human (without an institution to gift it), it is a value in that its relative importance is subjectively defined by each individual. I might trade some of this control, for example, to be in a certain kind of relationship, like with a woman. I value the relationship to be of higher quality than life without it, and a corresponding increase in choice in sexual partners, for instance.]

The importance of the difference between rights and values is demonstrated by an argument of Robert Nozick’s. In Chapter 8 of Anarchy, State, and Utopia Nozick considers, as a possible objection to his view, that in a society of the kind he is recommending some people would lack control over their lives in important respects. In a skillful rhetorical move, he responds to this objection by asking whether there is “a right to have a say about what affects you,” and he quickly and convincingly shows that there is no such right. As he puts it, few things affect your life more deeply than whom you marry. So a right to have a say over what affects you would include a right to have a say about whether your beloved will marry someone else, thereby becoming unavailable to marry you. But clearly you have no such right.

[He is twisting the argument. The question here is answered by the statement that your rights are unrestricted other than by the equal rights of others. Thus, you can swing your fists all you want, but the moment you come in contact with someone other than someone who initiated aggression against you, you are committing a crime (i.e. a violations of some real human's natural rights. A prospective partner's freedom to choice whom he/she will love is equal to your choice. Neither takes precedence. This is the essence of social contract.]

An unregulated market leaves many workers with little control over their lives. Their liberty also matters morally.

[First, they choose to engage in a market. Second, the chose to take training or not. Third, they choose to become marketable in other respects. Fourth, they choose to continue training, or not. Fifth, they choose with every single action, every single day whether to continue those choices. We are all willful actors.]

What this argument shows is that the objection Nozick is considering should not put it in terms of a supposed right. It does not show that having control over one’s life in certain respects is not an important value that needs to be taken into consideration in deciding what rights people have.

[Since when are an individual's rights up for collective vote? By this argument, we could re-instate slavery of one demographic over another. Is it right, moral, etc. merely because we voted on it? No! It would be legal, however. An important distinction.]

Indeed, Nozick himself seems to appeal to such a value when he says that his system of “libertarian” rights is appropriate for us because we are “distinct individuals each with his own life to lead.” 1

The distinction involved here is one of several that can be referred to, somewhat misleadingly, as between positive and negative rights. [It's not misleading, it's merely one kind of classification.] As I have said, however, it is not a distinction between two kinds of rights but between rights and considerations that must be taken into account in justifying them. The lesson to draw from it is not that there are no “positive rights”—rights to particular benefits—but rather that not every desirable thing that is relevant to justifying rights can be directly transformed into a “right to” realize that thing.

[This is a true dichotomy in libertarian thought, mainly seen as the libertarian left, and the libertarian right. The libertarian-left tends to view things like this "freedom TO something" such as to choice education, to security, etc. The libertarian-right tends to view things as "freedom FROM something" such as freedom from oppression, freedom from regulation, etc. I don't see how this distinction is at the core of his argument however.]

Recognizing control as an important moral value leads to the question of what system of rights—what set of laws and policies—would best secure this important form of control for everyone, since everyone counts morally. It may seem to industrialists that an unregulated market provides the greatest freedom, because regulation and taxation reduce their ability to do what they want. But as I have mentioned, an unregulated market leaves many workers with little control over some important aspects of their lives, and their liberty also matters morally. So an argument appealing to the moral importance of control over one’s life must take both of these facts into account, along with others.

[This is a false choice. If my neighbor has a much nicer house than I do, and I want to be able choice to live in it; this want does not equate to a right to posses. When a government takes money from a population to use however it decides (even if by allowing a minority to vote), it is "taxation." However, if I do it, or a gang does it, or a rival government does it, it's theft, paper-terrorism, etc. It is a false equation to link the desire to keep what you earn, with the desire to have provided for you by someone else something which you don't have.]

If we ask what conditions are most important for having meaningful liberty—meaningful control over one’s life—in a modern society, one of the first things that comes to mind is education, which enables one to understand one’s choices and to acquire the skills needed to pursue them, including the skills needed participate in the market economy. A second important factor is a strong social safety net, including unemployment benefits, which enable people to plan responsibly for having a family despite the uncertainties of employment in an efficient market economy.

[Whoa. So to have "freedom" this author would have us take for granted without any evidence that we MUST expect to have a RIGHT to the things produced by another's labor. If you can force me to pay for your education, your healthcare, to pay you to not work, etc. why can't you force me to pick your cotton? That's called slavery, friend; no matter which way you slice it.]

Neither of these is part of the “low taxes and limited government” program normally favored by libertarians.

[True, however, the choice to pursue all of those things (i.e. pursuit of happiness) is. The issue here is that you NEVER have a right to someone else's labor without their consent. Make all of those programs VOLUNTARY and many libertarians would stop arguing with them, and might even contribute to them.]

Perhaps a revised libertarianism might incorporate these policies, ...

[No, because your "revised" libertarianism is statism, and anti-liberty. Call it what it is.]

along with other measures needed to give meaningful liberty to all.2 As commonly understood, however, the libertarian political program should seem responsive to the value of individual liberty to only one group of people: those who believe that they have no need of such policies in order to exercise control over their lives, and imagine that no one else needs these things either (or else that it does not matter whether they have them).


• • •

It may be said that what is objectionable about laws requiring motorcyclists to wear helmets is not that when such laws are in force people lack control over important aspects of their lives. The objection is rather that such laws deprive people of control over their lives in a particular way, by coercively telling them what to do. So the basis of libertarianism might be taken to lie in the idea that no one should be coercively told what to do.

As stated, this way of putting the objection is overly broad. Enforcing any law involves coercively telling people what to do. Certainly this is true of property laws, which libertarians favor. So the libertarian idea is a narrower one, that no one should be coercively told what to do as long as he or she is not violating the rights of others. [Agreed.]

This intuitively appealing idea is the third route to libertarian conclusions, which starts not from the value of control over one’s life but from an idea of non-interference, given content by an enumerated list of rights. Since this idea is to serve as a test for the legitimacy of laws and social institutions, it is important that the rights in question be “natural” in the sense of not depending, for their own validity, on the legitimacy of institutions that establish them. Foremost among these rights claimed by libertarians are property rights and rights not to be subjected to force or violence. If every government action beyond the protection of such rights is objectionable coercion, then respecting these rights may seem to lead to policies of limited government and low taxes favored by libertarians.

The question, then, is why we should think that, independent of any law or social institution, people have these rights, and only these rights, and that these rights are the only basis of justified coercion. The strongest reason for thinking this seems to me to be that the existence of these rights seems to be the best explanation of the wrongfulness of certain actions that do seem to be clearly wrong, independent of any law or institution. Being attacked by a murderer, or being captured and enslaved are good examples of such wrongs. So does having the crops that one has raised in order to live through the winter taken away by a band of armed marauders. Examples of this kind seem to support the idea that there is a natural right to property.

Property rights require an institution that creates, defines, and enforces them, and is justified by the benefits it brings to all. [Not true, no supporting evidence.]

This brings us to a second interpretation of the distinction between negative and positive rights: Negative rights are rights not to be interfered with; positive rights are rights to be provided with certain benefits. [Again, our LR-LL split.] A mechanism of enforcement is a positive benefit, whatever rights are being enforced. But the idea is that coercive enforcement is legitimate only if what is being enforced is simply that people not interfere with others who are not interfering with them.

But property rights go beyond mere rights to non-interference. We can see the difference by looking more closely at the example of the crop-stealing marauders. To explain why their action is wrong, we do not need to appeal to a right to property. The wrong is adequately explained as a violation of a narrower right not to be interfered with. To put the matter in Lockean terms: we have the right to act on the things of the world in order to preserve and improve our lives, as long as, in so doing, we do not encroach on others’ ability to do likewise. Others ought not to interfere with our doing this, and if they try to do so we are justified in using force to prevent them. The assumption in this example is that clearing land and growing crops in order to survive did not encroach on anyone, hence it is wrong for others to interfere with this.

These ideas of rightful use, wrongful interference, and rightful defense account for what Locke called natural property rights. But property rights as we commonly understand them are much stronger.

[Because our understanding of them isn't Lockean, but within the context of a strong state. This is a tautology, and doesn't further the argument.]

They involve not only the right to use the things one owns, and to exclude others from taking them, whether or not we would not suffer from this loss. And property rights also include the power to give others similar rights over a thing, by transferring it to them. [Yes.]

By permissibly using something, I can make it wrong for you to take it, on Lockean grounds, because you would be interfering with my use. By ceasing to use it, and leaving it with the intention that you will use it, I can make it the case that you will not wrong me by using or destroying it. These ideas, included in the right of non-interference as I have construed it, are extremely plausible. But it is extremely implausible to think that I can, by an exercise of my will, confer upon you the right to exclude anyone else from the use of a thing, [If I maintain ownership, and not merely possession, I can. It's mine.] and give you the power to transfer this right to yet other people. Having this power would make me an odd kind of moral legislator.

[No, it makes me the owner.
"You may borrow my hammer, but don't lend it to someone else."
Or
"Here, you can borrow my hammer."
"Can I lend your hammer to Jake?"
"Yes."
No one's rights are violated, this is reasonable and acceptable.]

As David Hume argued, property rights require an institution that creates, defines, and enforces them, and is justified by the benefits it brings to all affected by it.

[Hume and Locke were on opposite sides of the enlightenment philosophical debate. To state the debate doesn't prove one side over the other.]

3 It follows that if there are property rights that can be coercively enforced, justifiable coercion is not limited to the enforcement of “natural” rights.

[Why does that follow? Oh... because we're not supposed to be thinking about this, just taking it as true. I see.]

So a rights-based idea of mere non-interference does not provide a foundation for libertarian politics.

[False.]

• • •

There are no property rights independent of some institution defining them, [Contested.] but it is generally agreed that there should be such an institution. [Oh really?] The question is what form this institution should take.

[Libertarians would argue for voluntary associations, generally.]

So-called “defenders of property rights” are best understood as arguing that it would be in some way better—more conducive to economic productivity, for example—for our institutions to define these rights in one way rather than another. [See above.]

The threshold question here is how property rights must be defined in order to be justifiable to all who are required to accept them. Above that threshold there is the question of which of the various justifiable systems of property rights we should most prefer under current conditions. Considerations of productive efficiency—more specifically, the considerations of information flow and interest-group influence that I mentioned in Section 1—clearly have a role in determining the answer.

[How is the clear? This sounds like, "to each according to his need, from each according to his ability. Hardly a liberty-oriented approach.]

So does the value, mentioned in Section 2, of individuals having control over their lives. Libertarians are correct in calling attention to these considerations, although there is no reason to believe that they are the only things that are relevant to deciding what form our institutions should take. Moreover, since these two ideas are distinct, and do not always point in the same direction, it is misleading to lump them together under a single heading of concern for “liberty.” [Libertarians don't, the author did.]

_____________

Here the article ends, with no firm conclusions other than ... 'so they're wrong.'
--- KP

Events Update

This past Thursday was a busy one for us here at the Campaign. We first attended the Morgantown Tax Day Tea Party, where I spoke on the issues. Later that day, we visited Heritage Point and partisipated in their Candidate Forum.

We have started to put banners up around Morgantown, and we hope you will consider displaying one as well. My commitment to fiscal conservatism is strong. We are producing our banners in-house, at around half the price of traditional political yard signs. So although they may look non-traditional, this is the sort of out-side-the-box thinking we need to reduce our budgets.

I am also doing all of the web- and graphic-design for the campaing myself. This is saving an incredibly amount of money. However, we still do need funds. If you are able to contribute to the campaign, please do; we need your help.

I am attending the Restore the Constitution Rally on Monday in norther VA. More info is available at their website.

I hope you'll join us on the campaign trail, and help all that you can.

Support Pro-Liberty Candidates in 2010!

---KP

Clay-Battelle Potluck

Mina and I just got back from the Potluck at the Clay-Battelle Senior's Center. All the food was great. We heard from several candidates for Congress, State Senate, House of Delegates, County Commission, and about the County Fair (which sounds like it's going to be great this year).

It was good to get out see the people. I think we had a very positive response from the people who were there, and I look forward to campaigning in the west of the County, and getting to know those people better.

Morgantown seems to think it is Mon County, and too often those of us who live in the County get forgotten, or pushed to the side. I hope my campaign can be different in this regard.

---KP

Blacksville Senior Center Potluck

Mina and I will be attending the Blacksville Senior Center's Potluck dinner tomorrow, Tuesday March 16th at 6pm.

Will post pictures on the website afterwards. Thanks, everyone, for your support.

---KP

Announcement of Candidacy

I am sending in my official Candidacy forms today, Thursday January 28th, 2010.

I hope you can all join me in my fight to restore Liberty.

---KP

Common Law Justice

Common Law Justice

| Today at 2:07pm |

I would consider myself a "philosophical anarchist," as I don't believe any man has the right to rule over another; nor can one man represent any but himself.

However, a true anarchy requires a moral and ethical, and above all: a well-educated people. Since this is unlikely to occur in the near future, I will support the most limited form of government possible, and always work at decreasing the scope of that government.

Although that's my philosophy, my politics tend to divide things up this way: Authoritarian <---> Libertarian; i.e. who uses forces to enforce their ideas on others? I'm a voluntarist, I don't believe that it is moral to force someone to do something they do not want to do. All associations should be voluntary. This precludes some basic notions on government, such as taxes, fines, levies, etc.

I like the common law system of justice, where there aren't "punishments" per se, for crimes; as the collective use of force in any means other than defense is always wrong.

There are three basic Laws of Common Law:
- Do not injure another human in his or her life, liberty, or lawfully acquired property,
- Do not unlawfully posses the property of another,
- Do not contract in fraud.

This covers all the bases, and anything else, is nanny-state mentality.

So, if you are charged with a crime, let's say horse-stealing, and the common law court, made up of people from your community and the community of the victim, finds you guilty.

They decide adequate repayment is required. You are asked to return the horse, and help the man from whom you stole do whatever the job of the horse was for 2 months without pay; so that you understand the value of what you took, and the loss with which the victim dealt. If you agree, then sentence is carried out, and everyone goes home happy.

If you disagree, you won't be forced to do these things; not by Police or Bailiffs, or any group, but you will labeled an outlaw. That means, that since you disrespected the Rights of another, your Rights will no longer be protected by the community; by the Law.

You are outside the system of law. So, if the man from whom you stole comes to collect his horse with 15 of his buddies, and the price of the labor he lost in your hide: so be it. No crime can be committed, since you are outside the scope of the law.

If he decides to let it go, so be it. But, if a year from now, someone steals from you, then no crime has been committed, since the Law does not protect/respect you. Or, if someone kills you, the same is true. No crime.

It's not a light decision by any means, but in has in it reform, punishment, and it dissuades people from infringing on the Rights of others.

If, however, you decide after a few months, that living this way is not good, and you want to make remunerations, then the court reconvenes. You give back the horse, work the two months, plus some extra sentence for the delay of justice; and after it's all been worked out, then the community opens its arms to you and you are welcomed back in; and your Rights are again protected by the Law and by the community.

This is a "free-market" form of justice, which appeals to me a lot. I think the smaller the governing structure, the better. I want my servant governors to have to live with me, trade with me, count on my trade and goodwill. They need to know what life's like for the people their decisions effect. They need to be subject to those same consequences.

So, what would happen if instead of having to fight a horrid bloody conflict to be left alone by the men and women who sit in the seats of Washington, doing business as the United States of America; what if instead we simply began to live and behave, and institute our own forms of self-governance?

Our greatest weapon just might be ignoring them, and going on about our lives as Freemen and Freewomen. Think about it.

--- Kevin Patrick

WVU Homecoming Parade

I will be walking in the WVU Homecoming Parade tonight, Friday 23 Oct 2009, with the Republicans. We are meeting on North High Street, above Nick's Canteen, near the Mountain Lair Green. We have a red truck. There will be some people there by 5pm, I will be arriving around 5:45pm.

So please, come and join me. You may walk with us if you would like.

---KP