Against Libertarianism

(excerpted from:

SAMUEL FREEMAN Illiberal Libertarians: Why Libertarianism Is Not a Liberal View

_ 2002 by Princeton University Press. Philosophy & Public Affairs 30, no. 2 )



Here are some arguments (from a liberal perspective) against libertarianism. I am not a classical liberal, (or a libertarian) but I found these arguments compelling:

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The Libertarian Rejection of Public Goods and a Social Minimum Libertarianism has no place for government to enforce the provision of public goods, those goods not adequately and effectively provided for by markets.

-Markets and Monopolies

Under competitive conditions, markets normally allow for efficient allocations of productive resources and increased output of goods to meet (effective) demand. But if market activities are left unregulated, freely associating individuals can just as well enter agreements designed to restrict others’ options, frustrating instead of promoting productive output. The right of unrestricted freedom of contract so central to libertarianism implies that markets are to be wholly selfregulating;

-Absolute Property and Invidious Discrimination

Consider next libertarian attitudes toward liberal institutions affording equal opportunity. Even if narrowly construed, equal opportunity implies more than simply an absence of legal restrictions on entry into preferred social positions by members of salient social classes. Jim Crow laws were not the primary cause of segregation in the South.60 In many places few laws, if any, explicitly restricted blacks from entry into desirable social positions, from purchasing property in white neighborhoods, from entering private schools and colleges, or from using hospitals, restaurants, hotels, and other private businesses frequented by whites.61 Still, these events rarely occurred due to tacit (often explicit) agreement among whites. Because of privately imposed restrictive covenants, discriminatory business practices, and blacks’ abject economic status, there was little need for laws imposing segregation and discrimination. It could be left up to the invisible hand.

-Political Power as a Private Power

One peculiar feature of strict libertarianism is the absence of legislative authority, a public institution with authority to introduce and amend rules and revise social conventions. The need for new or revised rules is to be satisfied through private transactions and the invisible hand, by the eventual convergence of many private choices. Libertarians generally accept that adjudicative and executive powers are necessary to maintain personal and property rights. But these functions are performed by private protection agencies and arbitration services (in Nozick’s account, a “dominant protective agency,” which is the minimal state). No public body, commonly recognized and accepted as possessing legitimate authority, is required to fairly and effectively fulfill these functions. Political power is privately exercised.69

H.L.A. Hart has argued that any society is bound to be static and primitive if it entirely relies on custom and people’s uncoordinated responses to new situations, and is without a commonly recognized and accepted procedure that identifies rights and duties and that issues public rules to promptly respond to changing conditions.

Having no conception of a political society, libertarians have no conception of the common good, those basic interests of each individual that according to liberals are to be maintained for the sake of justice by the impartial exercise of public political power.

Why couldn’t Nozick’s minimal libertarian state govern for the common good, understood as protecting people’s libertarian rights? Since the minimal state is just a private for-profit business, which happens to have a de facto monopoly on power, it cannot be said that it governs with any intention of promoting and maintaining a common good. It may be that the common good, understood as protecting libertarian rights, in fact is promoted (as a kind of positive externality) by minimal state action; but this does not really differ from the way in which any private firm, in seeking private benefit, incidentally promotes a common good. So if the libertarian state promotes the common good, it does so in the same way as does Microsoft, General Electric, or Pinkerton Private Security Services. I assume, however, that the idea of the common good has more structure than this in liberal political thought. It is an operative idea in liberal theory, not an incidental side effect, and government is instituted and designed with the intention of securing the common good. Securing the common good, even if understood in libertarian terms, is not an aim of the libertarian minimal state, as argued in the text. (For Nozick’s explicit rejection of the idea of the social good, see ASU, pp. 32–33.)

If people are led to believe in the inherent justice of market distributions and the “sanctity” of private property as defined by existing law, then regardless of classical liberalism’s theoretical justification (overall utility, market efficiency, a Lockean argument, or the Hobbism of Gauthier and Buchanan), citizens will likely come to believe that they have a fundamental moral right to whatever they acquire by market exchange, gift, and bequest. If so, then liberal institutions will periodically be jeopardized. Those better off will resent taxation to pay for public goods, social security and health care for the elderly and handicapped, and minimum income supports and other assistance for the poor. Moreover, democratic government’s very legitimacy may be questioned. These are familiar and recurring events in U.S. history.

(High liberalism should not be prone to the same instability, for it distinguishes personal property that is part of or essential to basic liberty from economic rights to control means of production, and construes the freedoms implicit in the latter rights in terms of what is needed to secure each person’s individual independence. See John Rawls, Justice as Fairness: A Restatement (Cambridge: Harvard University Press, 2001), pp. 114–15, 177. This complicated topic warrants further discussion since it goes to the main difference between the classical and high liberal traditions.)

Among nations, the United States is distinctive in that it celebrates as part of its national consciousness the Lockean model (some would say “myth”) of creation of political society by original agreement among free (and freeholding) persons, all equally endowed with certain natural rights. Modify this national story slightly (mainly by substituting a web of bilateral contracts for the social contract, and eliminating the duties it entails) and we have the essential makings of libertarianism. Perhaps this explains why libertarianism is such a popular and peculiarly American view. However slight these modifications may seem, their effects are far reaching, for what we have in libertarianism is no longer liberalism, but its undoing.