Libertarian Sympathies; J. Fulda

For many of us, also, libertarianism arises from deep-seated philosophical convictions about the nature and dignity of man and the way the world works. These convictions are variations on three themes. The first is the spiritual case for liberty: that men are naturally born with free will and that it is, therefore, both their right and their duty their unique destiny - to use this God-given ca pacity to choose among alternatives, for good or for bad, for happiness or for unhappiness provided, of course, that in so doing they in no way remove others' free will. The second is the moral case for liberty: that Joseph S. Fulda, a regular contributor to The Freeman, is Assistant Professor o.fComputer Science at Hofstra Univer sity and resides in Manhattan. the use of force, except in self-defense-indi vidual or collective-is simply wrong. This understanding of the inviolable nature of the rights of man arises directly from a conception of his dignity.

The third is the empirical case for liberty: that a free society promises the greatest good of the greatest number, that freedom truly works. Unlike the spiritual and moral premises, which to many are self-evident, the way the market place works to our benefit is often subtle. It is, for example, not obvious that the benefits of productive advances are greatest for the poor, 1 that distribution-of-income figures do not show a permanent underclass in capitalist society, 2 that we benefit most from the liberty of others and in ways we can barely imagine, 3 that gov ernment programs are necessarily wasteful, 4 that the market is self-regulating if given the chance, 5 and that the beneficiaries of state ac tion are so often visible and well-organized, while those who lose as a result of state action are either not visible or are so diffuse a group as to make it difficult and unprofitable to or ganize. 6 Because of these and other subtleties, it is usually necessary for those who espouse the freedom philosophy to make a separate, empir ical case against each existing or proposed gov ernment program or regulation. This can be not only exasperating, but also particularly difficult for functions government assumed long ago, because it is hard to know just how the market -coordinating the spontaneous responses of many millions of people-would today handle 104 THE FREEMAN. MARCH 1988 these functions. Thus a grounding in economic history, as well as in economic theory, is needed to provide much of the empirical case for private schools, privately owned streets, voluntary charity and relief, privately provided economic security, privately coined money, bank notes, and the like.

Nevertheless, given enough such examples, the individualist convinced of both the spiritual and moral case for liberty will accept the em pirical case as well. In so doing, he will add to the· claim that liberty is a virtue, the further claim that liberty is a blessing which promotes human happiness. These three philosophical themes taken together both support and are supported by the primal appeal of freedom that is basic to so much of our personalities. There is a great danger, though, when the primal appeal of liberty is not accompanied by philosophical conviction. For then the tempta tion arises to use government to expand liberty, rather than to destroy it. Of course, the use of force cannot-by definition-expand liberty, but there are a great many with libertarian sym pathies, perhaps including most Americans, but without a sufficient grounding in theory, who think that it can. We might call them social lib ertarians and their idea, oxymoronic as it is, socialized libertarianism.

To them, as to Lord Acton and philosopher economist John Stuart Mill, liberty means freedom not just from coercion, but also from the opinions, customs, and traditions of the many. To gain such freedom from the valua tions of others, a social libertarian may well be tempted to advocate state coercion not seeing, for the moment, that, as Hayek so beautifully exposits in The Constitution ofLiberty, the em pirical case for freedom holds true of the very opinions, customs, and traditions he feels (but is not coercively) bound by? and that, in any case, state action violates the spiritual and moral constraints on coercion he normally ac cepts. This blind spot is particularly notable and noticeable in the case of invidious discrimina tion against members of a minority group. Even those, such as the American Civil Li berties Union, who normally make a very strong case for the freedoms of association (which include the freedom not to associate) and the right to privacy (which includes the right to scrutiny-free relationships) are tempted to make a major exception where invidious dis crimination is concerned.8 The philosophicalli bertarian, in contrast, distinguishes carefully between persecution and discrimination and while prohibiting the former with all the force of the law and the state, leaves the latter subject to moral opprobrium by the citizenry and to the powerful rectifying institutions of the market place.9 Social libertarians also might advocate that employers not be allowed'to test employees for drugs or truthfulness and that landlords not be allowed to prohibit cohabitation, kids, pets, or washing machines. Both landlords and em ployers, they advocate, should be required to act neutrally to any attribute of tenants or em ployees, respectively, that is not relevant to tenancy and employment, respectively.

Arguments similar to those made about em ployers and landlords were made, and were al most totally successful, about the stewardship function of colleges and universities toward their students, and for such public accommoda tions as mass transit, restaurants, and the like. In each of the above cases, although freedom of choice is clearly contracted, the choices available to the advocates of state action have equally clearly been substantially expanded, al beit at the expense of those whose freedom of choice has been contracted. This point is one which causes some anguish for the consistent proponent of liberty, for it is undoubtedly true that in many instances we are prevented from acting as we like or required to act in ways we do not like, even though no coercion is in volved. Yet both the employer's terms and the land lord's terms, as irrational, onerous, or even im moral as they may be, and as little as we wish to defend them, are tacitly accepted by the em ployee and the tenant in staying on at the job or in the apartment. What social libertarians would do, in essence, is replace the criterion of liberty with one of relevance and reasonable ness. If there are not good and sufficient reasons for the conditions attached to the job or the tenancy, they advocate that it must not be allowed to stand.

Furthermore, social libertarians argue, if socialized libertarianism is rejected on the ground that continuance in a position is tacit accep tance, why not try the principle one step further and respond that the coercive powers of the state are also tacitly accepted by anyone con tinuing to live within its borders? If there is a weakness with philosophical li bertarianism, the social libertarian continues, it is the narrowness of the definition of coercion. In their view, the employer or the landlord does exercise a form of coercion and one which is best prevented by coercion from the state.10 These are serious objections which must be addressed and which present difficulties for anyone who has ever held a job or a tenancy with irrelevant conditions (who has not?) or who has been denied a job or a tenancy for ir relevant reasons. The best response, though, is a simple ques tion: "Irrelevant to whom?" Or, "Reasons not thought good and sufficient by whom?" Ob viously not to the employer or the landlord whose liberty it is proposed to limit and whose property it is proposed to regulate. Further more, if the employer or landlord is wrong about the relevance of his conditions, as is sometimes surely the case, the market will exact penalties in higher salaries, lower rents, and the like. 11 Moreover, such an analysis does not even consider all the harmful side effects of the state's entering the picture, including the often-realized potential for the state to become the final arbiter of what constitutes good and sufficient reasons and what is or is not relevant to what, thus placing the state in effective con trol over housing and employment, an inevi table outcome that a social libertarian would surely deplore. 12 Finally, the tacit acceptance of a property owner's conditions-whether the ownership is of a corporation or of rental housing-is not akin to the state's claim over its resident cit izens. The state does have sovereignty-a mo nopoly on the retaliatory use of force within its borders-but it lacks, or should lack, ownerLIBERTARIAN SYMPATHIES 105 ship-a monopoly on the control and use of the property within its borders. Ownership arises by what Harvard philosopher Robert No zick has called "the entitlement theory," 13 which dates back to John Locke. 14 Sovereignty does not properly confer ownership, and in those polities where it is taken to include own ership, there is and can be no liberty.I5 And that is a tragedy which should convince the pro ponent of socialized libertarianism to acquire a taste for philosophical libertarianism and, de spite the temptation, not to compromise so sacred a principle as liberty for an expanded notion of freedom that must diminish the very liberty in whose name it is promoted. D 1. See, for example, Joseph Fulda, "Productive Advances: Who Benefits Most?" in The Freeman 37(July 1987): 251.

2. See, for example, George Gilder, "The Economy of Frustra tion," Wealth and Poverty (New York: Basic Books, 1981), pp. 9-20. 3. See, for example, Friedrich A. Hayek, "Freedom as Opportu nity for the Unknown Few," The Constitution of Liberty (South Bend, Indiana: Gateway Editions, 1972), Chapter 2, section 5, pp. 30-32. 4. See, for example, Milton Friedman and Rose Friedman, Free to Choose (New York: Harcourt Brace Jovanovich, 1980), pp. 115-119. 5. See, for example, Joseph Fulda, "The Market and Scarce Re sources" in The Freeman 34(August 1984): 497; Joseph Fulda, "Product Information on the Market" in The Freeman 36(January 1986): 29-33. 6. The classical example here is the tariff, although the principle holds true for virtually all government interventions. 7. Friedrich A. Hayek, "Custom and Tradition," The Constitu tion of Liberty (South Bend, Indiana: Gateway Editions, 1972), Chapter 4, esp. section 5, pp. 61-62.

8. For a clear statement of this, see George F. Will, Statecraft as Soulcraft (New York: Simon and Schuster, 1983), pp. 86-87. 9. See, for example, Milton Friedman, "Capitalism and Dis crimination," Capitalism and Freedom (Chicago: The University of Chicago Press, 1962), pp. 108-118. 10. Friedrich A. Hayek deals with this stubborn issue head-on in "Coercion and the State," The Constitution ofLiberty (South Bend, Indiana: Gateway Editions, 1972), Chapter 9, pp. 133-147. Space considerations prevent our recapitulating Hayek's discussion; never theless, his insight is essential for the philosophical libertarian con cerned with the essential principles of liberty, which, with Hayek, we take as "the absence of coercion. " 11. See note 9. 12. As an example of this usurpation, the state now regularly decides whether, and to what degree, gender is a relevant criterion in social and economic activity.

13. Robert Nozick, "The Entitlement Theory," Anarchy, State, and Utopia (New York: Basic Books, 1974), pp. 150-153. 14. John Locke, "Of Property," Two Treatises of Government (Cambridge: Cambridge University Press, 1967), 11:5:25-51. 15. See, for example, Joseph Fulda, "Liberty and Property," in The Freeman 37(May 1987): 175-178.