Property Absolutism and Social Justice

We thank Alexander McCobin for reminding us all of the pitfalls of the ideological purity game, in which some in the movement present themselves as “more libertarian than thou.” We agree.

In our book, therefore, we argue that libertarianism cannot be defined by any rigid set of necessary and sufficient identity conditions. Instead, we think of libertarianism as a family of views. Like any family, the libertarian family has different branches, sometimes tangled and overlapping, yet each with unique characteristics. Here we find a family line the carries the chin of a studious great uncle. There, a branch with the intense eyes of a difficult aunt. We then imagine ourselves being asked to design facial recognition software to pick out the common characteristics—eyebrows and nose, hairline and chin—of this diverse clan. We propose six soft concepts that, when conjoined in any of a great variety of ways, might make our libertarian recognition software go “ping.” So our identificatory system is engineered to be capacious. (We might add that we are skeptical of attempts like Alexander’s to demarcate “real libertarians” by way of a single-sentence definition—but we sincerely do not wish to fall into less-playing-the-ideological-purity-game-then-thou gamesmanship.)

What’s the Difference (in) Principle?
Roderick Long isn’t sure just what difference we were trying to draw in our original essay between the libertarianism of Mises, Rand, and Rothbard and their predecessors in the libertarian intellectual tradition. And Roderick helpfully distinguishes between a number of different theses that seem to wind through our view:

a) whether property rights are based on self-ownership

b) whether property rights are absolute or nearly so

c) whether the requirements of justice are exhausted by individual property rights

d) whether the concept of social justice is to be rejected

e) whether “the moral justification of free market institutions is logically independent from any claims about the effects of those institutions on the material holdings of the poor”

f) whether a “significant role for the state in the provision of a social safety net” is to be rejected

To summarize our response, our project is not at all concerned with (a), nor (as far as we have thought it through) with (c). (d) and (e), however, are quite closely related and are of central importance to our argument, and (b) and (f) are also related though of somewhat secondary importance.[1]

In short, we think it unfortunate that libertarians such Rand, Rothbard, and Mises are hostile to the idea of social justice. And we regret that, due largely to their tremendous influence, this hostility toward social justice has come to be seen as an essential feature of libertarianism as such. This hostility is philosophically unwarranted and, in a sense we specify, historically at odds with the mainstream of the classical liberal tradition.

How did this hostility become a defining feature of contemporary libertarianism? Part of the explanation, no doubt, has to do with the real inadequacies of the theories of social justice against which libertarians were reacting. Such theories were very often economically naïve, proposing means inadequate for the ends they hoped to achieve and utterly neglecting the difficult problems of institutional design under nonideal conditions. But, as David Friedman reminds us, theories of social justice face philosophical problems as well. There are a variety of ways of spelling out just what “social justice” amounts to, and many of them will be, in the final analysis, philosophically indefensible. Libertarians are, for example, correct to reject the goal of equality of outcome, not simply for the economic reason that its attempted realization faces severe knowledge problems and generates perverse incentives, but because it is a morally unattractive goal, and one whose pursuit appears to require morally abhorrent means. Most important, until very recently, all theories of social justice were developed from the assumption that little or no moral weight should be assigned to the economic rights and liberties of capitalism.[2] This was a massive moral failing of 20th century theories of social justice. Again, libertarians were quite right to react adversely to that feature.

However, there is a darker factor that contributes to the antipathy of many contemporary libertarians toward social justice. It is this dark factor within postwar libertarian thought that we find philosophically vulnerable and historically anomalous: a monistic and absolutist focus on property rights as an issue of political morality.

Property Rights—The One and Only Solution to All Problems of Political Morality?

Property rights have, of course, always been an important part of the libertarian intellectual tradition. But libertarians more typically think of property rights as one consideration among others relevant to the great moral question of the proper size and scope of the state. Not merely one consideration among others, perhaps, since property rights have often (and rightly) been identified as being especially important moral considerations, both because of their intrinsic nature and their instrumental effects (indeed, in the libertarian facial recognition software we propose in our book, we describe a concern for property as the characteristic nose of the libertarian family—front a center). But property rights were more often conceived of neither in monistic terms as the only relevant moral consideration, nor in absolutist terms as necessarily trumping in all circumstances any potentially competing considerations.[3] Libertarianism prior to the twentieth century was, as we noted in our original essay, a much less systematic political theory. But it was also, and partly in virtue of its lack of systematization, a far more pluralistic moral philosophy—one that embraced a less parsimonious but (in our view) potentially more sophisticated view of the messy terrain of morality.[4]

For contemporary libertarians, the question of social justice is simple. Any conception of social justice that requires the violation of property rights through redistributive policies is a non-starter. There is no issue of balancing competing moral values, no distinction (often) between more or less morally weighty types of property, no question of the relative urgency of the need to be met compared with the seriousness of the infringement upon property rights involved. Property rights settle all questions, and settle them decisively.

For earlier libertarians, matters were rarely so simple. Their pluralism did not by any means commit them to social justice, since many of them were writing before that concept even existed (we are in no way claiming that pre-twentieth century libertarians were really crypto-proto-Rawlsians). Rather, our point is that there are elements in their theories that suggest that concern for the poor played a justificatory role in their libertarian theories, and that there is nothing in their theories (such an absolutist commitment to property rights) that is incompatible with a commitment to social justice, properly understood.

Sometimes, the pluralism of earlier libertarians was explicit. Adam Smith, in a passage quoted by Roderick, defined justice in libertarian-friendly terms as a purely negative virtue—requiring nothing more than leaving other people alone. But Smith did not hold that the enforcement of justice was the only proper role of the state. Smith saw other moral considerations that bear on the question of what states should do, and in at least some cases these other moral considerations trumped the requirements of justice. Consider, for instance, Smith’s endorsement of legal restrictions on the issuance of small notes by private bankers—a practice he saw as susceptible to dangerous fraud and instability:

To restrain private people, it may be said, from receiving in payment the promissory notes of a banker, for any sum whether great or small, when they themselves are willing to receive them, or to restrain a banker from issuing such notes, when all his neighbours are willing to accept of them, is a manifest violation of that natural liberty which it is the proper business of law not to infringe, but to support. Such regulations may, no doubt, be considered as in some respects a violation of natural liberty. But those exertions of the natural liberty of a few individuals, which might endanger the security of the whole society, are, and ought to be, restrained by the laws of all governments, of the most free as well as of the most despotical. The obligation of building party walls, in order to prevent the communication of fire, is a violation of natural liberty exactly of the same kind with the regulations of the banking trade which are here proposed.”[5]

But pluralism is not always explicit. Sometimes pluralism can be achieved by incorporating diverse moral considerations into a single consideration like property rights. Consider the case of Robert Nozick. Roderick was puzzled as to why we left him of our “Unholy Trinity” of postwar libertarians. But Jason Sorens has already provided the answer: Nozick, despite appearances, was not a property rights absolutist in the relevant sense. Sorens bases his claim on Nozick’s endorsement of a modified Lockean Proviso. That proviso says that appropriations of previously unowned goods are legitimate only if they do not worsen the position of others (Nozick, p. 178). But, for Nozick, the proviso also includes a “historical shadow” which “excludes his transferring [his legitimately acquired goods] into an agglomeration that does violate the Lockean Proviso and excludes his using it in a way, in coordination with others or independently of them, so as to violate the proviso by making the situation of others worse… (p. 180)” So not only does the proviso forbid one’s appropriating the only watering hole in the desert and charging whatever one wants for the use of it; it forbids charging whatever one wants for the use of a watering hole that becomes the only watering hole in the desert by virtue of all the others drying up.

Now there’s a sense in which this is still a monistic, absolutist property rights version of libertarianism. Technically, Nozick is not saying that property rights sometimes have to yield in the face of desperate need. Once we know what the property rights are in the watering hole case, we know everything we need to know in order to settle the political morality of the situation. But the monism and absolutism of Nozick’s theory is only skin deep. Desperate need isn’t taken into account as a separate limiting factor on property rights only because it has already been built into the theory of property rights.

Indeed, Nozick’s incorporation of the Lockean Proviso incorporates a whole host of moral considerations into his theory of property. In explaining why a system that allows the permanent appropriation of unowned resources does not worsen the situation of non-appropriators, for instance, Nozick appeals to the following “familiar social considerations”:

[Private property] increases the social product by putting means of production in the hands of those who can use them most efficiently (profitably); experimentation is encouraged, because with separate persons controlling resources, there is no one person or small group whom someone with a new idea must convince to try it out; private property enables people to decide on the pattern and types of risks they wish to bear, leading to specialized types of risk bearing; private property protects future persons by leading some to hold back from current consumption for future markets; it provides alternate sources of employment for unpopular persons who don’t have to convince any one person or small group to hire them, and so on. (p. 177)

This passage is crucial for Nozick’s case for private property and free markets – not because that case rests ultimately on utilitarian considerations, but because Nozick has to appeal to the beneficial consequences of private property to show that the proviso is satisfied. But what this shows isn’t just that Nozick rejects property monism and absolutism. It shows that Nozick is fundamentally committed to something not so far removed from the idea of social justice. The fate of the poor plays an essential justificatory role in his defense of private property. Nozick’s Lockean Proviso insists that private property and free markets are only justifiable if those who fare least well under them don’t fall below a certain baseline of welfare. Now, that’s a far cry from Rawls’ insistence that we maximize the position of the least well-off. And we can quibble about whether the baseline ought to be somewhat higher than how one would fare in the raw state of nature. But once we’ve reached that point, we’ve already determined what kind of theory Nozick’s is. Now we’re just haggling over the price.

Our concern with Rothbard and Rand is thus not that they are deontologists, whereas we prefer thinkers who are (more) consequentialist such as Milton Friedman and F. A. Hayek. Consequentialism vs. deontology is not the issue. The real issues are monism vs. pluralism, and absolutism vs. non-absolutism.[6] There is nothing objectionable about a position that says that individuals own themselves and should not be coerced, as long as this statement is recognized as a kind of moral rule of thumb that must give way when moral considerations of sufficient weight are brought up against it.[7] Consequentialist moral theories are particularly well-known for being open to this sort of moral cost-benefit analysis. But nothing in the willingness to engage in such analysis commits one to consequentialism, strictly speaking. Pluralism is a garb that consequentialism wears with ease, but that cloth hangs naturally on deontologists and natural rights theorists too.[8]

A Brief Note on the Matter of Herbert Spencer

Roderick rebukes us for citing a passage from Spencer that seems to approve of the death of the incompetent, without citing the passage after it that says that “in so far as the severity of this process is mitigated by the spontaneous sympathy of men for each other, it is proper that it should be mitigated.” We are duly chastened. But our point was not to make Spencer look bad.[9] Our point was to show that Spencer tended to say things that made it easy for his critics to make him look bad. And this he did. Perhaps the passage immediately following the one we cited makes Spencer look a little better. But, then again, the passage immediately prior to it makes him look a little worse:

He on whom his own stupidity, or vice, or idleness, entails loss of life, must, in the generalizations of philosophy, be classed with the victims of weak viscera or malformed limbs. In his case, as in the others, there exists a fatal non-adaptation; and it matters not in the abstract whether it be a moral, an intellectual, or a corporeal one. Beings thus imperfect are nature’s failures, and are recalled by her laws when found to be such.

A charitable reading of all this can, perhaps, dig up a defensible point. But Spencer seems to be trying to give his readers every excuse he can to not make the effort, and instead to write him off as a heartless monster. And while Roderick is probably right that most people haven’t bothered to read it, Spencer’s follow-up point that if people feel inclined to save the stupid and idle from dying then, well, that’s OK too, probably does little to assuage their concern.

Social Justice for Libertarians

So Spencer thinks charity can be a good thing, and we agree. But if that were all he had to fall back on, the case for putting him on the side of the angels would be pretty weak. Thankfully, it isn’t. Spencer’s main point isn’t to deny that the relief of suffering is a proper role of the state because private charity can take care of it. His main point is that the state (and private persons) should allow suffering because in a lot of cases it’s good for people—including the ones who suffer! And this comes pretty close to the kind of public reason story that even advocates of social justice could, in principle, agree with. If a regime that allows individuals to suffer the natural consequences of their bad decisions produces less suffering overall, or less intense suffering by those who suffer most, then it can be endorsed even by one who thinks that the fate of the least well-off plays an important justificatory role in political philosophy.

Which brings us to social justice. David Friedman trenchantly critiques the maximin decision rule that lies at the heart of John Rawls’s theory of social justice. We think David makes a good point. But social justice survives no matter what one thinks of Rawls’ view.[10] To make conceptual space for a libertarian account of social justice, we take Hayek as our guide.

Most libertarians think of Hayek as a great critic of social justice. After all, Hayek wrote a book called The Mirage of Social Justice. But less often noticed is that, in that book, Hayek distinguishes two approaches to social justice, one of which he rejects and one of which he affirms. In popular discourse, claims about “social justice” are often invoked to criticize particular patterns of distribution. If the pattern does not match up to some preferred distributional standard, advocates of social justice typically demand state action to redistribute goods so that the morally desired pattern of distribution is achieved.

Hayek, in our view correctly, rejects this approach to social justice. A more sensible approach sees social justice as a standard for evaluating not particular distributions but institutional systems considered as integrated wholes. So while deriding the former (more common) use of “social justice” as conceptually confused, Hayek affirms the importance of “social justice” in the latter sense: “there unquestionably also exists a genuine problem of justice in connection with the deliberate design of political institutions, the problem to which Professor John Rawls has recently devoted an important book.”[11]

Social justice, understood this way, may direct us to evaluate social and economic institutions in part by considering what distributional effects they tend to produce.[12] But because justice is a standard that applies holistically to institutional systems rather than to the particular distributions that happen to emerge there, social justice need not call for constant liberty-limiting interventions on the part of government agencies so as to achieve or preserve some preferred pattern of holdings. This point is fundamental to the approach to social justice made famous by Rawls—though, as we explain below, it was actually was pioneered by Hayek. We note with interest that Hayek grasped this deep point while Rawls’ hallmate Nozick apparently did not. (Indeed, again unlike Nozick, Hayek even understood that, on Rawls’ own view, particular interventions to “correct” freely generated distributional patterns to make them conform to some ideal pattern would typically be forbidden by social justice).

Why does this matter? Well, if social justice is a property of institutional systems rather than of particular distributions, then people who affirm the moral importance of economic liberty have no immediate reason to fear that an affirmation of social justice commits them to advocating (or even allowing) government programs that violate those economic liberties. Instead, like Rawls and Hayek, the affirmation of social justice commits us to ask general questions about rival social systems: namely, considered broadly, and over time, what sorts of social systems tend to help people, to make the best of people’s creative capacities, and to encourage the tide of wealth to rise high, so that even the lowest paid workers do well? Now, the Rawlsians claim that socialist, social democratic, or welfare-statist institutions are best fit to generate that desired state of affairs. How strange if libertarians should hesitate to send out market-society to challenge them on that claim![13]

But if social justice is a property of institutions rather than distributions, what exactly is social justice?[14] According to Hayek, and much later Rawls, justice is something like fairness. That may seem airy fairy, but Hayek suggests a method by which we might make bring it to ground and then build it up more precisely. In a stunning footnote in The Mirage of Social Justice, Hayek reports that he began thinking of justice as fairness as early as 1940. In London during the bombing, Hayek was facing the problem of deciding which country he should send his children to for safety. This led Hayek to develop a thought experiment that he believed might provide a way for us to model the requirements of social fairness: “we should regard as the most desired order of society the one we would choose if we knew that our initial position in it would be determined purely by chance (such as the fact of our being born into a particular family).”[15] Decades later Rawls would propose a similar device of representation which he called the “original position.” But libertarians should know their family history: Hayek proposed this first. Indeed, we hereby invite our readers to join us in referring forevermore to Rawls’s device as “the (un)original position.”

Keeping David Friedman’s worries about maximin in mind, we note that there is reasonable debate about precisely which decision rule it would be appropriate to ascribe to the parties in the Hayekian/Rawlsian original position. The key, though, is to track the idea of fairness. And one plausible way (though certainly not the only way) of tracking fairness is to ask Hayek’s question: if you did not know your particular place in society, which type of social order do you think would be most attractive for you to live in? The social order that wins that prize is awarded the crown of social justice.[16] We urge our fellow libertarians to enter the ring and compete for that crown. Again we ask: why not?

Notes

[1]We believe in a negative answer to (d) and a negative answer to (e). Indeed, we say no to (d) because of our negative answer to (e). An affirmative answer to (b) has, in our view, led many libertarians to say yes to (d) and (e), whether logic requires them to do so or not (the case that it does seems stronger for (d) than for (e)). And while saying no to (d) and (e) does not logically entail saying no to (f), it does provide some support for it, and saying yes to (d) and (e) would entail saying yes to (f).

[2]John Tomasi, Free Market Fairness (New York: Princeton University Press, 2012).

[3]This is, of course, an imperfect generalization. As Roderick’s response essay pointed out, there are certainly some pre-twentieth century libertarians who might plausibly be characterized as property rights absolutists. Lysander Spooner, perhaps, or Auberon Herbert in his later writings. The details of these individuals’ thoughts, and the extent to which they serve as counterexamples to our general thesis, are of course of great interest to us in our larger project. And we are happy to pursue such details further in this ongoing conversation. But so that we might maintain some semblance of brevity and focus, we leave them unexplored in this particular essay.

[4]What David Friedman said about his own moral view thus seems to us to fit much libertarian thought prior to the twentieth century. “The implications of my moral intuitions are not as tidy as the theories of Rand or Rawls or, for that matter, Bentham. But then, I know of no a priori reason to expect the truth, in moral philosophy or anything else, to always be simple.”

[5]Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, II.2.94.

[6]This is why we included Mises in our list. Mises is a consequentialist, but he nevertheless appears to be a kind of property rights absolutist.

[7]Of course, probably all but the most implausible “absolutist” theories allow their absolute requirements to be overridden in some circumstances. Nozick makes explicit allowance for overriding side-constraints in cases of “catastrophic moral horror.” And Rand argued that it was a mistake to apply the rules of conduct for normal human existence to emergency or “lifeboat” situations. So perhaps absolutism falls somewhere on a continuum.

[8]On this, we are in complete agreement with David Friedman, who writes that “The version of libertarianism that seems most plausible to me is one where respecting rights is seen as a good thing, a value in itself as well as a means to other values, but not as a value that trumps all others.”

[9]One of us, in fact, has written in defense of Spencer.

[10]For one suggestion regarding how libertarians could retain the spirit of Rawlsian social justice while distancing themselves from the implausible details of the particular two principles of justice Rawls settles on to embody that spirit, see Kevin Vallier, “Neo-Rawlsian Libertarianism: Two Principles of Justice for Bleeding Hearts.”

[11]Mirage, 100.

[12]For a discussion of this point in the context of Nozick and Hayek’s critiques of social justice, see Matt Zwolinski, “The Libertarian Critique of Distributive Justice.”

[13]The questions we list here do not identify a unique and precise standard for judging between alternative social systems. Is that social system best which maximizes the primary goods of the least well off (representative) person, as Rawls suggests? If so, what precisely goes on the list of primary goods? And which groups of persons get represented? Do we include paraplegics? Or should we reject the Rawlsian approach altogether in terms of a prioritarian or sufficientarian approach to social justice? We do not propose to answer these questions here. Doing so would require defining and defending a particular conception of social justice. Our purpose, in contrast, is to argue that libertarians should be open to the general concept of social justice—that the justice of social institutions depends, in part, on their distributional effects, and in particular on their effects on the worst-off members of society.

[14]We are grateful to Luca Gattoni-Celli for recently pressing this question. (Hey there, Luca!).

[15]Mirage 132. For a fuller account of Hayek’s original “original position, see Tomasi, Free Market Fairness, Chapter 5, “Social Justicitis.”

[16]A bit more precisely: a socially just social order would secure foundational protection for a set of basic liberties that prominently includes the economic liberties of capitalism, and the institutions that emerge (or are otherwise put in place) there should allow people to interact in ways that benefit all the responsible and cooperative members.

    Also from This Issue

    Lead Essay

    • A Bleeding Heart History of Libertarianism by Matt Zwolinski and John Tomasi

      Matt Zwolinski and John Tomasi propose to refocus the libertarian movement. Although they agree that individual property rights are important, they propose to return libertarianism to its nineteenth-century intellectual roots. They argue that the classical liberals valued property rights for different reasons, perhaps, than we in the movement value them now: Property rights were intended to protect the least well-off workers in society. A “neoclassical liberal” would not advocate a welfare state, but would certainly value social justice; his means of attaining it would be through the institutions of property and contract.

    Response Essays

    • In Praise of Bleeding Heart Absolutism by Roderick T. Long

      Roderick T. Long criticizes the sharp distinctions drawn by Zwolinski and Tomasi between nineteenth-century classical liberals and the “Unholy Trinity” of Mises, Rand, and Rothbard. He suggests many areas in which the earlier thinkers were not as Zwolinski and Tomasi characterize them, as well as several where Mises, Rand, and Rothbard don’t conform either. Long stresses the importance of class analysis in the thought of nineteenth-century classical liberals and points to its resurrection as a key aspect of Rothbard’s thought in particular. This, he suggests, points the way toward a “bleeding-heart absolutism” – an ideology critical of every form of state power, yet also prioritizing the moral claims of the poorest in society.

    • Natural Rights + ? by David D. Friedman

      David Friedman argues that the pre-twentieth century classical liberals were motivated not by a concern for the poor per se, but by utilitarian reasoning. The “working poor” were a large majority of society in their time, and authors like Adam Smith must be read in their historical context. Doing so reveals Smith to be a progenitor of Jeremy Bentham, not John Rawls. Utilitarianism brings problems of its own, of course, but it should not be confused with social justice.

    • Let’s Reject the Purity Test by Alexander McCobin

      Alexander McCobin argues that libertarians often engage in unproductive debates about who or what is “more” libertarian. One thing lost in these debates is that, across the wide sweep of intellectual history, significant libertarian figures have usually felt free to draw from a wide array of justifications and policy approaches. Each was a product of a particular historical era, and there is no reason to find fault with any of them simply on that account. To advance liberty, we should think and write about libertarian principles in terms that unbiased observers will find persuasive today.

    The Conversation