In their thought-provoking piece, Matt Zwolinski and John Tomasi (henceforth Z&T) argue that the most prominent version of contemporary libertarian thought — that represented by the Unholy Trinity of Mises, Rand, and Rothbard (I’m not sure why Z&T don’t include Nozick, since most of what they say about the first three applies much more obviously to him) — departs from the historical tradition of classical liberalism in a number of respects that are largely to the newer version’s disadvantage.
Pinning down precisely what Z&T take the differences to be (as well as in what respects they take them to be defective) is surprisingly difficult, however. Here’s a list of some of the points to which they appeal:
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
But I worry that Z&T run some of these together, or seem to, or at least write in such a way as to make readers likely to do so; so it’s important to see that they’re distinct. One could say yes to (a) but no to (b), for example, if one thought that self-ownership was easily overridable; one could say no to (c) but yes to (d), if one thought (as, e.g., Rand did) that justice was a principle of interpersonal morality broader than respecting rights; and one could say no to (e) but yes to (f) if one thought that the poor would do better in a genuinely freed market than under a welfare state. (This latter point is one that Z&T eventually stress toward the end of their essay, but in the opening section it would be easy to get the impression that they are urging a negative answer to (e) and thus to (f).)
In any case, it’s not entirely clear what distinction is intended to be drawn by invoking the factors on this list. The initial impression we get is that the Unholy Trinity (Mises, Rand, and Rothbard) all answered yes to these questions while older liberal thinkers generally answered no; but Z&T are quick to admit that this is not actually so. Noting in a footnote that Mises “argues primarily from a principle of economic efficiency rather than self-ownership” and so does not fit their categories, they explain that they are “calling attention to the shared institutional perspective of these thinkers” rather than the “moral foundations of their view.” But the only items on the list that concern institutions are (e) and (f), and Z&T themselves acknowledge that while Mises says yes to (f), he says no to (e). So it’s a mystery how Mises gets inducted into the Unholy Trinity in the first place. In any case, if Z&T are really concerned only with institutional perspectives rather than moral foundations, why do they bring up the other items on the list in the first place? What precise set of issues is it that is supposed to divide the sheep from the goats here?
I don’t think their characterisation of the other two members of the Unholy Trinity is quite right either. While admitting that Rand and Rothbard agree with Mises that a “society-wide system of voluntary exchange will be materially beneficial for all citizens,” Z&T insist that this fact plays no role in moral justification; for Rand and Rothbard, “the sole justification of laissez-faire is its respect for the natural rights of man. The fact that capitalism benefits the least well-off is just a happy coincidence.”
This characterisation of their views is radically incomplete, however, inasmuch as it leaves out the fact that, for both Rand and Rothbard, natural rights are themselves grounded on considerations of benefit. This is famously true of Rand, who based her ethics on the need of each person to seek his or her own benefit, such benefit being defined in Aristotelean fashion as that which furthers one’s own life as a rational being. But it is no less true of Rothbard, likewise an Aristotelean, for whom natural rights are based on natural law, which in turn is a “science of happiness” that “elucidates what is best for man — what ends man should pursue that are most harmonious with, and best tend to fulfill, his nature.”
Neither Rand nor Rothbard, then, is a strict deontologist of the Nozickian sort; both of them ground natural rights in an ethic that is understood to be beneficial to each person who practices it, whether rich or poor. When Rothbard uses the “happy coincidence” language, he is referring to additional benefits beyond those already invoked in determining our natural rights. (Admittedly the “happy coincidence” terminology is somewhat unfortunate, especially if one holds as I do that moral theory should be driven by both deontological and consequentialist considerations, each serving to shape the contours of the other via mutual adjustment, so that their final convergence will be no coincidence; nevertheless, the term does capture the familiar but striking phenomenon that deontological and consequentialist considerations tend to converge to a considerable degree already, even prior to mutual adjustment.) Thus while none of the Unholy Trinity places special emphasis on benefit to the poor, all three not only regard libertarianism as beneficial to all people (including the poor), but they also make use of such benefit in their justification of libertarian principles — a fact which seems to me to weaken some of the distinctions that Z&T are attempting to draw.
It’s also worth pointing out that Rothbard revived, and made central to his political theory, the class analysis approach pioneered by such 19th-century liberals as Thomas Hodgskin, Augustin Thierry, and Lysander Spooner, that focused on the ways in which wealthy elites owe their position to government intervention at the expense of the less affluent (thus making differential access to state power, rather than differential access to the means of production, the basis for class rule). As Rothbard writes:
[W]hile big business would indeed merit praise if they won that bigness on the purely free market … in the contemporary world of total neo-mercantilism and what is essentially a neo-fascist “corporate state,” bigness is a priori highly suspect, because Big Business most likely got that way through an intricate and decisive network of subsidies, privileges, and direct and indirect grants of monopoly protection.
Any discussion of Rothbard’s concern for the less affluent is surely incomplete without a recognition of the class-analysis dimension of his thought.
Z&T point to Milton Friedman and Friedrich Hayek as more reasonable alternatives to the Unholy Trinity — more consequentialist and friendlier to state action. While this is broadly accurate, it must be remembered that neither of them was a pure consequentialist in any straightforward sense; Friedman wrote that “Desirable or not, any end that can be attained only by the use of bad means must give way to the more basic end of the use of acceptable means,” and Hayek’s Law, Legislation, and Liberty is essentially a book-length statement of the same principle. It’s likewise worth noting that Friedman and Hayek both became increasingly antistatist over the course of their careers (Hayek to the point of saying that if he were younger he would be an anarchist). Certainly there are important differences between Friedman and Hayek on the one hand and the Unholy Trinity on the other (just as there are important differences within each grouping), but these differences do not seem to line up neatly with Z&T’s categories.
I also find unconvincing Z&T’s attempts to draw sharp distinctions between contemporary libertarians influenced by the Unholy Trinity on the one hand, and libertarianism’s pre-20th-century precursors on the other, with the latter friendlier to social justice and less friendly to absolutist property rights. If the claim is simply that, say, 19th-century classical liberals were often more “left-wing” — more explicitly aligned with such causes as feminism, antiracism, and the labor movement — and that contemporary libertarians would do well to follow them in these respects, then I certainly agree. But I cannot follow Z&T when they say that “none of the early liberal thinkers treated property rights as moral absolutes, and thus none of them was forced by axiom to deny that concern for the poor was a legitimate consideration in institutional design.”
First: I’m not sure whether treating property rights as moral absolutes means treating them as ungrounded or treating them as non-overridable (or at least nearly so). It’s true that that no early liberal thinkers treated property rights as ungrounded, but no contemporary libertarian thinker does so either. And if “absolute” instead means non-overridable or nearly so, then there are surely quite a few property absolutists among early liberal thinkers, including Hodgskin, Spencer, Bastiat, Molinari, and Spooner. The historical distinction that Z&T are trying to draw is one I simply don’t find sustainable by the historical evidence.
Second: the phrase “and thus none of them was forced by axiom to deny …” implies that if one does treat property rights as non-overridable or nearly so, then one is necessarily prevented from treating concern for the poor as “a legitimate consideration in institutional design.” Yet once again, this ignores the possibility (despite their acknowledgment of its actuality in discussing Mises and Spencer) that concern for the poor might itself be part of the grounding for the absolute property rights that are in turn appealed to in institutional design.
I’m puzzled by Z&T’s treatment of several specific historical figures as well — namely Locke, Smith, and Spencer.
With regard to Locke, I find especially baffling Z&T’s attempt to read contemporary public-reason liberalism into his thought. Yes, Locke certainly upheld the “essential freedom and equality of human beings,” with its corollary rejection of any “natural authority or subordination among men.” But where on earth do they find in Locke the claim that “any authority or subordination that emerges — including the kinds involved in enforcing a system of property rights — must be justifiable to each man by his own lights”? It seems to me that several different aspects of Locke’s theory are being run together.
On the one hand, the institution of the state must rest on the consent of those who are to be governed by it, precisely because the establishment of the state involves the suppression of competition (which Locke — mistakenly — thinks is required for the suppression of the right to be a judge in one’s own case); but here the consent required is actual consent, not the hypothetical consent implied by the public-reason use of “justifiable.” On the other hand, the kind of force used simply in defense of person and property, whether by individuals or by the state, does not for Locke require justification, either actual or hypothetical, in terms of each individual’s “own lights”; it is justified in terms of natural law, and if natural law diverges from some people’s “own lights,” so much the worse for the latter. For Locke, it is precisely because there is no natural subordination among people that it is legitimate to use force against those who seek to subordinate others by aggressing against their persons or property.
As for the Lockean Proviso, this is grounded on property rights — the residual property rights of the human community, inheritors of God’s grant to humankind of dominion over the earth — rather than on straightforwardly consequentialist grounds; and here again the constraint is that people’s actual rights under natural law be respected, not that their possibly mistaken “own lights” be so.
Z&T might also have mentioned in support of their case Locke’s apparent endorsement (I say “apparent” because the precise interpretation of the passage is controversial) of welfare rights at First Treatise of Government IV.42; but Locke’s reason for endorsing welfare rights is that in this way the affluent are prevented from making themselves masters over the destitute — so this positive right is grounded in a negative right not to be subordinated, not in anything like a public-reason approach. (Similar remarks apply to Spencer’s treatment of land rights at Social Statics IX.)
With regard to Smith, while there are certainly consequentialist aspects to his thought, they should not be overemphasized. David Hume had argued that the value of justice lay in its effects on society as a whole. Smith explicitly rejected Hume’s account, maintaining instead that although we sometimes “have occasion to defend the propriety of observing the general rules of justice by the consideration of their necessity to the support of society,” yet it is really the “intrinsic hatefulness and detestableness” of unjust acts “which originally inflames us against them,” inasmuch as “they are the natural and proper objects of hatred and detestation”; and we find ourselves driven to appeal to the social consequences of injustice, rather than its intrinsic wrongness, only when we are trying to convince people who, through “the corruption [or] vanity of their hearts,” are unmoved by the greater reasons and so must be met with the lesser ones. Rather Rothbardian sentiments, these.
Smith further distinguishes sharply between the negative virtue of justice and the positive virtue of beneficence: “Beneficence, therefore, is less essential to the existence of society than justice.” A “violation of justice … does real and positive hurt to some particular persons” and is thus “the proper object of resentment, and of punishment.” Justice is a “negative virtue” that “only hinders us from hurting our neighbour.” Thus someone who “abstains from violating either the person, or the estate, or the reputation of his neighbours,” Smith tells us, “fulfils … all the rules of what is peculiarly called justice, and does every thing which his equals can with propriety force him to do, or which they can punish him for not doing. We may often fulfil all the rules of justice by sitting still and doing nothing.” The “mere want of beneficence,” by contrast, merits “no punishment from equals.” It may legitimately be punished by a superior, and thus the “civil magistrate” is empowered to “prescribe rules, therefore, which not only prohibit mutual injuries among fellow-citizens, but command mutual good offices”; here indeed we leave Rothbardian territory. But what the civil magistrate commands is still beneficence, not justice, and his right to command it is grounded, for Smith, not on human equality but on inequality.
With regard to Spencer, the contrast that Z&T draw between his work and that of the Unholy Trinity is especially puzzling, given that Spencer seems so close a precursor to their perspective. Did Rothbard derive all of justice from a single libertarian principle? So did Spencer. Did Spencer allow considerations of benefit to shape that principle? So, as we’ve seen, did Rothbard. Did Spencer acknowledge the existence of positive (non-enforceable) charitable obligations over and above negative individual rights? Again, so did Rothbard.
Incidentally, despite their overall defense of Spencer, I am sorry to see Z&T fall in with the long and shameful practice by Spencer-bashers of quoting Spencer’s infamous line about the poor (“If they are sufficiently complete to live, they do live, and it is well they should live. If they are not sufficiently complete to live, they die, and it is best they should die.”) while omitting the first sentence of the immediately following paragraph (“Of course, 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.”), thus giving the impression that Spencer is advocating letting the poor die off when the whole point of the passage is to explain why he’s not advocating that. As they rightly point out, Spencer believes we have duties of beneficence (both positive and negative) in addition to our duties of justice. This didn’t stop Spencer from having a highly “axiomatic” approach to justice, an “absolutist” approach to property rights, and a strong prohibition against governmental regulation and welfare programs.
And if being in favor of charity makes Spencer a bleeding-heart libertarian, then Rand was a bleeding-heart libertarian too; after all, it was Rand who wrote that the “idea of hardships being good for character and of talent always being able to break through is an old fallacy,” since “success requires both talent and luck,” and “the ‘luck’ has to be helped along and provided by someone.” Such help “not only provides human, decent living conditions which a poor beginner could not afford anywhere else,” Rand explains, but also “makes a beginner feel that he is not, after all, an intruder with all the world laughing at him and rejecting him at every step, but that there are people who consider it worthwhile to dedicate their work to helping and encouraging him. Isn’t such an organization worthy of everyone’s support?”
Again, I don’t mean to deny that there are interesting differences between Unholy-Trinity-style libertarianism and its pre-20th-century precursors; but these differences are complicated, cutting in various different directions, and do not seem to align in any straightforward way with the distinctions that Z&T are inviting us to draw.
While insisting that a concern with consequences or social justice need not mean a readiness to accept a greater role for the state, Z&T nevertheless point, as a model for future libertarian theorizing, to contemporary libertarian thinkers like David Schmidtz and Gerald Gaus, who, whatever their (in fact considerable) merits, are surely friendlier to state action than are the types of libertarian that Z&T mean to criticize — thus reinforcing the impression that to accept the moral upshot of Z&T’s arguments is to become less intransigent in opposing state power. Hence it’s worth pointing out that there are plenty of contemporary libertarian thinkers who place considerable emphasis on consequences (e.g., Randy Barnett, Jan Narveson, and our fellow symposiast David Friedman), or on social justice and the needs of the poor (e.g., Kevin Carson, Gary Chartier, and Charles Johnson), who nevertheless end up with far more thoroughgoingly antistatist positions than, e.g., Mises or Rand.
With regard to moral foundations, I concur with Z&T that considerations of benefit must play a role in shaping the requirements of justice; but I think it must also be a two-way street. I am firmly in agreement with what I regard as the crucial insight of classical Greek ethics, namely that justice is an internal, not just an external, means to human welfare, and that is one reason that I cannot follow Z&T in regarding the neo-Rawlsian approach as the “gold standard of contemporary theorizing about social justice”; it is too one-sided. Rawlsians, like utilitarians, take the content of human benefit as given (whether objectively or subjectively) apart from the content of justice, and then try to shape justice in accord with it. But ever since Plato showed that no one counts as just unless she regards justice as constitutive of, not merely as causally conducive to, human welfare, we’ve all known, or should have known, that considerations of justice must play a role in shaping our conception of what counts as a benefit. Justice and benefit stand in mutual determination.
Another of my reasons for not embracing the neo-Rawlsian approach as the “gold standard of contemporary theorizing about social justice” is that it is deficient in class analysis and lacks a theory of exploitation. It’s odd that in documenting 19th-century liberals’ concern for the poor, Z&T say nothing about the 19th-century liberal appeal to class-based exploitation as an explanation of the plight of the poor — especially since one of them (Zwolinski) has written sympathetically on this topic elsewhere.
I think 19th-century liberal class theory, and its revival by Rothbard and others, offer a more compelling approach to social justice than the relatively anemic Rawlsian variety. As I’ve written elsewhere:
[T]he advantage, as I see it, of the historical challenge to existing inequalities is that it lays bear the class structure of society, and the roots of such inequalities in state violence. Merely pointing to the fact that some people have a lot more than others is less compelling as a critique; it invites the response “So what? Those who have more aren’t hurting anybody; you’re just appealing to envy.” By contrast, being able to show that those who enjoy a higher socioeconomic status have to a considerable extent achieved and maintained that status by forcibly expropriating and oppressing the less affluent provides for a far more effective indictment.
I don’t mean to be claiming merely that appeal to the historical approach is more rhetorically effective … My point is that the historical critique correctly identifies what is surely a morally relevant fact, and one that end-oriented critiques tend to ignore: namely, that in many, many cases those who have more are getting it at the expense of those who have less. Now of course utilitarian and Rawlsian approaches may also make the claim that, in some sense, those who have more have it at the expense of those who have less; but in order to substantiate that claim without appealing to historical (i.e. causal) considerations, they have to defend a baseline of equality. My present argument is not that such a defense is impossible, but only that the need to defend it places an additional and somewhat recondite burden on end-oriented challenges to inequalities — whereas the historical challenge, by identifying past and ongoing acts of violent expropriation rather than merely pointing to the existence of differential shares, provides a much more straightforward, intuitive, and unambiguous basis for condemning the present structure of wealth distribution in “capitalist” society.
In conclusion, I think that both classical liberalism and contemporary libertarianism, at their best, exhibit simultaneously a commitment to social justice and a more or less absolutist, self-ownership-oriented theory of property rights. We don’t have to choose: we can be bleeding-heart absolutists.
 For my own views on the concept of social justice, see my “Proletarian Blues.”
 Murray N. Rothbard, The Ethics of Liberty (New York University Press, 1998), p. 12.
 For fuller discussion, see my “Why Does Justice Have Good Consequences?”
 Quoted in Peter Klein, “Rothbard on Big Business.”
 Milton Friedman, Capitalism and Freedom (University of Chicago Press, 2002), p. 22.
 Sudha R. Shenoy, “The Global Perspective.”
 See my “Libertarian Feminism: Can This Marriage Be Saved?,” co-authored with Charles Johnson.
 See, for example, Herbert Spencer’s call for workers’ cooperatives to replace hierarchical capitalist firms at Principles of Sociology VIII.20.
 David Hume, Treatise of Human Nature III.ii.
 Adam Smith, Theory of Moral Sentiments II.ii.22-23.
 Ibid., II.ii.17.
 Ibid., II.ii.5.
 Ibid., II.ii.9.
 Ibid., II.ii.8.
 Herbert Spencer, Social Statics XXVIII.4.
 Ayn Rand, Letter to Marjorie Williams (18 June 1936); in Michael S. Berliner, ed., Letters of Ayn Rand (Dutton, 1995), pp. 31-33.
 For these latter, see Gary Chartier and Charles W. Johnson, eds., Markets Not Capitalism: Individualist Anarchism Against Bosses, Inequality, Corporate Power, and Structural Poverty (Minor Compositions, 2011).
 For further details, see “Why Does Justice Have Good Consequences?,” op. cit.