This is the third part of my response to Mona's post on Libertarians and Democrats at QandO. (First part here; second part here.) As I said before, I am not an expert on libertarianism. I will try to depict it accurately, but I have not done a huge amount of research on the foundations of libertarianism before writing this. If I misrepresent libertarianism, it's unintentional, and I hope people will correct me.
In Part 2, I argued that justice requires a set of rules governing (among other things) property, rather than ad hoc interventions to create some preferred outcome, that property is a social construct, and that no specific set of rules governing property constitutes a presumptively legitimate baseline, deviations from which require a special justification. All sets of rules are on a par, including the set that defines unrestricted property rights.
In this post, I want (finally!) to get to the question: which set of rules is just? And how does my answer to this question differ from libertarians'? I'm going to get there by deferring the question of justifying my claims; I've decided that if I don't cut to the chase, I may never get to the end of this. (Short version: Rawls.) But first, a few short notes.
(1) Note that when I say that some consideration should lead us to adopt one rather than another set of rules, this does not imply that I think that that consideration can also be used to justify violations of the rules. For instance, suppose I were in charge of considering changes to the rules of baseball. I might think that one reason to accept a proposed rule change is: that it would make the game better (more exciting, with more opportunities for the display of baseball-like athleticism and skill, etc.) But taking this as a reason to adopt some new rule in no way commits me to thinking that when a particular game would be more exciting if some player were given a fourth strike, the umpire should give him one. How many strikes someone gets is laid out in the rules, and if you accept the rules of baseball, you accept that players get three strikes no matter how exciting it would be if they had four. The question what would justify changing the rules is a different question altogether, and one's views about how to answer it do not imply anything about one's willingness to see those rules broken.
(2) Because we are discussing rules and their effects over the long term, all comparisons will of necessity be rough. This is true of any consideration of policy changes: in considering raising the minimum wage, for instance, you can say something about the effects on the lives of minimum wage workers, jobs, and so forth; but you can't say anything like: in ten years, Sebastian will be making $1.08/hour more, while von will be making $.67/hour less.
(3) Unlike many libertarians, I do not regard taxation as prima facie illegitimate. If some municipality decides, through democratic procedures, to tax its citizens for the purpose of providing everyone with cotton candy, I think that's incredibly stupid, but I do not think it's illegitimate. This means that what I'm about to describe is not, according to me, the sole condition under which government programs can be legitimate. It is something more like: my central guiding star.
The reason I originally thought it would be interesting to describe my differences with libertarians is that we agree on so much, and yet end up in quite different places. I agree with libertarians that each of us has the right to decide for ourselves what kind of life is best, and to try to live that life. I agree that government action should take the form of formulating rules, not ad hoc interventions in support of some preferred outcome. And, crucially, I agree that in answering the question 'which set of rules is best?' the answer turns on which will do the best job of securing our freedom. That's a lot to agree on.
The difference, obviously, comes in when we ask what exactly we mean by 'freedom'. As far as I can tell, libertarians think that freedom is not being coerced by other people, either directly or through various organizations including the government. I, by contrast, think a person is free to the extent that she has the opportunity to live the sort of life she chooses. Luckily for me, Liz Anderson has already explained the differences between these two conceptions of freedom, and some of the arguments in favor of the second. I'll draw on her posts, and use some of her examples, in what follows.
Consider traffic laws. They interfere with our freedom in all sorts of ways: telling us that we cannot drive on the left side of the road, that we can go through an intersection with a traffic light only when that light is green, that we have to yield at certain intersections, etc. Moreover, they have the coercive power of the state behind them: violate these laws in the presence of a police officer, and the state will help itself to some of your hard-earned money. If your view of freedom is: not being interfered with, then these laws diminish your freedom.
On the other hand, the traffic laws are incredibly useful. They protect our lives, for starters; but they also allow us to get places much faster than we would if intersections were gridlocked; if we had to creep slowly around corners, never knowing on what side of the road an oncoming vehicle would be; etc. It would give a whole new meaning to the phrase 'defensive driving'.
If your view of freedom is: not being interfered with, then these benefits do not increase your freedom. After all, the fact that you travel at a snail's pace is just a prudent response to the free choices of others, and the gridlock at intersections is just the result of a set of free choices by others that have unfortunate collective consequences. Even the accidents are not intentional interferences with anyone's freedom, unless they were deliberate: life has its unfortunate moments, but those moments do not constitute interference unless someone is asserting and exercising control over you. For this reason, as far as I can see, someone who thinks that government interference with individual freedom can be justified only when it is necessary to protect us from greater interferences by others (e.g., murder, assault, theft, or invasion) should regard the traffic laws as illegitimate.
If, on the other hand, your view of freedom is: having opportunities available to you, then you will think that (reasonable) traffic laws are not just OK; they actually enhance our freedom. They eliminate some opportunities that are comparatively insignificant: the opportunity to drive on the left without being ticketed, for instance. But they enable opportunities that matter a lot, such as the opportunity to get where you're going reasonably quickly and safely, not to mention all the opportunities afforded by the time you do not have to spend staring at someone else's rear bumper. (And that's not even getting into the accidents.)
Consider public health. Public health requires spending government funds to provide things like clean water and sewage treatment, which prevent all sorts of communicable diseases. Diseases, however, are not a form of interference by someone (unless you were deliberately infected, a scenario that I'll omit from now on.) When you get sick, no one is interfering with your freedom, or telling you what to do. When you are taxed, by contrast, the government is taking your money away. If your view of freedom is: not being interfered with, then public health expenditures diminish your freedom.
If, on the other hand, your view of freedom is: having opportunities available to you, then public health expenditures are a clear winner. You lose opportunities as a result of paying taxes for water and sewage; however, you gain a lot more opportunities as a result of not getting seriously ill or dying.
Finally, consider private property. I argued in my last post that property is a social construction. For those of you who disagree, consider the vast difference between the kind of inchoate sense of ownership that one might have in the state of nature and the system of private property in any developed country. If you do not think that the former uniquely specifies some particular legal system of rights and protections, then you should think that significant aspects of private property are socially constructed.
Rather than making this argument myself, I'll just quote Liz Anderson:
"Now here's the rub: the fundamental freedom-based justification for private property has exactly the same form as tbe freedom-based justification for traffic laws. So it depends on accepting a conception of freedom as opportunity, rather than freedom in the formal sense of non-interference. For suppose our conception of freedom were simply that of non-interference. Then the state of perfect freedom would be the earliest stage of Locke's state of nature, in which all the earth is held in common and everyone has a right to take whatever they want from it. No one would have the right to coercively exclude anyone else from the use of any part of it, since that would involve interference with their freedom of action. This entails that in the state of perfect freedom-as-non-interference, no one would be entitled to private property.
(Remember, if freedom is to be our foundational value, then private property has to be justified in terms of freedom, and we can't help ourselves to any prior notion of natural rights to property, against which we define a moralized notion of non-interference with antecedently given rights. That would be begging the question. Granted, in the perfect state of freedom-as-non-interference, people couldn't seize your body, or take what you are physically holding or wearing, without coercively interfering with your freedom of action. But if they just seized those acorns you had gathered and left on the ground for a moment, they would not be interfering with you. No coercion would have taken place, since they would not have achieved their aims by bending your will to their desires. Locke didn't start with any antecedently given conception of natural rights to property, either. Rather, he justified natural rights to property in terms of their instrumental value in enabling people to advance their moral duties under the fundamental moral law--to protect, preserve, and promote human life.)
The trouble with trying to justify private property in terms of freedom-as-non-interference is that private property essentially involves securing the owner's opportunity freedom at the expense of everyone else's freedom-as-non-interference. This has to be a losing argument, if freedom-as-non-interference is the freedom that matters. For private property essentially involves the use of coercive power to exclude others from using it. It essentially involves coercive interference, or the threat of interference, with everyone else. Common property in the earth and in things does not have this feature. Viewed from the static point of view of freedom-as-non-interference, the institution of private property involves a net loss of freedom. (...)
The fundamental freedom-based argument for private property is dynamic and opportunity-based, not static and formal. From a static point of view, private property entails a net loss of formal freedom of action, just as traffic laws do. From a dynamic, opportunity-based point of view--one that considers the consequences for future freedoms of these sacrifices of formal freedom--properly designed private property regimes dramatically expand people's real freedoms (opportunities). Give up a little formal freedom-as-non-interference, and get a big and growing bundle of opportunity freedoms in return. Hayek was right: this is a spectacular bargain. But to grasp it as a bargain from the point of view of freedom, you must embrace a conception of freedom as opportunities, not merely as non-interference."
For those of you who don't accept this argument, consider intellectual property instead. If I copy your idea, I do not harm you directly. I do diminish your ability to profit from it, but (on libertarian views as I understand them) no one is entitled to have the world set up in such a way that she can get the greatest profit from everything she does. That's why, if I get a job that you had also applied for, I do not directly harm you. We do not prohibit people copying other people's ideas in other areas in which it might really matter to them that their ideas be available to them alone: we do not, for instance, let dancers or gymnasts keep others from using moves they have perfected, or enable high school students to sue their peers for copying their taste in clothes. On a libertarian view, as I understand it, it would be wrong to do any of these things.
So why is it not also wrong to keep people from copying other people's inventions? If your view of freedom is: having opportunities available to you, then, again, the answer is clear: a system of intellectual property creates incentives for invention and innovation, and this enhances everyone's opportunities. If your view of freedom is: not being interfered with, however, it's not clear at all that intellectual property isn't just a form of government coercion.
As the preceding examples illustrate, one apparent difference between freedom as non-interference and freedom as opportunity is that the latter is something we can maximize, whereas this is a lot less clear about the former. (That is: it's clear that in some cases interfering with people's freedoms will produce gains in opportunities; it's less clear that interfering with their freedom can produce gains in non-interference.) If the government outlaws murder, it deprives me of my freedom to kill people at will. But, according to libertarians, this isn't a right I ever had anyways, and so it's not clear that we should describe this as the government interfering with my freedom in order to protect me from a greater interference. Taxing people in order to provide for the national defense or the police is a better case: here, I lose a certain amount of property in order to gain greater security. Interference is, in this case, justified by its results.
But taking freedom as opportunity clearly provides much greater scope for justifying government interventions by claiming that they enhance freedom, all things considered. I accept this -- which is why I am pro-traffic laws, pro-public health spending, and pro-intellectual (and other) property (which does not mean that I am in favor of extending copyright and patent protections every time Mickey Mouse is about to enter the public domain.)
In reading the comments to libertarian blogs, I sometimes see claims that if we accept something like the government's right to act to promote opportunities, then we're on a slippery slope towards socialism: once we start allowing government functions above the night-watchman state, there's just no stopping! I think this is wrong -- exactly as wrong, and for the same reasons, as the claim that once libertarians start claiming that some government programs are wrong, we'll be on a slippery slope to anarchy, without any way of justifying the police or the national defense.
If someone wants to object to libertarianism on the grounds that they have no principled way to distinguish taxation to pay for the police from taxation to pay for free TVs for everyone, and thus that when they argue that the latter are unjustified, they leave themselves with no way consistently to defend even a minimalist state, fine. But it's wrong to just say: "gee, you've started arguing that programs can't be justified; where will it end? In anarchy, that's where!" Libertarians have a view about which programs can be justified and which can't; that being so, we need to argue against that view rather than ignoring it. Likewise, I have a view about which programs can be justified and which cannot. If someone shows that that view itself leads to socialism or totalitarianism, that's one thing. But just waving the specter of socialism or totalitarianism around, as though I did not have such an account, is just wrong.
So what, you might be wondering, is that view? Basically, I think that the rules we live by should be designed in such a way as to allow all citizens the greatest possible freedom to set their own course and live the lives they think best, over the course of their lives. "The greatest possible freedom" is constrained, here, both by what is physically possible and by the requirement that all citizens, not just, say, me, should have as much freedom as possible. If setting up the rules in such a way that some people have more opportunities than others increases the opportunities available to everyone, then I'm for it. If, however, it requires that some people's opportunities be sacrificed in order to provide more opportunities for others, I'm against it.
Note two things about this: first, it's a criterion for choosing rules, not a way of justifying ad hoc interventions; and second, it measures opportunities over the course of one's life.
Clearly, in order to give any content to this idea, one needs at least a rough way of saying what counts as a gain in the opportunities available to people, and how important that gain is. Some ways -- e.g., figuring out which opportunities really matter as far as the best possible way of living one's life is concerned -- would put the government in the business of deciding what sort of life is best. This would itself interfere with freedom, and, as I've said, I have no interest in allowing the government to do any such thing. Instead, I (obviously following Rawls) take the following tack.
First, I think that securing our freedom to live the kinds of lives we want to live involves prohibiting the government from doing certain things that interfere with it in particularly important ways. Thus, slavery should be prohibited; both the rule of law and the legal rights required to maintain it, and a democratic political system and the civil rights needed to maintain it, should be guaranteed; and the government should not be allowed to interfere with freedom of speech, of the press, of religion, or of conscience, though it may ban certain forms of e.g. religious conduct when they interfere so significantly with the freedom of others that such interference is needed for the protection of others. (E.g., religions involving human sacrifice.)
Second, there are things that are useful for all sorts of purposes. For instance, a legal system of private property creates opportunities for people with all sorts of different conceptions of the kinds of lives that are most worth living, as do fair and efficient markets for labor and capital. Likewise, spending on public health, access to health care and having a decent education increase people's opportunities regardless of what their specific conception of the good life is.
I think that the rules should be set up so as to provide access to these sorts of all-purpose opportunity enhancers, insofar as this is possible. In the case of a legal system of private property, what's needed is just the creation of such a system. In the case of fair and efficient markets for labor and capital, what's needed is the creation and enforcement of the various regulations that ensure the efficiency and fairness of those markets. (E.g., accounting requirements for publicly traded firms.) In the case of education and health care, by contrast, they may require government programs, if those prove to be the most effective means of ensuring access to the goods in question. In all cases, however, these laws or programs are justified by the fact that they secure the greatest possible freedom for all.
Money is, I think, a special sort of all-purpose means. I think that once we have satisfied the conditions already mentioned, we should try to set things up in such a way that the least well off have as much money as possible. To the extent that inequality works to provide incentives that benefit everyone, either by motivating people to do useful things or by discouraging behavior that benefits no one, fine. But given a choice between two systems, one of which provides greater rewards to the most well off but less to the least well off, while the second makes the poorest a little less poor at the cost of reducing the benefits to the rich, I think we should choose the second. (Note that in figuring out the effects of both systems, you have to take into account the effects of markets and incentives on everyone's well-being.)
The reason for this is not that I want to secure equality of outcomes. I don't. I think that people make choices, and that they can choose to squander their opportunities. I do think that we should try to set things up in such a way that such choices, while bad, do not permanently blight people's lives.* But I do not feel any particular obligation to ensure that people who decide not to take advantage of their opportunities nonetheless have as much money as the rest of us.
The reason is, rather, that having money is a part of having opportunities. Under any set of rules involving a market economy, some people will be compensated more than others. In some cases, this will be because the first group work harder than the second, or in some other way 'deserve' to be compensated more. But in a lot of cases, it will simply reflect the fact that whatever it is that they do commands higher wages. And this will often have nothing whatsoever to do with desert, or having made intelligent choices, or what have you. Often, it will just be the sort of luck that leads, say, a pure mathematician who never gave a thought to getting rich to suddenly find her field in great demand because of its implications for cryptography, or one inventor to get rich while another who spent as much effort inventing the same device does not, simply because the first got her patent application in three days earlier.
Any set of rules that meets the conditions already in place will have civil and legal rights and freedoms, property, markets, and access to health care and education. If there are several sets of rules that meet these conditions, we need a way of choosing between them. According to me, we should choose the one that tends, over time, to ensure that those with the fewest opportunities available to them have as many opportunities as they can. This, I think, is what it means to say: we should try to ensure that everyone has as much freedom as is consistent with everyone else having that same freedom (or more.)
Finally, there are what I think of as policy questions, which include things like traffic laws. Being able to get from one place to another quickly is a good thing regardless of one's specific conception of the life one wants to lead. (Note that traffic laws do not e.g. prevent you from taking the long way home, or from dawdling in winding country lanes; they just allow you to move quickly as well.) But this (unlike access to health care) probably wouldn't make it onto anyone's list of the all-purpose means to be protected. And while it's pretty clear that most people do not in fact place a lot of value on the ability to drive on either side of the street at will, this isn't obvious a priori.
In this case, I think we should say: we, as a society, can decide that certain opportunities (e.g., the opportunity to get from one place to another quickly) matter a lot, and certain others (e.g., the ability to drive on either side of the road at will) really don't, and so we regard gaining the first at the expense of the second as a clear gain.
I'm most comfortable with this line of argument under the following conditions: first, what is at issue is a public good: something that everyone benefits from, whether they pay for it or not, the way everyone benefits from traffic laws. Second, the value of the opportunities to be gained, or the insignificance of those to be lost, really don't depend on any specific view of what sorts of lives we should lead. Since I don't believe that the government should be in the business of saying which sorts of lives we should lead, a decision (taken by the majority) that the ability to work only with Southern Baptists is very important, while the ability to make a living if you are not a Southern Baptist is not is, I think, clearly wrong. But I don't think that distinguishing the traffic laws from the Southern Baptist example is beyond our capacities. The ability to work only with Southern Baptists is not a public good, and its value does depend on a specific answer to the question: what sort of life is best.
This sort of argument, I think, extends beyond traffic laws. For instance, consider food safety. Personally, I prefer not dying of food poisoning to taking the time to check all my food for contamination, bacteria, and so forth. But I also prefer any reliable set-up whereby the government does this testing and I pay for it to my doing the testing myself, and would be willing to pay some more taxes in order to pay for this. ('Reliable' here means: this set-up does a good job of maintaining food safety.)
The reason I feel this way is, basically, that I have better things to do with my time. My conception of the life I want to lead does not involve extensive testing of food purity; it involves teaching, research, blogging, community service, birdwatching, playing guitar, and all the other things I normally do. Given my preference for not dying, I would sacrifice some of these activities in order to protect my life; but if there's some way of ensuring food safety that leaves me the opportunity to do other things with my life, and that is not ruinously expensive, I'm all for it.
Note that this is not about my being willing to give up responsibility for leading my life to the government. I am trying to give up a chore in order to free myself to do the things I really want to do. There's no more reason to think that this will diminish my responsibility than there is to think that hiring an auto mechanic instead of doing all the repairs myself will do so.
As with traffic laws, most people would probably prefer that testing for food safety be an optional pursuit -- one that they could engage in if they felt like it, rather than one on which their lives depended. And most people are probably willing to pay some amount for this. That, at any rate, is my explanation of the fact that outside libertarian circles, very few people seem to regard the FDA as a threat to their freedom, and when they do, they are more often motivated by the fear of the Slippery Slope to Socialism than by the idea of government food safety programs themselves.
In cases like this, I think: when public goods are at issue, we, through our representatives, can legitimately decide that we value the freedom to be gained by some government measure over the freedom lost by it. In so doing, we gain freedom, and we are exercising our responsibility rather than abdicating it.
The upshot of all this is that while I agree with libertarians on a lot of things, chief among them the centrality of freedom, I end up with very different views about the sorts of government policies that can be justified because I take a different view of what freedom is. As some of the examples I used make clear, I am not sure how libertarians would explain what they mean by freedom in such a way that they can justify such (apparently) benign things as traffic laws and intellectual property without also providing the basis for a justification of national health insurance. I feel pretty confident that I'm just missing something here, but I'm not sure what it is. So I'm counting on the libertarians here to fill me in.
I do think, however, that this might help libertarians feel slightly more at ease among the Democrats. Knowing that there are Democrats who are serious about justifying their views on the basis of a concern for freedom, and who, while no doubt mistaken, at any rate do not have a completely absurd view of what freedom might consist in, might be some comfort. More importantly, though, thinking about the role of Democratic programs in securing freedom might to some extent reconcile libertarians to them a bit. (I mean: even if I'm all wrong about what freedom really involves, I don't think I'm wrong to suggest that access to health care is what you might call a freedom-related program activity. It's plainly relevant to freedom that we be alive and in reasonable health. And many Democratic programs are related to freedom in this way.)
However, I'll stop now, and await correction.
*Footnote: In saying that I think that we should try to set things up in such a way that bad choices do not permanently blight people's lives, I'm thinking of things like battered women's shelters. By making it possible for a woman to leave her abusive husband without, for instance, having to live on the streets with her kids, they make a disastrous marriage less likely to utterly ruin her life and the lives of her children, and thereby increase her opportunities. Someone might wonder whether, by lowering the cost of disastrous choices, we might not encourage people to make more of them, to which I can only say: first, this is a choice that it's pretty easy to get wrong (not at all like deciding not to work for a living), and second, while shelters may lower the costs, they are a long, long way from making this choice cost-free. In any case, the effects on incentives would have to figure in the justification of any such program: if, when all is said and done, they leave people worse off, then according to me they are wrong.
(This footnote used to be in the main text, but I thought it needlessly complicated its original paragraph, so moved it down here.)