Personal Morality and Political Morality
Deontological liberals, of both egalitarian and libertarian varieties, often distinguish between two types or two different levels of morality. Some argue that justice, the moral principles governing (at least) the state,1 is the concern of liberal political philosophy. Another sort of morality – labeled “conceptions of the good,”1 “comprehensive doctrines,”2 or simply “what we commonly call morality”3 – operates in a different sphere and is generally held to be trumped by considerations of justice. While many liberal philosophers, such as G.A. Cohen,4 Susan Okin,5 and Thomas Nagel,6 debate about the firmness of this distinction, libertarian philosophers should take it very seriously. In this paper, I will explore the two realms of morality (which I call “political” and “personal” morality), showing the possibilities and limitations in distinguishing them from one another. In Part I, I formulate definitions of personal and political morality and show that a libertarian conception of justice requires absolutism in the sphere of political morality and neutralism in the sphere of personal morality. I discuss the appeal of personal moral neutralism (PMN), the view that people should be free to pursue their own personal morality, for libertarians. In Part II, I explore the limitations to PMN; in particular, I argue that, while the desire to leave people free to lead their own lives is at the heart of many libertarians’ reasons for holding their political beliefs, PMN can never be sufficient to establish the truth of the libertarian conception of justice. In Part III, I demonstrate the usefulness of PMN.
It is important to distinguish the view that political morality and personal morality are separate spheres from the view that principles of justice apply only to the state or the “basic structure of society,” (Rawls, John. A Theory of Justice, revised edition. Cambridge, Mass.: Harvard University Press, 1999. pp. 6-10.) a view Liam Murphy labels “dualism.” (Murphy, Liam. “Institutions and the Demands of Justice.” Philosophy & Public Affairs. Vol. 27, No. 4. 1999. p. 254.) Even monists (those who believe that justice governs all interpersonal interactions), like libertarians, can distinguish between the demands that justice (or political morality) makes and the very different sort of demands made by one’s personal morality. (Indeed, Murphy’s argument for monism only applies to end-result theories of justce. Murphy argues that it would be inconsistent to believe in an end-result theory, like the difference principle, without caring about whether that result, like maximizing the position of the worst-off class in society, is actually achieved. Libertarianism is not an end-result theory; there is no result that the libertarian state is to achieve.)
I employ PMN to formulate an ideal libertarian response to one crucial policy question – that of borders and immigration. In the end, I will conclude that PMN is a useful description of libertarianism, but cannot stand on its own, as outside conceptions are needed to clarify and establish the distinction between personal and political morality. Part I Before jumping ahead, however, it is crucial to set out working definitions of the terms of the discussion. “Political morality,” as I use the term here, is the set of moral principles dictating when it is and is not just to use force. Thus, in the case of libertarian political philosophy, political morality is the set of moral principles (i.e., acquisition, transfer, and rectification – plus moral equality and its expression through equal treatment by the state) which libertarianism entails; it is just the libertarian conception of justice.2 I call political morality’s counterpart “personal morality,” since unlike political morality, whose principles apply the same everywhere, a personal morality attaches to a particular individual. Fred’s personal morality is his own; Jill’s personal morality only has appeal to Fred insofar as it accords with his own moral reasoning. Personal morality is difficult to define. Personal morality can be described loosely as “how one leads one’s life,” the decisions that one makes for oneself – what to do (and not to do) with one’s own holdings, what agreements to reach (and not to reach) with others, with whom to (and not to) interact in certain ways. This includes both interpersonal decisions and decisions that do not involve others at all. (For example, some hold that what a person does alone, e.g. whether she develops her talents or becomes a couch potato, is a “moral” issue.) Call this the “broad” conception of personal morality. Indeed, on this formulation, there is no limit to what actions can be called “personal moral” decisions – every choice is a choice about how to use one’s body or
This, I should note, is a strange definition. Many individual actions, such as bar fights, fall within the realm of political morality. I choose the name “political morality” because no other type of morality can legitimately describe what the state may do, whereas personal morality does govern what individuals may do. What makes the state the state is that it governs the just retaliatory use of force.
property, even imminently minor choices like whether to order masaman curry or tom kha gai when at a Thai restaurant. However, this broad conception is not exactly the sense that libertarians mean when they claim that libertarianism leaves people maximally free to lead their own lives. As Shelly Kagan shows, the assertion that libertarianism maximizes liberty is hollow on its own; it requires a further clarification (and justification) of what liberty means.7 For a libertarian, personal morality includes any principle that anyone holds to be of “moral” significance that does not require for its realization the violation of a dictate of political morality – any “moral” choice except for unjustly using force. This definition, the “libertarian conception of personal morality,” requires further justification, as we shall see later. Someone is a “neutralist” in the personal moral sphere (is a “personal moral neutralist,” believes in “personal moral neutralism,” PMN) if she holds that people should be free to choose their own personal morality, consistent with the ability of others to do the same. I leave open for now the question of what sense of “personal morality” one is discussing or what one means by the crucial phrase “should be free to choose.” To a libertarian, to be free to choose a personal morality means to be able to live by any personal morality (in the libertarian sense) one desires, without being subject to force because of those decisions entailed by one’s personal morality. Thus, any individual libertarian will have her own personal morality to live by, and she might think that others should live by it too, but she will (as a libertarian) think that no one should use force upon others for their personal moral decisions, even those others who have chosen the wrong personal morality. The libertarian is like the free speech advocate who proclaims that though she disagrees with a person’s view, she will defend to the death his right to say it. If the libertarian thought that one should use force to punish or discourage personal moral decisions
(decisions that are permitted by the dictates of libertarian political morality), she would believe that using force upon people who have never initiated force is just – and thus she would not be a libertarian. Libertarians are thus, according to the definition and description I have just given, personal moral neutralists. Libertarianism, a political philosophy, is neutral between personal moralities; it has nothing to say about the correctness of personal moralities. It is important to distinguish PMN from theories that sound similar. T.M. Scanlon has spoken of the difference between “what we owe to each other” and “what is commonly called ‘morality.’” Many of Scanlon’s examples make his distinction sound like my distinction between political and personal morality. For example, sexual practices between consenting adults are in the realm of what we commonly call morality, but they do not involve what we owe to each other. But much of what Scanlon says we owe to each other would not be considered by libertarians to be in the sphere of political morality. Whether to save a drowning child fits under this description; the vast majority of us might find someone who failed to save the child repugnant, but this is a personal moral judgment; the failure to save the child does not make the non-helper liable to be punished with force. In other words, personal moral neutralism applies to much interpersonal action. Actions that have the consent of all parties whose holdings are in question are not questions of political morality. Thus, political morality is not simply Scanlon’s “interpersonal morality.”8 On the flip side, PMN is not an argument that applies to all personal (private, nongovernmental) action. Political morality, as I defined it, relates to when the use of force can be justified. This does not apply solely to the government’s use of force, but to the use of force by private citizens as well. Thus, libertarians are perfectly willing to invade the privacy of the home and family when such intrusion is done to punish violence or theft.
This fact about political morality has another consequence as well: libertarians cannot simply ignore arguments against their position simply because they are based on controversial conceptions of the good. Michael Sandel, responding to Rawls’ Political Liberalism, claims that Rawls refuses to answer arguments made from (for example) religious premises, simply because they rely on a controversial conception of the good.9 PMN admits that such a conception of the good could be right (and indeed some libertarians may hold it to be true), so the argument is not necessarily wrong. So libertarians need to refute the argument, at least the portion of the argument that justifies force. This can be relatively easy or difficult. It should prove fairly straightforward to explain why trying to convince others of your religion is okay, but beating up those that don’t share your beliefs isn’t; the libertarian need only give some justification for libertarian rights. This is unlikely to offend any religious individual. But it is much less simple to explain why abortion is permissible; the libertarian might have to refute a particular religious doctrine (namely that a fetus is a human life).3 I wish to present one further belief that PMN resembles, but is not. Unlike the others, a libertarian may adopt this view of personal morality, but need not. It takes us beyond neutralism and into the murky waters of relativism. This belief applies to the broad sense of personal morality, the sense in which all actions a person performs may fit under the rubric of personal morality. Libertarian political morality, as previously noted, is monistic; it applies to both state action and individual actions. So there will be many points at which political morality and personal morality in the broad sense intersect. Specifically, all of those individual actions that involve the use of force will be governed by both the absolutist dictates of political morality and the particular personal morality the agent holds.
Maybe not. If a fetus is a self-owning moral agent, it has both rights and liabilities. If it violated rights, it would have to be held responsible and liable to be punished. One could argue that embedding itself in the mother’s uterus and sucking nutrients from her body (as literal a parasite as one can imagine), it has violated the mother’s rights and a just course of action would be (should the mother choose) to remove it.
Imagine a person, Amy, who believes that libertarian political morality is true, yet acts in a manner apparently inconsistent with that belief. She steals bread from an innocent person in order to feed her starving family. Deontological libertarianism says that this action is unjust; no ends can justify using force upon an innocent person. Amy, we stipulated, agrees with this view; so she indeed views her own action as politically immoral. Morality is generally conceived of as giving agents reasons to act in certain ways; yet Amy’s political morality has not given her a conclusive reason to follow its dictates. Does this mean that the proofs offered Amy of libertarian rights (some of which, we can suppose, she posited herself) were wrong? Not exactly. But it does mean that there is a limit to what arguments in the realm of political morality can do. One thing they cannot necessarily do is motivate Amy to act. Only Amy’s personal morality can do that. Personal morality is entirely agent-based; Amy’s personal morality may be completely different from Joe’s. Only Amy’s personal morality will govern her actions; Joe’s personal morality only has appeal to Amy insofar as it accords with her own moral reasoning. Amy’s personal morality might include a belief that she should always act in accordance with principles of justice – but then again it might not. Amy might think that the same principles of justice are always true in every case, micro or macro, but that she should sometimes act unjustly. She might, for example, think that she should strive to ensure her own and her family’s well-being, while generally acting justly except in circumstances where the cost to her or her family’s well-being is too immense. Thus, Amy would acknowledge the injustice of her action, but the injustice itself would not provide her a conclusive reason to not do it. This conception of personal morality bears a striking similarity to Gilbert Harman’s defense of relativism. Harman contends that our “inner judgments,”10 judgments that a person should act in a certain way, “imply that the agent has reasons to do something”11 and is capable
of being motivated by those reasons.12 This account accurately describes personal morality. It also explains why one might believe in what I call personal moral relativism, the belief that one person cannot make a personal moral inner judgment about another’s action. I cannot say that it was personally morally wrong for Amy to steal the bread, for that assumes that Amy has reason to not steal the bread, but I cannot say this about Amy. Or she might have a reason to not steal the bread, but that reason may not prove conclusive for her (because other reasons outweigh). This, I should note, is agent-based relativism;13 I can still judge Amy by my own personal moral standards, but I cannot claim that she is capable of being motivated by my personal morality. One may think this would raise problems for political morality, for it seems to eliminate the possibility of calling some actions unjust. Harman’s relativism might be thought to apply to the sphere of political morality as well. But political morality is of an entirely different character than personal morality. Political morality does not need to provide any motivation for subjects to act in accordance with its principles. Indeed, principles of justice in a sense do not provide any agent-based normative dictate at all. Political morality does not say “Amy should not steal bread;” rather it says “If Amy steals bread, she will become liable to have an appropriate amount of force used upon her as punishment” and “if Amy does not steal bread, it would not be just to use force upon her.” (If one wonders about the meaning of the word “just” in the second sentence, one can assume that it recursively triggers the definition of justice again. That is, if someone used force upon innocent Amy, the force-user would be liable to have an appropriate amount of force using on her as punishment.) In other words, Harman is right: political morality is not necessarily capable of motivating action and so it cannot make inner judgments. But political morality need not make inner judgments to have strong normative implications.14 In other words, one can believe in personal moral relativism and still be a political moral absolutist.
If this speculation is correct then we can effectively explain Amy’s decision to steal bread without needing to claim that she is contradicting herself. Personal moral relativism can also explain Nozick’s decision to prosecute his landlord under rent-control laws.15 Amy’s and Nozick’s actions were unjust, but we cannot claim that they should not have performed them. We can say, however, that it is just to punish them appropriately for their actions and that we are entitled to do so. This belief in relativism is not essential to libertarianism. Instead, libertarians invoke the very different premise of personal moral neutralism, which they often phrase simply in the vague term “liberty,” in support of their views. They hold, for one, that state policy can never be justified on the grounds that such a policy promotes or disparages a certain personal morality. Deontological libertarians believe that protecting rights are the only legitimate grounds for state action. So the state cannot claim that its ban on the use of contraceptives is justified because such a policy reduces (or at least takes a stand against) promiscuity. Promiscuity, monogamy, and abstinence are choices that fall within the personal moral realm and so cannot be used to justify state policy. Even a just state policy, like outlawing rape, cannot be justified on personal moral grounds (for example, that nearly all rapists are men and only men deserve punishment). Moreover, libertarians hold that state policy, regardless of its intent, must be wholly neutral with respect to personal morality. Thus, libertarians are skeptical of gun control laws; though proponents might justify the laws on the basis of a desire to reduce rights-violating violence, the laws also restrict any legitimate choice one might make to hunt on one’s property or to collect weapons.16 The full force of this requirement is extraordinary; not only are mundane paternalist policies like seatbelt laws unjustified, but any range of policies that promote certain ideas over others. This, many libertarians argue, makes public education impossible17 and requires that
restrictions on the use of government property be designed very carefully. Indeed, libertarians are so intense in their commitment to PMN that they can object to redistributionist policies on PMN grounds. Any tax system that takes different amounts from different people does not treat all of its citizens equally; it is not neutral with regard to their plans of life. A progressive income tax takes more from those who pursue careers in which they earn more money. Bill Gates must pay more than Mother Theresa. Since state neutrality with respect to conceptions of the good is a value ostensibly shared with liberal-egalitarians, PMN is an appealing way for libertarians to present their views; they can argue that libertarian policies are essential to people’s ability to lead their own lives. Arguing from PMN grounds is appealing not only when responding to liberalegalitarians, but also when addressing arguments from environmentalists, unionists, feminists, the religious, the altruistic, and anyone else with strong views about personal moral questions. A libertarian can co-opt the critiques offered by one of these groups, adopting it as their personal morality. A libertarian who believes in local organic farming can say to environmentalist groups with similar beliefs, “I support your view. I will only purchase locally-grown food and shop at markets that also support local agriculture. I will even boycott supermarkets that sell conventional produce and refuse to associate with anyone who shops at such places. But it would be wrong to threaten conventional farmers and consumers with violence or theft to buy local, and it would also be wrong to use the coercive power of the state to nudge them in that direction.” So there is nothing contradictory in having a libertarian environmentalist, or a libertarian feminist, or a libertarian altruist for that matter. Indeed, one can even imagine a libertarian Marxist: someone who believes that people should not work for less than their labor’s value and that people should not engage in alienated labor, but who thinks that this decision cannot be forced
upon anyone. A libertarian might form a workers’ collective, but wish to include only likeminded members of the proletariat, not the bourgeoisie who don’t want to join. Robert Nozick pointed out this potential for a libertarian workers’ collective in a generally-neglected passage of Anarchy, State, and Utopia.18 But the point can be generalized as follows: a libertarian may consistently hold any view that does not require using force on innocents (or using excessive force on the guilty). Another way of putting this might be: a libertarian may consistently adopt any personal morality. This can happen because of the bifurcation of morality into a sphere where a person can be an environmentalist and a sphere where a person is a libertarian. The libertarian state only exists in the second sphere; it only makes claims about political morality. Subjects of a libertarian state may live according to any personal morality they choose. Within a libertarian state, one might theoretically find an infinite variety of diverse groups and individuals living very different lives. One might see atomistic hermits who never interact with another human being. One might also find Objectivists, relating to others only in non-altruistic, transactionbased ways. But, unlike some critics of libertarians imply,19 these are not the only two sorts of individuals one might find in a libertarian state. (I hesitate to use the term “libertarian society,” for “society” suggests a form of cohesion that it would be farcical to suggest a libertarian government would provide. As Nozick notes, to a libertarian there is no monolithic society with some overarching social good, but simply individuals relating to other individuals.20) The fact that nearly all more-than-minimal states would prevent atomists and Objectivists from leading the lives they choose, by forcing them to pay taxes to support others and interfering when they use their own property in ways the state prohibits, does not mean that libertarianism relies on a belief in the virtue of atomistic and Objectivist personal moralities. Libertarianism, a political-
moral philosophy, is neutral between atomistic, Objectivist, and other personal moralities. (Indeed, it is interesting to note that Objectivists critique libertarians for refusing to take a stance on personal moral questions.21) This becomes obvious when one examines the other personal moralities that may exist in our hypothetical libertarian state. Individuals might come together, either geographically or not, to form groups to discuss, mutually support, endorse, or even proselytize their belief in a religion, cause, or other personal moral philosophy or part thereof. One can imagine Hudderites and Amish living in their own communities, while cosmopolitans travel throughout the state and ’net geeks interact with others from their own homes. Homeowners’ associations may regulate Christmas displays (perhaps a single original owner leased her property to others on the condition that they put up tasteful Christmas decorations). Anti-sweat shop leagues may organize a boycott of Wal-Mart. Certain types of feminists may burn pornographic magazines and convince prostitutes to leave their jobs. None of these groups and none of their actions are any more un-libertarian than sewing clubs and their activities, for none of their actions are prohibited by libertarian side-constraints – none involve violence, theft, or coercion of innocents.22 So the libertarian state remains neutral between all those options, providing adherents of every view equal access to its services (protection from force) at an equal price. Since any action that does not violate libertarian side-constraints is permitted, and since the state treats no personal morality any different from any other, anyone may live by any personal morality they choose. The possibilities are as limitless as they can be; personal moralities are maximally unconstrained; the state is, to the maximum extent possible, a personal moral neutralist. Part II These are, so far, merely descriptive facts about a libertarian state. (Actually, as we shall see, they depend critically on accepting the libertarian definition of many of the terms involved.) 11
But one might see in the preceding paragraph the possibility for something greater: for the aforementioned feature of libertarianism, its personal moral neutralism, to justify libertarianism, to argue for its adoption, to establish the rights it claims, to prove the principles it comprises. Nozick himself appears to have this view. Philosophers routinely criticize Nozick for simply assuming the libertarian rights it appears his task was to establish.23 And, indeed, Nozick begins Anarchy, State, and Utopia with the assertion “individuals have rights, and there are things no person or group may do to them”24 and with the assumption of Locke’s state of nature for describing these rights.25 But it is wrong to say that Nozick never argues for these conclusions. In some sense, the whole book is designed to show the plausibility of deontological libertarianism (at least as compared to more popular philosophical alternatives). By refuting the claims of others, and by rebutting them in ways that would not similarly doom libertarian claims, Nozick does much to suggest the validity of libertarianism. Moreover, however, Nozick does suggest some positive reasons to believe in libertarianism. One reason is that a libertarian state – because of its personal moral neutralism – best satisfies the dreams of a utopia. In the oft-neglected Part III of Anarchy, State, and Utopia, Nozick argues that “the framework for utopia” he favors “is equivalent to the minimal state.”26 It will be useful for anyone curious about the power of PMN to follow Nozick’s reasoning in reaching this conclusion. Nozick begins Part III with his framework for utopia. “Imagine a possible world in which to live… Every rational creature in this world you have imagined will have the same rights of imagining a possible world for himself to live in” and so can leave your world if he can imagine one he likes better (but of course everyone in his world is similarly free to live).27 This is the right framework, Nozick claims, because we are seeking a utopia for all. “The best of all possible worlds for me will not be that for you.”28 Nozick’s framework allows for a utopia
without parasitism or exploitation. Each person is treated as free and equal: free to leave for wherever else they want and endowed with equal rights to do the same. The beauty of the framework is not that everyone gets precisely what they want, but that each person gets precisely what she wants consistent with everyone else doing the same. The framework is thus, Nozick thinks, not just a hypothetical idealization (like many other conceptions of utopia), but a possibility for the real world. Nozick attempts to show how the framework can apply to the real world. He begins with a premise that we may call the empirical fact of personal moral pluralism: that “people are different,”29 people give different weight to different values,30 and “people are complex.”31 One community with one set of principles could not possibly work out well for everyone.32 Succinctly put, people have different personal moralities. So, if our goal is to leave people maximally able to pursue their own good, consistent with the ability of others to do the same, we shall need a system that allows people to choose different goods and live by different moral codes.33 So the framework’s realization must have the result that we saw at the end of Part I of this essay that the libertarian state achieves: that it leaves people maximally free to choose their own personal moralities.34 Since a libertarian state realizes the utopian goal Nozick set out, it is equivalent to the framework for utopia. So, Nozick appears to be arguing, a libertarian state best promotes people’s ability to lead the lives they want, consistent with the ability of others to do the same. (For that is why the framework itself was justified.) So, Nozick seems to imply, libertarianism ensures utopia – the best of all possible worlds. Perhaps Nozick thinks that therefore a libertarian state is just. This line of reasoning would constitute a “proof” of libertarian rights. But Nozick appears not to make that leap here. Rather, the “framework for utopia” line of argument might elucidate a point he made earlier, an argument which is the closest Nozick ever comes to a proof of libertarian rights.
In a short section labeled “What are Constraints Based upon?,” Nozick lays out his argument. He first contends that humans are uniquely capable of forming a long-term plan of life and carrying it out.35 He then argues that this fact has moral significance. “A person’s shaping his life in accordance with some overall plan is his way of giving meaning to his life; only a being with the capacity to so shape his life can have or strive for a meaningful life.”36 Nozick then contends that the notion of a meaningful life “has the right ‘feel’ as something that might help to bridge an ‘isought’ gap; it appropriately seems to straddle the two.”37 This is because the fact that performing an action would render your life meaningless is always a conclusive reason not to do it.38 This argument is quite incomplete without the utopia argument; alone, it does not establish that libertarianism secures a person the ability to “shape his life in accordance with some overall plan.” If we add the utopia argument, however, we get something like: The PMN-based argument for libertarian rights: 1. The correct principle of justice will allow all humans to pursue meaningful lives. 2. To pursue a meaningful life, a person needs to be maximally free to pursue her own plan of life (to act according to her wishes, to live by her own personal morality, to lead her own life). 3. Libertarianism ensures that all people are maximally free to pursue their own plans of life. 4. Therefore, libertarianism is the correct principle of justice. This argument may be valid (though I will not establish that here), but it may be unsound. The PMN argument’s premises are far from obvious. It can be challenged in many ways, but I will focus here on Premise 3, which in particular needs to be clarified. A defense of Premise 3 would require much more work than is contained in Anarchy, State, and Utopia. For it is far from obvious why imposing side-constraints on people’s actions leaves them any more able to pursue their own plans of life than putting no constraints on their actions. As Kagan points out, a total absence of moral prohibition on action would leave people with more moral freedom to pursue their own plans of life: in fact, it would leave them with total freedom, rather than constrained 14
freedom.39 If a person was not prohibited from doing anything, possessing only “blameless liberties”40 to do as she wishes, she would surely be morally freer than were she constrained by libertarian prohibitions. But, defender of a PMN proof of libertarianism might argue, some actions a person might take would interfere with the ability of others to pursue their own plans of life. Those actions must be prohibited, and all other actions permitted. This response, currently stated, is inadequate. For it rests on a crucial assumption about the nature of voluntariness. It is not enough to simply assert that libertarian rights let people voluntarily choose how to lead their lives. This is, in fact, far from obvious. It may be that actions other than force and threats of force render actions non-voluntary. For example, my buying all the land around your house and refusing to let you or anyone else through may substantially impair your ability to lead your own life.41 And it may be that some force and threats of force do not render actions non-voluntary. For example, secretly stealing $20 from a rich woman’s long-forgotten bank account may not impair her ability to lead her own life. And forcibly giving someone something they have a great desire for, while forcibly taking an insignificant payment,42 may actually assist someone in pursuing their ends. These arguments together constitute the “choice objection” to libertarianism. The Choice Objection: Libertarianism misdefines “voluntary choice” and its counterparts, “force” and “coercion.” The choice objection is not necessarily correct; were it wrong, Premise 3 and the PMN-based argument for libertarian rights might be correct. But libertarians must respond to the choice objection. To do so plausibly, they must bring in premises not derivable from PMN. Indeed, these premises require that libertarian rights have already been established in some other way. So PMN cannot by itself prove libertarian rights. How does a libertarian respond to the choice objection? Libertarians have generally given 15
formal-sounding, but fundamentally intuitionist, responses to the objection. Charles Murray asserts that “absent physical coercion, everyone’s mind is under his own control… There is no such thing as intellectual or emotional or economic force.”43 Murray, however, offers no evidence as to the degree to which a person’s mind is under his control when faced with physical coercion as compared to other sorts of action. Nozick spells out Murray’s intuition a little more. He first contends that if “facts of nature”44 – things other than human action – limit your choices, you have not been coerced. Nozick does not defend this claim, but one can see its rationale. For who is the coercer that is preventing the paraplegic from walking or all of us from flying? No one can be held responsible, and thus liable to be punished, for this fact.4 David Kelley elucidates the point. Facts of nature simply remove certain choices from one’s range of possible options; human actions uniquely put a constraint on one’s ability to choose between one’s options.45 Nozick also claims that certain human actions, even ones that worsen others’ situations, do not render anyone’s actions nonvoluntary. Nozick asks us to imagine a group of individuals seeking to marry another set of individuals. Each marriage that takes place limits the choices and worsens the situations of the unmarried individuals, all the way down to the last couple to marry, which had no other option but to remain single. Nozick contends that “the fact that their only alternative is (in their view) much worse, and the fact that others chose to exercise their rights in certain ways… does not mean that [the last couple] did not marry voluntarily.”46 So, Nozick argues, “a person’s choice among differing degrees of unpalatable alternatives is not rendered nonvoluntary by the fact that others voluntarily chose and acted within their rights in a way that did not provide him with a more palatable alternative.”47 Essential to this argument is that fact that my actions, which limited your choices, were within my rights. But this is exactly the point of
This argument is very similar to one libertarians make against general claim rights: that if there is no perpetrator, there can be no rights violation. It defies our normal conception of causality to hold someone responsible (a necessary precondition if that person is liable to be punished) for inaction. I discuss this in another paper.
contention! We are trying to figure out what rights people have by reference to what renders their actions nonvoluntary; to do that by claiming that only rights-violating actions render someone’s choice nonvoluntary is to engage in circular reasoning. This point becomes more obvious when we formally spell out the argument that lies behind Nozick’s intuitions. The argument goes like this: Some claim that the libertarian definition of coercion is too narrow. They contend that things other than threatening to steal or beat up or otherwise violate one’s libertarian rights can coerce you to act. But this requires additional premises, given how coercion is defined. A person Q’s action C is coercing another person P if and only if C is making a threat to do some immoral action A on P. This allows for two senses of “coercion” – personal moral “coercion,” which is subjectively defined, and political moral coercion. The notion of personal moral coercion allows a libertarian to say that some actions, for example threatening to fire an employee unless she stops voting for the Communist party, are coercive in some way. (The action in question would be considered personally morally coercive by someone whose personal morality stated that it is wrong to fire an employee for voting for the Communist party.) But we are here interested in questions of political morality, of rights and justice, so we want to define unjust, rights-violating, politicallyimmoral coercion, such that C will render Q liable to be punished with force for having done C. So we have: A person Q’s action C is coercing another person P in a politically-immoral sense if and only if C is making a threat to do some politically-immoral action A on P. C is coercion and immoral because A is immoral. Only threatening to do an immoral action is immoral. Libertarians contend that A can only include violating P’s right to own himself and his property. A is immoral because it violates the boundaries of P’s rights. If A were defined as Q acting solely outside of the boundaries of P’s rights, it would not be immoral.
Now we see more clearly what assumptions must be made by those who claim that a set of actions than Clib (what libertarians count as coercion) destroy choice. Let’s say that coercion consists of both Clib and Cother. For this to be true, not just Alib (what libertarians count as politically immoral), but also Aother, must be politically immoral. If Aother is politically immoral, then P must have had a right to not have Aother done to her. Thus, this whole argument is predicated upon and presupposes a system of rights necessarily more extensive than the libertarian conception. The libertarian then needs to defend why Aother is not rights-violating. One could attempt to appeal to some sort of empirical fact about how many, and how good, choices are available when faced with Aother and Cother, as compared to Alib and Clib. This debate might begin well for the libertarian. When arguing with sociologists and the like, Aother is often something like “persuade by verbal communication,” or “offer a job when P is in a bad situation.” Does P have a right to not be offered jobs when in dire straits? This, as Nozick points out, expands P’s options and often gives an option better than any of those he had before.48 Does P have a right to never be persuaded by reason? If this is the case, it seems a very limiting side-constraint on human action. It’s a particularly ironic view for people who hold than humans are fundamentally social creatures, as it would prohibit ever communicating or interacting with other people, because that might change their mind or their mental state. That is the position that purveyors of the “persuasion can be coercion” argument must accept – and it is one that is surely difficult to defend. But, of course, libertarians do not only face Media Studies majors when making their arguments. They often face liberal-egalitarian and utilitarian philosophers who offer schemes that would result in many people having a lot more and better choices than they would under a
libertarian scheme. Take Philippe van Parijs for example. When he argues, in Real Freedom for All, that “If I have no option but to starve or to accept a lousy job, I am not really free to turn the latter down,”49 he is not making the simplistic sociologist argument above. Rather, he is pointing out that under an alternative scheme, such as one that gave him a decent income every year, he would have many more options than starving or accepting a lousy job. This is why Kelley’s response to van Parijs that “the employer is not putting a gun to my head. If I do refuse, I am no worse off than if the employer had had no job to offer in the first place”50 is inadequate. The point is that a different system of rights, one in which some people could be taxed more than others, but everyone was guaranteed a minimum income, would result in more and better choices on aggregate – it would allow more people the ability to pursue their own goals in life, to live by their own personal moralities (in the sense of the first definition I gave) – than a libertarian system. (The same can be said for a scheme of rights requiring easements when a person buys all the land around another’s house.) I find it quite plausible that a system like van Parijs’s would result in more “real freedom for all” than a libertarian system. And we have already seen that Hobbes’s “blameless liberties” would result in more moral freedom for all than a libertarian system. So libertarians cannot defend their conception of rights and obligations by appealing to freedom or PMN as a priori concepts from which other principles may be built up. Indeed, they must reject the importance of real freedom, of real ability to lead one’s life, for determining principles of justice. So, when they ask “What do people have a fundamental, absolute right not to have someone do to them?”, they much search for a different derivation of libertarian rights. A few have been offered since Anarchy, State, and Utopia.51 If such a proof is found, then libertarian rights can be “plugged into” the response to the choice objection and all will proceed
smoothly. But without such a proof, the choice objection stands as correct and libertarian rights are left without justification. Part III Nonetheless, I am confident that such a proof of libertarian rights can be established. This would provide libertarians with justification for their definition of personal morality and for personal moral neutralism. PMN can then be used for clarification and explanation of libertarian aims. Indeed, PMN lies at the heart of many libertarian conclusions difficult to argue for otherwise (in particular, the requirement that the government treat its citizens equally). PMN is also a very useful tool for explaining libertarian policies. While libertarianism is not supported by the central intuition that people should be maximally able to lead the lives they choose, once the concept of what counts as “being free to lead to one’s life” is formalized with other proofs of libertarian rights, PMN can do much work in defending libertarian positions both strange and mundane. In this part, I will use PMN to explore a strange implication of libertarianism: that state borders cannot be justified. The argument begins by assuming that an apparently libertarian state exists. This state would protect its citizens from violence, theft, coercion, and breach of contract. It would punish rights-violators, compensate victims, and do nothing else. It would treat its citizens equally. Its treasury would be filled by an equal tax (say, each citizen pays $500 per year). And, according to Nozick, it would have borders.52 It might have totally open and free immigration, but it would claim sovereignty over a particular territory. That is, everyone that existed within a certain geographical space, delineated by the minimal state’s53 borders, would be subject to its laws. This state, the minarchist’s dream, would necessarily be paternalistic (it flies in the face of the requirements of PMN) and rights-violating.54 To see why this is so, imagine that some Rothbardian anarchists live within the minimal state. They find it objectionable that the state 20
forces them to pay for the protective services it offers. They find it immoral that the state forces them to give up their property – which libertarian principles claim they are absolutely entitled to – without their consent. Even if the state was financed solely by voluntary donations or punitive damages or legitimate ownership of land, some would still have legitimate objections to it. Objectivists (those whose personal morality forbids them from acting altruistically or accepting altruistically-given assistance) might rather not have the state provide them with protective services, preferring to go it alone. And pacifists might object to the state using force on their behalf. These people want to choose states more to their liking, or to not be a member of any state at all. The minimal state forcibly prevents these people from leading the lives they choose, from picking their own personal morality, by forcing them to obey the laws of the state even when they exist solely on their own land (or land used with the consent of the owners). These objectors should be free to opt out of the minimal state. They must be allowed to refuse to abide by the laws of the minimal state. But what exactly does this mean? Perhaps it means opening the state’s borders to anyone who wants to leave. Anyone who does not wish to abide by the laws of the state may go somewhere where she does not have to. This is, indeed, the correct principle when discussing voluntary communities. If I live on an organic farming collective owned by the Worker’s Cooperative, I may leave the land owned by the Cooperative, but I may not demand that the Cooperative carve out a piece of its property for me to live on without being subject to its rules. The state, unlike the Cooperative, however, does not own the land the objectors live on. The objectors own their land and so they should have full rights over it; they should be allowed to do whatever they wish with it (without violating others’ rights), even if those actions conflict with the laws of the state. The objectors cannot be forced to move off their own property. So opening
the borders to physical exit is not enough. Instead, a person must be able to opt out of the laws of the state (not individually, unless the state allows that, but as one package), without having to move. So sovereignty should not be defined territorially. Rather, it must be defined by choice. It is unjust for a state to force people living on their own property to obey its laws; but it would be just for someone to consent to obey the laws of a state. So a true libertarian state would not – could not – be delineated by a map on the globe. It would, rather, be an agreement between all those who chose to live by its laws. And, indeed, those laws need not have any particular content (other than those ensuring that it claims only choice-based, rather than territorial, sovereignty). A just state could very well be redistributive. It could say, “If you choose to be a citizen of this state and you make more than $100,000, you will have to give half of it to the state.” Similarly, a just state could outlaw “homosexual acts.” Presumably, any person would be able to choose between many – hundreds or thousands – states with different laws, including a minimal one. And it seems unlikely that gays and lesbians would join (and thus be subject to) the anti-homosexuality state. But it may be likely that many rich individuals would join redistributive states, either because those states provide them with a better package of services at a lower cost than a minimal state or because their personal moralities dictate that they should help the poor through their state. What is essential is that everyone who is a member of the state has actually consented. Their agreements to the state, under the choice system, have the same force as contracts in their private lives – so they are bound to them to that degree. If the more-taxed individuals are feeling exploited by their redistributive state, they can – without moving an inch or leaving behind their jobs, families, friends, houses, and lives – leave it for a less-redistributive one. This is PMN to its fullest extent. A person may choose her own personal morality by choosing her own state. Even a minimal
state, if it defines itself territorially, cannot guarantee this. It forces people who do not want to be associated with the minimal state to pay for its protective services. State choice (as I call my alternate conception of sovereignty), on the other hand, is the true implication of PMN and of libertarianism. It grants total freedom to lead one’s life as one chooses, as long as one does not violate another’s libertarian rights, a freedom that can be expressed not only by choosing to live in a limitless variety of different communities, but a limitless variety of different states. Nonetheless, state choice is far from perfect. I will here discuss two sorts of objections to state choice: that it is simply an impossible ideal and that it would result in irreconcilable conflicts between the choice-defined states. One might argue that state choice is a nice theory, but it is practically impossible. It simply could not be done in the real world. This is true in two senses. First, state choice would never be politically viable. No state would ever give up their claim of territorial sovereignty, for this would in one fell swoop remove all of the power they can exercise by any means other than persuasion. No doubt many of its present citizens would opt out. And few visitors to the former territory would choose to obey the laws. If every other state was still territorially-defined, the lone switcher would have effectively ceded its territory to anarchy or perhaps to a territoriallydefined state that saw an opportunity to claim yet more territory as under its sovereign jurisdiction. So the collective action problem is, to put it mildly, unimaginably vast. Second, state choice would be terribly costly to implement. A state that wanted to provide even minor services, like roads, to its citizens would find the task impractical. It would be nearly impossible to exclude free riders for many services (even vaccinations!). Even a choice-based minimal state (call it Minarchia) would have to enforce the rights of its citizens all over the globe; it would have to punish a murder in Dubai while trying a burglar in Juarez. Any argument that attempts to
downplay this difficulty (citing, for example, a decline in transportation and communication costs with globalization) fundamentally misunderstands the scope of the problem. And yet neither of these facts are really objections from the point of view of justice. Indeed, these are the same problems traditional libertarianism faces: it is very difficult to get status quo political units to implement it and it would not result in a utilitarian-best outcome. Neither problem means it shouldn’t be done, though the first means that believers in justice should be pessimists. Still, state choice is not literally impossible, in the same way as it is literally impossible for the laws of the universe to be violated. State choice could be implemented: one can imagine a world in which no state defined itself territorially and people chose their own states from their own homes (just as they choose from which restaurant to order delivery). So one should not dismiss what state choice has to tell us about justice; it gives us an ideal to work towards (unlike, for example, an ideal that objects should fall up). Another objection to state choice involves conflicts between states. Imagine two choicedefined states, Minarchia (a minimal state) and Interferia (a more-than-minimal state). Mia is a member of Minarchia and Ingrid is a member of Interferia. Interferia prohibits employers from paying workers less than $10 an hour; Minarchia has no such law. Ingrid works in Mia’s factory for her; they have a contract whereby Mia pays Mia $8 an hour for her work. Interferia wants to prosecute Ingrid for “exploiting” Mia, but Minarchia says that it will forcibly stop Interferia from so doing if it tries. What do proponents of state choice make of this case? In this case, Interferia is wrong. (Interferia would be right to prosecute Mia, as Minarchia would agree, if Mia had beaten up Ingrid.) So, ideally, Interferia would withdraw its complaint. It can punish Ingrid for signing the contract, but not Mia. If it is more important to Ingrid to work for Mia than to be a citizen of Interferia, she can leave Interferia and join Minarchia (or become stateless). But this
will likely not happen. Interferia believes in the political morality of its claim; that is, Interferia believes that force can be used to punish Mia. So it seems like some third party is needed to resolve the dispute. That third party would be a libertarian World Supreme Court (whose budget would have to come from voluntary contributions, possibly from minimal states), whose task is to hear disagreements between states and ensure the justice of rules of exit. The World Supreme Court would rule in favor of Mia in this case, and leave it up to Ingrid whether she wishes to accept Interferia’s punishment and remain a citizen or if she wants to leave. This solution is analogous to my evaluation of the PMN-based argument for libertarian rights. We saw that PMN cannot be used to prove libertarian rights by itself, just as state choice does not provide all the answers by itself. When we try to say that only conflicts between personal moralities involving coercion or only conflicts between states involving coercion are wrong, we implicitly rely on a libertarian conception of “coercion” to define unjust action. This reliance needs to be made explicit. “Liberty” and “personal morality” are not empty concepts, but they are not justificatory ones either; they must be established and defined by other concepts. Personal moral neutralism has great explanatory force for libertarians, but it cannot do its work alone. Libertarians need to prove that the rights they claim exist actually do; it is upon this assumption that all deontological libertarian work is based. Proving libertarian rights will be the greatest challenge of the next generation of libertarian philosophers.
Rawls, John. A Theory of Justice (revised edition). New York: Oxford University Press, 1999. p. 110. Rawls, John. Political Liberalism. New York: Columbia University Press, 2005. p. xvi. 3 Scanlon, T.M. What We Owe to Each Other. Cambridge, Mass.: Belknap Press, 2000. p. 352. 4 Cohen, G.A. “Where the Action Is: On the Site of Distributive Justice.” Philosophy & Public Affairs. Vol. 26, No. 1. Winter 1997. pp. 3-30. 5 Okin, Susan. Justice, Gender, and the Family. Cambridge, Mass.: Basic Books, 1989. pp. 3-24. 6 Nagel, Thomas. Equality and Partiality. New York: Oxford University Press, 1991. pp. 63-74. 7 Kagan, Shelly. “The Argument from Liberty” in Jules L. Coleman and Allen Buchanan, eds., In Harm’s Way: Essays in Honor of Joel Feinberg. New York: Cambridge University Press, 1994. pp. 17, 35-37. 8 Scanlon holds the view that morality can cover a wide swath of issues pertaining to the relations of people to others. This is expressed somewhat in his phrase “what we owe to each other” See, e.g., What We Owe to Each Other, pp. 352-3, and also Scanlon, T.M. “Lecture 10: Contractualism and the Scope of Morality.” Harvard undergraduate course. Moral Reasoning 33, “Issues in Ethics.” Cambridge, MA. 19 Oct 2006. 9 Sandel, Michael. Rev. of Political Liberalism, by John Rawls. Harvard Law Review, 107 (1994). pp. 1776-1782. 10 Harman, Gilbert. “Moral Relativism Defended.” The Philosophical Review. Vol. LXXXIV, No. 1. January 1975. pp. 3-22. 11 Harman, p. 8. 12 Harman, p. 4. 13 Scanlon, T.M. “Lecture 18: Harman’s Relativism.” Harvard undergraduate course. Moral Reasoning 33, “Issues in Ethics.” Cambridge, MA. 16 Nov 2006. 14 For an example of a theory of justice that might support the dualistic account of morality, consider Stephan Kinsella’s argumentation ethics-based approach to justifying libertarian rights. (Kinsella, Stephan. “Punishment and Proportionality: The Estoppel Approach,” Journal of Libertarian Studies. Vol. 12, No. 1. 1996. pp. 51-73.) Kinsella asks us to imagine a potential discourse between an aggressor and a victim. In Kinsella’s scenario, the victim attempts to punish the aggressor for violating the victim’s rights. The aggressor complains about her punishment, about the victim using force upon him. But the aggressor has no right to object, for he has initiated force and would thus contradict himself by taking a pacifist stance against using force. Since “an aggressor contradicts himself if he objects to others’ enforcement of their rights,” (Kinsella, Stephan. “New Rationalist Directions in Libertarian Rights Theory,” Journal of Libertarian Studies, Vol. 12, No 2. Fall 1996. p. 317.) it is legitimate to punish an aggressor (for the argument against such a permission is contradictory). Note that this argument does not say that people should not aggressively use force. It says only that if they do, they can be punished. 15 For details and opinions about the Nozick rent control issue, see, e.g., Rothbard, Murray. “Living in a State-Run World.” LewRockwell.com. Accessed 25 Apr. 2007. <http://www.lewrockwell.com/rothbard/rothbard63.html>. 16 The Libertarian Party of the United States. “Issues & Positions: Why Libertarians Support Equal Rights for America’s Gun Owners.” The Official Website of the Libertarian National Committee. Accessed 5 Apr 2007. <http://www.lp.org/issues/gun-rights.shtml>. 17 see, e.g., Miron, Jeff. “Polarization.” The Case for a Small Government: Musings of a Libertarian Economist. Updated 20 Jul 2006. Accessed 30 Apr 2007. <http://jeffreyalanmiron.typepad.com/jeffrey_alan_miron/2006/07/negative_conseq_6.html>. 18 Nozick, Robert. Anarchy, State, and Utopia. (hereafter “ASU”) Cambridge, Mass.: Basic Books, 1974. pp. 248-250. 19 “Libertarianism: Criticism.” The Encyclopedia Britannica Online. Academic ed. Accessed 5 Apr 2007. <http://www.search.eb.com.ezp1.harvard.edu/eb/article-234240>. 20 ASU, pp. 32-33. 21 Schwartz, Peter. “Libertarianism: The Perversion of Liberty” in Rand, Ayn. The Voice of Reason: Essays in Objectivist Thought. New York: NAL Books, 1988. pp. 313-314. 22 ASU, pp. 320-323. 23 Fried, Barbara. “Begging the Question with Style: Anarchy, State, and Utopia at Thirty Years.” Social Philosophy and Policy. Vol. 22, No. 1. 2005. p. 222. 24 ASU, p. ix. 25 ASU, p. 9. 26 ASU, p. 333. 27 ASU, p. 299. 28 ASU, p. 298. 29 ASU, p. 309. 30 ASU, p. 312. 31 ASU, p. 312. 32 ASU, pp. 311-312. 33 ASU, p. 312. 34 ASU, pp. 320-323. 35 ASU, p. 49.
ASU, p. 50. ASU, p. 50. 38 ASU, pp. 50-51. 39 Kagan, pp. 23-24. 40 Hobbes, Thomas. The Elements of Law. New York: Oxford University Press, 1994. p. 79. 41 ASU, p. 55. 42 ASU, p. 95. 43 Murray, Charles. What it Means to Be A Libertarian. New York: Broadway Books. 1997. pp. 19-20. 44 ASU, p. 262. 45 Kelley, David. A Life of One’s Own: Individual Rights and the Welfare State. Washington, D.C.: The Cato Institute. 1998. pp. 68-9. 46 ASU, p. 263. 47 ASU, pp. 263-264. 48 Nozick, Robert. Socratic Puzzles. Cambridge, Mass.: Harvard University Press, 1997. pp. 23-26. 49 Van Parijs, Philippe. Real Freedom for All. Oxford: Oxford University Press. 1955. p. 22. 50 Kelley, p. 73. 51 For a fairly thorough catalog, see Kinsella, Stephan. “New Rationalist Directions in Libertarian Rights Theory,” Journal of Libertarian Studies, Vol. 12, No 2. Fall 1996. <http://www.mises.org/journals/jls/12_2/12_2_5.pdf> p. 317. 52 See, e.g, ASU, p. 23. “Writers in the tradition of Max Weber treat having a monopoly on the use of force in a geographical area… as crucial to the existence of a state.” 53 I use the terms “minimal state” and “minarchist” instead of “libertarian” here because, I argue, minarchism is not necessarily related to true libertarianism at all. As I will argue, a minimal state that claims sovereignty over a geographical region is not libertarian at all, whereas an intrusive state that defines its sovereignty by choice is fully libertarian. 54 For a similar argument that focuses more specifically on Part I of ASU, see Rothbard, Murray. “Robert Nozick and the Immaculate Conception of the State.” Vol. 1, No. 1. 1977. pp. 45-57.