self-ownership, libertarianism, and impartiality - edward feser

7/29/2019 Self-Ownership, Libertarianism, And Impartiality - Edward Feser

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Self-Ownership, Libertarianism, andImpartiality

Edward Feser

[Paper presented at a conference on Impartiality and Partiality in Ethics at theUniversity of Reading, England, December 1-2, 2006]

I.

Impartiality is a central theme of contemporary liberal political philosophy,and certainly of the work of John Rawls, the most significant recent theorist ofliberalism. The Kantian principle that persons are ends in themselves andthus moral equals entitled to impartial concern underlies the argument ofRawlss A Theory of Justice.[i] His later book Political Liberalism emphasizesanother kind of impartiality important to liberals, namely the neutrality theythink basic social institutions ought, as far as possible, to exhibit vis--vis the

competing reasonable comprehensive doctrines existing within a pluralisticsociety, and whose adherents these institutions are to govern.[ii] Rawls isalso keen to argue, in that same book, that his conception of justice isimpartial or neutral in a third sense too, insofar as it can be defendedphilosophically without having to appeal to controversial moral ormetaphysical premises peculiar to some specific comprehensive philosophicaldoctrine. Rawlss political liberalism might be defined in terms of thesethree components: it is liberal insofar as it seeks to ensure an equal andimpartial concern for all persons as a matter of justice; and it is a politicalconception rather than a comprehensive one insofar as it attempts to fulfillthis ambition in a way that is neutral both between the diverse moral andreligious worldviews prevailing among citizens of the sort of society it is to

govern, and between the various alternative philosophical doctrines (liberaland non-liberal) individual political theorists who could support it might bepersonally committed to. It rests instead on an overlapping consensusbetween doctrines, while nevertheless sustaining a shared sense of justicebetween them, rather than a mere modus vivendi or truce between hostilefactions.

Libertarianism, which is commonly interpreted as a variant of liberalism,[iii]shares the liberals concern for treating persons as ends in themselves,though it understands this to entail a higher estimation of free markets and alower estimation of government action than other modern liberals tend toexhibit. This is certainly true of Rawlss critic Robert Nozick, who explicitly

appeals to Kants principle in defense of laissez faire capitalism and theminimal state, and in criticism of Rawlss difference principle.[iv]Libertarianism also appears to be concerned with impartiality; indeed, theview of libertarians seems to be that theirs is the most impartial of all politicalphilosophies, in each of the three senses mentioned above:

1. With respect to our rights and duties as individuals: As usually interpreted,libertarianism is committed to a doctrine of universal full self-ownership, on


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which (as Nozicks critic G. A. Cohen summarizes it) each person enjoys, overherself and her powers, full and exclusive rights of control and use, andtherefore owes no service or product to anyone else that she has notcontracted to supply.[v] In Nozicks work, this principle is apparentlyunderstood as a concomitant of the Kantian principle of respect for persons;that is to say, to treat someone as an end in himself seems in Nozicks view

to entail treating him as a self-owner.[vi] And the principle of self-ownershipseems, in turn, to entail that, at least as a matter of strict justice, we canhave no positive obligations to other human beings including not only thedestitute, but even our own family members and friends apart from thosethat we explicitly consent to take on. Justice requires only that we respecteach individuals (negative) right to be left alone. This is impartiality with avengeance. In any event, it is in the view of libertarians a more impartialdoctrine than Rawlsian liberalism is, given that Rawlss difference principleentails (they would argue) discriminatory treatment of the rich and powerfulas resources to be used for the benefit of the least well off members ofsociety.

2. With respect to the various comprehensive doctrines prevailing within apluralistic society: Libertarianism claims to provide, in Nozicks words, aframework for utopia, an environment in which utopian experiments maybe tried out [and] in which people are free to do their own thing.[vii]Adherents of any comprehensive doctrine and the vision of life it embodiesmay within a libertarian polity live according to its dictates, even if thosedictates are radically non-libertarian, so long as no one else is forced to dolikewise. A hippie commune, Puritan commonwealth, Muslim umma, andBuddhist sangha can all co-exist within the boundaries of the minimal state,and can require of their members any degree of submission to their rules thatthey like, provided that membership in them is voluntary. Here toolibertarians claim to be more impartial than other liberals insofar as theirview does not require such private organizations to adhere to someegalitarian standard of admission. From the libertarian point of view, modernliberals promotion of anti-discrimination laws of various sorts imposes on all,in the name of neutrality, what is in fact nothing more than one particularcomprehensive doctrine among others.

3. With respect to philosophical foundations: Libertarianism has beendefended by philosophers committed to a wide variety of moral theories.Nozick, as we have seen, appeals to Kants principle of treating people asends in themselves. Other libertarians have appealed to utilitarianism,contractarianism, Aristotelianism, natural law theory, Lockean natural rightstheory, Ayn Rands Objectivist philosophy, and Habermasian discourseethics. Yet others eschew moral theory per se and emphasize economicarguments. Libertarian conclusions thus seem derivable from widelydivergent premises. Nor is this surprising, libertarians might argue, giventhat their conception of justice is a very thin one, requiring, again, only thateveryone leaves everyone else alone. This is a polity (so the argument goes)that everyone, whatever the moral, religious, or philosophical premises he iscommitted to, can find reason to endorse.


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It is not surprising, then, that some libertarians have even tried to make acase for their view on Rawlsian grounds.[viii] For example, some havesuggested that the unfettered free market best fulfills the egalitariandemands of Rawlss difference principle, as a rising tide lifts all boats. Morerelevant to our purposes here, some libertarians have also suggested that itis their view that most fully realizes the neutrality Rawls sought to enshrine in

his ideal of political liberalism. Political libertarianism, in their estimation,thus constitutes a superior vision of a just, liberal, and pluralistic society.Law professor Randy Barnett seems to be the most prominent libertarian tohave defended this view, in a recent essay entitled The Moral Foundations ofModern Libertarianism.[ix]

In what follows, I will argue that the purported impartiality of libertarianism isillusory, in each of the three senses of impartiality described above.Barnetts account will be my primary target, though what I will say isintended to apply to libertarian theories generally. For some libertarians, itmay not matter whether their view really is as impartial or neutral as somehave claimed; their commitment to libertarianism per se as a

comprehensive moral and political vision of the world may trump the desireto appeal to non-libertarians by suggesting that they need not give upanything essential to their own creeds by agreeing to accept a libertarianpolity. Still, much of the rhetorical force of libertarian arguments lies in theirsuggestion that the libertarian worldview is compatible with any number ofparticular moral, religious, and philosophical systems. If many who wouldotherwise accept libertarianism were to conclude that they could not in factdo so consistent with their own deeper moral, religious, or philosophicalcommitments, the theory would lose much of its attraction.

II.

Taking last things first, let us begin with the third sense in which somelibertarians would regard their position as impartial or neutral, i.e. withrespect to alternative moral-theoretic foundations. Barnett devotes almosthalf of his essay to defending this idea, which is reasonable given that, forreasons that will become evident, if this claim cannot be sustained, it is hardto see how libertarianism can possibly be neutral in either of the other sensesin question. His focus is on the distinction between what he calls moralrights and consequentialist defenses of libertarianism, where by the formerhe has in mind natural rights approaches of the sort favored by Nozick, Rand,and Murray Rothbard, and by the latter, the economics-oriented arguments ofwriters like F. A. Hayek and Milton Friedman. As Barnett recounts, the historyof libertarian political theory is partly a history of debate over whether theseapproaches are compatible, with libertarian rights theorists sometimesaccusing consequentialist libertarians of being compromisers willing to tradeliberty for economic well-being, and consequentialists accusing the rightstheorists of utopian dogmatism.

In Barnetts estimation, this debate is misconceived. Rights andconsequentialist theories are in his view best interpreted, not as rivalclaimants to ultimate moral truth, but rather as fallible and complementary


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modes of analysis, useful heuristics, or problem-solving devices, which byvirtue of their creative tension together afford us a more nuanced picture ofthe social world. In particular, rights theories make us attentive to thepossible effects of our actions and policies on the private sphere of theindividual, while consequentialist theories force us to consider the publicsphere as well. The different theories also provide an analytic check on one

another: to the extent that they tend to converge on the same results, thisshould increase our confidence in those results; to the extent that theydiverge, this could indicate a problem at the level of theory or applicationthat calls for a reconsideration of some of our working assumptions.Moreover, their ultimate significance in Barnetts view is as ways of refiningour understanding of the deliverances of a third problem-solving device,namely the gradual evolution of the legal norms enshrined in the commonlaw. It is from these norms that moral rights and consequentialist theoriesget their starting points; and since legal decision-making is casuistic, ittakes account of more of the details of real-world circumstances than eitherphilosophical or economic analysis are able to, and thus (Barnett seems toimply) has analytic priority over these other methods. Since the theories in

question are means, not ends, and specifically means of improving ourconventional legal principles, there need be no conflict between them. Inthis sense and insofar as they tend to lead to similarly libertarianconclusions in any case libertarianism can be said to be neutral betweenthem.

Barnetts account seems to me to have a number of serious problems. Thefirst is that the idea that natural rights and consequentialist theories aremerely alternative problem-solving devices that provide analytic checks onone another is a non-starter. It certainly isnt the way most actual rightstheorists or consequentialists understand their own theories. And as usuallyunderstood the theories are indeed flatly incompatible. Suppose a rightstheorist claims that I have an absolute right to X. Then in his view, noconsideration of consequences could justify violating that right; indeed, anyviolation of that right would just be a bad consequence. For aconsequentialist, on the other hand, there can be no such thing as anabsolute right in the first place. So the theories are just at cross purposes.Since they differ fundamentally in their conceptions of the basic moral facts,they dont agree on what we should be checking for, and thus can hardly beconstrued as devices or checks or modes of analysis aimed at solving thesame problems.

That Barnett doesnt take seriously enough the self-understanding of actualnatural rights and consequentialist theorists is also evident from his remarksabout the limits he sees in these theories. The problem with rights theories,he says, is that they demand that justice be done though the heavens fall,while the problem with consequentialist theories is that they are too ready tosacrifice individual liberty for the sake of the greater good. Now of course,these might well be good objections to each of these theories. But eachobjection is obviously only going to be valid from the point of view of thecompeting theory, or from the point of view of some third alternative theory.For a natural rights theorist might think that justice should sometimes be


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done though the heavens fall, while a consequentialist might say that libertyshould sometimes be sacrificed for the greater good. From the natural rightsor consequentialist perspective, these are not problems at all. How, then,can a perspective which insists that these are problems for these theories besaid to be neutral between them? Surely what such a perspective reallyinvolves is just the belief that both theories are wrong, and ought to be

replaced by some new theory, albeit one that incorporates certain elementsof the ones superseded.

At bottom, what Barnett really seems to be saying is not that moral rightsand consequentialist libertarian theories are compatible, but rather thatalthough they are incompatible as they stand, they can and ought to bereinterpreted specifically, in an instrumentalist problem-solving fashion so that the incompatibilities disappear. But the neutrality between moraltheories that results is bogus, in two respects. First, it is not a neutralitybetween existing moral theories which is surely what matters iflibertarianism is to be impartial in some interesting sense but only betweentheories that Barnett thinks should exist in the place of the ones that actually

exist. Second, it appears surreptitiously to favor consequentialism overnatural rights theories, since a piecemeal or problem-solving approach tomoral problems seems more in harmony with the consequentialists interestin maximizing some good or other (where the means of doing so are lessimportant than that it is done) than with the interest of rights theories (asusually understood anyway) in respecting certain deontic constraintsregardless of whether this conduces to problem-solving.

A second problem with Barnetts account is that the suggestion that thealternative theories in question converge on the same (libertarian) results,and thus confirm those results, is ambiguous. On one interpretation of thisclaim, it is true but trivial, while on another it is non-trivial but obviously false.

To take the latter interpretation first, if Barnett means to say thatconsequentialism and natural rights theory per se tend to converge onlibertarianism or, for that matter, that Aristotelianism, natural law theory,etc. as such converge on it then this is just clearly not true, since the vastmajority of consequentialists, natural rights theorists, Aristotelians, naturallaw theorists, et al. are not libertarians. But if he means instead to say onlythat those consequentialists, natural rights theorists, Aristotelians, and soforth who happen also to be libertarians tend to converge in their argumentson libertarianism, then while true, the claim is (for obvious reasons)uninteresting. That some theorists (and a small minority at that) think thatlibertarianism can be defended by means of these various theories hardlysuffices by to show that the theories themselves necessarily have a tendencyto converge on the same conclusions (libertarian or otherwise) much less thatlibertarianism is neutral between these theories (most of whose proponentsare probably hostile to libertarianism, and on grounds they would derive fromthe theories themselves).

Finally, it is hard to see how Barnetts advocacy of what he calls the rule oflaw approach taking the deliverances of the evolution of the common lawto be the source of the norms that other approaches, including natural rights


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theory and consequentialism, must take as their starting points, and which itis their raison dtre to refine can be anything other than the promotion ofone comprehensive philosophical doctrine over others. This is only moreevident when we consider that Barnett is here endorsing and developing aset of ideas he derives in part from Hayek, ideas that some other libertariantheorists (whose views Barnett claims to be adjudicating in a neutral way)

would object to. Of course, that doesnt show that Barnetts preferredHayekian conception of the foundations of libertarian theory is mistaken. Butit does show that it is implausible to present it as if it were a neutralframework that favored no particular comprehensive philosophical doctrine(including no particular way of giving philosophical foundations tolibertarianism) over any other.

Barnetts legal emphasis also smuggles in the common liberal conception ofmorality (or at least of justice, in Barnetts case) as ultimately a matter ofinterpersonal conflict resolution a conception that is by no means neutralbetween alternative moral theories, and certainly not compatible with theAristotelian and classical natural law approaches some libertarians claim to

follow.[x] But this brings us to his treatment of the idea that libertarianism isneutral or impartial in the second sense we have identified, i.e. neutralbetween the various comprehensive doctrines prevailing within modernpluralistic societies. So let us now turn to that.

III.

A further objection to Barnetts account as summarized so far would be thathis claim that the various alternative moral theories (consequentialist, rights-based, or what have you) are valuable insofar as they help us to improveexisting legal conventions presupposes some standard by reference to whichsomething counts as an improvement, and that this standard is unlikely to bea neutral one. This is an objection Barnett raises himself, and his answer is toreiterate the suggestion that the various comprehensive theories in questionbe interpreted, not as embodying competing ends (one of which gets toprovide the criteria for improvement that the others must meet), but ratheras devices for solving a problem that is to be defined independently of anythese particular doctrines. That problem is providing for the possibility ofsocial order, in the sense of conditions wherein individuals can pursue theirown happiness in a way that is consistent with others doing the same.Indeed, this, Barnett asserts, is what justice is ultimately concerned with.

Now the first thing to say about this is just to reemphasize two points madealready. First, insofar as Barnetts attempt to be neutral between competingmoral-theoretic foundations for libertarianism requires that these theories bereinterpreted in a way their adherents might not approve of, the neutralitythus achieved is specious. Second, Barnetts insinuation that the end ofproviding for social order in the sense he describes is definable apart fromsome particular comprehensive doctrine is dubious, especially given that hecharacterizes it as nothing less than the end of justice itself. For thischaracterization is distinctively liberal, and thus merely one conception of

justice among others.


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Now in fairness to Barnett, it must be noted that he does acknowledge thathis conception of justice is liberal, indeed libertarian, and thus controversial.So when he says that justice-as-social-order is an end that does not favor onecomprehensive doctrine over another, what he presumably means, given theimmediate context, is that it does not favor any particular libertarian

comprehensive doctrine (rights-based, consequentialist, or whatever) overanother. But again, this just raises the question of how Barnetts conceptionof justice can provide a neutral framework for all the various non-libertarianmoral, philosophical, and religious doctrines that prevail within a modernpluralistic society. In dealing with this question, Barnett acknowledges, asRawls does, that no framework, even a merely political rather thancomprehensive one, can be entirely neutral. Rawls claimed only that hisown brand of liberalism is neutral between what he called reasonablecomprehensive doctrines, and Barnett also acknowledges that his position isbound to rule out any vision of the good that is incompatible with thepossibility of the pursuit of happiness of each person living in society withothers.[xi] Nazis and jihadists, then, are simply out of luck within a

libertarian social order, but thats a failure of neutrality that the rest of us canhappily endorse.

So far so good. The question, though, is whether Barnetts proposedframework can nevertheless be neutral enough to encompass all of thereasonable people within modern pluralistic societies who deeply disagreewith each other but who do not believe in settling their disputes by murderingthe opposition. In particular, we need to ask whether it can accommodate:both those who believe that abortion is a basic human right and those whobelieve it is tantamount to murder; both those who believe that a right toview pornography is a corollary of the right of free speech and those whobelieve (on either feminist or traditional moral grounds) that pornographyought to be curtailed for the good of society; both those who believe thatlaws against discrimination in hiring, renting, admission to privateassociations, and the like are a requirement of basic justice, and those whobelieve such laws violate a natural right to freedom of association; both thosewho believe that the legalization of same-sex marriage is required by justiceand those who regard it as an affront to the moral order that makes justicepossible; both those who believe that religion ought to be kept out of publicinstitutions and debate lest the rights of non-believers be threatened, andthose who believe that public acknowledgement of at least a generic theismis a prerequisite of the very intelligibility of rights talk; and so on and soforth. These examples represent some of the most contentious debateswithin modern pluralistic societies, the very sorts of debates that motivateRawlsian liberals and their libertarian fellow travelers to seek a frameworkenshrining a sense of justice shared in common between alternativecomprehensive doctrines. So if it turns out that Barnetts framework isntneutral even between the sorts of views just described, it is hard to see howit can be neutral in any interesting sense at all. Hence, again, we need toask: Is it neutral between them?

To answer this question, let us first consider how Barnett fleshes out the


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libertarian conception of social order.[xii] First, he says, it acknowledges theexistence and value of individual persons. Second, it values the ability of allpersons to live and pursue happiness. Third, it recognizes that only theprotection of actions, rather than a guaranty of results, can potentially beafforded to everyone. Fourth, it emphasizes that the actions of any oneperson may have both positive and negative effects on others. Fifth, it

insists that a set of ground rules are possible that would provide all, ornearly all, persons living in society the opportunity to pursue happinesswithout depriving others of the same opportunity.

Again, so far so good. There isnt much on this list that many people wouldobject to, though some egalitarians might raise questions about the thirdpoint. Though even there, Rawlsians, at least, would be happy with a purelyprocedural conception of justice, since they regard their egalitarian differenceprinciple as a constraint upon action rather than a guarantee of any particularresult. But theres the rub. For libertarians, obviously, would not regardRawlss difference principle as something that ought to inform the frameworkwithin which adherents of competing comprehensive doctrines operate. They

would regard it instead as the imposition of one particular, egalitarian,comprehensive doctrine on all. And yet Rawlsians would regard it as nothingof the kind. The trouble is that the idea that a neutral framework shouldentail only the protection of actions, rather than a guaranty of results isitself susceptible of radically divergent interpretations. And so too are all ofthe other points Barnett lists.

Take the first point, about the existence and value of individual persons.The import of this principle obviously depends on what we count as aperson. Do slaves count as persons? Could a slaveholder in antebellumVirginia plausibly endorse Barnetts neutral libertarian framework and stillkeep his slaves, on the grounds that they are not (in his view) full personsand that anyone who claimed otherwise would be imposing somecomprehensive moral or metaphysical doctrine on him? Presumably not, andBarnett would no doubt be untroubled by this limit on the neutrality of hissystem. Well and good; and the question is purely academic in any case,given that apologists for slavery are thin on the ground these days. But whatabout fetuses? If they count as persons, and if one remains unpersuaded by

Judith Jarvis Thomsons view that the question is irrelevant to the legitimacyof abortion, then quite obviously a practice that is now very common inWestern pluralistic societies would have to be outlawed in any trulylibertarian society. To fail to outlaw it on the grounds that not everyonethinks abortion is immoral would simply be to impose a particularcomprehensive moral doctrine (i.e. a pro-choice one) on unborn persons.On the other hand, if fetuses are in fact not persons at all, then it would seemthat abortion must remain legal, and that it is those who want to restrictabortion who are trying to impose their comprehensive doctrine on others.Either way, it seems obvious that no polity, including Barnetts purportedlyneutral libertarian one, can possibly be neutral between the pro-life andpro-choice sides on the abortion debate. Any polity will either regardabortion as tantamount to murder or not so regard it, and those who disagreewith the view that prevails can quite plausibly complain that a certain


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contentious view about the nature of persons is being imposed on all. Whenwe add to the mix other contemporary controversies over matters of life anddeath euthanasia, capital punishment, the treatment of animals, and soforth it becomes even more obvious that to cite a recognition of theexistence and value of individual persons does nothing to give content to thesuggestion that libertarianism provides an impartial framework between

comprehensive doctrines. For what matters what (some of) these differentframeworks disagree about is what counts as a person, and what counts asvaluing a person, in the first place.

Of course, Barnett might say that one side or the other in the debate overabortion (or capital punishment, euthanasia, or whatever) is justunreasonable, in the Rawlsian sense, and that his view, like Rawlss, is notintended to be neutral between reasonable and unreasonablecomprehensive doctrines. But if he does say this, then the neutrality of hissystem would be useless for the project of providing a framework withinwhich the competing comprehensive doctrines that actually exist withincontemporary pluralistic societies might abide by a shared sense of justice

rather than an uneasy modus vivendi. For it would then appear thatBarnetts system is neutral only between those comprehensive doctrinesthat are reasonable in the sense of being consistent with the moral andmetaphysical presuppositions that Barnett and those of like mind happen toconsider reasonable. Those who do not share these presuppositions surelymillions of Barnetts fellow citizens would simply be written off as beyondthe political pale, rather than (as we would expect from a view claiming toprovide an interesting way of reconciling the hostile factions that characterizecontemporary politics) accommodated within a more encompassing set ofcommon principles. Here we see manifested a dilemma that I think afflictsBarnetts entire project: either he keeps the statement of the principlesguiding his favored polity extremely vague, so as to preserve a genuineneutrality between the main competing doctrines actually prevailing withinexisting pluralistic societies; or he makes them so determinate that theyeffectively marginalize a great many of these doctrines as unreasonable. Ineither case, the neutrality that results seems uninteresting andanticlimactic.

A similar result follows from a consideration of Barnetts condition that aliberal social order respects the ability of all persons to live and pursuehappiness not only because what counts as a person is just asproblematic here as in the previous case, but also because what counts aspursuing happiness is problematic. What is happiness, after all? Is it amatter of getting what you want?[xiii] Is it a matter of maximizing pleasureand minimizing pain, as Bentham and Mill held (albeit in different ways)? Onthese conceptions, happiness seems to be definable in terms of thesubjective states of the agent. On an Aristotelian or classical natural lawconception, though, it is something objective, a matter of living in accordancewith ones nature, understood as a fixed essence entailing a natural end orpurpose. Other conceptions are also possible. Now, on several subjectivistconceptions of happiness, it seems plausible that the sort of libertarian polityBarnett favors would be a just one. If we concede the libertarian argument


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that the unfettered free market maximizes the satisfaction of individualpreferences, then it would seem that libertarianism does indeed promote thepursuit of happiness in the sense that it best allows people to get what theywant. Perhaps it even maximizes pleasure and minimizes pain, at least inBenthams crude sense of pleasure and pain. It isnt so clear, however,that it maximizes pleasure and minimizes pain in Mills more refined senses

of pleasure and pain. And it is very difficult to believe that it bestpromotes happiness in Aristotles sense of the term. For the marketmaximizes the satisfaction, not of all preferences, but rather of those backedby the most spending power. It is bound, then, to cater to the most vulgartastes and passions which are, by definition, the most common and thus theones most people will pay to satisfy rather than to more refinedsensibilities. And since on an Aristotelian conception an individuals moralcharacter his characteristic habits and sensibilities is inevitably deeplyinfluenced by the character types and sensibilities prevailing in the societyaround him, it follows that a commercial society is one in which the sort ofrefined moral character that most fully manifests the realization of humanpotentialities, and thus most fully guarantees human happiness, is bound to

be very rare and difficult to achieve. But then, since on a classicalAristotelian or natural law view, a society cannot be just unless it makes theattainment of virtue a realistic possibility, a libertarian society would seem tobe deeply unjust. It certainly isnt neutral between an Aristotelian or classicalnatural law conception of justice and other conceptions.

Moreover, since the conception of happiness operative in many religioustraditions is far closer to the Aristotelian or natural law conception than it isto any subjectivist conception, a libertarian polity would also seem to beanything but neutral between these traditions either, at least whererespecting the ability of all persons to live and pursue happiness isconcerned. If a society characterized by an unfettered free market is boundto be one in which all sorts of behaviors considered sinful from a religiouspoint of view are prominent and celebrated, then from a religious point ofview such a society cannot fail to be seriously unjust, since it will tend greatlyto reduce the likelihood that individuals living within it will be able to leadvirtuous lives and thus attain salvation and true happiness, whether this beconceived of in terms of the beatific vision, paradise, nirvana, moksha, orwhat have you.

Barnetts remaining principles that a liberal society recognizes thatindividual actions may have both positive and negative effects on othersand aims to provide all, or nearly all, persons living in society the opportunityto pursue happiness without depriving others of the same opportunity areno less problematic than the ones already discussed, and for the samereasons. For what counts as a negative effect on others, and what countsas depriving others of the opportunity to attain happiness, depend on whichcomprehensive doctrine one is committed to. For the pro-choice advocate,one womans decision to have an abortion has no negative effect on anyoneelse, since others are free not to have abortions. But for the pro-lifeadvocate, to have an abortion is to have the most negative effect imaginableon another person, since it involves a kind of murder. The pornographer


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claims to hurt no one since those who disapprove of his product are free notto purchase it. But many feminists, and people with traditional moral andreligious views, would argue that when pornography becomes widespreadand socially acceptable it creates what economists call a negativeexternality, insofar as it radically alters the average persons perception ofwomen and of the meaning of sex, and effectively makes certain moral

virtues extremely difficult or impossible to achieve on anything but thesmallest of scales. And so forth.

Now Barnett maintains that whatever failings traditional moralists and othersmight see in a libertarian society, such failings do not count as injustices andthus do not evidence a failure of neutrality on the part of a libertarian polityvis--vis the comprehensive doctrines in question. Thus he claims, forexample, that while a libertarian society may not guarantee respect for theimperfect rights we might be said to have as moral beings aiming to realizesome vision of the good (i.e. rights that others cannot legitimately be forcedto respect, even if they should respect them), it does guarantee the perfect(i.e. enforceable) rights we have not to be harmed by others, and this is

sufficient for justice.[xiv] Hence while it may in some sense violate my rightsas a pursuer of moral perfection to have someone tempt me to view womenas sex objects (for example), the rights in question are not perfect orenforceable rights, and thus the fact that their violation might be tolerated oreven celebrated in a libertarian society does nothing to show that such asociety is unjust. Furthermore, to try to promote the pursuit of moral virtueand other spiritual goods via the coercive power of government wouldthreaten to undermine the very social order that is a prerequisite to theirsuccessful pursuit.[xv] It would lead to a war of all against all insofar asthose who seek to impose by force their conception of the good on othersare bound to be resisted by those with different conceptions.[xvi]

The problem with this reply is that it begs all the important questions. Therigid distinction between the right and the good or between matters of justiceand matters of virtue, and the related assumption that perfect rights andduties exactly correlate with the former and imperfect ones with the latter,are precisely what Aristotelians, classical natural law theorists, and manyreligious believers tend to reject. On their view, rights and justice aregrounded in the good, and part of their very raison detre is to aid us inrealizing moral virtue. For this reason, while most of what government doesin securing justice and rights will involve merely keeping people from killingand stealing from each other and the like, government may, and sometimesshould, step in to prevent at least large-scale threats to private morality. Asif in reply to this objection, Barnett complains that many conservativesassume, usually implicitly, that force is justified whenever human conduct isfound to be bad or immoral, and that for comprehensive moralists of theRight or Left, using force to impose their morality on others might be theirfirst choice among social arrangements.[xvii] But surely no thinker of theRight or Left actually believes that force is justified whenever human conductis bad or immoral, or is even advisable as a general policy. Even from aconservative point of view, literally sending the police into peoples bedroomsmight be seen as counterproductive and indeed unjust. Even from a left-wing


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point of view, it might be unwise and unjust to try to force everyone to lovepeople of other races. It is possible consistently to hold both thatgovernment should refrain from interfering in the small-scale, day-to-dayprivate moral choices of individual citizens and also that it may andsometimes should interfere with business activity that may have a large-scaleeffect on the overall moral tenor of society such as the marketing of

narcotics or pornography, a refusal to cater to customers of a certain race, orwhat have you.

The point is not to defend any particular piece of right-wing or left-wingmorals legislation. The point is rather to note that certain conceptions of

justice incorporate the idea that it is part of justice (even if not the whole ofit) to guarantee the preconditions of the attainment of moral virtue, or atleast of minimal public decency, so that any polity that rules this out a priorican hardly be said to be neutral between comprehensive moral doctrines orplausibly defensible from the point of view of an overlapping consensus ofsuch doctrines. Nor will it do for Barnett to pretend that only libertarianismcan save us from the war of all against all that must result if adherents of

competing doctrines are allowed to impose them on others as iflibertarianism alone existed above the fray of competing conceptions of

justice, and as if libertarians cannot plausibly be seen by their critics asattempting to impose their view of justice on non-libertarians. From thepoint of view of a traditional moralist, say, or a socialist, the libertarian isinterested in nothing less than imposing his idiosyncratic moral views onsociety as a whole by refusing to allow government to defend the rights ofthe unborn, for example, or by denying to every citizen the equal share of theoverall social product to which he is (in the view of some socialists) entitledas a matter of justice. Yes, the libertarian holds that these conceptions of

justice are mistaken.[xviii] But then, that is precisely the point: Because hedoes take them to be mistaken, he cannot plausibly claim that his view isneutral in any interesting sense, or that it does not involve an imposition onothers of a moral view at odds with their own. To be sure, Barnetts politicallibertarianism might differ from such conceptions of justice in aiming to beneutral and in claiming not to involve any such imposition that is not indispute. What is in dispute is whether the aim can actually be realized andwhether the claim can be sustained, and Barnett gives us no reason toanswer either question in the affirmative.

Once again, Barnett might well reply by arguing that any comprehensivedoctrine that has implications of the sort Ive described is to that extent notonly mistaken but unreasonable (in the Rawlsian sense) and thus not adoctrine to which his analysis is meant to apply in the first place. But to doso would be to make manifest that his purportedly neutral framework isreally neutral only between comprehensive doctrines that have alreadyincorporated into themselves the liberal premises definitive of the very sortof comprehensive liberalism that Barnett, like others who seek a neutralistliberalism a la Rawls, claim not to be imposing on the various othercomprehensive doctrines prevailing in modern pluralistic societies. Worse, itwould be to make manifest that the resulting system is one that leaves out inthe political cold enormous numbers of Barnetts fellow citizens indeed,


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probably a majority of them who are committed to some variation or otherof the moral and religious views in question. As Ive argued, the neutralitythus achieved would be bogus, and certainly useless for solving the problemof showing that a shared sense of justice, and not merely a modus vivendi, ispossible between adherents of rival comprehensive doctrines underconditions of pluralism.

IV.

We turn finally to the question of whether libertarianism is truly an impartialview in the remaining sense of respecting all persons equally. Here too, Ithink, the impartiality that libertarianism can be said to exhibit is either trivialor specious, certainly in Barnetts version and in any political brand oflibertarianism that aims to be neutral in the other two senses wevediscussed. Part of the reason for this might be obvious from what has beensaid already. Libertarianism claims to treat all persons as self-owners. But aswe have seen, what counts as a person is itself a matter of contention. Dofetuses, antebellum slaves, and people in persistent vegetative states count

as persons and thus as self-owners? Depending on the answer thelibertarian gives, his view is bound to sound less than impartial from somepoints of view. Should he say, for example, that fetuses do not count aspersons, then opponents of abortion will say that his view is not impartialbetween born and unborn persons. Should he say that fetuses are personsand should be protected by law accordingly, then people who seek abortions,or who want to become pregnant via in vitro fertilization (which typicallyentails the death of unneeded embryos), or who favor experimentation onembryos in the hope of finding new cures and the like, will say that his view isnot impartial toward them, since it interferes with their liberty in the interestsof upholding some controversial religious or metaphysical doctrine. Similarly,if the libertarian does not regard those in persistent vegetative states aspersons, euthanasia opponents will accuse him of discriminating againstpersons simply on the (in their view irrelevant) grounds that they are nolonger capable of consciousness. While if he does regard them as persons,other critics will say that he is not truly impartial toward those whom hewould burden with the care of human beings who (in their view) can nolonger benefit from care and lack any entitlement to it. The libertarian could,of course, decide not to answer such questions at all, but if he does his viewwill lose much of its interest: If he refuses to tell us what counts as a person,his assurance that all persons must be treated as self-owners is of limiteduse.

One problem with the claim that libertarianism upholds an impartial concernfor all persons, then, is the same problem afflicting Barnetts proposal thatlibertarianism be interpreted as a political doctrine that is neutral betweendifferent possible philosophical justifications and competing comprehensivedoctrines: It sounds plausible only if we keep the key concepts vague orindeterminate, and thus philosophically uninteresting and practically useless.Might not the claim be salvaged, though, if the idea of libertarianism as aneutral or political doctrine is abandoned and some rich comprehensivelibertarian theory is put forward in its place?


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This might seem possible on some versions of libertarianism for example, ifNozicks very sketchy attempt to ground libertarianism in Kants principle oftreating persons as ends in themselves could be fleshed out successfully, or ifan old-fashioned Lockean natural rights theory could be revitalized.[xix] Oneproblem, though, is that these deontological approaches to libertarianism do

not seem to have many defenders today. Contractarian and consequentialistapproaches appear to be favored by most contemporary libertarian theorists.

This is certainly true of Barnett, who, as weve seen, interprets all libertariantheories as merely alternative heuristics or tools for refining conventional andevolving legal principles whose point is to coordinate the behavior ofindividuals as each pursues his own happiness. Barnett acknowledges thathis approach is consequentialist insofar as it provides only hypotheticalimperatives which, he thinks his analysis shows, we ought as a matter ofempirical fact to follow if we happen to value the goal of allowing eachindividual to pursue happiness, peace, and prosperity in harmony withothers.[xx] Obviously, it is bound to be much harder to sustain the claim thatlibertarianism enshrines an impartial respect for all persons as such if the

theory contains no deontic component.[xxi] For only if we are alreadyimpartially concerned with the happiness of all persons as such might wecare to consider Barnetts suggested method for securing it. By itself,Barnetts consequentialist version of libertarianism gives us no reason toadopt such a concern, any more than a description of how to engineer afunctioning bridge, however accurate, gives us a reason to construct one.

Those who think, for example, that some groups have an inherent right torule over others can simply thank Barnett for his advice but reply that theyare not interested in it, given that they are not seeking the happiness of allbut rather the aggrandizement of a special few. Barnett would rightlydisapprove of this, but by his own admission he has given us no grounds fordoing so.

Things are even worse for impartiality where contractarian approaches tolibertarianism are concerned.[xxii] The contractarian takes all moralobligations to derive from a tacit agreement to abide by certain norms in theinterests of furthering the mutual advantage of the parties to the agreement.Since in general we all benefit from others leaving us alone in the pursuit ofour own aims, it is to that extent to our advantage to agree to a generalpolicy of leaving others alone, in the hope that they will extend to us thesame courtesy. Notoriously, though, to the extent that some individualscannot realistically benefit us at all, not even by leaving us alone (since theyare too weak to threaten us anyway), it is hard for a contractarian to showthat we have any grounds for treating them other than any way we feel liketreating them. And those who are not parties to the agreement eitherbecause they never entered into it in the first place or because they havebroken it can indeed be treated in principle any way we like. Contractarianshave attempted to come up with various ways of avoiding the very nastyimplications this view of morality seems to have (most of them ad hoc andunconvincing in the view of the theorys critics), but the bottom line is thatthe theory does entail that we do not owe persons as such our impartialconcern. They are owed concern only to the extent that it can be shown that


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a policy of treating them with concern somehow accrues to our benefit.

Even on a deontological version of libertarianism, though, it is not at all clearthat the view can plausibly claim to enshrine an impartial respect for personsas such. The reasons are threefold, and have to do, paradoxically, with thevery strong conception of individual rights definitive of libertarianism. So

literal is the standard libertarian conception of persons as their own propertythat it seems to allow that a person has the right to sell himself into slavery.(Nozick is explicit about this, though in fairness it must be noted that Barnettrejects the idea.[xxiii]) As Samuel Freeman points out, this would entail thatany agreement to become another persons slave is one that a libertariangovernment would have to enforce just as dutifully as it enforces any othercontract.[xxiv] But it is surely odd to think of a government that forcessomeone to become anothers slave as one that is impartial betweenpersons. The fact that the agreement was entered into voluntarily does notseem to mitigate this point. Surely only someone who was stupid, insane, orin a state of total desperation would make such an agreement, and most ofthem would inevitably come deeply to regret having done so. Any political

system that would enforce such agreements thus seems partial to theintelligent, sane, and fortunate. Moreover, it is hard to see how theconsiderations that lead us to think persons worthy of impartial concern inthe first place the fact that they are rational, possess free will, are capableof formulating a life plan, and so forth could plausibly be thought to entail apolity on which these very attributes could be practically nullified as a matterof justice.

A second and related point concerns the libertarian commitment to absoluteproperty rights in external resources, which leaves open the possibility thatsome person or persons could justly acquire all those resources that arenecessary for bare survival and refuse to allow others access to them even inreturn for payment or labor. The chilling upshot for these others is (asHerbert Spencer put it) that save by the permission of the lords of the soil,they can have no room for the soles of their feet.[xxv] Of course,libertarians argue, not implausibly, that such a consequence is extremelyunlikely to occur in the actual world and that the market can adequatelyguarantee almost all persons the means to provide for themselves at wellabove subsistence level. The point, though, is that the theory does allow thatin principle someone could justly be allowed by government to starve todeath simply because he was too stupid, mad, or just plain unfortunate not toget hold of enough resources to sustain himself and could find no one willingvoluntarily to help him. Once again, a libertarian polity would seem partial tothe intelligent, sane, and fortunate. And once again, it is at leastquestionable whether the considerations that lead us to think personsentitled to impartial concern could entail property rights that are so strongthat the very small level of taxation required to fund even temporaryassistance to those destitute through no fault of their own is ruled out as agrave injustice.

Finally, and as Freeman again points out, the libertarian conception ofpolitical power is one on which such power is merely a special case of the


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furtherance of private economic interests. The minimal state advocated byNozick is essentially a private security firm which has (for morally legitimatereasons, in Nozicks view) taken it upon itself to decide whether and how itsclients can be punished for alleged offenses committed against others, andwhich compensates those others for this inconvenience. It owes its clientsprotection only insofar as they have contracted for it, and only at the level at

which they have agreed to pay for it; it owes those who accuse its clients ofwrongdoing and whom it does not allow to exact justice on their owninitiative only protection against said clients and not against anyone else whomight seek to violate their rights; and it owes nothing to anybody else. Thelibertarian minimal state is clearly not impartial to all those who live under its

jurisdiction, then, any more than any other private corporation is impartial toall those who might benefit from its services. It favors paying customers, andfavors most those who can afford to pay the most. Those who do not pay getno protection at all, and this is, on the libertarian view, perfectly just, even ifthe reason they do not pay is that they are stupid, mad, or just cannot affordto do so. Once again, the intelligent, sane, and fortunate have the advantagein a libertarian polity.

V.

All told, libertarian claims to impartiality prove, upon analysis, to be devoid ofinteresting content. A libertarian theory of justice is neutral between variouscomprehensive political philosophies as long as they more or less share thesame premises as the libertarian writer who happens to be presenting saidtheory of justice. A libertarian polity is neutral between the variouscomprehensive moral and religious doctrines that prevail in a pluralisticsociety as long as they are willing to incorporate into themselves a basicallylibertarian conception of rights and justice. A libertarian society treats all itscitizens equally but the intelligent, sane, and fortunate are more equal thanthe stupid, mad, and unfortunate. As J. L. Austin famously put it, theres thebit where you say it and the bit where you take it back.[xxvi]

[i] John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press,1971).[ii] John Rawls, Political Liberalism (New York: Columbia University Press,1996).[iii] Though for a different interpretation, see Samuel Freeman, IlliberalLibertarians: Why Libertarianism Is Not a Liberal View, Philosophy & PublicAffairs 30, no. 2 (2001): 105-51.[iv] Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books,1974).[v] G. A. Cohen, Self-Ownership, Freedom, and Equality (Cambridge:Cambridge University Press, 1995), p. 12.[vi] Though Nozick is not clear about exactly what he takes the relationshipbetween these principles to be. See Edward Feser, On Nozick (Belmont, CA:Wadsworth, 2003), pp. 43-45 for discussion. Some libertarians are lessinclined to regard the principle of self-ownership as a useful way offormulating or grounding libertarianism. See e.g. Douglas B. Rasmussen and


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Douglas J. Den Uyl, Norms of Liberty (University Park, PA: University ofPennsylvania Press, 2005), ch. 9.[vii] Nozick, Anarchy, State, and Utopia, pp. 297 and 312.[viii] See e.g. Loren Lomasky, Libertarianism at Twin Harvard, SocialPhilosophy and Policy 22, no. 1 (2005): 178-199.[ix] In Peter Berkowitz, ed., Varieties of Conservatism in America (Stanford,

CA: Hoover Institution Press, 2004). See Barnetts The Structure of Liberty:Justice and the Rule of Law (New York: Oxford University Press, 1998) for amore thorough statement of his conception of a libertarian theory of justice.[x] Libertarian theorists Rasmussen and Den Uyl acknowledge that the glibassimilation of morality to rules for avoiding interpersonal conflict is acommon foible of liberal theorizing, a foible they strive to avoid. See Normsof Liberty, ch. 3.[xi] The Moral Foundations of Modern Libertarianism, p. 70.[xii] Ibid., p. 64.[xiii] For a critique of this conception, see Bob Brecher, Getting What YouWant? A Critique of Liberal Morality (London: Routledge, 1998).[xiv] The Moral Foundations of Modern Libertarianism, p. 69.

[xv] Ibid., pp. 70-71.[xvi] Ibid., p. 73.[xvii] Ibid., pp. 72-73, 74.[xviii] Some libertarians allow that abortion can legitimately be outlawedunder certain circumstances, but the majority of libertarians seem to take apro-choice view.[xix] But see Cohen, Self-Ownership, Freedom, and Equality, pp. 238-43 forproblems with the first strategy, and Jeremy Waldron, God, Locke, andEquality (Cambridge: Cambridge University Press, 2002) for problems withthe second.[xx] The Structure of Liberty, chapter 1.[xxi] Barnett does tentatively suggest at p. 24 of The Structure of Libertythat his theory might be deontological to the extent that he thinks theanalysis he gives provides the necessary conditions for each individualsbeing able to pursue happiness in society with others. But since he does notclaim to show that we ought to pursue this goal, the fact (if it is a fact) thathis theory shows us the only way to attain it does not make the theory adeontological one.[xxii] See e.g. James Buchanan, The Limits of Liberty (Chicago: University ofChicago Press, 1975) and Jan Narveson, The Libertarian Idea (Philadelphia:

Temple University Press, 1988).[xxiii] See Anarchy, State, and Utopia, pp. 58, 283, and 331 for Nozicksendorsement of the possibility of voluntary slavery and The Structure ofLiberty, pp. 78-82 for Barnetts rejection of it.[xxiv] Illiberal Libertarians, p. 132.[xxv] Social Statics (New York: Robert Schalkenbach Foundation, 1995), p.104.[xxvi] J. L. Austin, Sense and Sensibilia (Oxford: Oxford University Press,1962), p. 2.

self-ownership, libertarianism, and impartiality - edward feser

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