Moral Foundations of Modern Libertarianism

 Posted by on 23 August 2005 at 9:47 pm  Libertarianism
Aug 232005

Given the latest discussion here on libertarians and their views (or lack thereof) of moral philosophy, I thought I’d bring the readers’ attention to this recent article by Randy Barnett, entitled “The Moral Foundations of Modern Libertarianism“.

For those who don’t know him, Randy Barnett is an extremely well-respected academic libertarian. He’s the Austin B. Fletcher Professor of Law at the Boston University School of Law, specializing in constitutional law, contracts, and cyberlaw. He argued before the US Supreme court in the recent (2004) medical marijuana case Ashcroft vs. Raich.

And although he’s most definitely not an Objectivist, he has been a featured speaker at The Objectivist Center Summer Seminars in 1995 and 1999.

Both Diana and I have heard him lecture in the past, and he’s an very clear and compelling public speaker. He’s an extremely intelligent man, and one of the leading intellectuals of the modern libertarian movement.

Hence, it is with great interest that I read his recent 2004 article, “The Moral Foundations of Modern Libertarianism“. I’d like to cite a few key passages below.

From the paper:

Libertarians need not choose between moral rights and consequences because theirs is a political, not a moral philosophy; one that can be shown to be compatible with various moral theories, which as we shall see is one source of its appeal. Moral theories based on either moral rights or on consequentialism purport to be “comprehensive,” insofar as they apply to all moral questions to the exclusion of all other moral theories. Although the acceptance of one of these moral theories entails the rejection of all others, libertarian moral rights philosphers such as Eric Mack, Loren Lomasky, Douglas Rasmussen and Douglas Den Uyl on the one hand, and utilitarians such as Jan Narveson on the other can embrace libertarian political theory with equal fervor. (Page 6 of PDF file.)

This is as clear and explicit a severing of the link between ethics and politics as one can ask for. Of course, Objectivists will completely disagree with this approach, because the Objectivist politics flows directly from its moral theory.

In fact, Barnett revels in the fact the libertarian politics can be defended by both “moral rights” theorists and “consequentialists” (e.g., utilitarians). He states,

…[I]f both methods tend to reach the same results in entirely different ways, then each method can provide an analytic check on the other. Because any of our analytic methods may err or may be used to deceive, we can use one method to confirm the results that appear to be supported by the other. Analogously, after adding a column of figures from top to bottom, we sometimes double check the sum by adding the figures again from bottom to top or by using a calculator. Just as we rely upon institutional rivalries between branches of government to protect against error and deception, we may rely upon “conceptual rivalries” between different methods of normative inquiry for the same reason…(Pages 6-7.)

Of course, if Objectivists reject the validity of these various alternative philosophical foundations to ethics (such as utilitarianism or consequentialism), does the fact that these theories lead to the same political conclusions really add any certainty? In Barnett’s view it does, whereas I must disagree.

There’s a huge difference between double-checking one’s conclusions by testing them via multiple correct methods (which are based on the same underlying principles and give the same results for the same problems) vs. testing them via multiple incorrect methods (where the underlying principles are divergent from the start and yield radically different results when applied to very simple problems).

Hence (to extends Barnett’s analogy), using incorrect and incompatible philosophical methods to double-check the correctness of one’s final conclusions would be comparable to double-checking one’s arithmetic by using three different broken calculators. If those results happened to agree, would that really give one more confidence in the correctness of the answer, if one already knows that the calculators are unreliable?

(Also, note the implied skepticism in “our analytic methods may err” and the adoption of the equivalent of the “coherence theory of truth” by appealing to agreement between incompatible methodologies to validate one’s conclusions.)

Finally, Barnett states,

While neither denying morality nor adopting a relativist moral stance, Libertarian political theory transcends different conflicting approaches to morality… Libertarians seek a political theory that could be accepted by persons of diverse approaches living together and interacting in what Hayek called the Great Society. (Pages 23-24.)

In other words, this pluralistic or “Big Tent” approach to morality is one of the explicit goals of libertarians, not just an incidental outcome. In my experience, most avowed libertarians are not explicitly subjectivist, in the sense of altogether denying any need for a moral foundation for their political views. But they do adopt this more subtle form of methodological subjectivism, namely the position that underlying moral views are unimportant as long as one supports “liberty” as a political goal.

If one agrees with Objectivists that a proper political theory must be grounded in a proper moral theory, then the libertarian approach is anathema.

On the other hand, if one thinks that holding the correct moral theory is unimportant (and that any one of a number of incorrect and philosphically incompatible moral theories can lead to the correct political philosophy), then this is a direct rejection of the Objectivist approach to epistemology, which states that truth can only be arrived at by a process of reason applied to the facts of reality, integrated with respect for proper context and hierarchy. (This is covered much more extensively in Leonard Peikoff’s book Objectivism: The Philosophy of Ayn Rand.)

As an aside, the folks at the TOC have long been aware of the problems with Barnett’s views and the fact that they are incompatible with the principles of Objectivism. In 1998, Eyal Mozes (in my opinion, one of the best of the TOC-aligned thinkers) wrote a review of Barnett’s book The Structure of Liberty for the TOC Navigator magazine. In his review “Must Politics Rest On Morality?“, Mozes correctly criticized Barnett for failing to “defend liberal justice and the rule of law independently of a specific ethical foundation”.

Furthermore, Barnett is an explicit anarchist. As Mozes noted,

Barnett argues against what he calls the “Single Power Principle,” the principle that the retaliatory use of force must be in the hands of a monopoly organization, i.e., a government. Barnett objects to the “single power principle” on two grounds: (a) enforcing a monopoly on the use of force violates the right of freedom of contract, for those who wish to contract for private use of force to enforce justice and the rule of law; and (b) acceptance of the single power principle makes the problem of enforcement abuse insoluble.

As an alternative, Barnett argues that the effective way to address the problem of enforcement abuse is by a “polycentric constitutional order,” with multiple private agencies competing in two separate functions: the power to adjudicate disputes; and the power to enforce the laws, with each law-enforcement agency choosing the body of law that it will enforce. Agencies in both these areas would be required to adhere to “the competition principle”: “Law-enforcement and adjudicative agencies should not be able to put their competitors out of business by force” (Barnett, p. 258).

Of the logical problems I see in Barnett’s position, perhaps the most glaring is that “the competition principle” is self-contradictory. If law-enforcement agency A adopted a body of law that forbids other agencies from operating, and then tried to enforce its law by forcibly closing law-enforcement agency B, it would be in violation of “the competition principle”; but if agency B tried to defend itself, then it would be trying to forcibly prevent agency A from carrying out its business and enforcing its laws, so B would then itself be violating “the competition principle.” Barnett never addresses this logical problem. In a chapter devoted to a projection of how a polycentric constitutional order would operate, he describes a scenario in which corruption in one private agency is discovered by the other agencies, and the agency is then forcibly put out of business; he never considers how this scenario can be reconciled with “the competition principle.”

Yet these issues (i.e., his anarchism and his subjectivist defense of liberty) did not stop the TOC from inviting Barnett back as a speaker a year later in 1999; in fact, this was part of the TOC’s deliberate outreach to the non-Objectivist libertarian community.

Now to the best of my knowledge, Barnett has never claimed to be an Objectivist, and he has always been fully open and honest about his philosophical views. Hence his inclusion at a conference supposedly devoted to Objectivism should not be regarded as his fault, but instead the fault of the sponsoring organization.

And as a final footnote, when Diana was a TA for the undergraduate Applied Ethics class last semester at University of Colorado, one of the professor’s assigned readings was Barnett’s article on criminal justice entitled “Restitution: A New Paradigm of Criminal Justice“, in which Barnett argues that the primary purpose of the criminal justice system should be restitution for the victim, and that it should specifically not concern itself with punishing the criminal per se.

This is of course, in direct opposition to the Objectivist concept of the purpose of criminal justice. As Don Watkins nicely summarized,

A man who commits a crime against one individual is thereby an objective threat to society as a whole. Society, as represented by the government, therefore has every interest and every right to punish him. The government’s aim here is not simply to restore health to the victim, but to inflict painful consequences on the perpetrator: to force him to experience the painful effects of the causes he enacted. Writes Rand:

The law should: a. correct the consequences of the crime in regard to the victim, whenever possible (such as recovering stolen property and returning it to the owner); b. impose restraints on the criminal, such as a jail sentence, not in order to reform him, but in order to make him bear the painful consequences of his action (or the equivalent) which he inflicted on his victims; c. make the punishment proportionate to the crime in the full context of all the legally punishable crimes (Rand, Letters of Ayn Rand, 559).

(Emphasis mine, not Don’s or Rand’s).

In summary: Modern libertarians deny the need for the proper philosophical foundation for their politics. This is explictly stated in the works of respected libertarian scholars such as Randy Barnett. Because of the subjectivism inherent in this “Big Tent” approach, the logical consequence is that libertarians will be drawn to any number of conclusions which will be diverge significantly from the Objectivist political and legal philosophy (as well as from each others’). As one example, Barnett is a defender of anarchism and he also rejects the need to punish criminals for their bad actions. Other libertarians may disagree with Barnett on those particular conclusions, but will diverge from the Objectivist position on other important issues (such as intellectual property rights). Yet all are welcome under the rubric of “libertarian”, and are regarded as defenders of liberty.

Hence, anyone who believes that libertarianism and Objectivism are compatible (for example those who agree with Nathaniel Branden’s article “Objectivism and Libertarianism” in which he argues “Folks, we are all libertarians now; might as well get used to it”) would be well-advised to re-examine their views.

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