Libertarianism, Liberalism

Contract Liberalisms and Their Enemies

Over the last week, I’ve been mulling over our extended discussion of public reason liberalism. In response to Andrew’s post, I thought I’d try to distinguish between contract liberalisms (of which PRL is a variant) and alternatives to further focus on what is at stake.

I’ll begin with assumptions liberals share. Perhaps the definitive moral assumption of liberal political philosophy over the last three hundred years is that all human beings are free and equal. For the great social contract theorists, to say that people are free and equal is to say that no one has natural authority over anyone else. No one gets to be the boss for free.

This does not mean that all of our obligations to others must be voluntarily assumed, nor does it mean that people are permitted to do whatever they like. The ideas of freedom and equality determine how people may direct others. Specifically, it means that no one can issue authoritative directives to others without a justification that those who are expected to obey accept (or have reason to accept, or reasonably accept in the broad sense of ‘reason’, i.e., not necessarily the ‘public reason’ sense).

But let’s be clear: it is a relatively modest claim. That persons are naturally free and equal says almost nothing about the content of morality and makes no claim that persons have equal rational capacities, that shares of income should be distributed evenly, etc. At its root, the idea of freedom and equality is simply that no one owes obedience to others without justification.

My claim should not be controversial. It’s a prominent assumption in the works Hobbes, Locke, Rousseau, Kant and arguably spans the entire utilitarian tradition. It’s a core assumption among Rawlsians and other political liberals, but it is widely shared by comprehensive liberals as well.

Liberals disagree when we ask what counts as a justification for moral and political authority. We disagree about what makes it true that we have duties to obey the demands and commands of others. To put it another way: what sort of reason could demonstrate that free and equal persons must obey one another, even in the most innocuous ways (keeping a contract, for example)?

What differentiates contract liberals from all others is their insistence that justifications must take a subjective form. The justification must be in some way one that the person imposed upon can rationally access. The family of contractarian and contractualist liberals earn the name due to this condition.

Other liberals allow that political authority can be justified in purely objective terms. They don’t mind subjective justifications; in fact, they might like them quite a bit. Their distinguishing characteristic is holding that a justification for political power might be one the person imposed upon cannot rationally access. For example, a perfectionist liberal holds that political authority is justified when it makes people better off (subject to standard rule-consequentialist caveats and conception of human welfare), regardless of citizens’ rational commitments.

After mulling it over, I think this is what divides contractarian and public reason classical liberals (like me, Jason and our friends and teachers John Tomasi, Loren Lomasky and Jerry Gaus, along with Jan Narveson and, perhaps most importantly, James Buchanan) from more traditional libertarians (like the Big Five: Rothbard, Mises, Hayek, Rand and Friedman and contemporary libertarians like Eric Mack, Michael Huemer, Roderick Long, Douglas Den Uyl and Douglas Rasmussen and I’d bet most libertarian political philosophers). Many of our lovely commenters side with traditional libertarians even if they disagree with these figures on other matters.

You don’t get out of this debate by being an anarchist. First, even if you deny that political authority exists, surely you have a view about how political authority could come into being. I don’t know any libertarian who has claimed that political authority is conceptually impossible. Second, even if you’re a market anarchist, you think that property owners have political authority to direct trespassers to leave them alone. But how is that authority justified? Can the justification be objective? Or must it be subjective?

For what it’s worth, I side with the contract libertarians because I cannot see how we treat one another as free and equal if we order each other around merely on the basis of objective reasons. Our natural freedom and equality entails that we can’t resolve our disputes about how to order social life based on one person’s disputed conception of the good and the right. It won’t do to tell your free and equal fellows that they should obey your directives (even regarding your property) merely because there exist reasons to obey you that they may or may not be able to grasp. That strikes me as disrespectful and obnoxious browbeating. I think that’s what Hobbes, Locke, Rousseau, Kant and Rawls believed as well. I know that’s what Buchanan, Narveson, Lomasky, Gaus and Tomasi think.

Those on the “objective justifications” side raise a number of familiar objections. They deny that social life can depend on mutually acceptable arrangements give how much people disagree. And they think that restraining yourself from acting on objective reasons is irrational and immoral if you in fact know the truth.

Incidentally, the contrast between the two forms of libertarian liberalism is apparent in John Tomasi and Matt’s Cato Unbound post and Roderick Long’s response.

  • Jessica Flanigan

    You write, “What differentiates contract liberals from all
    others is their insistence that justifications must take a subjective form. The
    justification must be in some way one that the person imposed upon can rationally access. ”

    But notice that this is also ambiguous between
    just taking people at their word about their own interests or reasons and doing
    some idealization. Those familiar old toxin cases show us that you can
    have reason to do something (e.g. to not drink the tea with petrol in it) even
    if you can’t access those reasons (because you don’t know that the tea is
    toxic.) So then you say we should appeal to what the person can ::rationally::
    access, meaning, I imagine, that we ought not count people’s false beliefs. If
    you accept that then there’s some kind of objective constraint on people’s
    reasons. Why not idealize more?

    I agree with you that reasons are in some way
    attitude-dependent because I think constructivism is pretty persuasive. But it’s
    a long walk from constructivism to the theory of justification you propose.

    • Julian Sanchez

       Well, hell.  I see Jessica has already anticipated what I said at much more tedious length in a post that’s set to go up at the libertarianism.org blog shortly.  Maybe I can salvage some useful contribution by seeing if I have anything clever to add about Kevin’s reply…

  • Jess is right that the “rational accessibility requirement” does not actually do much work in distinguishing traditional libertarians from contract liberals.

    Presumably, most contract liberals don’t think we should do an opinion poll in order to figure out which institutions are morally justified. So, contract liberals accept that we need to idealize away from people’s actual (frequently repugnant) beliefs.

    Libertarians can agree with this. But then traditional libertarians can argue: “when idealized, people have most reason to accept libertarian principles–there is some sound deliberative route from basic moral principles to libertarian views, even though most people do not now accept libertarian principles and probably won’t in the near future.”

    Of course, this libertarian argument might be false. But this response is in principle open to libertarians and it is unclear whether “contract liberals” can rule it out without actually engaging with the moral and philosophical arguments of libertarians.

    • Kevin Vallier

      Let me respond to both J&J here:

      (1) It is true that you can generate a case for libertarian institutions from contractarian foundations. So I’m not distinguishing contract liberalism from the traditional case for libertarian institutions. Instead, I’m contrasting contract liberalism with many traditional libertarian foundations for their principles. And surely there’s a distinction between the arguments advanced by folks like Friedman, Mises, Hayek, Rand and Rothbard on the one hand and contract libertarians like Narveson, Gaus, Tomasi and Lomasky on the other. The rational access condition distinguishes these two groups.

      (2) Now of course you can construe the idealization involved in the rational access such that people just so happen to have rational access to, say, the utilitarian or natural rights case for libertarian principles (that’s what Narveson thinks, I think). But that’s the wrong direction of fit for the rational access condition, as I think is clear in any of the contract libertarians. Rational access means that what reasons count as justificatory are just those reasons affirmed under the right degree of idealization, regardless of whether those reasons “get it right” in some realist sense. The truth-maker for whether one has a reason is determined by the access condition. Its not a mere evidential connection.

  • Brandon Turner

    Kevin:
    I think you’ve mistaken a difference among contractarians for a difference among libertarians or classical liberals more generally.  Your “modest claim”–that all liberals think people are naturally free and equal–does not on my reading show up in any of the following: Mandeville, Montesquieu, Hume, Smith, Ferguson, Mill, or Hayek, and I don’t think this natural equality/liberty does the work in Hobbes that it would for most contractarians.  Indeed, this kind of bottom-up liberalism *begins*, I would think, by rejecting (or at least disputing the centrality of) arguments from natural/pre-political premises such as these.  In other words, this is an argument between liberal rationalists only.

  • berserkrl

    I don’t know any libertarian who has claimed that political authority is conceptually impossible.
     
    I hereby claim it.  And I think any libertarian who thinks a) that some rights are inalienable, and b) that consent to the state would involve alienating those rights, and c) that the state can’t be justified absent consent, is committed to thinking that political authority is conceptually impossible.  Which means probably most Rothbardians (for example) are so committed.

    It won’t do to tell your free and equal fellows that they should obey your directives (even regarding your property) merely because there exist reasons to obey you that they may or may not be able to grasp. That strikes me as disrespectful and obnoxious browbeating.

    Well, there are stronger and weaker senses of “able” — and part of my beef with the public-reason approach is that it seems to pick one of these arbitrarily. 

    But in any case, to suggest that the innocent and correct should be disarmed against the innocent and incorrect and forbidden to defend themselves against aggression strikes me as morally monstrous.

    I think that’s what Hobbes, Locke, Rousseau, Kant and Rawls believed as well.

    Rawls, certainly.  Kant, maybe.  Hobbes, Locke, Rousseau — the interpretation seems bizarre.

    • berserkrl

      Sorry for the weird formatting.  I blame society.

      • berserkrl

        Never mind, formatting fixed.  I blame Vishnu.

    • Kevin Vallier

      (1) I mean political authority in the broader sense as the authoritative power to use coercion against others. There is political authority even in a market anarchist society, often held by protection agencies. Rights-violators have a duty to comply with the directives of protection agencies. Surely that sort of political authority isn’t conceptually impossible.

      (2) Public reason liberals don’t think the innocent and correct are disarmed in the sense that they cannot use coercion to protect themselves from the use of violence. In those cases, they’re not claiming authoritative coercive, directive power over others. Public justification is required to generate authoritative coercion. It is not required to make the use of force always and everywhere permissible.

      • berserkrl

        But isn’t the question of which forms of coercion are defensive and which aren’t precisely what’s at issue? If X and Y have different views about rights, then X’s use of force against Y may seem defensive to X and not to Y.  I say that X’s actually being right about her use of force being defensive is what makes it legitimate.  What does public reason liberalism say?  

        I don’t understand the distinction between defensive coercion and authoritative coercion; that is, I don’t understand how it applies in a libertarian context.  For a libertarian, doesn’t all legitimate authoritative coercion have to be defensive coercion?  So to what coercion does the libertarian lay claim that the public-reaosn liberal disallows?

        • Julian Sanchez

          The relevant difference in these types of views is form, not content. They could, in principle, believe that exactly the same types of coercion are legitimate; what distinguishes them is the way the justification is supposed to work.

          • berserkrl

            But Kevin seems to have in mind some theory-neutral conception of defense. I’m trying to figure out what that is.

  • Hume22

    “It’s a prominent assumption in the works of … Locke …”

    I have to disagree with you on this.  I do not think it is an “assumption” of Locke, but an argued-for conclusion and premise in a larger argument.  This is extremely important.  And I think that Gaus (and other liberals) often under-sell the importance and novelty of the claim that individuals are all free and equal.  So what Gaus takes to be the *problem* of justification as the distinctive contribution of the early liberals, he misses the point that it was the *recognition of a need for* such justification that itself was one of if not the most important contributions to political philosophy of the period.  In other words, it was the conclusion that individuals are free and equal (in the sense of morally free and equal) that was so important.  By simply assuming that we are free and equal, you obscure the fact that these are moral claims in need of moral justification and moral argumentation.  But if that is so, then surely the *reasons for* the conclusion that individuals are morally free and equal must also play a role in the nature of and answer to the justificatory question.

    In a simplistic way of characterizing it: Locke begins by asking “why not natural monarchy?” whereas Nozick begins with “why not anarchy?”  Both questions are relevant, and the reasons appealed to in answering both questions are important.

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