My latest post at Libertarianism.org takes on the idea that libertarianism should be understood as a doctrine committed to the maximization of freedom.

There are several serious problems with this view. The first is one that is common to all maximizing views—most notably, classical utilitarianism. In classical utilitarianism, of course, the goal is to maximize utility rather than liberty. But the most serious objections to utilitarianism as a political morality really have nothing to do with the nature of the maximand. They have to do, instead, with the idea that morality should aim at the unconstrained maximization of some aggregate, interpersonal good.

I don’t expect this to be a terribly controversial argument. No serious libertarian intellectuals think about libertarianism in terms of maximizing liberty. But I think that some critics and advocates of libertarianism slip into talking about it in that way in their more careless moments.

The most controversial aspect of the post, judging from the comments on Facebook and elsewhere, concerns a minor engagement I enter into with Murray Rothbard. Let me set the context a bit more fully than I did in the original post.

Chapter six of Power and Market is devoted to examining and criticizing various forms of “antimarket ethics.” One of these is egalitarianism. Rothbard spends a lot of time critiquing standard forms of egalitarianism, going so far as to call the doctrine “meaningless,” and then says that

Its only meaningful formulation is the goal of “equality of liberty”—formulated by Herbert Spencer in his famous Law of Equal Freedom: “Every man has freedom to do all he wills, provided he infringes not the equal freedom of any other man.”

But then Rothbard says that even Spencer’s advocacy of equality is flawed – not because it’s wrong but because it’s unnecessary. Here’s the relevant passage, at length:

And finally, as Clara Dixon Davidson pointed out so cogently many years ago, Spencer’s Law of Equal Freedom is redundant. For if every man has freedom to do all that he wills, it follows from this very premise that no man’s freedom has been infringed or invaded. The whole second clause of the law after “wills” is redundant and unnecessary. Since the formulation of Spencer’s Law, opponents of Spencer have used the qualifying clause to drive holes into the libertarian philosophy. Yet all this time they were hitting at an encumbrance, not at the essence of the law. The concept of “equality” has no rightful place in the “Law of Equal Freedom,” being replaceable by the logical quantifier “every.” The “Law of Equal Freedom” could well be renamed “The Law of Total Freedom.”

As I write in my post, Rothbard’s argument here seems clearly flawed. Libertarianism does not hold that each person has the freedom to do all that he wills. It does not hold, for instance, that people have the freedom to punch each other in the nose. The freedom of each person is limited by the rights of others.

Now, obviously, Rothbard knows this. So what’s going on? I’ve read the passage a dozen times, and I can’t see another way of interpreting his argument that avoids attributing to Rothbard this obviously silly view.

I suspect that part of what’s going on is that Rothbard doesn’t have a clear grasp of the distinction between moralized and non-moralized conceptions of freedom, and that he’s slipping between the two in different places in his work without really realizing it. In the non-moralized sense of the term, our liberty is violated whenever other human beings interfere with our actions. In the moralized-sense of the term, our liberty is violated only when other human beings wrongfully interfere with our actions.  If you walk into my unlocked house without permission, start carrying out my TV without my permission, and I use physical force to stop you, then I am infringing upon your liberty in the non-moralized sense but not in the moralized sense. I am interfering with your actions, but I am not wrongfully interfering with your actions.

So, does libertarianism hold that each person has the liberty do all that he wills? In the non-moralized sense of liberty, clearly not. If you try to punch me in the nose or steal my stuff, others can rightfully interfere with your activity. But what about the moralized sense of liberty? Here, perhaps, the claim is plausible. If liberty refers only to the absence of wrongful interference, then my liberty is not infringed when the police stop me from trying to punch you in the nose. So long as I act within my rights, others may not interfere with my actions. And if I’m acting outside of my rights, others’ interference with my actions doesn’t constitute a violation of my liberty. Thus, it is never the case that my liberty can be rightfully interfered with. I have the maximum amount of liberty conceivable.

The problem with this argument, which I gesture at in my post without explaining sufficiently, is not that it’s wrong but that it’s vacuous.  If I say that my theory assigns each person the maximum conceivable liberty, that sounds like I’m saying something substantive and important. But if I go on to tell you that what I mean by liberty is just the freedom to do everything you have a right to do, then it’s clear that I’m not saying anything substantive or important at all. Any theory can say that. Libertarians think you have the freedom to do everything you have the right to do; but so do egalitarians, communitarians, socialists, etc. Understood in this moralized way, the idea of “liberty” isn’t doing any real philosophical work anymore – all the work is being done by the underlying theory of rights. And that’s fine, in a way, if libertarianism is fundamentally about the protection of certain rights and not really about the protection of liberty as such. But then we should use the word “rights,” rather than “liberty” to talk about what we think is important, and avoid the confusion.

Part of me thinks that the equivocation between these two senses of liberty is at least semi-deliberate on Rothbard’s part. At some level, and at some moments, he recognizes that libertarianism on his construal is about the protection of property rights, not about the protection of liberty as such. But he doesn’t want to admit that you can’t have both – that property rights and liberty (in the ordinary, non-moralized sense of that term) can come into conflict with each other. So when he sees that conflict coming, he switches over to the moralized sense of the term: the liberty of the poor is not infringed when you beat them over the head with a stick for trying to take your bread, because their rights were not violated by your doing so. But this is a cheap move. If we’re going to justify property rights, or libertarian positions more generally, we need to do so while squarely facing their moral costs. And that means recognizing the possibility of conflicting values, and doing the work involved in arguing that the trade-offs we advocate are justified.

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  • Guest

    On the uncontroversial first part of the essay: I always thought the idea of Maximized Liberty meant always implied a universality/equality of liberties. With that understanding, the primary objection seems to go away (eg no-one need walk away from Omelas).

    However, I can’t seem to decide if this would reduce the first argument to the second, or if it simply fixes both.

  • http://www.facebook.com/bo.zimmerman Bo Zimmerman

    On the uncontroversial first part of the essay: I always thought the idea of Maximized Liberty implied a universality/equality of liberties. With that understanding, the primary objection seems to go away (eg no-one need walk away from Omelas).

    However, I can’t seem to decide if this would reduce the first argument to the second, or if it simply fixes both.

  • Aeon Skoble

    On page 242, in the very chapter you’re discussing, Rothbard does exactly what you’re denying he does. His argument is not flawed (at least not in this respect); he makes exactly the distinction you say he should.

    • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

      Sorry, Aeon, I’m not seeing it. P. 242 (at least in the PDF file I linked to) is in a different chapter altogether, and is discussing democracy. Can you point me to the right page in this version: http://library.mises.org/books/Murray%20N%20Rothbard/Power%20and%20Market%20Government%20and%20the%20Economy.pdf

      • Aeon Skoble

        That link won’t open for some reason. In any case, it’s subsection a of the “appendix” to chapter 6, a few pages after section 16 of that chapter but before chapter 7. It’s a defense of a natural-law understanding of liberty, which builds in the compossibility criterion.

        • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

          Ah, I see it now. Page 296 of the PDF I link to above. Thanks, that’s helpful.

          So here, Rothbard clearly does state a moralized definition of liberty:

          “liberty is defined as freedom to control *what one owns* without molestation by others.”

          I think that’s a problematic way of defining liberty, for reasons articulated in the post above. But if we apply this definition to the passage I quote above, and use it to try to make sense of Rothbard’s critique of Spencer, we get the following interpretation of the Law of Equal Freedom:

          “Every man has the freedom to do all that he wills [with what he owns], provided he infringes not upon the equal freedom of any other man [to do what he wills with what he owns].”

          Is this redundant, as Rothbard claims? Does the first half logically entail the second?

          If each person has the freedom to do all that he wills with what he owns, but not the freedom to do anything with what he doesn’t own, then it looks like the second half is in fact redundant. I can use my fist to hit my wall, but not to punch your nose, according to just the first clause.

          But notice that on this interpretation, the first clause is redundant too! Rothbard defines liberty as “freedom to control what one owns without molestation.” But “freedom” in the definition must really mean “right,” in order to avoid circularity. So liberty means “the right to control what one owns without molestation.” But, presumably, “ownership” here means “rightful ownership” not “legal ownership.” And so, ultimately, Rothbard’s definition of liberty boils down to “the right to control what one has rightful ownership of.” In other words, liberty is just rightful ownership.

          Spencer’s law of equal freedom, whatever problems it might have, at least had the virtue of actually being about freedom. That’s why the second clause really was necessary for him. Rothbard is using the language of freedom, but it’s a misleading language for him to use, since his theory is ultimately about property rights, not freedom. On Rothbard’s theory, freedom is compatible with the severest imaginable constraints on one’s ability to act, so long as those constraints are not wrongful. A justly convicted prisoner locked in the smallest of cells is free, because imprisonment is not a violation of his rights. An individual who isn’t able to move an inch because he is surrounded by a ring of private property is likewise free. This, I think, is a pointlessly misleading way of talking about liberty.

          • liberty

            “But notice that on this interpretation, the first clause is redundant too! … So liberty means “the right to control what one owns without molestation.” But, presumably, “ownership” here means “rightful ownership” not “legal ownership.” And so, ultimately, Rothbard’s definition of liberty boils down to “the right to control what one has rightful ownership of.” In other words, liberty is just rightful ownership.”

            I’m not sure that’s redundant (by the way, I’m having a sense of deja vu, like I have had this debate on this site before…) — I think he’s saying that freedom is the state of affairs in which the state or system RESPECTS the fact that every [hu]man has this right of rightful ownership. In other words, that his [natural or however originated] right of ownership is in fact respected such all people can in fact exercise their freedom to all they will [with their property].

      • http://www.facebook.com/billardkarr Bill Karr

        It’s page 295 in this document.

  • Kevin Dick

    I think part of the problem is simply that most people lack a detailed understanding of utility theory. So it’s easy for you to debunk this view because people have mistranslated their qualitative observations into technical language.

    My “most charitable view” (a la Arnold Kling) of the perception that libertarians maximize liberty is that what people actually mean is that libertarians seem to have some sort of “liberty constraint” in their statement of the utility optimization problem.

    Sure, liberty is one of many variables in the objective function. And libertarians give a greater weight to this variable than many other views. But libertarians, or at least hard libertarians, also impose a constraint on the optimization problem. Liberty cannot drop below a certain level. There is no tradeoff to increase other variables in the objective function that is big enough to force liberty below this level.

    You may characterize this level as a bundle of “rights”. But it is a hard constraint on the choice of possibilities. As you get to this constraint, it certainly does appear that you are only maximizing liberty. And of course, many thought experiments get conducted near this margin.

  • Reason Liberty

    Actually you hit on the exact problem. Liberty doesn’t (oughtn’t) mean anything more than a respect for rights, and freedom to act as you will *within those rights*. It has no concept outside of that. What you call non-moralized liberty is relatively useless to talk about, because every single action of a person violates the non-moralized liberty of another person. If I decide to eat my own apple, I am violating the non-moralized liberty of another person to eat that apple. If I move my body I am violating the non-moralized liberty of another person to use me as a slave.

    In fact, this “non-moralized liberty” is what left-libertarians like calling “freedom” – that’s why I’ve stopped using that term. They say things like “the lack of Social Security benefits limits the freedoms of old people because *they can’t do what they want to do*”. So freedom is then recast as “the ability to do things in general”. That’s why it’s relatively useless. Moralized liberty is the only thing that really matters.

    Rothbard might be using sloppy wording, but he has the right idea.

    • good_in_theory

      “Liberty doesn’t (oughtn’t) mean anything more than a respect for rights, and It has no concept outside of that.freedom to act as you will *within those rights*. ”

      Well, it does mean things other than that, and it does have a concept outside of that, given how it is used, so the question is what *should* it mean, which requires an argument.

      “What you call non-moralized liberty is relatively useless to talk about, because every single action of a person violates the non-moralized liberty of another person.”

      This might be trivially true in the sense that for every happening/action or “doing of x” one could write “my freedom ‘that A not do x’, or ‘that x is not done’.”* But one can be more qualified here, I’d think, without being moralizing, though it might get tricky.

      *e.g. the Christian’s ‘freedom’ that no one commits sodomy or that no sodomites marry, or the ‘freedom’ that no one ever be racist/sexist/bigoted/chauvinist in their actions towards others, to borrow from left and right.

      “So freedom is then recast as “the ability to do things in general”. That’s why it’s relatively useless.”

      One might think that our “[capacity or] ability to do things [in general] is quite important. The history of civilization is to a large extent a history of an increase in our capacity to do things, while the liberal perfectionist history of civilization is one of our capacity to do mutually beneficial, Pareto optimizing things (e.g. the liberal history of trade and the diffusion of knowledge.)

      Of course, it has also, at the same time and in many ways as a direct consequence, been an increase in our capacity to do (mutually) harmful and destructive things (call that the Luddite pessimist view).* .

      *And this tension is an object of analysis for many canonical political theorists/philosophers – first to mind is Rousseau, but there are others.

      Surely it is “relatively” useful to distinguish the increase in the general capacity for action from the increase in morally neutral or beneficial actions. Whether one uses “non-moralized liberty/freedom” vs “moralized liberty”* as the name for the distinction – or makes it between,say, “capacity/ability” on the one hand and “liberty/freedom” on the other – is just quibbling over names.

      *together one could divide these into, say: moral, immoral, and neutral aspects of increases in capacity/freedom – such analysis would seem to be a good place to start one’s justification of a set of rights, even if it ends up that one can cleanly demarcate the bad from the neutral or good through as allegedly simple a legal-moral-political heuristic as the NAP + property rights.

  • http://www.facebook.com/billardkarr Bill Karr

    “If we’re going to justify property rights, or libertarian positions more generally, we need to do so while squarely facing their moral costs.”

    Uhhhh… that is literally the EXACT same reasoning to justify ANY state intervention into personal or economic behavior. Examples:

    “If we’re going to legalize marijuana smoking, we need to do so while squarely facing the moral costs.”

    “If we’re not going to invade Iraq to take down a dictator, we need to do so while squarely facing the moral costs.”

    “If we’re not going to tax the rich and in turn be forced to cut social welfare programs, we need to do so while squarely facing the moral costs.”

    “If we’re not going to mandate that people buy their own health insurance, we need to do so while squarely facing the moral costs.”

    I think you have some clarification to do.

    Rothbard is correct in saying that the second clause is redundant. Saying everybody has total freedom does not mean I can go around bashing people over the head. As soon as I have bashed someone over the head for no reason at all, I have violated someone else’s freedom and thus violated the first clause.

    There’s a whole other question as to once somebody’s rights have been violated, how do we go about retaliation, how much is justified, etc.

  • Ethan Pooley (furball4)

    I see that my pre-release comments did not mesh very well with your article. There are a few things that we can mean by “maximizing liberty”, and you have treated a different one. But consider mine now, if you will:

    “The law of equal freedom contains within it the law of maximum freedom. For if a majority decides any issue for all, that it could have avoided, it makes the minority less free than itself, and thus unequally so.”

    To paint this up in the terms of your article I am talking about moralized liberty (rather than non-moralized) and individual liberty (rather than aggregate). I took Spencer’s equality clause as effectively stipulating these, so they are retained in my extension. I disagree with your conclusion here:

    “If I say that my theory assigns each person the maximum conceivable liberty, that sounds like I’m saying something substantive and important. But if I go on to tell you that what I mean by liberty is just the freedom to do everything you have a right to do,
    then it’s clear that I’m not saying anything substantive or important at all.”

    Since most governments constrain individuals far beyond the realm of prohibitions against violating the negative rights of others, this is saying quite a bit of substance indeed. Does it flesh out all of morality for us? No. Does it solve alternative problems, such as what might be justifiable under a framework of social contract? No. It doesn’t even argue its own claim – it just IS the claim. But that claim does stipulate that nothing within the realm of whatever we accept as “moralized liberty” can be constrained. And how then is a government going to defend a prohibition against suicide? “Equal” is not the only key word in Spencer’s second clause: “other” is just as operational. A great deal of what libertarians are concerned with resides in that cleft.

    • Ethan Pooley (furball4)

      Someone? Anyone? Am I completely missing the target here? Help a reader out…

  • http://plenarchist.wordpress.com/ plenarchist

    Rothbard was indeed wrong in his criticisms of Spencer’s first principle of equal freedom but there should be no mystery as to why. We need to keep in mind that Rothbard was a mischievous thinker who had a penchant for framing his arguments to rationalize “stateless anarchy” – which is itself a contradiction.

    In the case of equal freedom, Rothbard chose to toss us a red herring rather than deal with the inevitable conclusion that for equal freedom to be possible, it would require the state. The first clause of the principle, “Every man has freedom to do all he wills” meant to Spencer that to achieve maximal social evolution, we must promote what Spencer called “positive beneficence” (the opportunity for all to act freely). The second clause, “provided he infringes not the equal freedom of any other man” means that to facilitate positive beneficence, we must inhibit “negative beneficence” – achievable with law and we can have law only with the state. Rothbard had no choice then but to hide the second clause under the sofa cushions to avoid what otherwise becomes the obvious necessity of the state. However as Zwolinski notes, taking the first clause by itself would be to claim freedom to act in any manner regardless of affect on others – freedom to murder, steal, etc. – but that fits Rothbard’s “no state” ideology.

    And arguing egalitarianism as not possible as Rothbard did sheds more light on his biases than on the subject he examined. A just law for instance is egalitarian because it applies to everyone equally. A law making murder illegal applies to everyone who is convicted of murder. Same goes for stealing, assault, etc. Justice to be just (and not “just us”) must be egalitarian. But is everyone who commits murder convicted? No. Is that a reason to simply toss out laws against murder? No. But just because the philosopher says dismissively that perfect equality is not possible as he counts angels dancing on the head of a pin is no reason to reject striving to attain equal freedom as much as humanly possible in the real world.

    But equal freedom must be properly framed which Rothbard couldn’t do without inevitably destroying his “no state” proposition. Equal freedom to Spencer meant that each person must have an equal opportunity to act free from coercion – not each person to have an equal unrestrained ability to act. And creating a condition whereby individuals have an equal opportunity to act freely is accomplished by enacting laws that discourage negative beneficence – laws that act to remove coercion and not laws that promote equal outcomes such as economic or employment equality.

    If a person lives in a society that treats murder, stealing, assault and other acts of negative beneficence as criminal acts, the absence of these offenses then creates the condition for maximum individual equal freedom – the ideal condition for promoting social progress. This can only be accomplished through law. And along with equal freedom, equal justice and equal power sharing must be promoted to maintain conditions for peaceful social evolution – which I refer to as the Spencer equilibrium. Egalitarian? Yes, and necessarily so for the sake of liberty for all.

  • Pingback: Rothbard versus Spencer « The Plenarchist

  • liberty

    I’m writing this before reading the comments, so I apologize if someone else has said this; but I think though your analysis is essentially correct there is a more generous way of saying this, that sort of shows how Rothbard thought his point was so strong. He said, paraphrasing Clara Dixon Davidson on Spencer’s Law of Equal Freedom, that it is redundant because:

    “if every man has freedom to do all that he wills, it follows from this very premise that no man’s freedom has been infringed or invaded.”

    What I think he has done semantically is equate freedom with the freedom (or right) to not have your freedom impinged upon–in other words in order that EVERY [hu]man have freedom this IMPLIES that one has a freedom (or right) to defend oneself against someone impinging that freedom; or that this AUTOMATICALLY justifies state (or some governance structure) action to prevent or punish such infringements upon the person’s freedom. The phase is “redundant” because any infringement upon another’s freedom prevents the first part, which is the statement that all people have freedom.

    The problem of course is that stating something does not make it so. The state can promise everyone abundance – say that they have a right to it – but this does not mean that their system of which this right is protected actually leads to or allows for such abundance. If there is a state which promises it, how can we be sure the state can raise the funds to provide it? Similarly, just because the state says it will guarantee every [hu]man freedom to do all he wills, how can we be sure that he will have this freedom? Libertarians tend to argue that the second part of the (arguably redundant) Law acts to guarantee it, by outlawing any infringement by one [hu]man against another’s freedom.

  • matt b

    test

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