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.