Libertarianism as a Programmatically Incoherent Social Philosophy

Self-ownership and just holdings

We have seen that the self-ownership thesis affirms each person’s moral ownership of their body and mind. So far so good. But as Murray Rothbard points out, “people are not floating wraiths; they are not self-subsistent entities; they can only survive and flourish by grappling with the earth around them…Man, in other words, must own not only his own person, but also material objects for his control and use.”13placeholder Does the thesis of self-ownership help explain “How, then, should the property titles in these objects be allocated?” In other words, if the thesis of self-ownership is supposed to be the foundational principle of (hard) libertarianism, what does it have to say about how individuals come to acquire resources external to themselves that they require for sustaining life?

The short answer is that the ‘boundary of the self’ can be extended to include resources beyond an individual’s corporal person. How this happens, morally speaking, is a subject of considerable debate and controversy. The oft-cited account comes from John Locke, who provided a ‘homesteading theory’ that “has become the starting point for almost any discussion of the appropriation-based justification of property rights.”14placeholder At the center of Locke’s account is the claim that, “The first person to mix his or her labor with land needs no one else’s consent to appropriate it.”15placeholder In short, when one mixes their labour with a previously unowned resource that the resulting product is now within the boundary of the labourer’s self, thereby granting the labourer property rights over that thing. This seems intuitive. If Alpha finds a fallen tree in the woods and carves it into a beautiful table, it appears that Alpha now has a reasonable claim to ownership of the table given that the table’s existence is, after all, entirely the result of Alpha’s labour.

The obvious problem that results, however, is the abuses that could be sustained by this ‘labour-mixing’ theory of just acquisition. For example, as many have already pointed out, it would seem that one could easily claim for themselves huge swaths of unowned resources by simply ‘altering’ the landscape – but such land grabbing is clearly socially unsustainable.16placeholder Locke tried to address this ‘boundary problem’ with the introduction of ‘provisos’ that function as protections against abuses in the acquisition process – a discussion beyond the scope of this article. Nevertheless, Nozick (and others) adopt Locke’s ‘labour-mixing’ account of how individuals come to justly acquire resources in the first place. In ASU, Nozick attempts – arguably unsuccessfully – to circumvent the quagmire of potential objections by re-interpreting Locke’s provisos, “to mean that if the initial acquisition fails to make anyone worse off who was using the resource before, then it is justly acquired.”17placeholder

Nozick then goes on to specify a second way by which individuals can come to own resources external to themselves: namely, the process of voluntary ‘transfer’. If Alpha decides to give the table away to Beta as a gift, then Beta comes to have a rightful claim of ownership over the table. Again, there doesn’t appear to be anything immediately objectionable about this idea. As we stated before, what it means to ‘own’ something is to have a bundle of (property) rights in relation to that thing, and this includes the right to, “sell, give away, rent, or otherwise transfer the [thing] to others.”18placeholder When Alpha ‘gifts’ the table to Beta, they are simply exercising their right to do so – a right that flows from their status of owner of the table, a status their acquired through the exertion of their labour on the wood. And so Nozick declares ‘justice in transfer’ as the second mode by which individuals can come to own things beyond themselves.

When Nozick spells out these principles of ‘justice in acquisition’ and ‘just in transfer’ he is not merely indicating how individuals come to own property beyond their body, he is also contesting the ideas of John Rawls. In A Theory of Justice, Rawls suggests that redistribution of wealth may be necessary to ensure that a society satisfies the requirements of justice. Nozick rejects this idea, arguing that the ‘justness’ of a wealth distribution in society cannot be evaluated by ‘end-state’ (i.e. the top 1% shouldn’t own more than 20% of all wealth) or ‘patterning’ (i.e. rewards should go to those who work the hardest) principles. Instead, Nozick argues, “whether a distribution is just depends on how it came about.”19placeholder More precisely, whether a given distribution of holdings is just depends on, “‘the nature of the transactions’ that produced it.”20placeholder And this is where principles of justice in acquisition and transfer come in: the justness of a given distribution is determined by whether or not it arose in complete compliance with those principles. As Nozick puts it,

“A distribution is just if it arises from another just distribution by legitimate means. The legitimate means of moving from one distribution to another are specified by the principle of justice in transfer. The legitimate first “moves” are specified by the principle of justice in acquisition. Whatever arises from a just situation by just steps is itself just.”21placeholder

 

The thorn of history

As we have seen, the thesis of self-ownership, according to Nozick, implies that there are only two means by which individuals can secure property external to their body (without violating the rights of others): either you acquire something unowned through just initial acquisition or you acquire something already justly acquired by another through just transfer. Therefore, a (society-wide) distribution of holdings is only just if it has arisen through people acquiring their wealth exclusively through those two means. But of course, that obviously fails to describe existing distributions of wealth, as no place on Earth has perfectly adhered to those principles hitherto. Nozick admits as much, acknowledging that, “not all actual situations are generated in coherence with the two principles of justice in holdings” (152). The historical record clearly indicates that, “some people steal from others, or defraud them, or enslave them, seizing their product and preventing them from living as they choose, or forcibly exclude others from competing in exchanges” (152). And so Nozick bluntly clarifies that, “none of these are permissible modes of transition from one situation to another” (152).

Nozick therefore goes on to reason that, “the existence of past injustice (previous violations of the first two principles of justice in holdings) raises the third major topic under justice in holdings: the rectification of justice in holdings” (152). This third principle, like the first two, is inherently compelling. But unlike with the principles of justice in acquisition and transfer, little is provided by Nozick as to how the principle of rectification is actually satisfied. Indeed, shortly after introducing it, Nozick simply rattles off a long list of abstract, complex questions that are naturally implied by the imperative of rectification – a series of questions to which he ultimately provides one relatively opaque answer: “I do not know a thorough or theoretically sophisticated treatment of such issues.” To be fair, Nozick does go on to suggest that some process will have to be devised to use “subjunctive information about what would have occurred… if the injustice had not taken place,” and that observed deviations from that estimate ‘must be realized’ (152-153).

And here begin the problems with libertarianism as a social philosophy that is programmatically coherent. The principle of rectification is undeniably necessary in the hard libertarian framework (and according to moral common sense) – the rise of an unjust distribution of holdings must be rectified. Yet, any serious consideration of what this principle actually requires, let alone any attempt to actually realize a present distribution of holdings that accords with it, appears downright impossible. Of course, this is not a novel point and has been made by others who question the viability of ‘natural rights libertarianism’ as a meaningful normativity for social policy. One such skeptic, Brink Lindsey, raised this very issue, writing:

“…even though it is possible in theory for property rights to arise and be transferred without aggression, that possibility has little to do with the actually existing distribution of rights over land and material objects. Here in the real world, virtually all chains of title trace back to armed conquest and plunder. In the United States, expropriation from Indians and aggressive wars figure prominently in the story.”22placeholder

Lindsey is right to also list ‘aggressive wars’ as a phenomenon that ‘figures prominently in the story’ of current wealth distributions in the United States. Most people acknowledge that ‘way back in the nation’s history’ there were crimes of expropriation like the institution of slavery and expansion onto Native lands that have impacted contemporary holdings, but there is arguably a lack of recognition that such crimes continue today. Consider that the United States has over eight hundred military bases across the globe23placeholder and is currently involved in seven wars according to a 2018 White House report sent to Congress.24placeholder These two facts alone should clearly indicate that our current military engagements are offensive, not defensive. If achieving national security required having military outposts in nearly every other country in the world, then no nation other than the United States could claim to be ‘safe’ from aggression. The more obvious explanation, and indeed the one that is best supported by the evidence, is that that U.S. military presence around the world is the workings of an imperial empire.

Rania Marsi, writing in the International Socialist Review, provides explicit details of how the Iraq War is, at root, a ‘corporate invasion of Iraq’ designed to ‘reconstruct’ the Iraqi political system and economy in favor of U.S. multinationals like Halliburton, Bechtel, and numerous others.25placeholder The imperial nature of ongoing military action by the United States therefore has material benefits for American citizens. How, exactly, those benefits are distributed amongst the entire U.S. population is, in all likelihood, extremely hard, if not impossible, to measure. But the point is this: even those who, today, bemoan subjection to theft by the institution of taxation (often) fail to disclose the hidden subsidies in their own pay packets that result from the rights-violations occurring in foreign nations at the hands of U.S. empire. Every ‘inch’ of existing distributions in any nation, particularly the United States, is indubitably and entirely colored by historical and present-day injustices of expropriation.

The impossible mandate of a just distribution

Having now considered what constitutes a just society as envisioned by hard libertarianism, we can begin to understand its programmatic incoherence. In short, the first requirement of instantiating an actually (hard) libertarian-conforming society would be to ensure that the distribution of holdings is just – i.e. that each person’s accumulated wealth was obtained in a manner consistent with the principles of justice in acquisition, transfer, and where necessary, rectification. This raises the obvious question of how this could ever be achieved? The first problem to arise is the issue of how far back into the past we are morally required to go so as to rectify all the injustices that have occurred hitherto. As Lindsey puts it,

“At issue here is when to wipe the slate clean on past injustices. Implicit in the prevailing libertarian position today is that injustices sufficiently remote in time can be ignored. It is a sensible position: the common law features many doctrines that favor legal certainty over the claims of justice… while in the criminal law statutes of limitation serve the same purpose. Yet different rules apply in other circumstances. For example, an unwitting purchaser of stolen property (e.g., a work of art) can be required to return that item to the original owner even after decades of uncontested possession. You can make plausible arguments either way: how long valid claims of right persist in time cannot be deduced logically from the concept of natural rights. Here again, natural rights are indeterminate.” (n.d.)

Lindsey’s larger point is that we cannot look to the doctrine of self-ownership – i.e. our having natural rights – to answer such a question. That individuals are self-owners in no way helps us answer the question of how far back in time we ought to go in trying to rectify injustices of the past. According to Lindsey, “radical libertarians today generally hold that governments should affirm and protect the current pattern of property holdings and that any redistribution of property by government is illegitimate.” He is therefore right to ask, “What gives?” What imperatives within libertarian theory suggest that in the transition to a libertarian-conforming society, the current distribution of holdings should simply be accepted as legitimate? We have already specified that up the present moment – and for every present moment to come in the foreseeable future – existing distributions of wealth are the product of unjust expropriation.

Beyond the problem of time is the issue is the more immediate ‘tracking problem’. That is, how are we to (a) make known every instance of an unjust holding, and (b) map out the impacts of every unjust holding on the larger distribution? With respect to (a), it is undeniable that our limited knowledge of history denies us the opportunity to rectify each and every accumulation of wealth that did not accord to the principle of justice in acquisition or transfer. One area in which this is particularly relevant is reparations for slavery. It is painfully obvious that incredible acts of theft occurred with the institution of slavery and rectification was owed, and importantly never received. Which of course means that current day distributions are tainted by some having what they should not whilst others having not what they should. But what is to be done? Hard libertarian, Walter Block, argues that on this matter,

“Unless proven otherwise, every extant property title is to be considered legitimate. The burden of proof, that is, rests squarely on the shoulders of those who wish to overturn duly registered property. If there is any historical research to be undertaken, this must be done by those who wish to refute already accepted claims, not those who wish to defend them.”26placeholder

As Block himself admits, “libertarian theory is actually a very conservative one,” when it comes to this dilemma. There is no requirement for the government to create a task force to construct ‘racial genealogies’ to help navigate this problem. Nor is there a moral commitment to implement a generalized redistribution of holdings to the ‘ADOS’ (American descendants of slavery) community at large. Instead, lone individuals must figure out, exactly, what injustices their family suffered approximately one-hundred and sixty years ago, who is responsible for rectifying that wrong, and provide compelling evidence to support their claims. And let us add that these lone individuals are likely to be marginalized members of society today, and they would have to legally challenge probabilistically more powerful individuals in the courts. Think about how difficult it can be for a well-resourced district attorney’s office to prove that a crime recently occurred, and for courts to determine the just response. Attempting to litigate crimes from over a century ago, via suits brought by individuals, seems unimaginable.

We can see how even more absurd this becomes when we factor in part (b) of the tracking problem. Proving that a particular injustice occurred is already a challenge, but the obviously more difficult task would be trying to measure its impacts and thereby what would be called for in terms of rectification. Let us take the corporate invasion of Iraq as one example. One consequence of U.S. military interference in Iraq is that American corporations like Exxon Mobil and Chevron obtained access to oil reserves that were previously nationalized and closed off to Western corporations. The result is that,

“For the first time in about 30 years, Western oil companies are exploring for and producing oil in Iraq from some of the world’s largest oil fields and reaping enormous profit. And while the U.S. has also maintained a fairly consistent level of Iraq oil imports since the invasion, the benefits are not finding their way through Iraq’s economy or society.”27placeholder

The invasion of Iraq thus led to (1) Iraqi’s having their oil expropriated, and (2) American corporations enjoying profits from such expropriation. Those profits, by all accounts, are unjust holdings as they did not arise from either the principle of justice in acquisition or transfer. Now, imagine that the Iraqi government, on behalf of the citizenry, calls for rectification of U.S. expropriation. How would this be achieved? It would be necessary to track the flow of the profits Exxon or Chevron obtained directly from refining Iraqi oil reserves. But where are those profits ten, fifteen, or twenty years later? What if these companies used some of the profits to subsidize cheaper gas prices for consumers in order to achieve a more competitive position in the market? In such a case, wouldn’t it mean that average Americans obtained unjust holdings that originate with the corporate invasion of Iraq? Or what if these profits were paid out to shareholders through stock buybacks? In these scenarios, who owes the Iraqi government compensation? Just the companies? The people who enjoyed subsidized gas prices? The shareholders who had their stock bought back by the corporation?

David versus Goliath justice

None of these difficult questions are clearly answered within hard libertarian theory. If Nozick is correct that justice in holdings is historical, then, it would seem that any attempt to realize a just society would be endlessly lost in the impossible pursuit of justice. It is the central contention of this article that when a social philosophy advances a theory of justice that is ostensibly unachievable, that philosophy should be rejected. Perhaps the libertarian could counter, as Block does, that libertarian theory accounts for the need to rectify current holdings by allowing individuals to pursue such rectification in legal proceedings. Yet, for reasons we have discussed, to ascribe such freedoms to individual claimants seems to be nothing more than what Adam Swift refers to as a “cruel joke”.28placeholder Sure, in simple cases of John stealing Rachel’s phone, Rachel could easily seek legal action against John in the manner described by Block. But when dealing with matters like international wars and resource extraction or the historical legacy of slavery, to place the burden of rectification ‘squarely on the shoulders’ of the likely marginalized victims is simply a gift to the perpetrators of such crimes.

Consider as evidence for this assertion the growing practice of corporations to insert mandatory arbitration clauses into employment contracts. As Moira Donegan explains, employees,

“…at a ballooning number of American companies, [are] subject to forced arbitration – meaning that if they had a conflict with their employer, such as wage theft, race discrimination, or in this case, sexual harassment, they were not entitled to take that claim to court. Instead, they would be forced into an alternative justice system called arbitration. Arbitration is a system of private courts. They operate using different rules than civil courts – there is no judge or jury, for instance, but an ‘arbitrator’ who is chosen by the parties, and paid by the employer, to decide the case. It is strictly confidential. Since the 1920s, arbitration has been legally binding: once parties agree to settle a dispute in arbitration, they give up their right to go to court.”

The increasingly frequent decision by corporations to include mandatory arbitration clauses in employment contracts is predicated on a number of considerations. But one in particular stands out: “in arbitration, all disputes are one-on-one. There is no such thing as a class action arbitration case.” Thus, in circumstances where, for example “sexual harassment is pervasive at a company, with many victims who have standing to complain,” ultimately each individual woman, “will have to bring complaints to arbitration one at a time.” Donegan clarifies that this arrangement, “changes the economic calculus of bringing a harassment complaint: it is much less efficient, and much more expensive, to hire a lawyer for every individual employee who has been victimized.” On top of that, “In arbitration, employees win their cases much less often than in court – and when they do, they are awarded much less money. There’s no right of appeal.”

The mandatory arbitration clause effectively forces those who experience injustices in the workplace to seek compensation through a system that substantially limits their power. They have no recourse to mount a more serious, and likely successful, challenge through grouping resources and sharing information with fellow victims. Thus, to constrain workers to arbitration as their only compensatory path is clearly to the benefit of the employer – as borne out by the statically documented outcomes. Is not something similar at play in Block’s proposal? To place the entire pursuit of rectification for historical wrongs on the shoulders of (marginalized) victims seems to only benefit the benefactors of historical aggression. Whereas employees lose power through the impossibility of collective action via class action lawsuits, victims seeking rectification for past wrongs lose power through the impossibility of collective action via state assisted resolutions (such as a reparations program). Could the descendant of a slave actually win a claim of rectification against someone like the Senate majority leader, Mitch McConnell, whose family owned slaves?29placeholder Furthermore, does Block’s model not ‘change the economic calculus’ of victims pursuing justice, as this model would make winning compensation more difficult?

To grasp just how dubious of a path to justice Block’s proposal would be, one need only study what has happened to environmental lawyer Steven Donziger. Donziger, in remarkable fashion, “won a multibillion-dollar judgment in Ecuador against Chevron over the massive contamination in the Lago Agrio region and has been fighting on behalf of Indigenous people and farmers there for more than 25 years.”30placeholder In line with the libertarian account, he was seeking rectification for rights-violating activity committed by Chevron. By attempting to bring forth such this claim on the behalf of the Ecuadorian people, Dozinger has been condemned to nothing short of a psychological nightmare at the hands of one of the world’s most powerful corporations – an effort openly admitted to by Chevron. As reported by Sharon Lerner,

“Chevron has continued its all-out assault on Donziger in what’s become one of the most bitter and drawn-out cases in the history of environmental law. Chevron has hired private investigators to track Donziger, created a publication to smear him, and put together a legal team of hundreds of lawyers from 60 firms, who have successfully pursued an extraordinary campaign against him. As a result, Donziger has been disbarred and his bank accounts have been frozen. He now has a lien on his apartment, faces exorbitant fines, and has been prohibited from earning money. As of August, a court has seized his passport and put him on house arrest. Chevron, which has a market capitalization of $228 billion, has the funds to continue targeting Donziger for as long as it chooses.” (n.d.)

Lerner documents the Kafkaesque series of events that has landed Dozinger in such a precarious situation. At each turn, ‘highly unusual’ rulings and ‘legal peculiarities’ have dogged Dozinger, at the hands of actors with ties to Chevron. This has led Dozinger to claim, “I’m like a corporate political prisoner…They are trying to totally destroy me.” On top of this, Chevron has publicly stated that, “any jurisdiction that observes the rule of law should find the fraudulent Ecuadorian judgment to be illegitimate and unenforceable,” and that, “Chevron will continue to work to hold the perpetrators of this fraud accountable for their actions, including Steven Donziger” (n.d.) Our purpose here is not to litigate the innocence or guilt of the parties involved in these proceedings, but rather to establish a reality associated with pursuing claims of rectification: imbalances in power will massively shape, and potentially delegitimize, the entire process. The belief of hard libertarians like Block – and anarcho-capitalists – that victims of rights-violating behavior can simply rely on pursuing legal redress exclusively through (private) courts or arbitration is seriously undermined by the brute facts of reality. Such a system would transform proceedings to restore justice into a ‘David versus Goliath’ contests.

We can see that the libertarian-conforming system presents a deeply flawed foundation on which to build a just society. Victims would, under this arrangement, have their ability to seek compensation immensely constrained by imbalances of power. Just as employees forced into arbitration have lost the ability to utilize more powerful approaches likes a class-action lawsuit, victims of expropriation (both in history and today) would, under Block’s account, lose out on the option of a government intervening on their behalf. In short, one descendant of a slave seeking reparations on their own through litigation versus the government instituting a general reparations program is a stark dichotomy. Clearly, the former, and libertarian-conforming, route is highly preferable to those whose wealth is inflated by unjust holdings.

Conclusion

We have seen that perhaps the social policy requirement for instituting a libertarian-conforming society is to establish justice in holdings. Yet, this suffers from two crucial limitations. First, there is the epistemological issue: it is impossible to ever know whether a distribution of holdings is, in fact, just. The ‘time’ and ‘tracking’ problems explain why. On top of that, there is no obvious answer to how these problems are resolved within libertarian theory. Second, even if the epistemological issue could be overcome, the route to addressing claims of rectification in libertarian thought – namely, for individual claimants to pursue redress through litigation or arbitration – is an incredibly dubious prospect. In this arrangement, the ability of claimants to seek compensation is significantly constrained by the reality of power imbalances. The insertion of mandatory arbitration into employment contracts lends support to this assessment and the case of Steve Donziger could be held up as a warning for those who seek rectification from transgressions by extremely powerful actors.

The problem of programmatical incoherence is a serious limitation for libertarianism as not all social philosophies suffer from it. What should be evident by now is that it is the historical view of justice advanced in libertarian thought that produces this intractable dilemma. In short, Nozick’s entitlement theory of justice requires the rectification of historical injustices by only looking backwards. It is this requirement of righting the wrongs littered throughout history, in addition to remediating the highly complex injustices that occur today, that leads to the unsolvable ‘time’ and ‘tracking’ problems outlined above. How a society – such as the United States – goes from its current status as a non-conforming libertarian society to libertarian-conforming one is a transition that would require nothing short of a time machine or god-like omniscience. We therefore conclude libertarianism to be a programmatically incoherent philosophy for the regulation of social life. And as such, libertarianism is of little normative value for thinking about how to build a just society.

This particular issue does not plague other social philosophies because they do not conceptualize justice in historical terms. Recall that Nozick differentiates between historical and end-state principles of justice. Within social philosophies that advance end-state principles, the disadvantages that have resulted from historical injustices are, in a sense, indirectly addressed. That is, when programs attempt to impose some kind of pre-meditated moral order on the contemporary world, they at the same time begin to redress the consequences of historical wrongs. Take for example the neo-republican principle of non-domination which holds that social institutions should be structured so as to protect individuals from being dependent on arbitrary powers. The enactment of social policies designed to decrease everyone’s dependence on arbitrary powers would help to mitigate potential experiences of harm attributable to legacies of historical injustices. Conversely, powers that may have accrued from unjust expropriation would be curbed – or even destroyed – if non-domination was upheld as the central requisite of building a just society.

In short, forward-looking theories of justice that seek to realize some future state are not afflicted by incoherence in the same way as libertarianism. While there may be other deficiencies with end-state principles of justice, and there certainly are, the problems explored herein are not among them. In the pursuit of some end-state ideal, whether it be non-domination, egalitarianism, or positive liberty, the necessary steps toward realizing that ideal are not obscured by the need to adjudicate the endless injustices of history nor do so in a process marred by hearings between unequally powerful actors.