The Solitary, Poor, Nasty, Brutish, and Short Libertarian Life
You know, I myself dabbled in libertarianism once—not in college, of course. There’s a lot to appreciate about its emphasis upon liberty. Ultimately, I couldn’t quite pass the purity test, though. This weekend, while reading Andrew Koppelman’s thoroughly compelling beatdown of Randy Barnett, something occurred to me. My problem with libertarians is actually pretty simple: these guys need a strong dose of Thomas Hobbes.
Here’s Koppelman’s summary of part of Barnett’s argument (emphasis added):
Barnett thinks that because decentralization works so well for markets, it would also be good for the use of coercive force: different courts should compete for customers. (H.L. Mencken defined an idealist as “one who, on noticing that a rose smells better than a cabbage, concludes that it will also make better soup.”) The ideal political order is one in which “multiple legal systems exercise the judicial function and multiple law-enforcement agencies exercise the executive function.” There would be no state with a monopoly of coercive force to resolve disputes between these entities. All power would be private power, regulated by contract. Barnett is remarkably confident that power in such a system would be exercised well. Individuals would each have the right to enforce their own rights of restitution, self-defense and preventive detention. Imprisonment would be justified only when necessary to guarantee the speed and certainty of restitution, and private detention centers would employ the offenders in productive labor. If someone wrongly exercised private enforcement power against you, you could go to court and sue them for it. Evidently bad law-enforcement institutions would be subject to coercive discipline by good ones. It goes without saying that redistribution would be impossible.
In Barnett’s hood, “justice” systems draw legitimacy from their success in the judicial marketplace. Same goes for private “law” enforcement. Indeed, all authority within the community derives from market processes.
Hobbes knew better. He famously argued that equality without a higher authority to adjudicate disputes necessarily collapsed into a “solitary, poor, nasty, brutish, and short” war of all against all. In the “State of Nature,” humans are too selfish, proud, and untrustworthy to cooperate with others—or to tolerate inequality. Absent constraining force, they take advantage of their natural liberty to administer justice of their own choosing. By definition, in the State of Nature, each individual has equal authority to do what he or she deems necessary to stay alive and settle grievances.
Hobbes’ argument is a wager about human nature—not an account of some preexisting historical moment. He argues that the State of Nature hangs above (or “lurks below?”) civil society as an ever-present risk. It’s a thought experiment that serves to bring the contours of human nature into focus. Hobbes is concerned to show that humans are dangerous, proud, violent, competitive, and combative creatures—no matter how benign they might seem when we observe them in existing political communities. He’s the original post-apocalyptic thinker: remove the state’s barriers and everything collapses.
But wagers aren’t knockout punches. They’re not conversation stoppers. They appeal to readers’ intuition by means of conditional logic. If the walls came down, then humans would be at one another’s throats in no time. If we had recourse to a bunch of courts with equally legitimate authority and a bunch of armed enforcement brigades with equally legitimate authority, then the resulting disputes would eventually require solution by means of force. He can’t conclusively prove that humans are so prone to violence, but he leans upon empirical evidence (if humans are really trustworthy and honest and cooperative and accepting of inequality, why do we still lock our doors in communities with active police protection, etc) and our own honesty about our least public inclinations.
Barnett argues that his private legal-judicial system would be sustained in the short-term by means of long-term calculations regarding the consequences of open conflict. Appealing as this might sound—and as congenial as it might be to a certain understanding of “negative” liberty—it’s also a recipe for armed conflict. However much we might want them to, humans don’t calculate that way. We rarely order preferences and count utils on our way to momentous, high-import decisions (Cf. Deirdre McCloskey’s recent TNR piece on “The Creepy New Economics of Pleasure“). If one private court rejects our suit in favor of our neighbor, and subsequently sends its private army to appropriate our property, we won’t stand by idly, quietly, or rationally—especially if there are other courts and armies that might rule in our favor. Left without public order, humans are every bit as much a problem to others as they are to themselves. They get anxious. Left on their own, they aren’t rational actors so much as they are passionate miscalculators and myopic self-deceivers. Without the advent of a newly bloodless and dispassionate human nature, without a final source of authority on justice questions, Barnett’s system is doomed to depend upon solutions by swordpoint.
And this is the last (and coolest?) thing about Hobbes’ argument that’s relevant to the considerations above. Whereas John Locke argues that humans already possess certain rights, and by extension, claims to justice in the State of Nature, Hobbes recognizes that rights are meaningless and non-existent without support from public institutions. 1% Lockeans holed up in their mountain lodge can assert their universal property rights until they’re hoarse, but their supposed naturalness won’t save them from the torch-waving mob coming up the hill. Hobbes laughs off flagrant philosophical optimism: you have a right to property if it’s underwritten by some basic legal structures and public institutions that make it possible. Rights claims (property or otherwise) without legitimate power to back them up are flimsy dross in the face of human viciousness.
Obvious Caveat Alert: Clearly Barnett’s isn’t the only libertarianism in town. There are other, more thoughtful versions. If his attack on naturally-founded rights holds, however, Hobbes’ challenge to libertarianism goes deeper. It asserts the primacy of politics over and above economic life. Markets aren’t freestanding, and property isn’t natural—they both depend upon robust public institutions which can coercively settle disputes and maintain public order. This needn’t culminate in the modern welfare state or Obamacare or the Great Society, of course. We can argue plenty over just how much public authority we need to maximize civil liberty without crashing into the State of Nature. It does, however, point to libertarianism’s blind spot—the very thing which defines the aforementioned purity test I once failed.