I said in this comment that the problem with most libertarians is that they are not consistent (I include myself in that). And in one of the longest posts I have ever written, I actually questioned the definition of libertarianism. Further, on more than one occasion, I have talked about (in the comments section) “the fatal flaw” in the libertarian argument – making it work. This post elaborates on these issues. Since I don’t have convincing answers to any of these questions, I will probably play the devil’s advocate throughout.
“Pakistan needs a Beant Singh,” Swami writes. And he is right. The moment I say this, the idea that I am a “libertarian” suffers a jolt. I have previously supported police/ military action in Punjab, Kashmir, the North East, the Naxal belt, and even understand why the LTTE has to be crushed regardless of the ethnic conflict between the Sinhalese and the Tamils. The reason why these scenarios are different from a regular murder, theft, bank heist etc is – the latter incidents are part and parcel of any normal society whereas the former represent the complete breakdown of the constitutional machinery – law and order – the writ of the government. This position implies that the “right to life” is meaningless in cases where the “protector” is no longer in control of the situation. My only concession here would be that the citizens who are caught in the zone where a government can no longer protect them have the moral right to arm themselves for their own protection, even if it is against government forces. I am simply extrapolating from “morality ends where the gun begins” – politics is to society what ethics/ morality is to an individual.
Whether you are an anarchist (people who don’t believe that the government has the moral right to exist) or a minarchist (people who believe in a limited government), or something in between, you subscribe to the broad philosophy of libertarianism. And, therefore, need to have a coherent, practical position on two main issues – the right to life, and the right to property.
Right to life: Morality
The moral position is not a problem unless you have to convince some utilitarians or consequentialists who make arguments like- “That’s right – basic utilitarianism. But I doubt killing 300 million Americans would prevent the death of >300 million others,” in response to my statement – “In that case the murder of a hundred million can be justified if it saves a billion” (see the comments on this post), or the only people whom I hate more than the consequentialists – those who believe in “positive liberty.”
Wait. Did I say a moral position is not a problem? Of course, if you are a natural rights libertarian – some one who believes that man has the “right to life” by the mere fact of his being born (if you want a neatly constructed proof that demolishes any other idea – try “self-ownership”, the Rothbardian argument), then the “right to life” is inalienable, inviolable. But what about voluntary slavery, or kinks that involve consent?
Various definitions of inalienability include non-relinquishability, non-salability, and non-transferability. What does this mean with regard to the right to life or liberty? If this right is non-transferable, then I cannot confer it on you, that is, I cannot make a gift of myself to you; I cannot voluntarily agree to be your slave. If it is non-salable, then I cannot sell myself to you as a slave.
However, the following scenario will illustrate a problem. You are a rich man who has long desired to have me as a slave, to order about as you will, even to kill me for disobedience or on the basis of any other whim which may occur to you. My child has now fallen ill with a dread disease. Fortunately, there is a cure. Unfortunately, it will cost one million dollars, and I, a poor man, do not have such funds at my disposal. Fortunately, you are willing to pay me this amount if I sign myself over to you as a slave, which I am very willing to do since my child’s life is vastly more important to me than my own liberty, or even my own life. Unfortunately, this would be illegal, at least if the doctrine of inalienability (non-transferability) is valid. If so, then you, the rich man, will not buy me into slavery, for I can run away at any time, and the forces of law and order will come to my rescue, not yours, if you try to stop me by force.
Some people may find it revolting, but the case of the German cannibal Armin Meiwes who ate a man who consented to being eaten is a very interesting one – both morally as well as legally-
Armin Meiwes (born December 1, 1961) is a German man who achieved international notoriety for killing and eating a voluntary victim he had found via the Internet. After Meiwes and the victim jointly attempted to eat the victim’s severed penis, Meiwes killed his victim and proceeded to eat a large amount of his flesh. Because of his deeds, Meiwes is also known as the “Rotenburg Cannibal.”
Or take a more common case which also deals with consent, that of sadomasochism, something is often depicted comically on film and television, but is of a very serious nature. FIA president Max Mosley got caught up in a scandal last year-
Max Mosley, the motor racing chief and son of the wartime British fascist leader, sat in silence yesterday as the High Court was played a tape of him at a sex party, yelling in German while an “Aryan” woman pleaded for mercy.
Mr Mosley, who is suing the News of the World for invading his privacy, insisted that he was the last person to find Nazi role-play erotic because it brought back memories of his parents, Sir Oswald and Lady Diana Mosley.
He said he had been taking counter-surveillance precautions after being tipped off that there was a plot to discredit him, but was unaware that one of the women at his sadomasochism party had smuggled in a video camera on behalf of the Sunday newspaper.
Ergo (he’s an Objectivist, I am not), in a post and podcast dealing with such (but not these, specifically) possible scenarios says that libertarianism is absurd and that “libertarians are not champions of freedom but destroyers of it.” Needless to say, though I have a few problems of my own with the ideology, I don’t agree with such a sweeping statement.
Whatever your views, the fact is you cannot simply brush these cases aside as lifeboat scenarios or rare occurrences – they are neither. The reason these cases pose problems is because they involve consent. Would you lock every masochist and every person who wants to be enslaved or wants to die in an unorthodox fashion in a mental institution? Where does society draw a line? Where will society (and by society I mean government – its nature is irrelevant) step in and save a man from himself?
Right to life: Legality
That was the moral position. Now the legal one. How inalienable is your “right to life”? If you suffer from a communicable disease, does society have the right to quarantine you, or kill you against your will? If you are not mentally stable (how is that decided?), at what point will society forcibly commit you to an institution? Another argument, a thought experiment – the “ticking time bomb scenario” that even someone like Alan Dershowitz has given his approval to-
The ticking time bomb scenario is a thought experiment that has been used in the ethics debate over whether torture can ever be justified.
Simply stated, the consequentialist argument is that nations, even those such as the United States that legally disallow torture, can justify its use if they have a suspect in custody whom they feel sure possesses critical knowledge, such as the location of a time bomb or a weapon of mass destruction that will soon explode and cause great loss of life.
Those whose guilt is believed to be true shall be subjected to torture… (emphasis mine)
Both these examples, however, are from consequentalist positions, and therefore would be a no-no in my book.
Then there is the question of punishment for crimes, and particularly the death penalty. What, or how, would society go about it? On punishments as such, I don’t support those that are purely meant to set an example to others, or that are a form of vendetta. The only position I support is this – “the punishment should fit the crime”. Death penalty – I am philosophically against it, though the chances of putting a wrong man to death is also a very valid reason. In cases of “crimes” – intentionally causing grievous injury or death to others – prison is the way to go. For every other crime, there are alternatives available – see the comments on this post.
Right to property
I have written enough about intellectual property rights. But the fact is they are controversial, and a coherent “moral” argument – either for or against is necessary. Utilitarian arguments are irrelevant as far as I am concerned, though they can be used to test the theories out in the real world.
The main question however is what right to property is moral, and what isn’t. Except for some left-libertarian schools (like the Mutualists – economist George Reisman calls it a philosophy for thieves, and if they don’t allow for contracts as a means of transferring property rights, I have to agree with him), homesteading, production and contracts are considered to be valid modes of establishing a right to property by the two major libertarian schools I am sympathetic to (and the only ones I am reasonably knowledgeable about) – the minarchists, as well as the anarcho-capitalists. Airwaves too can be homesteaded – cellular communication, satellite telephony, DTH services etc etc can operate on the first come, first serve principle and once all frequencies are occupied, they may be transferred just like any other property is. Questions however remain, at least as far as I am concerned, about the status of rivers, seas, oceans, space etc. How do you homestead them, and how do you enforce the right?
Now the legal question; there are only two. The first is – are property rights subject to certain limitations? If the man who owns the plot next to mine builds a skyscraper on it, can I dig a thousand foot pit on my plot of land causing his building to collapse just to spite him? Or can I start a discotheque or theater or brothel in a residential neighborhood? I don’t know about the first case, but Rothbard has written a bit about the second – he has said that even inconveniences can be homesteaded. In “Law, Property Rights, and Air Pollution” (pdf), he writes-
Most of us think of homesteading unused resources in the old-fashioned sense of clearing a piece of unowned land and farming the soil. There are, however, more sophisticated and modern forms of homesteading, which should establish a property right. Suppose, for example, that an airport is established with a great deal of empty land around it. The airport exudes a noise level of, say, X decibels, with the sound waves traveling over the empty land. A housing development then buys land near the airport. Some time later, the homeowners sue the airport for excessive noise interfering with the use and quiet enjoyment of the houses.
Excessive noise can be considered a form of aggression but in this case the airport has already homestead X decibels worth of noise. By its prior claim, the airport now “owns the right” to emit X decibels of noise in the surrounding area. In legal terms, we can then say that the airport, through homesteading, has earned an easement right to creating X decibels of noise. This homesteaded easement is an example of the ancient legal concept of “prescription,” in which a certain activity earns a prescriptive property right to the person engaging in the action.
On the other hand, if the airport starts to increase noise levels, then the homeowners could sue or enjoin the airport from its noise aggression for the extra decibels, which had not been homesteaded. Of course if a new airport is built and begins to send out noise of X decibels onto the existing surrounding homes, the airport becomes fully liable for the noise invasion.
It should be clear that the same theory should apply to air pollution. If A is causing pollution of B’s air, and this can be proven beyond a reasonable doubt, then this is aggression and it should be enjoined and damages paid in accordance with strict liability, unless A had been there first and had already been polluting the air before B’s property was developed. For example, if a factory owned by A polluted originally unused property, up to a certain amount of pollutant X, then A can be said to have homesteaded a pollution easement of a certain degree and type.
Rothbard also covers the case of “nuisances” such as “excessive” noise-
Excessive noise is certainly a tort of nuisance; it interferes with a person’s enjoyment of his property, including his health. However, no one would maintain that every man has the right to live as if in a soundproofed room; only excessive noise, however vague the concept, can be actionable.
In a sense, life itself homesteads noise easement. Every area has certain noises, and people moving into an area must anticipate a reasonable amount of noise. As Terry Yamada ruefully concedes:
An urban resident must accept the consequences of a noisy environment situation. Courts generally hold that persons who live or work in densely populated communities must necessarily endure the usual annoyances and discomforts of those trades and businesses located in the neighborhood where they live or work; such annoyances and discomforts, however, must not be more than those reasonably expected in the community and lawful to the conduct of the trade or business.
In short, he who wants a soundproof room must pay for its installation.
Refer to Rothbard’s paper for more on homesteading and some ingenious arguments on how to deal with air pollution etc while keeping busybodies (like the greens) and governments out of the whole affair. Also read his book “For A New Liberty: The Libertarian Manifesto” (I haven’t read it yet completely – only chapters one and two – but it is a devastating assault on the legitimacy of the State).
The second question on right to property is the violation of the “Castle Doctrine” by law enforcement (public or private). What is the standard of evidence that would be used to break into my house? Is suspicion that I am assembling a nuclear device good enough (should it be disallowed)? Or that I am conducting an experiment that would create a black hole (again, should it be disallowed)? What about the standard “to save a life” argument? If the standard is not high enough, governments like those in the US can commit mischief in the name of upholding the law. Or is it simply inviolable? Ergo makes a good point here (refer to the podcast) – the right to property is derived from the right to life. So if I violate someone else’s right to life on my property, the hierarchy of rights means that the right to property is not inviolable. That leaves us with the standard of evidence, and since every philosopher (including Rand) seems to do it, we can simply say its a technical matter which is part of the philosophy of law.
“The Fatal Flaw”
I simply don’t know “how” a libertarian government (for the minarchist) and a state with no State (for the anarchist) will ever come into existence. Do we wait for it to happen? Has such a state of affairs ever existed for an extended period of time? I once gave the example of Kashmir. Say, the Indian government withdraws from Kashmir saying all you libertarians – come, take this over. What next? Geopolitics plays a major role in this world, and always has for over 2,500 years; the state would simply be crushed by the three surrounding countries – India, Pakistan and China. This is one of the fatal flaws. Another example. The Indian government actually has minimal control over a belt that extends from Nepal to Kerala – its infested by Naxals. For all purposes, its basically anarchy out there. The same is the case as far as Swat valley in Pakistan is concerned. One gang withdrew, another has taken over. This is an argument against anarchism. If the anarchist however plans to wait till all governments worldwide dismantle themselves, that’s asking for too much.
And the same is the case with the Randian philosophical renaissance. Morally, there is nothing much wrong with her philosophy. But waiting, expecting that the whole world will one day give up on altruism, is expecting too much. Her’s is a minarchist idea. Those minarchists who are simply interested in a limited government but don’t bother with philosophy too don’t seem to have a bright future. Nothing as far as people’s opinions and intellectual depth suggests that the world, or certain countries of the world are ready for anything even resembling a small government. Will it happen in a 100 years time? No. 500? I don’t know.
Other flaws deal with issues that libertarians typically support. If drugs are available in plenty, and so are arms, what effect will it have on society? Further, the issue of immigration. If I am not mistaken, both Mises and Rothbard changed their position from free immigration to a restricted one. The “why” is not too difficult to imagine. Consider a democratic society. And consider immigrants from a country hostile to that country entering in droves. A point will come, when, depending on the size of the country, the demographics will change. Something similar has already happened in Assam, India due to migration from Bangladesh (the other side of which I explored yesterday). You could have a bloodless coup of sorts.
The question simply is this – what is the point of dreaming about an ideal society if the chances of achieving it, due to any number of reasons, are nearer to zero than anything else?