3.2 Liberty

In Democracy in America, Alexis Tocqueville conjured the spectacle of a future government that “likes to see the citizens enjoy themselves, provided they think of nothing but enjoyment. It gladly works for their happiness but wants to be the sole agent and judge of it. It provides for their security, foresees and supplies their necessities, facilitates their pleasures, manages their principal concerns, directs their industry. . . . Why should it not entirely relieve them of the trouble of thinking and all the cares of living?”^[1] Tocqueville’s dystopia raises the question: Is there more to life than happiness? If so, what is missing if people are happy?

The second value in the Declaration’s triumvirate is liberty, or freedom. The reason that most people would not be satisfied with life in Tocqueville’s dystopia is the lack of opportunity for individual choice: the benevolent government does what it thinks will pleases the people (Juvenal’s bread and circuses), but what if it is wrong? (They want wine and opera.) Or if the people’s preferences change? (Beer and mixed martial arts!) Suppose you are in the minority and have different pleasures. Wouldn’t it be better if you could choose what pleasures to pursue and when to pursue them?

Furthermore, isn’t part of the utility that comes from pleasure the thrill of achieving something you didn’t know you could do, such as walking a tightrope, writing a book, or reaching the ultimate level of a popular video game? Knowing that you can achieve some goal if you want likely lessens your pleasure when the expected happens.

The search for freedom is a fundamental part of human existence, and thus a value worth taking into account in making social choices. The question that needs to be answered is how much we should value.  This chapter explores the case for liberty as a value, from the basic need for some liberty to extreme forms of libertarianism.

The Search for Guaranteed Liberty

Thomas Hobbes wrote at a time when life in England was very dangerous. The civil wars that engulfed the country in the 17th century meant that danger lurked everywhere. Hobbes argued that the most important value was security, which could only be provided by a government capable of maintaining order. Without such a government, people would exist in a lawless state of nature in which their lives were “solitary, poor, nasty, brutish and short.”^[2] To avoid the danger of this war-of-all-against all, Hobbes advocated that people obey whatever government could maintain order since even an autocratic government would be better than lawlessness.

Hobbes also recognized that people would not be happy if the government regulated everything they did. They needed at least some liberty. In Leviathan, he asserted that even an absolute ruler could never totally eliminate individual liberty: “there is no Commonwealth in the world, for the regulating of all the actions, and words of men (as being a thing impossible).”^[3] This meant that in cases “where the sovereign has prescribed no rule, there the subject hath the liberty to do, or forbear, according to his own discretion. And therefore liberty is in some places more, and in some less. . .”^[4] Because people will inevitably have some freedom even under an autocratic government, they should not despair that their lives require subjection to the ruler’s commands.

At the same time, subjects in an autocratic state had no rights other than self-defense, and as Hobbes admitted, “nothing the sovereign representative can do to a subject . . . can properly be called injustice or injury . . . therefore it may and doth often happen in Commonwealths that a subject may be put to death by the command of the sovereign power, and yet neither do the other wrong.”^[5] The freedom people enjoy one minute may disappear the next, so there is no security. While Hobbes’ support for absolute rulers might have been good for Kings and Lord Protectors, it was not enough for everyone else, and when King James II dispensed with laws passed by Parliament the English realized that Hobbes’ prescription for obedience was not an adequate solution when civil war broke out in 1688.

Instead, they followed the lead of John Locke, who had fled the country several years earlier after his political patron was imprisoned. Locke’s theory, set forth in his Second Treatise of Government,^[6] began not with the fear of a lawless state of nature but with the recognition that all persons were endowed by God with natural rights. In his state of nature, people were far less antagonistic because they recognized they were usually far better off if they cooperated. While disputes were inevitable, Locke rejected Hobbes’ conclusion that all governments were better than continued existence in a lawless state. Rather, he believed that people created a government, and made it responsible for preserving their natural rights to life, liberty and property. Furthermore, the power to create a government implied the power to change or unmake it, so if the government failed to protect their natural rights they could withdraw their obedience and start over.

While both Hobbes and Locke claimed that government was justified by consent, they gave different meanings to consent. Hobbes believed that people could be forced to consent, so a person who chose to swear obedience to a king rather than suffer immediate execution had consented to the authority of that king. Locke believed that consent required free will, so the choice of obedience or death was never consensual. People were not obligated to obey a government unless they had a meaningful opportunity to choose whether or not to recognize a ruler’s authority. This is exactly what happened after Duke William of Orange invaded England, chasing King James II to Scotland and eventually to exile in France. Parliament agreed to recognize William and his wife Mary as co-sovereigns as long as they agreed to abide by the laws passed by Parliament, and when they did, the English had a constitutional monarchy based upon consent.

However, Locke’s political theory was not without problems. First, he found consent not just in public declarations of obedience but also in a person’s mere presence in a state. This effectively meant that everyone who remained in the territory when a new government was formed had consented to obey that government. Locke also did not establish institutions capable of protecting individuals against arbitrary deprivations of their rights. If a parliamentary majority voted to restrict the rights of a minority, there was nothing the minority could do, other than protest. And the executive could use what Locke called prerogative to arbitrarily deprive people of their liberty or property if he deemed that to be in the public interest. There was no higher authority that individuals could appeal to when rights were taken away, which meant that when faced with an oppressive government Locke’s citizens were not much better off than Hobbes’ subjects.

Hobbes denied that subjects were justified in disobeying the government unless it threatened their lives, although he did recognize that when a large number of subjects faced such threats there was nothing to keep them from revolution if it would allow them to preserve their lives. Locke went further, recognizing a right of revolution whenever the executive acted contrary to the interests of the people: “[T]he true remedy of Force without Authority, is to oppose Force to it. The use of force without Authority, always puts him that uses it into a state of War, as the Aggressor, and renders him liable to be treated accordingly.”^[7] However, this right had little meaning when one or a few citizens believed they were oppressed, since the government could easily suppress such a revolt. Nevertheless, when the government deprived many of the citizens of their rights through “a long train of actions”^[8] the people were justified in invoking their right of revolution by overthrowing the government and creating a new one.

The problem with this right of revolution is that it required significant bloodshed through civil war. Locke recognized this problem: “The People have no other remedy in this, as in all other cases where they have no Judge on Earth, but to appeal to Heaven.“^[9] He did not specifically call for the use of force, but his meaning was clear: the people should pray to God that they were right in arming themselves to overthrow their oppressors. But as Hobbes noted, such revolution simply restored the state of nature until such time as order could be established by the new government (or the old one, if the revolution failed.) Thus neither Hobbes nor Locke had a way of protecting the people from government oppression that did not involve the loss of life.

The institution essential to guarantee liberty was suggested by Charles de Secondat, Baron de Montesquieu. InThe Spirit of the Laws (1749), he observed: “The political liberty of the subject is a tranquility of the mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite that the government be so constituted as one man need not be afraid of another.”^[10] To achieve this protection, a constitution was needed, one which separated the powers of legislating, judging, and executing the laws. At the time Montesquieu wrote, judges were considered part of the executive branch, although in England they had gained some independence from arbitrary termination. But they had no power to strike down a law that violated the English Bill of Rights, since Parliament had final authority to interpret that document.

The breakthrough in the protection of rights occurred across the Atlantic. After the United States declared independence in 1776, most of the new states drafted written constitutions, several of which included bills of rights. New Jersey adopted a constitution that guaranteed the right of trial by jury. Subsequently, the New Jersey legislature adopted a law providing for the seizure of property owned by persons who had remained loyal to the British government. The law provided that seizures could be challenged in court before a six-member jury. After several hundred yards of silk were seized from Elisha Watson on the grounds that he was a Loyalist, he challenged the state’s action, but the six-member jury found against him. On appeal, he argued that “jury” was a legal term requiring twelve men, even though the size of a jury hadn’t been defined in the New Jersey constitution. In an oral decision, the New Jersey Supreme Court held that the law authorizing a six-member jury violated the state constitution’s right to jury trial.^[11]

A few other state courts reached similar conclusions before the Constitutional Convention took place in 1787. The new federal constitution did not authorize courts to declare laws unconstitutional. But Alexander Hamilton argued in Federalist 78 that no law could be enforced which was inconsistent with a written constitution: “whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.” He predicted that it would become the responsibility of the federal courts to defend the rights set forth in the Constitution against “injury of the private rights of particular classes of citizens.”^[12] This power was confirmed by the Supreme Court when it struck down an unconstitutional law in Marbury v. Madison,^[13] a case that established the Court’s power to protect individuals from government infringement of their rights.

But the courts could only act when constitutional restrictions were violated. What would prevent legislatures from adopting laws that extensively restricted individual freedoms, or executives from promulgating regulations that had similar effect? Was there a principle that could guarantee freedom of action beyond direct violations of rights? For that we turn to Swiss political theorist Benjamin Constant, who in 1810 wrote Principles of Politics Applicable to All Governments in 1810. In that book, Constant set forth what has come to serve as the libertarian creed:

“[T]here is a part of human existence which necessarily remains individual and independent, and by right beyond all political jurisdiction. Sovereignty exists only in a limited and relative way. The jurisdiction of this sovereignty stops where independent, individual existence begins. If society crosses this boundary, it becomes as guilty of tyranny as the despot whose only claim to office is the murderous sword. . . . When a government of any sort puts a threatening hand on that part of individual life beyond its proper scope, it matters little on what such authority claims to be based.”^[14]

What exactly is the part of human existence that is beyond government control? According to Constant, it includes “complete freedom of action for all innocent or unimportant actions”; “complete freedom of opinion either private or public, as long as that freedom does not produce harmful actions”; and “a boundless freedom in the use of their property and the exercise of their labor, as long as . . . they do not harm others who have the same rights.”^[15] Constant’s definition was predicated on the principle that the authority of any legitimate government could never be unlimited. Instead, inherent human rights limited the legitimate power of all governments. These limitations formed the basis of what was known in the 19th century as liberalism, the precursor to what today we call libertarianism.

Classical Liberalism 

The philosopher most closely associated with what today is termed Classical Liberalism is John Stuart Mill, who is also discussed in the previous chapter on Utilitarianism. In On Liberty (1859), Mill affirmed a principle of limited government very similar to that of Benjamin Constant: “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”^[16] Mill further explained, “The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.”^[17] According to Mill, “The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs.”^[18]

Mill is most famous for his argument that freedom of speech and press benefits everyone by making it easier to correct falsehoods, refine half-truths, and reinforce true statements. He also made the argument that similar benefits can be derived from allowing individuals to freely choose how to live their lives, what he called “different experiments of living,”^[19] as long as they did not cause injury to others. Mill criticized the tyranny of custom in Victorian England: “Human nature is not a machine to be built after a model, and set to do exactly the work prescribed for it, but a tree, which requires to grow and develop itself on all sides, according to the tendency of the forces which make it a living thing.”^[20] This meant that “the only unfailing and permanent source of improvement is liberty, since by it there are as many possible independent centres of improvement as there are individuals.”^[21] Consequently, while people– and governments–can advise individuals against certain courses of conduct, “[a]ll errors which he is likely to commit against advice and warning are far outweighed by the evil of allowing others to constrain him to what they deem his good.”^[22]

Mill summarized his consequentialist defense of liberty in three contentions. First, private operations are likely to accomplish more than government programs. The private sector outperforms governments because the need to make a profit provides an efficiency incentive that is lacking in government. Second, individuals benefit more from voluntary actions than from acting under the compulsion of government. Voluntary activity promotes the moral and intellectual development of citizens, which does not happen when they act under compulsion. Third, expanding the duties of government causes a “brain drain” that sapped the vitality of the private sector. Having intelligent and public-spirited people outside the government makes it possible for them to critique government operations and come up with better solutions that a rule-bound bureaucracy.

When it came to applying his principles to laws regulating personal conduct, Mill drew a distinction between “purely self-regarding”^[23] conduct, which is outside governmental authority, and other-regarding conduct, which the state may regulate to prevent adverse effects on others. Mill’s concept of other-regarding activity included actions that disabled individuals from fulfilling their legal obligations to others, such as profligate spending by a father who failed to support his children. It also included offenses against decency such as public nudity or sexual activity. It is unclear why these activities would harm other adults; perhaps Mill’s fear of Victorian censorship cowed him into validating such restrictions.

Mill had difficulty extending his principles to self-regarding conduct such as prostitution and gambling. While he allowed people to profit from consensual activity or games of chance, he concluded that the state may prohibit the operation of houses of prostitution and gambling. He recognized that preventing people from profiting from consensual activities appeared to violate his libertarian principles. However, he believed government was justified in banning activities that most people consider immoral, since these activities reduced overall utility. He also justified severe taxation on drugs or alcohol on the grounds that taxation is necessary for government operations and there is nothing wrong with placing the burden of taxes on “commodities the consumer can best spare,”^[24] again relying on his underlying utilitarian principles.

Mill opposed public education on the grounds that it “is a mere contrivance for moulding people to be exactly like one another . . . in proportion as it is efficient and successful, it establishes a despotism over the mind.”^[25] However, since children need education to thrive, the government was justified in requiring that all persons attain a minimum level of knowledge. Since overall utility was enhanced by an educated population, the government should subsidize the education of children too poor to pay school fees. Mill believed the requirement should be enforced through yearly standardized examinations, with fines assessed to the fathers of children who performed poorly. To further promote literacy, Mill denied the right to vote to people who could not “copy a sentence from an English book, and perform a sum in the rule of three.”^[26]

Mill also supported government aid to the poor, preferring public works projects but also permitting monetary assistance to the hungry and homeless. However, he believed that indigent people who received direct government aid should be barred from voting until they could support themselves: “He who cannot by his labour suffice for his own support, has no claim to the privilege of helping himself to the money of others. By becoming dependent upon the remaining members of the community for actual subsistence, he abdicates his claim to equal rights with them in other respects.”^[27] However, people could regain their right to vote if they could demonstrate that they were able to support themselves without government aid.

Mill’s policy prescriptions reflect the tension between his commitment to utilitarianism and his belief that minimal government best promoted human development. While government should permit people to act freely when others were not harmed, it should also nudge them to take actions that would increase overall utility.  This did not violate their personal autonomy because they remained free to choose actions that generated less utility. At the same time, it permitted the government to promote actions that increased overall utility. One prominent example was Mill’s belief that multiple votes should be granted to people who graduated from universities or held jobs in the “liberal professions.”^[28] Mill’s policies reflect his belief that government can intervene in the free market to promote private behavior when it would increase overall social utility.

From Negative to Positive Liberty

Mill’s rejection of Constant’s minimalist state coincided with the recognition that government had a duty to provide substantive assistance to the needy. The latter half of the 19th century saw European governments create welfare programs that provided aid to the disabled, unemployed, and poor. The United States delayed in adopting such programs until the 1930s. Was this public assistance consistent with liberty, or did the redistribution of resources from the wealthy to the poor reduce overall freedom? How could government welfare payments be reconciled with the protection of individual freedom?

British philosopher Isaiah Berlin reframed the concept of liberty in his essay “Two Concepts of Liberty.”^[29] He defined negative liberty is freedom from government restraints on individual action. This view of liberty is reflected in the works of the theorists discussed earlier in this chapter, especially Hobbes and Constant. Positive liberty meant “being one’s own master,”^[30] which implies not only the freedom to choose one’s actions but also some degree of resources to allow one to do so.  Without positive liberty, people may have the potential for self-fulfillment but lack the means to achieve it. This can be seen in Locke’s defense of the right to property as well as in Jefferson’s right to pursue happiness, which is predicated on the possession of some property. It can also be seen in Franklin Delano’s 1941 State of the Union address, where he linked freedom from fear and want (positive liberties) with the negative liberties of freedom to speak and worship.^[31]

Berlin’s positive liberty is based on two overarching principles. The first is that no government power can ever be absolute or beyond the control of the people. The second is that the people should be protected by inviolable frontiers “defined in terms of rules so long and widely accepted that their observance has entered into the very conception of what it is to be a normal human being.”^[32] Berlin’s examples of what is ruled out included declaring people guilty without trial, punishing them under retroactive laws, torture, and summary execution of political opponents.

Two years after Berlin’s essay, Friedrich Hayek deeloped a new version of libertarianism. In The Constitution of Liberty, Hayek recast liberty as a means to equality under the law, not an end in itself: “Equality of the general rules of law and conduct . . . is the only kind of equality conducive to liberty and the only equality which we can secure without destroying liberty.”^[33] He agreed with Mill that people had unequal capacities, but saw this inequality as irrelevant to their right to equal treatment. He emphatically rejected Mill’s belief that he–or anyone–could judge the relative worth of men: “no man or group of men possess the capacity to determine conclusively the potentialities of other human beings . . . we should certainly never trust anyone invariably to exercise such a capacity.”^[34] For Hayek, varying individual rights based upon the government’s evaluation of personal capacities was an obstacle to liberty. Instead, all should be treated as equal, and provided with an equal opportunity to live a successful life.

Hayek traced the value of equality to ancient Greece, where Solon established “equal laws for the noble and the base,” which created the “certainty of being governed legally in accordance with known rules.”^[35] Hayek gave the term isonomia to the principle of equal treatment under the law. Liberty was made possible by isonomia since equal treatment meant that no one would be advantaged over another. People would be free to achieve whatever they could, secure in the knowledge that the same rules applied to all. For Hayek, isonomia was more important than the actual form of government, since in its absence majorities in democratic countries could take away the rights of disfavored minorities. Government in accordance with the rule of law–what Hayek termed “lex, rex”^[36]“–promoted liberty because it created equal opportunity for all. Hayek’s theory thus combined the two requisites that Berlin had indentified for liberty: the prohibition on absolute government power and the creation of frontiers that limited the types of actions that governments were authorized to take.

Hayek traced the necessity of equal liberty to John Locke, reaffirming Locke’ goal of eliminating arbitrary action by government officials. Locke claimed that “whoever has the legislative or supreme power of any commonwealth is bound to govern by established and standing laws promulgated and known to the people, and not by extemporaneous decrees; by indifferent and upright judges, who are to decided controversies by those laws; and to employ the force of the community at home only in the execution of such laws.”^[37] As noted earlier, Locke’s system lacked an independent judiciary as a means of enforcing these principles if the legislature or executive violated them. Hayek recognized that in the US, where judges had the power to strike down unconstitutional laws, isonomia could be maintained through the legal process.

Hayek’s criterion for liberty is not whether laws regulate self-regarding or other-regarding conduct. Instead, “the rule of law provides the criterion which enables us to distinguish between those measures which are and those which are not compatible with a free system. Those that are may be examined further on the grounds of expediency.”^[38] The rule of law creates the possibility of freedom because it “enables the individual to plan with a degree of confidence and which reduces human uncertainty as much as possible.”^[39] Hayek concluded: “The old formulae of laissez-faire or non-intervention do not provide us with an adequate criterion for distinguishing between what is and what is not admissible in a free system.”^[40]

Hayek saw numerous ways that government can promote individual freedom consistent with the principle of isonomia. He supported government provision of public goods that benefit everyone, such as a reliable monetary system, a transportation infrastructure, water and sanitation systems, safety inspections of food, buildings and workplaces, depositories of public records. He also backed government provision of information that presumably benefits all, such as information about diseases and health risks. Like Mill, he believed that the government must make provisions for universal education; unlike Mill, he did not rule out public schools. However, Hayek opposed all government programs preferred some above others, such as grants of monopolies, subsidies to specific companies, and price controls, since they violated the principle of isonomia.

Hayek’s most controversial prescriptions concerned aid to the poor and disabled. He believed that for those suffering from poverty, illness, or disability, the government was justified in providing “security against severe physical privation,”^[41] which meant food, clothing, and possibly even shelter, although he did not address the last issue. He pointed out that “no government in modern times has ever confined itself to the ‘individualist minimum'” of no aid to the needy, as “All modern governments have made provision for the indigent, unfortunate and disabled and have concerned themselves with questions of health and the dissemination of knowledge.”^[42] He believed that these are appropriate expenditures if access is given to all on the same terms. However, he opposed all laws that redistributed income and wealth to benefit one group of people above another.

Hayek’s version of libertarianism saw government economic activity as justifiable as long as it was consistent with isonomia. This is because his version of liberty includes both negative and positive components: limitations on government authority as well as the requirement that all government actions comply with the principle of equal treatment, including providing assistance to people lacking the resources to support their own lives. Liberty is maximized when government expands the scope of equal opportunity; it is reduced when that opportunity is reduced or provided unequally.

Minimalist Libertarianism

Barry Goldwater’s 1964 campaign for President raised the question of whether the growth of the administrative state and the vast expansion of government regulations had become a threat to personal liberty. He challenged Republican social conservatives who believed that laws restricting individual behavior were necessary to maintain morality. He appealed to many who believed that the government’s numerous social programs increasingly restricted individual freedom under the guise of greater equal opportunity. Goldwater’s libertarian critique harkened back to Alexis de Tocqueville’s prediction that someday the US might be governed by a democratic despotism whose “power is absolute, thoughtful of detail, orderly, provident and gentle.”^[43] Tocqueville had imagined a government that “covers the whole of social life with a network of petty, complicated rules that are both minute and uniform, through which even men of the greatest originality and the most vigorous temperament cannot force their heads above the crowd. It does not break men’s will, but softens, bends, and guides it; it seldom enjoins, but often inhibits action; it does not destroy anything, but prevents much being born . . . it hinders, restrains, enervates, stifles and stultifies so much that in the end each nation is no more than a flock of timid and hardworking animals with the government as its shepherd.”^[44] Goldwater agreed with his conclusion: “Under this system the citizens quit their state of dependence just long enough to choose their masters and then fall back into it.”^[45]

Goldwater lost the 1964 Presidential election by a wide margin, and the federal government continued to expand the administrative state and the extent of restrictions on individual liberties. The Libertarian Party was founded in 1971 and three years later was galvanized when Harvard philosopher Robert Nozick published Anarchy, State and Utopia.^[46] Nozick was a socialist who reading in college and decided he could do a better job of crafting a libertarian theory.^[47] Hayek’s view of liberty was premised on consent to all obligations; people were not free if they were forced to obey obligations they had not consented to. Nozick denied that such consent could ever be binding on future generations absent their explicit agreement to obey the law. This called into question the basis for all government authority throughout the world.

Since legitimate government did not exist, Nozick argued that liberty was maximized by a government that imposed the fewest obligations on its citizens. He imagined an ultraminimalist state that protected only persons who contracted for its services and thereby consented to its rules. Those who chose not to consent could violate those rules, but at the risk of being punished by the state. They would live as if they were aliens in a foreign country, bound not by consent but only through fear of punishment.

Nozick recognized that this could create dangerous situations since it might be difficult to distinguish between citizens and aliens. (Would a mugger ask for ID before taking someone’s wallet?) Therefore, the ultraminimalist state might want to prohibit harm to aliens as a service to those who paid for its protection. In exchange for the aliens’ obedience, the state might offer free protection. But why then would citizens then pay for protection if they could get it for free? The state could offer additional services in addition to protection (for example, faster response times to police inquiries) as an incentive for citizens to continue paying for protection. But in reality, it probably would not matter. After all, the US survives even though many people–both legal and illegal residents–do not pay taxes.

Nozick’s thought experiment is an attempt to strip the state down to a few core functions that he views as the requirements of the night-watchman state:^[48] police, prosecutors, judges, and corrections officials, as well as those employed in national defense and tax collection. Beyond this, people could contract with private entities for all other services, such as food and drug inspection, road use, and a private monetary system (cryptocurrency?). Such a state would require either great self-sufficiency or a lot of individual contracts to function successfully. But it would maximize liberty, defined as the minimization (or elimination) of rules not based on consent.

Nozick did not advocate abolishing existing governments and replacing them with night-watchman states. The goal of Anarchy, State and Utopia was merely to show that there was no practical way to escape the coercive imposition of law. Like Hayek, he challenged the legitimacy of government transfers of property from one group to another. He analogized taxation to limited-term slavery: if it took three months’ wages to pay one’s taxes for the year, that person was effectively a slave to the government for those three months. If government expenditures were significantly reduced, taxpayers would be free for a much greater portion of the year. Instead, why not let the private sector supply services that governments have often provided to all, whether they need it or not? The private sector could supply roads, sanitation, inspection, occupational licensing, and even money (cryptocurrency!) Abolish public assistance, Social Security, unemployment compensation, and government-funded shelter. If people want to help the needy, they could contribute to private foundations–or Go Fund Me! Those least deserving (however defined) have no right to take our money, and in the night watchman state the fit survive, the unfit die.

Few people would want to live in such a world. How would you know if the food you bought was safe to eat? If your car was safe to drive? If your doctor had accurate knowledge about medicine? Would you really want to take care of your own sewage, or pay a toll on every road you drove on? And what if everyone cheated, taking others’ property, dumping their sewage everywhere, and selling rotten food? Could you count on law enforcement if the police were so overwhelmed? Just the informational problems alone would make life unappealing.

Perhaps Nozick’s message was that liberty from all imposed obligations was not worth the cost. Like other political theorists, such as Plato and Rousseau, he imagined a Utopia just to show how absurd it would be. As Hayek had pointed out, there has never been a night-watchman state, and there are good reasons why.

Liberty as a Value in LD Debate

Of the three versions of libertarianism presented in this chapter, Hayek’s theory seems most promising for use as a LD value. His focus on equal opportunity is useful in addressing issues such as affirmative action, aid to the poor, and government regulation of the economy. Hayek’s values of equality and maximizing freedom has great appeal to people on both sides of the political spectrum. His requirement of isonomia protects both positive and negative liberty, freeing people from the restrictions of excessive government. Finally, Hayek’s insistence on the rule of law appeals to those seeking security against arbitrary government action, an issue of great concern during Donald Trump’s second administration.

Mill’s classical liberalism calls for less government activity, but more government intervention in cases where people need a nudge to make choices that increase overall utility. Mill rejects Hayek’s requirement that government may not favor some over others because he sees government as having a paternalist role in guiding people to pursue what he considers socially-valuable pleasures. If environmental conservation is valued, government may prefer companies that promote green living over companies that are indifferent or worse to their environmental footprint. Mill’s libertarianism values equal opportunity less than utility maximization, not surprising since Mill was a utilitarian. For that reason, Mill is better used to promote the value of utility, since he values freedom as a means to the end of human development rather than as an end in itself.

Nozick’s minimalist state provides an interesting foil to Plato’s Republic–is it better to have liberty in hell or subservience in heaven?–but is unlikely to be helpful on most policy topics. It might be of help in arguing the topic that the government that governs best governs least (Ralph Waldo Emerson), but it may be difficult to win that debate with Nozick’s aversion to all forms of non-consensual obligation.

Bibliography

Benjamin Constant. 1810. Principles of Politics Applicable to all Governments. https://oll.libertyfund.org/titles/constant-principles-of-politics-applicable-to-all-governments 

Isaiah Berlin. 1958. Two Concepts of Liberty_ Isaiah Berlin_ 1958.pdf.

Alexander Hamilton. 1788. The Federalist No. 78. [28 May 1788].

Friedrich Hayek. 1960. The Constitution of Liberty

Thomas Hobbes. 1651. Leviathan | Project Gutenberg.

John Locke. 1690. Second Treatise of Government.[The Project Gutenberg eBook of Second Treatise Of Government, by John Locke.

John Stuart Mill. 1861.  Considerations on Representative Government, by John Stuart Mill.

John Stuart Mill. 1859. On Liberty. The Project Gutenberg eBook of On Liberty, by John Stuart Mill.

Charles Louis de Secondat [Baron Montesquieu]. 1749. Online Library of Liberty: Complete Works, vol. 1 The Spirit of Laws – Portable Library of Liberty.

Robert Nozick. 1974. Anarchy, State and Utopia. New York: Basic Books.

Alexis de Tocqueville. [1840] 1966. Democracy in America. trans. George Lawrence. New York: Harper and Row.