What’s Wrong with Liberty?

Or, as a former professor of mine phrased it less presumptively, is anything wrong with liberty? Specifically, I should ask what—if anything—is wrong with the libertarian conception of justice. Robert Nozick’s emblematic libertarian argument in Anarchy, State, and Utopia posits liberty as a sure-fire means of achieving justice. Nozick ultimately argues for a “minimal state” that does not infringe on individual property rights, thereby protecting its citizens’ liberty as a result. However, Nozick assumes that liberty results primarily, if not exclusively, from individual action. In excluding consideration of our liberties which depend on others’ actions for their fulfilment, Nozick wrongly conceives of the state as the principal violator of people’s freedoms. Rather, the state can also enable people to be freer than they would otherwise be without its influence.

In order to arrive at his conclusion, Nozick draws on classical state of nature theory. In the state of nature, Nozick suggests that “several different protective associations or companies” arise in order to enforce individuals’ rights. With the help of an invisible hand, a dominant protective association enters into the business of selling its protective services, crowding out all other competitors and becoming what he calls the minimal state. The minimal state is that protective association which retains a monopoly on the legitimate use of force and imposes taxes only to the extent required to maintain the infrastructure that prohibits individuals’ from limiting the freedoms of other individuals. In other words, the minimal state is justified in taxing its citizens at the lowest rate that will fund a military, police, courts, and other similar such institutions.

But how are individuals justified in owning and making decisions about their property? Philosopher Will Kymlicka identifies three explanations for this in Nozick’s theory. First is the principle of transfer, where individuals are allowed to freely transfer whatever they acquire legitimately. Second is the principle of just initial acquisition, which accounts for how people originally come to own things. Third is the principle of the rectification of justice, dealing with the things that may have been unjustly acquired or transferred. In essence, these principles amount to the following: as long as individuals acquire goods justly in society, then Nozick’s minimal state would be unjustified in coercively redistributing goods from some people to others. If Jordan stole Pamela’s blowtorch, then Jordan did not acquire that blowtorch legitimately and therefore has no legal right to own it, let alone decide what to do with it. Thus, the minimal state has a right to confiscate Pamela’s blowtorch and return it to her using the bare amount of force necessary to do so.

Nozick’s theory relies, moreover, on the primacy of individuals’ rights as Kantian self-owners that represent ends in themselves. Individuals are said to be “inviolable” because they possess existences independent of other people. According to Nozick, there is no social entity that undergoes sacrifice for its own good; there are only people within the bounds of the state. Therefore, because there are “only individual people, different individual people,” each person is entitled to his or her individual rights, which may not be sacrificed as means for another person’s ends. Kymlicka suggests that, while the premise that individuals are ends in themselves is valid, Nozick’s property-ownership conclusion does not necessarily follow. Instead, Kymlicka argues that the goods that result from the exercise of self-owned powers cannot adequately be traced to a reliable position whereby they were initially acquired legitimately, thus violating either the premise that individuals are self-owners, or that individuals legitimately owning property means they necessarily obtained that property legitimately in the first place. For instance, land was—for the most part—initially appropriated by force. Generals of olden times, bullies, bandits, barbarians, and so on raided, pillaged, and stole land from people long ago. Thus the assumption that buying land means that that land was initially acquired legitimately does not hold. One could easily claim that, if Alex legitimately bought a plot of land that was stolen from John’s family long ago, then John’s descendants also deserve that land. In other words, any transfer of that land is illegitimate to some degree since that land was not acquired legitimately in the first place. So, true enough that individuals are ends in themselves, but that does not imply their absolute right as property owners.

At least two kinds of freedom constitute liberty, although Nozick accounts for only one. Liberty consists of simple freedoms (what Nozick’s conceptualizes as the entirety of liberty) and complex freedoms. Simple freedoms are, essentially, the freedoms people enjoy from others’ restraint on their actions. In other words, I can freely study in the library because no one stops me from doing so. But liberty also consists of a series of complex freedoms that depend on the actions of other people for them to take shape in the real world. I am free to study in the library not just because no one stops me, but also because someone built the library in the first place. As consisting of both simple and complex freedoms, liberty results from both top-down constraints such as society’s laws and rules, as well as society’s bottom-up structures and public works.

Nozick assumes that liberty only results from top-down, simple freedoms. Take his argument for minimal taxation, for example. According to Nozick, just uses of tax revenue include maintaining the police to prevent against theft, a judicial system to enforce contracts, a military to protect the state’s external borders, and so on, because these uses protect individuals from other people’s attempts to restrain their freedom to transfer their (supposedly legitimately acquired) property as they see fit. In contrast, government expenditures on public works like roads, hospitals, or schools “involve coercive taxation of some people against their will.” Nozick famously gives the example of Wilt Chamberlain to illustrate how, as long as an individual acquires his or her property legitimately, the state is unjustified in anything more than minimal taxation.

Wilt Chamberlain’s contract pays him twenty-five cents for every ticket sold in a home game. Chamberlain, in Nozick’s example, ends up with a hypothetical $250,000 after the season. Nozick argues that any tax on Chamberlain’s income unjustly violates his absolute property rights if it pays for anything except the infrastructure required for protecting others from stealing Chamberlain’s money, or otherwise causing him to transfer it to another person against his will. However, Chamberlain’s freedom to spend his income however he deems fit does not just depend on the state minding its own business; it depends on fans paying tickets to come see him play. Fans who, presumably, drove to games on government-funded roads, or became fans by playing varsity basketball while attending government-funded high schools. Without Nozick’s so-called “coercive” taxation, Chamberlain’s freedom to spend his income is contingent upon market forces—as opposed to state protection—to generate a fan-base through private high schools’ basketball teams and private toll roads that bring people to the stadium. Whether or not the private market would build enough roads and high schools to supplement Chamberlain’s hypothetically lost income through “coercive” taxation is unexplored here, though my hunch is that it is highly unlikely. What I believe confidently, though, is that when the model of liberty consists of both simple and complex freedoms, people’s ability to acquire and transfer wealth freely expands greatly.

Furthermore, in conceptualizing liberty merely as a set of simple freedoms, Nozick glosses over violations of liberty by individual market actors and downplays the validity of people’s complex freedoms. Consider Kymlicka’s example of hypothetical individuals Ben and Amy’s land-owning relationship, which he gives in the context of Nozick’s Lockean proviso. (Nozick’s Lockean proviso states that people can legitimately acquire property rights over a disproportionate share of the world’s material resources as long as no one is left worse off.)

Ben and Amy work a plot of land collectively. Amy, however, appropriates so much of the land that Ben can no longer live off the crops produced by his share. Thus, Ben comes to rely on Amy to provide a wage to compensate him for working a portion of the land for her. This satisfies Nozick’s Lockean proviso because both Ben’s and Amy’s shares of the land’s crop increases through the division of labor, though his increases less than hers. Despite the widening inequality, no one is worse off than they were before. For Nozick, the logical conclusion of the Lockean proviso stipulates a free market of labor and capital in order to protect both individuals’ private property rights. Nozick’s free market conclusion assumes the state to be the primary violator of individual property rights as Amy, a private market actor, fairly compensates Ben through consensual wage labor. According to Nozick, if the state were to regulate either Ben’s ability to contract with Amy or Amy’s willingness to provide a minimum wage, this would infringe upon both parties’ absolute property rights. However, by emphasizing the state’s violation of property rights, Nozick ignores Amy’s illegitimate appropriation of Ben’s land rights. Moreover, Nozick takes Ben’s consent to the wage-labor arrangement as given. More likely, Ben is left with two options: sign the contract and take Amy’s buy-out, or die of starvation since he has no land upon which to grow crops, nor any money to buy food—hardly indicative of freely given consent. In terms of simple freedoms, Nozick’s justification of free market capitalism only protects against violations of freedom committed by the state, not violations that occur amongst individual market actors.

In addition to this tacit legitimation of simple freedom violations by individuals, Nozick’s theory endangers complex freedoms. In the libertarian view, the minimal state is unjustified in coercively taxing citizens in order to redistribute wealth from rich people to poor people. As in Nozick’s Wilt Chamberlain example, individuals’ self-ownership leads to ownership over their talents and, by extension, the fruits of their labor. However, individuals only own themselves to the extent that their liberty depends on simple freedoms. Individuals’ freedom also depends more or less equally on the actions of others. Chamberlain’s income depends on publicly funded roads that brought fans to his games. Therefore, the taxation required to build public infrastructure contributes to Chamberlain’s ability to make money rather than detracts from it.

If we are to accept Nozick’s view that the state is never justified in taxing people for things like roads, then we have to accept that our complex freedoms cannot be guaranteed, but only hoped for. Simply put, the endangerment of complex freedoms represents the legitimation of non-minimal state in contrast to libertarians’ viewpoint. Humans’ lives depend on certain freedoms that depend in turn on someone to provide them, but which have no guarantor in a totally free market. For example, a family living in northern Alaska depends on heating, which requires someone (whether the government or an energy company or whomever) to take active steps to ensure that the family’s need is fulfilled. If Chamberlain plays a basketball game in northern Alaska, then the family’s freedom to see his performance relies on their not freezing to death. If an energy company charges a higher price because they cornered the market on heating in northern Alaska, then individuals face potential hypothermia and cannot freely see Chamberlain play, let alone live. Not to mention that now, because the family’s lack of heating limits their ability to see Chamberlain play, Chamberlain’s own freedom to spend his money is limited as he has just lost paying customers. Ultimately, the libertarian reliance on simple freedoms undermines their own premise that the state should not intervene in the individual transfer of property lest it infringe upon such freedoms—without the state, both our simple and complex freedoms may be in jeopardy in an unregulated free market.

Nozick, as a libertarian, privileges simple freedoms and private property rights in a free market system unregulated by a minimal state. People who hold the preponderance of wealth and influence in society are justified so long as they acquired both honestly. Therefore, government regulation, including things like coercive taxation, baseline health and safety standards, or publicly funded infrastructure unjustifiably forces the wealthy to give their property to those in society who have supposedly not earned their fair share. However, simple freedoms make up only one element of liberty, with complex freedoms making up another. Ironically, libertarians ignore at least half of what liberty means.

By claiming that complex freedoms violate individual property rights, libertarians apologize for a system that denies some members of society the freedom to attain even simple freedoms. Libertarian philosophy crucially implies a system where rights and freedoms founded on the rational, self-interested part of humanity triumph, while those founded on empathy and altruism enter into consideration as distinctly subordinate. Under libertarian assumptions, we remain subject to a narrow and dangerous view of freedom predicated on our baser instincts towards individual self-interest. In modern society, these primal instincts no longer hold as we have developed empathy and recognized our role in promoting others’ liberty.

About Bill Kakenmaster

Contributing Editor, Human Rights, Peace, and Conflict Resolution. | Editor-in-Chief, Clocks and Clouds. | Student, pacifist, and researcher. Email: wk6344a@student.american.edu Twitter: @billkakenmaster