Opposing Mike Huben’s A Non‐Libertarian FAQ

Libertarians fail to consider the bigger picture

Many libertarian arguments are like fundamentalist arguments: they depend upon restricting your attention to a very narrow field so that you will not notice that they fail outside of that field. For example, fundamentalists like to restrict the argument to the bible. Libertarians like to restrict the argument to their notions of economics, justice, history, and rights and their misrepresentations of government and contracts. Widen the scope, and their questionable assumptions leap into view. […]

This is a frequent counter‐argument to most political ideologies not one’s own. Most people use it when they feel that their chosen values are not being taken into consideration in a debate. And as Mike points out elsewhere in NLF, libertarian ideas or values are neither widely known nor generally accepted. It follows that people arguing with libertarians often make this claim. I feel the best way to come into terms with this sort of objection is to discuss one’s values and presuppositions openly and to try and establish a level playing field before entering into debate proper. At the very least all participants should spell out their assumptions to avoid misunderstanding.

From this perspective it is true that us libertarians have to use an extraordinary amount of time explaining the basics of our ideology and worldview. Mike sees this as limiting the scope of the discussion. We on the other hand see it as a necessary part of enabling discussion in the first place—if a discussion cannot be built on some sort of common ground, it won’t be a discussion. Rather it’ll become a pissing contest. At the very minimum that common ground can be the understanding that ideologies should be internally coherent. At best, what we’re discussing can be deduced entirely from principles shared by the participants, and can so be settled as a matter of logic. Whatever the shared ground, time should always be taken to establish it if something is to be gained from the discussion.

Now, once discussion moves past the premises, I would contend that libertarians in the average take into account a far wider spectrum of societal issues than e.g. most elected officials. After all, the idea that governmental decision processes commonly neglect the aggregate cost of market interventions to the society as a whole is central to the libertarian weariness towards centralized government. One could not sustain such an objection if one wasn’t able to look at the bigger picture. Libertarians are often rationalists as well, so I think that getting into a fair debate with an average libertarian should be considerably easier than, say, with a creationist. This isn’t to say there are no exceptions, of course, but I do think we tend to respond fairly well to civilized debate.

Libertarian rhetoric as evangelism

Evangelists (those trying to persuade others to adopt their beliefs) generally have extensively studied which arguments have the greatest effect on the unprepared. Usually, these arguments are brief propositions that can be memorized easily and regurgitated in large numbers. These arguments, by the process of selection, tend not to have obvious refutations, and when confronted by a refutation, the commonest tactic is to recite another argument. This eliminates the need for actual understanding of the basis of arguments, and greatly speeds the rate at which evangelists can be trained.

I can think of three reasons why this isn’t such a bad thing.

First, we can view one‐liners and the like as theorems without proof. I always try to avoid regurgitating libertarian one‐liners absent a proper understanding of how to defend them, so when I use the typical catch‐phrases, I don’t think I’m cheating. If someone wants me to spell out the details, I can and I will. It’s just that most people have better things to do than listen to the details. It’s for these people that one‐liners exist. We can think of such lore as the beginners’ guide to libertarianism, with in‐depth treatment available from other sources. As a matter of fact, digests, one‐liners and quotations are especially important to a libertarian as the underlying libertarian theory often deserves a treatise longer than anybody in e.g. a newsgroup would care to follow.

Second, while one should always have facts, figures and logic to back up one’s allegations, one should never underestimate or put down rhetoric, either. I think I can freely admit that I’ve engaged in what Mike describes here, but I also think it’s just good PR. That’s something which is absolutely essential to people trying to get their point across, even when the point is sound in itself. I can’t see what is wrong with using a measure of sheer rhetoric even in a rational debate, to speed things along, or to fulfil the emotional objectives of politics.

Third, if we envision the Net or the conventional public sphere as battlegrounds for memes, the best ones win. If a particular libertarian slogan is powerful enough to convince hoardes of people in one fell swoop (a rare occurrence indeed), maybe one should give the idea the merit it is due? After all, it’s possible that it is a part of a larger cooperating set of memes which can bring about good policy.

This idea is to me a recent one, but also one of the more powerful: politics is not all about facts, but beliefs as well. As is the case with all other ideologies, certain things in libertarianism hinge on people’s willingness to believe that the ideology is right. They aren’t founded on reason, because not everything can be. For instance, our current political system could not sustain a populus which suddenly began to value random killing, and refused to take any binding theory of morality or law seriously. After that, there would be no way to rationally defend the idea that people shouldn’t be killed, and we would have a massacre. We see that there are always things which hinge on pure belief in every political system, belief in the axioms the system is built on. In libertarian minarchy, one such thing of pure belief is the idea that constitutions shouldn’t be changed easily. If it takes what amounts to religious indoctrination to press this idea on people, and as a result we obtain a workable libertarian minarchist utopia, then indoctrination is a simple necessity. Sounds bad, I know, but such indoctrination cannot be avoided in any system. It is the very basis of political ideology. It also seems Mike doesn’t notice this particular complication.

The original intent of the US Founding Fathers

Not to mention that original intent (or original understanding) is just as open to interpretation as the Constitution itself because while there is lots of explicit data, it is from many contradictory sources.

The problem is, if such great discrepancies were to be found in the Founders’ opinions, how ever did they manage to Found anything? The fact is, the US has come to exist, as a sort of compromise between the Founders’ views. The compromise that has lead to the founding of the nation is what is being described when libertarians talk about the intent of the Founders. The claim is that this compromise was basically a moderate libertarian one.

BTW, Mike’s subsequent critique of this point demonstrates stunning ignorance of the history and breath of the ideology he so vehemently opposes. The spectrum of libertarianism runs wide indeed, and the early forms have quite clearly served as the basis of most of the truly distinctive features of the US constitution. I don’t think this is a matter of serious historical dispute. As for moderation, one should take a look at the breadth of European liberal parties: we have heaps upon heaps of moderate libertarians and small‐r republicans, here, thanks to early adoption proportional representation in elections. That has allowed left and centrist libertarianism to survive precisely on their moderate merits.

I think the best way to interpret the Constitution is the way the founders explicitly specified in the Constitution: look to the courts, especially the Supreme Court. The Constitution leaves the method of its interpretation by the court entirely to the court to decide.

To the degree that laws exist, they must be interpreted by some authority, yes. The problem is, this sort of argument neglects the possibility of systematic, willful misinterpretation. Libertarians claim that the government, and with it the Supreme Court, has both the means and the motivation to commit precisely such a deed. The question is, have they? I would have to put forth a cautious yes on this one.

Even if there are tons of hazy historical and legal issues here, there are also quite a number of examples where the Supreme Court has ruled measures constitutional which practically fly on the face of the Founders’ text. One such example is the increasing regulation under the Commerce Clause of the Constitution—if one looks at the early cases involving the Commerce Clause, one sees a consistent widening of the scope of the Commerce Clause from simply granting the congress a right to tear down inter‐state trade barriers, to giving it the power to regulate arbitrary inter‐state business, to finally granting the legislature an open licence to regulate anything that has ever had even the slightest influence on inter‐state commerce. The Commerce Clause is in fact so broadly interpreted nowadays that most of the Constitution is actually just legislative deadweight; under the current interpretation, the Commerce Clause alone would make the congress practically omnipotent. If the Constitution was meant to grant the federal government only limited powers, this particular interpretation must simply go against its purpose. If no such limitations were meant, however, why would the Constitution exist in the first place? Britain doesn’t have one, for instance…

The US Government ignores the plain meaning of the Constitution.

Often this is presented as The US wouldn’t be so bad if the government followed the Constitution.

Plain meaning is a matter of opinion. A plain meaning one century can well be reversed in another, depending on popular usage, historical context, etc. Well intentioned people can disagree on plain meaning endlessly, as we see in any non‐unanimous court decision. For practical purposes, the meaning MUST be decided one way or another.

Even if interpretations must change, one could not for instance interpret a prohibition on killing people first as meaning nobody can be killed without governmental authorization, and then as meaning nothing at all when the government authorizes all killing. Certain things simply fly against all common sense, and should not be attempted in a civil society. These are precisely the aspects of the Constitution libertarians mean by plain meaning.

The Declaration of Independence

The Declaration Of Independence is a rhetorical document, without legal standing in the USA.

Of course. But just as the Federalist Papers Mike quotes above this comment, that too is a valuable aid in fleshing out what precisely it was that the US was originally founded on.

Libertarians as freedom‐lovers

The foremost defenders of our freedoms and rights, which libertarians prefer you overlook, are our governments.

Defenders of freedoms and rights indeed. Just look at North Korea.

Even if the government does protect us from violent crime and the like, it in no way follows that everything that, or indeed most of what, the government does is even remotely consistent with the principle of individual freedom. I think we can agree that, at the very minimum, the state should not actively work against freedom. Yet there is reason to believe it now does.

Also, libertarians by and far believe that the preservation of individual freedom is the only justifiable (from the natural rights perspective) or useful (from the utilitarian) role of a state in society. All law derives from that basic principle. It is easily seen that current law does not abide by this simple rule. It is also clear that the state wastes its resources on the enforcement of law which is useless from this perspective. Hence, the state both neglects its duties and actively works against its just/useful purpose.

Lots of other organizations (many of which you would not want to be associated with, such as Scientologists) also fight for freedom and rights. I prefer the ACLU.

That’s very nice indeed, being that most of what the ACLU does is, simply put, to defend libertarian values. I mean, there’s hardly anything in the US constitution more libertarian than the primary concern of the ACLU, the Bill of Rights.

Taxes are theft

The first is that property is theft. The notion behind property is that A declares something to be property, and threatens anybody who still wants to use it. Where does A get the right to forcibly stop others from using it? Arguments about mixing of labor with the resource as a basis for ownership boil down to first‐come‐first‐served. This criticism is even accepted by some libertarians, and is favorably viewed by David Friedman. This justifies property taxes or extraction taxes on land or extractable resources if you presume that the government is a holder in trust for natural resources.

Actually this does not follow. What follows instead is the unsustainable left‐anarchist assumption of no property rights whatsoever, regardless of whether the owner is the government or not. In other words, it follows that the government cannot restrict use, even use without paying taxes. This certainly doesn’t lead to first come, first served allocation, but we all know what it would do to the economy. I don’t think that even Mike would argue for such a state of affairs.

If we look at property, it is nothing more than an expression of somebody’s right to control the use and disposition of some resource. Whenever people utilitize any resource, material or not, we implicitly have such control. The institution of property is nothing more than an explicit, exclusive assignment of rights of control to some resource. If the arrangement is made inclusive, we then have collective property. Utilitarian libertarians like me then argue that the most efficient way to allocate the property right is always the one with the fewest people to quarrel over the proper use of a given resource. This largely leads to private property. This is a simple corollary to Coase’s theorem, and is hardly at odds with pure positive economics.

Second, geo‐libertarians, also called left‐libertarians, are unadulterated libertarians, too. Most right‐libertarians would value their thoughts far above those of, say, Republicans or Democrats. The second part of Mike’s argument is flawed in that taxation of unproduced resources is already a part of the libertarian movement, if perhaps a minority viewpoint within it. This particular alteration to the theory doesn’t change the ideology all that much.

Finally, what’s wrong with FCFS property creation, per se? In the libertarian framework this only accounts for the inclusion of something in the system of property rights, not the subsequent distribution after trade. The latter is the thing that counts, and it can be shown to become efficient whatever the initial allocation, modulo transaction costs. Keeping that in mind, Lockean land tenure, or better yet, Coasian rights allocation, will yield a very reasonable starting point for the more general economic process which then gives rise to the eventual, non‐FCFS allocation.

The second is that taxation is part of a social contract. Essentially, tax is payment in exchange for services from government.

However, one part of normal payments is that one can always turn down the deal entirely, and even freely decide what services to buy instead. This is not possible with the services provided by the state, so there is essentially no way of knowing how badly the government might rip its customers off. Libertarians claim that the government indeed handsomely rips off its citizens, squeezing from them in excess of twice the market value of the services offered, on average.

Also, if we think of taxes as a price for services, we should get the services. But the bang for the buck isn’t there. Even when the precise good or service now publicly provided can in fact be provided privately as well. From this viewpoint the price is no longer a price, but an arbitrary sum of money given to the government. It’s no more a just compensation for services rendered than the price an extortionist extracts for his restraint.

This is precisely the problem with social contracts: they can be used to arrive at a justification to completely arbitrary governmental practices. By this reasoning we can be sure that even thoroughly oppressed people have signed the invisible contract and thus purchased the services rendered by their rulers. The only way to escape this conclusion is to make the social contract like all the other ones, and to require willful assent to its terms before considering it binding. Today that assent isn’t there, given the existence of libertarians. The only way to fix the problem is to grant people the right to secede, so that a truly binding contract can be reached among those who remain.

Many libertarians accept social contract (for example, essentially all minarchists must to insist on a monopoly of government.)

Whoever gave Mike this idea? It is not necessary to believe in a social contract if the monopoly of violence is taken as an axiom or derived on utilitarian grounds.

I for instance am a minarchist, but have a hard time coping with contracts I haven’t willingly consented to. My own justification for the existence of a state is based on the idea that markets cannot function without the enforcement of rights. When libertarians base their arguments on the benefits of contractual obligation, they usually assume the contracts are effectively enforced. Bindingness does not apply to contracts prevailing in the economy between protection agencies. From this it then follows that in order to use economics to build the rest of the libertarian case, one first needs a minarchy to enforce the basic rights. (Put in another way, the efficiency or stability of anarcho‐capitalism cannot be derived from standard microeconomics the way David Friedman et al. do, and indeed neither holds.)

If one wants to call this a social contract, one will have to call a king’s absolute reign over his territory that, too. Minarchy isn’t about completely voluntary cooperation, and so the consequence isn’t a contract. The idea is libertarian because it aims at minimum coercion. It isn’t anarcho‐capitalist because minarchists claim that the minimum attainable is considerably above nil. Were this to change, or were us to be proven wrong, we’d likely become anarcho‐capitalists.

The Men with Guns

If you don’t pay your taxes, men with guns will show up at your house, initiate force and put you in jail.

This is not initiation of force. It is enforcement of contract, in this case an explicit social contract.

What this is is an excellent argument in favor of not recognizing certain forms of contracts. The main flaw with this argument is that the contract is enforced even when it clearly fails the criteria of consensuality and due consideration.

Besides, why can’t I contract with another state on its terms without moving to that state? Why can’t I and my libertarian friends set up a virtual libertarian government, invite every libertarian in the world to contract with it instead, and have a cybersociety of happy, non‐tax paying libertarians all over the globe? As far as I can see, this sort of thing stays well within Mike’s line of reasoning.

Signing the social contract

There are several explicit means by which people make the social contract with government. The commonest is when your parents choose your residency and/or citizenship after your birth. In that case, your parents or guardians are contracting for you, exercising their power of custody.

Few libertarians would argue that parents have absolute rights to contract on behalf of their children. For instance, selling a child to slavery usually isn’t seen as a valid form of contract, binding on the child. I just hope Mike isn’t arguing that it should be. If he indeed isn’t, then subservience to a state isn’t very far removed from slavery…

Immigrants, residents, and visitors contract through the oath of citizenship (swearing to uphold the laws and Constitution), residency permits, and visas.

This argument is likely tenable, if we assume that the government is a person in the legal sense, and so that it can enter into a contract. I usually don’t. After all, if the state enforces all contracts, no contract with the state can be mutually binding. A non‐binding contract isn’t a contract, and so the government cannot contract at all. It can only make promises. (For separate reasons I don’t think corporate persons are generally a good idea, either.)

Nevertheless, if one enters the country illegally, no contract is ever formed. In order for the the restaurant example, next, to apply, the government would have to own its territory, something which is extremely difficult to show to be the case without assuming it. Further, if one of those people born into the country who aren’t by the above bound by the contract grants an outsider the right to enter, and this is possible without stepping on governmentally owned land, even the property owner argument will not work to prohibit this.

Mike tries to circumvent this point with his notion of what property is—basically he says might is right. This is just fine, because practically nobody would subscribe to his viewpoint. Furthermore, now we’re into the happy debate of what property should be like and why it exists. Mike will now have to deal with the extensive literature on the history of property rights, efficient rights allocation, economics of law and the huge body of moral arguments which classical liberals once used to attack precisely the conception of state ownership in everything. I think libertarians have a fairly comprehensive framework in which to analyse questions pertaining to the nature of property and rights. As yet, Mike has demonstrated no such understanding of the institution, and his claims remain somewhat impotent.

Some libertarians make a big deal about needing to actually sign a contract. Take them to a restaurant and see if they think it ethical to walk out without paying because they didn’t sign anything.

The fuss about signing is actually less about signing than it is about willful consent. We see this in the fact that few courts would uphold a contract supposedly formed when a person unknowingly steps into a restaurant of the described kind. A contract is a contract when both parties have understood its content and agreed to abide by it. Even the fact that we currently use written, signed paper documents for objective post facto verification of the existence of a contract is peripheral to the nature of contracts—they are part of the enforcement of contracts, not of contracts per se. What is lacking with the so called social contract, then, is voluntary bilateral agreement on the terms, not something as simplistic as a signature.

Are social contracts unique?

The social contract is like no other because it can be unilaterally modified.

Not true.

Mike is absolutely right, here. What is different about a social contract is not that it can be unilaterally modified, but the fact that there has been no willful consent to the fact that it can. This extra provision then makes point about consent doubly strong: if you’re signing what is essentially the civil liberties equivalent of a blanc cheque, surely you must have the option of turning the deal down in the first place?

Equality in social contracts

Some complain that the social contract is fundamentally unjust because it doesn’t treat people equally, that people are taxed unequally or receive services unequally. So? Like insurance, rates can vary from individual to individual, and services received may be more or less than premiums paid.

Ah, but in insurance business competition takes care of price discrimination, and causes the expected benefits to settle to a sum approximately equal to the price paid (plus expenses, plus a share of the transaction costs from trouble like moral hazard and the like, minus interest). No such thing happens with governments, because they do not compete on a free market. Thus price discrimination in excess of what consumer preferences would dictate can (and invariably will) result. In this case, the result will not be efficient.

Second, while perfect price discrimination is actually efficient (though not distributionally neutral), the government, taken as a monopolist, has an extra advantage: you can’t turn down its offer altogether, like the usual monopolist’s. This implies that the state not only can take away your consumer surplus, but can also take considerably more. That’s what redistribution is all about. If any private company tried it, it would either go bankrupt or would be forcibly shut down by the state on charges of misuse of monopoly power.

Mike also nicely confuses the management of uncertainty and the basis of insurance with redistribution. He works in ex post variables when individuals only have access to ex ante ones. In the presence of uncertainty these two are separate, and efficiency is dictated by the latter.

Later Mike pointed out that markets aren’t perfect. Well of course they aren’t. They’re still a whole lot better than governments, as the extensive literature on government failure suggests. Mike also doesn’t seem to know that to a first approximation, real markets do approximate ideal ones much better than the public economy ever will. This isn’t a matter of conjecture, but can easily be shown true by risk analysis of existing institutions. Mike would do well to immerse himself in new institutional microeconomics, and particularly its forerunners, like Wicksell. It is well known that rule by unanimity is the only known guarantee of efficient collective decision making, and that the structure of our current political system can be explained as a brutal compromise to alleviate the transaction costs inherent in a requirement of consensus. As such, political decisions are to be presumed inefficient unless shown otherwise.

Some complain Any contract where the enforcing agency is one of the contractors is hardly fair. But the U.S. Constitution is a contract between SEVERAL parties: the three branches of the government, the states, and citizens.

In this case the question is, does this arrangement work? Do the checks and balances hold? Libertarians would of course say no. The reason is that the interests of the three branches of government, federal and state, coincide against the people, and the government holds the tools of coercion. Hence, oppression of the people by their own government.

Some people would say this cannot happen, as the people constitute the government. The trouble is, this does not follow. The same basic mechanism which plays people’s interests against another to stop them from forming organized crime families can also be used to deny them the opportunity of stopping governmental abuse—this is an instance of the Tragedy of the Commons, where organization would pay off but where transactions costs are too high for it to occur in practice. To use the argument is simply to succumb to the fallacy of composition.

Why leave an apartment if you change your mind about the lease? You do not own the apartment, just as you do not own the nation. At most, you may own some property within the apartment, just as you may own some property within the nation.

So, at the very least you do not have to obey the rules having to do with any property inside the apartment?

More importantly, my minarchist background forces me to conclude both that property rights are not a subset of governance rights, and vice versa. The way I see it is, ownership does not confer the right to enforce rights, and the right to enforce, which is the right solely of the state, necessitates limits on the possessor’s other rights. For instance, having property does not mean one can retaliate at will against any and all infringers, while the state certainly can. If this wasn’t so, people could for example summarily execute a suspected pickpocket or, the other way around, a state would have no moral right to engage in a defensive war. Similarly, there must be limits to the ways an enforcer can utilize his possible property rights, since property gives absolute control over the disposition of the property, but we simply cannot afford to enforce rules that arbitrary. This way governance and property rights become separate, and Mike’s analogy breaks quite nicely.

Volition and the social contract

Most libertarians have a peculiar definition of voluntary: contractual agreement makes all requirements of the contract voluntary, no matter how unexpected they are, no matter how long the contract lasts for, no matter if the contractee changes his mind. However, they’re seldom willing to view our social contract in that manner.

Most contracts have unintended consequences, just as most bets do. If one is willing to make a promise based on future expectations, one must be willing to bear the consequences. In most cases these are tolerable. In some, they are not. But that’s just what an honest promise is about. One didn’t have to promise anything, so there’s nobody to blaim for the consequences but one’s self.

What’s been said applies to valid contracts only, of course. Making them universally binding is tolerable only because they can be turned down in the first place. Since this does not apply to a social contract, libertarians are quite right in treating the latter differently.

Love it or leave it?

For example, let’s say you live in a condominium, and are very fond of it. As long as you can move out, you have a choice. No matter how firmly you intend to stay. No matter how much you prefer your current condo. No matter how good or bad your current condo is for you, you still have a choice.

If one likens this example to living in a nation, being born into it must then be voluntary just like renting a condominium is. But it isn’t. Hence, Mike’s point is moot.

You have at least 4 choices.

1. Tolerate the social contract, and perhaps try to amend it.
2. Leave it by emigrating.
3. Violate it.
4. Revolt.

Considering the alternatives, Mike is probably advocating rebellion. But that is sedition. In the 911 aftermath, that sort of thing doesn’t really fly. Please incarcerate Mike Huben. And was there some talk about torturing the suspects if nothing else helps? Mike couldn’t have anything against that, being that that is part of the social contract he apparently signed…

Libertarian nations

We can’t emigrate because there is no libertarian nation.

Yes, you can emigrate, just as you could buy a different car even though your favorite company doesn’t produce cars which let you travel at the speed of sound and get 2000 mpg. Even if nobody produces EXACTLY what you want, you can choose any car the market produces or you create yourself.

That’s just the point. You cannot build your own as current nations stop libertarian ones from forming. When this is the case, Mike’s example boils down to if people die upon making proper cars, you’d better do without one.

The Mafia protection racket

Extortion by the state is no different than extortion by the Mafia.

This is a prize piece of libertarian rhetoric, because it slides in the accusation that taxation is extortion. This analogy initially seems strong, because both are territorial. However, libertarians consider contractual rental of land by owners (which is also fundamentally territorial) ethical, and consider coercion of squatters by those owners ethical. The key difference is who owns what. The Mafia doesn’t own anything to contract about.

How’s that? If Mike can show that the government owns its territory, the same arguments can be used to show that the Mafia does, too. After that we’re back to the prize piece, having ended up amplifying it on the way.

Right to govern territory

There’s no such thing as rights to govern territory!

You’d have to ignore an awful lot of history to claim this sort of PROPERTY didn’t exist.

Here Mike is absolutely right, of course, if we start with the usual extensive definition of property rights. Rights to govern territory are a clear subset of those even if someone like me would consider the two sets of rights separately. However, libertarians of different varieties can still come up with a number of objections:

• Ownership of land usually accrues from homesteading and subsequent transfer of rights. States cannot have transferred such rights to the US federal government since they didn’t have them in the first place—those who did the homesteading haven’t explicitly transferred any governance rights to the states. (That they didn’t object to what the states were doing does not prove assent.)
• Moreover, no verifiable papertrail exists which shows that governance rights were indeed justly acquired.
• Most treaties and purchases which could have transferred governance rights to the state have been made with taxes (stolen money). They are tainted. They should be given back to the original owners, along with damages collected from the state.
• Conquest isn’t a valid way of acquiring property, either. Or do I have the right to conquer Mike’s apartment at any time?
• Clearly documented bequeathment would be valid, but is rare enough to be considered inexistent.
• Only legal persons can own land or have rights to territory. The state is not a legal person, since if it was, the laws it passes would apply equally to itself. If we grant the state the essentially unlimited powers over the nation which would be conferred by an actual property right, there will always have to be someone to use that right. If law does not apply equally to him, we risk generating a privileged class within the nation with unlimited power over the rest. That is something few would argue for.
• Rights per se and the enforcement of rights are two very different things. In the context of minarchy, only the state can enforce rights. Consequently it cannot at the same time have unlimited power over what the rights to be enforced are. Otherwise the state would be omnipotent. This is why constitutions and other safeguards exist to limit the powers possessed by the state. The kinds of governance Mike argues for goes against the purpose of such constitutional groundrules, and are a sign of a state gone awry.

It’s not your property!

Why should I be told what to do with my property? That infringes on my rights of ownership.

This question comes up rather often, since absolute ownership of property is fundamental to most flavors of libertarianism. Such propertarianism fuels daydreams of being able to force the rest of the world to swirl around the immovable rock of your property. For example, there were trespass lawsuits filed against airlines for flying over property.

Few thoughtful libertarians would argue that ownership of land extends to the airspace above it, or indeed the natural resources under it. After all, neither Lockean land tenure nor Coasian rights allocation arguments lead to such a claim.

It is another question, then, whether anyone using those resources can actually do so without incurring liabilities on himself—you cannot dig on another’s property without his consent, and perhaps you cannot even risk airplane crashes in another’s property without offering compensation in the form of an agreed upon rent or full insurance coverage for the possible damages.

A good answer is: what makes you so sure it is yours?

Of course it’s my property. I paid money and hold the deed.

What do you hold the deed to? Property as recognized by a government. As such, you can address infringement of your rights through the legal system. However your property as recognized by the legal system is limited.

Once again we need to think what this sort of relative argument would mean if applied a bit more broadly. Can the right to life be interpreted solely as a right as recognized by the state? Is Mike saying that genocide is perfectly fine if it’s just voted on, first?

Quite a number of libertarians believe in a basic code of morality independent of what the standing law is. That is, natural rights. If the legal system refuses to enforce those rights, the right to property being one of them, it is the legal system that is flawed. The rights always exist, and at most they are not being properly enforced. If we then start from the utilitarian perspective, what Mike proposes is to dilute exclusive property rights. That is possible, of course, but is easily shown to be economically suboptimal because of an increase in expected transaction costs in coming to agreement over the use of the property in question. Either way, one does not get to arbitrarily redefine what property means.

From a purely logical point of view the catch is that Mike’s own argument for territorial governance rights hinges on the assumption of what is basically an exclusive property right. Following Mike’s reasoning, before the state is born, there can be no governance rights since nobody enforces them. Such inexistent rights cannot then be transferred to a state being born, and a state can never have the right to govern.

Maybe rights are limited, but new limitations are Evil

New limitations on use of property are a taking, and should be compensated.

Some new limitations can be viewed as merely making specific that what was claimed was never really owned. For example, where was ownership of airspace above property ever explicitly granted in our system of property? Where were polluters ever explicitly granted the right to dump wastes into air or water that they do not have a title to?

The problem is, if one makes a contract, one has to know what it entails. Making something specific after the fact isn’t an option. If those easements and limitations are not spelled out at the time of transfer of the property, they do not exist. This by the way is one of the reasons libertarians talk about the original intent of the Founders: if we assume Mike’s framework of governance rights, those rights cannot change at all beyond the first transfer of government‐owned land. (Unless, of course, all land has been transfered to a nation’s residents under the explicit condition of one‐sided modifiability of the contract. No such explicit limitation can be found in the US Constitution, or indeed elsewhere.)

As for pollution and the ownership of airspace, the right to the first was never granted. It has never been alright, and it is clearly a case of poorly enforced freedom of those who suffered from the pollution. As for the second, airspace is nicely covered by Lockean land tenure, as are ownership of radio spectrum, usage rights to aboriginal land and many other extremely difficult edge cases in property law. Often Coase’s argument can be used to amplify this point: most of the time it doesn’t matter who gets allocated the right, as long as the right is allocated clearly, and to a private actor.

Most libertarians would recognize the right of a mall owner to write his leases so that he could terminate them if the renters cause externalities: why shouldn’t communities have this right to self‐ governance as well?

Because the community does not usually own anything. But when it does, it actually has such rights. Libertarians’ reliance on the idea of gated communities (to wit, burbclaves) as an essential part of the libertarian infrastructure is a concrete manifestation of the principle in action.

As for more moderate libertarians like me, we actually think that control over externalities can partly fall on the state as well. After all, such control can be viewed as a part of enforcing other people’s rights. There’s no mismatch with the libertarian ideal of minimal government, here, since minimal might well include centralized control over externalities too broad to be controlled by private means alone. In fact if Mike cared enough about the subject to actually delve into The Machinery of Freedom, he would find out that David Fridman (reluctantly) agrees with this point in the context of providing for national defense. What we worry about isn’t control over clearly identifiable externalities, but centralization of power when it isn’t absolutely necessary, and the use of such centralized power to ends other than the preservation of liberty.

Taxes make you poor

Think how much wealthier we’d be if we didn’t pay taxes.

This is a classic example of libertarians not looking at the complete equation for at least two reasons.

1. If taxes are eliminated, you’ll need to purchase services that were formerly provided by government.
2. If taxes are eliminated, the economics of wages have changed, and wages will change as well.

Mike gets it right, here. I too think that many libertarians make far too extensive claims about the direct benefits of abolishing taxes. However, this does not mean that the benefits of uniform, lower tax rates from a very limited number of wide base taxes would not be extensive. There are a number of reasons:

• The government produces services people would not buy if they had the choice. It can be argued that over half of what the government produces falls squarely in this category, what with the Drug and Terrorism Wars, Federal Registers expanding at a rate of hundreds of pages per day, and all the other common prohibitions, codes and regulations.
• Stopping the production of useless goods and dismantling the bureaucracy would bring a lot of productive potential to the market, both in the form of newly freed capital and labour. This would allow a considerable, though one‐shot, increase in the GNP.
• The majority of good things that the government produces consists of purely private goods, which would be produced with considerably heightened efficiency were they put on the free market.
• Mike’s first argument neglects the fact that governmentally produced goods are available to people more or less equally, and so people cannot control the relative amounts of the goods they get. They pay a fixed tax‐price, and get a fixed bundle of products. Thus even if the total price paid after privatization stayed exactly the same, the increased freedom in consumer choice would constitute a notable net benefit.
• The benefits of broadened choice and larger cash flows through individuals’ hands would extend directly to investments as well. In the long term this would mean faster economic growth as investments would now better go where they’re needed. This effect is likely to swamp any direct benefits in a mere couple of decades.

The US was once libertarian

We lived in a fairly libertarian society in the US 150 years ago.

[…] Yes, the Federal government had a much lighter hand then. However, state and local governments had a much greater influence. There is not one class of positive duty or obligation in the US today that did not exist 200 years ago at state or federal level.

True enough. That is something one must never forget. However, those duties were situated at the state or municipal levels, which means the resources were likely used more efficiently, and that there was probably more choice as to how you could live within the US as a whole.

As a matter of fact, things got much better when powers of states were interpreted to be restricted by the US constitution (much later.)

Absolutely. From the viewpoint of libertarians, the US was founded precisely to restrict state authority over people’s lives, not much more. It worked wonders. Now the state is again expanding, however. Wouldn’t it be better to take the route we know works, instead of trying out statist measures which are known not to work?

Government of that era would be as out‐of‐place today as the tarriffs and scientific knowledge of that era.

So what precisely is it that forces the US of today to have a War on Drugs, to aspire to a world‐police status, or to offer the phenomenally inefficient public healthcare facilities it does? What exactly is it that has changed so radically that freedom is no longer an option? If Mike is to get anything out of this argument, he will have to lay out the precise reasons why the libertarian framework of rights cannot be adapted to the present without breaking it. Most libertarians think this is a futile effort, given that the fundamental economic and ethical reasoning behind the libertarian ethos hasn’t aged a bit. The details of the law might be different, today, but there is absolutely no reason to expect the principle to have passed into obsolescence.

Might makes right as the basis of statism

No, Might makes ability to make something, Right or Wrong. You can’t even try for Right until you have Might to back it up in the real world. That’s the reason that some real governments have survived and all utopian governments that have tried to abolish force have failed.

Sure. That just means libertarians better start arming themselves. Certain people need killing.

Is this approach so very much better than the principle of non‐initiation of violence advocated by libertarians? I think not. I believe in the long term the libertarian way of rational debate and non‐violent secessionism will bear fruit, and with costs and risks far below those of the simple way provided by direct use of force.

Property is just as involuntary as the social contract. There is no moral obligation for anyone to respect your property: only a practical one.

From a libertarian point of view, property itself isn’t based on might, only the enforcement of property rights is. If this weren’t so, why would we have morality at all? After all, the same precise argument can be made against each and every moral obligation there is.

Self‐government vs. other‐government

I want self‐government, not other‐government.

Self government is libertarian newspeak for everybody ought to be able to live as if they are the only human in the universe, if only they believe in the power of libertarianism.

This is a common misunderstanding, and is not sustainable in the light of libertarian theory. After all, the basic aim of libertarianism is to define a circle of individual rights which is maximal with respect to the similar set of rights of other people. This is in stark contrast with the thoroughly anarchical conception of liberty Mike describes above. In fact even libertarian anarcho‐capitalists usually agree with this; they just think these rights are better (and more morally) enforced by private protection agencies.

Much as we would like to be free of such regulation, most people also want to be able to regulate the behavior of others for practical reasons. Some libertarians claim that they want the first so much, that they will be willing to forgo the second. Most other people feel that both are necessary (and that it would be hypocritical or stupid to want just one.)

What can one say to an argument like this? Most people can be wrong, after all. They will be, too, if it’s in their interests as individuals. E.g. public choice demonstrates that this is indeed the case.

Put your money where your mouth is

Yet libertarians want us to risk what many of them consider the best nation in the world with their untested beliefs. […] Let libertarians bear the risk and cost of their own experiment.

They are quite willing to. Why can’t they secede on their property within the current US borders, then?

If libertarians are too inept to compete internationally through diplomacy, politics, bribery, or force of arms, it hardly takes a conspiracy to explain that they lost. That’s what sovereignty takes.

Again there are both moral and practical issues, here. I’m quite sure libertarians worldwide could muster enough force to kill their way to independence: in the end, who’s got better incentive to participate in such a project than drug cartels, unconventional weapons enthusiasts, wealthy people in need of a tax haven and the like? The problem is, libertarians would be betraying their principles if they used such measures. Perhaps Mike things that two wrongs can make a right. Libertarians by and far don’t. As for politics, it’s governed by the iron laws of public choice. It has little room for the libertarian ideal aiming to make the process itself unnecessary.

The practical problem is that it takes a certain critical mass of people and resources, plus at least a couple of decades of time, to build a nation from scratch. Just about any libertarian nation I can envision would be largely dependent upon trade. Ostracism by other nations is a major problem until the libertarian one is fully developed. Thus when the political process is by its nature opposed to the birth of a libertarian nation, such vulnerability makes the founding of such a nation far more difficult than it would many other. (That doesn’t mean the day won’t come, of course.)

Initiation of force

Like most other non‐pacifistic belief systems, libertarians want to initiate force for what they identify as their interests and call it righteous retaliation, and use the big lie technique to define everything else as evil initiation of force. They support the initial force that has already taken place in the formation of the system of property, and wish to continue to use force to perpetuate it and make it more rigid.

Ah, but that’s really the essence of homesteading: property forms when you take as yours something not already owned. Since there is no prior claim on the property, there can be no initiation of violence, here. However, when you try to take something already owned, you do initiate violence. I fear Mike needs to think about this asymmetry a bit more.

Enforcement of slavery

Dred Scott and the Fugitive Slave Laws were examples of government enforcement of slavery.

No. There’s a subtle distinction: they were enforcement of property rights of slaveowners. It was entirely the owners’ assertion that he was property that the government was acting upon. If the owner had at any time freed him, he would not have been a slave.

So, by the same token, if I say Mike needs killing and the government agrees to execute him, I’m the only one guilty of a murder? That is really just one instance of the famous Nürmberg defense: I’m innocent since I was told to do it. War criminals do not get off the hook that easily. Neither does the government, which has a distinct moral obligation not to enforce immoral laws.

The Nolan test

This libertarian quiz asks a set of leading questions to tempt you to proclaim yourself a libertarian.

Let’s look at the current WSPQ questions to see if they’re really as leading as Mike says they are. There are two sets of five questions. Ten yes answers classifies one as a libertarian. The first set measures commitment to individual freedom in the current, human/personal rights sense:

• Military service should be voluntary. (No draft)
• Government should not control radio, TV, the press or the Internet.
• Repeal regulations on sex for consenting adults.
• Drug laws do more harm than good. Repeal them.
• People should be free to come and go across borders; to live and work where they choose.

The second set gauges the individuals commitment to economic freedom. This is separate as it’s usual treated such in the body of contemporary political theory.

• Businesses and farms should operate without govt. subsidies.
• People are better off with free trade than with tariffs.
• Minimum wage laws cause unemployment. Repeal them.
• End taxes. Pay for services with user fees.
• All foreign aid should be privately funded.

Now, I’m not sure what Mike classifies as leading but I’m having a hard time seeing the above as such. The questions are short, simple enough to be almost naïve, they are easy to understand and they seem to be statistically efficient in picking American political ideologies apart. AFAICT, more than one of the questions is likely to provoke strong reactions both ways. I’d say Mike is overreacting in his comments.

The most obvious criticism of this quiz is that it tries to graph the range of politics onto only 2 axes, as if they were the only two that mattered, rather than the two libertarians want the most change in. For example, if socialists were to create such a test, they would use a different set of axes.

Mike forgets that the Nolan chart was originally created as a simple substitute for the common left‐right political axis. More than two axes would hardly serve the purpose. Besides, the test does seem to pick social‐democrats apart quite effectively.