The Ethics of Human Rights (65): The Deserving Poor and the Spectacle of Libertarianism Eating Itself

It’s a common right-wing complaint, especially among right-libertarians, that the welfare state helps the poor whether or not they have only themselves to blame for their poverty. If there should be a duty to help the poor, it should be limited to the deserving poor (although some libertarians think that even this goes too far since it implies a form of slavery for those who have a duty to help). All the others should suffer the consequences of their own bad decisions – their teen pregnancy, their lack of effort at school, their alcohol problem etc.

One could reply that people’s bad decisions aren’t always their own decisions, in the sense that making good decisions is something you have to learn, and this learning may be difficult in an environment of poverty, especially during childhood. However, let’s bracket this objection, for the sake of argument, and assume that there are indeed some people who only have themselves to blame. They may not be as numerous as those on the right tend to believe, but even if there are only a few we should decide what to do with them – help them or not.

The criticism that our current systems of social security don’t differentiate between the deserving and undeserving poor is sometimes illustrated with an analogy. If we assume that governments fund their welfare system through taxation, and that taxation is a kind of involuntary charity or enforced charity – the government steps in in order to take the money which we don’t give voluntarily to charity – then it’s only right that the government takes every effort to make sure that our money goes only to the deserving poor. If we voluntarily give money to charity, we also want to be sure that it goes to a good cause, and those collecting our money have a duty to spend it well and not waste in on people that aren’t going to use it constructively. Given the libertarian view that taxation is a form of stealing it’s all the more important that the tax money is spent well; you can perhaps argue in favor of stealing if the harm done by stealing is compensated by the greater good that is done with the stolen money, but you certainly can’t if there is no greater good and if the money goes to undeserving poor who are rewarded for their bad behavior.

Isn’t it especially outrageous to misuse charitable funds if the donors cannot legally discontinue their support? (source)

Now, it’s here that the problem begins and that libertarians who follow this reasoning tend to undermine their own libertarianism. If you want to help only the deserving poor, and if you want to be very strict about helping only those people, then you’ll have to accept systematic and wide ranging intrusions into people’s privacy. How else would you be able to distinguish the deserving from the undeserving? You’ll need detailed biographies of all potential welfare or charity beneficiaries, records of their decisions and behavior, of their job applications, their diet, their sexual mores, etc.

You’ll have to accept these intrusions whether or not you believe that charity is the perfect and only solution. If you believe, correctly I think, that charity will never suffice, then you have all the more reason to be worried, since it’s the state who will have to monitor deservingness. Either scenario is anathema to libertarians.

The distinction between deserving and undeserving poor isn’t only difficult in practice. It’s also theoretically fraught with problems. For example, if you assume that you have a system to find out which poor person is an alcoholic and which one isn’t, then you still have to answer the question whether an alcoholic is an undeserving poor person or not. This answer depends on the causes of her alcoholism: maybe the cause is a series of misfortunes combined with a weak character, in which case her alcoholism is obviously not deserved. Perhaps she deserves blame for her weak character was, or perhaps not. One can easily make the case that a strong character and a good amount of effort and discipline depend on our upbringing and the social circumstances in which we are born. And no one deserve those circumstances.

And finally, even if we can identify the deserving both in theory and in practice, and even if we accept the anti-libertarian consequences of this work of identification, then we can still argue against the claim that we should not help the undeserving poor. Perhaps it’s a sign of decency and civilization that we help even the undeserving poor. Maybe the claims of the undeserving aren’t as strong as the claims of the deserving, and maybe we shouldn’t help them as much or as quickly as the deserving. But that doesn’t mean we should let them starve.

More posts in this series are here.

The Problem With the Libertarian View on Human Rights, in a Nutshell

A few days ago, we were treated, once again, to a typical sexist rant by the awful Rush Limbaugh. This time, it seems that he’s provoked some kind of boycott. Some advertisers and listeners are turning their backs to the radio host, voting with their feet and their wallets. In a sense, this is a typical libertarian response:

[V]iolating Rush’s First Amendment rights would require state action. Rush has not been jailed for his views, nor has anyone even whispered a suggestion to that effect. There have been no calls for his radio transmitter to be jammed. No one is even demanding he be fined, which might be possible under the FCC‘s arcane and arbitrary decency laws. Instead, what his critics are doing is exercising one of their own fundamental American rights, their right as consumers to frequent the businesses they choose. (source)

I agree that this right of consumers and advertisers to shop where they want and pay for what they want is an important one, although probably not as important as libertarians have it. I have no beef with that. What worries me more and what brings out libertarians’ flawed understanding of human rights is the peculiar opinion on free speech that is evident from the quote above. It’s an opinion that libertarians apply to all human rights, namely that violations of human rights only and always  result from government actions. Actions by fellow citizens – such as boycotts of radio talk show hosts – can never, according to libertarianism, result in rights violations.

The problem with libertarians is that they take cases such as the one we’re discussing now – and which indeed do not involve violations of free speech – and then extrapolate this in order to argue that there are never any similar cases in which citizens’ actions do result in violations of free speech. In the case under review, Limbaugh’s freedom of speech is evidently secure: the government hasn’t intervened, fortunately, and the action of listeners and advertisers don’t make it harder or impossible for Limbaugh to express himself. No one’s freedom of speech presupposes other people’s duty to listen or a duty to support speech through advertising money. Limbaugh’s freedom of speech would be secure even if the boycott were large enough for him to lose his radio pulpit. People don’t need to be a talk show host in order to have freedom of speech.

However, in other cases, it is possible that non-governmental actions – actions by fellow citizens in other words – result in violations of one’s freedom of speech. Some examples: the heckler’s veto, the silencing of critics of Islam by way of threats of violence, the chilling effect of political correctness etc. The same is true for all other human rights: it’s not the government that engages in FGM, that flies planes into the WTC buildings, that attacks gay couples on the street etc.

The central libertarian teaching about human rights as expressed in the quote above (“violating Rush’s First Amendment rights would require state action”) is therefore an error of fact. The error is probably unavoidable given libertarianism’s focus on the evils of government. This is all the more regrettable given the fact that libertarianism is, in theory, a philosophical school that should be very friendly to human rights. (Robert Nozick, perhaps the most famous libertarian philosopher, starts his magnum opus with the words: “Individuals have rights, and there are things no person or group may do to them without violating their rights”).

My argument here may be lacking in nuance and may not do justice to one or other subtype of the admittedly very large and diverse family of libertarianisms. If so, please feel free to correct me in comments.

More on the related topic of dimensions of human rights is here. More on libertarianism.

What is Freedom? (3): The Paradox of Self-Ownership: The Right to Sell Yourself Into Slavery

Self-ownership, or the property of your own person, is a metaphor for the right to exclusive control of your own body and life. It captures some important intuitions: for example, that you should have a right to end your life as they see fit, that no one should be enslaved and that you generally have a right to decide what to do with your own life. As such it supports the idea of personal autonomy. For some, it also supports the right to abortion and it invalidates taxation.

Others even believe that self-ownership implies a right to sell your own body and life, just as you have a right to sell your other property. If that’s the case, then you have a right to sell yourself into slavery.

However, if self-ownership is understood as merely a metaphor for autonomy then there can’t be a right to sell yourself into slavery. Autonomy, or any other value for that matter, can’t be made to include the seeds of its own destruction. In other words, autonomy can’t include the right to autonomously abdicate your autonomy. Take this quote from Mill:

The ground for thus limiting his power of voluntarily disposing of his own lot is apparent, and is very clearly seen in this extreme case. … [B]y selling himself for a slave, he abdicates his liberty; he foregoes any future use of it beyond that single act. He, therefore, defeats in his own case, the very purpose which is the justification of allowing him to dispose of himself. (source)

If you insist that values or rights should be made to include their own negation, you’ll end up in Absurdistan. Democracies, for example, should then include the possibility to vote democracy away. Freedom should include the freedom to create totalitarian government. Tolerance should include tolerance of intolerance and of the forces intent on destroying tolerance. I don’t think we want to go there.

So, autonomy must include certain limits if it’s not to collapse under its own weight. This means that it’s legitimate to deny the moral value of – and perhaps even to forbid – autonomous actions that forfeit autonomy. Just like democracy is limited and suppresses anti-democratic movements and votes, and just like tolerance is limited and excludes tolerance of intolerance.

More on self-ownership here.

What is Freedom? (2): A Right to Self-Ownership?

Libertarians stress the importance of the right to self-ownership. I would argue that it’s an interesting and useful right in the context of human rights more generally, but also one that is a bit of a problem. When we say that people have a right to self-ownership we mean that they own themselves in just the same way that they can own objects. It follows that people have the same rights over themselves and their bodies as they have over objects:

  • they are free to use their bodies as they please
  • they can claim that others, including the government, refrain from using it
  • they can use the government to protect themselves against others trying to use it
  • and they can transfer property rights to others.

Self-ownership rights understood in this sense are the core of libertarian philosophy and are believed to justify standard libertarian policy recommendations such as the elimination or reduction of taxation, the freedom to sell organs, use drugs, engage in all forms of consensual sex etc. And indeed, self-ownership can be an attractive right to non-libertarians as well: it can be used to justify the prohibition of slavery and rape, to protect people’s rights to euthanasia and assisted suicide, to solve the forced transplant dilemma, to support the rejection of capital punishment on the basis of a theory of non-instrumentalization etc.

However, useful as the right to self-ownership can be, it’s not without drawbacks. The right can, and in the minds of most libertarians does imply a denial of the obligation to help others in need (apart from an obligation based on prior wrongdoing and assistance based on voluntary agreement). Such an obligation would be a form of slavery. It would mean the forced use of our bodies and labor power for the benefit of others. Libertarians often reject taxation for the same reason. All this seems needlessly selfish and contrary to moral intuition.

It also seems incoherent. Most if not all libertarians accept taxation for the funding of some collective goods such as highways and the police force. It’s not clear how they can accept a limitation of the right to self-ownership for the sake of some types of taxation but not others. Taxation is always the non-consensual use of persons for the benefit of others, whatever its purpose.

If you view the right to self-ownership as an absolute right – or axiomatic – you may wind up accepting some absurd conclusions: you’ll have to claim that it’s impermissible to gently push the arm of a driver holding his steering wheel and heading towards of group of school children, because that would mean using the body of the driver without his consent to aid others in need. Self-ownership therefore can’t be an absolute right, at least not in a non-solipsistic world. Minimally, it should be limited for the sake of the self-ownership rights of others: imprisoning murderers or slave holders means limiting their self-ownership rights for the sake of the same rights of their potential victims. And, on top of that, it’s probably also necessary to limit self-ownership rights for the sake of certain other values. The problem is that it’s difficult to think about a limited right to self-ownership: every limit to that right seems to destroy it completely. Either you own yourself or you don’t.

There are, I think, three ways to react to these problems with the right to self-ownership.

  • You can bite the bullet and maintain that the right to self-ownership is the fundamental right and should be absolute whatever the consequences.
  • Or you can hold on to the right but only as one value amidst others, and to be balanced against others.
  • Or you can abandon it, claiming that it only has a rhetorical value, and that it’s better to focus on the “derivative” rights – such a the right not to suffer slavery – and try to justify those derivative rights independently (e.g. an anti-slavery movement doesn’t need the concept of self-ownership in order to be effective).

As a good value pluralist, I prefer the second option. The rhetorical and unifying force of the right to self-ownership should not be underestimated. If we manage to prune its extreme libertarian outgrowths (such as selfishness and extreme marketization in the form of organ sales or the “right” to sell yourself into slavery), we’re left with a powerful concept that can be of great value in the struggle for individual liberty (which isn’t a libertarian monopoly by the way). But it can’t guarantee liberty by itself. It depends on and is only meaningful together with a theory of ownership of the rest of the world. Imagine that one other person owns the entirety of the world, minus yourself (i.e. you only have self-ownership). That means that when you want to eat you’re a thief, and when you want to move about you’re trespassing. That’s hardly freedom. Self-ownership without a theory about how the rest of the world is owned can be utterly meaningless.

So the question then turns to the way in which nonhuman things and beings should be owned and distributed. Who can own what? Libertarians would claim that self-ownership provides a basis for ownership in general, and they use Locke’s theory of property to argue for that claim (I own myself, therefore also my labor, therefore also the fruits of my labor – since hardly anything in the world today hasn’t been touched by human labor, almost everything can be said to be owned by someone).

However, I argued elsewhere that this is a difficult if not impossible move. Hence, ownership should be justified independently from self-ownership, and should probably include the notion of a “fair share”, whatever that means. Perhaps this notion can be based on another element in Locke’s theory, namely the “Lockean proviso” that we should leave enough and as good for others, or on some form of sufficientarianism (meaning that all should have enough resources for basic subsistence, for a decent life, for a life worth living etc.). Or it could be based on the persuasive claim that the earth is the common ownership of all, regardless of the labor some have put into it. But I’ve already discussed those issues here and here respectively.

The Fable of An Randy’s Libertism

Once upon a time, An Randy made her life. She wrote stories and became famous and wealthy. She attributed her success to her talent, effort and intelligence, and to the near total freedom she enjoyed in her beloved country of residence. Her freedom-loving philosophy permeates her writing, inspires her readers, and has become a social movement with a smallish yet enthusiastic following. Called “libertism”, the philosophy champions heroic individualism, productive and creative achievement, and near total liberty and self-centeredness as preconditions for this achievement. It requires a minimal government, minimal taxation, no redistribution and no welfare. Freedom from government is necessary for creative achievement, and redistribution implies theft of resources that are the product of solitary and well-deserved achievement.

Randy did not believe that her success or the success of similarly talented and disciplined creators is dependent on the receptiveness of an audience. The success of the talented depends merely on their talent, not on fashion, audience preferences, cooperation, marketing, being in the right place at the right time etc. Hence, because there’s no luck or cooperation involved in success, the fruits of this success are the product only of talent and effort. An individual therefore deserves his or her success, and should not be forced to share its fruits.

Libertism views success as an individual achievement rather than the product of a combination of individual achievement, talent, luck and social cooperation. In other words, there’s no real division of labor or joint production. The creators are Robinson Crusoes, producing everything by themselves. Libertism denounces the “socialist” vision in which everything is jointly created, in which every creator depends on a large web of support and in which no creator can do anything without a vast army of teachers, parents, food producers, road workers, bus drivers, doctors, police officers, book printers, librarians, internet providers, etc. Libertism believes the members of the creative class produce their work and achievements only by themselves and by their own efforts alone. Division of labor is necessary only for menial production.

The moral of An Randy’s story: were it not for the silly preferences of a part of the general audience, the feverish cooperation of a number of fanatic devotees and a suitable working environment, she would have had no success at all. Double irony: because she proved, unwittingly, that achievement is essentially a cooperative effort, she also showed that the fruits of achievement should be distributed across all participants; hence, that taxation, redistribution and reductions of income inequality are justified.

PS: no prizes for guessing whom this is really about…

The Compatibility of Freedom and Equality (12): How Coercion Promotes Freedom

Freedom understood as independence and the absence of interference or intentional coercion (especially government coercion) is an important concept. The problem is that it seems to invalidate redistribution through taxation. If the government taxes a wealthy person to transfer some of her wealth to another person living under a fixed threshold of basic resources, then the government intentionally coerces the wealthy person and takes away (part of) her freedom. That’s one of the origins of the traditional view that freedom and equality are incompatible. For people who believe strongly in freedom as the absence of intentional coercion, it’s very difficult if not impossible to accept taxation and redistribution.

On the other hand, there are those who want to maintain the use of government and taxation as a means to guarantee people an equal share of those basic resource necessary for a decent human life. And I’m one of them. How can we reply to those – let’s call them libertarians – who voice concerns about the loss of freedom that’s inherent in redistribution?

1. First, we could argue that freedom, as it is understood here, isn’t the only important value, and that we should put it “in the mix” of the whole of human values, including welfare and equality, and try to balance those values in a fair way. That’s the value pluralism approach, but it’s an approach that won’t be successful to those who don’t believe in value pluralism or who believe that if there are many values, freedom is still the most important one (e.g. many libertarians).

2. Another reply could be that redistribution reduces one type of freedom – freedom from intentional coercion – in order to promote another type of freedom, namely a more positive type of freedom in which not only the absence of coercion is important but also the availability of choices, capabilities and power. Of course, a wealthy person’s choices, capabilities and power aren’t enhanced by the fact that she pays taxes – on the contrary – but when these taxes are used to guarantee a poor person’s basic income for example (or education, or health etc.) then that poor person will have a wider array of choices, capabilities, opportunities, power etc. So positive freedom is redistributed by means of a limitation on negative freedom, and is redistributed in such a way that on average people have more equal access to it. (If a rich person pays $10,000 in taxes for the welfare benefits, healthcare, education etc. of a poor person, then the rich person loses less choices, opportunities and capabilities then those gained by the poor person. Of course, the exact tax rate is important: punitive tax rates may harm the rich more than they benefit the poor).

In a way, this second reply also involves an appeal to value pluralism: negative freedom (one value) is balanced against more equal access to positive freedom (another value), and is – sometimes and in part – outweighed by it.

3. A third reply isn’t based on value pluralism. We could argue that redistribution of income or wealth through government taxation merely limits one person’s negative freedom for the sake of another person’s negative freedom. It’s fairly easy, in fact, to argue that poverty, or the absence of those basic resources necessary for a decent human life, reduces the negative freedom of the poor. The poor are intentionally coerced all the time, for no other reason than their poverty: the homeless are forcibly removed from train stations, gypsies from land where they aren’t allowed to camp, poor migrant workers have their passports taken away by their employers and are forced to repay “travel costs” by working for free, etc.

If the government gave these people a basic income for example, or rent subsidies, they wouldn’t be coerced in these ways. The taxes that the government would collect for this purpose would not simply reduce negative freedom for the sake of another value (positive freedom, welfare, equality etc.). It would reduce the negative freedom of some for the sake of the negative freedom of others (possibly many others depending on the type of taxation system). In other words, it would modify and equalize the distribution of negative freedom. It would increase intentional coercion on some people in order to reduce intentional coercion on (many) others.

Taxation and redistribution do indeed reduce freedom (in one sense of the word) but at the same time they increase freedom (freedom in the same sense as well as in a more positive sense). Conversely, a failure to tax and redistribute could reduce freedom.

More posts in this series are here.

The Ethics of Human Rights (42): What’s the Best Approach to Distributive Justice?

What is distributive justice?

Distributive justice is a set of normative principles designed to guide the allocation of the benefits and burdens of economic activity. These benefits and burdens can be material goods and services, income, welfare or something else. Whatever they are, a theory of distributive justice will claim that they should be distributed or allocated to people according to some morally justified and morally just set of rules.

The assumption is that all government activity in some way affects the distribution of those benefits and burdens, whatever we do or believe, and that it’s important to guarantee that this distribution is done in a just way. So a theory of justice will propose rules for taking some benefits and burdens from people and giving them to others in a way that corresponds to ideals of justice.

Different types of distributive justice

Unfortunately, there isn’t one commonly accepted theory of justice. Different people have proposed different theories that describe different ideal methods of distributing different types of benefits and burdens. Some theories propose a more or less equal distribution of income; other theories focus on a more general understanding of benefits and talk about “welfare”. And some theories do not accept equal distributions and focus on desert. Etc. There are even some schools of thought that deny the justice of any sort of redistribution and argue that justice is about respecting property rights (libertarianism for instance). However, I’ll focus in this post on those who think that some kind of distributive justice is an important concern (which doesn’t imply that I believe that libertarianism is completely wrong about everything).

Let’s look at some of the more common theories and try to assess – superficially, I admit – what their respective merits are.

Strict egalitarianism

This theory of justice claims that all people should have the same level of material goods.

  • Advantages. This does seem to correspond to the basic moral rule that all people are owed equal respect.
  • Disadvantages. Different people have different needs, and so they need different and different amounts of goods. There’s also the problem of economic efficiency: strict equality removes incentives for economic productivity. Hence, it may result in overall wellbeing at a rather low level, making things worse for everyone. Conversely, everyone, even the worst off, can be made better off if goods/income/whatever are not distributed equally.

The Difference Principle

That last point was probably the origin of the so-called Difference Principle. This principle is part of John Rawls’ theory of justice. It does not demand strict equality as long as unequal distributions make the least advantaged in society better off than they would have been under strict equality. More precisely formulated: inequalities are to be to the greatest benefit of the least advantaged members of society. This principle is also called the maximin rule: an unequal distribution can be just when it maximizes the benefit to those who have the most minuscule allocation.

The justification of this principle is that higher incomes for more productive members of society provide those people with an incentive to be productive. And if they are productive, they produce more wealth, which can be used to benefit the least advantaged.

(Similar ideas can be found in sufficientarianism and prioritarianism).

  • Advantages. Contrary to egalitarianism, the focus is on the absolute wellbeing of the least advantaged, rather than their relative wellbeing, i.e. their (un)equal position. Hence, we avoid the egalitarian destruction of incentives and the resulting risk of leveling down.
  • Disadvantages. People’s relative positions are to some extent morally important. See this older post for a list of reasons why this is the case. Rawls does have a partial response to that concern because he argues that the inequalities permitted by the difference principle should be consistent with another rule of justice, namely the equality of rights and liberties. For example, high income inequality may make it impossible for people at the wrong end of this inequality to participate in democracy, to have their views represented and to get elected. Hence, Rawls argues for some corrections of inequality when inequality of resources negatively affects equal liberty. However, other disadvantages of inequality receive less attention. Another disadvantage of the Difference Principle is that it ignores desert.

Desert-based principles

It’s plausible to claim that a just distribution of goods should give people what they deserve, at least partially. We intuitively believe that at least some of the inequalities in life are deserved. People who work hard or contribute a lot to society deserve a higher level of wealth/income/welfare etc., even if such inequalities do not improve the position of the least advantaged. The hard working should not be forced to subsidize the lazy. They don’t deserve to be forced in this way, and the lazy don’t deserve to benefit in this way. (Many desert-based theories of justice are based on Locke’s theory of property).

Desert-based theories of justice claim that distributive systems are just insofar as they distribute benefits and burdens according to desert, at least partially. (This goes back to Aristotle).

  • Advantages. Desert is a strong moral intuition and it is therefore important to incorporate it in a theory of distributive justice. Theories that fail to do so will always seem unjust.
  • Disadvantages. We can make mistakes when deciding that some or other activity is deserving or meritorious. Distributions based on such mistakes will only be just by chance. But even when we don’t make these mistakes, it’s hard to measure and compare desert (is art more meritorious than science?). In addition, we can fail to identify real desert. Apparent desert may in fact be based on undeserved endowments. And that’s where luck egalitarianism comes in. (More problems with desert are described here).

Luck egalitarianism

Luck egalitarianism can be viewed as a desert-based type of justice. It proposes to redistribute the benefits and burdens that people don’t deserve and that result from bad luck, for example the bad luck of being born poor, in a poor country, without talents etc. Bad luck in the initial distribution of natural or social endowments should not affect one’s life prospects or distributions of income/wealth/etc. People don’t deserve those endowments and hence don’t deserve the distributions that result from it. These distributions therefore need to be corrected and equalized. After having equalized people’s starting positions in life, we have to let people free to decide what to do with their lives. Those decisions are their responsibility and hence they deserve the outcomes of their decisions. After corrections for endowments, people who work deserve the benefits of their work, and people who are lazy or careless deserve the results of their laziness or carelessness.

  • Advantages. Luck egalitarianism avoids the pitfalls of both crude desert-based justice and strict egalitarianism.
  • Disadvantages. There may be cases in which people who bring bad luck or suffering on themselves still have a claim to assistance. Also, luck egalitarianism produces some bad incentives and can be seen as demeaning (go here for more detail).

International distributive justice, or cosmopolitan justice

A small detail in the theory of luck egalitarianism has far-reaching consequences. Among other things, people don’t deserve the places in which they are born. And yet, those places can determine whether you are rich or poor, free or persecuted etc. To some extent, poverty and persecution are just bad luck, the bad luck of being born in the wrong country. Residency and citizenship are as morally arbitrary as race, gender, natural endowments etc. No theory of justice that takes the equality of human beings serious can ignore the unequal distributions caused by the place of birth, and has to correct these distributions. Arbitrary facts about places of birth, border, residency or citizenship – just like genetic defects, race, gender etc. – cannot be allowed to determine people’s lives. Limiting the principles of justice to citizens or residents is unacceptable.

That means that redistribution should be international and not just between citizens of a particular country. Of course, it’s plausible that people have more responsibilities to those closer to them: parents have more responsibilities towards their children than towards the rest of humanity; friends should help each other etc. Closeness is morally relevant because it means more power: the closer you are to someone, the easier it is to help. But equal dignity and equal respect for all human beings is also morally relevant, and closeness therefore doesn’t mean that people who are far away and who are unknown to you and unrelated to you can’t legitimately demand assistance.

Preference to people close to you – and those people can perhaps include fellow nationals rather than just family and friends – shouldn’t be the only or overriding concern. We want to avoid chauvinism, parochialism and egoism. The metaphor of the family can turn nationalism into something very nasty. And anyway, the salience of closeness has been substantially reduced by technology: nowadays, it’s easy to send money abroad for example.

Still, in some plausible conception of international justice there can be room for some form of differentiation of duties towards fellow citizens and foreigners. International or cosmopolitan justice is therefore possibly coherent with the Difference Principle: international inequalities are acceptable if they improve the position of those who are globally worst off (although Rawls himself did not believe this because he correctly pointed to the absence of global institutions, and institutions are crucial to his theory).

  • Advantages. International (or cosmopolitan) justice points to the ultimate consequences of liberal egalitarianism. If women, racial or religious minorities and people burdened with bad luck should be treated equally, why not foreigners? Borders are indeed just as arbitrary from a moral point of view as gender, race or talent and they can’t, therefore, determine distributions. International justice assumes all the consequences of the theory of human equality and makes the theory of justice more coherent compared to theories that focus on domestic distribution only.
  • Disadvantages. International justice can burden the citizens of wealthy countries with extreme and unbearable responsibilities. After all, we want a coherent system of justice that treats people equally regardless of their place of birth. So it’s not just that rich countries have to prevent starvation and genocide abroad. That seems to be difficult enough already, but international justice makes things even more difficult because it gives people abroad the same benefits and burdens as citizens. That can imply, for example, completely open borders or far-reaching redistribution leading to substantially reduced welfare levels in rich countries. Another problem is more practical: it’s not clear how international redistribution should take place. In the case of national distribution there is a state taking care of it. Not so on the global level.

Distributive justice across generations

The same reasons that argue against the moral salience of closeness in space argue against the moral salience of closeness in time. The fact that some people will be born after our death isn’t a good reason to impose burdens on them. Hence, our distributive principles should take into account the interests of future generations. It wouldn’t be just to design a system of distributive justice that takes care of the least advantaged among us, that removes the influence of bad luck suffered by the living, that preserves a place for desert, that is insensitive to borders, and that at the same harms the interests of future generations (for example because it fails to provide a good system for the management of natural resources). More here on transgenerational justice.

  • Advantages. Like international justice, transgenerational justice points to the ultimate consequences of liberal egalitarianism. If women, racial or religious minorities, people burdened with bad luck and foreigners should be treated equally, why not future generations? Time is indeed just as arbitrary from a moral point of view as borders, gender, race or talent and can’t, therefore, determine distributions.
  • Disadvantages. Again, like in the case of international justice, we run the risk of imposing enormous burdens on the present generations. Moreover, there’s the so-called repugnant conclusion: if we multiply the number of future people – which is potentially a very large number of people – then we run the risk of drowning the interests of present generations. A small benefit for a very large number of future people will then justify a very heavy burden on the limited number of people currently alive. However, this doesn’t mean that we should neglect the interests of future people.

Welfare-based principles

Theories of justice can also focus on welfare. According to welfare-based theories of distributive justice, the only value of goods, resources, desert-claims, equal freedom and even equality is their positive effect on welfare. Distributive principles should then be designed so that they enhance welfare. Welfare maximization is the only criterion to decide distributive rules.

Utilitarianism is the main welfare-based theory of justice. “Utility” can be understood as more or less identical to “welfare”. It can be defined as pleasure, preference satisfaction, happiness etc. According to utilitarianism, distributing benefits and burdens means distributing them in such a way that we maximize overall utility (i.e. overall preference satisfaction, happiness etc.). We have to choose the pattern of distribution that maximizes the sum of all satisfied preferences, of all instances of happiness etc. (unsatisfied preferences or unhappiness count as negatives, and some “higher” or more intense preferences may be weighted higher, depending on the type of utilitarianism we are talking about).

  • Advantages. Utilitarianism’s main advantage is its compatibility with freedom: it doesn’t prefer particular types of preferences, pleasure, happiness etc., and it therefore allows people to realize their own visions of the good life.
  • Disadvantages. What about evil preferences, such as hate and racism? If those kinds of preferences are widespread and the individual targets of those preferences are a minority, then the latter will suffer because overall wellbeing will be increased by allowing the realization of evil preferences. Also, it’s not because it’s rational for an individual to sacrifice some present preferences for a larger future gain, that it’s moral for a society to sacrifice individuals for the gain of the whole, as utilitarianism often requires. That is why some utilitarians have added rights or rules to their equations: preferences can only be satisfied when they don’t violate the rights of others.

Feminist approaches

Feminism has convincingly argued that the traditional theories of justice described above tend to ignore how distributive principles affect the fate of women, especially given the fact that women still have primary responsibility for child-rearing. Distributions within the family are usually not discussed in theories of justice. Therefore, these theories can be criticized as paternalistic or at least unwittingly supportive of paternalism. Many theories of justice include specific rules about the protection of the private sphere as an area that is off-limits for the government and hence for distributive efforts. So theories of justice have made themselves powerless to address gender inequality.

Conclusion: What’s the best approach to distributive justice?

So, after all this and if you’re still with me, what do we take away? Strict equality and simple utilitarianism seem the least appealing. And any coherent approach has to include rules that apply both nationally and globally, has to be gender sensitive and has to reserve some attention to desert. Intergenerational concerns are also hard to avoid if we want to maintain coherence, although perhaps we could limit the impact of the demands of future generations by claiming that actual suffering is more urgent than possible suffering.

This brings back the concern of the burden justice imposes on people. If we want to take the best of all the previously described approaches to distributive justice, we necessarily end up with a “thick” conception of justice, imposing a heavy burden. We have to take into account all people currently living, not just our fellow citizens, as well as people not yet born. And we have to give special attention to gender. But at the same time we don’t want to have a theory of justice that’s so burdensome that people will say: thank you but no thanks. It’s fine to have a coherent theory of justice but if this coherence leads to impossible demands on people or demands they are not (yet) willing to accept, then the practical use of that theory is nil.

One possible reaction to this concern about the burden of justice is the adoption of a prioritarian approach, and more specifically a global gender sensitive prioritarianism with a time preference: the worst off should get the most attention. For example, poor women currently living in a patriarchal society should be the first beneficiaries of redistribution. The disadvantage of this is that it will force us to abandon, temporarily, a lot of people we don’t want to abandon, for example welfare beneficiaries in rich countries. Or we could bite the bullet and say with Peter Singer that the burden is what it is and we should carry it. Morality may be more demanding than we had initially thought. Rather than adapting morality in order to diminish its burden, we just accept the burden.

More posts in this series are here.

Is Taxation Akin to Theft and Slavery?

The notion that taxation is theft and a violation of property rights is quite common, especially in libertarian circles. (A less extreme version of the argument claims that taxation may be a justified limitation of property rights but its level should be kept as low as possible because of concerns for economic incentives).

The classic justification of this rejection of taxation is a reduction ad absurdum: if a state can tax its citizens, how much can we reduce the group of people and still hold that this group can impose taxes on its members?

There are many variations of [this argument], but one begins, for instance, with the example of a man stealing a car, which most people would regard as unethical. It then proceeds to make slight changes to the story, with the identity of the thief gradually shifting from one man, to a gang of five men, to a gang of ten men who take a vote (allowing the victim to vote as well) on whether to steal the car before stealing it; … to one hundred men who take the car and give the victim back a bicycle; to two hundred men who not only give the victim back a bicycle but buy a poor person a bicycle as well. It ultimately challenges the reader to say how big a group needs to be, and what characteristics it needs to have, before the immorality of theft becomes the alleged morality of taxation. (source)

Taxation is not only rejected because it’s viewed as a form of official and legalized theft. It’s also viewed as a form of slavery. Robert Nozick, a famous libertarian, has argued that taxation of earnings from labor is on a par with forced labor.

Nozick starts from the reasonable assumption that people own themselves. Self-ownership also means that people own their talents and labor power. He then continues with the Lockean argument for private property: we produce goods by mixing our labor power and talents with elements of the material world, and by this mixing we generate ownership of those modified elements of the world. If the government taxes our income, it takes away – or steals – parts of what we own through our labor. But the government doesn’t just steal things from us. Because our labor and talents have been incorporated in the things we own – and we own them because of this incorporation – taking them from us means effectively that the government owns our talents and labor, and hence owns us. Taxation means that the government takes away our self-ownership. And that’s slavery. It also means that the government uses people as means rather than ends, violating Kant’s maxim.

If you’re convinced by this kind of reasoning and agree that taxation is slavery, forced labor and theft, then you’re morally allowed or even obliged to resist taxation and rebel against government. And you’re likely to be a libertarian.

However, you may also want to consider a few counter-arguments.

1. There’s first the issue of value pluralism. Private property and self-ownership are undoubtedly important, but not so important that they trump all other values. Hence, they can be limited to accommodate a balancing with other concerns.

2. The rejection of taxation becomes morally difficult when we consider the purpose of taxation, or better the – substantial – part of taxation which serves the welfare state and the realization of economic rights. Economic rights are primarily a duty of charity, as I’ve argued here. The state, with its welfare mechanisms, should only intervene when citizens don’t (sufficiently) help each other. And it needs taxes to do that. Taxes are the enforcement of the duty to charity. Which is why tax fraud, tax evasion and certainly the principled refusal to pay taxes are particularly reprehensible: the existence of taxes is already a stain on the reputation of mankind, because taxes exist as a consequence of the fact that people deny their responsibilities. Denying the duty to pay taxes is a double moral failure.

However, some libertarians go along with the first part of this argument and accept that people have a moral duty to help others (others who are starving for example). However, they deny that this creates a right. So, ideally, these libertarians would not commit the first prong of this double moral failure, in which case the second prong could not occur. And yet, in the non-ideal world, libertarians – and others – do commit the first moral failure, i.e. do not live up to their responsibilities to help others. Subsequently, libertarians and others who follow Nozick, are doomed to commit the second moral failure as well. What’s more, they can’t even call it a moral failure because according to them starving people don’t have a right to demand our help (the fact that we have a duty to help doesn’t necessarily give them a right to our help). Such a right would be incompatible with self-ownership. It would mean stealing our goods and our labor power and talents. It would mean using us as a means for their survival. In my view, the claim that the duty of generosity doesn’t create a right to generosity is a simple artifact invented to guarantee the supremacy of property rights.

3. Nozicks reasoning about self-ownership and property is shaky, as he himself admitted:

why isn’t mixing what I own with what I don’t own a way of losing what I own rather than a way of gaining what I don’t? If I own a can of tomato juice and spill it in the sea so its molecules… mingle evenly throughout the sea, do I thereby come to own the sea, or have I foolishly dissipated my tomato juice? (source)

4. Given the importance of talents in the libertarian argument, and the refusal to have people’s talents “harvested” for the sake of the minimal welfare of those without talents or otherwise unable to fend for themselves: is it not evident that there’s an injustice involved in the distribution of talents? Nobody decides freely to be born without talents, so the absence of talents is nobody’s fault. Should you be forced to suffer for something that is not your fault? In addition, is there not a small possibility that people are rewarded for the wrong talents and that some talents are not sufficiently rewarded? If all that’s the case, then the claim that the state can’t use the proceeds of your talents for the benefit of others becomes a lot weaker: if those proceeds could just as well have gone to other talents or the talents of others (in part at least), and if your talents are just a matter of luck, why should you have a right to keep those proceeds?

5. And finally, is it not somewhat gross to compare the fate of a taxpayer to the fate of a slave? A taxpayer retains many of the freedoms a slave can only dream of.

Discrimination (4): Private Discrimination, Freedom of Association and Property Rights

To what extent should anti-discrimination laws apply to private associations, to voluntary employment contracts and in private property? Let’s have a look at a number of recent news stories:

  • There was the controversy over Rand Paul’s opposition (shared by many other libertarians) to the application of the Civil Rights Act to private enterprises, which implies that a restaurant owner for example should be able to segregate his restaurant or even refuse black customers for example. (This view is based on the libertarian opposition to government regulation of the private sector).
  • Then there was the case of the Christian student’s union refusing gay members.
  • A teacher in a Christian school got herself fired because of premarital sex.
  • There’s the famous case of the Boy Scouts’ refusal to allow gay members (Boy Scouts of America v. Dale).
  • The D.C. police department recently decided to no longer intervene in an ongoing protest by Muslim women over their place in area mosques. These women have provoked confrontations in mosques by claiming the right to worship next to men, a right refused by conservative Muslim men. The police initially escorted the women out of the mosques, as requested by the men, but won’t do that anymore. The men claim that the mosques are private institutions, and private property rights should prevail. The women, they say, are trespassers.
  • And some time ago the British BNP, a racist political party, was forced to accept black members.

A similar but different case – because not based on prejudice or discrimination (except if you count PC as discriminating between views) – was the firing/quitting of journalist Helen Thomas following a politically incorrect and possibly antisemitic comment on Israel.

We can, of course, imagine an infinite number of similar cases:

  • Can a gym be held liable for dismissing a fat fitness trainer?
  • Should a business be able to offer a gays-only retirement home?
  • Can a landlord invoke religious objections to renting to an unmarried or gay couple?
  • Etc.

What all such real and imaginary cases have in common (even the Thomas case, which I’ll exclude from the current discussion because it’s slightly different and doesn’t – necessarily – involve discrimination) is that different values clash. Equality, equal treatment and the absence of discrimination on the one hand clashes with the freedom of association, the right to property and the freedom of contract on the other hand. (In the Thomas case, free speech clashes with freedom of employment contract).

If you’re a value pluralist – as I am – then these are hard cases. Property rights, freedom of association, freedom of contract (including in employment), equality and non-discrimination are all important values. It’s a right to hire or fire employees, accept or reject members of associations and serve or fail to serve customers on whatever basis you wish, even if this means discriminating certain employees, members or customers. But it’s also a right not to suffer discrimination. None of these values is by definition or a priori more important than the others. (If you think only freedom and property count, then you can wrap this up in a minute. Likewise if you think equality does count but is the automatic result of freedom. Don’t laugh, some actually think like that. Remember trickle down and the invisible hand).

All those rights are important, and when they clash, as in our examples, we’ll have to make a hard choice: which right in which case will receive priority? That will be, by definition, a case by case trade-off. You can’t use a general rule, since all these rights are – in the abstract – equally important. You can’t use a rule that says, for example, “property rights are equally important as equal treatment, except for bigots”. It’s not because you’re a bigot that you lose your property rights, your freedom of association or your freedom of contract. Those rights are human rights and intrinsically valuable.

So let’s assume that we will find many cases in which equal treatment is more important than property, contract or association rights. Pre-Civil-Rights-Act-America would be such a case. We will then engage in some justified anti-discrimination efforts that limit these other rights. And we will acknowledge that there is a limitation of rights going on. That there is a trade-off between rights and that the limitations of certain rights don’t mean that those rights are no longer important. It’s a necessary evil and an unfortunate consequence of clashing rights.

We’ll also find numerous cases in which property, contract or association rights will outweigh discrimination concerns. The example of the fitness teacher given above (who doesn’t have a right to employment in the business of his choice), or the gay retirement home (non-gay pensioners have ample opportunities elsewhere) would be cases like this. The same goes for the case of the guy protesting ladies’ night. Not all consequences of discrimination are equally harmful.

Consequently, anti-discrimination efforts can’t be an absolute concern and can’t become the only preoccupation. Otherwise, other rights would suffer needlessly. A balance has to be found. We have to decide how far our anti-discrimination measures can go without weighing too heavily on other rights, and how far bigots can be allowed to use their rights without harming the targets of their bigotry. (Or how far non-bigots can discriminate for non-bigoted reasons).

And when attempting to make this balance, we have to look at the specific circumstances and the relative harm that we can do on both sides. Small scale bigotry against a single individual who has numerous outside options – another employer, another restaurant, another organization etc. – won’t initiate anti-discrimination action, certainly not by the government. Jim Crow, on the other hand, inflicted enormous harm on large groups of people during many decades. And it would not have been abolished by a few activists, boycotts or sit-ins. Nor, for that matter, by the government ending its own discrimination. Active government action against private – and public – discrimination was required. And did happen in the Civil Rights Act of 1964 and later decisions which banned private actors from withholding services or denying employment on the basis of race (or of religion, sex, or national origin). Those anti-discrimination efforts did harm property and other rights but it’s clear that a failure to intervene would have meant perpetuating the greater harm of Jim Crow. I’ll come back to the topic of government vs private intervention against discrimination in a moment.

A parenthesis: some cases fall outside the current discussion. Government mandated discrimination in public places – trains, buses, public schools etc. – is completely and utterly unacceptable in all cases since the government can never be allowed to discriminate. Government discrimination also doesn’t cause a conflict of rights. The topic here is strictly private discrimination.

Take a look at this quote:

Wasn’t racial discrimination basically a private affair? Did we really have to enact federal laws and regulations to end it? Many of these laws dictate how people run their businesses and associations, and these restrictions are problematic to say the least. Even if we do find discrimination wrong, isn’t it a private wrong? (source)

In fairness to the author, he doesn’t seem to answer completely in the affirmative. And yet, why would you even ask those questions? Well, you should if you’re a libertarian and if liberty – including the liberty to do with your private property as you like and to freely engage in contracts and associations as you please without limitations – is the supreme value in life. However, if we accept the logic of this quote, then domestic violence and a whole bunch of other crimes are “private affairs” that shouldn’t be governed by “problematic” laws. And yet they are governed by laws, and hence we have laws “dictating how people run their associations”, and that’s a “problematic restriction”. We may think domestic violence or marital rape is wrong, but it’s a “private wrong” and hence none of our business. Domestic violence or marital rape take place within “private property” and can be seen, with a stretch of the imagination, as part of the freedom of contract (if a wife doesn’t want to be beaten or raped she should cancel the marriage contract, just like a pre-1964 African American who didn’t want to be discriminated by a restaurant owner should have gone elsewhere).

Of course, no one in his right mind would view domestic violence or marital rape like this, and no libertarian does. But the fact that libertarians – as well as many conservatives for that matter – never spill a drop of ink defending these crimes and yet fill libraries with defenses of private discrimination (and have even run a presidential campaign on the basis of this defense) just goes to show that equality and non-discrimination aren’t very important concerns for them, or at least not as important as violence and rape.

Do we really need government intervention to harmonize the two legitimate concerns? The concern for private freedom to discriminate within your property or associations, and the fight against discrimination? Some say that the fight against discrimination shouldn’t necessarily entail government coercion against private discrimination and should focus on private activism. That’s possible of course. Boycotts may help, just as minority organization, lobbying, education etc. (Another proof that free association is an important right. Minorities often depend on freedom of association and on strong property rights for their activism, and free commerce and freedom of contract tend to lower prejudice). There are also market mechanisms that counteract discrimination and fostering those mechanism might reduce discrimination without government coercion.

But that effort is certainly naive in many settings, especially when discrimination is widespread and group conformity counteracts market incentives (for example when customers are willing to pay a premium to visit segregated businesses, in which case the business owners will not be pressured by the profit motive to accept all customers; or when businesses are threatened into respect for segregation). Likewise when discrimination is government mandated. Hence the need, in many cases, for government coercion to break widespread patterns of discrimination that seriously reduce the options and opportunities of those who are discriminated against.

Why specifically state intervention? Racist business restaurant owners or bigoted employers or organizations can perhaps, sometimes, be persuaded to accept non-whites customers, employees or members through boycotts, social ostracism or the pressures of the market, but state intervention is often necessary in order to force them to do so. And they should be forced when the targets of their discrimination are seriously harmed by this discrimination, don’t have options elsewhere and can’t wait for the slow process of the market and of mentality changes. For example, a black person failing to get hired because of his or her race, after many attempts, suffers more harm than a black person failing to get served in a restaurant but having many more restaurant options close by.

It can be, in some settings, immoral to say that government shouldn’t intervene and that only social activists should struggle against racism and discrimination. In many cases, such as the southern parts of the US under Jim Crow, a struggle that isn’t backed by government often means risking life and limb. Discrimination in the US was underpinned by private terrorism (KKK) and actively supported or condoned by government law enforcement officers. Insisting that discrimination should be combated solely by private actors means exposing them to serious risks.

A final consideration: what if property is the direct result of discrimination? Can the descendants of slave owners really claim that their property rights should be a justification of their discriminatory actions? Or is their property illegitimate given the fact that it wouldn’t have existed without slavery? That would be an additional reason to favor equal treatment over property rights, when these two values clash.

Religion and Human Rights (29): When Freedom of Association and Anti-Discrimination Clash

In a recent court case in the US, a Christian student group objected to a university decision to withdraw recognition of the group. This withdrawal was justified by the university on the basis of the group’s discrimination of gays. Gays can only join the group when they “repent”. This policy by the group was deemed discriminatory by the university and in violation of its anti-discrimination policy. Withdrawal of recognition means that the group loses some subsidies and access to university resources, not that it has to cease to exist.

The group claimed that the university decision violated it’s freedom of association and freedom of religion. It also claimed that the university’s non-discrimination policy backfired and in fact created a new instance of discrimination, namely discrimination based on religion (because the group felt singled out; a Hispanic group excluding non-Hispanics did not suffer the same fate). The university contested this reasoning, claiming that the group was free to organize its activities elsewhere.

In my opinion, the Christian group is clearly bigoted and deserves condemnation for that, but groups should be free to decide who can and cannot become a member. And so there’s nothing wrong, in principle, with Christian groups banning gays. Forcing a group to accept members who violate the group’s fundamental rules and principles would empty freedom of association of any content because it would lead to the dissipation of the group’s identity. There is no group without identity, and hence no freedom of association without identity. And identity by definition means exclusion. Communist groups that are forced to accept capitalist members, or neo-Nazi groups that are forced to accept Jews, cease to exist as coherent groups. In case of religious groups, this would also violate the groups’ freedom of religion.

Also, the claim by gays that they are discriminated is weakened by the fact that they have numerous alternatives. It’s not like their non-membership of the Christian group produces a lot of harm to them, in terms of diminished choices, missed opportunities, lost resources etc.

An aside: I always fail to understand why people would want to join groups where they are manifestly unwelcome, except perhaps to cause a stir. Of course, this is no argument in favor or against any of the previous claims, except perhaps a pragmatic argument against the university’s position: if indeed gays will not join the anti-gay Christian group because they don’t have an incentive to associate with people who are hostile, then there’s no reason for the university to move against the group, since no discrimination will occur.

How is this different from what libertarians often claim about private discrimination? (Rand Paul for example recently claimed that the Civil Rights Act should not make “private segregation” illegal and should not force white restaurant owners to accept black customers). The difference is that segregation and Jim Crow were so widespread that blacks had considerably fewer options and suffered considerable disadvantage. The same isn’t true of gays on campus: there are enough associations that accept them. Hence, the discrimination that is imposed by the Christian group is real but not consequential enough to warrant a limitation of its freedom of association or religion.

Another argument in favor of the Christian group: non-discrimination policies have the laudable goal of promoting diversity and allowing every member of society to have the same options and choices. But how do you promote diversity if you don’t allow groups to have a coherent identity? And how do you promote options when you make it impossible for Christians to join a “truly” Christian group?

All this doesn’t mean that there will never be cases in which actions against groups are justified. In some instances, the demands of non-discrimination will outweigh the rights to freedom of association and religion. See here and here for more information on the need to balance different rights against each other.

Discrimination (3): Libertarianism and Private Discrimination

Prominent libertarian politician Rand Paul recently caused a stir by claiming that he didn’t support parts of the Civil Rights Act of 1964, specifically the parts applying non-discrimination legislation to private businesses. Like most libertarians, he believes that if private restaurant owners, for example, want to prevent blacks from eating there, then that’s their right. Similarly, banks should be allowed not to lend to blacks, real-estate agents not to sell to blacks, private homeowner groups should be able to band together and keep out blacks etc. Same when the targets are Jews, gays, immigrants and so on.

The standard libertarian position is that only government enforced or government protected discrimination is wrong. Private actors should be allowed to discriminate. A private restaurant owner for instance should be allowed to refuse to serve blacks. However, government rules forcing restaurant owners not to serve blacks are not allowed, even though for the blacks in question the results are much the same.

It’s not that most libertarians think this kind of discrimination is acceptable and would engage in it themselves. They reject legislation against private discrimination because they consider the right to private property and the sovereignty of property owners much more important than the fight against private discrimination. They also argue that market mechanisms, which they also like a whole lot, will – over time – weed out such discrimination. A restaurant owner who refuses to serve blacks will do a lot worse than his competitors who are more open minded. He will lose benefits of scale, will have to raise his prices and ultimately also lose the bigoted white customers who detest eating in the presence of blacks but detest even more paying unreasonable prices.

Here’s a good statement of the libertarian position by a self-confessed libertarian:

(1) Private discrimination should, in general, be legal (this includes affirmative action preferences, btw). Many libertarians would make exceptions for cases of monopoly power, and most would ban private discrimination when the government itself ensured the monopoly by law, as with common carriers like trains; (2) The government may not discriminate. If necessary, the federal government should step in to prevent state and local governments from discriminating; (3) The government may not force private parties to discriminate, and the federal government should, if necessary, step in to prevent state and local governments from forcing private parties to discriminate; (4) The government must protect members of minority groups and those who seek to associate with them from private violence. If the state and local government won’t do so, the federal government should step in. (source)

Note the mention of violence in this quote: private violence against blacks isn’t allowed, private discrimination is. Why the difference? Again, property rights. Laws against violence don’t usually violate anyone’s property rights.

Now, what’s the problem with this libertarian position? Property rights are obviously very important. You don’t need to be a libertarian to believe that. I argued strongly in favor of property rights here. Likewise, the free market does an enormous amount of good. The problem with the libertarian view is absolutism and a rejection of value pluralism. There are many values in life, and many different strategies to realize them. And sometimes, some values or strategies come into conflict with each other. When that happens – as is the case here – you have to be willing to balance them and see which one should take precedence. Privacy and free speech, for example, are both important, but what do you do when a journalist exposes the private life of a public figure? You balance the right and wrong: which value is better served by publishing? Free speech or privacy? In some cases, we may believe that free speech is more important than the right to privacy (for example when the politician’s private life has relevance for his functioning). In other cases privacy will trump speech (for example when the facts published have no political meaning). Such decisions can only be taken case by case because the specifics always differ. Doctrinaire and absolutists positions in favor of one value or the other won’t do. And unfortunately many libertarians, and certainly Rand in this case, seem to think that their preferred values – property, freedom and the market – should always have priority over all other values.

Is legislation such as the Civil Rights Act an infringement of property rights and the freedom to do with your property as you want? Of course it is. Are such infringements always wrong? Of course they aren’t. Sometimes they are a necessary evil to gain a greater good.

There a resemblance between the libertarian views on private discrimination and the more widely accepted view in the U.S. that free speech rights and the First Amendment can only be invoked against the government, as if private actors can’t violate people’s right to free speech. The dominant U.S. free speech doctrine reflects an antiquated view of human rights as exclusively vertical. Of course, the government probably does most of the violations, particularly of a right such as free speech, but probably not in the case of the right not to be discriminated against. That’s more of a private monopoly, and markets, protest marches, boycotts, activism etc. won’t solve that problem by themselves. Just look at the market: it didn’t solve segregation, and neither would it have had it been more free. In fact, it’s likely that bigoted white customers who detest eating in the presence of blacks, will not find themselves in white only and hence more expensive restaurants, but will band together and boycott non-segregated restaurants which then lose far more business among whites than they gain from allowing blacks. Such boycotts are absolutely in line with property rights and the free market, which shows that the market can make discrimination worse instead of destroying it. (For a more sympathetic view of the power of the market, go here).

Strangely, Rand Paul himself invoked the parallel between private discrimination and free speech, but twists it to serve his goals:

INTERVIEWER: But under your philosophy, it would be okay for Dr. King not to be served at the counter at Woolworths?

PAUL: I would not go to that Woolworths, and I would stand up in my community and say that it is abhorrent, um, but, the hard part—and this is the hard part about believing in freedom—is, if you believe in the First Amendment, for example—you have too, for example, most good defenders of the First Amendment will believe in abhorrent groups standing up and saying awful things… It’s the same way with other behaviors. In a free society, we will tolerate boorish people, who have abhorrent behavior. (source)

So we have to tolerate discrimination that actually harms real people, just like we tolerate awful speech that most likely doesn’t hurt a fly? Words don’t equal behavior, although sometimes there may be a thin line between them (which is why hate speech laws can sometimes be justified).

The Compatibility of Freedom and Equality (10): Limited Freedom and the Temptation of the Future

It’s hardly controversial to claim that some limits on freedom are necessary in order to protect the freedom of others. Few people consistently argue in favor of an unlimited ability to do as one likes. More controversial is the internalization of this principle, in which it is possible and acceptable that a person’s current freedom is restricted in order to protect that same person’s future freedom.

I think this is only generally accepted when limited to children. A child loses some of its freedom when it is forced to attend school, do homework, learn good manners etc. because this will greatly improve his or her future opportunities and choices. A restriction of current freedom serves to expand future freedom. A child that isn’t forced in this way will find that he or she has fewer choices when grown up, and therefore less freedom.

But is this “less is more” philosophy of freedom, or the principle that one needs to be forced to be free (in the infamous words of Jean-Jacques Rousseau), also applicable to adults? Well, it does happen, whether it’s morally legitimate or not. Smoking bans, drug bans, helmet rules etc. are examples. Communism is also an example, although obviously a more extreme one. Citizens of communist states were often “encouraged” to suffer now for a better future and for the “reign of freedom”. There’s also a long tradition of anti-hedonism. A life focused on pleasure, desire and the avoidance of effort is frowned upon because of the damage it can do to the future self. Perhaps less today than in previous ages, but still… In all these examples, people take away other people’s freedom in the name of freedom. Limits on freedom are deemed necessary for the future enlargement of freedom. External discipline and control is put in place of lacking self-discipline and self-control, or external knowledge in place of lacking internal knowledge. If the objects of their coercion complain about it now, then perhaps later in life will they understand and appreciate the reasons why they were forced to do certain things.

This temptation of the future, as we can call it, is in fact an effort to equalize freedom: those who live a hedonistic life or who don’t understand their own long term interests run the risk of diminished freedom in the future. Other people will be tempted by a possible future freedom to try to restrict these people’s current freedom. Doing so, they believe, will give them access to equal freedom compared to those who do understand the demands of future freedom.

The problem here isn’t that the premise is stupid, but that the consequences of this premise can be harmful. Most people would readily agree that only a fully developed individual who doesn’t constantly yield to temptation and who invests effort in his or her life can have a wide spectrum of choice and hence freedom. Someone who forgoes effort is likely to become an uneducated bigot who has the freedom to choose between being a coach potato one minute and a nitwit the next.

But what gives other people the right to force this nitwit to make an effort and try to access a more interesting notion of freedom in the future? Even assuming that the use of force is effective in some objective and verifiable sense (that may be true of compulsory education for children, but not for other types of force directed at adults), are you morally allowed make people free by treating them as infants or idiots dependent on coercion and education? And, if so, is this freedom worth the disrespect that it entails? It’s clear that we’re rapidly turning the corner to some kind of fanatical altruism in which freedom is no longer the ability to do as you want but rather the ability to do as you should want.

Does this mean we shouldn’t ever force people for the sake of their future freedom? I don’t think so. There is room for some types of legal measures that protect obviously self-destructive people against themselves. Prohibition of hard drugs and of the free purchase and use of certain pharmaceuticals, as well as some measures regarding road safety are some examples of limitations that receive widespread approval, accept among hardcore libertarians. (Although most of them also go to the doctor when they are sick and obediently do as the doctor orders. They may say that this is their own free decision and therefore not comparable to legal prohibitions of strictly self-regarding behavior, but is this really their free choice? How many sick libertarians choose not to do what the doctor says?). We just have to be careful that we don’t go beyond a certain minimum (which I agree is difficult to determine) and don’t quietly slip into paternalism and the rule of the technocrats who think they know better how people should lead their lives.

Restrictions of freedom that aim to modify strictly self-regarding behavior must remain the exception for at least three reasons:

  1. It’s very difficult to prove that somebody does not understand his interest in the right way and that there is somebody else who has a better understanding of this interest.
  2. Even if 1 isn’t a problem, how are we going to select these “wiser” persons?
  3. And even if neither 1 nor 2 is a problem, how are we certain that our current restrictions have a positive net impact on future freedom? The future is, after all, hard to predict and past predictions that have been shown to be correct will not necessarily remain correct in the future.

Most of the time, people know very well what is or is not in their interest and how to maximize their future options and freedom by themselves. Democracy would be impossible or undesirable otherwise. Only if people know their own interests can they be given the power to decide for themselves and the power to control whether laws or policies are in their interest. Otherwise, guardianship or a paternalistic form of government would be more appropriate.

No matter how important it is to care and show compassion, we should not allow ourselves to get carried away by it. In general, we should allow people to decide for themselves, to determine their own way of life and their own interests, even if we believe that these people have chosen a wrong, inferior or offensive way of life and harm themselves as a consequence of the way in which they understand their interests (if they harm other people as well, then it is easier to intervene). Of course, we can advise people and try to convince them, but we should be very careful if we want to impose a way of life on people through the use of (legal) force, no matter how reasonable and beneficial this way of life seems to us. What is best for me is not necessarily best for everybody. Most people value the freedom to decide for themselves. The value of this freedom may even outweigh the value or price of any possible outcomes of their decisions.

Human beings owe to each other help to distinguish the better from the worse, and encouragement to choose the former and avoid the latter. They should be forever stimulating each other to increased exercise of their higher faculties and increased direction of their feelings and aims toward wise instead of foolish, elevating instead of degrading, objects and contemplations. But neither one person, nor any number of persons, is warranted in saying to another human creature of ripe years that he shall not do with his life for his own benefit what he chooses to do with it. He is the person most interested in his own well-being. John Stuart Mill

The Causes of Human Rights Violations (17): Private Interests and the General Interest

What kind of state do we desire? What kind of education for our children and for the children of the future? What kind of health care, not just for ourselves but for all citizens? How will we leave the environment for future generations? These questions and many others concern us all, no matter which private interests we have and which interest groups we belong to.

Unfortunately, it looks like the first objective of politics today is not to serve the general interest but to serve a variety of private interests expressed by pressure groups whose support the government must buy by way of special benefits, simply because it cannot retain its supporters when it refuses to give them something it has the power to give, in the words of Friedrich A. Hayek.

But not only governments and legislators are forced into this. Groups in society quickly understand that the best they can do is to play the game and try to win as many benefits as possible, otherwise they end up paying for the benefits of the rest of the population. We find ourselves in a vicious circle in which

  • politicians are forced to grant interest groups special benefits, simply because they can and because they would lose voters if they refused
  • interest groups are forced to ask for special benefits if they don’t want to end up as the only suckers paying for the benefits of others
  • different interest groups are out-asking each other because otherwise they end up paying more than they get
  • politicians are forced to give more because people ask more, but also have to tax more because the money has to come from somewhere
  • interest groups are forced to ask more to compensate for the heavier taxes
  • etc.

Of course, this is a libertarian dystopia which fortunately doesn’t quite work out the same way in reality. But it serves the purpose of highlighting the risks of interest group politics.

Given these risks, it’s unfortunate that politics in most democratic countries is so much focused on private interests. The majorities that do exist are not inspired by a general interest or by a common will to achieve something that will benefit society as a whole. They are no more than collections of different pressure groups which have all been promised benefits in exchange for their votes. These pressure groups can be certain states or provinces, whose representative will only vote for a proposal when he or she gets something in return which benefits the locals. Or they can be a certain profession, a religious group or whatever.

As a result, people do not see themselves as a community that can identify with the state and with politics. They only identify themselves with a particular interest group (or with several different interest groups, depending on the types of private interests that they want to see protected), and they see politics as an instrument to fulfill their interests or as a warehouse of advantages ready to be looted by whoever comes first.

This makes effective common actions and actions that serve the general interest very difficult if not impossible. Any vote on something that is of general interest – e.g. healthcare reform – can only pass if a series of private interests are satisfied at the same time. And again we have a vicious circle here. If the state cannot prove itself as a vehicle for common action and for the general interest, then people will not be encouraged to fall back on their private interests. Only successful common action can enable people to transcend fragmentation, to escape decomposition, to identify with the political community and to think of the state as something else than a loot. On the other hand, if the meaning of this political community is diluted, then it is very difficult to mobilize people for a common action, in the words of Charles Taylor.

This focus on private interests and sub-communities is completely different from the way in which the Ancient Greeks for example reflected on politics. In the Greek city states, the inhabitants of border regions were not allowed to participate in a vote concerning a declaration of war with neighboring countries. It was assumed that these inhabitants were unable to vote in accordance with the general interest. Their immediate private interest would inhibit a reasonable reflection on the general interest. In this case, some legitimate private interest where neglected. But today we seem to have gone from one extreme to the other.

Of course, there ‘s nothing wrong with self-interest as such. A conception of the general interest that is established without the cooperation of everybody or that is incompatible with the interests of a majority is likely to cause resistance. And also the interests of the minority are important. The basic interests of the minority are expressed in human rights which can’t be overridden by a democratic majority. We have to start from self-interest, but we do not have to end there. A general interest is always a reformulation of self-interest. And it’s this reformulation through political debate that is often missing, and politics tends to be  a mere sum of or a compromise between private interests.

However, the other extreme is also a risk. Exaggerating the importance of the general interest can be very dangerous as well. Those who have witnessed nazism or communism—or both—can testify to this. The general interest — whatever it is — can justify oppression because it can require the sacrifice of “small” private interests which hinder the development of the community, of the race etc.

The Compatibility of Freedom and Equality (8): Liberty = Freedom From the State + Freedom From Social Pressure + Equality of Opportunity

Libertarians traditionally adopt a negative kind of freedom, and, more precisely, limited negative freedom: they believe that individuals should be free from interference by the government. They seldom accept that individuals can be coerced by private and social constructs, such as tradition, the family, gender roles, cultural racism etc. Here’s a rather long but exceptionally well-written quote that makes this point:

I am disturbed by an inverse form of state worship I encounter among my fellow [libertarian] skeptics of government power. This is the belief that the only liberty worth caring about is liberty reclaimed from the state; that social pathologies such as patriarchy and nationalism are not the proper concerns of the individualist; that the fight for freedom stops where the reach of government ends. … [L]ibertarians for whom individualism is important cannot avoid discussions of culture, conformism, and social structure. Not every threat to liberty is backed by a government gun. … [W]hen a libertarian claims that his philosophy has no cultural content — has nothing to say, for instance, about society’s acceptance of gays and lesbians — he is engaging in a kind of cultural politics that welcomes the paternalism of the mob while balking at that of the state. …

To take a very basic example, at mid-century 5.5 percent of Americans entering medical school happened to have female bodies. This number may well have reflected women’s limited interest in pursuing medicine as a career. But that level of interest also reflected a particular view of women in positions of authority, a certain range of social spaces that girls could imagine themselves inhabiting. Norms that positioned women as wives and mothers obviously functioned as constraints on identity formation. None of this has much to do with limited government, but it has everything to do with individuals struggling to assert themselves against a collective. …

Libertarians will agree that laws requiring racial segregation and prohibiting victimless, though controversial, sexual practices are contrary to their creed. But if the constraints on freedom of association suddenly become social rather than bureaucratic [or legal] — if the neighborhood decides it does not want black residents, or the extended family decides it cannot tolerate gay sons — we do not experience a net expansion of freedom. Kerry Howley (source)

In other words, libertarians are stuck in the first part of the following equation:

Liberty = Freedom From the State + Freedom From Social Pressure + Equality of Opportunity

But there is also a tendency to go no further than the second part. Many accept that society can restrict the freedom of individuals, but don’t grant the same powers to inequality of opportunity. As I stated in two previous posts (here and here), it makes sense to view freedom more positively as the possession of resources and capabilities that are necessary to make a really free choice between alternatives and opportunities. The freedom of those without certain resources and capabilities (such as education, health and a basic income) is futile because they can’t exercise their freedom, not because they are actively interfered with by the state or by their social environment, but because they can’t choose between opportunities. Someone who’s left alone by her government, and who isn’t pressured by her family, tradition or society, may still lack freedom because she doesn’t have a basic income or education necessary to make choices and realize these choices. Amartya Sen has pioneered this view. Hence the importance of helping people to develop their capabilities, e.g. anti-poverty programs, investments in education and healthcare etc. Of course, it’s precisely such programs that often horrify libertarians…

All this is of course a gross simplification, but if you wanted to explain human political ideology to Martians, that’s probably how you could start:

  • Libertarians focus on freedom against the state; freedom against social pressure isn’t very interesting or at least not a priority; equalizing opportunities, resources and capabilities is harmful because it empowers the state and violates property rights.
  • Conservatives agree with libertarians on the first and last part of the equation, but preserve the right to use social pressure to impose their – often Christian – ideology (e.g. same-sex marriage), sometimes even with the help of the state (in which case the freedom from the state isn’t important anymore).
  • Liberals think all three parts of the equation are important but sometimes struggle to find the right balance. So-called “big spending liberals” may accept a large state apparatus.
  • Socialists focus on the last two parts, often at the expense of the first. State intervention is believed to be highly beneficial, without substantial risks to individual freedom.

The Compatibility of Freedom and Equality (7): Negative and Positive Freedom

It think it’s fair to say that both the libertarian and egalitarian conceptions of freedom are wrong. Libertarians traditionally adopt a negative kind of freedom. More precisely, they believe that individuals should be free from interference, especially interference by the government, and with their property. They don’t accept that it makes sense to view freedom more positively as the possession of resources and capabilities that are necessary to make a really free choice between alternatives and opportunities. The freedom of those without certain resources and capabilities (such as education, health and a basic income) is futile because they can’t exercise their freedom, not because they are actively interfered with but because they can’t choose between opportunities.

Such a positive freedom is preferred by egalitarians (also called social-democrats, progressives, or even liberals). These, however, often make the mistake of denying the importance of negative freedom. In their effort to equalize freedom they often show disdain for non-interference and property rights.

There is a relatively easy way to bring these two points of view a bit closer together. The main worry of libertarians is that egalitarians will use the power of the state to redistribute property. (Remember the uproar over the claim by Obama that he wants to “spread the wealth around”). As I stated here, there are good reasons to encourage voluntary redistribution by citizens, without enforcement by the state (enforcement should only be necessary when citizens fail to engage in charity). If the resources and capabilities necessary for an equal positive freedom are redistributed voluntarily by citizens, then there is no interference and negative freedom and property rights are safeguarded.

This may sound naive, but I don’t think it is. There’s already an enormous amount of private charity and remittances are also a very important source of financial aid.

The Ethics of Human Rights (13): Justice and Merit According to Aristotle and Rawls

No one deserves his greater natural capacity nor merits a more favorable starting place in society. … The natural distribution of talents is neither just nor unjust; nor is it unjust that men are born into society at some particular position. These are simply natural facts. What is just and unjust is the way that institutions deal with these facts. John Rawls

The natural and social lottery – the good or bad fortune of being born in a wealthy or poor country or social class, with or without certain talents and biological/genetic assets or liabilities – has nothing to do with justice. Justice is what people and society decide to do about these inequalities of fortune.

Obviously, Rawls and many others – including myself – believe that doing nothing about them and simply leaving them as they are, is unjust. And we believe that the reason for doing something is merit or desert. None of us deserves or merits the genes we have, the fact that we are born in a certain place or group, and the opportunities that we receive from these facts and our genes.

Merit is central to the concept of justice, at least since the time of Aristotle. I think Aristotle gave the example of a teacher and his or her pupils. Would it be just for the teacher to give all pupils an equal score, regardless of the merits of each? He says no, because justice isn’t simply about equality. Justice is giving each what he or she deserves. The best pupil would have a sense of injustice if he or she would receive the same grades as all the rest, while the worst student would not necessarily have a sense of justice.

So justice means, in part at least, that people should get what they deserve (hence the derivative use of the word “justice” in the sphere of the judiciary). Matters over which people have no control, such as the place or environment where they are born or the genes that they carry, determine their quality of life, their prospects in life, their opportunities and capabilities and their stock of resources (material and other). It follows that the distribution of prospects and capabilities is to a large extent beyond the control of individuals (not completely because we can do a lot to develop and change these prospects and capabilities), and therefore also beyond merit or desert. As Rawls puts it, we don’t deserve our starting place in society.

If merit is to play a part in the determination of whether a situation is just or unjust, we have to correct for the unequal and undeserved distribution of talents, genes and prospects linked to the places where we are born and the families in which we are born. Justice therefore requires that we help the less fortunate, those who are unfortunate to have been born in the wrong country or class, with the wrong genes or in the wrong family. Contrary to what libertarians want us to believe, justice is not merely a matter of avoiding to harm people and to make them worse off. It is also about helping them to be better off. And more specifically, helping them to be better off than they are as a result of the lottery of nature and birth.

Those who win from this lottery are under moral pressure to give to others who, through no fault of their own, have fared less well. It is in this context that economic human rights for instance have to be understood. These rights impose on the rich the duty to part with some of their riches and hand them over to the poor.

Why Do We Need Human Rights? (8): The Harm Principle and the Freedom to Damn Yourself

The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right… The only part of the conduct of anyone, 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. John Stuart Mill

This is the so-called “harm principle“, for which Mill has become famous. In other words, people have the right to “damn themselves”, as long as they don’t hurt others in the process. If being an alcoholic or drug addict is part of a person’s vision of the good life, and if it doesn’t make him beat his wife or children, steal from others etc., then no government should intervene.

Obviously, this is limited to people who act rationally and are sane. Who, in other words, know the consequences of their actions, and then primarily the consequences for themselves. In some cases it must be possible to ignore someone’s desires for the sake of his or her own well-being. Some people have to be coerced for their own good because they fail to understand and to pursue their good or their interest autonomously. I’m thinking of children for example. No one would sincerely believe that we would hurt their freedom if we allowed them to engage in unsafe sex or to abandon their studies. They cannot assess the consequences of their actions and the harm they inflict on themselves.

In general, however, we should allow people to decide for themselves, to determine their own way of life and their own interests, as long as their choices don’t impact other people. We should do so even if we believe that the people in question have chosen a wrong, inferior or offensive way of life and harm themselves as a consequence of the way in which they understand their interests.

We can, of course, advise people and try to convince them, but we should be very careful if we want to impose a way of life on people, no matter how reasonable and beneficial this way of life seems to us. What is best for me is not necessarily best for everybody. Most people value the possibility to decide for themselves. It is much more dangerous to enact laws that only deal with people’s own lives than it is to enact laws that deal with social relations.

Even if the state can encourage or force people to pursue the most valuable ways of life, it cannot get people to pursue them for the right reasons. Someone who changes their lifestyle in order to avoid state punishment, or to gain state subsidies, is not guided by an understanding of the genuine value of the new activity. … We can coerce someone into going to church but we will not make her life better that way. It will not work, even if the coerced person is mistaken in her belief that praying to God is a waste of time, because a valuable life has to be led from the inside. A perfectionist policy is self-defeating. It may succeed in getting people to pursue valuable activities, but is does so under conditions in which the activities cease to have value for the individuals involved. If I do not see the point of an activity, then I will gain nothing from it. Hence paternalism creates the very sort of pointless activity that it was designed to prevent. We have to lead our life from the inside, in accordance with our beliefs about what gives value to life. Will Kymlicka

That is why we can only propose the “good way of life” (if we have an idea of what it is) and argue for it (and we need democracy and human rights to do that). Except in very exceptional cases, we should not impose this way of life and we should accept other ways of life, not because these ways of life are better, but because they are other people’s autonomous choices. The good way of life should be led from the inside. It should be a choice, a conviction, not something that is imposed from the outside. If your life is not your choice, it can never be good.