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How Hayes is wrong about Libertarianism


(A reply to “Libertarianism, Egalitarianism and The Open Society: Why Hacohen and Lester are both wrong about the Open Society” by Calvin Hayes[1])  

I here reply to Calvin Hayes’s welcome exposition and criticisms of Escape from Leviathan. But I shall deal only with those aspects that I wish to dispute or where clarification seems useful.

It is true that Escape from Leviathan “is divided into four parts: Rationality, Liberty, Welfare and Anarchy.” But I am not quite sure what Hayes means by adding, “based on what he terms ‘preference utility’.” To be clear, I use a preference-utilitarian conception of welfare: we are better off to the extent that our wants are satisfied. Preference utility is not the basis of rationality, liberty or anarchy (though it is related to these in various ways). For the benefit of some essentialists who insist that want-satisfaction cannot be a type of welfare even if we want our welfare to be judged that way, I should say that the main point is that—contrary to the statist view—private-property anarchy maximises want-satisfaction. However, I also defend this as a modus vivendi view of welfare that avoids conflict (primarily, attempts to use the state aggressively to impose competing views of welfare on people that flouts those people’s own preferences). Though I do also defend it as the best candidate for welfare.

Hayes continues that “Lester begins with an extremely provocative quote: ‘the only thing seriously wrong with they [sic] world is politics’.” The quotation should read, “There is only one thing that is seriously morally wrong with the world, and that is politics” (Escape from Leviathan, 1, opening sentence; emphasis added). The misquotation leads him into trouble later. I take this opportunity to emphasise that I meant major and general contenders for what is morally wrong with the world, such as capitalism, socialism, patriarchy, religion (or its absence), reckless environmental degradation, and so forth. I did not mean, of course, that there is nothing morally wrong with everyday acts of theft, fraud, assault, and so on (or, even less plausibly, that the state is responsible for all of these).

I do argue, as Hayes notes, that liberty is compatible with welfare but, just to be clear, also with private-property anarchy (hence the title of the book). Strictly speaking, I would not say that Escape from Leviathan absolutely “rejects both [the] natural rights and contractarian position[s].” Rather, following Karl Popper’s critical-rationalist epistemology, I do not see that either of these positions can give ultimate support (i.e., justification) to libertarianism. However, I can make some sense of both of these in a non-justificationist way.  

Hayes regards the view that law and order can be private as “the Achilles’ heel of [my] entire argument”. Unfortunately, he does not give any specific criticism of this view or of my various philosophical arguments with respect to law and order. So there is nothing substantive to which I may reply. And, as Hayes rightly notes at the outset, my focus is on the philosophy. So the more empirical works on this subject, such as those of Bruce Benson’s, are cited by me without any attempt to summarise their arguments.[2] There was simply too much relevant empirical work on too many topics to attempt to explain them all.  

It is not so much that human welfare (in preference utilitarian terms) “entails … anarchy” (I do not attempt to derive anarchy from welfare, which would be a justificationist approach). Rather, I argue that there is no sound reason to think that private-property anarchy conflicts with such welfare (which is a critical-rationalist approach). Again, I am just clarifying here. I do not mean to imply that Hayes’s exposition is clearly mistaken. Indeed, it is reasonably accurate for the most part.  

However, I do not argue primarily that it is liberty (as the absence of, proactively, imposed costs) that “rules out the pursuit of either so-called Social Justice (as in Rawls and numerous others) or Welfare (as defined by the ‘Welfare State’ …”). Rather, Social Justice and Welfare thus conceived are, first and foremost, in practice incompatible with, a more plausible view of, human welfare in any case and incidentally with interpersonal liberty too (though it is not incidental with respect to the specific thesis I am defending).

I do not see that my anarchy “ironically” puts me “into the company of … the truly extreme left, the anarchists, who see the state as the instrument of the rich and privileged to keep their power at the expense of the poor and the working class.” For one thing, anti-statism is indubitably ‘left-wing’ in the pristine sense of the French assembly, whence the term originated. There those on the left were bourgeois and liberal as opposed to the right-wingers that were aristocratic and paternalistic. For another thing, while both types of anarchist want the state abolished, there is no serious similarity between the two societies that the opposing types defend or predict might replace the state. Is it ‘ironic’ that two people who hate wearing some particular uniform do not want to wear the same alternative uniform?

Hayes is “not convinced” that I have “answered the crucial question for anarchists (which [non-anarchist] libertarians do not face) ‘Will the Invisible Hand work in Hobbes’ state of Nature?’” It is not crystal clear what this “crucial question” is intended to mean. However, as mentioned in Escape from Leviathan (e.g., 195 and note 72), game theory, social science and biology now seem to explain convincingly how cooperation (motivated by self-interest yet promoting the common good: also known, following Adam Smith, as the Invisible Hand) arises spontaneously—even among different species—as long as we have iterated interactions.[3] There is still some aggression and cheating but this can be considerably ameliorated far better by competing private policing and legal systems (again, operating as an Invisible Hand) than by the aggressive monopoly of the state. While trade is always civilised, with both sides gaining, politics always has victims. Without a clearer or more elaborate statement of the criticism, there is insufficient usefully to respond further. But I did not deal with the more empirical and economic details of these issues in Escape from Leviathan, so made no direct attempt to answer this question, in any case.  

Ultimately, Hayes wants to “agree with the libertarians on the basic rationale for the state viz. the Harm principle NOT Social justice is the only acceptable rationale for state coercion.” But some libertarians, such as myself, clearly think there is no rationale for the state. And as I explain in Escape from Leviathan (60), harm cannot be the principle. Harm (understood as objective damage to our person or property) must be acceptable if it, or the risk of it, is voluntarily accepted. Only aggressively imposed harm is unlibertarian. But aggressively imposed safety, such as a state ban on some personally dangerous activity, is unlibertarian too. So harm as such is irrelevant. It is the aggressive imposition of any unwanted thing that is proscribed, though this takes considerable philosophical unpacking. And again, ‘social justice’ as advocated is unacceptable (to many libertarians as well as me) not only because it damages liberty, understood as not being aggressively imposed on, but because it damages the very human welfare, rightly understood, that it is supposed to be promoting.

We are the told that “there are at least three sources of problems in the world not due to politics, that therefore it is incorrect to claim that the only thing seriously wrong with the world is politics. First there is Mother Nature; second there is Moral Hazard; third there is Market Failure.” Unless Hayes thinks Mother Nature is literally a person of some kind, I do not see that nature can be morally at fault (as the corrected quotation requires). The idea of Moral Hazard is that one can cause people to do more of some undesirable thing by the very process of protecting them from the likelihood, or consequences of, its happening. Whether a moral issue or not, how is this a serious problem for non-political arrangements? (While the National Health Service, for instance, is clearly a moral hazard to health because it is free at the point of consumption irrespective of the person’s past behaviour or any tax-extortion paid.) What supposed “Market Failure”? Again, whether a moral issue or not, there is a wealth of literature explaining how many so-called market failures are in reality state failures, thanks to state interference with the creation and maintenance of private property (sundry examples cropped up in Escape from Leviathan). But without anything more specific from Hayes it would not be useful to elaborate.

Finally, Hayes asks, “How do we bring about a Utopia whether libertarian, egalitarian or both? We can choose [Vladimir] Lenin’s method of coercion and thereby totally compromise the ideals or [John] Lennon’s more peaceful persuasive method and sacrifice any hope of ever realizing the Utopia.” There are various errors in this quoted sentence and Hayes’s following text. Anarcho-libertarianism is a Utopia in the sense that it does not currently exist. It is not a Utopia in the sense that it has never existed (as Hayes erroneously asserts), as shown by the examples of ancient Iceland[4] and Ireland.[5] And, though small by today’s standards, these were not “small communities” as Hayes supposes any real examples must be. In any case, the historical absence of something is hardly a proof of its impossibility. To say that we cannot have something new is to deny progress, or even change, entirely. Neither is it a Utopia in the sense that it will be a “perfect society,” as Hayes puts it (without crime or defensive force, for instance). Hayes thinks the anarcho-libertarian Utopia is “unrealizable” and that the “liberal democratic welfare state is a lesser evil than anarchy or authoritarian regimes of either ‘right’ or ‘left’” because of “[i]mperfect people”. But, unlike some socialist or communitarian anarchists, libertarians do not suppose that people will become, or need to become, different because the state is abolished. Private law and order will be necessary, and—we have many arguments to indicate—much more efficient. The way we “bring about” this Utopia is to keep depoliticising until there is no political aggression left. This first requires convincing a critical mass of intellectuals that each step, not the whole journey, is possible and desirable. Hayes appears insufficiently familiar with what libertarians actually advocate and argue here.

I was surprised that Hayes fails even to mention my fourteen-point list, and surrounding discussion, that explicitly compares Popper’s critical rationalism with libertarianism—strong similarities—and liberal democracy—strong dissimilarities (Escape from Leviathan, 138-141).  

If Hayes becomes more familiar with the relevant literature, he will probably find the anarcho-libertarian case far more robust and realistic than he has hitherto suspected.  

© J C Lester (February 2003)

[2] Such as, Bruce L. Benson, The Enterprise of Law: Justice without the State (San Francisco: Pacific Research Institute for Public Policy, 1990), and Bruce L. Benson, To Serve and Protect: Privatization and Community in Criminal Justice (New York and London: New York University Press, 1998).

[3] See, for instance, Robert M. Axelrod, The Evolution of Cooperation (New York: Basic Books, 1984).

[4]  As championed, for instance, in the introductory book, David D. Friedman, The Machinery of Freedom: Guide to a Radical Capitalism, 2nd ed. (La Salle, Ill.: Open Court, 1989).

[5] As championed, for instance, in the introductory book, Murray N. Rothbard, For a New Liberty: The Libertarian Manifesto, rev. ed. (New York: Macmillan Co., 1978).


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