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Reply to Swan


The following two replies first appeared in Liberty (December 2002). Please consult Liberty if you wish to see Swan’s original review and his response to the reply.


Kyle Swan’s review is, for the most part, refreshingly accurate and it offers pertinent criticism to which I am happy to respond.

The Extreme Classical Liberal or Libertarian Compatibility Thesis that Escape From Leviathan defends is that there is no long term, practical, systematic conflict among economic rationality, interpersonal liberty, human welfare, and private-property anarchy. Swan thinks this extreme version is probably false and suggests that perhaps even I would agree. I do not, though I am open to argument. But what I happen to believe at any moment is a piece of fleeting autobiography that is irrelevant to the truth of the thesis or the soundness of the arguments in Escape From Leviathan.

As Swan explains, I use Popper’s Critical Rationalist epistemology of seeking tests for my conjectures instead of trying to support them. Swan doubts that this “is the best we can do.” He says, “I don’t see why there can’t be a transfer of justification between two propositions, one of which is grounded in the other.” But how is the first one grounded? Swan observes that Loren Lomasky sees libertarianism as having “its foundation in a particular theory of practical reason.” I cannot usefully deal with this brief suggestion here beyond noting that deeper levels of theory are not thereby a foundation in any epistemologically justified sense. They are merely more basic conjectures. It is conjectures all the way down. Hence there is no ultimate support.

It is true that, as Swan notes, making “ideas logically compatible with each other doesn’t have to be especially difficult.” But in Escape From Leviathan I am engaged in making ideas coherent that also withstand independent criticism. I am not defining my terms so that they are merely consistent but defending theories of each conception (particularly rationality, liberty, welfare and anarchy) as in itself capturing a relevant notion in a way that withstands criticism and solves various problems.

Swan goes on to say that “the conception that a free will is one that is not determined by anything external to the agent isn’t compatible with determinism.” But a free will that is not determined by anything external to the agent is compatible with determinism—unless Swan views an “agent” as involving only an abstract mind (so even every part of the brain is “external”) rather than a kind of biological entity (as I would view it).

Swan then offers a conception of free will that is clearly along the lines defended in Escape From Leviathan and (also) compatible with determinism: “one’s will is free so long as it isn’t interfered with, or compelled, by others.” He states that “it may be very easy to make a set of terms logically compatible with each other simply by defining the terms in such a way that they don’t conflict.” But I do not do that, as Swan seems to suggest. I defend a particular theory of free will from criticism and argue that other theories are false. One cannot validly reject pro and con arguments, as Swan effectively does here, on the assumption that the mere fact that someone has consistent theories just shows that he might have fiddled the definitions. I might also counter that ‘it may be very easy to make a set of terms logically incompatible with each other simply by redefining the terms in such a way that they do conflict.’ (However, I ought to note that the truth or falsity of my theory of free will is not crucial to the compatibility thesis—metaphysical free will could do the job too—but I did need to give some coherent account of this that fitted with my theory of rationality.)

In addition to this implicit criticism, Swan offers two explicit criticisms of my thesis: “First, I think that either the four ideas are not strictly compatible, or, if they are, the compatible thesis becomes somewhat trivial. Secondly, I disagree flat-out with one of Lester’s definitions.”

Swan cites “the issue raised by David Friedman that ‘turning on a light or striking a match can send photons onto the property of others, so, given absolute property rights, one cannot even do such trivial things without the permission of everyone affected’ (73).” He says that “a theorist seems forced to choose between an individual’s absolute control of property and perfect liberty. The choice Lester apparently prefers is to give up perfect liberty.”


Here Swan is simply mistaken. I argue that neither of these is possible. Libertarians would not be libertarians if they were not for liberty—though perhaps only for as much liberty as is possible. Swan asserts that “Lester admits the possibility of cases where his definition of liberty conflicts with his definition of private property.” But there is no clash of ‘definitions.’ Because of inescapable clashes in proactive impositions, perfect liberty is not always possible (in fact private property itself is a way of minimizing such clashes). That is all.

Swan continues that “it would not be difficult to imagine cases in which liberty would also conflict with people’s having their unimposed wants satisfied.” Of course. But mere imagined possibilities are not a problem for the practical claim of the Compatibility Thesis. I do not in any way “retreat” from my conception of liberty as ‘people not having a subjective cost initiated and imposed on them by other people’ (or the absence of proactive impositions, for short). Liberty is maximized where welfare is maximized and private property is maximized. Hence these things do not conflict. I do not say that we can have perfect liberty, perfect welfare and perfect private property (though I can make some sense of each of these).

Swan asks “What will determine in these cases the extent to which impositions will be permitted?” The answer is that overall impositions be minimized by whatever means does this best. Swan supposes that “where the perceived conflict is between individual liberty and private property, it will be just those impositions that are compatible with protecting another’s property.” No, it will be whatever maximizes liberty (i.e., minimizes overall proactive impositions). Has he forgotten that Escape From Leviathan deduces property rights, including self-ownership, by applying the theory of interpersonal liberty? Liberty is not defined in terms of property (except as a useful rule of thumb).

On my perpetual copyrights, Swan suggests that this will sometimes impose costs on those who do not own them. How? There is no explanation or argument given. He then suggests that costs might be imposed on “even those who, for example, won the race to the idea, but lost the race to the copyright office, or arrived at the idea later than, but independently of, the copyright holder.” This seems to be confusing copyrights and patents. At the extreme, copyrightable innovations are not likely to be thought of independently (“I wrote an identical Hamlet before I knew of Shakespeare’s play”?). It is also conflating criticism of the abstract theory with criticism concerning a possible practical difficulty. In Escape From Leviathan I discuss various problems and solutions with respect to each. Strictly, I do not recognize distinct categories of intellectual property but envision a spectrum of intellectual innovations ranging from those that might, otherwise, be independently created very soon afterwards (e.g., some mechanical inventions and pharmaceuticals, also maps and mathematical tables) to those that are unlikely ever to be independently created (e.g., books, symphonies).[1] I cannot see what Swan finds problematic with this so I cannot usefully say more.

Of my Compatibility Thesis, Swan asserts that the “bold conjecture . . . is weakened to the more judicious claim that liberty must be compromised in order to secure strong property rights.” I cannot understand why Swan thinks this. It is wrong in two crucial ways. 1. Liberty is never compromised. Libertarians, qua libertarians, must opt for the maximum liberty possible (and perfect liberty might not be possible). And 2. In Escape From Leviathan I clearly take the position that simple private property as normally conceived does have to be modified when it clashes with liberty (for example, contra Rothbard, I argue that the person who finds himself surrounded by someone else’s property must be allowed reasonable easements, though perhaps with some compensation payable, as that is a lesser imposition on the other owner than allowing his imprisonment is on him).

Swan asks, “Who would deny that private property is compatible with as much individual liberty as is attainable when perfect liberty (as Lester defines it) is unattainable?” If Swan means ‘generally compatible’, then just about everyone who is not a libertarian would deny that private property is compatible with as much individual liberty as is attainable. I do not mean only to argue with libertarians. Swan says that my choice is for “allowing the protection of private property to condition the ‘amount’ of individual liberty.” I cannot understand this. This sounds like the thinking of someone with a non-libertarian conception of liberty. How does the protection of private property limit liberty when private property is derived from liberty? Patents are then put forward as an example of my doing the opposite, and ‘right’, thing. But I explain how patents are different from copyrights in applying my theory of liberty. What is wrong with my explanation? How is only this putting liberty first?

My aprioristic “definition” (theory) of rationality is “implausible”: that ‘agents always attempt to achieve what they most want under the perceived circumstances.’ Swan thinks this implausible because of the possibility of false beliefs. If I mistake a glass of gasoline for a glass of juice, I do not have an “objective reason” to drink it “[b]ut I would have been attempting to achieve what I most wanted under the perceived circumstances.”

So what? I am defending a theory of subjective rationality. Why should I be defending an objective (perfect?) theory instead? I do not object to objective theories, as such; they are simply peripheral, at best, to explaining the real values, choices and actions of agents (and Swan’s version looks more like unattainably perfect prudence). Does Swan think my subjective theory will somehow lead to mistaken gasoline drinking in practice? I do also argue that it is overall welfare-enhancing—so also objectively rational?—to allow people to learn from their own mistakes and I refer the reader to the literature on what happens when ‘experts’ are empowered to choose for them. Is there something faulty with that?

© J C Lester, October 02


One theory I believe is that many of the theories I believe must be false. And they are more likely to be false the bolder they are. But that does not entail that I cannot consistently believe any particular, even bold, theory. I need a more specific reason seriously to doubt it than that I am confident that many of my theories must be false. Otherwise I could never believe anything, perhaps including the original (meta-)theory. Off hand, I think that is the correct answer to an apparent paradox about beliefs that Swan effectively raises. It is keener with critical rationalism, perhaps, rather than unique to it. Though, as I said in my previous reply, my beliefs at any moment are mere aspects of fleeting autobiography. They have little or nothing to do with the truth of objective theories and the soundness of objective arguments.

Swan reasserts that “questions regarding the logical compatibility of ideas depend upon one’s definitions of those ideas.” So I reassert that I was defending the conceptual and practical compatibility and plausibility of certain theories. This cannot be reduced to whether certain definitions are logically consistent.

Swan asserts that “in order to deal with certain practical problems, Lester must fiddle” his “definitions”. It was not a “fiddle” with “definitions” but various arguments that showed that the libertarian conception of liberty, as I theorize and defend it (I am not doing lexicography, even of the stipulative variety), “isn’t always compatible with absolute private property rights” as these are normally understood. I cannot see why Swan sees my answer to David Friedman’s apparent paradox of absolute property rights as mere definition fiddling rather than a serious philosophical answer (in short, that it is a genuine and explicable error to think that libertarian liberty—as opposed to other theories of liberty—conceptually requires such absolute rights). On my response to Rothbard on this issue Swan thinks that my conception of liberty “isn’t possible here unless the property rights of the others are compromised or modified in some way.” Presumably he means that liberty cannot be applied perfectly. That is right. So what? When there are inevitable clashes of liberty, as I explain will happen, normal understandings of property rights have to be modified to maximize liberty (strictly, libertarian property rights can only be respected in this way). He goes on, “But alternatively, the other’s absolute control of their property isn’t possible here unless the individual liberty of the first person is compromised.” Why should he have such so-called absolute control if it clashes with liberty? Swan seems to think that such control is somehow libertarian. I explain—not “define”—why it isn’t.

As Swan observes, it is indeed not possible to secure perfect liberty in the sense of the complete absence of proactive impositions, and so we can only maximize liberty (minimize proactive impositions) as far as is practical (if I were really trying to fiddle my definitions why would I make it so hard for myself by coming up with a definition of liberty that cannot be perfectly implemented?). Swan insists that this shows that liberty is “compromised”. It is true that we have to make ‘compromises’ in terms of absolute individual liberties (I cannot have perfect liberty without interfering with your perfect liberty) in order to maximize overall liberty. But as perfect liberty for all at all times was simply not an option I simply cannot understand why Swan thinks liberty as a goal to be aimed at has been “compromised”. What other aim has compromised it?

Now Swan also thinks that minimizing proactive impositions (maximizing liberty) is “a retreat from the compatibility thesis as [I] initially formulated it. It amounts to an admission that liberty as absence of proactive impositions is not in practice and in the long term compatible with general welfare and private property.” Why assume that I am committed to perfect liberty here? Or why not also assume that I am committed to perfect welfare (having all of your unimposed wants satisfied) and perfect private property (with no criminal interference whatsoever)—both of which are also not practical—and then complain that I retreat from them too? The compatibility thesis is that liberty, welfare and private property do not clash. More of any one means more of the other two. It is not that we can have perfect liberty. That is a perverse interpretation, as well as one that inconsistently ignores perfecting the other two. Why does Swan think I would put forward a thesis involving the perfection of liberty when I knew that such perfection is not possible?

So there is no “retreat”. Swan’s perfectionist interpretation of the theory was not so much “bold” as stillborn. My maximalist theory is bolder, many would say too bold, than any other version I know of among libertarians. It is misleading to say that “[n]on-anarchists, non-libertarians, even political liberals agree with Lester that proactive impositions should be minimized”. The latter two, at least, are prepared to allow proactive impositions in order to achieve “other values in the political realm.” They are not aiming at a “minimal level” and they are often even reckless or oblivious concerning liberty. Swan states that it is “misleading for [Lester] to claim that he’s offering an account of the objective compatibility of all these values.” My reconciliation concerns only certain conceptions of liberty, welfare and anarchy. Why is it not objective?

When I wrote that the absence of proactive impositions was incompatible with absolute control of private property, as normally understood, I meant in Friedman’s and Rothbard’s examples—not in every possible instance. I still do not see what this has to do with Swan’s discussion of intellectual property. When Swan supposes that if the independent later inventor of an “idea” can have the “copyright” and “absolute control” I agree that then “the liberty as absence of proactive impositions of the former person is compromised”. Does Swan think my system entails this scenario? I do not. Swan then asserts that “in the case of patents, the liberty of others as Lester defines it is expanded as the patent holder’s control of his property is compromised.” Why is this liberty rather than license (doing something at someone else's proactively imposed expense)? Swan is appealing to some kind of common sense view of liberty rather than addressing the arguments in Escape from Leviathan. As I cannot see what his point is supposed to be, I do not know what sense to make of his assertion that “[i]t would also be easy to think of actual cases where the same would be true about liberty and welfare.”

Swan thinks “given [my] definition of what rationality is and its purported connection to welfare as want-satisfaction, [I am] committed to the implausible claim that the person [he] imagined has enhanced his welfare by drinking the gasoline.” I am not committed to any such view just because the theory of welfare, and the compatibility thesis, is concerned with people’s overall want-satisfaction. Drinking the gasoline will obviously decrease this. So I still cannot see a problem.

© J C Lester, October 02

[1] I thank Mark Brady for helping me to clarify my own position on intellectual property in Escape From Leviathan—and for reminding me what it is.

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