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Mises Review 16, No. 1 (Spring 2010) LIBERTARIANISM TODAY

Jacob H. Huebert

Praeger, 2010, vii + 254 pgs.

Jacob Huebert's outstanding survey of libertarianism ranks as the best work of its kind since Murray Rothbard's For a New Liberty. Huebert navigates successfully difficult waters. Many people, when they first hear of libertarianism, dismiss it as extreme and irresponsible. How can libertarians seriously propose to end public and compulsory education, repeal all regulations on drugs, and consign medicine entirely to the market? Huebert brings to bear a wealth of argument and historical evidence to show that, in these and other instances, libertarians have a convincing case.

Huebert successfully surmounts another difficulty. To define libertarianism poses no great problem. As Huebert says,

[A]nyone should be free to do anything he or she wants, as long as he or she does not commit acts of force or fraud against any other peaceful person. Libertarians call this the "non-aggression principle." … Taken all the way, the libertarian idea means that no government is justified — any government is a criminal enterprise because it is paid for by taxes and people are forced to submit to its authority. Many libertarians (including this author) do go this far. But many others … stop just short of this and are willing to accept a minimal "night watchman state," as philosopher Robert Nozick put it, to provide for common defense, police, and courts, because they believe that only government can successfully provide these services. (pp. 4–5)

The difficulty that I mentioned arises once the definition gives us an initial characterization of the position. Libertarians are a contentious lot, and on a number of issues, competing positions vie for libertarian favor. Indeed, Huebert's definition has already mentioned once such conflict, that between anarchists and minarchists. Huebert himself is a strongly committed libertarian, adhering to Rothbardian anarchism; this is all to the good, because this is the correct view. But now comes the difficulty. In a survey, an author needs to present these competing positions fairly, without compromising what he himself accepts.

Huebert handles this task admirably. In some instances, he indicates the strengths of positions, such as relying on court actions based on the Constitution to secure liberty, of which he is skeptical. In others, he draws the line and says, "thus far and no farther." He displays a finely judged balance in delimiting what counts as a libertarian view.

One of these instances of line drawing strikes me as especially valuable. Huebert succinctly and accurately explains that applying libertarian principles to foreign affairs leads to a policy of peace and nonintervention. Modern war directly violates the nonaggression principle:

Historically, war did not necessarily involve killing innocents on a large scale. War was always terrible and undesirable, but by the eighteenth century, Europe had developed rules of "civilized warfare." .… Modern warfare is another story. Modern governments, including but not limited to democracies, claim to represent "the people," so modern wars are seen as being fought, not just between rulers, but between whole peoples (p. 176, emphasis in original)

Huebert notes that few, if any of America's wars meet the demanding criteria of just-war theory. The American Revolution came closest, since it was undertaken in self-defense, but even this war "relied on inflation, economic controls, and conscription. (p. 190).

Given the clear dictates of the nonaggression principle, Huebert reacts with shock to Randy Barnett's claim that support for the Iraq war is consistent with libertarianism. Barnett outrageously extended the notion of self-defense to allow preventive war and "nation-building." Huebert is not having it:

[O]ne can safely say that the pro-war position is in direct opposition to libertarianism as we have defined it in this book. … In sum, support for the Iraq war is deviation from libertarianism (p. 194).

Although Huebert concedes that some libertarians support vouchers for education, readers are left in no doubt that he takes this to be an unlibertarian position:

The independent schools would not be killed off by genuine market competition; they would be killed off by government privileges [i.e., approval by the government to receive voucher payments] to some schools — those willing to accept government control — and not others. A program that would do this cannot be called libertarian. (p. 126)

If this is the libertarian view, some may object, does not this give us grounds to dismiss the whole outlook as extremist? How could the poor be educated, absent government schools and payments to attend private schools? Huebert responds with what Herbert Hoover would call "a powerful statistic." Long before compulsory education and widespread government schools, "male literacy in the [American colonies] ranged from 70 to 100 percent. In 1850, just before Massachusetts imposed compulsory schooling, literacy in that state was at 98 percent." There is every reason to think that government aid of any sort hinders rather than helps education.

Again and again, Huebert makes the case for the libertarian position. He calls attention to the fact that many people die because they are unable to secure an organ that they need for a transplant. "The average wait time to receive a kidney is five years (and rising), and more than 40 percent of the people who need a kidney may die during that period" (p. 105). Would not the free market greatly alleviate this situation? If people were free to sell organs, surely many more than now would be available.

Some object to markets on the ground that the sale of organs is immoral or degrading. For once I am not satisfied with Huebert's response. He says,

Libertarians would say that it is fine for them to think that, but it is hardly a justification for telling people what they can or cannot do with their own bodies, or for condemning 6,000 people each year to death. Why should one person's desire not to have his moral sensibilities offended outweigh someone else's right to life itself? … If you are offended by someone else exercising his or her rights, too bad. (p. 106)

Huebert of course is correct that markets in organs are not only permissible but desirable. But he has not spoken to the objection, which after all alleged not desires or feelings of offense, but claims of degradation or immorality. Surely one cannot take for granted that what is degrading reduces to people's subjective tastes? Perhaps I am unfair to impute this subjectivist view to Huebert, but his language suggests to me that he inclines in this direction. What he needs to add to cement his case is that even if a transaction really is degrading, it cannot be banned so long as it violates no one's rights. In addition, one can attack directly the claim that organ sales are degrading. (I discuss this further in the review, elsewhere in this issue, of Michael Sandel's Justice.)

Intellectual property has been a "hot topic" among many libertarians in recent years, and Huebert devotes an illuminating chapter to it. He has been much influenced by the important monograph of Stephan Kinsella, Against Intellectual Property. In Kinsella's view, which Huebert adopts, patents and copyrights violate property rights: they do not secure the rights of inventors and creators but are state grants of monopoly privilege that violate the rights of others.

Why is this so? Property rights, according to the new view, arise because resources are scarce.

That is, they are limited in quantity, and one person's use of a piece of property prevents someone else from using it. Two people cannot occupy the same space or eat the same orange. Without property rights, there would be irresolvable conflicts over who can use what land and objects, and how they may use them. … on the other hand, if certain things were not scarce — if we could reproduce them infinitely at no cost, or if they were somehow abundant — there would be no conflicts over those things, and no need for ethical rules, property rights, or laws to govern such conflicts. As it happens, ideas fall into this latter category." (p. 107)

Accordingly, patents and copyrights, which purport to grant property rights in ideas, are illegitimate.

So according to libertarian theory, IP rights are not "property rights" at all, but a government-issued license to attack property rights — and therefore should be abolished. (p. 208)

This is a most significant contention, though I would caution that the fact of scarce resources decidedly does not suffice to generate a first-user rule to distribute these resources. I would be more inclined than Huebert, though, to stress the continuity of the new view with Murray Rothbard's position.

Huebert presents a much more accurate account of Rothbard's opinions than most. The capsule formulation that most adopt is that Rothbard rejected patents but allowed copyrights. Huebert makes clear that this vastly oversimplifies what Rothbard says.

Rothbard thought that copyright could be justified if it were the product of a contract. For example, if when Smith sells Jones a book, Smith marks it '"copyright," then Jones only receives from Smith the right to make and use that physical book, but not the right to copy it … because a person cannot transfer any more rights than he or she owns, any third parties who later get the book after Jones would be subject to the same restrictions Jones faced … Rothbard justified patents of a sort on similar grounds. If Smith sells Jones a new kind of vacuum cleaner and marks it "patented" (or, as Rothbard would have it "copyrighted"), that tells Jones that he is only receiving the right to the physical object, not the right to make copies of it. (pp. 205–206)

Someone who independently invented the vacuum cleaner would be immune from the reach of the patent.

The standard objection to Rothbard's position is that such contracts can bind only the people who are parties to them. If you find a copyrighted book that someone has discarded, you are free to copy it as you please; you have made no agreement not to do so. It is because of this point, I think, that Huebert says, "Murray Rothbard began to chip away at the IP idea but still clung to parts of it" (p. 205)"

This is an excellent point (Robert Nozick was among the first to raise it), but is it an objection to Rothbard's view? In Man, Economy, and State, Rothbard says,

Copyrights … have their basis in prosecution of implicit theft. The plaintiff must prove that the defendant stole the former's creation by reproducing it and selling it himself in violation of his or someone else's contract with the original seller. (MES, p. 745, emphasis added)

This suggests that someone who is not party to the contract would be free to copy the creation as he pleased. The point about third parties would then be a consequence of Rothbard's view, not an objection to it.

Rothbard's support for IP would then dissolve. Admittedly, Rothbard sometimes did not draw the full consequences of his own statement, as readers of The Ethics of Liberty will not fail to note. But the passage that I have cited lays the basis for the new thinking on IP.

Huebert's book merits close study by anyone interested in libertarianism.