A Belarussian translation of this essay is here.

Why I Am Not a Libertarian

I thought about entitling this essay "Two Cheers For Libertarianism." On civil liberties matters, I am perfectly libertarian; in fact, I have just delivered a briefing paper on the pervasiveness doctrine to the Cato Institute, and hope to write more for them on topics such as anonymity and mandatory ratings systems.

But there are other libertarian positions, such as that against anti-discrimination laws, which shock the conscience; like Hayek, I believe that there are things worth doing that the free market cannot do. Here then, is an attempt to outline what is good about libertarianism, and then contrast what doesn't make sense. The conclusion I draw is that like most human belief systems, libertarianism mixes practicality with some idealism unrelated to human nature. Therefore, as much as I sympathize with most of the diagnoses and some of the prescriptions, I am not a libertarian.

Big government v. little government

When I was a child, someone asked me what my favorite color was, and I replied "Blue." A day later, I went to the store and selected a red bicycle, to replace the worn out red bike in the garage. I realized that the color I thought I favored was not the one I actually selected.

In preparing this essay, I had a similar insight about government. Though I have been quick to say that there are things the free market cannot do, that must be done by government, I have made choices in my own life that led me away from government regulation as much as possible. I left a regulated profession for an unregulated one. It matters to me that the government does not attempt to tell software developers how to write code. Though I believe that government-backed unions served an important purpose in securing advances for American workers, I am also happy that as an employer I do not have to deal with the Teamsters ("We say the word, and not a line of code moves in this facility!"). I have rebelled in my life against government actions such as the Vietnam war. Every time I take a close look at any process owned by the government, wther it is immigration or the air traffic control system, I am horrified by the inefficient way it is handled. And, as a civil libertarian, I have been a plaintiff in the Communications Decency Act case to invalidate an Internet censorship law passed by Congress and backed by the President.

Confidence in government is at an all time low; most people believe that the government is inept at almost any project, whether that project consists of curing poverty, reforming health care, fostering the arts, or launching the space shuttle Challenger.

Nevertheless, as libertarians are quick to point out, most traditional liberals and conservatives believe in a role for big government somewhere:

Conservatives want to be your daddy, telling you what to do and what not to do. Liberals want to be your mommy, feeding you, tucking you in, and wiping your nose.--David Boaz, Libertarianism: A Primer

Conservatives, in other words, want the government to intervene in matters of private morality such as sex, sexual preference, abortion and pornography. Conversely, they want the government to stay away from regulating business and markets. Liberals want the opposite: perfect freedom of action in the moral sphere, and a vigilant, interventive government in the business sphere. Looked at this way, libertarians are the only consistent party: they want the government small and far away for all purposes; they don't want it involved in what we can read or see at the movies, nor do they want it telling us we must hire black people or can't hire children.

A classic example of big-government thinking is Professor Catharine Mackinnon, a Marxist and anti-pornography feminist who believes that government perpetuates sexism and pornography, yet drafts ordinances that would ban as pornography any work depicting violence against women. She thus calls upon government to intervene in our lives to do the opposite of what she believes it now does, without being able to explain how we should bring about the revolution in the minds of men required to accomplish her goals.

It seems clear that in the minds of most big-government types there is a dichotomy: there is the real government, the one we perceive with our senses and distrust, and there is the fantasy government, the one we all believe we could have if we just worked a little harder, voted in larger numbers, turned the rascals out, and perhaps made some changes to our laws. Somehow, we fail to perceive any inconsistency between the two versions of government; perhaps this failure is based in our own need for self-deception, much like the unbridgeable gap between the "ought" and the "is" which Hume pointed out.

Libertarians, then, are better diagnosticians than most of us when they say that the odds are infinitesmally small that we can have a better big government, much like a doctor counselling you not to depend too much on the cancer going into remission.

Libertarianism and the Tragedy of the Commons

The tragedy of the commons is a first-rate device for testing the efficiency of any human proposal for governing ourselves.

The tragedy of the commons is essentially a parable with a moral, like an Aesop's Fable. In the parable, we all live in a village that shares a commons on which we, farmers all, graze our sheep. The moral of the story is that left to our own devices, we will each decide to add one sheep too many to the commons, destroying it for ourselves and for future generations. The short term benefit to each of us of an additional sheep outweighs the intangible gain of preserving the commons for our grandchildren.

David Boaz gives us the libertarian take on the "tragedy of the commons":

When resources--such as a common grazing area, forest or lake--are "owned" by everyone, they are effectively owned by no-one. No one has an incentive to maintain the value of the asset or use it on a sustainable basis.

In other words, the libertarian answer to the tragedy of the commons is to eliminate the commons. No commons, no tragedy. If the commons was owned by a single individual who charged everyone else grazing fees, he would be more committed to preserving it for the future than a village of farmers.

But why is this necessarily so? I could argue the converse, that a village acting collectively is more likely to avoid short-term thinking than one man responsible only to himself.

Hume made the point that in most moral philosophizing, we carry on talking about the "is" until, suddenly, in mid-paragraph, we encounter an "ought". There is no real-world bridge from the "is" to the "ought"; all such bridges are fantasies based on optimism and self-deception.

Where libertarianism crosses this chasm is when it passes from selfishness to enlightened self-interest. A human being who owns the Pennekamp coral reef in Key Largo is entitled to break up the reefs and sell the pieces to gift shops (in the absence of a government expressing the will of the majority and telling him he can't.) He ought to realize that there is more gain in selling tickets to Pennekamp over many generations--that way, it will support his children and grandchildren as well. But most human beings, left in complete freedom to act, will select the short-term gain. This is what the Prisoner's Dilemma teaches: we will select betrayal over cooperation because it grants an immediate benefit more tangible to us than the repetitive, long-term benefits of cooperation.

Individuals and groups

An apparent paradox of libertarianism is that humans can be trusted individually but not in groups.

A democratic government consists of humans acting as a group. The government carries out the will of the group. In Rousseau's terms, it carries out not only the will of the majority, but in a sense, even of the dissenting minority, who despite their disagreement with the particular action, endorse the majority will by continuing to participate in the society.

Libertarians believe, therefore, that we are singularly inept as a group. Assuming for a moment that the proposition is true-- there is a lot of evidence for it--a cynic would propose that the reason we are collectively incompetent is that we are individually incompetent as well.

Libertarians, however, are optimists. I cannot fault them for this; I have written elsewhere about the importance of optimism in any human scheme, even to the point of self-deception. Nonetheless, libertarians assume, as most people do, that there is a way out of any given dilemma; their self-deception may consist of believing that what we cannot accomplish collectively, we can more effectively do individually.

Let's take a look again at the Pennekamp reef example. Testing the proposition that commons should not exist because they will always be mismanaged, let's try a thought experiment. Who would you rather have manage the Pennekamp coral reef so that it will remain alive, clean and available for future generations: fifty randomly picked people, or one?

Libertarians would say that fifty people, if they were acting as a government, will inevitably destroy Pennekamp, while one person, following a profit motive, is more likely to regard it as being in his self-interest to preserve it for the long term. But I think there is substantial reason to look at this the other way. Any one person you pick from the street may wish to break up the coral and sell it to souvenir shops, make a quick million and retire. If you randomly pick fifty people, chances are much greater that most of them will appreciate the benefits of preserving Pennekamp for the future. Thus, acting collectively has a smoothing effect: recognizing that we really do share some agreements as a culture which we may call values, the more of us we involve in the Pennekamp decision-making the more likely it is that we will make a decision reflecting these common values. In fact, in the classic tragedy of the commons, the tragedy happens because the villagers are not deciding collectively how many sheep to add. The tragedy happens because each individual using the commons has the right to think selfishly--exactly as an individual who owned the land might do.

"Public" v. "private" motives

A libertarian might, I suppose, respond that I am on a false trail here. It is not the issue of the many versus the one; it is the issue of government versus private enterprise. Looked at this way, fifty people acting as a government will ruin Pennekamp, while fifty acting as a corporate board of directors will not. Correspondingly, one person acting as a government will ruin Pennekamp, while one person acting as Pennekamp's private owner will not. It is not the number of actors that is relevant, but the motive.

I suppose that this argument would go as follows: when we try to act in the public interest, we always make a hash of things. When we acknowledge that only selfishness works, that it is the fuel that drives all human endeavor, only then can we create efficient forms of human interaction.

I believe that libertarians are right about this up to a significant point. Like most human belief systems, libertarianism must fight the Second Law of Thermodynamics and the reality of fuzzy thinking. Because things fall apart, because we are constantly dealing with a fuzzy, unknowable and changing reality, because human values are not absolutes and it sometimes require some illogic to arrive at the destinations of the heart, all human belief structures are of necessity incomplete. Our optimism and self-deception usually does not permit us to acknowledge this. A belief system is always part building and part blueprint, a combination of the is and the ought. The building may be a small shack, and the blueprint a tower extending out of sight into the sky. In the case of libertarianism, the building's foundation is the failure of government; but the blueprint soaring away into the cerulean blue is the idea that selfishness is the key to long term thinking and enlightened behavior.

Libertarians are right that most supply and demand decisions are best made by a free marketplace. As I have said elsewhere, I too am a capitalist. I believe that Hayek was right about government planning versus free markets. But what libertarians do not acknowledge is that there are a subset of decisions, mostly about commons--which I define as anything which has a non-economic value to us as a group-- which cannot be left to the marketplace. Even Hayek acknowledged this:

[T]he price system becomes similarly ineffective when the damage caused to others by certain uses of property cannot effectively be charged to the owner of that property. In all these instances there is a divergence between the items which enter into private calculation and those which affect social welfare; and whenever this divergence becomes important, some method other than competition may have to be found to supply the services in question.

Garrett Hardin hadn't yet coined the phrase "tragedy of the commons" when Hayek wrote, but this is exactly what is under discussion here. Hayek goes on to give examples: the building of roads, creation of signs on those roads, avoidance of harmful effects of deforestation and of pollution are all matters which cannot be trusted to the marketplace. "In such instances," Hayek says, "we must find some substitute for the regulation by the price mechanism."

Bringing this home to our Pennekamp example: breaking up the coral reef will harm the fishermen who fish the peripheries of the reef; it will harm the tourism operators who bring people to nearby resorts; and it will harm all of us who believe that our lives are better because there are coral reefs in the world. Trying to transform non-economic values into economic ones creates an auction in which we must pay Pennekamp's owner more for to preserve the reef than the market will pay him to destroy it; but then are we not back at government intervention? There is no distinction between the government acting as a collector of funds to subsidize the reef owner and the unhappy spectacle of paying farmers not to plant wheat. And if we are postulating a market in which enough of us must want to write checks directly to the reef owner to incent him not to ruin the reef, then, in my opinion, we are making an argument for the existence of commons and of governments. Because otherwise we are left without a coral reef.

The Second Law of Thermodynamics

Libertarians are fond of talking about "spontaneous order". For example, the common law is an example of a complex structure of practical rules developed by people over the centuries, before government took over the job of making the laws. The stock and bond markets don't exist because of laws and regulations, but in spite of them; businesspeople spontaneously created these markets for convenience' sake. Your ability to use a credit card anywhere in the world is a result not of government rules but of "spontaneous order".

There is a lot of truth in this; most of the progress we have made is the result of just letting people work out convenient schemes while forbidding the use of force. In that sense, the libertarian free market scheme mirrors nature, where complex structures build up over time, and then die off if surrounding conditions change so that they are no longer warranted. Life is a battle against the Second Law of Thermodynamics, seeking to build up structures and resist decay.

Does the Second Law have its equivalent in the business world? And should it?

It does and should. If by 2100, IBM becomes a fifteen person company making hand-tooled working replicas of the RS-6000, that is the way of the world. Government intervention to prop up a failing company is a short-term way to preserve jobs while saddling the market with old or inferior products. As Charles Murray points out, the best way for the government to create jobs might be to prohibit the use of farm equipment. Most of us, other than hardcore Luddites, don't really want this. Most people, instead, are comfortable with the idea of a form of natural selection in the marketplace. Over the past few decades, for example, we have bled manufacturing jobs and proliferated software jobs. .

Companies don't only end when they go bankrupt; they may disappear after being merged or divided into pieces. In fact, a dangerous moment for many privately held companies, like other property, comes at the death of an owner, when the assets are divided according to the individual's will. Again, we think of this as normal, if sometimes regrettable. The American system of inheritance has been described as a democratizing force, as opposed to the medieval European doctrine, which kept the estate together in the hands of the oldest son. As a business owner, I would not support any law that limited my right to sell or divide my company; though I believe many such actions are immoral in their effect on my employees, I don't want government involved in making them. Law and morality should not be coextensive.

But do I really want the same set of rules to apply to Pennekamp Reef?

Libertarians would have me believe that it will be cleaner, healthier, stocked with more fish, generally better taken care of, if privately owned. But ownership includes the right to divide it into lots and sell them. Some lot owners may decide to preserve their portion of the reef, while others may decide to dynamite theirs, release foreign fish species, or release pollutants--and each small owner would have a perfect right to do so under libertarian theory. But Pennekamp Reef is not really a sub-divideable entity; until science perfects Star Trek-type force fields, actions taken on any section of the reef affect the whole thing. If Pennekamp Reef is subdivided, I believe it will die much faster than it will in the hands of government.

David Boaz doesn't agree; in fact, he thinks the oceans should be privatized, though he never says how:

One of the biggest environmental problems today is the depletion of ocean fisheries, a clear example of the tragedy of the commons for which a privatization solution is urgently needed.

The idea of a private ocean boggles the imagination even more than that of a privately owned coral reef. For the answer, we have to look to Charles Murray, whose What It Means to be a Libertarian takes a less dogmatic view. Murray acknowledges--as Boaz apparently does not--that there is a small but irreducible class of truly public goods, which must be managed by government. He defines these as "nonexclusive", meaning there is no way to subdivide them, and "jointly consumable", which means that they can be used by one person without diminishing availability to another. The example Murray gives is clean air, which cannot be divided into parcels, but which can be breathed by one person without denying it to another. I think Pennekamp Reef fits Murray's definition of a public good; you can't subdivide it, meaning that foreign species or pollution released on one portion of it will invade the rest, and it is jointly consumable, meaning that one diver or fisherman using it does not deny it to another.

Libertarian Theory and Social Darwinism

This leads us to my major argument against libertarianism: part of its doctrine is intellectually dishonest. This is not to say libertarians are liars; the best way to deceive anyone else is to deceive yourself first. And libertarians have no corner on the market in deceptive reasoning; other belief systems are fond of it too.

If, as their system implies, libertarians really want to leave the consensual human world of interaction free to imitate the process of natural selection, why won't they just say so? An honest if repellent argument would go something like the following:

"Nature doesn't prop us species that no longer make the grade due to changed circumstances. Most of us agree that government shouldn't prop up businesses that can no longer compete, due to wasteful ways or outdated technology. So why do we feel that government should create a safety net for people who can no longer pull their weight?" Ebenezer Scrooge at least was honest: "Let them die and decrease the surplus population."

Libertarians (and traditional conservatives, who want big government only in other areas) instead argue that the free market approach will miraculously eliminate poverty. Among the arguments you can find in Boaz's book (and in Newt Gingrich's): private charity will step up to the plate for the truly needy. Deprived of a culture of dependency, many others will discover that they can, after all, pull their own economic weight in our society. An end to government intervention will result in a heady rush of job creation, benefiting the bottom layers of society. And so forth.

All of these statements are true, to an extent. Some people will be taken care of private charity. Some will discover that they can work after all. Some who formerly couldn't find jobs will get them as the economy expands and unemployment decreases. And some will be worse off or will die.

In order to conduct an honest dialog, we would need to focus on the latter class and ask how many? How many will constitute acceptable losses? Ten million? One thousand? One? None? In fact, both private business and government make such decisions every day. Suppose you could make a perfectly safe automobile, but it would cost one million dollars. Few people would buy it. So we find the compromise point at which people feel that there is enough safety and a low enough price that they are comfortable taking their chances. In this context, Ford's execrated decision to continue manufacturing the Pinto with the risky fuel tank becomes a normal, if unfortunate, cost-benefit analysis: it was less expensive to pay a few wrongful death judgments than to redesign the car.

If you are proposing to redesign the society in which we live, that's fine; it certainly needs some changes. Just tell me what the costs are. But don't tell me that its free. I have rarely met a libertarian or a conservative who would acknowledge that their plan for society would also cost a few lives (though they believe the status quo costs many).

Even Murray deflects away from this issue. He acknowledges that "what becomes of those who are helpless, or luckless, or perhaps simply feckless, must deeply concern any human being worthy of the name." But, right on the heels of this insight-- which I am certain is not shared by many who call themselves conservative or libertarian--he says: "There can be no such thing as a society free of human suffering."

No matter what social and economic system is put in place, some proportion of children will be neglected, some adults will be desperately lonely, some people will suffer terrible accidents and diseases that leave them incapacitated, and some people will live in squalor.

Fair enough; any realistic proposal must acknowledge this, though dogmatic libertarianism apparently does not. But Murray gets squeamish when it comes to the question of how much suffering is a worthy exchange for the greater liberty he envisions. "I do not consider reducing poverty the top priority of a civilized society," Murray says. " Protecting human freedom is." Again, this is an acceptable goal; but Murray has just described a transaction (trading some amount of security for some amount of liberty) without describing the cost. Aren't we entitled to know the cost in order to make the decision?

Murray also skirts the issue in his discussion of health insurance. While acknowledging that this is an area where reasonable people may differ--some almost-libertarians want to reform but not end government involvement in health care--Murray concludes that "[o]n balance...we would be better off if the government stayed out of the health care business altogether."

What about the people who are left out? Who don't or perhaps cannot buy catastrophic health insurance? Who don't have enough money to pay even for routine medical care?

He has asked the right question, but provides no answer. We really neede to know two things: How many of them are there? And how many will die or become extremely ill if we get government out of the health care business? Virtually every type of government decision makes someone happier and someone else unhappier; but health care falls more than most into the category of decisions that literally mean life or death for someone. So, once again, in order to determine that the net gain is worth it, don't I first need to know the cost in lives?

By the way, we need this data irrespective of the wisdom of the decision we are considering reversing. Let's look for a second at rent control/rent stabilization in New York City. On the one hand, I have benefited from living in rent stabilized apartments (I do not live in one now). On the other hand, I would never wish to be a landlord in New York City, because of the stifling regulations you have to deal with. So let's assume for a moment that the whole program, instituted during World War II, was a gross mistake. Nevertheless, we went ahead and made it. Before correcting it, shouldn't we know how many people we will make homeless? Presumably, there are some. Most rent stabilized tenants will pay higher prices, or find cheaper housing elsewhere, even if it means leaving New York. But some number will live on the streets. In figuring out how to right the wrong imposed on landlords, shouldn't we nevertheless know if we are going to render just one person homeless, or one million?

Murray doesn't answer his own question about the costs of ending government involvement in health care. Instead, he tells us that without government, doctors are more charitable, and will pick up some number of the uninsured at reduced fees. Some, but how many? Don't we need to know? Or wouldn't it be more honest to say "Unregulated is better, and whatever losses are needed in order to get there are acceptable"?

Libertarianism, Compassion and Race

I will never stop arguing that certain actions must be taken based on compassion, even if they cannot be logically justified; logic untempered by compassion is no more human than compassion unaltered by logic. Libertarianism, as a belief system, is completely logical but rather horrifying in its premise that laws against racial discrimination are an interference in individual liberty. If I open a coffee shop, the Libertarian argument goes, I should be completely free to decide who enters my property. If I have this right, then I am free to exclude black people. Libertarians like to add that I would be stupid to make such a decision, as the restaurant next door, serving a larger and more diverse clientele, will probably be more profitable.

In analyzing such laws, we might distinguish, as Libertarians do not, between laws which level the playing field (you must serve anyone who enters) and laws which promote particular groups (you must hire at least ten percent black waiters). Many people who support the former oppose the latter.

Perfect consistency can lead to perfectly horrifying systems; there is an argument that it always does. The Cambodian killing fields were a completely logical place, as long as you accept the basic premise.

Human systems are a composite of logic, custom, common sense and (one hopes) compassion. We have lived with it for more than two hundred years, so it may seem natural in retrospect, but there is nothing simple and logical about our system of senators and representatives, our three divisions of government,or the respective powers of each. It is a human system, cobbled together with a little logic and a lot of instinct, and some compassion for the minority whose rights were protected by the prohibition of an establishment of religion. We are not called upon to justify the details of every disposition we make; we can live with inconsistencies where grand goals are served, and have always done so.

For example, Professor Catharine Mackinnon calls attention to a fundamental conflict between the First Amendment and the Fifth: the latter promotes equality, and the former is construed to protect speech that denies equality. She points out that equality trumps speech in the marketplace (I cannot pin up a Playboy centerfold over my cubicle for fear of offending a coworker) while speech trumps equality everywhere else (I can sell all the Playboy magazines I want in my candy store or keep them in my home, though it offends the sensibility of my peers).

The answer is that we are not called upon to reconcile all clashing schemes on the most detailed level, where greater goals are served. In the example which concerns Mackinnon, society has decided that equality of opportunity in the marketplace appropriately trumps the right to free speech there, but nowhere else.

Libertarians would agree that the employer has a right to ban such speech--under the libertarian scheme , I can require my workers to be all white or all male, or to declare Tuesday to be Wednesday, or wear their underwear on the outside, to steal a page from Woody Allen. If they don't want to do so, let them find another job; and if I am too restrictive or crazy, I won't be able to find workers.

So, according to libertarians, the state is not really infringing the worker's right to the centerfold, since the worker has no right to do anything in the workplace the employer disapproves. It is appropriating only the right of the employer to permit the employee to post the centerfold. It is acting in the employers' stead, making the rule that society expects the employer to make. Certainly this is a restriction on his freedom of action, as is a law saying he cannot beat his workers. But, up until now, libertarians have been arguing Millian liberty, that we should all be free to do whatever does not harm anyone else. Here, they seem to be crossing over into an absolute freedom based on property rights whichincludes a qualified right to harm others in the use of one's own property.

Libertarians are here on the horns of the dilemma I described above. One consistent and realistic, if repugnant, position would be, "Freedom of association is everything, and it trumps equality, no matter what the consequences." But libertarians always seem to draw back from those last five words. Instead, they resort to the good hearts of private humans, and claim that we will reach the same goal of equality faster, better and cheaper by leaving people to their own devices. Murray points out that antidicrimination laws were not needed to allow Irish and Jews access to opportunity and social status in the earlier years of this century.

I am an employer. I do not wish to be forced to hire anyone who cannot do the job--nor do I feel that I am forced to do so by current law. I do not want or need the right to post a sign on my door saying that no blacks need apply. I myself, as a Jew, could not feel equal in a society in which a store could post a sign saying "No Jews or dogs permitted." I feel perfectly equal in a society in which someone can publish a book saying that "No Jews or dogs should be permitted." The latter is speech, but the placard banning me from a store is action. I had the experience once of living in a neighborhood in Paris where I couldn't get my hair cut. One barber told me he was booked for the rest of the week, while another across the street simply let me sit in his shop for an hour, while he took customers who had come in after me. I believe this was action, not speech. A libertarian would say that the barber's property right extends to refusing to cut the hair of anyone for any reason. Note, however, that the employer uses public goods--the air, municipal water, police, garbage collection. If he has property rights enabling him to deny service to anyone, why is it so much different if the government denies him service based on his failure to comply with certain rules? He can always move elsewhere.

If hate was pervasive, individual property rights could be used (and have been used, at certain times and places in thsi country) to deny an entire group access to the free market entirely--no access to credit, no ability to rent a storefront or to buy goods from anyone, or even groceries for one's family. I think the true test of the libertarian scheme is whether an impoverished but talented individual from a disfavored group could get a start in it. If the rest of the individuals could legally band together to starve him to death, as they could do under the libertarian theory of property rights, we have gone far beyond Mill's theory of liberty, to a monstrous selfishness, a tyranny of the individual over society.

Laws against racial discrimination are effectively an action of the heart. They are legal under our constitution, they are morally right, and they constitute one of the infringements on perfect personal liberty that I am happy to see. This is one of those areas where I do not believe the free market would ever solve the problem.

Conclusion

I have painted myself into a corner: big government doesn't work, and though the free market is the perfect solution to problems of supply and demand, there are certain areas of human aspiration which are best served by commons, common interests, common actions. Therefore, there are certain zones in which the free market is just as inept as big government. All of which is another way of saying that humans are inept at managing their destiny--a proposition for which I see significant evidence every time I read a newspaper, take a subway, or have a conversation.

So, should we give up? No; we can, motivated by the foolish but sustaining optimism that has always kept us alive, realistically work for the best accomodation of bad systems--hoping that the whole will be greater than the sum of its parts, as it is with the best of human endeavors. Let's use the free market where possible, and government where necessary.

When I paddle my kayak in Hither Hills State Park in Montauk, I'm glad it belongs to all of us.