Libertarian Theory in a Non-Libertarian World

I wish to discuss a problem I have encountered in prescriptively applying libertarian theory to real world situations.  I believe that this difficulty is not idiosyncratic, and that other theorists have encountered the same issue, but I cannot find much discussion of it in the literature. I am referring to common situations, such as those covered by motorcycle helmet laws, where it is impossible (in practice) to realize the
libertarian ideal because our laws do not (and most probably never will)
require individuals to assume full responsibility for their free choices.

So, to use this particular example, under the principles of rights-based libertarianism motorcyclists have a clear moral right to ride without helmets, provided they accept the consequences. This implies that if helmetless riders have an accident, the incremental cost (the issue here) of medical care caused by their decision should not be borne (absent consent) by anyone other than the rider. And, if the rider cannot pay for it and does not receive it as a voluntary gift from others, it should not be provided. However, this will in all probability never be the case in our society.

Uninsured helmetless cyclists will not be left to die by the side of the road. They will receive treatment at the ER without regard to their ability to pay, and long-term care will be provided by Medicare or Medicaid on the same basis. It is at least in part the concern about such negative externalities that motivates our helmet laws.  But these laws plainly violate the rights of
many if not most helmetless riders, i.e. those who have the ability to pay and those who never get into an accident involving an avoidable head injury. On this basis, helmet laws plainly seem to offend libertarian principles.

On the other hand, libertarians are equally committed to the view that it is wrong for the state to tax A for the benefit of B (except possibly to prevent a moral catastrophe).  Since the rest of society is, in the absence of helmet laws, forced to subsidize helmetless riders who suffer avoidable head trauma, I believe this situation to be governed by the standard
“non-consensual taxation is on a par with forced labor” libertarian analysis.
Thus, helmet laws may be regarded as necessary to vindicate the property rights of those who object to paying taxes to finance the healthcare of crash-prone helmetless cyclists.

Accordingly, there seems to be no acceptable solution to helmetless motorcycle riding that is consistent with libertarianism. What to do? One possibility is abandon any attempt to move beyond ideal theory, and concede that we are powerless to make recommendations in messy real world situations such as the one described above. However, this seems highly counterintuitive, since the “theory of the second best” is a well-established approach in political philosophy generally, and there is no apparent reason why libertarianism should not also be able to employ it.

Another approach is to attempt to rank or prioritize the rights involved, but this definitely cuts against the libertarian grain, since as a general matter we emphatically reject the claim that some rights, e.g. economic ones, may be assigned an inferior status relative to others, e.g. political and social rights. Finally, there is the approach I tentatively endorse, which is the application of consequentialist analysis in cases of this sort. This would involve assigning a monetary value to the incremental pleasure experienced by motorcycle riders in going sans helmet and weighing this against the incremental non-reimbursed healthcare costs created by riders who do so.

The resort to this approach is arguably justified as an analog to Taurek number-type cases, where most deontologists accept the moral judgment that we should save the greatest number.  Of course cases of that
sort turn on the fact that no rights claims apply, and thus we are free to use
utilitarian calculations. With respect to helmet laws, both sides make valid
rights claims, but both sets of examples involve situations in which it is
impossible to devise a non-arbitrary rights-based outcome. I would welcome any brilliant or even not-so-brilliant thoughts on this subject.

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16 Responses to Libertarian Theory in a Non-Libertarian World

  1. Simon says:

    The thrust here seems to be that the treatment costs of uninsured helmetless riders will be paid via taxation – i.e. by a coercive property infringement. This can be seen as an assumption in the argument, if you like. If this is the case, it seems unlikely that there could be a satisfactory libertarian solution to the issue of whether or not helmetless riding should be permitted. If it is permitted, a liberty infraction occurs. If it is not permitted a liberty infraction – albeit a different one – occurs. This dead end is not an indictment of libertarian theory – it is an acknowledgement that individual freedom is inconsistent with coercion, which seems quite tautologous.

    You then suggest a possible escape via second best theory. And yes, quite possibly we would accept the second best as the lesser evil when compared with the third best etc. But presumably the identification of the second best will require an evaluation of the empirical data in any particular case and thus not be the appropriate subject of an a priori analysis.

    I suppose that, to sum up, I don’t really see this as much of a philosophical problem. We should just accept that, when our theory has been subverted, it will not necessarily be amenable to providing ideal solutions. (I feel sure I am missing something here – my response appears too easy – but I’m not quite sure just what I am missing.)

    • Mark Friedman says:

      Simon,
      First, thanks for the thoughtful comment. Second, I don’t disagree with you, and as far as I can tell you haven’t missed anything. My post just reflects the fact that I am a little uncomfortable with the idea that in certain cases of “second best” outcomes I should end up resorting to utilitarian analysis.

      I don’t see any specific argument why libertarians can’t do so, or why it should undermine our theory is some fatal way, but it just seems a little weird that our theory in non-ideal cases might have to resort to a different and generally hostile doctrine. I have a hard time imagining an analogous example where an act utilitarian says something like, “stop, my analysis is indeterminate, so I better check to see if any rights are being violated.” But, of course, this theory has its own distinct set of problems.

      Also, I am made a little uneasy by the fact that while the literature has a lot to say about non-ideal theory in general, I haven’t seen much discussion of the specific approach I have suggested. In any case, it is nice to hear that you think this idea is not completely mad.

      • Simon says:

        Mark – yes, I understand the worry about the undesirability of resorting to a utility-based analysis when a second-best approach is needed, whilst rejecting this for the best approach. One might have hoped, other things being equal, that a self-ownership angle would be applicable in the second best arena as well. However, the fact that one is in the second-best arena precisely because this s-o approach has been rejected might seem to suggest that this hope will be misguided. Another thought is this. What if a rights-based analysis showed that two options were permissible under such an approach. Would one then be justified in going for one rather than another based on utility considerations? It seems that one might (I think we often do this in real life) and this seems, to an extent, the mirror image of your case. I don’t know if you have come across Dr Mark Pennington at all. He is a professor at Queen Mary College in London. He has recently published a book in the Classical Liberal tradition entitled “Robust Political Economy”. I recently heard him speak, giving a justification for a libertarian approach based on non-ideal theory. You can find his contact details on the QMC website, if interested. He is quite happy to enter into a dialog – at least he was with me!

        • Mark Friedman says:

          Simon,
          Thanks for the reference to Dr. Pennington, and I may indeed wish to discuss this issue with him. I have heard of him and his new book, although I have never had the pleasure of communicating with him. From what you say, he and I may be thinking along similar lines.

          In my book, I respond to Peter Railton’s well-known critique of natural rights libertarianism to the effect that it cannot resolve cases involving the non-consensual imposition of risk. For example, A wants to do something on his property that presents a serious risk to his neighbor B and his property. A says, “its my property and I can do what I want on it.” If what A wants to do is unduly risky (Railton’s example = build an unsafe nuclear reactor) and if his claim is right, then it makes libertarianism appear implausible.

          I argue that B has a right not to be exposed to a higher level of non-consensual risk (measured by cost-benefit analysis) than is accepted in that community for the sort of activity that A wishes to conduct. However, here we are analyzing how to define or shape a right so as to avoid a conflict, whereas in my motorcycle helmet case we are dealing with a situation where we know that rights will inevitably be violated, and we are deciding which violation is least bad. Hopefully, the general principle is the same.

          • Simon says:

            Mark – I agree that B has a right not to be exposed to A’s risky activities in this way. It is interesting that your thoughts lead you to a kind of conventional approach – i.e. something accepted in the community in question. I also believe that something like this is required in the establishment of property rights in general. Thus, a Lockean approach seems to get us only so far in terms of the precise extent of property rights and fails to deal with certain unusual situations. It tells us that we should accept that ‘mixing of labour’ (I put this is scare quotes, because I believe something somewhat different underlies the approach) provides a basis for such rights, but fails to answer all the questions we may have on the extent of such rights. I am currently working on how we might meld a modified Lockean approach with a conventional account to deal with unanswered issues – primarily by reference to David Hume’s thoughts on the subject

          • Mark Friedman says:

            Simon,
            It sounds like you have an interesting approach. If you get something on this subject published, please send me a link.

  2. Mike Mooney says:

    There’s essentially a “right to be stupid,” as it were (to not use a seatbelt, for example) as a right to be improvident affects only oneself; whereas driving highly recklessly would impinge others and their rights, it would put others at risk.

    There’s probably ultimately even a right to suicide, as well. (Even if the decision-making involved were influenced by very depressed mood.) MM

    • Mark Friedman says:

      Mike,
      In principle I agree with your statements. The problem is that in the real world the facts get messy, so that in your example if the motorist w/o a seatbelt is uninsured or underinsured and has an accident with huge costs resulting from his decision, he will not bear the consequences, but will dump the costs on others.

  3. Mike Mooney says:

    You know, only the other day, I was stopped while my insurance had lapsed, and boy did I get fined. What was going to be my tennis club money became my payment to the town court.

    Another question: With regard to suicide, in principle a person would have a right to decide to die, but people close to that person would have an interest in saying, “Look, he’s making a bad decision, he’s using poor judgement, his thinking is colored by depressed mood. and disordered cognitions.” If the person were a disturbed adolescent, his parents would be quite determined to “save” him from a bad choice of actions. If the person were an elderly person, suffering with illness, depending on the circumstances, relatives might wish to help him make a painless exit from the stage.

    • Mark Friedman says:

      Mike,
      The suicide issue is thorny, particularly when we attempt to apply it in real world scenarios. As far as I am concerned, libertarianism is a political theory and thus does not need to (and is not equipped to) provide neat answers to all philosophical issues, like abortion, assisted suicide, etc.

      • Mike Mooney says:

        Many libertarians would say suicide is a right — a right of self-disposal, if you will, consonant with self-ownership — while not always a wise choice of action.

        Also, I think they would say there is a right to assist a suicide.

        Abortion is a woman’s right to regulate her own reproduction, it’s not up to others.

        • Mark Friedman says:

          Mike,
          I’m not interested in turning this thread into a debate about hot-button social issues, so I’ll just say this. If you believe that women should have the unfettered discretion (i.e. on a whim) to terminate a full-term, healthy fetus the day before her expected delivery date, then your moral intuitions are simply a lot different than mine, and I suspect most other libertarians as well. If you don’t hold this view, then the issue is much more complicated than your comment seems to appreciate.

          • Mike Mooney says:

            Yeah, I would say, If a woman felt she would prefer an abortion to pregnancy, she’d probably be wishing to have that procedure quite early on.

  4. Mike Mooney says:

    By the way, President Obama wants to require us to be insured so that we don’t spill our health emergency costs onto the health-care system (“negative externalities,” as you might express it.)

    So, is the President (with his Democratic supporters) just being real-world, pragmatic, and dealing with the facts of social science — or is he being an evil “Obammunist”?

    ~ Mike Mooney
    (I’m sure I have some idea of where you come down on that one.)

    • Mark Friedman says:

      Mike,
      You’re right about Obama’s reasoning for compulsory health insurance, but just to be clear I do not support governmental coercion every time there are negative spillover costs. These consequences would have to be very severe to justify the coercion involved in mandating health insurance for those who can do without it. As noted in the post, I don’t claim to have thought this issue all the way through.

  5. Mark Friedman says:

    Dr. Mark Pennington, author of the recently puiblished and well-received book, “Robust Political Economy: Classical Liberalism and the Future of Public Policy,” was kind enough to point out to me a way to resolve my example that I had missed. That is, the owner of the property (roads) on which the activity in question occurs (motorcycle riding) has the right to establish the terms and conditions of use.

    In an ideal libertarian world, the roads would be privately owned, and the owner would set the terms to maximize profits, which can be achieved by honoring the preferences of its customers. In the real world, the roads were constructed by tax dollars, and thus the taxpayers “own” them in some collective fashion. Thus, the voters, acting through the federal and state governments, have the right to call the tune. It is not an ideal arrangement because (i) the voters are not all taxpayers and (ii) in any case, do not directly make this decision, but only indirectly through their elected representatives, but this is still probably a more defensible way to resolve this issue than my suggestion.

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