Lindsey’s Epic Fail, Part II

Righting Past Wrongs. Lindsey next takes NRL to task for being indeterminate with respect to the rectification of past injustices. More specifically, he rightly observes that current property holdings are shaped by grave injustices committed against Native Americans, and by wars, slavery, etc. He then erroneously asserts that “radical libertarians today [who shall go unnamed] generally hold that the government should affirm and protect the current pattern of property holdings and that any redistribution of property by government is illegitimate.” Then, he asks, “What gives?”

Well, for one thing, the predicate to his rhetorical question is plainly false with respect to identifiable property. NRL advocates agree on the stringency of property rights, and theft obviously violates them. There is a legal adage that “one cannot take good title from a thief,” which implies that absent unusual circumstances the courts will return identifiable stolen items to their rightful owner even against the claims of an innocent purchaser. The underlying moral logic of this doctrine is that the latter have the opportunity to protect themselves by examining the provenance of the item and/or demanding a guaranty of good title from the seller. Lindsey gives us no reason at all to believe that so-called radical libertarians reject this legal principle.

Furthermore, he presents no grounds for concluding that we reject, as a matter of justice, broad programs of rectification under appropriate circumstances. Meaning, compensation for the victims of past discrimination by the state, provided that it is carefully tailored to assist the victims and to not punish the innocent.[i] Thus, if there were some magical way of identifying the beneficiaries of Jim Crow (now mostly dead), measuring the amount of their ill-gotten gains, and then seizing and redistributing them to the victims, “radical” libertarians would favor it.

But of course there is not, and any effort to do so by means (say) of general taxation will punish many people having nothing to do with this horrible injustice, and bestow a windfall on many who did not suffer from it. For this same reason, we oppose affirmative action and government quotas and set asides.[ii] There is nothing arbitrary or indeterminate in this position.

Lindsey’s failure to understand NRL’s firm commitment to the rights of innocent persons also leads him to conclude erroneously that we have no principled basis for rejecting the severely egalitarian proposal made by Loren Lomasky in his paper “Libertarianism at Twin Harvard.” There, Lomasky argues that in light of our sordid and extended history of rights violations, adequate rectification is impossible and “there is nothing for the entitlement theorist to do other than throw up her hands and admit that Humpty Dumpty is not to be put back together again.” Therefore, he continues, we must “institute a complete redistribution of property so that all begin the new [libertarian] order with equal holdings.”

However, there is an obvious NRL rejoinder that sadly escapes Lindsey’s grasp; that is, property titles need not be pristine in order to be morally defensible. In our society, the vast bulk of property is owned by persons who purchased it in consensual transactions, without actual or constructive notice of any better claim. As a result, they have legitimate expectation interests in the continuity of their ownership, and a superior right to their holdings relative to the inchoate claims of random third parties. Accordingly, implementation of Lomasky’s proposal would constitute a far greater injustice than honoring the status quo. Here again, even if Lindsey does not like this answer, there is nothing indeterminate about it.

Before leaving this topic, it is worth noting again Lindsey’s refusal to engage in any comparative analysis. Rectification is a thorny problem. As may already be apparent, any satisfactory proposal must both take into account a range of practical difficulties and balance a number of competing moral considerations.[iii] It is fair to say that no widely accepted theory is now on offer. So, it is facile of him to object to NRL as indeterminate, when the same complaint could be lodged against all of its plausible competitors. Thus, Lindsey fails to show that rectification represents any special problem for NRL.

Necessity and Redistribution. Lindsey’s penultimate example of the indeterminacy of NRL is respect to the needs of those in dire poverty. He claims that radical libertarians own principles may force them to accept the “welfare state” either because (i) “the poor’s freedom to secure basic sustenance…trumps others’ property rights at the margin” or (ii) in order to discourage the downtrodden masses from reaching for their torches and pitchforks, “some kind of welfare state may be an indispensable part of keeping property rights as secure as possible.”

With respect to Lindsey’s first claim, Lindsey bizarrely conflates a positive right to the necessities of life with the welfare state. The latter obviously refers to a much more elaborate and generous set of social benefits, purchased at the cost of much wider coercion, than the former. Had Lindsey made even a casual inquiry into the ethical foundations of natural rights theory, it would have been clear to him why many libertarian thinkers accept, if voluntary methods fail, taxpayer funded aid to the innocent needy, while adamantly rejecting the welfare state.

Since I have written about this extensively elsewhere,[iv] I will not go into detail here, but Nozick would endorse assistance to the poor if the terms of his “Lockean proviso” have not been satisfied. He understands that just title to our current holdings is conditioned on the institution of private property not violating people’s natural right of self-preservation. However, for able-bodied adults, this means that relief would be limited to getting the needy “back on their feet,” and would not take the form of a permanent stipend.

Moreover, those in dire need as a result of their own irresponsibility would not have an enforceable claim for relief, since their plight is not the fault of capitalism. There is no warrant here for massive entitlement programs, Obamacare, government educational monopolies, and the other trappings of the welfare state.

The fact that Nozick accepts the possibility of state-sponsored relief for the innocent needy is, in my judgment, a feature and not a bug of his philosophy. It flows organically from his account of how property may justly be acquired in the first instance.[v] Lindsey utterly fails to show that this doctrine is indeterminate or, incredibly, leaves room for the welfare state.

The second prong of his attack repeats the elementary mistake, made in connection with of his discussion of “rationalism versus pluralism,” of demanding that theories of justice perform functions properly assigned to political programs. As previously articulated, the former can only identify our ultimate aims, while the latter reveal how, in a democracy, to get as close to these as possible, given existing popular opinion. Accordingly, while Lindsey may be correct that, “It is…entirely plausible to understand redistribution as rights protection,” this would be purely a practical, empirical judgment, and hardly renders NRL indeterminate as a political philosophy.

The Outside World. Lindsey’s final indictment of NRL centers on its alleged inability to enunciate an orthodox strategy for “national defense” and a definite answer to “the question of immigration.” The first “dilemma” involves the claimed inability of NRL to formulate a policy that resolves the dual dangers to liberty presented by “hostile foreign governments” and by the potential Leviathan created by “a standing army, alliances, or forward placement of troops in buffer states.” The second rests on the perceived conflict between NRL’s commitment to universal natural rights, including migration, and the need to maintain the sort of domestic political consensus required to support libertarian goals.

These claims are easily disposed of. The proper scale of military spending and the formulation of the best defense strategy cannot be settled by any appeal to theories of justice, but are properly the subject of the empirical and theoretical disciplines– historical research, economics, game theory, institutional analysis, and so–that constitute the field of international relations. Accordingly, you cannot impugn NRL for its failure to magically perform the tasks assigned to the social sciences.

This would have been glaringly obvious to Lindsey had he bothered to engage in comparative analysis. From what I gather, he considers himself to be a classical liberal of some sort (see “Conclusion”). What brilliant and definite solution to the problem of national defense is provided by his favored doctrine (or for that matter, various egalitarian-minded theories of justice)? The answer: “crickets.”

The second impasse Lindsey imagines stems from his uncritical assumption that “all human beings possess natural rights, and among them is the right to live wherever you choose.” Well, if that’s true, and it’s also the case that illiberal hordes will move here, then it might well spell the end of any hope, at least temporarily, for a libertarian polity. But this doesn’t discredit NRL as a political philosophy, it simply means that we must educate the new arrivals to its virtues.

However, of equal importance, it is not true that NRL proponents are committed to a policy of open borders if this would destroy the rule of law here. The only morally legitimate function of the minimal state is to protect the libertarian rights of its citizens beyond what they could achieve on a purely consensual basis. As argued in some depth here, this applies to the negative political externalities that might be caused by unlimited immigration.

As Lindsey’s intellectual train-wreck is pulled off the tracks, he leaves us with a bit of unintentional humor. There is, he says, no convincing evidence that “a complete elimination of preventive regulation and tax-financed redistribution would improve welfare.” In fact, he declares, there is “plentiful evidence” to the contrary, so in moving “from classical liberalism to radical libertarianism, the quality of the consequentialist argument declines.” Then (as noted earlier), he offers us some sage advice: undertake the “more constructive task of making the world we actually inhabit a better place.”

It’s a howler because defenders of NRL stand firmly against consequentialism as usually conceptualized. The whole point of having a moral right, is that it need not be defended on utilitarian grounds. The moronic bigot spewing misinformation is still entitled to freedom of speech. So, Lindsey is attempting to pay off rights-based libertarians with counterfeit money.

Equally risible is his view that his readers will benefit from being urged to make the world a better place. That little bon mot is not exactly self-explanatory. In fact, it’s downright indeterminate. From the context, Lindsey seems to have improvements in welfare in mind, but surely that too is in the eye of the beholder. What philosophy is Lindsey pushing?

For example, suppose (counter-factually I believe) it turns out that a $15/hour national minimum wage improves (material) welfare overall, because most workers now receiving less than the minimum keep their jobs, and thereby benefit. However, a relatively small number of low-skilled workers lose or don’t obtain employment, and are more seriously harmed. Whose welfare should be promoted in this case?

Furthermore, enforcement of a minimum wage obviously requires the widespread coercion of employers by the state in the name of the “greater good.” If this form of coercion is permissible, where do we draw the line? I don’t see how simple appeals to “welfare” are helpful in resolving this or a large variety of other important questions.

In stark contrast, natural rights libertarians condemn the use of political force other than to prevent violence or fraud, and defend the right of competent adults to enter into such agreements as they please. Thus, we firmly oppose not just the minimum wage, but all similar social engineering projects. That’s the sort of guidance we ask of political philosophy. So, sorry Brink Lindsey, but we already are working to make the world a better place, and we actually have some idea what that means: a world that respects personal autonomy and individual rights.

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[i] For a discussion of the real-world difficulties in effecting rectification, see my Libertarian Philosophy in the Real World: The Politics of Natural Rights (London: Bloomsbury, 2014), pp. 19-20 and notes thereto.

[ii] See my blog post on this site, “Affirmative Action: Don’t Amend It, End It.”

[iii] This complexity is on display in David Lyons, “The New Indian Claims and Original Rights to Land,” in Reading Nozick: Essays on “Anarchy, State, and Utopia” (Oxford: Basil Blackwell, 1982), pp. 355-79.

[iv] See Nozick’s Libertarian Project: An Elaboration and Defense (London: Continuum, 2011), pp. 130-33 and 137-41..

[v] Much less cogently to my mind, Rand seems to contemplate some form of state assistance for the truly helpless based on an analogy to conduct in “emergency” situations. See Neera K. Badhwar and Roderick T. Long, “Ayn Rand,” sec. 2.5 in the Stanford Encyclopedia of Philosophy.

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