An objection to libertarianism that comes up with surprising frequency is the question of roads and other infrastructure. Specifically, that without the use of state coercion, these vital projects won’t get built, and we’ll all suffer immensely. It’s a critique that is easy to dismiss: Okay, the state will supply military defense, law enforcement, and roads; deal?
But that’s a bit too quick. If a libertarian polity can only supply infrastructure by violating its own core principles, that’s a serious problem. Fortunately, this is not so. I briefly address this critique at the end of Chapter 4 of my Nozick’s Libertarian Project, which is excerpted below. In retrospect, I probably should have referenced here not only the potential “moral catastrophe” limitation of property rights (based on value pluralism), but also the restrictions imposed by Nozick’s adaptation of the Lockean proviso.
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We will touch on one final topic before concluding our defense of the minimal state. As mentioned at the beginning of this chapter, Nozick skirts the question of whether the role of minimal state could permissibly be expanded to include such additional functions as environmental regulation, infrastructure construction and public health (enforcing mass vaccinations and the like), etc. As will be seen momentarily, he had good reason to steer clear of this difficult issue.
This debate is usually framed in terms of whether it is “necessary” for the state to perform the functions referenced above. But since those posing this question are implicitly assuming that the state is “necessary” if its absence would cause a substantial drop-off in overall societal welfare, this approach presupposes the soundness of consequentialism. Thus, from the natural rights libertarian perspective, this is the wrong question. Just as we rejected a hypothetical policy of state-compelled organ transplants, even if such a program would save lives, we should on these same principles reject state compulsion even if this result does not maximize utility.
In place of this consequentialist analysis, we defended above a libertarian principle of fairness that would justify state coercion only in support of those state functions necessary to secure our rational agency. However, we cannot exclude the possibility that this principle will saddle us with gross inefficiencies or serious hardships. For example, it is often claimed that without the benefit of the state’s power of eminent domain it will be prohibitively expensive to build roads of other infrastructure projects because of the problem of holdouts.[1] In other words, the owners of key parcels of land will either refuse to sell at any price because they sincerely prefer owning their land to any amount of money or will demand exorbitant sums because they recognize that they have a chokehold over a project of great economic value.
A number of libertarian economists have argued that there are free market solutions to this difficulty and that the magnitude of the problem, if any, has been greatly exaggerated.[2] Still, there is simply no way to adjudicate this dispute in advance of solid evidence, which unfortunately will be unavailable until the state gets out of the eminent domain business. Accordingly, as acknowledged above, it is at least theoretically possible that adherence to libertarian principles might impose serious hardships on the citizenry in various ways. At some point, such deprivations will amount to the sort of “moral catastrophe” that Nozick cites as a possible exception to the inviolability of rights. As argued in Chapter 6, natural rights libertarians can, consistently with their core principles, accommodate such cases.
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[1] See, e.g., Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain, (Cambridge, MA: Harvard University Press, 1985), 334-38; and Richard Posner, Economic Analysis of the Law. 2nd. ed. (Boston: Little Brown, 1977), 40-41.
[2] See, e.g., Bruce L. Benson, “The Mythology of Holdout as a Justification for Eminent Domain and Public Provision of Roads.” The Independent Review, vol. 10, no. 2 (2005): 165-94.
