Liberty versus libertarianism

Introduction

This article aims to persuade its reader that libertarianism, at least in several of its varieties, is a species of the genus that Michael Oakeshott referred to as ‘rationalism in politics’. I hope to demonstrate, employing the work of Oakeshott as well as Aristotle and Onora O’Neill, how many libertarian theorists, who generally have a sincere and admirable commitment to personal liberty, have been led astray by the rationalist promise that we might be able to approach deductive certainty concerning the ‘correctness’ of some political programme. Of course, libertarians, in common with the adherents of almost any other political ‘stance’, are not a monolithic body, but exhibit a variety of more or less rationalist arguments for their views. For example, a thinker such as Hayek, who is often placed in the libertarian camp, came to adopt much of Oakeshott’s critique of rationalism in his later work. ¹ In addition, of course, Oakeshott (1991) himself expressed an affinity for libertarian ideas in his essay ‘The Political Economy of Freedom’ (originally published in 1962). But a general predilection to enhance individual freedom as far as is deemed practicable is quite a different matter from taking a stance in which liberty, and liberty conceived in a rather narrow fashion, is the only value deemed admissible to ‘reasonable’ political discourse. (We will see in a subsequent section that Oakeshott recognized this urge to sanctify one value above all others as a logical requirement of striving for deductive political truths.) I believe that a critique of such libertarian rationalism is particularly relevant given the present situation in the USA vis-a-vis civil rights and the ongoing ‘war on terror’, in that many non-libertarian supporters of peace and strong civil rights find themselves allied with libertarians on these issues – if libertarians have got these issues ‘correct’, then how might they have gone wrong elsewhere? Furthermore, the critique may aid libertarians themselves, because, if the title of this article is accurate, such a single-minded exaltation of one value above all others is an enemy of true liberty, so that libertarians might want to rethink adopting such a position. As Philip Pettit (1997) demonstrates, freedom as non-domination is more robust and inclusive of all that we value about freedom than is the libertarian concept of freedom as non-interference; by allowing, say, immense economic power to be concentrated in a single corporation, as intervention to break the company up would violate the principle of non-interference, libertarian ideas may greatly diminish the liberty of the people subject to that corporate power. Of course, the roots of this idea are not new: Adam Smith (1904) famously argued that ‘People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.’

The gist of Oakeshott’s critique of rationalism has been described, of course, in his own essays on the topic, as well as having been ably depicted by commentators on his work. ² Therefore, I will not review the basic concepts Oakeshott employs here, except to summarize briefly his view asserting that abstract theory is the child, rather than the parent, of practice. It is only from some form of concrete activity that we are able to extract theories of that activity, and those abstractions are never more than loose guides to how to proceed skilfully in the activity in question. As MacIntyre (1988: 31) wrote:

What can never be done is to reduce what has had to be learned in order to excel at such a type of [concrete] activity to the application of rules. There will of course at any particular stage in the historical development of such a form of activity be a stock of maxims which are used to characterize what is taken at that stage to be the best practice so far. But knowing how to apply these maxims is itself a capacity which cannot be specified by further rules, and the greatest achievements in each area at each stage always exhibit a freedom to violate the present established maxims, so that achievement proceeds both by rule-keeping and by rule-breaking. And there are never any rules to prescribe when it is the one rather than the other that we must do if we are to pursue excellence.

However, I feel it may prove useful to discuss some affinities in Oakeshott’s thought to Aristotle and to Onora O’Neill, before proceeding to examine libertarian rationalism itself; thus, the next two sections of this article.

Oakeshott as successor of Aristotle on practice versus theory

Oakeshott opens his work On Human Conduct with a lengthy meditation on the nature of theorizing. As he concludes that section, he segues into the discussion of his view of the relationship of practice to theory by noting the debt his analysis of theorizing owes to Plato’s examination of the same topic, especially to the metaphor of the cave presented in The Republic. In light of the similarity of their views, Oakeshott continues, ‘it may be instructive to notice [our] divergences’ (1975: 27). Indeed it may.

As Oakeshott understands Plato, the latter’s cave-dwellers represent those individuals whose conceptual horizon is bound within the world of practical affairs. Plato was correct, in Oakeshott’s view, in holding that, because such individuals fail to recognize the intrinsically conditional nature of the practical understanding of reality, and instead mistakenly accept it as the only possible mode of comprehending experience, then however clever and adept they have become at dealing with the practical world, they have, in effect, imprisoned themselves within its confines (that is, within Plato’s cave). As Corey (2006: 39) wrote of Oakeshott’s understanding of the conditional nature of practical experience, ‘Nowhere in practice is there uninterrupted progress or final achievement … If human life were to consist wholly in engagement in practical affairs, then it would seem to be a depressing predicament.’ In addition, per Oakeshott, Plato also was accurate in regarding the understanding of the theorist, in that it at least recognizes those limitations, as being, in a sense, a higher form of knowledge than that gained by the solely practical thinker.

However, Oakeshott argues, ‘distracted by his exclusive concern with the engagement of theoretical understanding and with the manifest shortcomings of [the cave-dwellers’ world] … [Plato] is disposed to write [the latter] off as nescience. This, I think, is a mistake’ (1975: 27). That the practical understanding of the world is inherently limited does not imply that what it yields is not really knowledge at all; rather, the proper conclusion is that practical understanding offers only a conditional form of knowledge – but conditional knowledge is nevertheless knowledge, and not mere ignorance.

Moreover, quite crucially for Oakeshott, the abstract superiority of theoretical knowledge over its practical counterpart in no way means that the former can replace the latter in dealing with the practical world, which is, after all, precisely the conditional realm for which practical understanding is the appropriate mode of knowledge. While it is true that discovering that ‘a platform of understanding is conditional and to become acquainted with its proximate conditions is a notable step in the engagement of understanding’, such a discovery ‘is not like exposing a fraud [since] shadows are not forgeries’ (Oakeshott, 1975: 28).

Given that genuine knowledge of the realm of the shadows is a real and hard-won achievement, the ‘pure’ theorist goes gravely astray if he erroneously employs his theoretical insights as grounds for issuing directives to accomplished practitioners, ridiculously trying to ‘set them straight’ on matters with which the theorist has no familiarity. In this regard, Oakeshott (1975: 30) wryly notes:

The cave-dwellers, upon first encountering the theorist after his return to the world of the shadows [very well might be impressed] when he tells them that what they had always thought of as ‘a horse’ is not what they suppose it to be … but is, on the contrary, a modification of the attributes of God [and they will] applaud his performance even where they cannot quite follow it. [The cave-dwellers can appreciate the exotic pronouncements of the theorist, as long as he confines those pronouncements to their genuine field of applicability.] But if he were to tell them that, in virtue of his more profound understanding of the nature of horses, he is a more expert horse-man, horse-chandler, or stable boy than they (in their ignorance) could ever hope to be, and when it becomes clear that his new learning has lost him the ability to tell one end of a horse from the other … [then] before long the more perceptive of the cave-dwellers [will] begin to suspect that, after all, he [is] not an interesting theorist but a fuddled and pretentious ‘theoretician’ who should be sent on his travels again, or accommodated in a quiet home.

Let us now consider the similarity of Oakeshott’s critique of Plato to that of Aristotle’s. There is an interesting critical debate about the extent to which Aristotle ‘broke’ with Plato rather than merely continuing to develop his teacher’s thoughts in a direction in which they had already been moving. Alasdair MacIntyre, for instance, argues that many of Aristotle’s supposed disagreements with Plato are already implicit in the latter’s later work (see MacIntyre, 1988: 88–96). There is also a debate as to what extent Plato intended The Republic as a serious political proposal. But neither of those debates need concern us here; for our purposes, it is enough that Plato wrote a political tract that contains at least an element of rationalism, and that Aristotle criticized that position.

Unlike Plato, who, at least in The Republic, holds forth theoretical knowledge as the only form of real knowledge and denigrates practice as ‘nescience’ (as Oakeshott put it), Aristotle regards both theoretical and practical understanding as valid. The former is about universals and gives us necessary truths, while the latter has more to do with particulars than universals, and its truths are less certain: ‘Scientific knowledge is supposition about universals, things that are by necessity … Prudence [practical understanding], by contrast, is about human concerns, about things open to deliberation’ (Aristotle, 1999: 90–91). Furthermore, practical understanding is especially concerned with the concrete, rather than the abstract:

Nor is prudence about universals only. It must also acquire knowledge of particulars, since it is concerned with action and action is about particulars. That is why in other areas also some people who lack knowledge but have experience are better in action than others who have knowledge. (Aristotle, 1999: 92)

This difference in focus, Aristotle suggests (1999: 93), is made apparent in terms of the greater life experience required to become proficient at a practical versus a theoretical skill:

Indeed [to understand the difficulty and importance of experience] we might consider why a child can become accomplished in mathematics, but not in wisdom or natural science. Surely it is because mathematical objects are reached through abstraction, whereas in these other cases the principles are reached from experience. ³

The above, in fact, points to a good definition of what constitutes rationalism in politics: a rationalist tries, by creating an abstract world of political ‘principles’ (for example, the libertarian ‘nonaggression principle’), to make politics, a practical activity requiring experience for success, into a theoretical activity that even a bright child can become adept at through technical learning. As Oakeshott would have it, a rationalist ideology provides a ‘cheat sheet’ for those lacking political experience. However, Aristotle (1999: 93) contends, this creation of an ideology rests on a confusion:

It is apparent that prudence is not scientific knowledge; for, as we said, it concerns the last thing [that is, the particular], since this is what is achievable in action. Hence it is opposite to understanding. For understanding is about the [first] terms, [those] that have no account of them; but prudence is about the last thing, an object of perception, not of scientific knowledge.

By mistakenly equating political prudence with scientific knowledge, the rationalist has made a crippling error. Not that he can actually conduct politics as a sort of theoretical activity: in fact, he will again and again fall back upon disguised practical reasoning in forming his supposedly theoretical conclusions. Nevertheless, his mistake will have practical consequences; as Collingwood wrote, ‘A person may think he is a poached egg; that will not make him one: but it will affect his conduct, and for the worse’ (1924: 206). That is the same point Franco made when noting, in his explanation of why rationalist theory of politics is harmful despite a rationalist practice of politics being unachievable, that ‘an erroneous theory can have pernicious practical consequences’ (2004: 93).

Devereux’s commentary on the relation of theory to practice in Aristotle makes obvious the similarity between the Stagirite and Oakeshott on this topic. As Devereux contends, ‘Practical wisdom, as Aristotle understands it, is analogous not to medicine but to medical skill; it is practical both in aim and in efficacy, and it is self-sufficient in the same way as medical skill: the practically wise person has what he needs to achieve his aims’ (1986: 494). While abstractions can certainly enter helpfully into the deliberations of the skilled practitioner, they do so not as ‘laws’ or ‘theorems’, as they would in a theoretical discipline, but as rules of thumb:

Matters of health and conduct [and, by extension from conduct, politics as well] ‘have no fixity’, and therefore it would be futile to attempt to formulate precise statements about how we should act in various situations. One must speak ‘in outline’ and ‘not precisely’ … Such statements will at best be useful as rules of thumb; the experienced agent or doctor will be guided not so much by them as by his judgment of what is ‘appropriate to the occasion.’ (Devereux, 1986: 494–5)

So, the following is another formulation of rationalism that we might draw from Aristotle: the rationalist is someone who, lacking in experience, tries to turn such rules of thumb into unbreachable principles that will provide him with an unambiguous guide to proceeding in politics, compensating for his lack of experience in the area. Soon we will explore how this applies to several libertarian thinkers. But there is one more theoretical ‘way station’ we should pause at on our way to that encounter, which is Onora O’Neill’s discussion of abstraction and idealization.

O’Neill on abstraction versus idealization

O’Neill makes a distinction between abstraction simpliciter, which she finds ‘theoretically and practically unavoidable, and often ethically important’ (1996: 40), and idealization, which is a form of abstraction that ‘ascribes predicates – often seen as enhanced, “ideal” predicates – that are false of the case in hand, and so denies predicates that are true of that case’ (1996: 41). ⁴ She notes that ‘idealisations are … dangerous in practical reasoning, because it aims at guidance rather than explanation’. If the world fails to live up to the idealization being employed, ‘the world rather than the reasoning may be judged at fault’ (O’Neill, 1996: 42).

Boucher (2005: 93) has contended that

Oakeshott’s distinction between abridgement and abstraction may be illuminated by O’Neill’s more recent, but similar, distinction between abstraction and idealisation … What O’Neill calls idealisation, Oakeshott calls abridgement. Rationalists typically abridge a tradition to the point of caricature. The very features that O’Neill identifies in the post-Enlightenment as characteristic of idealisation are the features that Oakeshott identifies as characteristic of rationalism in politics.

The value of this comparison lies in the crucial distinction it highlights between the use a rationalist makes of his abstractions and the use made by someone such as Oakeshott, who is, after all, as critics have noted, dealing in abstractions such as ‘rationalism’ (see, for example, Vincent, 2004). The difference is that the rationalist, in a sense, believes his abstractions; that is, he forgets that they are partial views of reality and comes to think they have somehow captured its essence. His abstractions are thus turned into O’Neill’s idealizations, as he is led to deny, if not the very existence of the factors he is leaving out, then at least their relevance. When we turn our attention to libertarian rationalist thinkers we will note that their error generally lies not in what they choose to focus on, be it property rights, prosperity, utility, and so forth, but in their idealization of that chosen principle so that it holds a place of unique importance for judging political conduct, thereby denying the true relevance of all neglected considerations. Moreover, this idealization is not an accidental feature of the rationalist style; in the attempt to employ guidelines of practical reasoning, not as the rules of thumb they really are, but as the axioms of a deductive system, Oakeshott (1991: 84) has pointed out that it is necessary to idealize one such principle until it achieves the status of master axiom, to avoid being thrust back into the world of contingency by ‘diverse and potentially conflicting axioms’. (Conflicting axioms risk making all too obvious the practical, non-deductive nature of the judgement that must be made.)

However, I think it is also important not to push this analogy between Oakeshott’s and O’Neill’s distinctions too far. For many of the British idealist thinkers in general and, by inheritance, for Oakeshott, abstraction itself was problematic, whether or not it was, as O’Neill would have it, ‘idealized’. Certainly, an abstraction that falsifies a situation is worse than one that merely leaves details out, but, as Oakeshott held, abstractions represent both a ‘partial and defective point of view’ (1933: 79).

For idealist thought, as Collingwood (1924: 159–60) stated it:

The concept is not something outside the world of sensuous experience: it is the very structure and order of that world itself … This is the point of view of concrete thought … To abstract is to consider separately things that are inseparable: to think of the universal, for instance, without reflecting that it is merely the universal of its particulars, and to assume that one can isolate it in thought and study it in this isolation. This assumption is an error. One cannot abstract without falsifying.

Alternatively, per Bernard Bosanquet (1927: 105–6), ‘the fullest universal of character and consciousness will embody itself in the finest and most specialized and unrepeatable responses to environment’.

That does not mean we must not engage in abstraction; in fact, as O’Neill notes, we cannot avoid doing so. Rather, it is a warning not to take our abstractions too seriously, and to bring to bear multiple abstractions, as Oakeshott has done in theorizing politics, on a problem.

Those preliminary theoretical issues having been examined, we will now employ our findings in addressing particular libertarian thinkers. Our survey is by no means comprehensive, but rather aimed to sample prominent representatives from the two main camps of libertarian deductivism: the ethical or philosophical wing and the utilitarian or economic one. We will begin with one of the foremost representatives of the first camp, Murray Rothbard.

Rothbard

The libertarian economist and political theorist Murray N. Rothbard is regarded by many as the father of modern libertarianism (see, for instance, Block and Rockwell, 1988: xi). In his work The Ethics of Liberty, he argued that the rational guidance offered by natural law is sufficient to pick out a uniquely justified political order, one based entirely on property rights and, most fundamentally, the right to self-ownership. Citing late Scholastic philosophers as providing a precedent for his conception of natural law, he pointedly contended that recognizing the authority of that law over issues of justice in no way depends on divine revelation or any specific religious creed. Rationally working out the implications of the basic precepts of this natural law, in Rothbard’s system, does not offer merely constraints that any just legal system must respect, but instead yields concrete answers to all questions regarding what constitutes a just law. Consider, for instance, an essay in which Rothbard (2005) ridiculed Frank Meyer for advocating prudence as a virtue:

Anyone who believes in the existence of a natural law discoverable through right reason (as Mr. Meyer and myself both do), must also believe that this natural law is self-consistent. Outside of the irrational world of the Hegelian dialectic, there can be no conflicting truths, nor contradictory but true propositions. And since the rights of man are deducible from natural law, these rights cannot conflict with one another. If one discovers a contradiction, one has also discovered an error in one’s process of reasoning. We must not surrender reason at its most critical point by meekly accepting contradiction. We must go further to seek out the error and discard it.

Rothbard’s view that ‘rights cannot conflict with one another’ stands in sharp contrast to the more commonsensical position taken by Aristotle (who could hardly be deemed an opponent of reason!) that the ‘admitted goods’ of a society must be weighed one against another in sound, practical political reasoning. Furthermore, in the course of his attempt to derive an inclusive and deductively correct legal order from a minimal set of rationally justified principles, ⁵ Rothbard reaches some startling conclusions. For example, discussing what commonly would be regarded as cases of illicit police brutality, he proposes:

Police may use such coercive methods [as beating and torturing suspects] provided that the suspect turns out to be guilty, and provided that the police are treated themselves as criminal suspects if the suspect is not proven guilty. For, in that case, the rule of no force against non-criminals would still apply. Suppose, for example, that police beat and torture a suspected murderer to find information … If the suspect turns out to be guilty, then the police should be exonerated, for then they have only ladled out to the murderer a parcel of what he deserves in return; his rights had already been forfeited by more than that extent. (Rothbard, 1998: 82, emphasis in the original)

In the interest of what he sees as a consistent adherence to the dictates of abstract reasoning, Rothbard gives no weight to the belief, held widely in our day, that torture is inherently wrong even if the target of the torture is guilty of some terrible crime, allows no force to the idea that allowing the practice of torture dehumanizes its practitioners, and is unconcerned by the readily apparent, practical downside of permitting police torture so long as the tortured party is ultimately convicted, which is that it gives law-enforcement officers a strong motive to frame anyone they have tortured.

When Rothbard turns to the question of what legal responsibilities parents ought to have for their offspring, he writes:

In the free society, no man may be saddled with the legal obligation to do anything for another, since that would invade the former’s rights; the only legal obligation one man has to another is to respect the other man’s rights.

 Applying our theory to parents and children, this means that a parent does not have the right to aggress against his children, but also that the parent should not have a legal obligation to feed, clothe, or educate his children, since such obligations would entail positive acts coerced upon the parent and depriving the parent of his rights. The parent therefore may not murder or mutilate his child, and the law properly outlaws a parent from doing so. But the parent should also have the legal right not to feed the child, i.e., to allow it to die. (1998: 100)

Thus, for Rothbard, the logical elegance of his legal theory trumps any arguments based on the moral reprehensibility of a parent idly watching her six-month-old child slowly starve to death in its crib or any consideration that the long-standing legal proscriptions of such neglect might have had some wisdom behind them. As we discussed earlier, in terms of rationalist political theorists in general, he has engaged in what O’Neill calls idealization: he has taken a valid concern in political reflection, that of property rights, and treated it as if it were the only valid concern, dismissing, for instance, the principle that the powerful ought not to be allowed to abuse the weak. Perhaps his view was that the infant, if it really wanted to live, ought to go get a job.

Rothbard similarly rejects the legal validity of many everyday contracts. For instance, he holds that enforcing a contract in which party A promises to pay for the education of party B, even if there is no doubt that the obligation was undertaken freely and knowingly and even if B has made significant investments and decisions based on A’s pledge, represents an unjustified violation of A’s rights. His defence of this position is that such a breach of faith involves no violation of property rights, since ‘mere promises are not a transfer of property title’ (Rothbard, 1998: 133). In addition, he contended that blackmail must be legally permissible in a just polity, since the victim has no exclusive property right in his reputation (Rothbard, 1998: 124–6).

It may be difficult to imagine that a workable social order could be built upon a legal regime that allows the police to torture suspects, parents intentionally to starve their helpless infants, solemn promises to be cast aside without penalty, and blackmailers to operate freely. What is more, it may be suspected that seriously advocating such a law code be adopted immediately and in its entirety, despite the absence of any experience suggesting its practicality, displays a cavalier and reckless disregard for the fact that the existing social arrangements, however far they may fall short of fulfilling one’s idealized visions for society, possess at least the virtue of having demonstrated that they enable most of those whose affairs they guide to lead reasonably tolerable lives. For Rothbard, such pragmatic apprehensions about his manifesto for radically transforming the fundamental governance of social life are merely irrational obstacles to the logically mandatory acceptance of his political vision.

Moreover, Rothbard is not an instance of an idiosyncratic thinker whose ideas died with him; indeed, he has more disciples today than he did when he passed away (in 1995) and there are currently a number of think-tanks in the USA and Europe dedicated to advancing his political programme. We will discuss two of his followers, Walter Block and Hans-Hermann Hoppe, in next section of this article.

Hoppe and Block

Hans-Hermann Hoppe is typically regarded as one of the foremost heirs of Rothbard’s legacy, and is one of the handful of senior scholars at the Ludwig von Mises Institute, which was founded by Rothbard. In his book-length critique of modern democracies, Democracy: The God That Failed, Hoppe (2001: 218) concludes that a robust libertarian polity requires some very anti-liberal policies indeed:

As soon as mature members of society habitually express acceptance or even advocate egalitarian sentiments, whether in the form of democracy (majority rule) or of communism, it becomes essential that other members, and in particular the natural social elites, be prepared to act decisively and, in the case of continued nonconformity, exclude and ultimately expel these members from society. In a covenant concluded among proprietor and community tenants for the purpose of protecting their private property, no such thing as a right to free (unlimited) speech exists, not even to unlimited speech on one’s own tenant-property. One may say innumerable things and promote almost any idea under the sun, but naturally no one is permitted to advocate ideas contrary to the very purpose of the covenant of preserving and protecting private property, such as democracy and communism. There can be no tolerance toward democrats and communists in a libertarian social order. They will have to be physically separated and expelled from society.

Thus, in Hoppe’s view, the liberty to advocate different political stances, considered a fundamental right in most western-style democracies, is, in fact, not to be tolerated at all if the policies advanced differ at all from the property-rights absolutism that Hoppe endorses. We could hardly hope for a more explicit illustration of the contention embodied in the title of this article, namely, that (rationalist) libertarianism can be opposed to true liberty.

In another essay, Hoppe (1988) attempts to top Rothbard by reaching deductively impregnable libertarian conclusions not starting from self-ownership, but from the mere fact that people argue over politics. However, since that argument is well-addressed elsewhere (see Callahan and Murphy, 2006), I will not revisit it here, except to note that Hoppe’s 1988 argument fits the rationalist template perfectly: a single, partial truth, in this case the fact that, in arguing, people are acknowledging a certain type of equality in status regarding their opponent (as another rational being with whom it is worthwhile discussing things), is elevated to a master principle from which all political principles logically follow.

Hoppe’s main contestant for the title of ‘Rothbard’s heir’, Walter Block, takes great pride in carrying the principles of Rothbard to their logical extremes; indeed, one suspects that the more outlandish the conclusion, the happier Block is at reaching it. For example, in the following he analyses the case of a rather inadvertent trespasser:

First, you are standing on the balcony of a 25th story high-rise apartment when, much to your dismay, you lose your footing and fall out. Happily, in your downward descent, you manage to grab onto a flagpole protruding from the 15th floor of the balcony of another apartment, 10 floors below. Unhappily, the owner of this apartment comes out to her balcony, states that you are [trespassing] by holding on to her flagpole, and demands that you let go (e.g., drop another 15 floors to your death). You protest that you only want to hand walk your way down the flag pole, into her apartment, and then right out of it, but she is adamant. As a libertarian, are you bound to obey her?

 But [the question is misguided, as] libertarianism is a theory concerned with the justified use of aggression, or violence, based on property rights, not morality. Therefore, the only proper questions which can be addressed in this philosophy are of the sort, if the flagpole hanger attempts to come in to the apartment, and the occupant shoots him for trespassing, Would the forces of law and order punish the home owner? … When put in this way, the answer is clear. The owner … is in the right, and the trespasser in the wrong. If force is used to protect property rights, even deadly force, the owner is not guilty of the violation of any licit law. (Block, 2003)

Once again, we see the embrace of an idealization obliterating any consideration of countervailing concerns that most people would find relevant in deciding the proper legal response to a situation, and, as with Rothbard, it is property rights that are the trump card. The fact that the property rights ‘violation’ is trivial and the response draconian means nothing to Block; only by holding the single principle of private property to be absolute can he reach deductive, definitive ‘solutions’ to such dilemmas.

Consider also Block’s address (2001: para. 11) to the ‘mistake’ made by a Canadian father:

There was a case in Canada where a father ‘mercy’ killed his severely handicapped daughter. Under libertarian law, he would be treated as a murderer. His mistake was not first offering his child up for adoption. Were there anyone else willing to care for her, he would not have been entitled to kill her. It is only if no one else were to step forward in this regard that his action would then be considered legitimate.

How thoughtful that it is only permissible to murder the kids you have ‘homesteaded’ (a word Block uses earlier in the same essay to describe creating children) if you have first offered them to others. In another work, Block (2004) describes children as merely another form of property, which can be abandoned like an old sofa or TV.

Block also discusses at some length the matter of ‘libertarian Nuremberg trials’, to take place on the grand day when the state is finally overthrown. At that point, ‘all those responsible for government (for the libertarian anarchist) and excessive government (in the case of the minarchist) … would … very properly be considered criminals’ (Block, 2006: 87).

Block goes on to equate ‘the Marxist professor in a public university’ to Hitler: ‘His salary, too, is paid for out of compulsive levies. He, too, aligns himself with the evil empire, and, by the very nature of the enterprise, promotes his views through force’ (2006: 89). So, once again, we find rationalist libertarianism to be opposed to liberty as ordinarily conceived, in this case, opposed to freedom of thought.

Nozick

The most prominent libertarian political philosopher of the 20th century was Robert Nozick. Nozick proceeds in a fashion similar to Rothbard, in that he, too, defends libertarianism from a natural rights framework. But he differs from Rothbard in not trying to ground that framework in any single ‘self-evident’ axiom. He reaches somewhat more circumspect conclusions than does Rothbard by allowing more room for practical contingencies in his reasoning, for example, in his argument as to how a dominant protection agency would turn into a state. ⁶

Nozick (1974: 4) launches his venture by describing the method he will use to proceed: ‘It would be more promising to focus upon a fundamental abstract description that would encompass all situations of interest, including “where we would now be if”.’ But just how much has to be abstracted away to ‘encompass all situations of interest’? Enough, I would contend, that we have arrived at one of O’Neill’s idealizations.

Consider, for instance, Nozick’s discussion of when some risky activity should be prohibited or requires compensation by the performing agent to those she puts at risk. ‘How’, asked Nozick (1974: 74), ‘is it to be decided which below-threshold subsets of such totalities [of risky activities] are to be permitted?’ He proceeds to consider various mathematical constructions balancing the probability of something going wrong, the harm done if something does go wrong, the benefits of the activity, and so on. It does not bother him that such decisions have never been made in this fashion and never could be so made, since the relevant probabilities, costs, and benefits are largely unknown.

MacIntyre notes that, by starting from first principles for which, in fact, he never argues, Nozick leaves all other deductive systems starting from different premises untouched:

And if Nozick were to argue that any distributive principle, if enforced, could violate a freedom to which everyone of us is entitled – as he does indeed argue – the immediate answer must be that in so interpreting the inviolability of basic rights he begs the question in favor of his own argument and leaves unimpugned Rawls’s premises. (MacIntyre, 2007: 249)

In addition, MacIntyre (2007: 250) argues that Nozick shares with Rawls the idealization of the autonomous, self-created individual: ‘It is in any case clear that for both Nozick and Rawls a society is composed of individuals, each with his or her own interest, who then have to come together and formulate common rules of life.’ The notion of atomic individuals contracting into certain social arrangements or not underlies Nozick’s entire work. However, that is hardly what really occurred in history, which is that socially embedded persons have gradually carved out areas of individual rights within their social context. Now that has been a genuine historical achievement, but that achievement in no way negates the communal setting that enabled it to occur. Individual rights could have arisen only within a social setting acknowledging individuals as important beyond their social roles.

Of course, no society has ever arisen in Nozick’s contractarian fashion, and if one were to do so, it is not at all clear, except on rationalist grounds that we had achieved a social tabula rasa, why we should prefer the social arrangements that resulted from the situation to those achieved by actual, historical societies. In fact, we have good reason to doubt the arrangement Nozick envisions is even conceivable. As Clifford Geertz (1973: 49) wrote:

Most bluntly, [the study of the development of human mentality] suggests that there is no such thing as a human nature independent of culture. Men without culture would not be the clever savages of Golding’s Lord of the Flies thrown back upon the cruel wisdom of their animal instincts; nor would they be the nature’s noblemen of Enlightenment primitivism or even, as classical anthropological theory would imply, intrinsically talented apes who had somehow failed to find themselves. They would be unworkable monstrosities with very few useful instincts, fewer recognizable sentiments, and no intellect: mental basket cases.

So Nozick’s original contractors would not even recognizably be human beings in their mentation, let alone be able to conceive of the idea of a contract. Something else that MacIntyre points out is ignored by Nozick’s idealizations is the fact of frequent, grave historical injustice:

For central to Nozick’s account is the thesis that all legitimate entitlements can be traced to legitimate acts of original acquisition. But, if that is so, there are in fact very few, and in some large areas of the world no, legitimate entitlements. The property-owners of the modern world are not the legitimate heirs of Lockean individuals who performed quasi-Lockean … acts of original acquisition; they are the inheritors of those who, for example, stole and used violence to steal the common lands of England from the common people, vast tracts of North America from the American Indian, much of Ireland from the Irish, and Prussia from the original non-German Prussians. This is the historical reality ideologically concealed behind any Lockean thesis. (MacIntyre, 2007: 251)

So, once again, we see a natural rights libertarian idealizing to a point that important aspects of true freedom are lost from view. Having examined several libertarians from the natural rights camp, let us turn our attention to a pair of thinkers who defend libertarianism from a utilitarian perspective, namely, James Buchanan and Gordon Tullock.

The economism of Buchanan and Tullock

Buchanan and Tullock’s rationalism is of a quite different flavour than that of Rothbard and his acolytes. Far from embracing some theory of natural rights (and then elevating one such right above all others to achieve deductive closure), Buchanan and Tullock pay no heed to questions of rights at all, nor, indeed, to any moral considerations. Instead, the abstraction they employ reduces all political questions to calculations (sometimes done well, sometimes poorly) of the net sum of benefits and costs that will accrue to various political choosers under different constitutional regimes. ⁷ No one picks a particular constitution because she believes it to be just or fair, but, rather, she chooses it because she anticipates that she will come closest to her preferred bundle of goods with that particular regime. (Of course, as in all variations of rational choice theory, one can always render the model tautological simply by positing any aim whatsoever, such as ‘justice’ or ‘equality’, as a ‘good’ to which some agents assign an enormous subjective utility, but such manoeuvres drain the resulting model of all empirical import: any historical state of affairs whatsoever will be compatible with such a theory, since it will always be possible to assign to the relevant agents subjective valuations that render their actions ‘rational’ under such a catholic definition of rationality. But Buchanan and Tullock, to their credit, do not avail themselves of such a manoeuvre; rather, they posit agents who are interested, vis-a-vis the political process, in maximizing their endowment of such goods as working streets and minimizing costs such as taxes (for instance, see Buchanan and Tullock, 1965: 66).)

One striking aspect of these authors’ most famed work, The Calculus of Consent, is its similarity to Rawls’s A Theory of Justice as far as how a just, initial social contract can be established; both works see this as necessarily taking place from an impersonal, abstract position in which no one has any concrete social characteristics. Consider this passage from Buchanan and Tullock (1965: 77–8):

For individual decisions on constitutional questions to be combined, some rules must be laid down; but, if so, who chooses these rules? And so on. We prefer to put this issue aside and to assume, without elaboration, that at the ultimate stage, which we shall call the constitutional, the rule of unanimity holds … Recall that we try only to analyze the calculus of the utility-maximizing individual who is confronted with the constitutional problem. Essential to the analysis [is] the presumption that the individual is uncertain as to what his own precise role will be in any one of the whole chain of later collective choices that will actually have to be made. For this reason he is considered not to have a particular and distinguishable interest separate and apart from his fellows. This is not to suggest that he will act contrary to his own interests; but the individual will not find it advantageous to vote for rules that may promote sectional, class, or group interests because, by presupposition, he is unable to predict the role that he will be playing in the actual collective decision-making process at any particular time in the future.

This is remarkably like Rawls’s ‘veil of ignorance’. However, despite this similarity, Rawls (1971: 173) is somewhat dismissive of Buchanan and Tullock’s contribution to his project:

It is important to distinguish the four-stage sequence and its conception of a constitutional convention from the kind of view of constitutional choice found in social theory and exemplified by … The Calculus of Consent … The aim [of my project] is to characterize a just constitution and not ascertain which sort of constitution would be adopted, or acquiesced in, under more or less realistic (though simplified) assumptions about political life, much less on individualistic assumptions of the kind characteristic of economic theory.

Now, there is a difference here, and it highlights a weakness in Buchanan and Tullock that is not present in Rawls: they consider ‘politics’ and ‘economics’ to be the ‘prodigal offspring of political economy’ (Buchanan and Tullock, 1965: v), apparently not realizing that politics predates political economy as a science by some two millennia, and thereby truncate their analysis so that it ignores issues of justice, which are the essence of classical political theory. But, nevertheless, there is a remarkable similarity in the rationalist style of approach to constitutional questions being adopted, most specifically in the adoption of the idea of the ‘plain vanilla individual’ rationally choosing a constitution in total ignorance of his societal role.

Gray (1989: 250–1) trenchantly commented on this sort of contractarian theorizing:

Given such manifold singularities, what is the justification for modelling the person in a way that will inevitably screen out much of the variety of personal life? The answer, of course, is that unless the variety of personhood is ironed out, there will be no agreement on principles and so no upshot of contractarian deliberation. On the other hand, any abstraction from the particularities of persons already begs every important question in favour of liberalism. Behind the veil of ignorance, we are no longer ourselves, but ciphers, constructed expressly for the purpose of grounding liberal society. The derivation of liberal principles is then circular, since it works with the artificial persons of liberal theory and not with the varieties of personhood we find in the real world … The fact that an abstract or artificial person, screened by an imaginary veil of ignorance from that knowledge of his own life that is constitutive of any real person, would choose a specific set of moral or political principles, if he were able to choose anything at all, has no force for any real person. For any real person, only the values he in fact upholds, the projects and attachments he actually harbours, can generate reasons for action.

Having noted this similarity to Rawls, let us proceed to examine how the work presently under examination exhibits rationalist tendencies in its own, unique fashion. Buchanan and Tullock wrote of their object of study: ‘An imposed constitution that embodies the coerced agreement of some members of the social group is a wholly different institution from that which we propose to examine in this book’ (1965: 15). In other words, they were examining a sort of constitution that never has and never will exist. The purpose of this idealized constitution is to place rational restrictions on the scope of state activity:

It is precisely the recognition that the State may be used for such purposes which should prompt rational individuals to place constitutional restrictions on the use of the political process. Were it not for the properly grounded fear that political processes may be used for exploitative purposes, there would be little meaning and less purpose to constitutional restrictions. (Buchanan and Tullock, 1965: 13)

The state itself is a tool of instrumental rationality, and, as such, subject to perfection through rational analysis:

Collective action is viewed as the actions of individuals when they choose to accomplish purposes collectively rather than individually, and the government is seen as nothing more than the set of processes, the machine, which allows such collection action to take place. This approach makes the State into something that is constructed by men, an artifact. Therefore, it is, by nature, subject to change, perfectible. (Buchanan and Tullock, 1965: 13)

What restrictions ought to be imposed and what the legitimate scope for state activity is are to be set by rational, utility-maximizing individuals calculating where drawing that boundary will yield them the highest net benefits. All concern for the justice of constitutional arrangements is set aside for the sake of theoretical tractability:

We have assumed that the rational individual, when confronted with constitutional choice, will act so as to minimize his expected costs of social interdependence, which is equivalent to saying that he will act so as to maximize his expected ‘utility from social interdependence’. (Buchanan and Tullock, 1965: 49)

For Buchanan and Tullock, man is no longer the political animal, but is a (or perhaps the supreme) utility-maximizing animal:

What are some of the implications of the analysis of individual choice of constitutional rules that has been developed? First of all, the analysis suggests that it is rational to have a constitution. By this is meant that it will be rational for the individual to choose more than one decision-making rule for collective choice-making under normal circumstances. (1965: 81)

Buchanan and Tullock’s work is considered a founding text of what has become known as public choice theory. Crucial to their case for strong constitutional restrictions on political actors was the idea that, in ordinary legislative activity, powerful special interest groups could easily capture the legislative process, due to the great rewards they could earn by getting laws serving their interest passed. This tendency, as they saw it, could only be held in check by a robust constitution that strictly limited the extent to which government could intervene in the interest of one group or another. Anthony de Jasay (2002: 80) addressed the public choice school’s case for constitutionalism as follows:

In public choice, winning groups get the best available payoffs and impose worse ones on the losers. However, for some reason or other, this ceases to be true where the payoffs are indirect and take the form of alternative constitutional rules, which are but gates giving access to direct payoffs … The contractarian-cum-public-choice school appears to hold that these persons and their respective groupings respond to incentives and maximize payoffs when shaping legislation and imposing policies, but not when shaping the constitution that is a determinant, both of what policies may be imposed and who is entitled to impose them.

The reason the central public choice contention ‘ceases to be true’ for Buchanan and Tullock in the constitutional setting is that they have posited that constitution-making takes place behind a Rawlsian ‘veil of ignorance’, whereby no one knows what his or her interests are. But, of course, that construct is what O’Neill termed an ‘idealisation’, since it supposes something that is necessarily false of any real person, and no actual constitution could ever be established in such a fashion, precisely because it is an idealization and not a real situation in which any actual people could ever find themselves.

De Jasay (2002: 81), for the sake of argument, sets aside the question of the legitimacy of the original constitutional process, but notes that even granting constitutionalists that concession hardly alleviates the central problem they must confront:

An obvious down-to-earth objection to this is that momentous choices can and since time immemorial have been imposed by some people on others without benefit of agreed, formal rules. Let it be the case, however, that there is a benign constitution to begin with and the greedy gremlins who swarm around public choices had no hand in its making. Since, however, they know no taboos and are led by interests, what is to stop them from profanely starting to reshape the constitution the moment it provides them with the rule system for engineering agreement to non-unanimous choices?

Public choice theory, if it were not imbued with the contractarian dream of redeeming the republic through prescription, would in good logic have to predict that an impartial constitution will first be changed to suit the broad winning coalition, and then be changed again to let progressively narrower coalitions despoil ever larger minorities.

However, contractarians may look to the existence of an independent judicial branch, given the ultimate authority over enforcing adherence to the principles embodied in the constitution, as providing an adequate defence against the potential betrayal of the founders’ ideals by self-serving factional interests. De Jasay argued that such a faith is unwarranted: ‘It is flying in the face of experience to suppose that judicial interpretation – be it informed by the best in legal scholarship and honesty – can for long disassociate itself from the political climate, the pressure of society’s demands, and, most potent of all, the trend of articulate opinion’ (2002: 82).

If the logic of De Jasay’s case is correct, as it seems to me it is, then it would appear that if the people of a nation require a written constitution to protect them from potential domination by their government officials as they go about their ordinary administrative, legislative, or judicial activities, then they also must need a meta-constitution to defend their liberty against the potential depredations of those same officials when they are acting as the authoritative interpreters of the basic constitution as well as a meta-meta-constitution to guarantee that the dictates of the meta-constitution are obeyed, and so on ad infinitum. As Tollison (2009: 128) wrote:

The design of better institutions starts with the design of better institutions to choose the rules we live under. The difficulty of this problem cannot be understated. Think of it this way. Suppose we convened a constitutional convention in the U.S. … Who would participate? What would happen? What type of institutions would be selected?

De Jasay (2002) presented a further significant argument against the contractualist understanding of constitutions when he noted that no constitution is capable of interpreting or enforcing itself. ⁸ Furthermore, unlike the case of an ordinary contract between two parties, which assumes the prior existence of some legal framework including a third party that can be called upon to adjudicate compliance in the event of a dispute, a constitutional disagreement can never be resolved by turning to a higher authority, since the constitution itself has been deemed the supreme ‘law of the land’. Therefore, whether some legal or institutional development ultimately will be considered constitutional will turn on the opinions of contemporary political actors – the very agents whose range of legitimate conduct the contractarians’ constitution is supposed to constrain. As De Jasay saw it, if there is sufficient support for some policy, either in the general populace or among a powerful group of the political elite, then a reading of the constitution will be devised that renders that policy constitutional. Barnett’s argument (2004) that adopting the criterion of original intent in interpreting a constitution will block efforts to read that document in whatever way current political actors wish to read it has some truth to it, but it is also somewhat circular: originalism is only likely to be embraced by those who, like Barnett, would be happier with political arrangements more in keeping with the constitutional authors’ intentions than they are with interpretive models that stress reading the document in light of changing circumstances and political beliefs. Furthermore, as Hardin and others have noted and as Oakeshott’s theoretical reasoning argues, written constitutions always will prove inadequate to deal with all of the contingencies faced by practical politicians, but unimagined by the constitution’s authors. A final objection to Barnett’s ‘originalist’ interpretation is the fact that there typically is no single, ‘original’ intent behind a constitutional dictum at all, for instance in the case of the American Constitution, the constitutional authors had a variety of different visions of the polity that their constitution was meant to establish, so that they wound up agreeing on quite ambiguous wordings, each in the hope that his or her own vision would triumph within the leeway that lack of clarity created.

Conclusion

This article in no way pretends to contain an exhaustive survey of all the variety of political theories that might be gathered under the umbrella of ‘libertarianism’. As noted earlier, a thinker such as Hayek, especially in his later work, is not susceptible to most of this critique. Instead, its goal has been to demonstrate that at least some somewhat prominent variations of libertarian thought are susceptible to the critique of ‘rationalist politics’ advanced by Oakeshott (and long before him by Aristotle). It is hoped that such a demonstration serves the purposes of acting as a corrective to the excesses of libertarian thinkers who hold otherwise admirable positions regarding a number of currently vital political issues, especially those concerning civil liberties and the ‘War on Terror’, as well as explaining some aspects of an ideology that is increasingly popular at present.