James Hackney 

Burning Down the House serves the noble purpose of putting the analysis of political theory to work in helping us better think through our contemporary political morass.  It also invites us to think afresh about the implications of political theory.  Provocatively, Andrew Koppelman tells us: “I’m going to try to persuade leftists and libertarians that your ideals are not so far from each other as you believe, and that you need not be enemies”. (pg. 9)  In large part, Koppelman is seeking to help us find a way to reclaim our democracy from distorted forms of libertarianism.  As I read Burning Down the House, it reminded me of another similar attempt, C.B. Macpherson’s essay “Berlin’s Division of Liberty” published in Democratic Theory: Essays in Retrieval.[1]  It’s useful to compare these two efforts, shedding light on Koppelman’s project and perhaps furthering his goals.

Similar to Koppelman, Macpherson sets out his essay as a critique of a form of libertarianism that he finds pernicious.  The foil for Macpherson is Isaiah Berlin and his construct for libertarianism as articulated in Two Concept of Liberty, which builds on the distinction between negative liberty and positive liberty.  Berlin rejects positive liberty due to the prospect that its pursuit will lead to societal arrangements antithetical to liberty so promotes a form of the minimal state he believes is required to advance negative liberty much as do the libertarian protagonists in Burning Down the House (particularly Robert Nozick and Murray Rothbard).  Macpherson states as his starting point that “liberty is the absence of humanly imposed impediments, and that these impediments include not only coercion of one individual by another, and direct interference with individual activities by the state or society (beyond what is needed to secure each from invasion by others), but also lack of equal access to the means of life and the means of labour” (Democratic Theory at 96).  Berlin, as do the libertarians at the center of Koppelman’s critique, rejects the latter part of Macpherson’s definition of liberty as encompassing access to the tools necessary to live.  Macpherson reaches his solution by re-framing the negative/positive liberty dichotomy as the difference between “counter-extractive” and “developmental” liberty—about which more will be said later.  Positive liberty as defined by Macpherson is “liberty to act as a fully human being”. (Democratic Theory at 105)  In an analogous turn, Koppelman argues: “Freedom is not the absence of government.  It is the capacity of people to shape their own lives.” (pgs. 21-22). In many ways, Koppelman is taking up the challenge by MacPherson that we must examine political theory in context, requiring that positions taken on how best to advance the cause of liberty “be judged in terms of the actual impediments to liberty in concrete historical circumstances”. (Democratic Theory at 108). MacPherson articulated his position as a Canadian academic writing in 1971 during the midst of the Cold War and attempting to reframe libertarian theory in a way that would have its application in Western democracies be more aligned with human values and less susceptible to the emergence of communist states in the East.  Koppelman is undertaking a similar enterprise of re-visioning libertarian philosophy and critiquing its nefarious application in the context of contemporary American politics. 

Macpherson offers up a conceptualization of liberty that fits well with Koppelman’s project and can perhaps make it more effective.  Macpherson argues that any societal structure necessarily entails impediments to individuals that benefit some and disadvantage others.  These impediments stunt the individual’s liberty interests in living a life of their choosing.  Therefore, for Macpherson, removing or mitigating these impediments are key to any meaningful conception of liberty including the negative conception of not having one’s liberty impinged upon.  Macpherson identifies inevitable impediments imbedded within capitalist societies that stem from the class divisions inherent in free market capitalism.  Koppelman, though he embraces free markets and the economic inequalities that result from a market-based economy (pg. 12) shares Macpherson’s reservations about “crony capitalism in which large corporations and banks have used their power to skew the rules in order redistribute wealth upward” (pg. 19) and recognition that “[l]arge sophisticated actors can exploit and hurt in plenty of ways if the state doesn’t intervene”. (pg. 20) 

This deprivation of capitalism exacerbates the economic inequalities inherent in free market economies, leading to the deepening of one of the most obvious impediments to liberty— poverty.  Koppelman admires Friedrich Hayek because he is a libertarian who actually appreciated that poverty restricts the very liberty that libertarians take as the core of their philosophy.  Koppelman puts it bluntly: “Poverty is unfreedom”. (pg. 186)  However, unlike contemporary leftists, Koppelman takes the view (as did Hayek) that capital markets are the best structure for creating wealth, which can inure to the benefit of us all (including the poor).  Koppelman departs from Hayek by arguing for a libertarian vision that supports the contemporary welfare state.  Hayek doesn’t provide a justification for moving beyond a version of the minimal state and government intervention in cases of market failure such as failure to provide for public safety (a classic example of market failure).  This would presumably include the public firefighting functions that would have prevented the burning down of Gene Cranick’s house, which is the central narrative for the book and case in point for rejecting what Koppelman refers to as a “corrupted version” of libertarianism. (pg. 7)  Koppelman attempts to construct a defense of government intervention far beyond the minimal state and even what his libertarian ally, Friedrich Hayek, would condone within a libertarian framework.  Koppelman’s version of libertarianism actually requires government income subsidy programs such as Social Security and Medicare—“Abolishing those, as many libertarians propose, would be a disaster not only for liberty but for property as well, depriving millions of what they had worked for.” (pg. 18) Koppelman’s call for an economy rooted in free market principles but with social welfare state guardrails resonates with Macpherson’s call for developmental liberty at the conclusion of his critique of the negative/positive liberty framework. 

Macpherson takes up the tension between negative and positive liberty and the contradictions in the ways leading libertarian theorists frame their ideas in a very analytical and concise deconstruction of libertarian theory.  It’s an exercise similar to the journey through historical and contemporary libertarian thought that Koppelman takes us through in Burning Down the House.   Koppelman ends with the story of how libertarian responses to the COVID crisis illustrate the points raised in his history and analysis of libertarian philosophy—cementing his case.  Macpherson ends with an analytical twist on the negative/positive liberty debate, arguing for an “alternative division of liberty”: “counter-extractive liberty/developmental liberty”.  Macpherson’s argument for this analytical move is motivated by a formulation that resonates with Hyak’s focus on maximum economic good: “the only sensible way to measure individual liberty is to measure the aggregate net liberty of all the individuals in a given society” because “each individual’s liberty may diminish or destroy another’s”. (Democratic Theory at 117)  Given this framework, negative liberty is reformulated as “immunity from the extractive power of others (including the state)” (Id. at 118): counter-extractive liberty.  This rhetorical move has the benefit of unburdening us of the defaults associated with negative liberty and also more clearly aligns with the reality that a major threat to liberty is the extraction of our liberties at the hands of, or on behalf of, others (whether intended or unintended).  The peril of extractive powers is a consistent theme in Burning Down the House.  As opposed to the tension between negative liberty and positive liberty (and hallowing out of negative liberty) that has been constructed by contemporary libertarianism, Macpherson puts forward developmental liberty as consistent with and reinforcing counter-extractive liberty.  Developmental liberty is the freedom to be fully human and for every individual to realize their developmental power.  In addition to being complimentary to each other, the counter-extractive/developmental liberty paradigm has the benefit of being less susceptible to subversion from the left and the right, which Koppelman warns against, because it is tied to the contextual reality of liberty in lived societies, as opposed to the abstract opposition of negative/positive.  In addition, the counter-extractive/developmental liberty framework resonates better with contemporary politics and has the potential to do the work of promoting the type of libertarian grounding that Koppelman finds attractive (perhaps even achieving his goal of persuading the left and the right that they share common ground)—offering up an alternative to the debased forms of libertarianism that currently haunt us and erode our democracy.  Macpherson’s reformation of libertarian theory resonates with Koppelman’s call to action—the reclamation and perhaps reinvigoration of the democratic experiment.  In turn, Koppelman’s call to action resonates with Macpherson’s project—reshaping the economies of Western democracies to better serve the needs of people.  Both are noble pursuits indeed with a libertarian reformulation as their linchpin.

James Hackney is Dean and Professor of Law, Northeastern University School of Law. You can reach him by e-mail at j.hackney@northeastern.edu.