Wednesday, November 16, 2022

Libertarian Insights, Errors, and Calamities

Guest Blogger

For the Balkinization Symposium on Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed  (St. Martin’s Press, 2022).

Jamie Mayerfeld

Andrew Koppelman has done us an invaluable service by tracing the development of libertarianism, capturing its appeal, diagnosing where it went wrong, and underscoring the terrible price to be paid for adopting its more extreme versions. Burning Down the House is packed with information, insight, and wisdom. It is a brilliant and necessary book that everyone should read.

            One of many reasons to admire the book is Koppelman’s commitment to addressing people across the political spectrum. He does not prescreen his audience in advance, for example, by starting with the assumption that either capitalism or socialism is a dirty word. His message to libertarians is that they should prefer moderate to extreme libertarianism. His message to moderate libertarians is that they should still relax some of their resistance to regulation and redistribution. His message to leftists (among whom he counts himself) is that they should support capitalism in view of its demonstrated power to alleviate domestic and global poverty. Because most conservative libertarians and left-wing progressives share a commitment to freedom and equality, he regards their disagreements as a “family quarrel” amenable to evidence and reasoning. Koppelman advocates what he calls a “moderate libertarianism” for which he finds a model in Scandinavia’s social democratic yet indisputably capitalist economies, combining regulated free markets with generous social welfare programs.

            Koppelman casts Friedrich Hayek as the imperfect hero of the book, a man from whom both left and right can learn. He is convinced by Hayek’s famous argument that capitalism, its inequalities notwithstanding, is indispensable to freedom and prosperity, because (in Koppelman’s helpful summary) “price mechanisms transmit more information than any central planner can possibly know.”[1] Hayek still got some things wrong, Koppelman argues. His hostility to trade unions, social insurance schemes, and many forms of regulation has not stood the test of time. He failed to predict the harms of extreme inequality, which implementation of his ideas helped make possible, and he underestimated the dangerous concentration of political power to which economic inequality gives rise.

            These flaws notwithstanding, Hayek offers a version of libertarianism – moderate, empirical, and instrumentally justified – far preferable, Koppelman argues, to the hardline libertarianism that forbids any government regulation or taxation for purposes other than the punishment of force or fraud. Hardline libertarians such as Murray Rothbard, Robert Nozick, and Ayn Rand defend their position on principle, holding that anything beyond a minimal state is an impermissible violation of the right to private property. (Rothbard takes the further step of rejecting a minimal state in favor of anarchy.)  If adopted, hardline libertarianism would have devastating consequences for poor people, disabled people, workers, and those who cannot afford health care. It would open a wide door to industrial accidents, workplace hazards, toxic merchandise, large-scale corruption, unchecked pandemics, financial instability, and the wholesale destruction of human and other life from climate change.

It should be regarded as crazy, yet isn’t. Hard libertarianism wields strong influence over U.S. politics. The fossil fuel billionaire Charles Koch is a hardline libertarian who with his late brother David assembled an empire of think tanks and political advocacy organizations to vigorously promote libertarian policy goals, including deregulation, a reduced welfare state, and climate inaction.  He exerts considerable control over the Republican Party, alongside other large donors also guided by libertarian ideology. Hard libertarian arguments animate a broader network of conservative lobbying, advocacy, and research organizations. They are continually expounded by Republican Party officials, conservative think tanks, and right-wing media. 

Hardline libertarianism exerts influence because, as Koppelman notes, it can feel like common sense. I have a right to keep what is mine; no one may take it from me without my consent; the only exception is taxes used to enforce protection of my property and my person. These premises, thought to possess the virtue of moral clarity, nourish the “everyday libertarianism”[2] widespread in popular attitudes and public discourse.  They are often regarded as provisionally true until shown otherwise, or as principles that we really ought to honor if only we had the courage to do so.

Hayek does not escape the gravitational force of hardline libertarian premises. He favors minimum welfare provisions, but uses rhetoric that seems to rule them out. He writes that “in a free society coercion is permissible only to secure obedience to universal rules of just conduct” and that “freedom demands no more than that coercion and violence, fraud and deception, be prevented, except for the use of coercion by government for the sole purpose of enforcing known rules intended to secure the best conditions under which the individual may give his activities a coherent, rational pattern.”[3]  (For this reason, I think that Koppelman may sometimes exaggerate the distance between Hayek and hardline libertarianism.)

Because of their widespread appeal, hardline libertarian premises need to be confronted on their own terms. Koppelman does a masterful job of exposing their difficulties and the gaps, non-sequiturs, and inconsistencies in the reasoning used to shore them up. One problem is that hardline libertarians, and even Hayek, mistakenly imagine property as “absolute dominion over some part of the world, unencumbered by affirmative duties or liability to taxation.” Koppelman notes that “property rights have never been like this.” [4] Hardline libertarians, he argues, fail to understand the concept at the core of their theory: private property itself.

I agree. What hardline libertarians get right is that we should not violate human rights and that human rights include a right to private property. What they get wrong is their conception of the right to private property. Justice requires a right to private property of some kind. I cannot lead my own life if I have nothing that I can call my own. If you steal my bicycle simply because you want it, you commit a wrong against me. But what exactly does my right to private property entail? The hard libertarian claim that it must take a maximalist form does not survive reflection. One of the lessons of Locke’s Two Treatises of Government is that the right to private property is not self-evident but is to be explained in terms of values of survival, well-being, independence, rationality, and purposive agency. Private property can be connected to other values as well, including self-development, self-expression, the ability to make plans and pursue projects, parental responsibility, communal responsibility, and environmental stewardship. The same values that justify the right to private property place limits on it as well, as Locke for one made clear.[5] We may even conclude, with G.W.F. Hegel and Jeremy Waldron, that my right to private property correctly understood includes not only a right to keep my property but to be given some property if I have none to start out with.[6] Attention to the values underlying private property opens our horizons to conceptions of justice broader than libertarianism.

Some may want to defend a maximalist conception of private property on the grounds that it minimizes the use of coercion. This argument is mistaken, because when it comes to property, libertarianism as such does not reduce coercion. It believes in an enforceable right to private property as it has defined it. The question is which conception of private property should be enforced. Even if for the sake of argument we conceded that a maximalist conception of private property minimizes coercion, this would not be a conclusive defense, because freedom involves more than the avoidance of coercion. Nozick dwells on coercion, because he construes rights strictly in terms of side constraints (negative prohibitions) binding on others. A difficulty in this view, as Waldron points out, is that by focusing so narrowly on duties it may lose sight of rights.[7] The result is a distorted moral outlook. If Allison is drowning, I should steal Brian’s life preserver if necessary to save her. If some hardline libertarians deny this by holding fast to their principles, they desert common sense for philosophical dandyism. 

One reason for the deceptive appeal of hardline libertarianism is our psychological tendency to confuse property with possession. If you ride off with my bicycle, you do not become its rightful owner. But we lose grasp of the distinction when other transactions intervene – if for example, you inherit or purchase the stolen bicycle from the original thief, or from others who received it from him. Psychologically, free market exchanges function to launder historical crimes. Morally, they should not. This becomes a problem for hardline libertarianism. As Nozick recognizes, hardline libertarianism implies that past violations of private property must be rectified in the present by transfers that comes as close as possible to matching the property allocation that would exist in the absence of the past violations. In a passage buried late in Anarchy, State, and Utopia, he admits that present holdings may be so thoroughly shaped by past violations that a massive redistribution is required.[8] Few have stopped to consider the implication – that no one is entitled to their current holdings, such that the victim of a “theft” has no greater claim to the “stolen” property than the “thief.”  The upshot of a maximalist conception of private property is the elimination of private property. This is the price hardline libertarians pay for their refusal to root the right to private property in the full range of moral values that give it meaning and importance, and to define and limit private property with reference to those values.

As Koppelman notes, it is a horrible fact that hardline libertarians as well as some moderate libertarians refuse to deal honestly and responsibly with the problem of climate change. Charles Koch, acting on libertarian principle, has disciplined the entire Republican Party to oppose climate action. Without question, libertarian ideology has fueled global warming and may unleash climate catastrophe in the future. If given their way, hardline libertarians will burn it all down.

Koppelman discusses climate change using the capitalist vocabulary of exchanges, externalities, and market failure, language that tends to posit markets as the default arrangement. The policy solution he considers is a carbon tax, on the sound principle that economic actors should pay for the harms they inflict on others. Leading climate scholars have argued, however, that carbon pricing alone is an inadequate solution, because carbon prices matching climate harms are politically unviable, the necessary innovation won’t happen quickly enough, inelastic demand for fossil fuels will dampen incentives for change, carbon pricing schemes are vulnerable to manipulation by fossil fuel lobbyists, and voters need to see present benefits of climate policy.[9] Given the urgency and scale of the problem, government regulation and investment are required. (Koppelman does not share Hayek’s deep suspicion of government regulation and devotes many eloquent passages to defending it.)

            These considerations argue for a gestalt shift. Instead of viewing climate change as a problem to be addressed by market adjustments, we should view it as a problem we must jointly solve. Tackling the problem requires a vast cooperative effort including state-led investment and regulation and the redress of climate injustice. Reparations may be necessary to remedy enduring harms from the colonial crimes that accompanied the rise of fossil fuel capitalism, whether or not capitalism was dependent on those crimes.[10] There is something to be said for a socialist frame which, to roughly paraphrase G. A. Cohen,[11] imagines ourselves as rights-bearing individuals who also care about each other – and (it must be added) should care about animals and nature as well.  These reflections lead us beyond hardline libertarianism and beyond Hayek, too. 

Jamie Mayerfeld is Professor of Political Science at the University of Washington. You can reach him by e-mail at


[1] Koppelman, Burning Down the House (New York: St. Martin’s Press, 2022), 14.

[2] Murphy and Nagel are among those who use this helpful term.  Liam Murphy and Thomas Nagel, The Myth of Ownership (Oxford: Oxford University Press, 2004).

[3] Friedrich A. Hayek, Law, Legislation and Liberty, vol. 1 (Chicago: University of Chicago Press, 1973), 141; Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1960), 144.  The second passage is followed by an attempt to wrestle with the legitimacy of welfare provisions. Hayek’s evasive language (“it is at least not obvious that coercing people to contribute to the achievement of ends in which they are not interested can be morally justified”) reflects the gravitational pull of hardline libertarianism. 

[4] Koppelman, Burning Down the House, 18.

[5] John Locke, First Treatise of Government, sec. 42.

[6] G. W. F. Hegel, Elements of the Philosophy of Right, trans. H. B. Nisbet (Cambridge: Cambridge University Press, [1820] 1991), 81; Jeremy Waldron, The Right to Private Property (Oxford: Oxford University Press, 1988).

[7] Waldron, The Right to Private Property, 77.

[8] Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 230-31.

[9] Leah Stokes and Matto Mildenberger, “The Trouble with Carbon Pricing,” Boston Review, September 24, 2020.

[10] Olufemi Taiwo, Reconsidering Reparations (Oxford: Oxford University Press, 2022).

[11] G. A. Cohen, Why Not Socialism? (Princeton: Princeton University Press, 2009). Socialism as imagined by Cohen rejects central planning and preserves some form of competitive markets.

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