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 jasonm@uw.edu.
[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.