Friday, November 11, 2022

Libertarianism or Callousness

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).

Christina Mulligan 

Koppelman opens Burning Down the House with a true story meant to horrify us, about a man, Gene Cranick, whose house burned down because he had forgotten to pay the fire department’s bill. Painted as the consequence of everything wrong with libertarianism, the story more evokes the recurring theme of libertarian darling Frédéric Bastiat’s pamphlet What is seen and what is not seen (“Ce qu'on voit et ce qu'on ne voit pas”), admittedly not from his economic perspective. What is seen in Koppelman’s story is fire; what is not seen is the consequence of not paying one’s local taxes.

The purpose of telling the fire story is to illustrate that it is monstrous to let supposed “libertarian idealism” result in someone’s house burning down because they didn’t pay their fire bill. But complicating this story is that Cranick’s wife offered to pay “whatever the cost” on the spot if the fire department came, and that the fire department now will show up to a non-payer’s house for $3,500. Libertarian philosophy does not require the fire department to refuse to show up at the house despite the caller offering to pay a profitable sum for the service. And while there’s a fair moral argument to be had about price gouging, the fact that the house didn’t need to burn down even within an extreme libertarian framework should be a clue that the villain of Koppelman’s story isn’t actually libertarianism.

Consider the unseen alternative – a more familiar arrangement where a town’s fire department is supported by local taxes. Suppose instead of paying for fire protection, Cranick forgot to pay his local taxes by the deadline. The fire department would still arrive if his house was burning because the availability of the service wouldn’t be directly tied to the tax payment. But meanwhile the tax collection office would need to figure out how to incentivize Cranick and other townsfolk to pay their taxes so that the firefighters could continue to be paid and the fire department trucks and tools maintained. 

We could imagine a local government developing a harsh policy for non-payers – jail time and immediate, punitive fees. Criminal law scholars frequently emphasize the extreme harms from imprisonment – job loss, the ensuing loss of resources for dependent family members, and harms experienced by being incarcerated in a poorly-run prison system. We can easily imagine someone being imprisoned for not paying taxes, and that imprisonment being ruinous for the delinquent payer. 

What you may be thinking now though is, in most actual towns, Cranick would probably not go to jail for not paying his local taxes. As the original example tells us, he merely forgot to pay his fire protection bill. If he analogously forgot to pay his local taxes, most municipalities would send him a reminder notice, probably with a significant financial penalty attached. But his life wouldn’t be ruined – not because there couldn’t be disastrous consequences for not paying one’s taxes on time, but because the town or state’s decision-makers would probably decide it’s not (choose your moral value) fair or reasonable or kind enough to impose such severe consequences on someone for this kind of correctable mistake.

The upshot is: both private fire departments and public services could impose disastrous consequences for failing to pay the bill or could impose measured consequences. For example, if the private fire department took a more considerate approach, it could have sent reminder notices too, in big bold letters proclaiming that if the bill isn’t paid in six months, those suffering from fires would need to pay $3,500 “out of pocket.” In both private and public cases, enforcement mechanisms are necessary so that the fire department continues to function – though only in the public version could this enforcement involve the actual use of force – and in both cases there are kind and cruel ways of ensuring the department is funded which are entirely consistent with the underlying philosophies animating each situation.

I linger on this example to disagree with Koppelman’s claim that much wrong with current politics derives from libertarian philosophy. I’ll give him that some self-identified libertarians are more comfortable with the suffering of others than they should be, under a mistaken belief that people in bad situations might deserve them. But I dispute that the average libertarian or libertarianism-influenced individual is any crueler in practice than progressives and left-liberals and conservatives. A harsh person who is unwaveringly committed to their notion of the common good could judge a tax evader as unforgivingly as some libertarian-leaning commentators judged Gene Cranick.

Koppelman does connect callousness with libertarianism, however, arguing that some influential libertarian thinkers – mostly Ayn Rand – inspire a kind of unforgiving and unrealistic belief in “self-sufficiency.” And he’s right of course that most people are not self-sufficient throughout their whole lives and do rely on others for necessary support. But a lot of libertarians know that. Another book that looms large in the libertarian canon is Alexis De Tocqueville’s Democracy in America, which illustrates the important role of non-governmental groups in communities to facilitate the kind of care and mutual aid necessary in a society. It’s well known that community organizations and “third places” are on the wane, and too often are they completely forgotten in legal and policy discussions. Too often, choices of “who is responsible” for something are framed as a false binary between the government and an individual (or sometimes a nuclear family). But there are options besides a potentially coercive government and radically self-reliant individual, which libertarians often embrace. Most libertarians I’ve known – and I’ll admit this group is largely of professional libertarians who were working in Washington, DC, in the 2000s, and not necessarily a representative sample of all self-described libertarians – deeply recognized human interdependence and believed private ordering was a superior way of caring for each other than government apparati. I wish this perspective was more present in Koppelman’s book. 

All this to say, what Koppelman finds objectionable about how some would implement libertarianism is not inherent in libertarianism itself. No doubt Koppelman would say writers like Rand (but not necessarily Hayek) open the door to the kind of unforgiving behavior that destroyed Cranick’s house. But that observation proves very little. It’s hard to think of any political philosophy that doesn’t have a deeply ugly side that can catch hold – mass killings under communist regimes being a key, and frankly far worse, alternative example. All political philosophies aren’t morally equivalent, but to distinguish among them, we need to compare not just their theory, but their real and flawed implementations.

Koppelman gets some things quite right. I nodded along when he emphasized markets were the driving force in eliminating poverty. And I wholeheartedly agree that there are common enemies of progressivism and libertarianism, like crony capitalism, which could be better combated if politics in this country were healthier and alliances on particular issues were more possible. 

On balance, though, it’s challenging to engage with Koppelman’s critique of libertarianism because of the vast terrain covered in so little space. Hayek, Rothbard, Rand, Nozick and others have a family resemblance to one another, but hold varying values and views on a dozen issues covered in this book. Koppelman spends some meaningful time criticizing some of these individuals’ particular views, but when those particulars aren’t shared across the board, those criticisms don’t function as well as a critique of libertarianism itself. Considering these thinkers as a collective group, however, waters down the point by forcing us to frame the issues so generally: there are some thinkers who value liberty, negative rights, and/or freedom from active coercion, for economic and/or rights-based reasons, with varying degrees of openness to considering other values as well. These thinkers partially inspire other political and legal actors, most of whom have done objectionable things in Koppelman’s view. But the causal connections aren’t always terribly tight, and the harms of non-libertarian policy alternatives (such as the mass incarceration caused by anti-drug laws, in practice) are not always fully explored.

I also worry this book comes too late in our political discourse. Libertarians have long been villains for the left, but as “national conservatism” or the “new right” becomes ascendant, the best of libertarianism is also becoming vilified on the right. (Indeed, the growth of the new right within the Libertarian Party even caused the Libertarian Party of Virginia to vote to disband itself rather than get on board with the national party’s new platform.) But a respect for individual liberty is what facilitates a commitment to tolerance of different religions, ethnic and cultural backgrounds, and lifestyles, and abandoning libertarian values invites paternalism, tribalism, and authoritarianism. America needs more libertarianism right now, not less – along with more compassion and community. 

Christina Mulligan is Professor of Law at Brooklyn Law School. You can reach her by e-mail at

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