Murphy and Nagel on the Illusions and Confusions of Libertarianism

One main purpose of Liam Murphy and Thomas Nagel’s The Myth of Ownership (M&N 2002) is to explain why the appeal of libertarianism — especially the appeal of its invocation of property rights in its complaints about taxes — is based on illusion and confusion. According to M&N, the appeal of libertarianism arises from people’s failure to appreciate the significance of property rights being creatures of legal conventions and of property rights being made possible by tax- funded state action. Their core message takes a leaf from the book of Rousseau. Property rights are not the bounty of nature but, rather, they are the gift of the state; and when in its wisdom the state reorganizes or redistributes property, individuals can have no complaint based on natural moral rights. Stated more fully, “a dominant theme” of their discussion is:

Private property is a legal convention, defined in part by the tax system; therefore, the tax system cannot be evaluated by looking at its impact on private property, conceived as something that has independent existence and validity. Taxes must be evaluated as part of the overall system of property rights that they help to create. Justice or injustice in taxation can only mean justice or injustice in the system of property rights and entitlements that result from a particular tax regime. (2002: 8)

M&N say that private property is a matter of convention and that private property is made possible by the state and its tax system. It is not entirely clear what the division of labor is between these two claims. Perhaps it is something like this: First, since private property is a matter of legal convention (which M&N automatically construe as state-established convention), private property has no “independent existence and validity.” Private holdings would have independent existence and validity if they were reflective of natural rights. However, they cannot be reflective of natural rights because they are entirely creatures of convention. Second, taxes are necessary to fund the legal conventions that establish and enforce property rights; and taxes also support a range of entitlements to goods and services provided by the state. What is subject to assessment is the whole complex of existing private holdings, taxes, and entitlements. A variety of moral considerations may enter into this assessment. However, it is illicit to appeal to natural rights considerations even in the assessment of the system as a whole.

Perhaps, natural rights considerations are excluded because M&N implicitly hold to the Benthamite view that all rights are merely matters of actually existing legal or moral conventions. “Most conventions, if they are sufficient entrenched, acquire the appearance of natural norms; their conventionality becomes invisible” (2002: 9). The appearance that natural norms are embodied within or manifested by the conventions is always mere appearance. Aside from legal conventions definitive of legal rights, M&N mention societal conventions governing different roles for men and women. And they then declare, “it is essential, in evaluating [conventions], to avoid the mistake of offering as a justification precisely those ostensibly ‘natural’ rights or norms that are in fact just the psychological effects of internalizing the convention itself” (2002: 9). M&N offer belief in extra-legal property rights as their prime example of a belief that is simply “an unreflective sense of what are in fact conventionally defined property rights.” This lack of reflection gives «… rise to an even more confused criticism of the existing system on the ground that it violates natural property rights, when, in fact, these ‘natural’ rights are merely misperceptions of the legal consequences of the [conventional] system itself” (2002: 9). According to M&N, “the instinctive sense of unqualified ownership has remarkable tenacity” (2002: 35). However, this never suggests to them that anything other than confusion and illusion might lie behind this “instinctive sense.”

As far as I can see, M&N never offer parallel debunking analyses of norms that they want to appeal to in their assessments of existing systems. They never say

Here are conventions that seem to embody or manifest norms of equality or fairness or benevolence; but one must avoid the mistake of appealing to equality or fairness or benevolence as justifications for these conventions. For our attachments to equality or fairness or benevolence are in fact the psychological effects of internalizing those conventions.

Nor do they ever say that appeals to the extra-legal (“natural”) rights that they wish to invoke, for example, rights of “freedom of expression, freedom of religion, freedom of association” and so on (2002: 64) are “merely misperceptions of the legal consequences of the [conventional] system itself.” For M&N, it is entirely sensible to oppose a restriction of speech by invoking a moral right to free speech that is the justification for existing or proposed legal conventions that are protective of speech, while it is unreflective confusion to oppose a restriction on someone’s use of her property by invoking a moral right to property that is the justification for existing or proposed legal conventions that are protective of property. The result is a ban on appeals to any sort of natural rights arguments in the assessment of positive law governing property, contract, or taxation. M&N are comfortable with this ban partly because they construe any appeal to natural rights of property as bare, foundationless assertions. Any such appeal simply takes such rights «… as given, and neither in need of justification nor subject to critical evaluation” (2002: 8). I hope that one lesson of this book is that libertarian theorists — including those who cast their arguments in the language of natural rights — do not take property rights «as given, and neither in need of justification nor subject to critical evaluation.”

M&N do offer a rationale for distinguishing between «the basic personal rights: freedom of expression, freedom of religion, freedom of association” and so on (2002: 64) and rights to enter into voluntary economic contracts and to retain the fruits of one’s labor. Their claim is that the former rights are included within the «… degree of sovereignty over themselves [that individuals retain] even when they are members of a collective social order” (2002: 64) while the latter rights are not. For, M&N maintain, the choices or activities that are protected by «basic personal rights” are «at the core of the self” (2002: 66), while the choices and activities protected by the economic rights are not. However, this claim is deeply problematic. This affirmation of basic personal rights runs counter to M&N’s general skepticism about extra-legal rights. If, despite that skepticism, M&N affirm extra-legal rights of expression, religion,

peaceful conditions of cooperation than it would have to demand adherence to a particular religion for the same reason. To champion other liberal rights while belittling economic freedom is morally inconsistent. That is the libertarian position. (2002: 66)

And, then, M&N offer no rebuttal to this challenge. They simply say that, “we are out of sympathy with it” (2002: 66).

M&N’s core argument seems to turn on the proposition that, if the state articulates and enforces rules that enable people to enjoy certain property rights, taxes and regulates that property in various ways, provides diverse goods or services to property holders and others, and those property holders are better off than they would be without the state, then those propertied individuals cannot claim that the taxes and regulations imposed on them by that state are unjust. (For M&N, it is really easy for the state to render everyone better off since the alternative to the state is the Hobbesian state of nature.) Here’s one (fictional) example that brings out the implausibility of M&N’s key proposition. Recall the original (1960) version of the movie, The Magnificent Seven. Calvera (played by Eli Wallach) and his band of banditos have been preying upon a village of peaceful Mexican farmers for years. Some of the villagers convince Chris Adams (played by Yul Brynner) to recruit a band of out- of-work good guys to protect the village and association, we need an explanation for why these affirmations are not merely errors that arise from our familiarity with conventional protections of freedom of expression, religion, and association. By and large, existing positive law still is more strictly protective of freedom of expression, religion, and association than it is protective of freedom to do as one sees fit with one’s labor, talents, and property. So, given M&N’s belief about our disposition erroneously to infer extra-legal rights when we encounter conventional rights, shouldn’t we be more suspicious of extra-legal personal rights than extra­legal economic rights? M&N perceive interferences with one’s “right to speak one’s mind, to practice one’s religion, or to act on one’s sexual inclinations” (2002: 65) as markedly more crucial to human autonomy than the grubby freedom to operate a food truck despite the city council machinations of restaurant owners to forbid competition, or to sell oranges one has grown to willing buyers without the constraints imposed by a state marketing board. But perhaps the autonomy that is crucial to some people is not the autonomy that is crucial to others. Nevertheless, to their credit, M&N do articulate the libertarian objection to their selective affirmation of rights.

The state has no more right to demand a cut of the profits for redistribution in exchange for its maintenance of the of expression, freedom of religion, freedom of association” and so on (2002: 64) and rights to enter into voluntary economic contracts and to retain the fruits of one’s labor. Their claim is that the former rights are included within the degree of sovereignty over themselves [that individuals retain] even when they are members of a collective social order” (2002: 64) while the latter rights are not. For, M&N maintain, the choices or activities that are protected by “basic personal rights” are “at the core of the self” (2002: 66), while the choices and activities protected by the economic rights are not. However, this claim is deeply problematic. This affirmation of basic personal rights runs counter to M&N’s general skepticism about extra-legal rights. If, despite that skepticism, M&N affirm extra-legal rights of expression, religion, and association, we need an explanation for why these affirmations are not merely errors that arise from our familiarity with conventional protections of freedom of expression, religion, and association. By and large, existing positive law still is more strictly protective of freedom of expression, religion, and association than it is protective of freedom to do as one sees fit with one’s labor, talents, and property. So, given M&N’s belief about our disposition erroneously to infer extra-legal rights when we encounter conventional rights, shouldn’t we be more suspicious of extra-legal personal rights than extra­legal economic rights? M&N perceive interferences with one’s «right to speak one’s mind, to practice one’s religion, or to act on one’s sexual inclinations” (2002: 65) as markedly more crucial to human autonomy than the grubby freedom to operate a food truck despite the city council machinations of restaurant owners to forbid competition, or to sell oranges one has grown to willing buyers without the constraints imposed by a state marketing board. But perhaps the autonomy that is crucial to some people is not the autonomy that is crucial to others. Nevertheless, to their credit, M&N do articulate the libertarian objection to their selective affirmation of rights.

The state has no more right to demand a cut of the profits for redistribution in exchange for its maintenance of the peaceful conditions of cooperation than it would have to demand adherence to a particular religion for the same reason. To champion other liberal rights while belittling economic freedom is morally inconsistent. That is the libertarian position. (2002: 66)

And, then, M&N offer no rebuttal to this challenge. They simply say that, “we are out of sympathy with it” (2002: 66).

M&N’s core argument seems to turn on the proposition that, if the state articulates and enforces rules that enable people to enjoy certain property rights, taxes and regulates that property in various ways, provides diverse goods or services to property holders and others, and those property holders are better off than they would be without the state, then those propertied individuals cannot claim that the taxes and regulations imposed on them by that state are unjust. (For M&N, it is really easy for the state to render everyone better off since the alternative to the state is the Hobbesian state of nature.) Here’s one (fictional) example that brings out the implausibility of M&N’s key proposition. Recall the original (1960) version of the movie, The Magnificent Seven. Calvera (played by Eli Wallach) and his band of banditos have been preying upon a village of peaceful Mexican farmers for years. Some of the villagers convince Chris Adams (played by Yul Brynner) to recruit a band of out- of-work good guys to protect the village against the banditos in exchange for food and lodging. (However, let us ignore this contract as we should ignore any claim that the state is created by a social contract.) The banditos attack; but they are driven off by Brynner and his six colleagues. But, now envision a philosophical epilogue to the movie in which Adams finds and reads The Myth of Ownership.

Enlightened by this work, Adams announces that he and his heroic colleagues will be constituting themselves as a state and as this state they will be sticking around to protect the village against subsequent bandito predation; and he and his colleagues will only extract from the villagers 85% of what the banditos have extracted. He explains to the somewhat stunned villagers that, while there may be some sort of moral considerations that speak against the system under which they will now live, they can have no complaint against the system on the basis of their rights to their pre-tax income. To dramatize his stance, Adams orders that the following explanation from The Myth of Ownership (2002: 32-3) be painted on the wall of the village barn — merely substituting “safety from banditos” for “markets” and adding an appropriate parenthetical clarification:

There is no safety from banditos without government and no government without taxes. … It is therefore logically impossible that people should have any kind of entitlement to all (or any of) their pretax income.

M&N’s main argument seems to make no essential use of their repeated assertion that property rights are the creatures of conventions and, therefore, can have no “independent existence and validity.” However, it is easy to construct an argument that centers on this assertion and fits comfortably within M&N’s overall perspective. The value of considering such an argument is that the libertarian response to it involves a nice fusion of the Lockean-Nozickian and Humean-Hayekian strands within libertarian theory. The anti­libertarian argument is that libertarian theorists purport to have insights about people’s basic natural rights or about the principles, compliance with which make peaceful and mutually beneficial social order possible. Yet the abstract principles that libertarian theorists purport to discover and prize lack connection to and relevance for the vast array of much more concrete rules on which actual peaceful co-existence and cooperation to mutual advantage depend. According to this anti-libertarian argument, these abstract principles are at best pie in the sky, while the really fruitful stuff is the array of much more specific conventional rules by which we navigate our interactions with one another. M&N might argue that, since those more fine-grained conventional rules do the work of specifying people’s actual rights, it makes no sense to invoke those abstract natural rights in assessing those rules; nor do those abstract natural rights play any proper role in assessing the legal rights created by those conventional rules. The conventional legal rules say that I have a right to that portion of my income that those rules allow me to retain — until those rules are changed. According to M&N, a moral assessment of the whole system of rules and its consequences is possible; but not on the basis of those pie in the sky natural rights.

At the core of this sort of reasoning is the presumption that, if natural rights theorizing is to be relevant to the assessment of actual, real-life, concrete rules, that theorizing itself must deliver affirmations or denials of those concrete rules. According to this presumption, if I assert that I have justly acquired a certain five-acre patch of previously unowned land by driving forty stakes with my name on them along the boundary lines of those five acres, natural rights theory can only support my claim by providing a philosophical proof that driving in forty such stakes is the morally valid way to acquire five acres of previously unowned land. Since it is silly to think that natural rights theorizing can provide such a proof, the conclusion is reached that, ceteris paribus, whether driving in the forty stakes creates a right to those five acres is purely a matter of convention.

However, just about every advocate of natural rights (or principles of natural justice) rejects this presumption and, instead, offers a picture in which there is a division of labor between assertions of natural or basic rights (or principles of natural justice) and convention. The main contentions of such advocates are:

  1. Abstract natural or basic rights or principles of justice limit the sets of more fine-grained rules that are morally eligible for adoption. (For instance, the conventional rules governing property within the regime established by Chris Adams would violate the peasants’ abstract natural right to the fruits of their labors.)
  2. Abstract natural or basic rights or principles of justice do not dictate a single set of more fine-grained rules that must be adopted in the name of those rights or principles. There are many imaginable sets of more fine-grained rules that are eligible for adoption as articulations of those abstract natural or basic rights or principles of justice.
  3. If a morally eligible set of usefully fine-grained rules does come into existence — whether through pure historical contingencies, through a Hayekian evolution of norms, or through Nozickian-minded CEOs — a key basis for respecting those rules will be their instantiation of otherwise merely abstractly stated moral rights or principles of justice.
  4. A further basis for reciprocal compliance with any set of morally eligible and fine­grained rules that we might be lucky enough to find in operation is that such compliance enables those rules to do what they are supposed to do, viz., facilitate rights-respecting and mutually beneficial interaction among us. Nozick himself makes a parallel point about how a particular location becomes “the place to go” for teenagers in pursuit of company. It does not become the place to go by being the eligible place that philosophical reasoning identifies as the place to go. Rather, it becomes the place to go because “others benefit from, and count upon, your converging upon that place, and similarly you benefit from, and count upon, their congregating there” (1974: 140). Similarly, a set of eligible fine-grained rules become the rules to comply with by being a set of such rules that we are apt to converge upon.

Locke understood the need for the concretization of otherwise merely abstract laws of nature and the fact that those laws of nature nevertheless remain the basis for compliance with the acceptable concretizations when he wrote,

The obligations of the law of nature cease not in society, but only in many cases are drawn closer, and have by human laws known penalties annexed to them, to inforce their observance. Thus the law of nature stands as an eternal rule to all men, legislators as well as others. (1980: §135)

Such a view is common among more recent libertarian authors who are within or close to the natural rights camp. Nozick himself points out that it would be an error to think that natural rights constitute “some set of principles obvious enough to be accepted by all men of good will, precise enough to give unambiguous guidance in particular situations, clear enough so that all will realize its dictates, and complete enough to cover all problems that will actually arise” (1974: 141). Rasmussen and Den Uyl deny that philosophical reasoning can identify some best set of fine­grained property rules. Instead, there is a considerable range of eligible sets of rules any one of which would satisfy the telos of property rights (2005: 103). The vagueness of fundamental principles is remedied by contingencies that present them to us in more fine-grained form. Thus, Lomasky maintains that «The basic liberty right to acquire and use property is made concrete through the social recognition of conventions that define which actions constitute appropriation and transfer of property” (1987: 123). For an extensive development of the idea that the natural and abstract right of property is a right to others’ compliance with whatever set of more fine-grained and largely conventional rules actually serve to define for a society a coherent practice of property, see Mack (2010).

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