Eric Mack on Libertarianism
Libertarianism. By Eric Mack. Polity Press, 2018. Vi + 167 pages. + online bonus chapter http://politybooks.com/wp-content/uploads/2018/07/Mack-Libertarian-FINAL-Online-Chapter-pdf.pdf
Eric Mack, for many years a philosophy professor at Tulane University, has a well-deserved reputation as a critic of philosophical arguments, and that talent is on abundant display in Libertarianism. In what follows, I shall comment on only a very few of Mack’s penetrating discussions.
The book is intended as an introductory guide to libertarianism, which Mack characterizes as “advocacy of individual liberty as the fundamental political norm. An individual’s liberty is understood as that individual not being subject to interference by other agents in her doing as she deems fit with her own person and legitimate holdings.” (p.1) The position may be defended with varying degrees of strictness, ranging from hardcore libertarians, who confine coercion to the protection of individual liberty, to soft-core libertarians, who allow coercion for a few additional reasons, such as aid when people are in “dire straits.” As the extent of permissible coercion grows, libertarianism shades into classical liberalism.
What is the justification for libertarianism? Mack distinguishes three principal answers, though noting that libertarianism can be defended in other ways as well. “There is the natural rights theme, according to which certain deep truths about human beings and their prospective interaction allow us to infer that each person has certain basic (‘natural’) moral rights that must be respected by all other persons, groups, and institutions.” (p.40)
Here I wonder whether one should make a distinction. Sometimes people use the term “natural rights” to mean basic rights, but sometimes people have in mind a narrower usage. In this understanding, it follows from human nature that human beings have certain rights. For example, in the Objectivist philosophy, because you need freedom in order to survive as a rational being, you have a right to freedom. There is no “is-ought” gap. Philosophers like Nozick, who accept the is-ought gap, would in this usage count as supporters of basic rights but not of natural rights.
The second justification for libertarianism “is the cooperation to mutual advantage theme, according to which general compliance with certain principles of justice engenders a cooperative social and economic order that is advantageous to all its members.”(pp.4-5) These two justifications vie in popularity among libertarians, but there is a third justification as well, though this has been less influential. “A third possible approach. . .is a form of utilitarianism that maintains that the greatest happiness must be pursued indirectly through steadfast compliance with certain constraining moral norms—as it turns out, pretty much the same constraining norms that are celebrated by the natural rights and mutual advantage approaches.” (p.5)
Mack takes Locke to be an example of the first approach, Hume of the second, and John Stuart Mill and Herbert Spencer of the third. Among twentieth-century figures, he concentrates on Robert Nozick as a representative of the natural rights approach and Friedrich Hayek as a representative of the mutual advantage approach. Mack devotes most of the book to a close analysis of these two great thinkers. He mentions Murray Rothbard, who exerted a profound influence on Nozick, several times, but I wish he had devoted more space to him. Mack in the bonus online chapter subjects to critical scrutiny a number of contemporary libertarians: Hillel Steiner, Doug Rasmussen and Doug Den Uyl, Loren Lomasky, and David Schmidtz.
In what follows, I shall comment on only a few points. These concern Robert Nozick though some of the issues are relevant to others as well. This makes for an idiosyncratic review, but Nozick’s thought has fascinated me since I first encountered it some forty-five years ago, and that is why I have chosen this path. Despite the narrow scope of my review, I hope that readers will gain some idea of Mack’s concerns and his style of argument.
Mack gives an excellent account of the argument, given by both John Rawls and Nozick, that utilitarianism does not take seriously the separateness of persons. The greatest happiness principle may require that you sacrifice yourself for the benefit of society. But, so the objection goes, this wrongly assimilates an individual’s sacrifice of part of himself for his overall good to the sacrifice of a person for the good of society. You may need to have your leg amputated to save your life, but there is no social entity having persons as its parts.
Mack considers a utilitarian response to the point raised by Rawls and Nozick, which does not rely “on the conflation of persons into a social entity.” (p.45) This response is that “what makes it rational for an individual to incur a lesser cost within her own life in order to attain a greater benefit within her own life is simply that the benefit is greater than the cost. The fact that the cost and the benefits are hers---that they both occur with her life---plays no role in making rational the production of the greater benefit at the lesser cost. Therefore, no contentious inference is needed to get from the so-called principle of individual choice to the principle of social choice.” (p.45, emphasis in original)
Mack responds on behalf of Rawls and Nozick to this rejoinder. They might reply that the rationality of prudential sacrifices within the life of one individual is “far less contentious” than the utilitarian’s balancing of costs and benefits across lives. (p.46) Can one show that utilitarian balancing is rational, without assuming the existence of a social entity with persons as parts? It seems doubtful that one can.
Mack’s response is excellent, but another answer is also worth considering. James Buchanan maintains that if one takes adequate account of the subjectivity of costs and benefits, a cost or benefit exists only relative to a single person. Your cost or benefit may be a cost or benefit to me, but only if I view it as one. I do not say that this view is correct, but it is at least worth considering. (Amartya Sen, like Buchanan a Nobel laureate in economics, thought there was a great deal to be said in favor of Buchanan’s view) If it is correct, benefits and costs cannot be added up across persons.
After a careful discussion of Nozick’s condemnation of using others as means, Mack says, “Nozick is concerned that his unqualified condemnation of using others as means will support anti-libertarian prohibitions, , for example, taking pleasure in another person’s appearance or trading with another person to one’s advantage. He then rules out such implications by declaring that, for the purposes of political philosophy, we need only be concerned ‘with certain ways that persons may not use others: primarily, physically aggressing against them. [quoting Nozick, Anarchy, State, and Utopia]However, this restriction is ad hoc because no reason is given for why political philosophy should only be concerned with this subset of usings.” (p.49, emphasis in original)
I do not think this objection altogether fair to Nozick, though it would be no doubt desirable to show how this view of political philosophy can be deduced from moral theory, as Nozick acknowledges. Confining political philosophy to the topic of when force is permissible (or obligatory) is not idiosyncratic to Nozick but a commonly used approach, especially among libertarians. He might respond to Mack, applying a strategy he often used on critics, ---much to their frustration, I might add---- that the problem of why political philosophy is thus confined is no more a problem for him than for anyone else. As such, it should not be taken as a decisive criticism of him.
Mack makes an excellent criticism of Nozick’s argument that if one starts with a network of competing protective agencies, as free market anarchists like Rothbard wish, “one of the protective agencies or the cooperative network as a whole seems to attain a natural ( non-coerced) monopoly in the provision of protective services.” (p.117), Nozick contends that if an agency or group of agencies attracts more clients than its rival agencies, there will be a cascade of new clients to it, because people will find it less costly to settle disputes if they are in the same agency. This will enable the largest agency to become a de facto monopoly. Mack is skeptical: “The fact that it may be less complicated and costly to resolve automobile collision claims when both parties are customers of the same insurance company has not led to one company having a virtual monopoly within the automobile insurance business. In addition, Nozick’s argument seems to overestimate the homogeneity of the services that competing protective agencies would offer.” (p.117)
There is an additional point here that seems worth making. Suppose that the process Nozick describes results in everyone’s joining the same agency. In that case, we would not have a state as Nozick characterizes it, because one of his requirements for a state is that it offers free or low-cost protective services to disadvantaged independents who are not its clients. Thus, Nozick requires for his argument to the minimal state to succeed that the very process by which the derivation starts will come to an end before it completes itself, but he offers no reason for this.
Mack raises against Nozick the specter of public goods. “For our purposes here, we can think of a public good as a good which, if it is produced and enjoyed by some members of a given public, cannot readily be withheld from other members of that public. . .The standard and useful example of a public good is national-scale defense. . . The conventional economic wisdom. . .is that the total value of the orders that the state or firm [ that offers defense services]will receive will be markedly less than it naively expects.”(p.122) People will prefer to free ride, hoping that others will pay for the good; but if everyone reasons this way, the good will not be purchased.
Mack is certainly right that if anarchist protective agencies or a Nozickian minimal state, lacking the power of taxation, proved unable to supply effective defense, that would be a serious objection indeed. But I think his argument has moved too fast. According to the customary neoclassical analysis, public goods will not be supplied efficiently. It does not follow from that, though, that the good will not be supplied at all, or in a quantity insufficient to “do the job.” The extent of the supply is an empirical matter. It is not a requirement for a theory of libertarian rights that it never requires efficiency losses, as neoclassical theory defines these. (The same difficulty also applies to Mack’s argument for a “dire straits fund” on pp.39-40 of the online bonus chapter.)
Suppose, though, that the free market turns out to be unable to supply defense. Would Mack then be correct when he says that a taxation minimal state may be justifiable on Nozickian grounds? He says, “Persons’ rights indicate what must not be done to them---or more specifically, what must not be done to them without their consent. But what about cases in which consent is not feasible?. . .A person’s right over her own body entails that she has a right not to be cut open without her consent even by an expert surgeon seeking to save her life. However, what if the person who needs that surgery to save her life is already unconscious and, hence, unable to give consent? If it is permissible for the surgeon to proceed with the needed surgery on the already unconscious individual, this seems to be true because the requirement that the subject consent to the physical intervention is really a requirement that she consent if and only if consent is feasible.” (pp.123-124)
If this is right, then, “the libertarian advocate of the TMS may argue that, precisely because of the non-feasibility of attaining consent from individuals to make payments in exchange for the public good of rights-protection, it is permissible to impose those payments without actual consent.” (p.124, emphasis in original)
I do not think this argument succeeds. In the first case, it is permissible to proceed with the life-saving operation because there is reason to believe that is what the patient would want. Most people would. Had she given instructions beforehand not to operate, then the operation would not be permissible. In the taxation case, the reason consent is not feasible is that people refuse to consent. It is hardly plausible to say that I may force you to pay me for my services, because, owing to your refusal of my services, getting your consent is not feasible.
Mack himself raises an important problem for the argument for the taxation minimal state. ”Recall. . . . .that this defense of the TMS turns on a striking assumption about information. It assumes that the state’s tax assessors would know, for each assessed party, what magnitude of taxation would leave that party net better off in light of the value for that party of her receipt of the tax-funded public good of protective services.” (p.124)
In Libertarianism, Mack does not, for the most part, discuss his own views but confines himself to the exposition and criticism of others. An exception is his brilliant presentation of Mises’s calculation argument against socialism (pp.58 ff.), one of the best known to me, where it is clear that he endorses the argument. Readers should be aware though, that Mack has written a large number of papers setting forward his own views in great depth and detail. Readers of Mack’s work will encounter a very fine philosophical intelligence. Few can approach his power of critical analysis. Libertarianism is must reading for anyone interested in libertarian theory.
 For challenges to the neoclassical analysis of public goods, see Ludwig von Mises, Human Action, Chapter 23, pp.650 ff; and Anthony de Jasay, Social Contract, Free Ride. See also the discussion in David Schmidtz, The Limits of Government.