Question regarding the right to freedom of contract

Question for fellow-bloggers and readers generally (if there are any): does the right to freedom of contract depend on the existence of a "free market" social context?  In other words, if we are in a social context that would be accurately characterized as an "unfree market" (in the moral sense, i.e., depending upon a moral ideal of a "free market"), would individuals possess the right to freedom of contract, or is that right somehow circumscribed and limited in specific ways (the particular limitation determined by the nature of the normative "facts" on the ground)?

Quote of the Day

From Loren Lomasky, Libertarianism as if (the other 99 Percent of) People Mattered, 15 Social Philosophy & Policy 350, 369-70 (1998):

That brings us to the question of that which is beyond the pale of toleration by cooperative libertarians. I do not have any neat schematism for the display of these breaches. Rather, I can offer nothing more exact than this rule of thumb: All those measures that deliberately or foreseeably trample on the rights-respecting activity of some to advance the interests or designs of others merit all the disdain and noncooperation libertarians can muster. If slavery were still around and enjoyed the support of millions of one's compatriots, it would be the paradigm of an institution with which no accommodation is possible. But it is not exactly bold and provocative theorizing to send one's moral principles into battle against Simon Legree. Since slavery is blessedly dormant, the War on Drugs is perhaps the best example of a contemporary practice enjoying wide popularity with which libertarians must conscientiously refuse any degree of accommodation. Hundreds of thousands of individuals have been jailed for illicit chemical consumption; civil rights have been obliterated by glinty-eyed G-Men; vast swatches of our cities have been rendered unlivable by fallout from the battles. To be sure, drug crusaders have offered rationales for these policies, rationales that invoke timehonored moral concepts. Some drug warriors profess that by threatening to lock up drug users and then carrying out those threats, they are acting for the sake of the users' good. It is a wondrous if not entirely benign feature of human lips that they can be employed to say virtually anything. This is one of those cases where discernment is needed to distinguish between the plausible and the pathetic. The level of discernment which is needed to see through the various drug czars' rhetoric does not, I confess, seem to me to be great. Whether great or small, though, I do not see that a conscientious libertarian can have any truck with this crusade. One may not relieve oneself of the burden of one's unpleasant neighbor by informing the authorities where he keeps his stash, and one may not become one of those authorities. Period

Quote of the Day

I highly recommend Loren Lomasky’s Libertarianism as if (the other 99 Percent of) People Mattered, 15 Social Philosophy & Policy 350 (1998).  This article deals clearly with many issues I have been thinking about, specifically the relation between libertarianism and democracy.  Indeed, the fundamental issue Lomasky sets out to resolve is the relation between two facts (if one is a libertarian): (1) Libertarianism is the correct political morality, (2) the vast majority of our fellow citizens disagree with the status of libertarianism.  Here is an excerpt:

“For those who believe that libertarian precepts can be read off the book of nature by all those who enjoy the moral equivalent of something like a tenth-grade reading level, it is virtually unavoidable that those who fail to subscribe to libertarianism will be regarded as dunces or as wicked. The alternative libertarianism, what I shall refer to as cooperative libertarianism, is more generous. It is willing to concede that the nonlibertarians among whom one lives are mostly well-meaning, honorable people with whom one may cooperate without thereby dishonoring oneself. (Of course, just as the fact that one is paranoid does not mean that one has no real enemies, so too are there nonlibertarians—and libertarians!—who genuinely are evil and stupid.) Nonlibertarians are, to be sure, importantly mistaken concerning a momentous matter, but that mistake discredits neither their intellect nor their character. Possession of moderate goodwill and moderate intelligence do not immunize people from statist persuasions. Indeed, neither does an abundance of goodwill and intelligence. That is because the moral terrain that must be traversed in order to arrive at the libertarian destination is steep, rocky, and dotted with mirages. Nongeneralizable items within one's personal experience heavily influence the likelihood that one will achieve that happy consummation. Rawls refers to these epistemic obstacles as the "burdens of judgment.”  Let me offer some examples that specifically relate to acceptance of (L). …” [at 360].

Vallier's Libertarian Rehabilitation of Hobbes

Check out Kevin Vallier's interesting post on Hobbes, public reason, and libertarianism.  From the post:

However, the problem with traditional libertarians is that they confine the range of reasonable disagreement to disputes about how to make libertarian property rights more determinate and resolve disputes among legitimate property holders. In other words, they think the range of disagreement is rather small and so arbiters have limited authority.

But let’s confront traditional libertarians with an undeniable truth: reasonable people disagree about way more political and moral matters than the scope of libertarian property rights. In fact, the large majority of reasonable people find libertarian conceptions of property rights deeply objectionable. And many of those reasonable disagreements remain after they become familiar with libertarian arguments.

So let me pose a question to traditional libertarians (related to one of my previous posts): you want to set up a libertarian society because you think it is required by justice and to serve the common good. But your free and equal fellows reasonably reject your conception of property rights. As a result, the coercion you are prepared to use to defend your property against their encroachments will be coercion that they have strong reason to reject.

Libertarians avoid the problem of private judgment by implicitly assuming that libertarian property rights are the default no-coercion point. A society without coercion is a society with property rights. But that’s false. Property rights are coercive. That does not mean that property rights cannot be justified. It just means that the coercion involved in defending property rights must be justified to all persons.

...

Traditional libertarian, in at least one sense, Hobbes was less authoritarian than you.

Take a look at the whole post. Worth the read. I had a follow up comment in the Comments section:

Great post, Kevin, although I prefer more of a Lockean framework (very similar to Hobbes on the need for public authority due to differing interpretations of right reason, the umpire function, etc.).

Doesnt Hobbes allow for an existing Sovereign to conquer others, and thus, in the end, all that really matters is the power/ability to enforce norms?

How much of this relies on a prescriptivist view of "moral talk"? Is the Gausian view undermined if moral practice and moral claims are not authoritarian in the face of disagreement?

Gaus seems to pooh pooh the particularity problem (see OPR, p. 471, n.39), but it seems to me that he simply pushes it back a level to the level of "social morality." Hobbes and contractualism also seem unable to adequately answer Simmons: who ought to be subject to the contractarian requirements in the first place? What makes up a legitimate polity? How do we determine the boundaries? I'm not pursuaded by the "well, we'll just rely on history to answer that one" argument.

Kevin's response:

I think that constructivists about moral and political authority (which includes most contractarians) will answer that moral authority requires shared norms, practices, ideas, etc. The reason that Rawls privileges nations, in my view, is that they have a much higher degree of shared social practices and ideas and so can form a moral and political order with a thick enough set of norms to warrant other nations treating them as a unit. I think Jerry has a similar view, though he explicitly extends public justification to trade networks, as I remember from OPR. You might also read the appendix in Justificatory Liberalism on this subject.         

Re: Re: Property Requirements for Voting and Other Misguided Ideas

Here is a response by a different commentator to my reply over at that dogmatic libertarian blog.  It is nice to see a somewhat more reasoned response and at least some willingness to engage in philosophical debate.

Too many floating abstractions in what you have provided. Start by considering what property is, what an owner of property is, the relationship between the two and why it is up to the owner to determine what the use of HIS property is to be.

Quoting, “If I choose to play Russian roulette with your head and the chamber that comes up happens to be empty, would I have “interfered” with your liberty?”

In this instance you are choosing to threaten the well-being, indeed the very life, of another person with an extreme violence and very destructive behaviour. Whatever happens they will never be the same after your offensive action. What gives you the right to dispose of their life, or threaten to, in some game of chance you operate? Turn the scenario around and consider whether I have a right to put a gun to your head. Do I own your life? Is it mine to dispose of in a game of chance, according some arbitrary whim I wish to play through? Are you my property to injure, make suffer, torture, bully, threaten, scare, emotionally scar etc? Whose property is your body and your life? Can any other person have the right to own it?

You need to carefully consider what property is and what that means. I recommend you read some of Prof Hans-Herman Hoppe’s work on ths subject. That would be a strong running start.

You write, “Does driving 65 mph rise to this level of risk/threats? Does 75? How about 95mph? Most importantly, who decides?”

The owner of the property decides. Ask for the name of the owner of the road. After all, it is the owner of the property who decides what the rules of said property are going to be. He sets the rules and you follow them if you wish to use his property, in this case a road. Hence, if you decide that a road where the owner has set no speed limit is too dangerous for you, then you don’t go there. He owns his property, just as you own yours (you own yourself). Now if the road owner set a limit of 5mph and required the presence of a man with a red flag, then you’d need to obey that (assuming you want to drive on his road). If not, then do not go there. It’s his property and so he decides what the requirements for you to use his property are. Simple enough really.

Quoting, “I will demand a say in the process.”

You can demand all you like but you have no control over the disposition, employment and/or disposal of that which is not your property. It aint yours, so as a non-owner you have no say in the process the owner employs to decide what to do with his property. Sure, you might like to try and persuade him to choose a particular option from a set of alternatives, but he is ultimately the one who decides. It has nothing to do with you. You have no say in his business. That is, HIS property.

Quoting, “Driving a car that releases substances that are causally contributory to cancer and other diseases is an interference.”

You would need to prove that the use of the car was causal. That is, you need to prove that specific substances caused your cancer and that they were sourced from a car. If you can show that then you have a case which requires redress. If not, then there is nothing to consider. All you would have accomplised then is the generation of an arbitrary claim (an equivalent of saying there are fairies in my garden).

None of this requires a democratic process, a say, voting, a decision making procedure or any of that. What it does require is the thorough understanding of what property is.

Here is my response:

Thank you for the response. Here are my disagreements.

First, the two examples were meant to indicate that risky behavior and/or threatening behavior are additional burdens for a libertarian theory of basic rights that cannot be determined by resort to simple noninterference/nonaggression without an additional theory of impermissible noninterference. Here is a slight alteration of the Russian roulette example. Suppose that I perform this twisted game while you are sleeping at my house (you needed a place to crash after watching the Giants beat the Falcons). I pull the trigger but alas the chamber is empty. You are never the wiser to this occurrence. I believe that this Russian roulette is morally impermissible and exemplifies the fact that risky behavior, in addition to physical force, violates basic rights. But once we recognize this moral fact, many additional issues arise: what other behavior is impermissibly risky? For example, should we allow a train to pass by my property despite the fact that it may produce sparks and light my house on fire? What gives them the right to risk my property and my life? You can cite to Hoppe all you want, but reasonable people, including reasonable libertarian philosophers, disagree on these issues. Who decides?

This brings me to my second point. I am familiar with Hoppe, I have read Rothbard numerous times, and I am very familiar as to what “property” is and requires. (In actuality, it is not “property” that is important but the concept of “rights.” Property in and of itself has no moral value. Only the addition of “rights” gives the concept of property any moral standing.) That being said, it is the case that reasonable libertarian philosophers disagree over the nature and extent of property rights. Indeed, Roderick Long, a card-carrying member of the LvMI community, argued for the importance of recognizing public rights in property, thus re-opening all the questions of risky behavior as exemplified by the speeding example. Whether you agree with him or not, whether he is correct or not, is beside the point. What is important is that his view is reasonable. Unless you profess to transcend the realities of the human condition and our limited cognitive capacities and knowledge, you will recognize the potential fallibility of your own position. This does not mean you should give up in setting forth a conception of justice and property rights; rather, it means you ought to recognize that reasonable people can and do disagree, even within the libertarian framework.

Third, you note that “You can demand all you like but you have no control over the disposition, employment and/or disposal of that which is not your property. It aint yours…” The problem here is that the issue precisely is which property is rightfully whose and the requirements of justice. To the extent that I disagree with Owner X’s claim to justice and a certain conception of property rights, I will thereafter claim a right to reparation for harm. In pursuance thereof, I will “get my boys” and make damn well sure that I have “control over the disposition, employment and/or disposal” of what I believe is my property. You can pound the table all you like with Hoppe and Rothbard, but I will pound the table in return with Lomansky, Gaus, Nozick, and Locke. To make things really interesting, I could introduce David Friedman and other utilitarian anarchist-capitalists and/or libertarians (such as Richard Epstein) in order to really illustrate the disagreements possible in a libertarian political unit. Again, who decides?

The libertarian theories of property rights, contract rights, torts, etc. do not provide for an all-encompassing, self-contained, neatly packaged institutional system with no room for reasonable disagreement. So there will always be disagreement, even among libertarians, as to issues such as criminal punishment, adverse possession, intellectual property (cite all you want to Kinsella, libertarians disagree), easements, “offer and acceptance,” drunk driving (if public property is recognized), negligence, etc. You may have your own theory (or Hoppe’s) hoping to provide an answer to these problems, but so will others with incompatible and mutually exclusive solutions. The issue thus falls back once again to who decides. Who has the authority to settle these disputes? Who has authority to enforce settlement?

Because decisions must be made on these issues and because of the realities of the human condition–cognitive biases, moral fallibility, limited knowledge–individuals will reasonably reject the claim of philosopher kings to posses moral and political authority. Their claim “to know” better than everyone else (i.e., a claim to theoretical authority) will be looked at with reasonable suspicion, especially if they are unwilling to listen to and take note of voices of disagreement in a deliberative and inclusive process. Their claim to the obligatoriness of their conception of morality, justice, and property rights (i.e., a claim to practical authority) will thus be reasonably rejected, for they have not been able (or willing) to justify to their fellow libertarian citizens their imposition of a political system. They will thereby lack the moral legitimacy to enforce their regime.

Re: Property Requirements for Voting and Other Misguided Ideas

Here is a sadly amusing reply to my comment over at that dogmatic libertarian blog:

"Sounds like Marxist claptrap to me. I even note you included a proletariat backstory to lend authenticity to your views. Also, why is justice in quotes?

Anyone disagree?”

This is the type of silliness, dogmatism, and ignorance within certain Austro-libertarian circles that saddens me.  As you all may know, this characterization of my views is pretty comical.  It’s unfortunate that diversity of views and informed discussion and debate is shunned by these factions within the “libertarian tent.”  Here is my response:

Wow, I can honestly say that I have never been called a "Marxist" before.  Although certainly not on my bucket list, I guess I owe you thanks for helping me check that one off.

First, the back story is not to lend authenticity to my views.  I could have picked any two different individuals from vastly different communities with vastly different backstories to make the same point.

Second, I put *justice* in quotation marks not intending to use scare quotes, but to emphasize that justice is an interpretive concept susceptible to differing conceptions and in need of moral argumentation in support of the conception put forth.  Perhaps I should have used italics instead.  My apologies.

Third, in order to assuage your concerns vis-a-vis a Marxist conspiracy, I will simply note that the problems associated with the human condition (moral fallibility, cognitive biases, limited information) is front and center in the political theory of John Locke.  Cognitive biases is what Locke is after in discussing the problems associated with persons "being a judge in their own case."  Fast forward a few centuries to the point I was making above in response to the claim that only property owners should be afforded the franchise: if I know that persons' conceptions of justice are skewed by their cognitive biases, thereby downplaying my interests in favor of their own (even if granting them good faith), it is unjustifiable to enforce those laws against me in which I had no say in their process of promulgation, i.e., those laws in which I was denied participation.  This is because these laws are necessarily skewed in favor of those who took part in the law-making process. 

Moreover, although this problem is acute in a pluralistic political unit in which people fundamentally disagree over the principles of justice and the good life, it is also a problem in more homogenous societies.  So even if we assume a libertarian political community in which all the citizens agree on the fundamental principles of justice (liberty as noninterference, Lockean homesteading, vast contractual rights, etc.), people would *still* disagree over the contours of these rights and their application.  For example, what is the status of risky or threatening behavior?  If I choose to play Russian roulette with your head and the chamber that comes up happens to be empty, would I have "interfered" with your liberty?  And if so, what of other risky or threatening behavior?  Does driving 65 mph rise to this level of risk/threats?  Does 75?  How about 95mph?  Most importantly, who decides?  In light of cognitive biases, moral fallibility, and limited information, I will not simply trust you and a small group to make the proper decisions.  I will demand a say in the process. 

Another example in case you are unconvinced.  As noted by David Friedman and Loren Lomasky, the rather miniscule 'interferences' in property and causal determinants of 'interference' raise questions of what is an *impermissible* interference.  Driving a car that releases substances that are causally contributory to cancer and other diseases is an interference.  So is shining a flashlight onto someone's property.  Are these *interferences* to be proscribed in the libertarian society?  The answers are not obvious and reasonable libertarian philosophers and citizens alike disagree.  The basic point is that these determinations do not read off of "the libertarian ideal" in a straightforward deductive way.  Nevertheless, a decision *must* be made: are we to forbid these actions or allow them?  Because a decision must be taken, a decision procedure is required.  This is where the democratic ideal comes into play: in light of the human condition (cognitive biases, moral fallibility, limited information) individual citizens are entitled to a say in the process of decision-making if they are to be obliged to abide by the system of laws and property rights in existence in the libertarian political society.

Equality and libertarianism

Libertarian political philosophy is often criticized for not taking equality seriously as an important political value.  Is this charge legitimate?  Do libertarians reject the idea of equality as such?  Do they reject the idea that “everyone is equal”?

To understand the controversies regarding equality, one must first understand the nature of equality as a political ideal.  An important and fundamental distinction to understand (made by Ronald Dworkin) is between “treating an individual equally” and “treating an individual as an equal.”  Treating someone equally means acting in such a way that affects their position along a particular dimension equally (e.g., to the same distribution of goods or opportunities).  Treating someone as an equal requires treating them with “equal concern and respect.”  Treating someone with “concern” is to treat them “as human beings who are capable of suffering and frustration.”  Treating someone with “respect” is to treat them “as human beings who are capable of forming and acting on intelligent conceptions of how their lives should be lived.”

Treating individuals “as equals” is a higher-order principle than treating them “equally.”  This is because treating equally requires equal treatment along some dimension.  But treatment can always be compared along multiple dimensions.  One need only to look to the familiar political slogans regarding economic distribution to see how this is so: (1) ‘To each according to his needs’; (2) ‘To each according to his efforts’; or (3) ‘To each according to his contribution.’  Thus, need, effort, and contribution all act as possible dimensions along which one can be “treated equally” vis-à-vis economic distribution.  In the typical case, these principles cannot be satisfied at the same time.  Thus, there is a need for a higher-order principle, a principle to decide which first-order distributive principle is to govern economic distribution.  This is where treating someone “as an equal” comes in, it selects which first-order principle is to carry the day.

The problem of equality is to be found when one attempts to apply the second-order principle of treatment “as equals” (equal concern and respect) to competing first-order distributive principles (e.g., “to each according to his need” vs. “to each according to his contribution”) in order to select which is the morally correct first-order principle.  In order to decide specific and controversial issues, the “treatment as equals” needs interpretation.  But in order to do this, mid-level or “mediating” principles are required, and the more specific the issues are, the more controversial the mediating principles will be.

Thus, there is a problem of interpretation of treatment “as equals” (let’s call this second-order principle the “equal consideration principle”).  Thomas Nagel offers an illuminating way to understand the situation.  Interpretation of the equal consideration principle can be understood in the following way: equal consideration provides individuals with a “veto.”  If a policy or procedure fails to treat him with equal consideration, he is justified in rejecting it, and his non-acceptance is a reason for doubting its legitimacy.  The issue, the problem of equality, is where to place the veto, and different mediating principles differ in where they claim the veto properly belongs.

For example, a utilitarian mediating principle places the veto at the input stage.  There is a moral requirement to maximize the good overall, and the egalitarian aspect requires that every individual’s interests be taken into account, everyone is given equal weight (my interests are given the same weight as Michael Jordan’s interests, his interests do not count more just because he is Michael Jordan).  Notice that equality is not taken into account at the output stage: an output of the decision-procedure is legitimate, no matter how unequal the distribution, so long as everyone’s interests were taken into account and given equal weight, and as long as the decision maximizes the good overall.

This finally brings us back to the questions regarding libertarianism.  As now should be clear, libertarians do in fact take equality seriously.  Treating someone with “equal concern and respect” is a central feature of libertarian thought.  The differences between libertarianism and other egalitarian conceptions of equality are caused by the differing mediating principles and where they claim the veto should be placed.  Most libertarians believe in a strong conception of individual rights (Robert Nozick famously opens Anarchy, State, and Utopia by declaring that “[i]ndividuals have rights, and there are things no person or group may do to them (without violating their rights)”).  Thus, libertarians believe that every individual has a veto against an invasion of their rights.  One is not treated with “equal concern and respect” if a procedure or policy violates that person’s rights (without acquiring consent).  As Nagel describes the position, “[t]he moral equality of persons . . . is their equal claim against each other not to be interfered with in specified ways.  Each person must be treated equally in certain definite respects by each other person.”  As a result, it is incorrect to charge libertarians with failing to consider equality.  It is, of course, entirely legitimate to disagree with the mediating principles and the resultant placement of the veto, but in order to avoid begging the question, one must first acknowledge equality as a genuine concern in libertarian thought.