Flaws in Libertarian Thought: Part II

To followers of Locke, we enter into a social contract with our government to escape the state of nature. We agree to submit to political authority under will of the majority. If the government breaks the contract by violating our fundamental rights or violating our trust we have the right to replace it.

There are two forms of consent: explicit and tacit.

Explicit consent is basically a declaration that you accept the beliefs or the legitimacy of the government. For example, in the citizenship ceremony in the USA, you swear an Oath. That is explicit consent.

Tacit consent is basically living under the government. By living under the government, obeying its laws, enjoying any benefits of the society (whether protection of property, safety etc.) indicates your consent to the legitimacy of the government. This includes people who were born in the USA or immigrants who are not officially part of the community.

But is this all BS? There is another school of thought originating in David Hume that criticizes this whole idea of a contract.

To Hume and his later utilitarian offspring, a right act maximizes the well-being for the greatest number of people (there are many variations, but this is the most basic). A state does not gain legitimacy because of social contract, it gains legitimacy because of its use–it aggregates well-being of all members.

So here’s how Hume criticizes Locke and the contract theories.

Empirical Problems of Contract theories:

1. People don’t themselves understand their political obligation to be contractual based. They obey out of CUSTOM AND HABIT.
2. The present generation has not contracted.
   1. David Hume says, “But the contract, on which government is founded, is said to be the original contract; and consequently may be supposed too old to fall under the knowledge of the present generation. If the agreement, by which savage men first associated and conjoined their force, be here meant, this is acknowledged to be real,; but being so ancient, and being obliterated by a thousand changes of government and princes, it cannot now be supposed to retain any authority.
3. Election of rulers is elections done by a small number of people.
   1. Think about it. When the US constitution was drafted, how many people were even represented? Definitely not all the slaves or people without property. Or think about now, barely anyone votes, and not everyone who wants to vote can vote.

Now a person who believes in tacit consent would use it to answer Hume’s 2^nd criticism. Hume responds with two more points.

1. People do not understand it as tacit consent. They think there’s NO OTHER CHOICE than to live under the rule of a government.
2. And if people do understand that it is a choice, they really cannot leave the society.
   1. Hume says, “Can we seriously say, that a poor peasant or artisan has a free choice to leave his country, when he knows no foreign language or manners, and lives from day to day, by the small wages which he acquires?
   2. Hume raises the oft-cited example of a ship that is set out to sea. That is the truth of tacit consent. You can ditch this ship, but you are jumping into the ocean.

Normative Problems:

1. Contract theories assume that people have more knowledge and ability than they actually have.
   1. Hume says, “Reason, history, and experience shew us, that all political societies have had an origin much less accurate and regular; and were one to choose a period of time, when the people’s consent was the least regarded in public transactions, it would be precisely on the establishment of a new government.”
2. Many original contracts are invalid, and are given legitimacy by contract theories
   1. Hume says, “When an artful and bold man is placed at the head of an army or faction, it is often easy for him, by employing, sometimes violence, sometimes false pretences, to establish his dominion over a people a hundred times more numerous than his partisans. He allows no such open communication, that his enemies can know, with certainty, their number or force. He gives them no leisure to assemble together in a body to oppose him. Even all those, who are the instruments of his usurpation, may wish his fall; but their ignorance of each other’s intentions keeps them in awe, and is the sole cause of his security. By such arts as these, many governments have been established; and this is tall the original contract, which they have to boast of.

Utility:

We keep our promises because it promotes public utility. The real basis of legitimacy of government or the state is the utility.

Why are Hume’s points important? Besides the fact that he inspired future thinkers like Bentham and Mill who also rejected the idea of a social contract, he represents the crux of the flaw in libertarian philosophy. Libertarian philosophy likes to cite Utilitarians like Mill and Contractarians like Locke, often together. Although they might all agree that absolute government is bad and a limited government that protects negative rights is the best, utilitarianism and contractarianism cannot be used together because they clash fundamentally. This is the flaw that I really want Libertarians to work out.

Philosophical Flaws in Libertarian Thought

By Jerry Liu

I’d like to start out with three personal points. First of all, I believe deeply in Libertarianism. I think it is the natural way of thought of those who believe in personal responsibility and autonomy. That being said, a true believer also understands the flaws in his philosophy, and that is what I am trying to highlight in this blog post. Second, I chose not to cite passages because I want you to read Locke and read Mill, and read Nozick and read all the great philosophers. That is the best way for you guys to learn and to check my facts if you disagree with my interpretation, and come up with your own arguments if you disagree with the classic philosophers. Third, I know my writing style is very casual. I hope this stimulates discourse and gets you thinking. Most of all, I want you to have fun reading. So here we go:

Locke’s Theory Of Property (1^st key to understanding the philosophy behind libertarianism):

We own our bodies. Or more technically, God endowed us with rights over our body. Because we have a right to our bodies, we own our hands. Our hands produce labor. When we work a field with our hands, or use our body in a way that changes nature. So we are mixing our labor with the land. By mixing our labor with the land, we are mixing our own bodies with the land. The land that we work belongs to us because it becomes intertwined with ourselves. Two qualifications are given. First, we only have the right to the land if we don’t take away the abundance from others (this is called the Lockean Proviso). In other words, if there is only one fish in the lake, but sixty people in the community, I have no right to catch the fish for myself because catching that last fish makes none available for the others in the community. Second, I can only claim as much land as that will sustain me, so I cannot pick ninety apples off a tree at once because I won’t be able to eat all ninety apples before they spoil (called the spoilage condition). Key point to a libertarian: The right over our own body is absolute. It is from that condition that the absolute right to property can be deduced.

Harm Principle (2nd part of understanding libertarianism): Based off John Stuart Mill’s masterpiece On Liberty. Basically, the harm principle states that I cannot impose a viewpoint or an action on someone else unless it is to prevent him or her from actively harming others. So I cannot prevent someone from taking drugs unless that person is going to actively go out and hurt someone on his euphoric trip. I cannot tell a person to shut up just because his viewpoint is completely wrong. If I do so, then I prevent him from discovering, through education, discourse, and personal experience, why he is wrong.

Social Contract; Lockean version (Final part of understanding a libertarian):

Because the state of nature has no objective third-party that can guarantee the enforcement of contracts, the state of nature can devolve into the state of war. Therefore, it is in everyone’s interest to leave the state of nature for the guaranteed stability of a society. When we leave the state of nature and enter into a social contract with people. We agree that whatever representative government we elect will have to take care of protecting our unalienable rights of life, liberty, property, pursuit of happiness, and the enforcement of contracts and covenants. Wealth inequalities are natural because they are precontractual and are not the concern of the government. Why are wealth inequalities precontractual? The answer lies in currency. Currency exists to bypass the spoilage condition in the Locke’s Theory of Property. Because people have different abilities and different capabilities for labor, currency allows for the accumulation of gains based on ability. Currency arises naturally, and the differences in the holding of wealth are independent of whether you are in a society or in the state of nature.

Two points that Libertarians glance over:

Once under a sovereign, we have a negative right to not have our property arbitrarily taken away. But majority consensus can make an agreement to take away a specific amount of everyone’s property. In other words, society cannot take away Pat Margolis’ wealth to help the needy, but it can agree, through some sort of majority legislation, to take away 2% of everybody’s earnings. So in the end, Locke does not support Nozick’s view that taxation is slavery. He only says that arbitrary taking of property is not acceptable. To be technical, property is a negative right, not a positive right. There IS NO ABSOLUTE RIGHT TO PROPERTY ONCE IN A CONTRACTUAL SOCIETY.

Second, we have unalienable rights beyond property. Life, liberty, property, pursuit of happiness (Locke calls it tastes and pleasures, I believe) are all unalienable rights. Therefore, I cannot just shoot you with a gun if you wander onto my property and take my car. Why? Because I take away your life. Violating an unalienable right in response to a violation of an unalienable right is not just.

Methodological Problem:

John Stuart Mill and John Locke are fundamentally incompatible. Mill is a utilitarian, while Locke is a contractarian. Utilitarians have been attacking contractarians forever because of the notion that consent is an actual thing and that there is something called a right. David Hume and Jeremy Bentham raise great points attacking the concept of implicit consent. I will blog about this in the future, but the key point is that you can’t combine the philosophies of Mill and Locke because they are based on two contradicting assumptions. Here’s where I will end. Please stay tuned for next time.