By Duncan Whitmore
In a previous essay concerning the nature of the libertarian movement, we stated that the purpose of libertarian theory (in contrast to libertarian activism) should be to define and justify liberty – to tell us what liberty is and why it is a good thing. It is to the first of these tasks that this essay will be devoted.
Some readers may regard defining liberty as something of a redundant exercise. After all, we have had many definitions of liberty from libertarian and proto-libertarian thinkers, most of which say more or less the same thing: freedom from harm (J S Mill1); freedom from coercion (Hayek2); freedom from “restraint and violence by others” (Locke3); “Absence of opposition” or “externall [sic] Impediments of motion” (Hobbes4); “unobstructed action according to our will within limits drawn around us by the equal rights of others” (Jefferson5). Although modern libertarian theory has successfully refined these concepts – Mill’s harm principle was, for instance, notoriously vague – descriptors of liberty used by libertarians today (such as “self-ownership”, “private property” and “non-aggression”) still suffer from lacking several important clarifications. This is not to imply that libertarian scholars have failed to properly define these principles in the past; more that libertarians (myself included) have become so used to reciting them without further thought that a review of what they actually mean would not be out of place. Moreover, as we shall see below, very different consequences can flow from what appear to be relatively minor disagreements or misunderstandings.6 If this is the case within the community of libertarian scholars how much worse can it be outside of it?
One initial problem is that such concepts are themselves reducible to further fundamentals. What precisely, for instance, is aggression? Why are some acts aggressive whereas other acts are not? Does it have anything to do with intended hostility or are motivations irrelevant? What, also, does it mean to have “self-ownership”? Precisely what is the “self” and what does my “ownership” over it allow me to do?
A more complex issue is that these concepts do not entirely separate their normative content from the descriptive. By this we mean that their definition of liberty is intertwined with the justification for it. “Ownership”, for instance, deals with who should have the ultimate power of disposal over a given piece of property, and is a separate concept from de facto control or possession.7 If someone steals my watch then I am still the owner of that watch and power over it should be returned to me even though the thief holds this power at present. Of course, the old adage that “possession is nine tenths of the law” is a valid one, but this is a practical/evidential principle – that ownership should default to the actual possessor in the absence of a superior claim. It does not challenge the conceptual distinction between ownership and possession per se. So to say that a person is free if he is a self-owner is to say that he is free if he should be free – the equivalent of saying that someone is eating an apple if he should be eating it, which is clearly nonsensical.
In many ways this is not inappropriate because what we are often interested in is whether an individual’s self-ownership is recognised and enforced rather than the actual incursions to which he is subjected. In other words, when judging whether a person is “free”, we normally look to the legal and political norms that govern the society in which he lives. For instance, we may regard those languishing under a Soviet-style system as “oppressed” sufferers of “despotism” and “tyranny”, but we do not apply those same epithets to victims of private crime, even though the latter may have suffered exactly the same violation at the hands of a criminal as could have been dispensed by a KGB officer. Instead, we look upon such a person as the acknowledged victim of an acknowledged wrongful act, and, unlike the victim of the state, he will be able to pursue a remedy with the full weight of the justice system behind him. Thus, the systemic absence of your rights seems to matter more than any particular infraction, and so it may not be entirely possible to distil liberty into its normative and descriptive elements. Nevertheless, these are generally quantitative rather than qualitative distinctions made because the systematic rejection of liberty affects the entire population and paves the way for the widespread incursion of people’s freedom. By comparison, private crime – however distressing it may be to the individual victim – is an irritation that has to be dealt with from time to time. It should, therefore, still be possible for us to pursue a value free definition of liberty in order to capture its essence.
“Aggression” and “violence”, however, are more problematic than ownership, as they are clearly ethically loaded terms each of which presumes the injustice of a physical invasion.8 In other words, we would normally only categorise a physical altercation as “violent” if we think it to be unjustified, whereas we would be unlikely to apply such a label to a righteous altercation such as defensive action. An offender and a defender may each dispense bullets from a gun but we are more likely to regard the latter as heroic rather than violent, especially if it was to save the life of an innocent third party. Libertarian scholars who address punishment theory at least imply that punishment curtails someone’s liberty as much as offensive action, hence the need for its justification.9 Thus, one may take the view that the adjective “violent” applies to only a subset of infringements upon liberty – those where there is no justification for doing so – and consequently it is an unsuitable term when trying to define liberty itself. Indeed, in this vein, an opponent of libertarianism may have no problem in agreeing that taxation curtails one’s liberty. However, he may not necessarily regard its compulsion as violent if he believes it to be justified – indeed, he may think of it as nothing more than the enforcement of what he thinks are the rights of the poor and less fortunate. It would, therefore, be preferable for us to adopt terms that enable us to define liberty – to know what it is – before we try to introduce anything that suggests why we should want it, in much the same way as we would want to know what an apple is before considering whether we should eat it.
The third problem is that, while modern libertarians nearly all define liberty in terms of negative rights, a perceptible difference can still depend upon whether one views liberty a) as being primarily a vehicle for the “empowerment” or “flourishing” of the individual, or b) as a restraint upon other people from encroaching on you. Although these are opposite sides of the same coin, it often appears as though an unacknowledged bias towards one or the other can have an effect upon the way a particular theorist handles a certain problem.
Take, for instance, the following problem identified by Edward Feser:
Suppose Bob is sitting on a park bench […] and Fred sneaks up behind him and strangles him to death. Clearly, Fred has violated Bob’s rights of self-ownership […] But suppose that Fred goes nowhere near Bob, and instead, from a block away, activates a device which sucks away all the air in Bob’s vicinity, leaving Bob in a vacuum in which he passes out and quickly dies. Has Fred violated Bob’s rights of self-ownership in this case?
It is true that [Fred] has not deprived Bob of any formal rights of self-ownership; he’s left Bob and his self-owned body parts, abilities, etc., unmolested, for all the good this does poor Bob. Clearly, though, he’s deprived Bob of any substantive rights of self-ownership. He has put Bob in a situation that makes him utterly unable to exercise his self-owned powers, abilities, and so forth, rendering them as useless as if Bob had not owned them at all.
Meaningful ownership of something […] cannot be purely formal; it must involve at least the possibility of substantial use of what is owned.10
Or Frank van Dun:
A person’s ability to move himself or his goods beyond the confines of his own property without trespassing on the property of others depends on [people’s] willingness to grant him a right of way. However, nothing in the [libertarian] system of property rights obliges them either to grant him right of way or to permit third parties to cross their properties to reach his (if he has any). Consequently, because of a coincidence of decisions by his neighbors or because of an agreement among them, any person may find himself locked up on his own property or prevented from dealing with others outside the circle of his immediate neighbors.
There is [therefore] need to have a “free movement” proviso regarding ownership of material resources, to the effect that the rights of a property owner do not include the right to deprive others of the possibility of moving between their own property and any place where they are welcome. Of course, ‘deprive’ is too absolute for practical purposes: freedom of movement implies that there are no significant or unreasonable manmade obstacles to moving about.11
The emphasis that each of the authors places on fulfilling the individual’s “powers”, “abilities” and “uses” shows clearly that they approach liberty primarily from the angle of the empowerment that it confers (or should confer) on each individual rather than from the perspective of its constraint upon others. Such approaches are likely to attract criticism because they seem to ignore the rights of other people. Feser’s conception of “substantial use” seems reasonable until you realise that all “uses” of anything require complementary means, even if this is just space through which to move. For instance, Feser may, on elaborating his principle, argue that the human hand “is, by its nature, something used for grasping and manipulating”. But does the fact that “substantial use” of the hand requires the fulfilment of these functions require anyone else to furnish you with an object for you to grasp or manipulate? Similarly to Feser, Van Dun’s conception of an individual’s “freedom” requires that individual to have the power over complementary means (i.e. the ability to cross neighbouring land), but Van Dun never explains why requiring other people to furnish those means is not an affront to their freedom – in fact, he seems to construct his examples so that the motivations of those neighbouring landowners can be casually dismissed.12
In contrast to these expansive conceptions of liberty, Walter Block13 appears to approach matters primarily from the angle of restraint on other people, especially, of course, the state:
Libertarianism is the philosophy that maintains it is illicit to threaten or initiate violence against a person or his legitimately owned property. Defensive force may be used to ward off an attacker, but invasions of person or property are strictly prohibited by the non aggression axiom.14
This approach – of the “prohibition of invasion” – underpins Block’s fearless defences of characters who indulge in practices that most of us would find difficult to regard as “fulfilling” or “empowering”:
Prostitution should be viewed as just one kind of interaction in which all human beings participate. Objections should not be raised to any of them — not to marriage, not to friendship, not to prostitution.15
Addiction to heroin is not in and of itself an evil. If it is legalized, it cannot possibly hurt anyone but the user of the drug. There are those who may want to speak out, educate, and advertise against it, but to prohibit it is clearly a violation of the rights of those who wish to use it.16
What then are we doing when we object to, or prohibit, libel? We are prohibiting someone from affecting or trying to affect the thoughts of other people. But what does the right of free speech mean if not that we are all free to try to affect the thoughts of those around us? So we must conclude that libel and slander are consistent with the rights of free speech.17
Also, however, such “restraint-ism” forms the foundation of Block’s approach to (even) more controversial topics such as abortion, where – in contrast to mainstream, “pro-choice” approaches which are often intertwined with feminist appeals for women’s empowerment – Block’s theory of evictionism begins from the notion that a trespasser can be ejected:
[The mother] owns her own body, and the unwanted fetus growing within it is in effect a trespasser or parasite. This may sound harsh, but when the property rights in question are thoroughly analyzed, it is the only possible conclusion that may be reached.18
Frank van Dun has, in turn, criticised Block’s general approach as “libertarian legalism”, deriding the “dichotomy of aggression and non-aggression [coinciding] with the logical opposition between unlawful and lawful” as “a mechanical rule.”19 Feser’s understanding of self-ownership leads him to a different conclusion from that of Block on the question of abortion20, and, moreover, allows him to lay the groundwork for a morally conservative theory of libertarianism which seemingly contrasts with Block’s permissiveness.21 Disagreements such as these are among the mildest that could be encountered amongst those who regard themselves as libertarians. So-called “left-libertarians” and “bleeding heart libertarians”, for instance, adopt even more divergent conceptions of what liberty entails.
Although my own approach – that the essence of ownership is the right to have the physical integrity of your body and property left alone, not to any further “substantial uses” – is on the side of Walter Block, we would, ideally, wish to define liberty in such a way that acknowledges both angles, or at least in such a way so as to avoid lapsing into possible error as a result of implicit biases. Liberty, by allowing a wide sphere of autonomy, is empowering to us as individuals but it is also a restraint upon each of us when it comes to the reciprocity of obligations.
So with those initial problems acknowledged, what, then, is our fundamental, value-free definition of liberty?
The Sociological Nature of Liberty
In the first place, it is important to distinguish liberty from colloquial uses of the term “freedom” more generally. Liberty has nothing to do with situations that concern the relationship between objects of nature, nor with whether a given object or living thing can be said to be “fulfilling” its natural purpose (as judged by humans). For instance, if a bird manages to trap itself in a crevice, we may observe that the bird has been deprived of its nature of flying away; a cheetah may kill an antelope and turn the latter into a meal; any number of animals could be ravaged by disease or succumb to harsh weather. As much as we may lament the perceived loss of “freedom” of the trapped bird, the slain antelope and the diseased and dying animals, these are just technical problems imposed by nature upon nature and, in the absence of human judgment, are really just occurrences rather than problems as such.
Nor, however, does liberty concern problems imposed by nature upon humans. Hunger, cold, illness, poverty and so on are all debilitating problems which, outside the Garden of Eden, humans face in their daily lives, but the ultimate condition of scarcity that causes these difficulties is one imposed upon us by our creator. While, colloquially, we might refer to the conquest of general hardships as gaining the “freedom” from hunger, from poverty, from illness etc., such achievements result from expanding our power over nature – bringing a greater quantity and quality of resources into our circle of usable goods – and are nothing to do with liberty. Indeed, although the level of wealth, i.e. one’s power over nature, is maximised by the social co-operation which liberty permits, conceptually the two are unrelated – it is quite possible to be a rich slave as much as it is to be a poor master.
Instead, liberty, properly considered, is a sociological concept – it refers to the relationship, or the nature of the association, that exists between a human being and one or more other human beings, not to a person’s general welfare. Thus, if a man was to be stranded alone on a desert island, he would certainly have a lot of quandaries but not one of those quandaries would involve his liberty. Questions regarding the latter would emerge only if another person with whom he comes into an association was to land on the island, bringing with him the necessity of deciding how to act in relation to each other.
This understanding is very important, because the importation of category errors into political dialogue can easily create problems. For instance, one person could complain that taxation encroaches upon his liberty for the reason that other people will be confiscating his money; but another person could complain that the lack of taxation infringes on his liberty for the reason that it leaves it him to go hungry. Both sound plausible, but it is clear that their conceptions of liberty belong to different categories – the former to problems imposed upon him by other people (the taking of his money), the latter to problems imposed upon him by nature (his hunger). Of course, such confusion is very often deliberate as it allows people to achieve political objectives disingenuously. It is quite difficult to persuade people that you should have a right to infringe their liberty; it is much easier to tell them that they are a threat to yours. This is something we have seen quite clearly during the COVID-19 pandemic – the freedom of “the vulnerable” from disease has justified societal house arrest and economic suicide.
However, while the extent to which a human has successfully conquered nature has nothing to do with liberty, his striving to do so – and the way such striving impacts upon other people – is critical for understanding the concept.
Liberty and Property
When man was ejected from the Garden of Eden he found himself in a condition of almost unrelenting poverty. The only way out of this plight of scarcity was for him to labour and bring within his ambit an increasing amount of useful means, fashioning them into ever more usable forms so that they can fulfil a greater number of his ends. So, for instance, a man might first have to pick fruit from wild trees with his bare hands; then he might fashion an instrument – a capital good – from a piece of wood to knock a greater quantity of fruit from the trees; following that he might accumulate logs and build a cabin, before learning how to domesticate and rear animals for food and productivity; and so on. Fast forward today and we do, of course, have many goods in our possession – houses, cars, computers, smartphones, and so on – that have been made available from our increased accumulation of capital goods and technological prowess. Everything we enjoy today existed in one form or another when humans first walked the earth, but only the expansion of our power over these resources has enabled us to actually enjoy them to their full potential.
This expansion of one’s power over nature from a condition of scarcity always consists of physical acts, each of which can produce at least one of two results. First, it diverts physical means directly in order to satisfy the end desired by the individual; and, second, such direction can produce a physical externality, i.e. a physical impact on matter external to the means in question. For instance, if I wish to light a fire, the wood that I gather is the means that I have diverted directly towards fulfilling this end. However, the smoke that is generated will disperse and impact upon other, external physical matter that has not been accumulated as means.
A lone individual can continue to accumulate means in this fashion for the entirety of his life. The only bars to his accomplishment would be difficulties imposed upon him by nature, viz. the weather, dangerous animals, and the technical limitations of various forms of matter (not to mention his understanding of them).
What happens, however, when a second person comes along? He too will proceed in exactly the same way, acting so as to divert physical means to ends that he desires. Conceivably, the two people could continue to do this without conflict so long as their physical acts affect only different physical means. Let us say, for instance, that A picks up firewood while B goes fishing. The fact that A does not act in relation to the fish shows that he places no value upon the existence of that fish, and so B can expand his power over that fish without consequence. Similarly, the fact that B does not act in relation to firewood indicates that he places no value upon that resource, and so A, in turn, is able to expand his power over that firewood. Neither also does A’s collection of firewood produce any physical externality which interrupts B’s ability to fish and vice versa. They can each enjoy their accumulated physical means without any interruption from the other.
Obviously, however, this has seldom, if ever, been the case. Human interaction was present in the most primitive of societies, and today, in a complex society, there are not just several but many hundreds of people each striving to accumulate physical means to satisfy ends that they each deem to be of value. Problems arise, therefore, in the following types of situation:
- A desires to expand his power over the body of B by using B’s body directly as means for accomplishing A’s ends (usually for the labour power of B’s body);
- A desires to expand his power over physical means previously utilised by B so that they can instead accomplish A’s ends rather than B’s ends;
- A has neither of the previous desires but, instead, his actions produce a physical externality which interferes with B’s ability to use either his body or his physical means for the satisfaction of his (B’s) ends.
One way out of these conundrums is, of course, for A and B to agree as to how means that they each covet should be used. Most straightforwardly, A could simply consent to B’s use of A’s means, or vice versa. More likely, B could, for example, agree to work for A so long as A transfers a resource in his possession to B; or, A and B could exchange items of physical means that they have each previously accumulated; or B could accept the incurrence of A’s physical externalities if A transfers a resource to B to compensate the latter for this burden.22 If such agreements are reached then the ends of both A and B are being met to their satisfaction with the means available. Indeed, such agreement is the basis of all of the trade and exchange that makes up what we call the “market” – mutual satisfaction through voluntarily co-ordinated actions in relation to physical means. We will explore these kinds of consensual arrangement in more detail later.
What happens, however, if A attempts to expand his physical power over B’s body or possessions without B’s agreement or consent? In contrast to the situation in which they were each expanding their power over separate means (and in contrast to the situation in which they reach agreement), A’s actions now mean that B’s ends in relation to the physical means in question must go unfulfilled. In other words, A’s gain has now been at the expense of B’s. In the first of our three instances above, if A expands his power over the body of B by, say, forcing B to work for him, A has made B his slave. In the second, if A takes physical means previously accumulated by B then A has stolen from B. And finally, if A produces a physical externality undesired by B then A has, in legal terminology, inflicted a nuisance upon B.
As we can see from the words with which we use to describe these situations – slavery, theft, and nuisance – it is this aspect of one person accomplishing his ends at the expense of the ends of another via a physical interference which is the key to proper definition of liberty:
Liberty is when your body and physically accumulated means are devoid of physical interference initiated by another individual to which you have not consented; conversely, your liberty is infringed when your body and physically accumulated means are subjected to physical interference initiated by another person to which you have not consented.
As we mentioned earlier, such “physical interference” does not need to consist of an actual collision of matter. The key is whether A causes a change to the physical integrity of either the body or accumulated means of B. Thus, A’s application of heat, sound, light or microwaves to either B’s body or his means could constitute physical interference. So too – as per the problem identified by Edward Feser above – could withdrawing, say, oxygen or heat so that B suffocates or freezes to death.
The entire corpus of political philosophy – however voluminous and opaque any particular theory may be – is essentially devoted to this question of who, out of A or B, should prevail in a given situation, i.e. whether A should be able to infringe upon B’s liberty or whether A must, instead, yield to B’s liberty. Libertarians believe that B should prevail in every situation except for in a single circumstance: if B has initiated an infringement upon the liberty of A, then A (and/or A’s agents) may action a proportional, responsive infringement upon the liberty of B for the purposes of defence, compensation and/or punishment. Libertarians classify any initiated infringement against liberty as “aggression” – hence the basic libertarian creed can be summarised as the non-aggression principle. Responsive infringements, on the other hand, are not aggressive. Thus, we can see why, as we mentioned earlier, “non-aggression” is not itself a definition of liberty; rather, “aggression” defines unlawful transgressions against liberty rather than liberty itself.
Other philosophies allow differing degrees of infringement upon liberty according to various rationales. Most of these do not argue from the perspective of A as an individual person seeking to fulfil his own ends; rather, A normally takes the form of the state, and various attempted justifications for the state’s infringement of B’s liberty will be advanced. Usually, such rationales will cite the existence of alleged “higher” purposes and the “responsibilities” of “society” above that of mere individuals. In other words, they attempt to belittle the ends desired by any particular person by inflating the importance of ends that are alleged to exist elsewhere. Dyed in the wool socialists, for instance, believe that all means of production should be in the hands of the state in order to benefit “everybody” rather than to furnish profit for the “few”. Such collective concepts, however, are mere smokescreens; only individuals can act and only individuals can have ends and purposes, and so every infringement upon liberty must always benefit some individuals at the expense of others. The state itself is nothing more than a collection of specific individuals, and so neither embodies nor represents the totality of people.
Indeed, the fact that competing philosophies have to construct edifices of methodological confusion by invoking the needs of “society” – or mythical abstractions such as the “the greater good” or the “social contract” – show that they prefer to bury this truth rather than confront it head on.23 We can see this at work today in some of the tenets of so-called critical race theory – that, rather than consisting of overt acts, racism is supposedly evident in nebulous concepts of “white privilege” or “institutional racism” to the extent that the immutable condition of being a white person is sufficient to make that person racist. These esoteric devices – coupled with the focus on subjective “lived experiences” rather than objectively definable events – are all designed to shut down debate for the reason that anti-libertarian philosophies eventually reach a point where they collapse under intense scrutiny. The persistent antagonism that necessarily results by closing off dialogue and discussion can only be resolved by an increase in power – the very thing that statists crave.
This is not the place for criticising other philosophies, however. Returning to the definition of liberty itself, we are now in the position to clear up a few more misunderstandings that this concept has a tendency to generate.
Where Liberty is and is not Infringed
The most fundamental of these misunderstandings is to view your liberty as having been infringed purely by the mere existence of other people and by the fact those others have prior claims over physical goods that you covet. If one takes such a view then liberty is, pretty much, empty and redundant as a viable political concept, for the only way to champion liberty in such a circumstance would be to advocate for a brutish war of all against all, with your liberty prevailing only when you have vanquished and destroyed all possible competition over resources. Such a regression to what is, effectively, the Hobbesian “state-of-nature” is clearly not what libertarians have in mind. Indeed, even socialists and statists believe that their political philosophies promote at least some form of co-existence, and so the existence of other people and their desires must be taken as preconditions to be accommodated by a political theory rather than factors to be eliminated.
True enough, of course, one could advance a theory justifying an individual’s engagement in a war of all against all. However, such a theory would be not be advancing that individual’s liberty as such. The reason for this is that, while it is true that the existence of other people and their prior claims upon goods constrain your range of possible action in a given instance, we can see from our earlier explanations that such claims diminish your power, not your liberty. Your liberty concerns the interference, by other people, with the physical integrity of your body and those means over which you have prior possession. Expanding those means by accumulating more goods so as to satisfy a greater number of ends (i.e. an increase of your wealth) is an expansion of your power over nature – of your ability to solve a greater number of problems that nature has thrown in your way. It is not an expansion of your liberty. Similarly, therefore, if you were to physically interfere with the body and physical goods of other people then the expansion and contraction of such interference would concern your power, not your liberty.
An important consequence of this realisation is that liberty is not a zero-sum game. If the fact that I have to refrain from infringing upon your liberty diminishes my power, not my liberty, then the preservation of your liberty does not result in a corresponding diminution of my liberty (and vice versa). It is, therefore, coherent to speak of “maximising” liberty as a political programme – such maximisation can be achieved if everyone’s power is restrained from interfering with the body and physically accumulated means of others.24
Once we realise this, a number of other misunderstandings based upon the same, general confusion of liberty with power are easily resolved.
First, liberty does not concern the different levels of providence that nature awards to each human being, i.e. the fact that each human is born with varying talents or abilities, and in different places with varying ease of access to different resources; nor does it concern the fact that different people will have varying levels of success with regards to whatever they produce with their available means. In short, liberty is nothing to do with whether some people are rich and some are poor. Again, one may advance a theory as to why such differences should be “corrected” by remedial action, but such an endeavour would be striving towards the equalisation of power, not of liberty.25
Second, we mentioned earlier that the granting of consent, by another person, to your use of that person’s property does not result in an infringement of his liberty. The reason for this is that the act of consent indicates that your use of the property in question is not frustrating the ends of the other person. In short, there is no conflict. For example, consensual sexual intercourse and rape may each consist of the same, physical act with the same physical means (your body). However, with consensual intercourse the desires of both you and your partner are being satisfied; with rape, the desires of the rapist are being fulfilled at the expense of your own desires, and so only rape is an infringement upon your liberty.26
However, we mentioned also that people grant consent in more complex ways, usually requiring the fulfilment of conditions or restrictions if you want to use their property.
If B stipulates that A must deal with his own (A’s) property in a certain way in exchange for the use of B’s property, then clearly A’s liberty has not been infringed. For instance, let’s say B promises to transfer money to A if A will paint his (A’s) house red. A is perfectly able to walk away from this request with the physical integrity of his house intact. On the other hand, if B forces A to paint his house red then A’s liberty has now been infringed, even if B paid money to A in addition to having forced him.
However, B may alternatively require A to behave in a certain way in relation to B’s property as a condition for use of that property. So, for instance, an employer may impose a dress code upon employees in the workplace; a restaurant may prohibit their diners from smoking during their meal; a gym may require you to undergo a safety induction before they will permit you to use their equipment. Any attempt to argue that the imposition of such restrictions impacts on your liberty is simply an extension of the earlier, fallacious argument that the existence of other people and their prior claims over physical means are themselves an affront to your liberty. Similar to how those prior claims restrict your power, not your liberty, so too do any conditions that require you to use other people’s property in a specified way constrain your power, not your liberty.
Nevertheless, regardless of however the constraints are classified, it is worth pointing out that the acceptance of any condition simply means that one is willing to suffer, as a cost, a smaller restriction of one’s power in exchange for a larger gain of power elsewhere. I dress in suit and tie for work because the forfeited power to dress however I want on my employer’s property is worth less than the power I gain from the wage I earn; I refrain from smoking in the restaurant because the enjoyment I gain from the meal is more important than the enjoyment I lose by refraining from smoking; and I devote an hour of my time to the gym’s safety induction because the loss of this hour is less valuable to me than what I will gain from using the equipment. In short, we willingly accept such conditions of using other people’s property because the power gained is perceived to be greater than the power lost. Conversely, if I refuse to abide by the restrictions and go elsewhere then the opposite is true: the burden of the impositions is higher than any potential gain. It is these constant trades of lower costs for higher benefits under the division of labour through the marketplace that ultimately increases everybody’s power over a greater number of resources. So even if one was to confuse liberty with power we can see that, in the long run, it would still be maximised to an extent far greater than in a situation where these trade-offs did not occur.
Moreover, most property owners whose livelihoods rely upon trade and exchange do not impose conditions arbitrarily, but design them instead so as to maximise the utility for all customers generally so as to increase sales. So if, for instance, people generally preferred restaurants which permitted, rather than banned, smoking then the pressure of the marketplace would result in more restaurants allowing smoking on their premises. Thus, in most cases, it is the body of consumers that has de facto control over conditions that are imposed, with restrictions based upon mere caprice being penalised in the form of lost revenue.
This, however, contrasts with the state which may a) impose conditions (“regulation”) upon how you use your own property unilaterally (or upon how you may share your property with a willing third party); and b) forcibly extract payment (“taxes”) for the upkeep of state or “public” property, so that the acceptance of any conditions for the use of such property cannot be said to be truly beneficial. Once again, people may advance theories as to why, in a particular circumstance, the state is justified in carrying out these actions so as to benefit the lives of certain people. But in this instance we can see quite clearly that the expansion of those other people’s power now comes at the cost of your liberty, and moreover, will be tailored to political preferences rather than to the preferences of consumers.
Similarly to these explicit and negotiated conditions, liberty is not infringed by any acceptance of the general, non-contractual, morals, customs, conventions and conditions of society – in other words, the general expectations of how you will behave, even on your own property and with your own body, in relation to other people. Every person is, of course, born not into an isolated existence but into a family, a community, a nation and a culture, all of which will have – possibly over many centuries – developed customs, habits and conventions which grease the wheels of social co-operation. There will, for instance, be a certain language that one is expected to use, and there will be unwritten rules concerning public behaviour, tasteful expression, dress etiquette, manners, courtesy, sexual propriety, commitments to family members and friends, and so on. No one ever accepts these customs, and conventions explicitly but it is simply assumed that you must abide by them, as everyone always has, if other people are willing to engage in social co-operation with you.
Sceptics of libertarianism often cite these facts so as to argue that “society” – the existence of which would be impossible without these tacitly accepted, co-ordinating factors – must necessarily place limits upon individual liberty. In other words, they allege that society necessarily precludes liberty’s crucial element of consent to its conditions. Such a view is mistaken, however.
In the first place, conditions do not need to be accepted explicitly in order to be voluntary, and it is absurd to think that a free society can exist only if every stipulation is spelled out in a contract. Whether an action is voluntary refers to its nature, not to its precise form. If people accept society’s tacitly acknowledged conditions then their voluntary nature is evident in the fact that they choose to continue participating in society. On the other hand, should they become intolerable then anyone is quite within his rights to withdraw from society and live as a hermit.
Second, while it is true that such an isolated existence would entail a massive drop in an individual’s standard of living – a choice that most of us are unwilling to bear – this resulting poverty is a problem imposed upon us by nature, not by other people. Thus, the notion that we have “no choice” but to acquiesce to society’s demands is true only in a colloquial sense. Choices often have to be made between imperfect options, and the fact that your best available option imposes conditions upon you in no way renders those conditions “involuntary”.
Third, if you breach these conditions by being rude, repugnant, or immoral, the resulting withdrawal, by other people, of their social co-operation alienates you only from them and their property. This is a diminution of your power, not of your liberty, and if you are prepared to live with such alienation so that you can continue to be rude, repugnant or immoral, then your liberty is preserved in its entirety. The opposite is true, however, when it comes to the state. For even if you were prepared to live without using state funded roads, schools, hospitals, etc. – i.e. a diminution of your power – the taxman would still come knocking at your door demanding his tribute. As he is now confiscating some of your property he is infringing upon your liberty. Thus, society and its tacitly acknowledged demands are not at odds with your liberty, but the state very much is.
Finally, liberty is not infringed by any so-called non-physical, “negative externalities” that might occur as a result of other people using their property. By this, we mean that people act without making any kind of physical imposition upon your property, but their actions may leave you feeling annoyed, envious, or they may diminish the value of your own property.
In the first place, we can question what should be regarded as the relevant cause of these feelings. For example, let’s say that A becomes very rich and successful with his own property whereas B, in comparison, does not. Consequently, B becomes envious of A. What is the real cause of this envy? Most would probably say that it is the success of A. But surely the failure of B is just as much a cause? A’s success has simply revealed the fact that B’s own actions and choices within his own situation have been sub-optimal. So surely B’s envy is a product of this revelation, not of A’s success per se? Indeed, should we not be encouraging B to look upon A’s success as an example to emulate rather than suggesting that A is a source of bitterness and resentment? Religious and moral treatments of envy – for example, as its categorisation as one of the “Seven Deadly Sins” – nearly all suggest that, when manifest, it is a problem within you, not one that is imposed upon you.
That aside, however, all of these non-physical externalities, again, impact upon your power, not your liberty.
Let’s say, for instance, that your neighbour plants cacti in his front garden. You detest cacti and cannot stand having to look at them as you walk past your neighbour’s property each day. As we can see from our earlier analysis, the neighbour’s right to plant cacti on property that he has acquired (and you have not) diminishes your power, not your liberty. Your liberty would only be infringed if he started to plant cacti in your garden. The same is true also of envy. The fact that another person may use his property to achieve great success and the fact that you may not take this property to replicate that success for yourself is a limitation upon your power, not your liberty. Your liberty would be infringed only if that other person had taken your property and used it to become rich and successful.
More tricky is the instance in which a person acts in a way that devalues your property. Let’s say, for instance, that the value of your house is enhanced by the presence of a row of shops within a short walking distance. The owners of the shops, however, decide to close and relocate to a busier street farther away. Consequently, the value of your house falls. Surely here we have an instance of another person’s actions affecting the enjoyment of your property? Surely your ability to enjoy your property to its fullest extent has now been harmed by these actions?
Unfortunately for you, this is not the case. Unlike the physical integrity of your house, its value expressed in terms of the price it would fetch on the market exists only in the minds of other people. You do not have control over these minds. If other people therefore decide that your house is worth less once the neighbouring shops have closed then this diminishes your power over those other people’s choices, not your liberty to enjoy your own house. Liberty would be infringed, however, if you could force the shopkeepers to stay open so as to keep the value of your house inflated. In this instance, you would have forcibly increased your power over their property without their consent.
In the first section of this essay, we outlined some objectives that our definition of liberty should achieve. We are now in a position to conclude that each of these objectives has been fulfilled.
The first of these was that our definition of liberty should be precise and irreducible to further fundamentals – qualities which are not present in defining liberty as, say, freedom from harm. Our definition, by defining clearly the physical acts needed to infringe liberty, achieves this objective. The only issue left unexplored is the precise boundaries between when an action will be deemed to have infringed liberty and when it will not. We all know, for instance, that hitting a person with a sledgehammer invades their liberty whereas causing a piece of dust to float onto their clothing is not. But do we know where to draw the line between these extremes? This question, however, is a practical and evidential problem which is reliant upon people’s actual judgment as to whether their use of their property has been interfered with. As we explained in our series of essays on libertarian law and legal systems, ultimately these boundaries will depend on the customary and conventional context in which people are acting, and so their resolution must rely on circumstances unknown to the theorist. However, the conceptual distinction between liberty and its infringement is as precise as it can be.
Second, we specified that our definition of liberty should be value-free: thus, we have expunged the use of ethically loaded terms such as “ownership”, “violence”, and “aggression”, describing instead, in straightforward terms, the condition in which liberty can be said to exist. Although the correction of any inaccurate or disingenuous uses of the term “liberty” will helpfully demolish some anti-libertarian theories, none of our explanations necessarily precludes any argument in favour of infringing liberty.
Finally, we made the promise that we would define liberty so as to strike a balance between how liberty is both empowering to the individual on the one hand yet is also a restraint on the other. We can see that our definition – by distinguishing liberty clearly from power – has fulfilled this purpose. Liberty is empowering because your power extends fully to the use of your body and previously accumulated property; other people may not interfere with this power. You also have the power to come to independent agreements with other people regarding the trade and sharing of property without interference from third parties, which, of course, is the very basis of all economic progress in the long run. On the other hand, liberty is also a restraint because your power does not extend to the physical interference of the bodies and property of others without their consent.
* * * * *
1J S Mill, On Liberty, Fourth Edition, Longmans, Green, Reader and Dyer (1869), 22.
2F A Hayek, The Constitution of Liberty, Routledge & Kegan Paul (1976), Ch.1.
3John Locke, Two Treatises of Government Book II, Sixth Edition (1763), Section 57.
4Thomas Hobbes, The Leviathan, (1660), Chapter 21.
5Thomas Jefferson, Letter to Isaac H. Tiffany, (4 April 1819).
6For instance, it has been argued that Robert Nozick’s misunderstanding of the notion of “compensation” demolishes his argument for the “minimal” state. See Randy E Barnett, Whither Anarchy? Has Robert Nozick Justified the State?, Journal of Libertarian Studies, Vol. 1, No. 1 (1977), 15-21.
7Technically, the term “property” also refers to the right one has in a physical good rather than to that good itself. However, to avoid lapsing into pedantry, any use of the term “property” in this essay refers to a physical good.
8Dictionary definitions of “violence” describe it in terms “unjust” and “unwarranted”.
9See, for instance, N Stephan Kinsella, Punishment and Proportionality: The Estoppel Approach, Journal of Libertarian Studies 12:1 (Spring 1996), 51-73 at 52.
10Edward Feser, Self-Ownership, Abortion, and the Rights of Children: Toward a More Conservative Libertarianism, Journal of Libertarian Studies, Volume 19, No. 3 (Summer 2004), 91-114 at 97-99 [emphases in original].
11Frank van Dun, Freedom and Property: Where they Conflict, Ch. 23 in Jörg Guido Hülsmann and Stephan Kinsella (eds.), Property, Freedom & Society: Essays in Honour of Hans-Hermann Hoppe, Ludwig von Mises Institute (2009), 223-234 at 225 and 230.
12For those curious to know how the problems highlighted by these authors should properly be solved, neither is correct in his analysis.
In Feser’s example, Fred is liable for Bob’s death because Fred’s action caused the death of Bob. Liability in this regard does not depend upon the need for any physical collision between a tangible object under Fred’s control and Bob’s body. We would come to the same conclusion if Fred could wave a magic wand and vaporise Bob, or turn him into a frog, all without touching him. For more on this, see our previous essay on how causation is established in a libertarian legal system.
Van Dun’s problem of “encirclement” is redundant because it is a largely invented problem – no person in his right mind would purchase or otherwise settle on land without first ensuring that there is an enforceable right of way adequate for his needs. For a full critique of Van Dun in this regard, see our previous essay on the legal tenets of original appropriation in a free society.
13Unsurprisingly, Block has subjected both Feser and Van Dun to criticism. See Walter Block, Libertarianism is Unique and Belongs Neither to the Right Nor the Left: A Critique of the Views of Long, Holcombe and Baden on the Left, Hoppe, Feser and Paul on the Right, Journal of Libertarian Studies, Volume 22 (2010), 127-70; Idem, Reply to “Against Libertarian Legalism” by Frank van Dun, Journal of Libertarian Studies, Volume 18. No. 2 (Spring 2004), 1-30.
14Idem, Toward a Libertarian Theory of Guilt and Punishment for the Crime of Statism, Journal of Libertarian Studies, Volume 22 (2011), 665-75 at 666-7.
15Idem, Defending the Undefendable: The Pimp, Prostitute, Scab, Slumlord, Libeler, Moneylender, and Other Scapegoats in the Rogue’s Gallery of American Society, Ludwig von Mises Institute (2018), 7.
18Walter Block and Roy Whitehead, Compromising the Uncompromisable: A Private Property Rights Approach to Resolving the Abortion Controversy, Appalachian Journal of Law, Vol. 4:1 (2005), 1-45 at 18.
19Frank Van Dun, Against Libertarian Legalism: A Comment on Kinsella and Block, Journal of Libertarian Studies, Volume 17, No. 3 (Summer 2003), 63-90 at 66 and 89.
21However, Feser’s justifications in this regard are not purely theoretical, suggesting also that certain restrictive laws should not be repealed if, given the circumstances, such a repeal may damage the preservation of liberty in the long run. Ibid. 111. This, however, is a question of strategy – how to maximise liberty given the realities of the particular situation – and does not question the injustice of such restrictive laws per se.
22Alternatively, if the physical externality is a positive one desired by B then B could pay A to keep producing the externality. An example would be the pleasant scent of flowers that A plants in his front garden.
23As Bertrand Lemennicier explains regarding the “social contract”:
[S]ome metaphors illuminate the problem, others do the opposite, as is the case with metaphors which depart from methodological individualism…[T]he metaphor of the “contractual state” does not illuminate the issue of the emergence of the State. The social contract metaphor treats political arrangements between people as if they were private contractual arrangements between traders, a metaphor drawn from economics. We understand quite well how mutual consent can obtain between two people or between a small number of traders who know each other well, but not between a great number of people who have never met and who do not know one another. Who voluntarily enters into a contract with a madman or a serial killer? The metaphor begs the question of “government by consent.”
Bertrand Lemennicier, Fallacies in the Theories of the Emergence of the State, Journal of Libertarian Studies, Volume 20, No. 3 (Summer 2006): 3-28 at 6.
24Our definition of liberty here contrasts with that of Matt Zwolinski: that liberty is “to not be subject to interference by other people”, a definition which leads him to conclude that property rights must infringe, rather than maximise, liberty. Thus, for Zwolinski, the distribution of such rights in accordance with libertarian principles could indeed constitute the very “zero-sum” game that we claim it is not:
[P]roperty rights are, at their core, socially and legally enforceable licenses to interfere with others. If I have a property right in a piece of land, I get to physically interfere with anybody who tries to use that land without my consent, or call on the police to do my interfering for me. So my having a property right in the land limits your freedom to use it. This argument holds whether we’re talking about land, or automobiles, or human bodies. The fact that I hold a property right in the Sienna that’s parked in my driveway means that you are not free to use it to drive your kids to school. The fact that I have a property right in my body means that you are not free to put a bullet through the space where I am standing. Of course most people, myself included, don’t believe that there’s anything wrong with restricting people’s liberty in these ways, at least the second one!
25Indeed, this is one reason why liberty and equality are conflicting objectives.
26The importance of consent in questions of justice has been recognised since antiquity, but our concern here is squarely with the role of consent in defining liberty, not with the question of whether consent (or the lack thereof) serves to justify a particular act.