Libertarian Problems
Arguments we should not make
(Based on a talk I gave more than forty years ago1)
Many libertarians believe that we have all the answers, that it starts with A=A or some similar axiom and from there, with a few simple steps that any intelligent person could see if only he wasn't blinded by his statist preconceptions, we end up with answers to all problems in the world.
Here are some to which libertarianism, as many libertarians understand it, either gives no answer or gives an answer that most libertarians are unwilling to accept.
Your Rights Against Criminals
Someone steals your television set. All libertarians agree that you are entitled to take it back. If that is all you can do theft will be a profitable profession: Sometimes you catch the thief and take the television set back, sometimes you don’t catch the thief and don't take the television set back. Heads he wins, tails he breaks even.
How much more are you entitled to do to him? A tempting answer is “whatever is necessary to deter thieves” but deterrence is not all or nothing; the higher the punishment, the more thieves will be deterred. If convicted thieves are tortured to death that will deter a few more thefts than if they are only jailed. Do you have the right to do it?
An answer offered by some libertarians2 is that you are entitled to get your property back plus as much again, the hundred dollars he stole from you plus another hundred. That is a simple rule but I have not yet seen a good argument for it. Two is a nice number but why not three or ten? What if you can only catch a tenth of the thieves? Stealing $100 with one chance in ten of having to give $200 back is still a pretty good deal.
Punishment aside, what are you entitled to do to protect your property?
Sticks kept disappearing from his stack of firewood. Nothing he tried to catch the thief worked, so he took a piece of firewood, drilled a hole in it, inserted a stick of dynamite in the hole and put it back on his woodpile; the next day it was gone. He waited to hear who had been stealing his firewood.
It is a clever solution but capital punishment seems excessive for petty theft.
Are you entitled to machine-gun people for trespassing on your lawn? Plant land mines? Most of us would say no. Are you not entitled to hurt people at all in the process of defending your property? That would seem to leave you pretty nearly defenseless. What are you entitled to do? How do you find out?
The Human Shield Problem
The bad guy grabs a convenient bystander, pulls out a gun, points it at you, and starts shooting with the bystander held in front of him. If you shoot back you might kill the innocent shield. Are you entitled to do it?
That problem is dramatically visible in the current war between Israel and Hamas. The Hamas troops are embedded in the civilian population of Gaza. There is no way the Israeli military can fight them that does not kill civilians. Arguably the civilians are a deliberate human shield, with Hamas managing the conflict to get civilians killed in order to put pressure on Israel to abandon the war; certainly Hamas makes a point of announcing their estimates of how many women and children have been killed and their foreign supporters use those figures to accuse Israel of genocide.
The same problem arises with nuclear deterrence. Nuclear retaliation by the US to a Russian attack would kill large numbers of Russians, many of whom have no responsibility for the initial attack.
If your response to the human shield problem is that killing an innocent shield violates the victim’s rights so you should never do it, you are at the mercy of any opponent willing to follow the Hamas strategy or any serious nuclear power.
Sliding Down the Slippery Slope
The alternative is that you have a right to defend yourself. If the only way of defending yourself violates the rights of other people, you are still entitled to do it; your violation of their rights is the fault of the attacker you are defending against. That seems the obvious position, short of pacifism, for a libertarian to take.
But …
Arguably, defending against aggressive neighbors requires taxes. Collecting taxes violates the rights of the taxpayers but if you are entitled to kill innocent Palestinians or Russians when doing so is necessary to defend your rights, surely you are also entitled to violate the rights of Americans to some of their money.
There are good arguments against a military draft under most circumstances but imagine a war so dangerous that no wage would be high enough to recruit enough volunteers to keep the enemy from conquering you. You wouldn't want to violate the rights of people by drafting them, but if it is the only way of defending your rights …
My point is not that we should have taxes or a draft. It is that the arguments we use against rights violations are not as clear as they seem once we start considering hard cases.
Wrong Answers
There are questions to which libertarian theory gives no clear answer. There are others to which libertarian theory as most of us understand it gives a clear answer but not one we are willing to accept.
Property Rights
If I own something it's mine. If I am not willing to sell, there is no way anyone else can find out how much it is worth to me in order to compensate me for their taking it, since there is no way of measuring values externally.
It is a popular argument but there are a number of problems with it. To begin with, if there is no way of estimating the value of something to someone other than the price at which he is willing to sell it there is also no way of estimating the damages owed for violating someone’s rights. I admit that my careless driving cost you a crippling injury but since nobody ever offered to pay you to be crippled a court has no way of knowing whether the cost to you of being crippled is a hundred dollars or a billion dollars.
That is not the only problem.
Trespassing Photons, Probabilistic Vandalism
A neighbor who lives a mile away informs you that you need his permission to turn on your lights. The fact that he can see your lighted window from his house demonstrates that photons you produced are trespassing on his property.
You object that your photons are doing no damage; without a telescope he can barely see your window. He responds that that is for him to decide, that the only way of determining how much he values not having your photons striking his property is the price he will accept to give them permission to come.
I am not entitled to smash someone’s window without his permission even if I am willing to pay for it afterwards. What about doing it probabilistically? If I take off in a small plane there is some very small probability that I will crash, an even smaller probability that, due to a seizure or an instrument malfunction, I will fly 200 miles in the wrong direction and then crash. I am inflicting a risk of damage to person or property on everybody within 200 miles of the airport I take off from, farther if the plane has a longer range. Do I need permission from all of them before I take off?
Initial Appropriation
The intuitive basis for ownership is creation: I made it so it’s mine. How about ownership of land?
Various answer are offered. You mixed your labor with the land. You were the first guy to draw a boundary around it. You were the first guy to look down at it and say “mine.” I devoted a book chapter to my solution; the most I am willing to claim is that it may be a little less bad than the alternatives.
Even if we knew how land becomes property in the first place there is the additional problem that a lot of it, probably most of it, is by now stolen property. Consider England. Most of the more attractive pieces of real estate were settled by 1066, after which there was a substantial readjustment of property titles. Similar events occurred from time to time during the next nine hundred years there and elsewhere.
You are sitting in a rented house in England when someone breaks in. You tell him that he is violating your property rights, threaten to forcibly evict him. He asks what makes it your property. You respond that you rented it from the owner. What made it his property? He bought if from the owner. What …
You trace it back through a series of transactions until you get to someone who stole it — or at least, since even in England most houses do not go back to the Norman Conquest, the land it is sitting on. If you forcibly evict him, which of you has violated rights?
The Public Good Problem
Libertarians like to believe that, in a free-market, if something should happen it will. If I value an automobile more than the cost of building it, somebody will find it in his interest to build an automobile and sell it to me. If I value food, someone will grow food.
The public good problem involves goods for which the arguments that, in other contexts, support that conclusion do not hold.
A public good does not mean a good that is produced by government — governments produce lots of private goods and some public goods are produced privately.3 It means a good that, if it is produced, will become available to the members of a pre-existing group of people, a good such that the producer has no way to control who gets it.4 When we produce ordinary goods we can charge people for them, which makes it worth our while to produce them. But if I create and broadcast a radio program I have no way of controlling who listens to it, so have to find some other way of paying for it. If I can’t solve that problem I don’t produce the program even if the value to listeners is greater than the cost to me.
Some clever person came up with a solution to providing that particular public good privately: Produce one public good with a positive value and a positive cost of production, another with a negative value and a negative cost of production, tie them together and give away the package. The first is the broadcast, the second is the advertisement.
National defense, defense against nations, is also a public good. We have no way of knowing exactly who a missile is aimed at, so cannot shoot down only the ones aimed at people who have paid for the service. Perhaps there is some way of privately producing this public good,5 perhaps not; the strong arguments that, in other contexts, make us confident that if something is worth producing it will be produced do not hold for public goods.
With regard to an ordinary private good, one can say with some confidence that if it's worth producing it will be produced. With a public good you can only say “Maybe.”
Suppose that there exists some particular public good where you are convinced that the answer to the “maybe” is “No.” Suppose national defense is such a public good, cannot be provided except by using the government to steal money from your fellow citizens to pay for defense. Is the proper response that, since we cannot defend ourselves without initiating coercion which, as libertarians, we are unwilling to do, we will have to surrender? Or is the appropriate answer to say “We regret doing this friends but we have just become the IRS. Hand it over.”
How to Avoid Thinking
There are a number of ways that libertarians, and others, can avoid thinking about hard problems. One is to claim that the facts that create the problem don't exist. An example, for national defense, is the claim that nobody wants to attack us or that we can defend ourselves adequately without taxing or drafting anyone. That might be true for the U.S. at the moment but it is not true for all countries all of the time, as the Russians are currently demonstrating in Ukraine.
A stronger version is the claim that such situations not only do not exist for us at the moment but cannot exist, that somewhere in Human Action or Capitalism the Unknown Ideal there is a proof that the free market always solves all problems. Lots of economists sympathetic to the market have looked for such a proof and not found it. Von Mises did not find it; he was in favor of the draft. Adam Smith did not find it; he supported the Navigation Acts, which limited English Commerce to English ships. He thought they were bad for England’s economic welfare but if there was a war he wanted there to be lots of trained English sailors who would be willing to fight. It didn't do any good if they were all Dutch sailors.
Another way of not thinking about hard problems is to label them lifeboat problems and claim that since we don’t live in lifeboats we do not have to worry about lifeboat problems. But whether we live in a lifeboat is an empirical question — some people think we live in a spaceship, after all. Suppose it turns out that we do live in a lifeboat, that one or more of the situations where there is a conflict between respecting rights and surviving is real, what are you to do? Even if you think that is not the case, how can you claim that someone who disagrees, who is in favor of, for example, taxation for national defense, is morally wrong when you would agree with him if you shared his factual beliefs?
None of these are knock-down arguments against libertarian conclusions, since those conclusions can be defended on other grounds, such as the argument that while problems exist with a libertarian society, greater problems exist with the alternatives.6 They are arguments against the claim that libertarian conclusions can be adequately defended by the sorts of simple arguments with which libertarians often defend them.
P.S. The Prudent Predator
Quite a lot of libertarians base their libertarianism on Ayn Rand’s philosophy of Objectivism. One problem with the objectivist derivation of ethics as I understand it is the person who says “Yes, I agree, most of the time I should respect rights, but once in a while I get a really good chance to steal and it serves my life qua life to steal under those circumstances.”7
Of course, it is in your rational self-interest to tell other people to respect rights all the time. Possibly there is something that Ayn Rand didn’t tell us.
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I have given versions of the talk multiple times over the years. The earliest I have a recording of is Problems with Libertarianism, 1981, the most recent Arguments Libertarians Should Not Make at the Adam Smith Institute in London, 4/25/24.
In particular by Murray Rothbard and his followers.
Indeed, I believe that in this very moment as I am writing this I am producing a public good, although I might be wrong
There is a second part of the usual economic definition that is not essential for the point I am making.
I devote two chapters in my first book, Chapter 34 and, in the third edition, Chapter 56, to ways in which national defense might be produced without government.
That is my approach to the problem of market failure, of which the public good problem is one example.
I discuss my problems with Rand’s derivation of oughts in Chapter 59 of The Machinery of Freedom.
I am a libertarian because I'm an utilitarian, and I think libertarianism gives the best outcomes today. There's no universal law saying that must be true though, that's just how it is. If we lived in a world where there was a supernatural higher being that regularly interfered, perhaps living in a theocratic authoritarian state where we ensured no one violated that higher being's rules would result in better outcomes, to get that higher being's favour. If we lived in a world with superintelligent AI, perhaps centrally planning the economy around that AI's advice would result in better outcomes. There are probably other examples of other circumstances where alternative ideologies result in better outcomes than libtertarianism according to utilitarianism.
But in general, I think libertarianism long term result in the best outcomes for humanity. All the problems we pose, I think can be solved by saying libertarianism is just a tool of utilitarianism, not its own terminal value. And we stop using that tool when it's not useful. We can find another method to best fund and run a military that results in the best outcomes, we can find another method for law enforcement, for property rights, and so on, there is no reason we should need to bind our entire society to libertarianism.
Where criminal penalties are concerned, my quick sketch of an answer might look something like this:
* In general, the better course of action is to confer benefits on those who have benefitted you (to enable them to do so again, and to motivate them) but to confer harms or threats on those who harm harmed or threatened you (to avoid the Danegeld problem).
* This sort of exchange can be viewed as a market, and one that may have a market clearing price of a kind. If your penalty for stealing a sheep is to be fined a sheep, you have an incentive to steal sheep. As the penalty becomes steeper, fewer sheep are stolen. If we assume that inflicted harsher penalties, or penalties with greater certainty, make penalizing more costly, there will eventually be a point where punishing the thief is more trouble than it's worth.
* Our sense of what is a fair penalty is shaped by experience with penalizing over the years or centuries.