Libertarianism and the State of Nature

Zombie idea department: the “natural market distribution.”

In Christopher Beam’s interesting piece on libertarianism in New York magazine (h/t an excellent piece by Chait), he reveals a deep yet flawed structure of modern American political argument.  Noting that Ayn Rand’s objectivism is the “gateway drug” for libertarianism, Beam explains that:

The core of the Randian worldview, as absorbed by the modern GOP, is a belief that the natural market distribution of income is inherently moral, and the central struggle of politics is to free the successful from having the fruits of their superiority redistributed by looters and moochers.

Italics mine.  I have yet to hear any coherent account of a “natural market distribution.”  Why do we have any property?  Because the state enforces it in court, and if necessary, with force.  Why do millions of business thrive throughout the country?  Because the government has decided to give them patents and copyrights.  Corporations are creatures of the state, designed to protect investors with limited liability.  (And that liability, too, of course, is a creature of the state).

Now, merely because it’s “the state” doesn’t mean that we don’t have rights, or that the state can and should do whatever it wants.  There are lots of very compelling reasons to endorse the institution of private property.  But that’s what it is: an institution.

One good argument for various forms of private property is that they help human beings to flourish, either psychologically, materially, or whatever.  And any defintion of human flourishing rests upon beliefs about human nature and really, the purpose of existence.  But that is very, very far away from the libertarian notion of a “natural market distribution.”  That doesn’t exist.  And we should stop talking about it as if it does.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

35 thoughts on “Libertarianism and the State of Nature”

  1. Also worth noting: recently we had some discussion about private and public sector employment, and about the growth or contraction in each. However, much of the “private sector” employment depends entirely on the government: suppliers of parts and services may have corporate logos, and their employees are not on the government payroll, but they would be out of a job without the government demanding their commodities. I think that these companies were numbered among the bad guys in Atlas Shrugged, but the decades have eroded some of my memories of that book.

  2. A couple of corrections, one grammatical, one fanciful.

    I am pretty sure you meant to say "…that limitation of liability, too, of course, is a creature of the state…"

    And I am perfectly certain that I mean to say that for the modern GOP, the central struggle of politics is to allow the "successful" to keep what they stole.

  3. And the ill-definition of natural market distribution is precisely why libertarians make such squishy arguments (discussing policy with a libertarian is so famously like nailing jello to a wall) … and why so many of them are also prone to veer into liberto-anarchism. "Natural market distribution" could just as well be a might-makes-right arrangement as anything else.

  4. I agree with everything Jonathan says except his use of the word "libertarian."

    Roughly speaking, "libertarian" has three meanings: randroid, wingnut-who-wishes-to-be-respectable, and slightly-naive-child-of-the-Enlightenment. You can distinguish them on the basis of sincerity and feudalism. Randroids and wingnuts are feudalists who believe that their fiefs are granted by nature, and must be maintained by the enfoeffed nobility against the rabble. Randroids and naive children are sincere. (Sincere feudalism requires a root-and-branch rejection of the Enlightenment; randroids are up to the task. Society exists for them to nurture human greatness, which exists only in a few humans.)

    Jonathan seemed to identify the first two with the third. That's not quite fair. The third kind of libertarian is not a market worshipper, or a worshipper of the status quo. I don't think you could call, say, Radley Balko, any kind of supporter of the existing distribution of power. These guys really do believe that property is a core–maybe the core–attribute of civilization.

    I'm not a libertarian myself–this imperfect world is too interconnected for it. But this third kind of libertarian does play on the side of Team Enlightenment. The feudalists are their enemies, as well as ours.

  5. There are two kinds of libertarians: those appalled by the government's use of torture in recent years, and fake libertarians.

    I don't want any asshole who sat on his hands while the U.S. adopted NKVD torture manuals, telling me a DAMN thing about state power and the need to set limits to it. Do. Not. Want.

  6. I couldn't agree more, Jonathan, and these point should be made much more often. There is a curious tendency in our political/economic discussions to treat the government as if it were some outside entity which came in at times and "interfered with" "the market". It is much more accurate, I think, to treat the government as just another entity in the market, such as it is. That is to say that the government produces useful services (for example, as you mention, copyright, incorporation and trademark) which other parties use to earn revenue, some of which is paid back to the government supplying the services. Basic commerce, pure and simple.

    Another thing implicit in these observations is the extreme irony of these "libertarians" complaining about moochers and freeloaders. As you've pointed out, the limited liability that corporations enjoy, and that is essential for them to enjoy the revenue they do, is provided by the government. We the people provide this service through the government and we take on some of the risk the investors would otherwise be facing. In return, most of us would like to have the companies pay money and fund things like education, transportation, health care and the like (things all of which serve to increase the value of our labor and capital and thereby tend to increase the prosperity of the nation). In other words, trading something of value for something else of value in return.

    The Randians, on the other hand, are calling for these services to be supplied and insisting that the services must be supplied with absolutely no obligation on the part of the Randian in return. That is wanting something for nothing.

  7. A Randian is simply someone who "believes" that the government is rational and legal as long as it supplies them with money and power. Heaven forbid that any Randian economist believer should ever investigate the direct correlation of the corruption of Washington and the state capitals with whomever is suddenly richer.

    The Randians could hold a competition locating the most corrupt people in the US. The politicians wouldn't even be close to first place, the military procurement people would be higher, but the super rich owners of the Merchants of Death would undoubtedly be the winners.

    Never forget that Bernie Madoff stole more money than all other persons who have served time in prisons for theft since prisons were established in the US put together. A true Randian capitalist hero when all of Rand's BS is stripped away. Proof positive that "efficient markets" do not exist or Bernie couldn't have stolen all of that money.

  8. "One good argument for various forms of private property is that they help human beings to flourish, either psychologically, materially, or whatever. . . . But that is very, very far away from the libertarian notion of a “natural market distribution.” "

    The conservative libertarian notion is private property as a means of domination, a means for some humans to flourish at the expense of the oppression of others. Of course, that requires that the state be available to one class, but not others — the courthouse door must be closed to the individual and to labor, but remain available to the Rich Man and to the business Corporation.

    A "natural" distribution of income, like a "natural" rate of employment and a "competitive" wage is just a cover story for the exercise of private power by business corporations, unrestrained by claims of personal rights or popular democracy.

  9. It's never a bad idea to reference Kevin Carson & co who argue that state intervention is pervasive enough that trying to justify nearly any part of the status quo as based on the "free market" is laughable.

    David Friedman argues in A Positive Account of Property Rights that the state is not necessary for such rights to exist. I think he's got a good point in that stateless animals have notions of territory based on similar logic. The argument against anarchy might then be that stationary bandits are superior to the roving bandits upon whose mercy we are thrown absent the state.

    I was having trouble deciding which category I fit. I'm arguably feudal ("radically decentralist" sounds more palatable to the left, though following Jacob Levy I reference the pluralist vs rationalist divide) enough to not qualify as libertarian, but I've got a very low opinion of Rand. Max Stirner is the real deal. Morality is a geist haunting the mind, and Rand is one of the most sanctimoniously pious atheists in memory.

  10. I think thatlibertarianism has few major faults. One is that, to me, it requires a society wide level of ethical behaviour never seen in human history. Failing that a (relatively)incorruptible court system that money can't dominate. My biggest complaint is the conceit that an individual has all the negotiating power he needs.

    Here is something amusing that explains all the different variations.

  11. I think he’s got a good point in that stateless animals have notions of territory based on similar logic.

    That's it? That's the argument? Animals have notions of territory? On this Friedman wants to build a theory of property rights without a state?

    I didn't know that lions respect zebras' territorial rights. Indeed, isn't intra-species conflict over territory common among animals?

  12. @Bernard Yomtov:

    Intra-species conflict over territory is common. But so is intra-species respecting of territory. A pair of similar-status dogs will generally respect each others' territory. An alpha might not respect the beta's territory, or might, depending on the alpha. I've seen Lhasa Apsos push German Shepherds off their territory, with the Shepherd acquiescing. There is far more involved than relative dentition.

    The state is certainly not necessary for sufficiently simple property rights. Read Primo Levi's description of the economics of concentration camps. Robert Ellickson has done some interesting work along these lines. However, I don't see how you get from simple property rights over chattels among slaves to a complex anarcho-libertarian society. The state is probably necessary for any complex set of property rights. A theory of property rights without the state might be sound political theory and work in some cases, but is laughable modern economics.

  13. Scrooge is right. The libertarian model assumes clear and distinct boundaries to "property." But real property, especially in complex societies, has anything but such boundaries. At what point does the sound I make or the lights I shine become trespasses on your property? At what point does what I do on my land become a pollutant when the results of my actions cross over onto your property? What should be the limits on a patent or copyright There are lots of answers to these questions and libertarian stateless theory is 100% incapable of determining which should hold.

  14. I think that, if you were to subject your own philosophies to this sort of analysis, they'd fail abysmally. Utilitarianism, for instance? Computationally infeasible for anybody but God, "utils" are an imaginary construct which can't actually be measured, theoretically leads to conclusions most people would be aghast at, the whole thing is just a total joke, but taken seriously by way too many people.

  15. Scrooge,

    But what is the implication of all that for humans living in even a modestly complex society? The answer, to my mind, is: nothing. Dogs sometimes respect other dogs' territory? Very interesting (seriously), but irrelevant to human society as we know it. Dogs don't decide to build factories in their territory, or to dam up the river that runs through it, or….(all to their credit, IMO).

    I was reacting, maybe unfairly but I don't think so, to WA's description of an argument by Friedman for property rights without states. I am influenced by the fact that it seems to me that libertarians often invoke some sort of superficial point like that to support their ideas.

  16. Brett-

    Speaking as a former libertarian I think you're hitting out at a straw mane. I'm not a utilitarian – never have been – but people do have a pretty good idea of what benefits and hurts others, else they would never be able to raise children or maintain a good relationship. I've never heard of anyone today using' utils', but rule utilitarianism seems a much more defensible position than hard libetarianism. People like Hayek favored that position as well.

    In my opinion the broad perspective developed by people like David Hume, Adam Smith, and Charles Darwin is better than even that. They developed a "sympathy" based theory of morality that seems harmonious with a scientific understanding and fits interesting evidence in human and even some animal life (See 'Wild Justice: The Moral Lives of Animals', Bekoff and Pierce). It also preserves the regard for individuals that utilitarianism is so weak on.

    It seems to me that the ethical systems that have problems are ones seeking to recreate or resurrect supposedly divine commandments in logical or other obligatory forms. This seems to me common problem in almost all libertarian thought (Rothbard, Nozick, Friedman, and so on) as well as deontological and hard utilitarian perspectives.

  17. @ Ebenezer

    Dogs??? DOGS??? You're going to use a heavily genetically engineered species as an example of the state of nature? Give me break, please.

    If you want to use dogs as an example of the state of nature, you have to use wolves, or (maybe) coyotes. Wolves are social animals: they live in packs. The territory belongs to the pack, not the individual. So, if you want to make the argument, you have to argue from what happens among packs, not within packs.

    Coyotes are more solitary (or pair-bonded) than wolves, but even coyotes can group up to hunt in packs under some circumstances. A good introduction to canid behavior is Steven Budniansky's The Truth About Dogs.

  18. For me the more important question is whether the acquisition of property is an individual enterprise at all, and not just a specific manifestation of the social hive. This goes to human behavior and structural egalitarianism. I'd argue any form of inequality is entirely a construct of leveraged positions in space/time and the causal web, as any other explanation would require transcending the laws of physics and natural law.

    How we set up our social contract to deal with this in a moral and productive way is another matter entirely. The mixed economy seems the best we've come up with so far, even though enormous inequity still exists – especially on a global scale.

  19. ALL moral theories, without exception, fail due to the inability to get from an is to an ought. ALL of them. The entire enterprise can not even get off the staring block without at least one starting premise that is moral, rather than logical or empirical.

    That starting premise can not be logically proven or rejected, and we don't all use the same starting premise. Don't indulge in the delusion that, whatever your pet theory is, that it's on sounder ground than libertarianism. It isn't.

    Indeed, I'd say that libertarianism is better situated than most theories, because, while you can't prove a moral theory correct, you CAN prove it to be internally inconsistent. And the insistence of many moral theories, in contrast to libertarianism, on incorporating positive rights, is the moral equivalent of division by zero in math. It guarantees inconsistencies.

    You may treasure your inconsistent theory that accords with your personal tastes, and despise libertarianism, which consistently departs from them, but you're not really any better, and generally you're worse.

  20. Brett,

    I usually enjoy your posts, because they are the product of an intelligent autodidact. In other words, you have done the thinking, but haven't done the reading. Isaiah Berlin has dealt with the precisely the point you have raised: the internal inconsistency of any kind of political theory. You should give him a read.

    And by the way, is there an internally consistent libertarian theory of the family? I kind of doubt it. If I decide that I dislike my three-year-old boy, am I free to turn him out on the street?

  21. Dogs have a sense of territory, not of property rights. Most of us depend upon a concept of property which goes beyond our territory and of a vast amount of neutral or public territory. We expect that this property should be secure even when we are in the public territory. In other words, if I get held up on fourth and locust, far outside my territory, my rights have been violated. Dogs don't do that.

    Beyond that difference, the libertarian argument here is conflating the mere existence of something that can be called "property rights" with the extent and value of those rights that we have by virtue of the government we have. Certainly humanity in the distant past had a concept of property rights not unlike that of other animals. Those people were not quite as prosperous as we are now. By having a government that defines and secures these rights the value of our labor and capital has been vastly increased. It is that increase in value due to the state that is rightfully the subject of Jonathan's post.

  22. I guess I should go back to the doggy duty.

    I pretty much agree with most of what the posters on animals are getting at. Dogs (or coyotes or heffalumps) are not a particularly good guide to the concept of property, which is predominantly legal, and the legal concept is predominantly statal. Appeals to nature are nonsense, in any case: solitary, poor, nasty, brutish, and short.

    But I do have one reservation. A lot of legal theorists have tried to define property. I think they have consensus on only one point: property is the relationship of people to an object of property, which in turn can be a relationship among people. (If the last phrase seems obscure, think of a mortgage, which is a property right in a contract which in turn specifies a property right.) Beyond this, nothing seems to encompass all the relationships that we call property. Property is not necessarily indivisible, not necessarily exclusionary, not necessarily alienable, not necessarily much of anything. (A commons, for example, is a kind of property right.) Property doesn't even necessarily track legal relations. Everybody at my workplace recognizes my rights in my desk, notwithstanding the fact that the law clearly views it as property of my company. If somebody were to sit down at my desk, nobody would analyze it in terms of agency theory. They would all say: "Why are you sitting at Scrooge's desk?"

    But given this tremendous snakiness, we're still pretty confident in our property talk, most of the time. It's very much like language. There is no logical consistency to language, but it works pretty well. I think it is hard to escape the conclusion that there is something in property, like in language, that owes more to neural wiring than to any logical structure. We are wired differently than dogs or heffalumps, and neural wiring, being trainable, has much in it that is socially constructed. But property is not quite reducible to positive law.

  23. Like animals in their natural domain, territory (property), and its distribution would depend on pissing contests and brute strength – now that's what I would call a "natural market distribution!" Ever meet a true libertarian who wasn't a hoarder?

  24. Brett, you're not dealing at all with the specific objections in the post. The problem isn't that there's an underlying inconsistency in how a natural state of property is defined. It's that any functional definition of property that can encompass all of what we consider to be property depends entirely upon state action. As has been pointed out, the corporation is a perfect example of this. In what sense is the concept of limited liability in any way natural? In what way is an intangible entity having any sort of legal standing natural?

    Libertarianism is not, as it clams, opposed to heavy state intervention in the economy or society. It just likes to pretend that it is, while depending upon certain sorts of heavy handed intervention. To me, this doesn't invalidate libertarianism as a philosophy, but it does mean that you need to get dirty and start arguing as to why certain forms of state involvement are good, while everything else is bad. You can not in good faith sit back and just argue from first principles that we need to minimize the state, because you don't really propose that in any theoretical sense. You very much desire for the state to step in and distort society far from anything that could be considered natural in any meaningful sense. Those distortions will favor certain parties, and disadvantage others. That's a very different argument than just saying that we should all have liberty, unless you already have your thumb on the scale by assuming specific, and not really natural, definitions of all of the terms involved.

    I don't see any indications that libertarians really want to have that argument, probably because once they move off of their first principles and into the nitty gritty, what they're trying to sell won't be very popular.

  25. Michael Neal's post suggests more reading for Brett. I would recommend that Brett look at Dicey's Lectures on the Relationship between Law and Public Opinion in England. Dicey viewed himself as a Benthamite utilitarian, but he pretty much reads like a sophisticated libertarian. Dicey recognized the tension between freedom of association (e.g., corporations, unions, religion) and other forms of liberty, and recognized that the one liberty sometimes needs regulation by the state to foster others. Unbridled freedom of association can lead to an activist para-state (e.g., Haley Barbour's White Citizens' Councils, which did not rely on violence); regulated freedom of association entails an activist state.

  26. The David Friedman argument I referred to above is here:

    It's not just dogs either, I believe Dawkins used the example of fighting fish. Territoriality is an ESS (possibly giving rise to the endowment effect), and more complex social structures support more complex varieties of territory/property. So human tribes/clans can mantain claims while a particular individual is traveling. Anarcho-capitalists think the particular set of property rights and supporting institutions characteristic of medieval Iceland/Ireland, the "Law Merchant" or the more current "Law of the Somalis" are in many ways preferable to the status quo. The legitimacy of limited liability is an open question among them (I expect it would also be on the capital-L Left).

    I think it's wrong to categorize David Friedman as a divine command type. He's said that he expects anarchy to tend toward efficiency, and thus libertarianism, but he doesn't single out particular property rights that any just system must uphold.


    Territorial struggles between wolfpacks. Coyote finds a pack that's just taken over the territory where it lives way less tolerant than the pack that was there before.

    The movie is good, and I think many will find it a welcome break from arguing with libertarians, which is always, always a waste of time.

    Also, Anderson is right, as usual.

  28. WA,

    Reading Friedman's Cato essay, it seems to me that his argument ultimately reduces to saying that property rights are based on force, manifested one way or another.

  29. Brett has essentially claimed that the basis of libertarianism is an irrational will to commit, and that it is justified by a similar foundation in other ethical systems. This claim is apparently in ignorance of arguments such as that of Hume and Smith and Darwin – even though he refers to Hume's argument that we cannot get ought from is.

    The only internally consistent libertarian I am aware of was Murray Rothard, who in response to Ebenezer Scrooge's query about kids would say you had the right not to feed your children and to let the starve. That demonstrated the inhumanity of his position. (Rothbard never had kids, BTW.)

    But Rothbard also proved the complete vacuousness of his philosophy when he covered pollution. He initially argued we have an absolute right not to be invaded against our will, so no one could produce any pollution that entered our bodies. This of course would shut down all internal combustion engines. He then argued that for redress from such an invasion we had to prove which motor caused the pollution that entered our bodies. Which is impossible. He went from complete prohibition to complete powerlessness in one single argument of utter foolishness. Libertarianism has not gotten a lot better since then.

    Of Brett is correct, it is now simply a matter of will.

    Contra Brett, an argument based on what makes for evolutionary success, and may be inherent in the structure of logic (see Axelrod's 'Evolution of Cooperation') is quite different from an argument that depends on some authoritative logical standard held over the world. If sympathy/empathy leads to evolutionary success one can still reject both and prefer hatred and failure, at the cost of one's humanity, without making a logical mistake. To think the claim that what is is separate from what should be is a secularized way of seeking God's rules over a meaningless world. When such claims fail we are left with a meaningless world and nihilism.

    The admission of and embracing of irrationality as libertarianism's foundation is interesting.

  30. Bernard, Friedman does mention the possibility that people refrain from an activity just because they view it as morally wrong, but close enough. I would also mention the possibility of mechanisms like the "Law Merchant" which didn't feature coercion anywhere but relied entirely on reputation/boycott (a mechanism used by both the Citizens' Councils and NAACP). That works with repeated interaction, one-offs with strangers is trickier.

    Gus, irrationality is one way to look at it and I wouldn't say a bad one either. Another way of looking at it is that credibly committing to behaving "irrationally" in particular situations can give desired results. Intellectualize that up and you've got the basis for rule utilitarianism. But to be a pedant I will say that hatred does not cost one's humanity: there are are human beings who hate, to hate (and love) is human. Let's not pretend this hairless ape is something ideal. Incidentally, I go even further than Rothbard on children (making me arguably not a libertarian) but I agree regarding pollution.

  31. Wonks Anonymous-

    I don't follow you on several points.

    It seems to me that to appear nuts in order to get an opponent enough to fear so as not to risk a confrontation is a rational strategy, albeit a very risky one.

    I am not a rule utilitarian, but I do not see it as irrational. It is more like acting rationally within constraints of insufficient information and without any commitment to the intrinsic moral value of individuals. Many economists would be like this in my opinion.

    As to hatred and humanity – the term "humanity" has lots of meanings depending on context. A man who gives up desiring flourishing for people and who hates them is certainly human in a more than trivial sense, but he is no longer "humane" or acting with "humanity."

  32. Don’t indulge in the delusion that, whatever your pet theory is, that it’s on sounder ground than X. It isn’t.

    Indeed, I’d say that X is better situated than most theories . . .

    Deft work there. Kudos.

  33. "The libertarian model assumes clear and distinct boundaries to “property.” But real property, especially in complex societies, has anything but such boundaries. At what point does the sound I make or the lights I shine become trespasses on your property? "

    The dogs mentioned above have developed instinctive ways of identifying property and with dealing with violations of property rights. With humans it has become more complicated because anything which can be named can be identified as property. But along with naming an object that someone owns, there are names for different decisions of use that the property can be put to and especially who had the right to decide the disposition of any identified piece of property. Because music can be identified and separate pieces of music can clearly be recognized and distinguished, someone can decide with to do with such items of property.

    At that point human culture steps in and each society can, based on its own history, change who has the right to use or dispose of any recognized property. Trading items of property was probably pretty easy to recognize, but when the Greeks invented the metal symbol of value called money, then trades for those symbols became practical. But again, this is all because various societies create those symbols just as they do words in languages.

    Property rights only exist because societies have established symbols that describe them. Land had no real value before boundary markers and later, surveyors and survey records (that was the magic of the Domesday Book.)

    Politics is another way of making decisions, based entirely on social agreements regarding how groups make decisions. Libertarians just want the rest of us to use their selfish decision-making instead of the one current society has established. There are no such thing as "inherent property rights." Property rights are just another artifact of culture and the language that creates cultures.

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