Rights and Reason: Libertarian Ethics in Practice

Rights and Reason

Libertarian Ethics in Practice

David J. Harris

Introductory note about this essay:

I wrote this almost three years ago for a course that focused on the relationships between

the human body and our political and social identities. During the writing process, I

quickly realized that a comprehensive treatment of these issues would have been book-

length, and so I pared down my argument to those issues I was most prepared to focus on.

I apologize if the result is disjointed or patchy, but I hope that the argument still comes

across clearly.

This essay is copyright David J. Harris 2005. I am licensing it under the terms of the

Creative Commons Attribution-Noncommercial-Share Alike 3.0 license, described at

http://creativecommons.org/licenses/by-nc-sa/3.0/us/.

If you would like to discuss this essay with me or would like to redistribute it in a way

that is not compatible with the terms of the above license, feel free to email me at

harry491[at google’s mail service].

2 DAVID J. HARRIS

Rights and Reason

Libertarian Ethics in Practice

David J. Harris

...simple statements of libertarian principle taken literally can be used to prove conclusions that nobody, libertarian or otherwise, is willing to accept. If the principle is softened enough to avoid such conclusions, its implications become far less clear. It is only by being careful to restrict the application of our principles to easy cases that we can make them seem at the same time simple and true.—David Friedman1

Libertarians have a complex suite of radical policy proposals that, if implemented, would

dramatically change the structure of our government, eliminating the social safety net,

most if not all taxes, all subsidies and tariffs, all business regulations not directly related

to fraud, public education, and most other government functions other than protection

from physical force or deception. In some formulations, only the police, military, and

courts would remain, and democratic support for more government intervention would be

ignored. Libertarians are a small minority, and most people find the libertarian end-state

undesirable, so one may wonder why nonlibertarians should bother thinking about them.

The first reason is that libertarianism, “in theory, if not in practice, it is the ideological

‘spear-point’ of ‘free market reform’ throughout the world,” with “many of its prominent

exponents, such as Milton Friedman, F. A. Hayek, Ludwig von Mises and Robert

1 David D. Friedman, The Machinery of Freedom: Guide to a Radical Capitalism [selected chapters online unedited] (Peru, IL: Open Court Publishing, accessed November 27, 2005); available from http://www.daviddfriedman.com/Libertarian/Machinery_of_Freedom/MofF_Chapter_41.html.

RIGHTS AND REASON 3

Nozick” “highly esteemed by scholars.”2 In other words, we should take the theory

seriously because while few want to adopt their entire project, specific policies and ideas

are influential. The second reason is that libertarians can be highly persuasive, and if we

do not agree with their proposals, it is important to understand both why we disagree and

why we find their reasoning so compelling. The final reason is that beneath its

ideological excesses, libertarianism offers important insights that can only be gained by

critically evaluating their position.

Most discourse about libertarianism is political, which makes sense—

libertarianism is a political philosophy. But it is not just a political philosophy; absolute

individual rights have implications outside the state, and weakly libertarian views are

common throughout ethics. For example, both “autonomy” and “non-maleficence,” two

important pillars of medical ethics, can be restated in explicitly libertarian terms.3 More

importantly, Americans consider Ayn Rand’s radically capitalist Atlas Shrugged to be the

most influential nonreligious book in their lives4 and largely apolitical descendants of

Rand’s philosophy like Nathaniel Branden’s bestselling books on self-esteem are popular

as well.5 Most derivations of libertarian principles draw exclusively upon nonpolitical

facts and assumptions;6 in this essay I will identify and refute several of them, paying

2 Ernest Partridge, “With Liberty for Some,” in Environmental Philosophy, eds. Michael Zimmerman, Baird Callicott, Karen Warren, Irene Klaver, and John Clark (Upper Saddle River, NJ: Prentice Hall, 2004, accessed November 27, 2005); available from http://gadfly.igc.org/papers/liberty.htm.

3 “Autonomy” means respecting the wishes of the patient, i.e. recognizing his or her self-ownership; non-maleficence means doing no harm to the patient, i.e. recognizing his or her rights.

4 “Book Lists,” Center for the Book: Liberary of Congress, http://www.loc.gov/loc/cfbook/booklists.html, April 5, 2005 (accessed 11/27/05).

5 I will justify my identification of Objectivism as libertarian when I discuss Rand’s philosophy in detail below.

6 For example, Robert Nozick, Anarchy, State, and Utopia, (New York: Basic Books, 1974), 19

4 DAVID J. HARRIS

special attention to the problems the human body and mind create for libertarian premises

like absolute nonaggression, inviolable rights, and perfect rationality. My goal is to deny

libertarians easy access to first principles and rules of thumb so that each situation must

be evaluated empirically, rather than based on ready-made appeals to “man’s nature,”7

self-ownership, nonaggression, or property rights. Because libertarian moral absolutes

are derived from the same philosophical tradition as American government (Lockean

liberalism), they often ring true to us until critically evaluated; understanding the

implications of individual rights taken to their logical conclusion may help us better

identify cases where ideology interferes with morality in our own society. Conversely,

freeing libertarians from their rigid ideological confines will allow them to turn their

insights to a more nuanced and effective critique of the real problems of modern

governance.8

Libertarian values

[I]s it going to be reason or force? Are individuals in this country going to deal with one another freely, voluntarily, by means of reason and persuasion—or—are individuals in this country going to deal with one another by means of force, by means of a government gun, a gun that outlaws voluntary cooperation, outlaws reason and persuasion? Are we to have a government that protects your right to life, defends your right to live your life freely—or—are we going to have a government that destroys

7 Most libertarians use “man” and masculine pronouns unless speaking specifically about women. Though I generally keep my writing gender-neutral except when necessary, I will in some cases write “man” (in scare quotes) to refer to “the libertarian conception of ‘man.’” Additionally, when I refer to the same “man” as one of the authors I quote, I will maintain “his” gender rather than having an example begin about a man and end with a gender-neutral person.

8 Jeffrey Friedman, “What’s Wrong With Libertarianism,” Critical Review 11, no. 3 (Summer 1997, accessed November 27, 2005): 442-460; available from http://www.tomgpalmer.com/papers/friedman-whatswrong-cr-v11n3.pdf.

RIGHTS AND REASON 5

your right to life and liberty, destroys your freedom?... This is the choice you face.—Fulton Huxtable9

I define libertarianism as any philosophy that supports property rights, whose moral or

legal code consists largely of opposition to coercion and that requires governments, as

mere collections of individuals, to abstain from the initiation of force. Most readers will

be less familiar with libertarian ethics than with the politics that flow from them, and in

this section, I will summarize several derivations of the libertarian moral code. I will

largely let the authors of these positions speak for themselves so that I might avoid

caricaturing their positions, which will be largely interchangeable for my purposes. I will

conclude this section with a discussion of “amoral” or “consequentialist” libertarianism,

which is somewhat distinct from the other morality-based theories and explain how my

criticism applies to each form of libertarian ideology.

Modern libertarianism and classical liberalism

The clearest introduction to libertarianism I have found is from an animated adaptation a

book written to introduce children to the “philosophy of liberty.”10 This derivation of

libertarian principles begins with self-ownership: “You own your life” because “to deny

this is to imply that another person has a higher claim on your life than you have.” One

has fundamental rights to life, liberty and property, and when people “exchange property

voluntarily,” they must both be “better off or they wouldn’t do it.” Normally, taking life

is “murder,” taking liberty is “slavery,” and taking property is “theft.” “It is the same

9 Fulton Huxtable, Fatal Blindness, “Introduction,” available from http://web.archive.org/web/20021018224823/www.fatalblindness.com/introduc.htm, accessed December 4, 2005.

10 Ken Schoolland, The Adventures of Jonathan Gullible: A Free Market Odyssey, (HI: Sam Slom, 1987) Animation (accessed November 27, 2005) available from http://www.jonathangullible.com/mmedia/PhilosophyOfLiberty-english_music.swf; epilogue (accessed November 27, 2005) available from http://www.jonathangullible.com/mmedia/Epilogue.pdf.

6 DAVID J. HARRIS

whether these actions are done by one person acting alone, by the many acting against a

few, or even by officials with fine hats...” Furthermore,

you have no right to impose rulers on others. No matter how officials are selected, they are only human beings and they have no rights or claims that are higher than those of any other human beings... You cannot give them any rights that you do not have yourself... This is the basis of a truly free society. It is not only the most practical and humanitarian foundation for human action, it is also the most ethical.

This brief sketch includes most libertarian principles, including the right to life, self-

ownership, nonaggression, the value of trade, and limits on government. The influential

libertarian theorist Murray Rothbard and his followers defend self-ownership from

alternatives by arguing that “if all goods were co-owned... then no one... would be

allowed to do anything unless he had previously secured every other co-owner’s consent

to do so; and yet, how can anyone grant such consent if he were not the exclusive owner

of his own body (including his vocal chords) by means of which his consent must be

expressed?” As a result, “all of mankind would instantly perish.” Moreover, because

living entails exclusive use of objects like food, “property rights to other things must be

presupposed as valid, too. No one who is alive could possibly argue otherwise.” The

Rothbardian argument, like the Objectivist argument I will review below, thus logically

defines all counterarguments out of existence as “performative contradictions” that, if

true, could not be articulated; supposedly, disputing their reasoning entails implicitly

conceding it.

John Locke and Robert Nozick take a slightly different approach, arriving at

similar conclusions; the following is from Nozick, quoting Locke approvingly:

Individuals in Locke’s state of nature are “in a state of perfect freedom to order their actions and dispose of their possessions and persons as they think fit, within the bounds of the law of nature, without asking leave or

RIGHTS AND REASON 7

dependency upon the will of any other man” (sect. 4). The bounds of the law of nature require that “no one ought to harm another in his life, health, liberty, or possessions” (sect 6). Some persons transgress these bounds, “invading others’ rights and... doing hurt to one another,” and in response people may defend themselves or others against such invaders of rights (chap. 3).11

Nozick continues to discuss rights, arguing that they are inviolable,

reflect[ing] the fact of our separate existences. They reflect the fact that no moral balancing act can take place among us; there is no moral outweighing of one of our lives by others so as to lead to a greater overall social good. There is no justified sacrifice of some of us for others. This root idea... leads to a libertarian side constraint that prohibits aggression against another. 12

Thus far, the most significant difference between the libertarians I have cited is their view

on whether or not government should exist: Locke “easily” grants government the right

to solve certain “inconveniences of the state of nature,” while Rothbard and his followers

do not, preferring nonmandatory alternatives. Nozick supports only a tightly limited

state. Note that all the derivations of libertarian values I have mentioned so far focus on

rights and prohibitions against rights violations as opposed to balancing costs and

benefits to the group; all consider individuality a necessary precondition for rights.

Rand’s Objectivism functions similarly.

Rand’s Objectivism

Because Rand was violently opposed to calling herself a “libertarian,” before I discuss

her philosophy, I should explain why I feel justified in calling Objectivism a libertarian

philosophy. The political goals of non-anarchist libertarians are usually identical (or at

least very similar) to those of Obectivists. Both groups oppose the initiation of force,

though the reasoning differs slightly. Nathaniel Branden, a longtime associate of Ayn

11 Locke’s Second Treatise of Government, cited in page 10 of Nozick’s Anarchy, State, and Utopia.12 Robert Nozick, Anarchy, State, and Utopia, (New York: Basic Books, 1974), 33

8 DAVID J. HARRIS

Rand and expert on Objectivism, writes that Rand’s opposition to the label “libertarian”

had as much to do with the way the word sounded as with any legitimate ideological

difference, and sees “libertarianism” as the best available label for Objectivist political

philosophy.13 Libertarians often see Rand as misguided, and even dangerous14 but many

admire her writing for its clarity, passion, and success in providing “liberal capitalism

with a moral foundation.”15 Regardless, the philosophies are similar enough that many

criticisms of one will apply to the other, especially because of the influence of

Objectivism on modern libertarianism. Ironically, my critique of a purely libertarian

ethics may apply better to Objectivism than to most other libertarian philosophies

because Rand explicitly noted that absolute property rights depended on the impossibility

of overlapping claims16 and defined any ethical system that differed from her “objective”

one as illegitimate, as it would conflict with her axioms, which, like the Rothbardian

conception of property, could only be disputed by implicitly conceding them.17

Rand holds that “that which furthers” an organism’s “life is the good, that which

threatens it is the evil,” and the nature of that organism, including the fact that it exists as

a living being “determines what it ought to do.” In other words, ethics follows logically

13 Nathaniel Branden, “Objectivism and Libertarianism, http://www.nathanielbranden.com/catalog/articles_essays/objectivism_and_libert.html, 1999 (accessed November 27, 2005).

14 Murray N. Rothbard, “The Sociology of the Ayn Rand Cult,” 1972, available from http://www.lewrockwell.com/rothbard/rothbard23.html, 2003 (accessed November 27, 2005).

15 Cathy Young, “Ayn Rand at 100,” Reason, March 2005, available from http://www.reason.com/0503/fe.cy.ayn.shtml (accessed November 27, 2005).

16 Ayn Rand, “Man’s Rights,” The Virtue of Selfishness (New York: Signet reissue edition, 1964) 96.

17 Ayn Rand, Introduction to Objectivist Epistemology, New York: Meridian expanded second edition, 1990; originally published in The Objectivist, July 1966-February 1967 79.

RIGHTS AND REASON 9

from an organism’s nature, especially from its life. In the case of “man,” reason is the

“basic means of survival,” so “that which is proper to the life of a rational being is the

good; that which negates, opposes, or destroys it is the evil.” From this follows the

“basic social principle of the Objectivist ethics:” “just as life is an end in itself, so every

living human being is an end in himself, not the means to the ends or the welfare of

others—and, therefore, that man must live for his own sake, neither sacrificing himself to

others nor sacrificing others to himself.” Furthermore, Objectivism

holds that the rational interests of men do not clash—that there is no conflict of interests among men who do not desire the unearned… The principle of trade is the only rational ethical principle for all human relationships, personal and social, private and public, spiritual and material… [A trader] deals with men by means of a free, voluntary, unforced, uncoerced exchange—an exchange which benefits both parties by their own independent judgement… The basic political principle of the Objectivist ethics is: no man—or group or society or government—has the right to assume the role of a criminal and initiate the use of physical compulsion against any man. Men have the right to use physical force only in retaliation and only against those who initiate its use… The only proper, moral purpose of government is to protect man’s rights, which means: to protect… his right to his own life, to his own liberty, to his own property and the pursuit of his own happiness. Without property rights, no other rights are possible.18

The most important theoretical distinction between Objectivism and other libertarian

philosophies is that Rand’s politics were derived from her own metaphysics,

epistemology, and ethics; unlike Rothbard, she began with the right to life and used it to

derive the right to property and self-ownership rather than the other way around. All the

philosophers I am dealing with here consider both self-ownership and the right to life to

be absolute, so for my purposes, it will not matter which one comes first. I will note

when her philosophy differs from those discussed above.

18 Ayn Rand, “The Objectivist Ethics,” The Virtue of Selfishness, (New York: Signet reissue edition, 1964), 13-36, all emphasis Rand’s.

10 DAVID J. HARRIS

Consequentialist libertarians

Though some of the best defenses of a free market have come from F. A. Hayek, I have

little to say to his followers; unlike the libertarians I consider here, Hayek scorned

“wooden insistence... on certain rough rules of thumb,” favoring the market precisely

because it would allow for nuance, experimentation, and multiple alternatives.19 Though

influential among libertarians, he rejected their label and may actually be more properly

considered a modern Burkean conservative with free-market leanings.20 Economist

Milton Friedman, who played an important role in popularizing and implementing

aspects of libertarianism, and especially his son David Friedman, who takes the threat of

government coercion so seriously that he advocates a stateless society, are also largely

immune to my criticism, as they restrict their efforts to finding the best government, not

the most moral one.21 Though Rothbard, Rand, and Nozick often argued from

consequences, arguing that their philosophies would produce outcomes that were both

moral and desirable, they did little empirical work to support their claims, and their

argument was primarily moral. Other libertarians like David Boaz of the Cato Institute

work from both perspectives, though they grant rights primacy. The following quotation

from Boaz shows that this group of libertarians will be unimpressed with my argument:

19 F. A. Hayek, The Road to Serfdom (Chicago: University of Chicago Press 1972), 18.20 Jonah Goldberg, “Libertarians Under My Skin: Grow Up Already,” National Review

Online, March 2, 2001, available from http://www.nationalreview.com/goldberg/goldberg030201.shtml (accessed November 27, 2005).

21 For example, see David D. Friedman, The Machinery of Freedom: Guide to a Radical Capitalism [selected chapters online unedited] (Peru, IL: Open Court Publishing, accessed November 27, 2005); available from http://www.daviddfriedman.com/Libertarian/Machinery_of_Freedom/MofF_Chapter_41.html.

RIGHTS AND REASON 11

Some critics of rights-based libertarianism try to place impossible burdens on the claims of natural rights, then declare victory when the theory won't hold so much. Bradford, for instance, says that "moralistic" libertarians believe that "it is always wrong for one person to initiate force against another." That would mean that there are no circumstances — during war, flood, shipwreck, murderous rampage — when the normal rules for social interaction might be inoperative. But that is not what actual rights theorists claim; rather, they say that in normal circumstances, where social and political life is possible, people should respect each other's rights.22

I have two answers for Boaz and those that agree with him. The first is to refer them to

Jeffrey Friedman’s analyses of “the parasitic codependency of consequentialist and

nonconsequentialist reasoning in libertarian thought,”23 which find unsubstantiated

assertions and circular reasoning to be the only way to sustain both lines of argument.24

There is no reason to assume the happy coincidence that both rights and happiness will be

maximized in the same system, unless, as Boaz asserts, “individual rights are rooted in

the nature of man.”25 This is precisely the assumption that I am attacking, so Boaz’s

22 David Boaz, “No Contradiction Between Rights and Consequences,” Liberty, May 1999, available from http://www.libertysoft.com/liberty/features/73symposium.html, accessed December 3, 2005.

23 Jeffrey Friedman, “The Libertarian Straddle: Rejoiner to Palmer and Sciabarra,” Critical Review 12, no. 3 (Summer 1998, accessed November 27, 2005) available from http://www.tomgpalmer.com/papers/friedman-rejoinder-cr-v12n3.pdf. See also Friedman’s “What’s Wrong With Libertarianism.”

24 “Libertarian philosophy is self-sustaining if one accepts its premises, but one would only accept them if one had already been pushed in a libertarian direction by consequentialist considerations. Yet consequences are irrelevant once the philosophical premises are accepted. Libertarian philosophy repudiates social science, but it needs social science if it is to be persuasive. On the other hand, libertarian social science needs libertarian philosophy to achieve closure. Empirical research does not, as of yet, seem to have legitimately gotten anyone 100 percent of the way to libertarianism; there remain, at the very least, some public goods and, in principle, the need for economic redistribution. Libertarian philosophy fills the gap between what free-market economists can prove about the undesirable consequences of government intervention and the absolute prohibition of all intervention. Consequentialist and nonconsequentialist arguments for libertarianism may be antithetical in principle, but they are symbiotic in practice. The resulting organism, unfortunately, can neither swim nor fly. The weaknesses of each of its two parts are aggravated by those of the other.” Jeffrey Friedman, “What’s Wrong,” 444.

25 David Boaz, Libertarianism: A Primer (New York: The Free Press 1997) 84.

12 DAVID J. HARRIS

theory is jeopardized by my analysis. If it succeeds, libertarian assumptions about

“man’s” nature will be inoperative and Boaz will need to defend his positions on other

grounds; at best, nonaggression will be a first approximation of morality. The second

answer to Boaz is that if, as he concedes, “Americans do still believe firmly in the broad

outline of rights theory,”26 and if both he and other Americans all agree that these rights

can be overridden by other values, then rights simply become one value among many,

which can be abandoned when they produce undesirable consequences. Boaz is

disingenuous in avoiding difficult decisions by restricting his principles to “normal

circumstances,” where “it is wrong to hit people or take their stuff, and everyone knows

this,” and then concluding that “non-aggression is indeed a moral imperative” in other

areas, where “everyone” does not agree.

The differences among libertarians make my task more difficult than it might

otherwise be. A libertarian could read my essay and object, “okay, you’re right that there

shouldn’t be a right to drive drunk or to abandon one’s children, but my libertarianism

escapes those problems, and the toughest questions, like what to do about conjoined

twins, are too rare to worry about.” My point is not just that some libertarians have bad

views; I intend to show that those views are a necessary result of depending exclusively

on libertarian ideas; shrinking from the hard cases makes the theory ambiguous and

shows simple principles to be inadequate. At the very least, libertarians must detail what

their backup philosophy is in the cases where rights do not apply, and provide a

framework for deciding which principles to use. They would also need to show that

whatever system of ethics they used in these hard cases could not override individual

26 Boaz, “No Contradiction.”

RIGHTS AND REASON 13

rights in “normal circumstances.” As far as I know, none have. My goal is not to show

that self-ownership, individual rights, and so on are bad, but to show that they are

insufficient. Good liberal ideas like rationalism and individual rights must not

overwhelm other values like beneficence and empiricism or reduce all social interaction

to mere nonaggression. Unlike some of their critics, I do not see libertarians as evil, just

overzealous in defending a specific kind of liberty: libertarians are not “anarchists who

want police protection from their slaves,”27 but merely liberals that carry on an important

project even as “common sense asymptotically approaches zero”28 because ideology

constrains their options too much.

Delineating rights

Either man’s rights are inalienable, or they are not. You cannot say such a thing as “semi-inalienable” and consider yourself either honest or sane. When you begin making conditions, reservations and exceptions, you admit that there is something or someone above man’s rights, who may violate them at his discretion—Textbook of Americanism29

… arguments about fundamental moral principles… provide no answer, and no way of getting an answer, to a whole range of questions about where to draw lines. It seems obvious that we want property rules that prohibit trespass by thousand megawatt laser beams and machine-gun bullets but not by flashlights and individual carbon dioxide molecules. But how, in principle, do you decide where along that continuum the rights of the property owner stop?—David Friedman30

Property rights, including self-ownership, are central to all forms of libertarian morality.

As Rothbard showed that merely being alive among others entails absolute property

rights, and Rand argued that those rights will never conflict or overlap, I intend to show,

27 Kim Stanley Robinson, Green Mars, (Spectra, May 1, 1995) 31828 Richard Carnes, as cited by Mike Huben, “Critiques of Libertarianism: Quotations,”

available from http://world.std.com/~mhuben/quotes.html (accessed November 27, 2005).

29 “Textbook of Americanism,” pamphlet, 12, cited in The Ayn Rand Lexicon: Objectivism From A to Z, ed. Harry Binswanger, (New York: Meridian 1986), 211.

30 David Friedman.

14 DAVID J. HARRIS

using several examples involving children, that life entails conflicts that cannot be

resolved in a property rights framework and that attempting to do so would justify child

neglect or even child slavery. I will also challenge the libertarian conception of the

individual, which is the cornerstone of all libertarian theories of rights. These are by no

means the only challenges the body poses to libertarian conceptions of rights; as David

Friedman noted above, metabolizing and breathing requires polluting others’ property

with carbon dioxide, which violates their rights in the same way that trespassing does.

This challenges both the libertarian claim that property rights are “natural” or a necessary

consequence of living as a human being, and also the claim that under nonaggression is a

“moral imperative” in “normal circumstances” (unless there is a moral imperative not to

breathe in normal circumstances).

Pregnancy and childcare

The debate among libertarian factions about abortion mirrors the debate in the larger

society, essentially a conflict between the liberty of the mother and the life of the child.

Most libertarians are “pro-choice,” with a significant minority of “pro choice” libertarians

opposing both abortion and government interference with the women that choose it.31

The fact that there is any debate at all among about whether abortion is “wrong” (let

31 In 1998, only 43% of libertarians agreed that “abortion is wrong,” and only 12% agreed that “abortion should be made illegal.” Both the U.S. Libertarian Party and orthodox Objectivism oppose state interference with abortion as well. Statistics from “The Liberty Poll,” Liberty, February 1999, available from http://www.libertysoft.com/liberty/features/70libpoll.html. Libertarian Party position from “National Platform of the Libertarian Party” (Atlanta GA, May 2004, accessed November 27, 2005) available from http://www.lp.org/issues/platform_all.shtml#womerigh. Objectivist position from Leonard Peikoff, “Abortion Rights are Pro-Life,” Capitalism Magazine, (January 23, 2003, accessed November 27, 2005), available from http://capmag.com/article.asp?ID=2404.

RIGHTS AND REASON 15

alone one split nearly evenly) is itself an indication that delineating rights is much more

difficult than libertarians like to admit. If two libertarians, reasoning from the same

situation and the same principles, can arrive at multiple conclusions, this greatly weakens

their assertion that every “claim of conflicting rights must represent a misinterpretation of

fundamental rights.”32 The ability to satisfy all parties by delineating rights objectively is

crucial to the libertarian position on issues as diverse as environmental policy33 and

competing for a lover,34 and seems to be threatened by the vigorous disagreement

evinced among libertarians. Furthermore, the common libertarian position (held, for

example, by two-time Libertarian Party presidential candidate Harry Browne and the

Libertarian Party platform35) that even if abortion is murder, the state should not be

involved, would not satisfy any libertarian that derived his or her political views from

individual rights rather than from projected outcomes. If the state is obligated to stop

murder, then it is obligated to stop murder when the victim lives inside another human

being.

Both orthodox Objectivism and Rothbardian ethics fare even worse. Consider the

following Objectivist argument, which Rothbard agrees with:36

A fetus does not have a right to be in the womb of any woman, but is there by her permission. This permission may be revoked by the woman at any

32 Boaz, Primer 89.33 Ernest Partridge, “With Liberty for Some,” in Environmental Philosophy, eds.

Michael Zimmerman, Baird Callicott, Karen Warren, Irene Klaver, and John Clark (Upper Saddle River, NJ: Prentice Hall, 2004, accessed November 27, 2005); available from http://gadfly.igc.org/papers/liberty.htm.

34 Rand, “The ‘Conflicts’ of Men’s Interests,” The Virtue of Selfishness (New York: Signet reissue edition, 1964) 57-65.

35 Harry Browne, “The Libertarian Stand on Abortion,” December 21, 1998 (accessed November 27, 2005); available from http://www.harrybrowne.org/articles/Abortion.htm. See also the “National Platform of the Libertarian Party,” previously cited.

36 Murray Rothbard, The Ethics of Liberty, (New York: New York University Press, 1982), 1998 edition, xi.

16 DAVID J. HARRIS

time, because her womb is part of her body. Permissions are not rights. There is no such thing as the right to live inside the body of another, i.e. there is no right to enslave.37

John Walker of Libertarians For Life points out that even if this is true, abortion may be

too harsh a “punishment” for the fetus: “most abortions are not simple removals where

the child dies for lack of sustenance. They are usually very unambiguous acts of

destruction.”38 In other words, abortion is lethal force, not just revocation of the

mother’s permission to live inside her body. On the other hand, libertarians are not

opposed to force per se, only to the initiation of force, and if the fetus is truly enslaving

its mother, abortion may be an example of permissible retaliatory force. The question

that arises is, how much force is permissible in expelling an intruder? Can I shoot people

that breathe on me? There is no easy answer to this in a libertarian framework, and I will

leave the question unanswered. But the notion of fetal enslavement leads to some

interesting consequences libertarians would prefer not to defend. Because Objectivists

and Rothbard (like most libertarians) believe that the state (or nonstate “protective

association”) should use its resources to prevent all forms of coercion against its citizens,

including the loss of liberty they define as “slavery,” such a view obliges the state to

terminate all unwanted pregnancies at taxpayers’ expense! I doubt any libertarian would

endorse such a position (the Libertarian Party opposes it explicitly39), but if an unwanted

embryo really is trespassing in its mother’s womb and enslaving her, and the state should

protect people from such losses of liberty, then anyone that believes the maternal

37 “Frequently Asked Questions,” Capitalism Magazine’s Abortion is Pro-Life, available from http://www.abortionisprolife.com/faq.htm, accessed November 27, 2005.

38 John Walker, “Children’s Rights Versus Murray Rothbard’s The Ethics of Liberty,” 1991, available from http://www.l4l.org/library/chilroth.html, accessed December 3, 2005.

39 “National Platform of the Libertarian Party,” previously cited.

RIGHTS AND REASON 17

enslavement argument would have a tough time justifying any opposition to state-

sponsored abortions.40

One would also have difficulty identifying any obligation a mother has to her

child after birth; is an obligation to feed a newborn baby “enslavement” as well? After

all, as Rothbard notes, “birth is indeed the proper line of demarcation, [but] the usual

formulation makes birth an arbitrary dividing line.”41 He continues, “a crucial point in

libertarian theory is the inalienability of the will, and therefore the impermissibility of

enforcing voluntary slave contracts.” In other words, the mother cannot sell herself into

slavery to her offspring, so she can terminate the relationship at any time, including after

birth: Though a parent “may not murder or mutilate his child… [he] should have the

legal right not to feed the child, i.e., to allow it to die.” (In parentheses, he notes that

“whether or not a parent has a moral rather than a legally enforceable obligation to keep

his child alive is a completely separate question,” one which he does not address.)

Rothbard asserts, “a free baby market will bring such ‘neglect’ down to a minimum,”

ignoring the connection the existing baby market has with child exploitation.42

40 I am not taking a stance on whether abortions should be subsidized by government, only pointing out that libertarian principles can disappoint even libertarians when taken to their conclusion.

41 Rothbard, The Ethics of Liberty, 97-10142 There is already a $10 billion a year industry in buying and selling children. It is

devoted largely to child prostitution. Absent parental obligations, Rothbard’s “free baby market” will no doubt allow thousands of young girls the opportunity to rent out their vaginas in exchange for food from the entrepreneurs that buy them from impoverished parents for paltry sums. Rothbard allows for no social safety net, so the children’s right to run away will not be worth much if their only alternative is starvation. Pamela Shifman, UNICEF adviser on violence and sexual exploitation, notes that children can be “lured into the hands of traffickers through false advertising [or] by promises of a better life; but very often children are lured into the hands of traffickers because they see no alternatives for themselves and their families, and they are desperate, and so they are willing to believe anything and do anything in order to survive.” Forcing children into these situations hardly seems just, yet as we shall see, libertarian arguments against Rothbard are unconvincing, showing those of us that oppose sexual slavery for children that libertarian ideology is inadequate. Quotation

18 DAVID J. HARRIS

Walker argues that that the parents brought their child into the world as a helpless

being without the child’s consent, making them responsible for the child in the same way

that disabling an innocent bystander makes one responsible for his or her future

welfare.43 That position seems convoluted to me, as it seems to imply that fertilizing an

egg and nurturing it until it becomes a small person is a form of aggression committed by

both parents against the unborn child. Rothbard provides what I think is a better example

than the disabled bystander:

consider the case of a person who voluntarily rescues a child from a flaming wreck that kills the child's parents. In a very real sense, the rescuer has brought life to the child; does the rescuer, then, have a binding legal obligation to keep the child alive from then on? Wouldn't this be a "monstrous involuntary servitude that is being foisted upon a rescuer?" And if for the rescuer, why not also for the natural parent?44

Walker’s appeal to the power of the parents and the needs of the child falls on deaf ears;

as he notes, libertarians do not normally speak in these terms, as they explicitly reject

positive obligations and duties to others.45 Rothbard has the upper hand here; in a

libertarian framework, a child has no more claim on the mother’s life, liberty, or property

than on anyone else’s and neglecting to feed one’s child is no worse than neglecting to

feed one’s neighbor. Unless libertarians acknowledge positive rights and obligations

and statistic from Peter Heinlein, “Child Trafficking: A Thriving, $10 Billion per Year Industry,” Voice of America News, available from http://www.voanews.com/english/archive/2005-05/2005-05-25-voa60.cfm, accessed December 4, 2005.

43 John Walker, “Why Parental Obligation?” (New York City, January/February 1984, updated in 1991 and accessed November 27, 2005) http://www.l4l.org/library/whyparob.html.

44 Rothbard, The Ethics of Liberty, 10345 Llewellyn H. Rockwell, Jr., “The Right To Exclude,” Ludwig von Mises Institute,

August 13, 1999 (accessed November 27, 2005) http://www.mises.org/story/282.

RIGHTS AND REASON 19

(which would justify a whole host of “evils” from mandatory charity to the draft)46 then

condemning a woman for aborting or abandoning her child is to condemn her to child-

rearing slavery. Clearly—as common sense tells us—some value other than

nonaggression must govern the interaction of parent and child. If other values are

allowed to violate the mother’s “right” to not feed her baby, then perhaps they apply in

other cases, and negative rights may not be as integral a part of our nature as Boaz and

Rand would have us believe.

Conjoined twins

An important element of the confusion arising in the case of children stems from the

intimate connections between mother and offspring during pregnancy and the dependence

of the baby on the mother both before and after birth; conjoined twins present even more

difficult issues, as the connection is often more profound and long-lasting, and involves

an even greater dependence on the other party for life. Recall the importance of the

individual in libertarian reasoning. Nozick’s justification for rights, quoted above,

explicitly depends on the separateness of individuals, which is (or appears to be) called

into question by conjoinment. Does one twin have the right to drink alcohol if the other

one wants to stay sober? If one twin commits a crime, how do you imprison one without

imprisoning the other? There seems to be no easy answer to these questions, as it is

probably impossible to partition the physical “self” of conjoined twins for individual

ownership. Furthermore, conjoined twins provide what may be an even tougher question

than abortion in situations where continued conjoinment threatens the life of both, but

surgical separation guarantees that one will be cut off from vital organs and die. This

may seem like an extreme example, but as historian Alice Dreger points out,

46 Rand, “The Wreckage of the Consensus,” Capitalism: The Unknown Ideal (New York: Signet paperback) 227.

20 DAVID J. HARRIS

sacrifice surgeries carry implications for other practices, including passive and active euthanasia, vital organ donation, and surrogate decision making. Should doctors be allowed to hasten the death of one person when they are trying to save another? Can twins who share vital organs be regarded as something less than two persons, and are they exempt from the usual prohibitions on killing? Who ought to decide how and when a child will die and how a child’s organs will be distributed?47

Libertarians should be able to answer these questions to our satisfaction before we allow

inviolable individual rights to supplant other elements of our ethics or grant that they

flow directly from our nature. Alternatively, if their ethics do not apply here, libertarians

must articulate a principle that allows us to pick an alternate framework. They must be

careful, however; if this alternate framework is useful, it could compete with

nonaggression in other arenas where they believe absolute property rights are desirable.

Recall that what matters here to the libertarian is not the number of surviving

twins, but the actions taken by the twins, the parents, the doctors, and the state. What

matters is who aggresses against whom and the legitimacy of that aggression. I can think

of three mutually incompatible libertarian approaches to “sacrifice” surgeries. They can

each be derived from the same principles, making it difficult to pick one without using

nonlibertarian values as a tiebreaker. First, the state might be obligated to prosecute

those that performed the surgery; second, the state might be obligated hire a doctor to

perform the surgery; third, the state might leave the question entirely to the parents. I

address each of these possibilities below.

The first view is that, since neither twin has initiated force against the doctor, he

or she may not harm either twin, regardless of the parents’ wishes. The state would

prosecute any doctor performing the surgery for murder. This view is simple and

47 Alice Dourmat Dreger, One of Us: Conjoined Twins and the Future of Normal, (Cambridge, MA: Harvard University Press 2004) 85-86

RIGHTS AND REASON 21

internally consistent, but conflicts with the position most libertarians have on abortion:

could they favor lethally separating babies from their mothers to prevent the

inconvenience of child-rearing but oppose lethally separating babies from one another to

save a life? This view also suffers from neglecting the parents’ wishes and consigning

both twins to early deaths when one might be saved.

A second possibility is that one twin is aggressing against the other by “stealing”

blood and so on. In such a situation, the state (perhaps acting through a doctor) would be

morally obligated to act on behalf of the victim by separating the twins, regardless of the

parents’ wishes and the well being of the other twin. This scenario may seem far-fetched,

but in such a case, the British courts held that one twin had a right to “quasi self-defense”

against the other, and that doctors were justified in killing the aggressing twin to save her

victim despite parental objections to the procedure.48 This line of argument is unlikely

to appeal to most libertarians, even though forceful intervention against aggressors is one

of the few government functions they support, because it involves a lethal attack on a

baby that never chose to be a “parasite” on her sister. It also neglects the fact that both

twins are using one another’s resources without consent. Should they both be punished?

Furthermore, as Dreger points out, separating such intimately connected people does

severe violence to both twins, and perhaps neither would want the doctor to act on their

behalf.49

A final possibility is that since sacrifice surgeries typically occur when the

children are very young, the parents may have “ownership” of both twins and may decide

either way. The parents must then decide whether to intervene:

48 Dreger, 95-10949 Dreger, 94-95

22 DAVID J. HARRIS

But this line of thinking has several obvious flaws. First, there is the question of whether anyone should be able to make such a grave choice on behalf of someone else. there might be some circumstances in which consent ought never to have been presumed. Suppose Angela Lakeberg had survived and eventually learned that her identical twin sister, Amy, had been killed because people believed that Amy and Angela wanted this. What emotional trauma would Angela have had to face? Would she have been obligated to believe she wanted her sister to die? Should we assume that Angela would have traded her sister’s life for her own?50

Such expansive power over one’s offspring could easily slide into justifications for child

molestation and even child slavery; if one owns one’s children and can have one of them

killed or sold without outside interference, this does not seem unreasonable. As noted

before, Rothbard would prohibit child abuse, but given asymmetries of power, the

children’s dependence on their parents, and the paucity of alternatives available to

children in a libertarian society with no social safety net, it is easy to imagine children

“voluntarily” submitting to abuse “in exchange for” services like food from their parents.

This happens now and would no doubt be more common if parents legally owned their

children.

Incidentally, in the Lakeberg case, only one of the two twins had a fully

functioning brain, which may have made this case easier, especially from the Objectivist

viewpoint that “man's rights do not depend on his ability to feel pain; they depend on his

ability to think.”51 But using this as evidence raises difficult questions about the right of

mental patients, people with brain injuries, and other people we generally see as

deserving of freedom from pain but who cannot think rationally the way normal adults

50 Dreger, 9551 Edwin A. Locke, “Animal ‘Rights’ Versus Human Rights,” Providence Journal (June

8, 2005, accessed November 27, 2005) available from http://www.aynrand.org/site/News2?page=NewsArticle&id=11197&news_iv_ctrl=1084

RIGHTS AND REASON 23

do. As we shall see, some libertarians are loath to deny any rights to mental patients

(including the rights to bear arms, to vote, and so on), and so they would probably be

very uncomfortable with justifying killing an innocent person on the grounds that they

lacked brain function.

It is important to note that this is not just a difficult issue for libertarianism;

sacrifice surgery “looks uncomfortably like a heart-and-liver ‘donation’ from” an

unwilling subject, yet is permissible according to existing guidelines.52 My point,

however, is that simple libertarian principles do nothing to clarify the situation unless

supplemented; they can justify several alternatives, none of them appealing, and leave no

way but whim to distinguish among them. Knowing “man’s nature” and respecting “his”

rights sheds little light on complicated situations like these, where, as Rand and Boaz

assure us can never happen, rights come into conflict. But if we accept positive

obligations to others and recognize that legitimate rights can collide, a solely libertarian

ethics collapses; we would need alternatives to mere nonaggression. If this case is

outside of the “normal circumstances” in which nonaggression applies, one must wonder

why libertarians think their philosophy applies to organ donations,53 euthanasia, and

children in general, and also wonder why libertarianism is necessary in the first place.

Having addressed some ways in which libertarian conceptions of rights break

down when applied to the human body, I will now show some ways that they fail to

address some realities of the human mind.

52 Dreger, 9353 The Objectivist-influenced Capitalism Magazine actually supports free trade in

human organs. David Holcberg, “Human Organs for Sale?” Capitalism Magazine, November 24, 2005, available from http://capmag.com/article.asp?ID=4484, accessed December 4, 2005.

24 DAVID J. HARRIS

Defining reason

[The absolutist position that] either we are perfectly rational or we are not rational at all… fosters the paranoid fear that science might be on the verge of showing us that our rationality is an illusion… that fear, in turn, lends spurious attractiveness to any doctrine that promises to keep science at bay, our mind sacrosanct and mysterious… [but] our freedoms [are] enhanced, not threatened by demythologizing the self—Daniel Dennett54

Abnormal psychology

Many libertarians have unconventional views about addiction. Barbara Branden, a

former member of Ayn Rand’s inner circle, believes that people are only “addicted” to

nicotine because they have been “brainwashed” into believing that smoking is

addictive.55 An article by the Ayn Rand Institute puts “addiction” in scare quotes, noting

that rational people can simply choose not to smoke.56 The libertarian psychiatrist

Thomas Szasz flatly states, “drugs cannot cause addiction.”57 This is not a coincidence.

Szasz maintains “that the only means we possess for ascertaining that a man wants to

stop smoking more than he wants to enjoy smoking is by observing whether he stops or

continues to smoke”58 because any other test would justify paternalism that libertarians

reject. If people don’t always do what they want to do (for instance, if they want to stop

54 Daniel Dennett, Freedom Evolves, (New York: Penguin Putnam Viking, 2003), 271.55 Barbara Branden, “1998 Interview with Full Context,” available from

http://www.barbarabranden.com/interview.html (accessed November 27, 2005)56 Thomas A. Bowden, “The Tobacco Industry Surrender: Only Moral Certitude Can

Save It,” Ayn Rand Institute, November 10, 1998, http://www.aynrand.org/site/News2?JServSessionIdr001=6b6ahlxm34.app5a&page=NewsArticle&id=5304&news_iv_ctrl=1021, accessed November 27, 2005.

57 Thomas S. Szasz, "Do Drugs Cause Addiction?" DebatesDebates Show # 113, August 26, 1996; transcript available from http://www.szasz.com/addiction.pdf (accessed November 27, 2005).

58 Thomas S. Szasz, “The Therapeutic State: The Tyranny of Pharmacracy,” (The Independent Review, 5 no. 4, Spring 2001) Independent Review, 496, available from http://www.independent.org/pdf/tir/tir_05_4_szasz.pdf (accessed November 27, 2005).

RIGHTS AND REASON 25

buying cigarettes but can’t), then perhaps an arbiter could help consumers by restricting

their choices—an impossibility if people are rational and rights are absolute. Szasz

continues, “The idea that the state has a duty to protect people from themselves is an

integral part of the authoritarian, religious-paternalistic outlook on life.” As Szasz

recognizes, every purported failure in human rationality may justify a government agency

to assist people in overcoming it, which is why he and other libertarians are so adamant

in presuming rationality, even in cases like addiction, where people are not able to quit

even when they seem to want to. Addiction also presents an interesting slippery slope

when combined with libertarians’ unwillingness to consider hard cases as legitimate tests

of their philosophy. Consider the following six scenarios:

1. I will kill you if you do not steal a loaf of bread from a bakery.

2. I will imprison and torture you until you steal the bread.

3. I will imprison you and addict you to heroin. Once you are addicted, I will release you and condition further doses upon stealing the bread. If you do not get more heroin, you will go through intense withdrawal and possibly die.

4. You were a heroin addict prior to our meeting. I am your only possible source of more drugs. You must steal the bread to get more, or suffer withdrawal.

5. If you do not steal a loaf of bread to eat, you will starve to death.

6. If you do not steal a luxury car, you will have an unattractive car.

My understanding is that in scenarios 1 and 2, Rothbard would have you convicted for

theft, though the owner of the bread could choose to pardon you due to the unusual

circumstances. He apparently did not take a stance on whether one should “die

heroically” rather than aggress against another, only on what the legal framework should

be in such situations.59 Rand would also not take a stance on the first two situations,

59 Rothbard, The Ethics of Liberty, 152-153

26 DAVID J. HARRIS

noting that physical force negates reasoning and thus ethics.60 Scenario 3 is essentially

the same as scenarios 1 and 2; you are physically and emotionally suffering in both cases,

possibly risking death, and cannot necessarily be condemned morally for coercing others

because you have been physically forced to do so by me. Once released, however, your

situation is identical regardless of who introduced you to heroin. The heroin withdrawal

feels the same regardless of whether one was initially addicted voluntarily or

involuntarily; thus either libertarian ethics depend on this trivial distinction, or it is unable

to condemn the drug user that steals to support his or her habit. If it cannot condemn

theft to buy drugs, it cannot condemn theft to buy food, either, since both the “food

addict” (i.e. a human) and the heroin addict need their respective substances to survive.

At this point, theft is a legitimate means of fulfilling certain needs, and Rand and

Rothbard lose all their moral high ground when reduced to quibbling over why it is

legitimate to steal food but not medicine, medicine but not books, books but not jewelry,

and so on. Rights are no longer absolutes.

David Boaz has a somewhat more sophisticated analysis, though he explicitly

states, “In some emergencies, considerations of rights go out the window,” and excludes

famine from the “normal situations” in which libertarian ethics apply because “social and

political life may be impossible.” Boaz tries to stop slipping from situation 3 to 4 and 5

by noting that in such emergencies, the key issue is that “a person finds himself in a

desperate situation through no fault of his own. It cannot be enough that… he has too

little to survive.”61 As I noted before, I do not find this distinction compelling. First,

60 Rand, “The Wreckage of the Consensus,” Capitalism: The Unknown Ideal (New York: Signet paperback) 235.

61 Boaz, Primer 84-87, Emphasis original.

RIGHTS AND REASON 27

assigning blame is often arbitrary. If farmers’ crops fail because of drought, is that their

fault for not buying insurance or growing a different, drought resistant crop (in which

case they must suffer for their lack of foresight) or is it outside their control (in which

case they can steal as much as they need)? Second, people will inevitably favor

themselves when evaluating fault, making competing claims inevitable. Third, such a

system might actually favor a lack of foresight so that people find themselves repeatedly

in situations where they are allowed to steal because, say, they had no way of knowing

that investing all their money in the dog tricycle industry would leave them destitute

when that market crashed.

Szasz’s solution is to deny that drugs can compel human action in the same way

that force can, stopping the slide even earlier, between steps 2 and 3, though it seems silly

to assert that a person’s moral situation depends on whether they are afraid of potentially

fatal “drug craving, restlessness, muscle and bone pain, insomnia, diarrhea and vomiting,

cold flashes with goose bumps” and convulsions62 or afraid of being shot. In order to

sustain this distinction, and thus libertarian views on property rights, Szasz needs to

define biological or psychological challenges to free will out of existence, just as

Rothbard and Rand did with threats to their own philosophies. Rothbard was less than

pleased with Szasz’s views because they “eliminate[ ] the whole problem of whether an

act is consciously willed or decided upon, or not,” but Szasz countered that dismissing

some behaviors as involuntary would make moral responsibility impossible.63 Since this

would present a very difficult challenge to a purely libertarian morality, which depends

62 National Institute on Drug Abuse, “NIDA InfoFacts: Heroin,” available from http://www.nida.nih.gov/Infofacts/heroin.html, revised March 2005, accessed December 3, 2005.

63 Thomas S. Szasz, “Rothbard on Szasz.” Liberty. 16: 33-34 & 40 (March 2002, accessed November 27, 2005), available from http://www.szasz.com/rothbardonszasz.html.

28 DAVID J. HARRIS

on all actions being rational and freely chosen, Szasz is forced to deny that all forms of

irrationality, including mental illness exist:

mental diseases are metaphoric diseases, in the sense of a "sick" joke. They are problems, but they are not medical problems in that they do not involve somatic, organic etiologies and are not amenable to a somatic, organic resolution. They are essentially conflicts within oneself and conflicts between oneself and other people.64

Szasz sees “medical discourse about bad brains” as a threat to “moral discourse about bad

behaviors,”65 and he carries his views on human rationality and freedom to their logical

conclusions; like many libertarians, he supports drug legalization.66 More

controversially, he considers the right to kill oneself without interference to be a

cornerstone of self-ownership and opposes all suicide prevention programs,67 believes

that the mentally ill should have the same legal standing in civil and criminal cases as

everyone else,68 and opposes state involvement in health in all areas but containing

communicable diseases.69 He even opposes decisions by family members of the insane

or incompetent that conflict with the patient’s liberties. Other libertarians disagree, but

they have few principles to stand on, as Szasz applies their own philosophy more

consistently than they do, and libertarians lack alternative values to weigh against the

losses of liberty Szasz documents. Because of this, he is influential, though perhaps not

64 Thomas S. Szasz, “Curing the Therapeutic State: Thomas Szasz on the medicalization of American life,” Reason, July 2000, available from http://reason.com/0007/fe.js.curing.shtml, accessed December 3, 2005.

65 Thomas S. Szasz, The Meaning of Mind: Language, Morality, and Neuroscience, (Westport, CT: Praeger Trade, 1996) 94.

66 Szasz goes further than most libertarians in opposing controls on all drugs, including requirements for prescriptions. Szasz, “The Therapeutic State, 496.

67 Thomas S. Szasz, “Self-Ownership or Suicide Prevention?” The Freeman, 54: 23-24, available from http://www.szasz.com/freeman1.html.

68 Thomas S. Szasz, “Thomas Szasz's Summary Statement and Manifesto,” March 1998, available from http://www.szasz.com/manifesto.html, accessed November 27, 2005.

69 Szasz, “The Therapeutic State,” 494.

RIGHTS AND REASON 29

popular; he writes for Reason, and had the admiration of Sir Karl Popper Popper70 and

Hayek.71

Interestingly, there are areas where other libertarians go even further than Szasz

does in preserving individual liberty. Szasz believes that people “have a ‘right’ to be sick

with hay fever because it does not endanger others, but we do not have a right to be sick

with infectious tuberculosis because it does endanger others.”72 He recognizes the right

to be free from preventable infection or impaired drivers, and supports coercive measures

to protect people in those cases. Lew Rockwell, a follower of Rothbard, disagrees about

impaired drivers, arguing, “a person shouldn’t be hounded solely because some

demographic groups have higher crime rates than others. Government should be

preventing and punishing crimes themselves, not probabilities and propensities.”

According to Rockwell, criminalizing drunk driving “is worse than racial profiling,

because the latter only implies that the police are more watchful, not that they criminalize

race itself… what’s being criminalized in the case of drunk driving is not the probability

that a person driving will get into an accident but the fact of the blood-alcohol content

itself.”73 Despite overwhelming evidence that the 97% of Americans that fear drunk

drivers are right to be worried—about 30% of Americans will be involved in an alcohol-

related crash at some time in their lives74—Rockwell actually asserts that drinking can

70 Sir Karl R. Popper, “From Sir Karl Popper,” 1961, 1981, 1984, (accessed November 27, 2005), available from http://www.szasz.com/popper.html.

71 Thomas S. Szasz, “From F. A. Hayek,” 1964-1983 (accessed November 27, 2005), available from http://www.szasz.com/hayek.html.

72 Szasz, “Therapeutic State,” 494, 73 Llewellyn H. Rockwell, Jr. “Legalize Drunk Driving,” November 3, 2000, available

from http://www.lewrockwell.com/rockwell/drunkdriving.html (accessed November 29, 2005).

74 Both figures from Mothers Against Drunk Driving, “MADD Online: General Statistics,” http://www.madd.org/stats/0,1056,1789,00.html, accessed December 4, 2005.

30 DAVID J. HARRIS

improve driving ability through increased caution because his ideology is incompatible

with the realities imposed on us by the chemicals we ingest.

Szasz notes the logical impossibility of proving that something (such as witches

or mental illness) does not exist, thus shifting the burden of proof onto his opponents.

But the charge is easily reversed: Szasz makes the grand claim that human action is

always the result of reasoning, not physiological causes, i.e. that everything the mind

does can be explained in terms of its proper functioning. Few would make the same

argument about devices considerably simpler than brains. If Microsoft Word causes my

computer to crash, that cannot be explained in terms of word processing. If a car crashes,

the resulting injuries cannot be explained in terms of transportation. If a brain is dropped

out a window, its descent cannot be explained in terms of reasoning. Szasz is right that

we should be incredulous about the existence of witches, but that is because witches

violate the natural laws of the universe and operate by unique principles. We should be

equally incredulous about brains that, unlike computers, livers, or The Titanic, are

infallible. Even if Szasz is right that mental illnesses are only “illnesses” in the sense that

a whale is a metaphorical fish, that does not necessarily solve the problem; whales live

underwater, are externally shaped like fish, and locomote like fish, and so for some

purposes, it can be useful to define them as such, even if it is not objectively correct.

Likewise, defining a term like mental illness out of existence does not make it go away,

and it does not mean that there is no overlap between interpersonal problems and

neurological breakdown. Furthermore, Szasz cannot defer to the self-ownership of the

incompetent, since ownership depends on the competence to use one’s property. And if

the competent obsessive-compulsive schizophrenic cocaine addict is a fiction, then it is

RIGHTS AND REASON 31

up to Szasz to prove that it is a useful fiction—and he must do it in terms that do not

depend on the presumption of rationality he is trying to prove.

Though Szasz’s views are unpopular among the psychiatrists he critiques, even

those that believe that he “is largely wrong” and that libertarian values are “less relevant

to the seriously mentally ill than to almost anyone else” nevertheless concede that he

“always wins the debate.”75 The reason is that his position “touches on fundamental

values of our society” like individual rights, liberty, reason, and self-reliance. When

Szasz reduces coercive psychiatry and drug prohibition to the fundamental question of

“whether the individual is viewed as a private person or as public property,” where “the

former has no obligation to the community to be or stay healthy” and “the latter does,”76

it is difficult to justify most public health measures without staring down the slippery

slope to the sacrifice of all individual rights on the altar of health, especially after a

detailed, well-substantiated, and frightening history of the role of medicine in Nazi

Germany.77 Starting from the premise that people have ownership of their bodies—

which most of us share—it is difficult to dispute that “nonconsensual ‘treatment’ is

assault, even if it cures the patient of his disease.” But unless we take at face value the

Objectivist principle that there can be no legitimate arguments for an illegitimate position

—and I hope that the difficult choices involved in aborting, separating, and even raising

children have put that view to rest—there is no reason to assume that requirements for

consent cannot be overridden by other factors, especially when the patient’s self-

75 Robert Michels, New England Journal of Medicine, March 24, 2005 as cited in http://www.amazon.com/gp/product/0812695682/102-3435863-3288111?v=glance&n=283155&s=books&v=glance (accessed November 27, 2005).

76 Szasz, “Therapeutic State” 497, emphasis original.77 This history was my first introduction to Szasz and also my first detailed introduction

to the history of Nazi medicine. Whatever the merits of Szasz’s argument about mental illness, he is largely right about the role of medicine in Nazi Germany, and offers important warnings for medicine in the U.S.

32 DAVID J. HARRIS

ownership and ability to consent are called into question. Szasz rejects this question,

preferring to presume rationality and competence as criminal courts presume innocence,

but he does so with no empirical evidence: he

makes clear that his views about mental illness, involuntary treatment, and the insanity defense were well established before his exposure to psychiatry, psychoanalysis, or even medicine and that he was unusually successful at avoiding any experience that might have been relevant to them. Szasz's views are entirely ideological; they have nothing to do with empirical data and are therefore immune to arguments on the basis of data.78

Since his views on mental illness are thus nonfalsifiable, and in light of mountains of

evidence79 from people that actually deal with the mentally ill, they are highly suspect.

This description of Szasz’s views fits neatly with Jeffrey Friedman’s analysis of Rothbard

and Rand: in each case, an incomplete empirical picture blossomed into an ideology that

rejects the possibility of empirical refutation. As Friedman notes, and as Boaz implicitly

conceded, libertarian principles are based on the impossibility of the empirical

counterexamples that the theory rejects. In other words, the counterexamples (like

mental illness) do not exist because the theory is true, and the theory is true because there

are no counterexamples. This circularity runs throughout libertarian ideology, and

recognizing it is critical for separating libertarianism’s useful insights from its dogma.

As I will show in the next section, human nature would be a threat to libertarian

assumptions even Szasz were right that mental illness cannot occur.

78 Michels.79 Consider, for example, Lawrie Reznek’s The Philosophical Defense of Psychiatry.

(New York: Routledge, 1991).

RIGHTS AND REASON 33

Normal Psychology

Unfortunately for Szasz, there is evidence that even mentally healthy people are not

rational. To use just one example, evidence from economics—a keystone of

libertarianism—shows that sunshine produces a psychological bias that inflates stock

prices and is “difficult to reconcile” with rational-actor models like those that justify

absolute self-ownership and totally unfettered free trade.80 Harvard psychology professor

Steven Pinker notes that “our brains were shaped for fitness, not for truth,” often drawing

people to illogical conclusions that happen to support their position, to make large

sacrifices for small short-term gain and to consistently miscalculate odds at great

economic cost.81 The empirical question of whether people always act rationally has

been answered. How would Szasz explain the person that

in self-disgust grinds his cigarettes down the disposal swearing that this time he means never again to risk orphaning his children with lung cancer and is on the street three hours later looking for a store that’s still open to buy cigarettes; who eats a high-calorie lunch knowing that he will regret it, does regret it, cannot understand how he lost control, resolves to compensate with a low-calorie dinner, eats a high-calorie dinner knowing he will regret it, and does regret it; who sits glued to the TV knowing that again tomorrow he’ll wake early in a cold sweat unprepared for the morning meeting on which so much of his career depends; who spoils the trip to Disneyland by losing his temper when his children do what he knew they were going to do when he resolved not to lose his temper when they did it?82

Szasz might assert that such a person merely lacks willpower, but if, as

psychologists believe, we are all such people under certain circumstances, then the

80 David A. Hirshleifer and Tyler Shumway, "Good Day Sunshine: Stock Returns and the Weather," Dice Center Working Paper No. 2001-3, March 28, 2001, available from http://ssrn.com/abstract=265674 (accessed November 28, 2005).

81 There are situations in which self-deception can be advantageous, which is why if our minds were shaped for advantage in a hunter-gatherer society rather than for truth, then we may not always function well in a world filled with confusing modern stimuli from televisions, cigarettes, and slot machines. Steven Pinker, How the Mind Works (New York: W. W. Norton 1997) 305, 337, 346, 396.

82 Economist Thomas Schelling, cited in Pinker 395.

34 DAVID J. HARRIS

presumption of rationality ceases to be relevant in those circumstances. As both

economists and psychologists know, “rational economic man” (Homo economicus) is a

fiction. Though he can be a very useful fiction when his assumptions fit reality well,

Homo economicus needs to be retrofitted to accommodate human failings or discarded

entirely when these assumptions break down. Compared to Homo economicus, real

people are more optimistic, bolder, less able to distinguish between themselves and

others, more emotional, more likely to damage themselves to spite others, less able to

learn, and more likely to make mistakes,83 leading to bad predictions, economic waste,

and avoidable harm to themselves and others. Consider what this means for drug

addiction, where this discussion began: people will overestimate their ability to quit,

underestimate the costs to their health, begin using drugs for bad reasons (like spiting

their parents), and not notice that they are addicted or learn how difficult it is to quit until

it’s too late. In economics, it means that people are likely to be fooled by scams, create

mutually damaging interactions instead of the mutually beneficial ones libertarians

depend on, buy more than they can afford, not save enough, invest in bad places, expect

stocks to go up when one buy’s and down when one sells, overestimate the value of

trends, and so on. This doesn’t mean that government economic intervention or

schooling will necessarily improve matters, but it does mean that they can’t simply be

ruled out simply because they are inconsistent with “man’s” “rational nature.” As

economist Richard Thaler noted, “basing descriptive economic models on more realistic

conceptions of economic agents is bound to increase the explanatory power of the

83 Richard H. Thaler, Journal of Economic Perspectives, Winter 2000, 14 No. 1 133–140, available from http://gsbwww.uchicago.edu/fac/richard.thaler/research/homo.pdf, accessed December 3, 2005.

RIGHTS AND REASON 35

models,”84 and this is especially true with regard to the ethical side of economics, which

cannot be easily tested and depends even more heavily on understanding human nature

than market analysis does.

A more nuanced alternative

Libertarianism reminds us that we must justify our positions and that our values can

sometimes conflict. When Harvard philosophy professor Robert Nozick asks whether

there is “really someone who, searching for a group of wise and sensitive persons to

regulate him for his own good, would choose that group of people that constitute the

membership of both houses of Congress,”85 the answer is clearly “no,” and the prospect

of an unwanted arbiter makes even some proponents of democratic republicanism

uncomfortable.

Though its advocates may not know it consciously, libertarianism is in crisis,

having exhausted most of the ideas permitted by its ideology 20 years ago.86

If libertarian economists feel license to be careless because libertarian philosophy is supposed to be dispositive, libertarian philosophers feel the same license because they suppose that economics plays the decisive role. The libertarian philosopher would not be a libertarian if he did not think libertarianism would have overwhelmingly beneficial consequences, but his work as a philosopher can, by its nature, hardly be devoted to empirical matters. So he… takes shrillness and condescension to new levels; begs the important questions; or disdains to understand his antagonists. These pathologies stem, I believe, from the libertarian philosopher’s intuitive grasp of the irrelevance of the very thing his ideology has saddled him with defending: libertarian philosophy.87

Still, once it overcomes the limits of its own ideology, Friedman believes that “post-

libertarianism,” drawing on the work of early “proto-libertarian” economists like Ludwig

von Mises and Hayek, would be very well positioned to offer a critique of modern 84 Thaler, 140.85 Nozick, 14.86 Jeffrey Friedman, What’s Wrong, 449.87 Jeffrey Friedman, What’s Wrong, 457.

36 DAVID J. HARRIS

governance that the modern left is ideologically unable to provide. Because “it is literally

impossible to be knowledgeable about even a fraction of the many complex matters

modern governments are called upon to govern,” libertarians’ experience with self-

organizing systems like markets, their mistrust of benevolent dictators, and their

alienation from democratic politics may provide important improvements over the current

system, in which a “megastate” makes popular but destructive decisions in economics,

culture, and foreign policy based on ignorance, ideology, and appeals to motives like

nationalism rather than to efficacy. One of the biggest barriers to such useful

contributions from libertarians is their belief in libertarianism’s infallibility, and the

“perpetual obligation to defend” the orthodox libertarian position on a given subject

“before one has the necessary information to assess its accuracy.”88 Perhaps by blocking

libertarians’ recourse to their first principles, my critique will indirectly help bring this

change about and force post-libertarians to critically evaluate not just their own ideology,

but possibilities for change that we have all missed.

88 Jeffrey Friedman, What’s Wrong, 445-459.

RIGHTS AND REASON 37

Works Cited:

Boaz, David. “No Contradiction Between Rights and Consequences.” Liberty. May 1999, accessed December 3, 2005; available from http://www.libertysoft.com/liberty/features/73symposium.html.

Boaz, David. Libertarianism: A Primer. New York: The Free Press 1997.“Book Lists.” Center for the Book: Liberary of Congress. April 5, 2005, accessed

11/27/05. Available from http://www.loc.gov/loc/cfbook/booklists.html. Bowden, Thomas A. “The Tobacco Industry Surrender: Only Moral Certitude Can Save

It.” Ayn Rand Institute. November 10, 1998, accessed November 27, 2005; available from http://www.aynrand.org/site/News2?JServSessionIdr001=6b6ahlxm34.app5a&page=NewsArticle&id=5304&news_iv_ctrl=1021.

Branden, Barbara. “1998 Interview with Full Context.” Accessed November 27, 2005; available from http://www.barbarabranden.com/interview.html.

Branden, Nathaniel. “Objectivism and Libertarianism. 1999, accessed November 27, 2005. Available from http://www.nathanielbranden.com/catalog/articles_essays/objectivism_and_libert.html.

Browne, Harry. “The Libertarian Stand on Abortion.” December 21, 1998, accessed November 27, 2005; available from http://www.harrybrowne.org/articles/Abortion.htm.

Carnes, Richard, as cited by Mike Huben, “Critiques of Libertarianism: Quotations;” available from http://world.std.com/~mhuben/quotes.html. Accessed November 27, 2005.

Dennett, Daniel. Freedom Evolves. New York: Penguin Putnam Viking. 2003.Dreger, Alice Dourmat. One of Us: Conjoined Twins and the Future of Normal.

Cambridge, MA: Harvard University Press. 2004“Frequently Asked Questions.” Capitalism Magazine's Abortion is Pro-Life, accessed

November 27, 2005; available from http://www.abortionisprolife.com/faq.htm.Friedman, David D. The Machinery of Freedom: Guide to a Radical Capitalism [selected

chapters online unedited]. Peru, IL: Open Court Publishing, accessed November 27, 2005; available from http://www.daviddfriedman.com/Libertarian/Machinery_of_Freedom/MofF_Chapter_41.html.

Friedman, Jeffrey. “The Libertarian Straddle: Rejoiner to Palmer and Sciabarra.” Critical Review 12, no. 3. Summer 1998, accessed November 27, 2005; available from http://www.tomgpalmer.com/papers/friedman-rejoinder-cr-v12n3.pdf.

Friedman, Jeffrey. “What's Wrong With Libertarianism.” Critical Review 11, no. 3. Summer 1997, accessed November 27, 2005; available from http://www.tomgpalmer.com/papers/friedman-whatswrong-cr-v11n3.pdf.

Goldberg, Jonah. “Libertarians Under My Skin: Grow Up Already.” National Review Online. March 2, 2001, accessed November 27, 2005; available from http://www.nationalreview.com/goldberg/goldberg030201.shtml.

Hayek, F. A. The Road to Serfdom. Chicago: University of Chicago Press. 1972.

38 DAVID J. HARRIS

Heinlein, Peter. “Child Trafficking: A Thriving, $10 Billion per Year Industry.” Voice of America News. May 25, 2005, accessed December 4, 2005; available from http://www.voanews.com/english/archive/2005-05/2005-05-25-voa60.cfm.

Hirshleifer, David A. and Shumway, Tyler. "Good Day Sunshine: Stock Returns and the Weather." Dice Center Working Paper No. 2001-3, March 28, 2001, accessed November 28, 2005; available from http://ssrn.com/abstract=265674.

Holcberg, David. “Human Organs for Sale?” Capitalism Magazine. November 24, 2005, accessed December 4, 2005; available from http://capmag.com/article.asp?ID=4484.

Huxtable, Fulton. Fatal Blindness. “Introduction.” Available from http://web.archive.org/web/20021018224823/www.fatalblindness.com/introduc.htm, accessed December 4, 2005.

“The Liberty Poll.” Liberty. February 1999; available from http://www.libertysoft.com/liberty/features/70libpoll.html.

Locke, Edwin A. “Animal 'Rights' Versus Human Rights.” Providence Journal. June 8, 2005, accessed November 27, 2005; available from http://www.aynrand.org/site/News2?page=NewsArticle&id=11197&news_iv_ctrl=1084

Michels, Robert. New England Journal of Medicine. March 24, 2005 as cited in http://www.amazon.com/gp/product/0812695682/102-3435863-3288111?v=glance&n=283155&s=books&v=glance, accessed November 27, 2005.

Mothers Against Drunk Driving. “MADD Online: General Statistics.” http://www.madd.org/stats/0,1056,1789,00.html, accessed December 4, 2005.

National Institute on Drug Abuse. “NIDA InfoFacts: Heroin.” Revised March 2005, accessed December 3, 2005; available from http://www.nida.nih.gov/Infofacts/heroin.html.

“National Platform of the Libertarian Party.” Atlanta GA, May 2004, accessed November 27, 2005; available from http://www.lp.org/issues/platform_all.shtml#womerigh.

Nozick, Robert. Anarchy, State, and Utopia. New York: Basic Books. 1974Partridge, Ernest. “With Liberty for Some.” Environmental Philosophy. eds. Michael

Zimmerman, Baird Callicott, Karen Warren, Irene Klaver, and John Clark. Upper Saddle River, NJ: Prentice Hall, 2004, accessed November 27, 2005; available from http://gadfly.igc.org/papers/liberty.htm.

Peikoff, Leonard. “Abortion Rights are Pro-Life.” Capitalism Magazine. January 23, 2003, accessed November 27, 2005; available from http://capmag.com/article.asp?ID=2404.

Pinker, Steven. How the Mind Works. New York: W. W. Norton. 1997.Popper, Sir Karl R. “From Sir Karl Popper.” 1961, 1981, 1984, accessed November 27,

2005; available from http://www.szasz.com/popper.html.Rand, Ayn. “Man's Rights.” The Virtue of Selfishness. New York: Signet reissue

edition, 1964.Rand, Ayn. “The 'Conflicts' of Men's Interests.” The Virtue of Selfishness. New York:

Signet reissue edition. 1964.Rand, Ayn. “The Wreckage of the Consensus.” Capitalism: The Unknown Ideal. New

York: Signet paperback. 1967.Rand, Ayn. “The Wreckage of the Consensus.” Capitalism: The Unknown Ideal. New

York: Signet paperback 1967.

RIGHTS AND REASON 39

Rand, Ayn. Introduction to Objectivist Epistemology. New York: Meridian expanded second edition, 1990. Originally published in The Objectivist, July 1966-February 1967.

Rand, Ayn. “The Objectivist Ethics.” The Virtue of Selfishness. New York: Signet reissue edition. 1964.

Reznek, Lawrie. The Philosophical Defense of Psychiatry. New York: Routledge. 1991.Robinson, Kim Stanley. Green Mars. Spectra: May 1, 1995.Rockwell, Llewellyn H. Jr. “Legalize Drunk Driving,” November 3, 2000, available from

http://www.lewrockwell.com/rockwell/drunkdriving.html (accessed November 29, 2005).

Rockwell, Llewellyn H. Jr. “The Right To Exclude.” Ludwig von Mises Institute. August 13, 1999, accessed November 27, 2005; http://www.mises.org/story/282.

Rothbard, Murray N. “The Sociology of the Ayn Rand Cult,” 1972, 2003, accessed November 27, 2005; available from http://www.lewrockwell.com/rothbard/rothbard23.html,

Rothbard, Murray. The Ethics of Liberty. New York: New York University Press. 1982. 1998 edition.

Schelling, Thomas. Cited in Pinker, Steven. How the Mind Works. New York: W. W. Norton. 1997.

Schoolland, Ken. The Adventures of Jonathan Gullible: A Free Market Odyssey. HI: Sam Slom. 1987. Animation (accessed November 27, 2005) available from http://www.jonathangullible.com/mmedia/PhilosophyOfLiberty-english_music.swf; epilogue (accessed November 27, 2005) available from http://www.jonathangullible.com/mmedia/Epilogue.pdf.

Szasz, Thomas S. “Curing the Therapeutic State: Thomas Szasz on the medicalization of American life.” Reason. July 2000, accessed December 3, 2005; available from http://reason.com/0007/fe.js.curing.shtml.

Szasz, Thomas S. "Do Drugs Cause Addiction?" DebatesDebates Show # 113. August 26, 1996; transcript available from http://www.szasz.com/addiction.pdf. Transcript accessed November 27, 2005.

Szasz, Thomas S. “From F. A. Hayek.” 1964-1983, accessed November 27, 2005; available from http://www.szasz.com/hayek.html.

Szasz, Thomas S. “Rothbard on Szasz.” Liberty. 16: 33-34 & 40. March 2002, accessed November 27, 2005; available from http://www.szasz.com/rothbardonszasz.html.

Szasz, Thomas S. “Self-Ownership or Suicide Prevention?” The Freeman. 54: 23-24. available from http://www.szasz.com/freeman1.html.

Szasz, Thomas S. “The Therapeutic State: The Tyranny of Pharmacracy.” The Independent Review, 5 no. 4. Spring 2001, accessed November 27, 2005; available from http://www.independent.org/pdf/tir/tir_05_4_szasz.pdf.

Szasz, Thomas S. “Thomas Szasz's Summary Statement and Manifesto.” March 1998, accessed November 27, 2005; available from http://www.szasz.com/manifesto.html.

Szasz, Thomas S. The Meaning of Mind: Language, Morality, and Neuroscience. Westport, CT: Praeger Trade. 1996.

“Textbook of Americanism.” Cited in The Ayn Rand Lexicon: Objectivism From A to Z, ed. Harry Binswanger. New York: Meridian 1986.

Thaler, Richard H. Journal of Economic Perspectives. Winter 2000. 14 No. 1 133-140, available from http://gsbwww.uchicago.edu/fac/richard.thaler/research/homo.pdf, accessed December 3, 2005.

40 DAVID J. HARRIS

Walker, John. “Children's Rights Versus Murray Rothbard's The Ethics of Liberty.” 1991, accessed December 3, 2005; available from http://www.l4l.org/library/chilroth.html.

Walker, John. “Why Parental Obligation?” New York City: January/February 1984, updated in 1991 and accessed November 27, 2005; available from http://www.l4l.org/library/whyparob.html.

Young, Cathy. “Ayn Rand at 100.” Reason. March 2005, accessed November 27, 2005; available from http://www.reason.com/0503/fe.cy.ayn.shtml.