Where we left off shipwrecked Ann, whom I have called a
“left- libertarian,” has not been able to convince shipwrecked right-libertarian
Bob that it’s only his wrongheaded ideology that makes him want to paddle away
from Isle One, with its easier and more abundant life, towards Isle Two.
The earlier installments of this saga, which have not been accepted as a tv mini-series, doubtless because of location costs, can be found at:
http://lawrencecrocker.blogspot.com/2017/05/choosing-libertarian-island.html
http://lawrencecrocker.blogspot.com/2017/06/libertarian-island-ii-individual-rights.html
The virtue of Isle Two for Bob is that it does not have Isle One’s 5 hours per week mandatory community service. Bob has failed to convince Ann that this work requirement is flatly unjust because coercive. He has argued that requiring an individual to do something is never made just or morally permissible merely because everyone benefits, each person’s total palette of choices is enlarged, and the requirement came out of a majority vote of the whole community after full and fair discussion. The majority, he says, has no right to impose its will upon the minority in this way, and he will not acquiesce in such tyranny. Ann has not convinced Bob that the individual right not to be required to contribute one’s labor is not absolute (a “side constraint”, “lexically prior”), trumping all other considerations of morality and justice. Ann is about to try a new tack. I wish these two wouldn’t ramble so much, but I suppose one gets a little disoriented when washed up on a tropical island.
Ann: Suppose that the
way the Isle One work requirement is enforced is that anyone who doesn’t put in
the five hours without a good justification or excuse is barred from entering
the library for that week. A large One will stand in the doorway, a person too big
and strong for the shirker to push past. Is that forcible coercion that would
violate the individual right to freedom from physical constraint that you think
is determinative here?
Bob: I need to know more about the case. If you, being newly
arrived, were the dissident, then maybe it would not violate your rights. The
earlier Ones could claim that they built and stocked the library and so have a
property right in it. They can physically exclude you from their property. By
contrast, if it was an old time One, who worked as much as anyone else on the
library, and so would have a right to its use, then physically blocking her
entry would violate her right in a manifestly unjust way.
Ann: What if there were a library agreement, entered into by
all its builders, that specified conditions of use including a requirement that
users be in current compliance with the work requirement? Could the work
requirement then be enforced by barring the non-compliant from the library?
Bob: Although I would have argued against including in the
library contract a term so unrelated to the library and so open ended in its
possible inroads on individual choice, I don’t think it would be invalid. Of course, it has to be a real agreement, completely
voluntary, and not a hypothetical “would have, should have” agreement.
Ann: If a dissident One said that keeping him out of the
library was coercive, you would not agree?
Bob: Under the circumstances you imagine, it would not be
“coercive” in the important sense.
Ann: I suppose, as well, that if the community well and the food
gathering and sharing arrangements were governed by agreements similar to the
library agreement, then it would be permissible to ban shirkers from the well
and the public larder?
Bob: Maybe. It would be OK if there are other ways that food
and water can be come by.
Ann: Even if those ways require more effort than using the
well that the Ones dug together pursuant to agreement, an agreement that also
applied to the fishing canoes that they dug out and the coconut picking ladders
that they built?
Bob: Yes, as long as they haven’t monopolized all the best
resources.
Ann: I take it that the One Assembly could also ask all
newcomers, like us, to sign onto the agreement? The proviso you keep inserting
would be met by the ability of the newcomers to elect Isle Two. It would all,
then, have some similarity to an employment contract. In exchange for all the
benefits of Isle One, I agree to do five hours of labor per week, as set by my
employer, the One Assembly. You have no
problem, with employment contracts, do you, even those that demand a lot of the
workers in exchange for pretty stingy pay?
Bob: Right, employment contracts are fine, even stingy ones,
except in rare cases. The reason that the Isle One work requirement isn’t an
employment contract is that the One Assembly can change it at any time. A slaveholder might not require much from a
slave for months, and then send him all day to the fields to pick cotton. The
One Assembly has arrogated to itself that same power. If I, and any One, could
just head for Isle Two any time the Assembly demanded too much more, then the
analogy to an employment contract would be more apt. Because we were told that
the trip to Isle Two is a one-time offer, or at least that they could not
guarantee it would be repeated, I cannot count on opting out when the time
comes that too much is required of me. So, by staying now I subject myself to
whatever labor demands and whatever enforcement mechanisms the majority of Ones
may be inclined to impose in the future. That is not voluntary employment, but
state tyranny.
Ann: And you would say the same thing, I suppose, for any
worker in a single industry town in the big world for whom relocation was as
impractical as your swimming that dangerous mile to Isle Two.
Bob: I don’t think that happens.
Ann: It’s a bit of a mystery, then, why there are so many
unemployed in industrial towns years after the mill closes isn’t it? But let’s come back to our islands. Suppose
that we have very good reason to believe that the five hour work requirement
will not be made longer or more onerous and enforcement sanctions will not be
increased without either unanimous agreement or a guaranteed trip to Isle Two
for any dissenters. There is a constitution to that effect. Would that make the
work requirement so similar to an employment contract that you, looking to your
own costs and benefits, would sign on, i.e. agree to stay on One so long as the
status quo remains?
Bob: It gets closer. I would still have one moral and one
prudential concern that would not arise with a real employment agreement. The
moral concern is about current dissenters. They are subject to the existing enforcement
mechanism, whatever it is, and, as I understand it, are not offered a trip to
Two. I could not endorse a status quo that treats them in this way. My second
concern is that even if I now believe that for my own part the Isle One
benefits are worth the five hours per week, I might change my mind. There is no
guarantee of safe passage to Isle Two on that event. The constitution you
sketch only has that guarantee when the terms of the contract are changed, not
when the “employee” becomes dissatisfied.
If there were an easily walked causeway connecting Isle One and Isle Two,
then the analogy to an employment contract would be close enough that I would
not feel any problem of principle with respect to my co-laborers, and I would
find it prudent to give Isle One a try.
Ann: I am not sure I understand your notion of
“endorsement,” but whatever it is, I take it that you have already conceded
that you would not have endorsement qualms about the Isle One work requirement
if its enforcement mechanism violated no rights because it merely excluded the
non-compliant from property to which they had no right. What if the enforcement uses what looks even
more like punishment but still doesn’t violate rights?
Bob: I am dubious. What sorts of punishments do you have in
mind?
Ann: Suppose, as I think might well be the case on such a
small island, that the work requirement was enforced solely by shaming or
shunning?
Bob: Shunning would be no problem. No one has a right to my company
or anyone else’s. So, if everyone came
to do the five hours out of a desire not to be socially ostracized, I would not
call that “enforcement.” It would be a free decision to comply – nothing being threatened that would violate
anyone’s rights. I would say the same thing if the shaming only amounted to
finger pointing and chanting “shirker, shirker; drone, not worker!” That would
be offensive, as well as grossly unpoetic, but it would not violate rights. It
would not be enforcement. If, however, shaming required wearing a big “S,” that
would clearly violate rights, it would be the wrongful enforcement of an unjust
law.
Ann: Shunning and oral shaming on Isle One might be a good
deal harder for many individuals to bear than would be wearing the scarlet S,
or even receiving a hard swat with palm bark. I would think it might be widely
regarded as highly coercive.
Bob: It should be no surprise that rights violations aren’t
necessarily correlated with pleasures, pains, or preference structures. People
use “coercive” too loosely sometimes – not paying close enough attention to
what is and what is not an individual right. If there is no threat to violate your
right, you are not coerced, at least in the sense of that word important in
political theory.
Ann: Some rights violations that for you trump every other
value are, in fact, not very momentous, and some actions that you wouldn’t
count as rights violations can cause great misery or impoverish a person’s life. That was at the root of my argument last time that your favored set of rights
violations cannot have the priority in morality and justice that you claim for
them. It also explains why it is compatible with right-libertarianism that many
people live in abject misery in a resource rich country in which a minority
live very well indeed.
Bob: No, that horrible of your imagination can’t happen. In
a just society, there will be no interference with markets and free markets
will not permit willing workers to sink into misery.
Ann: Your rosy view of free markets depends upon some
substantive assumptions with doubtful support in the historical data. For one important particular, it seems to
happen that those who win in markets use their economic and political power to
bend those markets, in their own interest, far away from the idealizations of
pure theory. Of course, you can assume that away when you draw your charts, and
say that it is those charts that represent just economies. Then, however, your
real world policy prescriptions, which, I bet, are based on the charts, are
vulnerable to the real world practices of owners and CEOs.
We are not, however,
at the moment very well placed to work on empirical questions of large political
economies. That would, moreover, have little relevance to Isle One, Isle Two,
and the canoe. I apologize for raising it.
In any event, is it fair to say that your theory of the individual
human right of freedom as it bears on the Isle One work requirement is independent
of your theories in political economy? That is, you would still maintain that a
violation of someone’s right to freedom, say by a democratically passed work
requirement, would be unjust, even if it turned out that your model of free
markets didn’t quite fit the real world?
Bob: Yes, although there is mutual support between my theory
of the political economy of free markets and my theory of justice of individual
freedom. Still, the rights theory can stand on its own.
Ann: Let me ask you about affecting conduct by threatening a
different kind of rights violation. I have promised to jog with you of an
afternoon. I then discover that you are not planning to join our jam session
that night with your flute. Out of pique, I announce that I will not jog with
you after all unless you agree to show up later with your flute. You grudgingly
agree. Have you been coerced? Have I made you unfree?
Bob: Well, you are threatening to violate a right of mine,
although not a very weighty right. If I
gave in, I would be resentful, and feel that I had been wronged in a minor
way. If the promise was gratuitous,
however, I cannot think it is a violation of one of the politically important
individual rights to breach such a promise. It might be otherwise if the
promisee detrimentally relied on the promise in some substantial way.
Ann: Would it be fair to say that if I threatened you with a
knife, that would make you unfree in a big way to skip the jam session, but if
I threaten you with a broken promise of my jogging company, you are only a
little bit unfree to skip?
Bob: There is something to that, but I am allergic to the
concept of different degrees of unfreedom. One is free or not. Probably I will
want to say that in this case I am free not to jam, but that if I do jam, you
owe me one.
Ann: I think your allergies are of ideological etiology, and
might be controlled by a dose of moral common sense. What if, instead of a
gratuitous promise, I breach an agreement?
We have agreed that I will tomorrow give you one two pound fish in
exchange for two coconuts. When I hear
about your non-jam plan, I announce that the deal is off unless you change your
mind and show up with your flute.
Bob: Although this is more serious, there is nothing morally
wrong in breaching a contract, so long as one is prepared to respond in
damages. So, I am not sure that I could sensibly say that threatening to do
what you have a right to do is coercive or limits my freedom, even if it
affects my behavior. It would not violate the sort of individual rights I would
identify with unfreedom if you threaten to violate promises, whether or not
amounting to contracts, under normal circumstances. You would owe me something
for the breach.
Ann: You would not find your intuitions better served by
saying that my threats made you a little less free?
Bob: Sometimes intuitions have to give way to sound theory.
Ann: I am sure you would count some rights violations as
freedom negating that do not involve force or the threat of force, even
indirectly.
Bob: Here is one that doesn’t involve pushing, shoving,
assaulting or threatening to do same.
While you are sleeping on your hammock, we build a secure structure
around you, and lock you in. Clearly, we have made you unfree. There is also
the property destruction branch of extortion. I threaten to have my accomplice
several meters away smash your lute, unless you right now sing my favorite song. I coerce you without any force exercised
against you, even indirectly. My accomplice won’t even have to use force to
keep you from saving your lute, as he will have smashed it to pieces before you
get half way there. Then there is blackmail. I threaten to make public
statements about you, true or false, that you would very much like not to be
public. That could make you unfree with respect to what I demand of you.
Ann: If, contrary to your expectation, it wouldn’t bother me
at all if you revealed the information, then I take it I would not be unfree at
all. I refuse your demand, unless it was something I wanted to do anyway, or I
change my mind after seeing how much you want me to do it. What if I would
rather the information not be public, although do not regard it as particularly
harmful, and I am also not so very opposed to what you demand? If your threat
just barely pushes me over the line to doing what you want, was I unfree not to
do it?
Bob: No, I think a threat’s being decisive is insufficient. If
the threat were only a tie breaker, with heavier considerations on both sides,
your decision might seem very much a free choice. To make you unfree the threat
should dominate your decision. You should feel that you have no choice.
Ann: What do we say about what might be a large gray area,
as the threat is ratcheted up; I still deliberate, but the deliberation gets
shorter and shorter?
Bob: You are just going back to the line drawing problem.
Yes, it may be a little arbitrary where we draw the line, but it is going to be
someplace close to the black side of your gray area. It will be in the darkish
gray region where you say, “I had no choice,” even if you say it with less
vehemence and deliberate a little longer than if the threat were more serious.
Ann: We have to draw the line if we want to make a dark
enough gray unlawful, but it serves no purpose at all to insist upon a line for
freedom lost. That intuitively can be a matter of degree, and the moral
wrongness of my diminishing your freedom can certainly be a matter of degree.
It gets more and more wrong the more coercive my action is and the more
important to you is what I am trying to get you to do or refrain from doing.
Wouldn’t it be a greater wrong for me to blackmail you to make the dangerous
swim to Isle Two by threatening to release a seamy incident from your past than
getting you to play your flute by threatening not to jog with you? And couldn’t we construct all sorts of
intermediate cases?
Bob: As a matter of the personal morality of such actions, yes.
As a matter of political justice, you seem to concede that there is good reason
for the line drawing. Not every threat to reveal personal information rises to
the level of blackmail; not every publicized untruth is defamation, not every
failure to do what is agreed to is an actionable breach of contract. The state properly uses its own coercive power
only against rights violations that fall on the “serious” side of a line drawn
across a reality that is continuously variable.
Ann: I do concede, as you say, that in-out lines need to be
drawn across gradualisms in definitions of crimes, of torts, of contract
breaches, of conflicts of interest for recusal, and in various other ways in
which states and state actors conduct themselves. On the other side, I think
you have, in effect, conceded that how free one is to do something can be a
gradualism of personal and moral significance without any line drawing at all.
If I apply certain sorts of pressure to get you to do something, the more I
apply and the more important your action is, then the more wrongful is what I
do, and the less freedom you have.
Bob: I agree that your pressure might start out not wrongful
at all, and become more and more wrongful the more pressure you apply. At one
end of the spectrum I am completely free to choose against your pressure; at
the other end, perhaps, not free at all. I am willing to grant that the
“decreasing freedom” way of talking makes sense with respect to the degree of
your pressure. What I do not concede is that the significance of the act you
are trying to get me to do or to refrain from affects my freedom. If it is
something trivial than I am either very free or very unfree to do something
trivial. If it is something life shaping then I am either very free or very
unfree to do that.
Ann: Back to your taxes. You may be very unfree to keep the
money demanded in either a small or a large tax bill, but don’t you regard the
large bill as making you more unfree? If
I pressure you into bringing a coconut or some berries to the party, don’t I
make you less unfree than if I pressure you to swim to Isle Two?
Bob: There are times that it makes sense to talk that way.
For example, Isle Two is freer than Isle One because there is no state pressure
of any kind in Isle Two to do anything except for yourself.
Ann: Wait, are you now saying that Isle One is less free
than Isle Two even if Isle One’s enforcement of the work requirement violates
no individual rights – property exclusions, contracts, shunning, shaming?
Bob: I am saying that adopting your way of talking about the
relationship of freedom to pressure, a way of talking that I concede makes
sense in some contexts, Isle Two is freer than Isle One. That is a moral
conversation, if you will. The pressure of Isle One makes it less morally
admirable, because less free, in this way of talking, because of the pressure –
even if the pressure violates no key individual right. In that case, however, there
would be, in the sense important for political justice, equal and full freedom
on both islands. That is the sense of “free” I am most concerned about.
Ann: There are more things you are free to do on One than on
Two – just as if you had more left after taxes in one state than another. In
the sense in which you say it makes sense to talk about a gradualism of
freedom, isn’t there, in fact, more, not less, on One than Two, because there
is more you can do?
Bob: Freedom is never a matter of what you can do, but of
what you are not prevented from doing.
Ann: I think that is wrong, but if you are not prevented by
one of your “key rights violations” from doing anything on either island, then
there is more on One that you are not prevented from doing than on Two, and in
that respect, even in your own terms there would be more freedom on One than on
Two.
Bob: Degrees of freedom in the politically important sense
only make sense to talk about when there is some rights violating restriction of
what one can do. If my property is taken from me in violation of my rights
whether by theft or wrongful taxation, I am made less free in the politically
important sense. We can then talk about the degree of that unfreedom in terms
of what I have lost. But if no one takes
or threatens to take my property wrongfully, then I am not freer because I have
more property or less free because I have less. There may be various loose uses
of “free” and “freedom” in which one is freer if one has more property or more
opportunities or choices, and some of these uses may have prudential
application. I you want to say that, under the assumption of no key rights
violations, I would prefer Isle One because I would be “freer,” I suppose you
can go ahead. But I do think it would be better to avoid the use for fear that
people will confuse a merely prudential “freer” with the political “freer.”
Ann: Am I not freer in a politically important sense if
there are more things that neither the state nor anyone else prevents me from
doing? On your own definition of
politically important freedom, I am freer if the state prevents my being
kidnapped than if it doesn’t. Why am I not similarly freer if the state clears
a path that lets me get to a beach I otherwise couldn’t reach?
Bob: You can count yourself freer in the politically
important sense because you can do more only relative to rights violating
restrictions that could be put on you. A bad guy who will physically prevent
you from getting to the beach will make you less free to get to the beach, but
the absence of a path does not.
Ann: That seems
arbitrary. In terms of getting to the beach, I am in the same fix either way.
Bob: Surely you see the crucial difference between another
person imposing his will upon you to prevent you from getting to the beach, and
flora preventing you.
Ann: I see quite a few differences. That, as you say, bad
guy would be “imposing his will,” would cause a sense of loss of status, of not
being treated as I deserve, of inequality. I would also feel fear, maybe a lot
of fear. Psychology shows that it easier to be angry at a human barrier than a vegetable
barrier. We seem to be wired that way. I
could, however, easily imagine getting ticked at the absence of a path.
Certainly, I would be upset if the One Assembly decided to put all of its “work
requirement” into policing and none into cutting a path to the beach if I
thought the chances of my being assaulted were very low. The chances of my
getting to the pathless beach are zero.
I can also imagine being less upset about human interference
with my getting to the beach than I would be with the interposition of jungle.
Again, a large One stands astride the path to the beach that is en-pathed.
Saying that the Assembly has closed the beach because of exceptionally high
surf, he makes it clear that he will bar my passage. I may think that this paternalism is wrong
headed. If the surf is too big, I won’t go near it. I can make that decision
for myself. I might be a little angry. However, it is all done out of good
will, not ill will. If I feel somewhat belittled, I do not feel individually
picked on. It is clear that no one is going to be allowed to go to the beach.
There is less loss of status and inequality than there would be in the
assailant case, or there would be if, say, women but not men were barred from
the beach during high surf.
So, yes, I can see all sorts of potential differences
between the direct human interference cases you would count as restricting my
freedom (in your “politically important sense”) and the cases you would call
“mere incapacity” or something of the sort. Some differences show up in one case,
some in another, and in many different combinations. Some aspects of a
particular instance of human interference affect me very negatively, some
negatively but trivially, and a few aspects of human interference I would actually
feel better about than do about impersonal barriers.
What I do not see is that human interferences with what I
want to do and non-human barriers that are humanly remediable are in wholly
different universes for me for morality or for political justice. “Many required hours for policing, but not
one minute for a path to the beach,” does not make sense.
Bob: Coercion for policing can be justified in terms of
protecting the key individual rights. Coercion for public works cannot be.
Ann: I don’t see that you have given me much reason to agree
with you on this. You have not even shown a principled way of distinguishing
between “key” individual rights and other rights, or other things that we value
and think should guide our own conduct and that of others. I think our conversation
has turned up quite a bit of conceptual sponginess in your right-libertarian
theories. In any event, you have agreed that you will need to investigate Isle
One society more closely before you cast off. Perhaps that examination, even if
it turns up some coercion in the work required, will persuade you that it is
worth it for the fuller life it grounds, for its greater “freedom” in ways your
theories regard as politically unimportant.
Additional posts on libertarian theory:
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