Libertarianism without inequality (6)

by Chris Bertram on January 2, 2004

Readers with long memories will recall that I commented on chapter 5 of Michael Otsuka’s Libertarianism Without Inequality nearly a month ago. Chapter 6 is very much a continuation of the theme of that earlier chapter, and addresses a central liberal-egalitarian objection to the conception of legitimate state authority that Otsuka advanced there. Below the fold are some reactions to Chapter 6: feel free to comment if you have read or are reading the book.

Otsuka defended the view that a necessary and sufficient condition of legitimate political authority is that those subject to it have given their free and informed consent. But liberal egalitarians are going to argue that some forms of government can never be legitimate just in virtue of their internally oppressive form. As I mentioned last time I posted, they are going to argue some regimes—such as a theocratic republic, complete with Inquisition and torture chamber—would be illegitimate even if people had the option of leaving as a practical alternative to submission.

In chapter 6 Otsuka applies pressure to these liberal egalitarian commitments, suggesting that if viable exit options did exist or if individuals had voluntarily agreed to be bound by oppressive or hierarchical laws, then a proper respect for the choices of individuals would mandate acceptance of such societies as legitimate. Note that this is a philosophical move. Otsuka is not engaged in apologetics for any actually existing hierarchical or repressive regime: he is using thought experiments to press what our deepest convictions are on these matters.

He invites us to imagine that the background to individuals’ choice to remaing in or leave particular societies is something like this:

an enormous archipelago that consists of a superfluity of highly habitable islands of various shapes and sizes. Rapid and inexpensive travel between any two points on this archipelago is possible. It was and remains possible for any group of individuals to stake a claim to an island for the purpose of founding and sustaining a political society while still leaving ‘enough and as good’ for everyone else—either on her own or in society with others—to improve her situation to the same degree as these founders. An unsettled island is therefore available for anybody who chooses not to join a political society to go off on her own and found a monity[a little self-governing statelet]. (p. 115)

Against this background, individuals may voluntarily come to be citizens or subjects of oppressive or hierarchical regimes. So, for example, if a legitimate owner of a territory invites others to join him in founding a new society on that territory modelled on the court at Versailles, subject to the condition that they enter a fair lottery to determine whether they are to occupy the role of Duc d’Orleans or cap-doffing peasant, those who enter such a lottery under free and fair terms and against a background of reasonable alternatives are bound to accept the result. And the ensuing society counts as a legitimate one. Similarly, a society of Sunni fundamentalists applying Sharia is fully legitimate just so long as those who form it had viable exit options.

(Otsuka has to say a few things here about the condition of children who grow up in such societies as a consequence of their parents’ choices and the duty those parents have to guarantee and preserve the possibility of autonomous choice and exit for the children.)

But is Otsuka right to say that voluntary choice is sufficient to incur such lifetime commitments? The model he invokes is that of individuals entering into binding contracts. But we actually place limits on the consequences for individuals of the promises and contracts they undertake. So, for example, there are bankruptcy laws which enable individuals to retrieve themselves from a hopeless indebtedness. And we have divorce laws that enable people to escape from ill-chosen romantic attachments.

Similarly, I have to say that I’m not convinced by Otsuka’s suggestion that just because it might be rational for a person to gamble their freedom away (perhaps in the hope of gaining more freedom), then we should take the person who has so gambled to have signed away their freedom for life. Suppose I do voluntarily associate with others to form a theocracy but later repent of my decision and come to see it as the rash choice of an inexperienced youth—on Otsuka’s view that is just too bad. I am now bound by the laws of the new state and am subject to legitimate punishment for breaking them. There being no reason why I could not consent to a regime that included apostasy among its laws, when I renounce my religion I am legitimately punished.

Against this, the liberal egalitarian will want to insist that there are certain core interests (including, for instance, interests in religious freedom) that no state may rightly violate. And the presence of such features within a state illegitimates that state notwithstanding the procedurally pristine sources of its authority.



Michael Otsuka 01.03.04 at 12:27 am

Liberals think young adults should be permitted to smoke cigarettes, ride motorcycles, climb rocks, and engage in unsafe sex even though these activities can cause serious and lasting harm and life without them would not be so onerous. So I don’t think liberals are entitled to object to permanent contractual arrangements on account of the harm one may inflict on oneself in the future. I agree that there should be divorce laws and protection against crushing indebtedness in the actual world, but these measures are justified as a means of protecting the poor and powerless in circumstances of inequality. In circumstances of equality, rational and informed adults should be permitted to enter into any genuinely voluntary arrangements they choose which do not infringe the rights of third parties. Third parties, including governments into which one has not entered a contractual relation, have no business interfering with — and no obligation to enforce — these arrangements.


Aaron 01.03.04 at 12:40 am


I haven’t read the book (so maybe I’m cheating with this post) but I am a former libertarian and I had a comment. When I do the aforementioned thought experiment, I believe that it would often be inappropriate to hold people to such lifetime commitments. It seems too difficult to judge whether or not this would never or always be appropriate. Although I, like many people, lean towards allowing people the freedom to make choices, but also require want people to take the consenquences of their actions, so it is hard to determine what would be appropriate without looking at an individual case. Sure, a person should be able to renounce their religion even in a theocracy because, in my view, people who think that their religion is challenged by allowing dissent are sorely mistaken. Thus, you take a person like that and I would say ‘sure, let them go when they have a change of heart.’

And in the real world, there are always these sorts of influences. As you note, what about those who grow up in societies as a result of their parents’ choices? We all know that a person has free will but how they can use that free will is influenced by their parents, their grandparents and all other ancestors, their friends, where they grow up, etc.



Chris Bertram 01.03.04 at 11:29 am

Mike, it is hard to know how to argue about this since I can imagine us pressing one another about the inconsistencies in our responses to various cases (such as you outline). But I can’t believe that you are right to think that our real-world acceptance of divorce is a response to the _inequalities_ against which decisions are taken as opposed to the shortcomings of human reason and affect that even the richest and least vulnerable are subject to.


Michael Otsuka 01.03.04 at 1:54 pm

To clarify my remarks on divorce: By ‘divorce laws’, I mean laws which prohibit all from entering into a marriage from which they cannot exit. I think such a blanket prohibition is justified only to protect people from exploitation arising from inequalities in gender relations, socioeconomic class, and the like. In my libertarian egalitarian utopia, all would be allowed to enter into a marriage from which they cannot exit so long as this marriage is the produce of free, rational, and informed consent. They would also, of course, have the option of entering into a marriage from which they can exit, which will almost always make the most sense, since people typically cannot know that they will want to remain with the same person for the rest of their lives. But what, you might ask, about 18 year olds who naively try to enter into a permanent marriage thinking that their love is eternal? What happens when they want to split up at age 19? A libertarian can reply that some acts of consent require a higher standard than others of rationality, information, and voluntariness in order to be binding. The standard of informed consent to euthanasia, for example, should be much higher than the standard of informed consent to a minor surgical procedure. Likewise, the standard of consent to marriage with no exit should be much higher than the standard of consent to marriage with easy exit. Teenagers in the grips of an illusion about the permanence of their love for one another arguably wouldn’t meet this standard.


Robin Green 01.03.04 at 2:33 pm

So, Mr. Otsuka, the obvious follow-on question is: How on earth could we define such a standard, and then measure individuals against that standard, for informed consent for such “permanent contracts”?

If we take into account the expectations of some scientists and futurists (such as Aubrey de Grey) who predict that effective immortality[*] will one day be possible, permanent contracts seems especially problematic under such a future scenario.

[*] That is to say, protection against ageing and disease. Protection against, say, death by bombs would require even more radical technology, such as mind-uploading coupled with vast distributed backup systems. Anyway, I’m getting heavily off-topic here…


Michael Otsuka 01.03.04 at 3:29 pm

Perhaps, Mr. Green, with all the technological advances we’d also invent a machine to measure people against the standard.


Stirling Newberry 01.05.04 at 8:07 am

“Otsuka is not engaged in apologetics for any actually existing hierarchical or repressive regime: he is using thought experiments to press what our deepest convictions are on these matters.”

The problem with libertarianism seems to be that it is a worship of the marketplace, which is practiced by people who have no clue about the value of objects.

“Leaving” does not legitimize a regime, simply because of the value of networks and contacts. These have value – indeed, when companies are sold, specific value is attached to them. Therefore “leaving” means, in effect, a large tax for non-consent, one which is, even in libertarian conception, coercive.

But this gets us back to the basic failure of libertarian, errm, thinking, yeah, that’s the word you guys use for this nonsense –

Namely – the social network has a value, that value does not belong to any particular individual – and therefore the net value generated by that social network should be allocated by the decisions of all participating individuals.

Adam Smith understood this, too bad that most liberatarians thump Smith like a bible, but, like many regular bible thumpers, they can’t read it in the original language.


Michael Otsuka 01.05.04 at 12:38 pm

The thought experiment I conduct is one in which any costs of leaving (including the cost of severing social ties) are fully compensated. I claim that, in those circumstances, failure to leave legitimizes highly illiberal governments. So the above post is wide of the mark if it’s meant to be a commentary on ch. 6 of my book.


robin green 01.05.04 at 10:01 pm

But this is farcical. No libertarian advocates that businesses should be forced to pay severance pay to even the lowliest of employees for the “costs of leaving” a job – which can indeed be non-trivial – why then, under libertarianism, should anyone be forced to pay “leaving costs” to emigrants? It’s not intellectually consistent at all.


Michael Otsuka 01.05.04 at 11:50 pm

My answer to the above question can be found in ch. 1, sec. III, plus ch. 5, sec. III. In brief, I claim that it follows from the most defensible version of Locke’s ‘enough and as good’ proviso that people haven’t left enough and as good if they ignore such costs.

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