Scanlon contra libertarianism

“libertarians in favour of limited government and lower taxes”

Almost everybody is in favor of “limited government”. The conventional use of that phrase in the right-wing libertarian sense of “preventing government from regulating corporations” is a piece of Newspeak that progressives need to challenge at every turn.

Thanks for the link.
I wonder if we should mount an effort to free J. Otto Pohl–I clicked through to his blog and saw pictures of him eating with his hands out of a bowl inside a compound with barbed-wire on the surrounding walls!

Workers who are constantly subject to such disruption have less control over their lives than they would in a more stable society. To determine what system is to be preferred, some decision must be made about how to balance the conflicting values of productive efficiency and individuals’ control over their lives. The market itself does not answer this question, since the choice between different systems is not something that individuals express a preference about through their market behavior.

This is a very good point. There’s no market for social structures. (Though that phrasing invites the obvious snarky response: “what about Congress?”)

Jawbone:

Actually I was eating with my hand (singular) out of a bowl inside a compound with razor wire on the walls. I will probably be eating with my hand out of a bowl again today, although not inside a compound with razor wire on the walls.

I’ve read it thrice now, but I’m still not making sense of the key argument.

Property rights as we commonly understand them…involve not only the right to use the things one owns, and to exclude others from taking them, whether or not we would not suffer from this loss. And property rights also include the power to give others similar rights over a thing, by transferring it to them.

By permissibly using something, I can make it wrong for you to take it, on Lockean grounds, because you would be interfering with my use. By ceasing to use it, and leaving it with the intention that you will use it, I can make it the case that you will not wrong me by using or destroying it. These ideas, included in the right of non-interference as I have construed it, are extremely plausible. But it is extremely implausible to think that I can, by an exercise of my will, confer upon you the right to exclude anyone else from the use of a thing, and give you the power to transfer this right to yet other people.

The bolded “and” I’m reading as a “but.” However, I’m completely not getting why the right to transfer something isn’t a fairly obvious part of a right to use it.

Tragically Flip:

Regarding the advantage of money in economic competition, sure, but it’s by no means insuperable. Look at the startup/venture capital sector and count the number of industries that have been put on their ear by various garage/dorm startups. Or just make a table of the top 10 players in eaxh sector by decade and go back to 1900. You will see tremendous shuffling, with entire industries (like analog photos) rising and falling.

As just one example, Kodak surely had billions more than Facebook did, but it didn’t build Facebook Photos.

And on an individual level, at least in the past there was a saying: shirtsleeves to shirtsleeves in 3 generations. No matter how rich the family scion was, a large fortune will be squandered over time simply because by the nth generation there are on average 2^n descendants to divide it by. (You can incorporate compound interest and a lifetime spending model into this calculation as well; even with prudent money management, the fortune won’t last forever if split and diluted).

I just posted the following comment to Scanlon’s article on the Boston Review site. But since there is already a discussion underway of the article here, I thought I’d repost it here.

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As a non-libertarian I think this is nice article. I particularly like the point that we can explain our intuitions about the crop marauders without needing to resort to a libertarian-style natural right to property.

Instead, Scanlon proposes that we can explain our intuitions via a more limited right to non-interference. In Scanlon’s words: “we have the right to act on the things of the world in order to preserve and improve our lives, as long as, in so doing, we do not encroach on others’ ability to do likewise.”

I take the idea to be that if someone sneaks away with some of your harvest (when you are sleeping, say), then that person has encroached on your ability to preserve and improve yourself, even though no physical coercion against your physical person was used.

I’m curious about the boundaries of this notion of encroachment, though, once we broaden it beyond physical coercion, as is done in this example.

For instance, I can imagine a libertarian replying to Scanlon with the following scenario. Suppose you and I and others live in a state of nature, and in this state I\’m meeting my needs by growing bananas and trading them with others for goods they produce. Then suppose you decide to start trading bananas too. Suppose further that being a much better farmer than I am (or maybe, living in an area with more sunlight), you can demand less by way of exchange goods for your bananas. So now many fewer people are willing to trade with me, since they prefer to trade with you instead. I’ll have to match your lower exchange demands and as a result my well-being will take a significant hit.

Without further details (nothing funny is going on, let’s say, such as near monopoly access enjoyed by you to the local freshwater source), I’m inclined to say — even as a non-libertarian — that your behavior does not “encroach” on my ability to preserve and improve myself; instead, it is legitimate competition.

But can I derive this conclusion from the notion of encroachment itself?

Libertarians will say: your behavior is not encroachment because your behavior does not interfere with my natural right to property in my bananas. So, they will say, we need a notion of property rights before we can say what is and what is not encroachment.

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I’m optimistic a reply is possible, but rather than make this long post even longer with my own reply, I’ll stop here and see what others have to say.

As just one example, Kodak surely had billions more than Facebook did, but it didn’t build Facebook Photos.

But Facebook Photos didn’t do anything to silver halide photography. Digital photography did, before Facebook existed. I am unaware of Facebook’s contributions to CCD and CMOS semiconductor research. Good CCDs were the fruit of massive investment over years by huge industrial companies like Samsung, academia, and our old friend, big government!

Although I think it was mostly the sort of big government that specialises in ripping little girls’ faces off in creative new ways, and which is therefore uncontroversial, as opposed to the form that refrains from face-off-ripping and is therefore history’s greatest monster. A highly sensitive, miniaturised charge-coupled device is a handy thing if you’re trying to draw a bead on the little girl in poor light and the defence sector invested quite a bit in the technology.

It really is an ideology of the privately powerful not wanting to be constrained by public institutions from their ability to plunder the privately powerless.

Oh, come now. A free market in protection services would guarantee the emergence of affordable private security forces for the privately powerless, and they’d clearly match the resources available to the security forces of the privately powerful. (So snarks the person who just last night received a Koch-funded Americans for Prosperity robocall from a Securitas Security Services number.)

The libertarian sees employer A paying employee B, with a significant chunk of both of their earnings seized by public servant C—in the name of the people and often employee B, but really mainly for public servant C himself.

Yes, public servant C is collecting FICA tax and imposing mine safety inspections primarily to enrich himself personally. [Insert emoticon for eye-rolling here] Meanwhile, if employee B becomes dissatisfied with the working conditions provided by employer A, and tries to band together with employees D through O to counterbalance the advantages held by employer A, employer A simply hires private army P to crush them. Of course, historically if things got too hot for private army P, employer A “hired” public army U to finish the job, a practice which would invite a legitimate critique of excessive government power. However, such a critique is oddly absent from, e.g., Bryan Caplan’s paeans to the age in question, when at least taxes on rich people were low and there were few business regulations. When one of the worst crimes against an employee that a modern right-libertarian can conceive of is the existence of tax withholding (see above), this is unsurprising.

asdf:

The libertarian sees employer A paying employee B, with a significant chunk of both of their earnings seized by public servant C—in the name of the people and often employee B, but really mainly for public servant C himself.

See this is the problem. Libertarians view “choice” as a binary. Either Employee B “chooses” to work for Employer A at sustinence wages without benefits, or he doesn’t. But liberals know that “choice” exists on a spectrum, and a choice between “starve to death” or “work for pittance” means most will choose the latter, but that’s not the same as being truly voluntary in an unconstrained choice to work for that Employer because you actually want to.

So no individual points a gun at Employee B’s head and makes him take the job, but in fact, society as a collective does so by denying Employee B any better options. Libertarians ignore this and assume that so long as B chooses to work for that pittance under terrible conditions, she has chosen freely and thus the transaction is moral and no outsider ought to interfere.

Liberals say fuck that shit, it’s bullshit, and insist that bureaucrat C be empowered to ensure B is paid a minimum wage, worked only so many hours, paid overtime, provided the ability to take sick time without being fired or unable to pay her bills and so forth.

Bargains between entities of vastly different power and need for the transaction are usually unfair to the weaker one. So our solution is to have the collective provide a modicum of power to the powerless. If libertarians had a solution to this, we could debate it, but again they simply deny it is a problem.

Aristocracy is, in some sense, the “natural” order of things. It’s what happens unless something is done collectively (like inheritance taxation) to counteract it.

Like cholera.

The other ridiculous aspect of the 2^n thing is that, historically, societies found a way to deal with this problem. In order to preserve the ‘family name’ you would have a single designated successor and everyone else would be screwed or live off his charity (and always his, of course). In some cases, this was codified into laws preventing the division of estates though inheritance. It seems that the wealthy are willing to screw even their own children to maintain the aristocratic class. But of course libertarians make a habit of seeing only what they choose to.

Re. Kodak and FacebookPhotos (Facebook is hardly a small startup anymore, is it?):

In the old days, everyone would have expected Kodak to get into any new photograph-related business that looked lucrative. Now it would be recognized that that’s not part of their “core business”–as Alex suggested, Kodak’s core business is centered around their excellence with a specific set of chemical processes. An IBM or a Siemens is lucky enough to have a core business that serves them well through many changes (through many buy-outs and lasting-outs of smaller firms). I have no idea what this factoid does to/for either Alex’s or asdf’s or Tragically Flip’s or the actual subject of this thread.

“Salem: as I said in the OP, I wouldn’t have used the same language as Scanlon, but I think his point is clear. It is that whilst you can have, in the state of nature, a moral relationship to external stuff that is sufficiently strong to exclude the rights of others (such as the marauders) that right is much less extensive than those conferred by the property regimes of developed legal systems. The libertarian mistake is to project back onto a pre-institutional state, the kind of extensive rights (including e.g. rights of bequest) that constitutively depend on such systems.”

Actually, I think most people’s sense of the moral, pre-institutional right of property is much MORE extensive than what is institutionally allowed. For example, zoning laws, occupier’s liability, IP, etc. I don’t agree at all that the right of bequest is morally controversial, and Scanlon makes no actual argument as to why it should be.

The reason libertarianism has a certain degree of success is precisely because they are getting at something valid and widely held. “I have the right to do what I want with what I own.” If the debate is over that principle, libertarians win every time. Successful attacks must establish that there are other equally valid principles, and they are mutually incompatible. Therefore they cannot all be exercised absolutely, so rather than being an absolute rule it’s a principle to be taken into account. Then when your moral claim over being able to do what you like with your own property comes up against someone else’s moral claim to (say) education, there needs to be some kind of institutional adjudication of the claims, because how else can these competing claims be reconciled?

In other words, plurality.

The author makes many claims in a way that makes them appear to be axiomatic. But when examined closer one can see that reality is not so simple or binary.

For example: he points to a case where clearing land and growing crops to survive encroaches on no one and therefore it’s wrong for others to interfere.

This supposes that land is infinite and that all that is required for survival is hard work. However, what if the land is crowded and the owning of land for crop growing deprives someone else of doing the same. Is this other to starve rather than take what is needed to survive? Is ownership god-given to the chosen ones or just a private taking of the commons?

Salem 17: “Scanlon never properly justifies “There are no property rights independent of some institution defining them.” And this is a big deal, because the psychological appeal of libertarianism is precisely that most people’s notions of property are that it is in some sense “prior” to the state.”

Don’t you think you are the one who has some justification to do? “Most people’s notions”? Have you ever been at a city planning committee meeting where citizen after citizen stands up to vigorously deny their neighbor’s right to do with their property what they were planning to do? At best you can say that most people are conflicted about property. Yes they may be propertarians when it comes to their own use of their own property. But they are also – almost everybody is – strong statists when it comes to other people using their property in certain unpopular ways. What you call the “psychological appeal of libertarianism” is just plain selfishness. The misery of right-wing libertarianism is precisely that it pretends to be a logically grounded philosophy when it really is just a crude attempt at justifying selfishness.

Myles – “The liberty is the liberty to offer employment to said workers, whether in the manufacturing of typewriters or of computers. There is no liberty involved in the possession of such employment; that is an entitlement, an encumbrance upon the liberty of another, not the liberty one’s own self. Classical liberals like me do not hold the absence of such a guarantee to be in any way a diminishment of liberty.”

Talk about assuming your conclusions. There are historic conceptions of rights and liberties arising from employment that go straight back to the middle ages and through the labor republican ideology of the 19th century in many different areas. To name a few:
– personal physical liberty and privacy while on the job. Do workers have the right to talk while they work, or to eat or drink or smoke or listen to music or anything else they want? Do they have the right to use the bathroom? Do they have the right to refuse being searched (either in their person or their property) or drug tested? Are they surveiled without their consent, either by security cameras, managers, private detectives, or their peers? How extensive is the use of private security or police forces, and are there any regulations on their behavior?
– freedom of expression and political freedom while on the job. Do workers have the right to speak their minds without being coerced by threats or discipline or termination? Are workers coerced into voting or not voting in particular ways, or attending meetings, or donating to the company PAC?
– freedom of association while on the job. Do workers have the right to form a union or other employee association without retaliation? Is membership in a political party or civil society organization grounds for retaliation? Are blacklists or yellow dog contracts used?
– freedom of movement while on the job. Can workers leave their employment if they want to? Is debt, company scrip, company housing, etc. used to keep workers on the job? Is bonded labor in use? What about holding people’s passports/documentation or legal status as another tool to keep those laborers in place?
– and most importantly, freedom in regards to one’s own labor. Are workers forced to work off the clock, or denied entitled overtime pay, or otherwise have their wages stolen? Is there due process for hiring, promotion, discipline, or termination, or is the worker exposed to arbitrary exercise of power by superiors?

Btw, none of these things are academic. They all either have happened recently or are ongoing practices.

What? That libertarianism is “just a crude attempt at justifying selfishness”? Now you are surprising me.

Actual libertarians – that is 19th century anarchists, not late 20th century possessions of billionaires – distinguish between “possession” and “property”.

But as I have mentioned, an unregulated market leaves many workers with little control over some important aspects of their lives, and their liberty also matters morally.

I think this confuses Actually Existing Capitalism with libertarianism. In fairness, a lot of libertarians do it, switching back and forth between decrying how the government has destroyed the economy and praising the genius of “our system of free enterprise”. We should pick one and stick with it.

As for unregulated markets, I think Scanlon and most libertarians make the same mistake, thinking that the rise of capitalism was about property rights and free markets. Pleasant bozo John Stossel had a piece at Reason today about free market heros Rockefeller and Vanderbilt, which I rate 3.5 Picard facepalms. In fact, wealthy capitalists have been in bed with the state since the beginning. AEC is less like “our free-enterprise system” and more like “a loosely-affiliated collection of heavily-subsidized cartels”.

But it is extremely implausible to think that I can, by an exercise of my will, confer upon you the right to exclude anyone else from the use of a thing, and give you the power to transfer this right to yet other people.

I don’t see why this is true at all. If First User has the right to exclude, s/he also has the right to include. And if First User includes Buyer and excludes himself/herself, I don’t see why Buyer cannot also exclude, if Buyer continues to use the property. The position of everyone else to the property hasn’t changed, the usage is continuous, and the person with the power to include/exclude has included someone and excluded herself/himself. (Can we please get some gender-neutral English pronouns?)

Myles, do you disagree with Scanlon’s notion that liberty, whatever else it may be, to some extent includes control over one’s life? If you accept it, do you truly not see how a narrowing of one’s employment prospects might have some negative effect on one’s control over one’s life, and thus diminish one’s liberty? Disagreement is one thing but I’d suggest that if you find the passage you quoted to be “nonsense” and “logically speaking, gibberish” then it might repay a more careful reading.

I’m not here to say that arguments from authority are valid, but I will say that you might someday look back on your suggestion that T.M. Scanlon ought to study elementary logic before trying to run with the big dogs as being perhaps the very moment you hit rock bottom, argumentatively speaking.

The reason I brought up the notion of the argument from authority is that I think you will find there are certain other facts in Scanlon’s biography, aside from his writing for the Boston Review, which suggest that a more charitable reading might repay the effort, and that a strategy of engaged disagreement would serve you better than playground taunts like “weaksauce” and “couldn’t be bovvered”.

There are two issues that are being conflated here: the moral right, and the enforceable claim.

We don’t turn all moral rights into enforceable claims, for reasons of overlap, feasability, certainty, etc. You have a moral right that your spouse not cheat on you. But this is not an enforceable claim (at least in the UK) – and nor should it be. Similarly, the moral right “I should be able to do anything I like with my property” doesn’t mean that you should get an enforceable claim. And it’s for the libertarian to argue why it should be so, when there are so many other competing moral rights.

I’d go further. L2P wrote about the level of regulation in transfer. It’s not that this regulation is necessary to make your rights exclusive – rather, it’s necessary to make the law take notice of your rights. It’s not that promising someone an apple gives them no right to that apple, it’s that equity won’t assist a volunteer. And the reason why this is so is that some level of property claim enforcement is necessary for a functioning society, but in point of fact, property rights are really, really uncertain – it’s hard to say what really belongs to who. That marauding band are going to claim that it’s really their corn. So the only way to get from moral rights to secure claims enforceable against the world is a large amount of custom/regulation/legal fiction/etc.

Once you accept that property is only made meaningful by heavy regulation, it becomes only natural to say that (1) regulation should be set up to enforce these rights only to the degree that it is socially desirable to do so, and (2) that because of the large amount of regulation needed to make them meaningful, property rights (and other rights needing heavy regulation) should, at the margin, give way to the more simple rights when it comes to claim enforcement.

it is clearly institutionally dependent in ways that other supposed natural rights need not be, since it depends constitutively on various legal fictions

This seems pretty weak to me (although I haven’t read the Steiner carefully for a long time). Why can’t we just construe bequests as consisting of transfers — stipulated in advance — of the form “in the last second of my life, I wish to distribute my property as follows…”. Reducing it in this way to a transfer among the living (albeit, only briefly) would appear to get around any kind of specific worries about institutional dependence.

which I rate 3.5 Picard facepalms.

In the coming Great Leftist Collectivism, Joshua Holmes shall be spared from the purge.

Watson 51, whatever your opinion, my argument was that most people – real existing observable people, not fictitious players in some libertarian morality play – do not in general believe that property rights are more basic or have priority over all other rights or that they are independent of institutional recognition. And that was the point I was arguing. You seem to be arguing that most people are wrong in their rejection of the priority of property rights. I disagree with that but more to the point I disagree with the fiction that “most people’s notions of property are that it is in some sense “prior” to the state”.

piglet, I have trouble seeing a right to dictate my neighbors house paint as basic. Whatever arguments are mustered against property rights seem even stronger against supposed collective rights which must of necessity be exercised by politicians. To me the question of expanding freedom is more basic then one of expanding entitlements, and its not clear that zoning law does that in any way.