Critique of John Rawls' 'A Theory Of Justice'

A Theory Of Justice by John Rawls[1] has, unfortunately, become a modern classic of political philosophy. It is an attempt to objectively justify a normative theory of justice that involves a heavy dose of egalitarianism. Egalitarianism is popular among many people, hence why Rawls’ seemingly thorough justification of it as a principle of justice was greeted with such enthusiasm.

            

           In this critique of Part 1 of A Theory Of Justice, the foundational/theoretical portion of the work, I try to show the many flaws in Rawls’ conception and why his attempt ultimately fails. I think that his conception of the ‘original position’ which he uses to justify his theory is not conceptually sound, the principles of justice that he deduces from this ‘original position’ do not actually follow from his premises, and that even if they did follow, there is no reason why any living person should care about what these principles happened to be.

           

Rawls proposes to base his theory of justice on a so-called ‘original position’. This is to be conceived of as a kind of council of timeless wraiths with no personality and no distinct personal characteristics, who are to decide for all time the supposedly binding principles of justice that will underlie the social order. Rawls explains:

Rawls: “It is assumed, then, that the parties do not know certain kinds of particular facts. First of all, no one knows his place in society, his class position or social status; nor does he know his fortune in the distribution of natural assets and abilities, his intelligence and strength, and the like. Nor, again, does anyone know his conception of the good, the particulars of his rational plan of life, or even the special features of his psychology such as his aversion to risk or liability to optimism or pessimism. More than this, I assume that the parties do not know the particular circumstances of their own society. That is, they do not know its economic or political situation, or the level of civilization and culture it has been able to achieve. The persons in the original position have no information as to which generation they belong.” (118)

            

           Despite all of this ignorance, these wraiths are to decide matters in a ‘rational’ manner, defined by Rawls as follows:

Rawls: “Moreover, the concept of rationality must be interpreted as far as possible in the narrow sense, standard in economic theory, of taking the most effective means to given ends.” (12)

            

           Now, wraiths with no personalities cannot have ends which they are pursuing. The ends that humans choose are completely dependent on their unique personalities and life experiences. How can anyone be said to be deciding ‘rationally’ if they don’t even know what ends they are aiming at?

            

           Rawls tries to get around this problem by allowing the wraiths to know, in vague and general terms, what they want to get out of the deliberation:

Rawls: “Thus even though the parties are deprived of information about their particular ends, they have enough knowledge to rank the alternatives. They know that in general they must try to protect their liberties, widen their opportunities, and enlarge their means for promoting their aims whatever they are.” (123)       

            

           With this, Rawls saves his construction from being mired in absurdity from the beginning, but significant problems still remain. The most significant problem is that, as defined by Rawls, the wraith does not know “even the special features of his psychology such as his aversion to risk or liability to optimism or pessimism.” (118). Risk tolerance level, a crucial factor in almost every human decision-making process, is assumed to be indeterminate. This will cause problems for Rawls later on, as we will point out below.

            

           Luckily for the wraiths, they are not complete ignoramuses:

Rawls: “It is taken for granted, however, that they know the general facts about human society. They understand political affairs and the principles of economic theory; they know the basis of social organization and the laws of human psychology.” 119

            

           This condition is necessary to prevent the wraiths’ decision from being completely meaningless. However, this condition should cause us to be on our guards for the rest of Rawls’ book. It is ultimately Rawls who is making the decision for the wraiths in the book, and thus it is ultimately Rawls who must have correct knowledge from all of the relevant social sciences in his head in order for the decision of the ‘Rawls wraith’ to be considered meaningful. If he does not, then the decision that he makes for the wraiths will be incorrect. Suffice it to say that academic political philosophers are not generally known for their impeccable knowledge of all of the true findings of all of the other disciplines of social science.

            

           Finally:

Rawls: “it is clear that since the differences among the parties are unknown to them, and everyone is equally rational and similarly situated, each is convinced by the same arguments. Therefore, we can view the agreement in the original position from the standpoint of one person selected at random. If anyone after due reflection prefers a conception of justice to another, then they all do, and a unanimous agreement can be reached.” (120)

           

So much for the setup, already plagued with grave difficulties. Let us now see what conclusions Rawls draws from his setup. Rawls ‘derives’ two principles that he thinks the wraiths would agree on, which he initially states as follows:

Rawls: “The first statement of the two principles reads as follows. First: each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others. Second: social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all.” (53)

            

           At first glance, these principles actually seem quite libertarian, and when stated this way, they could probably be used as rules underpinning a libertarian free-market economy.

Unfortunately, Rawls soon ‘clarifies’ these principles. When he speaks of liberties, he doesn’t mean full interpersonal liberty from aggression and coercion as libertarians do. Rather, he has in mind a circumscribed list of ‘liberties’, consisting of political liberty (democratic rights), freedom of speech and assembly, liberty of conscience, freedom of thought, the right to hold personal property, and freedom from arbitrary arrest and seizure, none of which are to be considered as ‘absolute’ (53-54). As for other possible liberties:

Rawls: “Of course, liberties not on the list, for example, the right to own certain kinds of property (e.g., means of production) and freedom of contract as understood by the doctrine of laissez-faire are not basic; and so they are not protected by the priority of the first principle.” (54)

            

           Rawls doesn’t explain why the liberties he lists are ‘basic’ while those not on the list are ‘not basic’. Some clear criteria would have been nice here. For example, why is the freedom to vote in a democratic election or to assemble in the streets more important than the freedom to own the means of one’s own livelihood or to contract with others in order to make one’s livelihood? The latter seem much more important to me than the former.

            

           As for the second principle, after a long discussion he modifies it, turning it into his famous/infamous ‘Difference Principle’:

Rawls: “the outcome of the last several sections is that the second principle reads as follows: Social and economic inequalities are to be arranged so that they are both (a) to the greatest expected benefit of the least advantaged and (b) attached to offices and positions open to all under conditions of fair equality of opportunity” (72)

            

           A peculiar feature of this ‘Difference Principle’ is that, unlike utilitarianism which focuses its attention more on the average person or the majority of people, the Difference Principle focuses intently on the ‘least advantaged’ people. Rawls elaborates:

Rawls: “The difference principle tries to establish objective grounds for interpersonal comparisons in two ways. First of all, as long as we can identify the least advantaged representative man, only ordinal judgments of well-being are required from then on. We know from what position the social system is to be judged. It does not matter how much worse off this representative individual is than the others. The further difficulties of cardinal measurement do not arise since no other interpersonal comparisons are necessary. The difference principle, then, asks less of our judgments of welfare. We never have to calculate a sum of advantages involving a cardinal measure. While qualitative interpersonal comparisons are made in finding the bottom position, for the rest the ordinal judgments of one representative man suffice.” (79)

            

           While the Difference Principle partly ‘solves’ the universalist utilitarian dilemma of the impossibility of performing interpersonal comparisons of utility, it does so in an utterly impractical way. Under the Difference Principle, it is to be the most ill-adjusted, non-productive, miserable people whose welfare is to be the absolute benchmark for evaluating social arrangements. I really don’t see why anyone else would acquiesce to such an absurd arrangement. What makes these miserable people so important? How about the vast majority of normal people, don’t they matter?

            

           Probably in anticipation of obvious potential objections such as this, Rawls endeavours to justify his procedure based on the decision-making processes that he believes the ‘original position’ wraiths will engage in:

Rawls: “Since it is not reasonable for him to expect more than an equal share in the division of social primary goods, and since it is not rational for him to agree to less, the sensible thing is to acknowledge as the first step a principle of justice requiring an equal distribution….  Society should take into account economic efficiency and the requirements of organization and technology. If there are inequalities in income and wealth, and differences in authority and degrees of responsibility, that work to make everyone better off in comparison with the benchmark of equality, why not permit them?... Thus the basic structure should allow these inequalities so long as these improve everyone’s situation, including that of the least advantaged, provided that they are consistent with equal liberty and fair opportunity. Because the parties start from an equal division of all social primary goods, those who benefit least have, so to speak, a veto. Thus we arrive at the difference principle. Taking equality as the basis of comparison, those who have gained more must do so on terms that are justifiable to those who have gained the least.” (130-131)

            

           In response, actually there are no ‘those who benefit least’ in this scenario, there are only wraiths who have a chance of becoming ‘those who benefit least’ when society materializes. And in that case, why would a slim chance of becoming ‘those who benefit least’, however that is defined, get a veto over the large chance of becoming one of those who benefit greatly from the institutions of free-market capitalism? In the scenario as Rawls himself defines it, we are not dealing with different people haggling, but with a homogeneous, wraith-like ‘person’, who has a chance of becoming any possible person once society materializes. The idea of a ‘veto’ doesn’t apply in this scenario, only the balancing of probabilities.

Also, why must they necessarily start from absolute egalitarianism if the wraiths know free-market economic theory and thus know the pernicious consequences of such an arrangement? As Rawls himself concedes elsewhere in the book, if the wraiths don’t agree on anything, the default is general egoism (ie. no rules of ‘justice’ proper), something which would be a heck of a lot better than absolute egalitarianism.

            

           Rawls tries to get around these kinds of objections by arguing that the wraiths will decide based on the so-called ‘maximin rule’. Rawls explains:

Rawls: “The maximin rule tells us to rank alternatives by their worst possible outcomes: we are to adopt the alternative the worst outcome of which is superior to the worst outcomes of the others…. But that the two principles of justice would be chosen if the parties were forced to protect themselves against such a contingency [of being in the ‘least advantaged category’] explains the sense in which this conception is the maximin solution. And this analogy suggests that if the original position has been described so that it is rational for the parties to adopt the conservative attitude expressed by this rule, a conclusive argument can indeed be constructed for these principles. Clearly the maximin rule is not, in general, a suitable guide for choices under uncertainty. But it holds only in situations marked by certain special features.” (133)

            

           Rawls identifies three of these ‘special features’. The first is ignorance of all knowledge of likelihoods of outcomes (134). Rawls then identifies the second and third:

Rawls: “the person choosing has a conception of the good such that he cares very little, if anything, for what he might gain above the minimum stipend that he can, in fact, be sure of by following the maximin rule. It is not worthwhile for him to take a chance for the sake of a further advantage, especially when it may turn out that he loses much that is important to him. This last provision brings in the third feature, namely, that the rejected alternatives have outcomes that one can hardly accept. The situation involves grave risks.” (134)

            

           Having identified the three special conditions, Rawls tries to argue that they all apply to the ‘original position’. I believe that he fails in this endeavour, as I will explain. Throughout, keep in mind that due to Rawls’ conceptual error in his construction of the ‘original position’, the wraiths do not have a specified risk tolerance level. I believe that they couldn’t make any decision at all without such a specified level, but for the sake of argument let us just say that they have the risk tolerance levels of an average person. Anyway, here is the first:

Rawls: “To begin with, the veil of ignorance excludes all knowledge of likelihoods. The parties have no basis for determining the probable nature of their society, or their place in it. Thus they have no basis for probability calculations.” (134)

            

           In response, actually Rawls assumes that the wraiths know economic theory, so they would know that the more free-market the arrangement, the more the vast majority of the people is benefitted. Thus they would have a good idea of what approximate percentage of people would be greatly benefitted by very free-market arrangements, and what approximate percentage of people would be, on net, better off if, for instance, a large welfare state were imposed instead.

            

           Here is the second:

Rawls: “Thus, if we can maintain that these principles provide a workable theory of social justice, and that they are compatible with reasonable demands of efficiency, then this conception guarantees a satisfactory minimum. There may be, on reflection, little reason for trying to do better.” (135)

            

           Now, this is all fair enough, but this brings us into the realm of utilitarian economic theory and policy analysis. To make this point, it must be determined that a large welfare state (which Rawls is attempting to justify) successfully makes the position of the ‘least fortunate’ so much better off that it offsets all of the efficiency losses imposed on everyone else, and that the majority of people agree with this trade-off. Perhaps a truly minimal social safety net like the one I support would qualify, but I really doubt that the programs of a large and intrusive welfare state would.  

            

            Here is the third:

Rawls: “Finally, the third feature holds if we can assume that other conceptions of justice may lead to institutions that the parties would find intolerable. For example, it has sometimes been held that under some conditions the utility principle (in either form) justifies, if not slavery or serfdom, at any rate serious infractions of liberty for the sake of greater social benefits. We need not consider here the truth of this claim. For the moment, this contention is only to illustrate the way in which conceptions of justice may allow for outcomes which the parties may not be able to accept. And having the ready alternative of the two principles of justice which secure a satisfactory minimum, it seems unwise, if not irrational, for them to take a chance that these conditions are not realized.” (135)

            

           Well and good, but if the wraiths are worried about utilitarianism gone wild, why not adopt a libertarian natural law conception of justice, with perhaps a proviso enabling minarchist government if they are so inclined? This would prevent slavery, serfdom, violent assault, robbery, murder, coercive special privileges, paternalistic dictatorship, and a lot of other nasty things, and would result in a great degree of economic efficiency. To argue against this, one would have to maintain that some people would be so afraid of being in a society where they couldn’t be coercively enriched by egalitarian policies, that they would consider this possibility to be absolutely ‘intolerable’ if it occurred. Suffice it to say that Rawls has a lot of justification to do if he wants to make this point. Off-hand comments about ‘utilitarian serfdom’ will not do.  

            

           Finally, when comparing his Difference Principle to utilitarianism, Rawls at last touches on the risk level question:

Rawls: “In fact, reasonable risk aversion may be so great, once the enormous hazards of the decision in the original position are fully appreciated, that the utilitarian weighting may be, for practical purposes, so close to the difference principle as to make the simplicity of the latter decisive in its favor.” (144)

            

           Leaving aside the fact that based on his assumptions, the wraiths don’t have any risk aversion or risk tolerance levels, ‘reasonable’ or otherwise, this contention is not actually correct. Let us assume that a large welfare state (which seems to be what Rawls is trying to justify) results in net benefits for 5% of the population (the least fortunate 5%) but net costs for 95% of the population, as might well be the case in reality, though it is impossible to say for sure. I don’t think that ‘reasonably risk-averse people’ will be unduly concerned with the prospects of the 5%, especially since, if a truly minimal social safety net like the one I envision were implemented rather than a large welfare state, the 5% wouldn’t be at risk of death, malnutrition, life-long dead-end poverty, or other horrible things. In practice though, even this is overstating the case for the welfare state, as not all of the 5% of the net gainers of the large welfare state will be at risk of dying due to poverty, even without any welfare programs whatsoever. Rather, most will just experience a cut in living standards. And of course, in the absence of coercive welfarism, there’s always voluntary charity to alleviate the plight of poor people, which we should never forget about.    

            

            Thus, in fact, the only way that Rawls can maintain that his Difference Principle will be adopted by the wraiths, is if he arbitrarily assumes that they are all unusually risk-averse and fearful. He does not do so, and hence the Difference Principle does not follow from his ‘original position’, even when taken on its own terms.

           

            

           Now, let us, for the sake of argument, forget about the conceptually flawed ‘original position’ and the fact that Rawls’ conclusions do not follow from his premises. Let us assume that the wraiths actually agree on the principles of justice that Rawls argues they would. The vital question remains: why should anyone care? Rawls addresses this question head-on, but provides a rather lame answer:

Rawls: “It is natural to ask why, if this agreement is never actually entered into, we should take any interest in these principles, moral or otherwise. The answer is that the conditions embodied in the description of the original position are ones that we do in fact accept. Or if we do not, then perhaps we can be persuaded to do so by philosophical reflection.” (19)

            

           But I, for one, do not accept them, and I doubt that I could be persuaded to. This is because, in fact, I am not a wraith with no personality and no personal characteristics, but a real-life, thinking human with my own interests. I refuse to work from the premise that I could have been a totally incompetent, religiously fanatical, dumb brute, that doesn`t particularly care about interpersonal freedom but does care greatly about socio-economic equality. I don’t know what my socio-economic ideas would consist of if I was such a person, nor do I particularly care. I will never be such a person. I will always be me, and I will always judge based on my own interests and values, not based on anyone else’s.

            

           Later on in the work, Rawls tries to make the case for his principles in terms of ‘just desert’:

Rawls: “Those who have been favored by nature, whoever they are, may gain from their good fortune only on terms that improve the situation of those who have lost out. The naturally advantaged are not to gain merely because they are more gifted, but only to cover the costs of training and education and for using their endowments in ways that help the less fortunate as well. No one deserves his greater natural capacity nor merits a more favorable starting place in society.” (87)

            

           As one who has been favored by nature, I say: take my advantages from me if you can, but I will not give them up quietly! The only things that could induce me to care about those less fortunate are: 1. Sympathy for them. 2. Risk that I could be in their position at some point in my life. 3. If helping them would make for a more generally efficient social order for myself and others. Because of a combination of these three reasons, I support a truly minimal welfare social safety net, but not much else in the way of ‘welfare’ or ‘egalitarian’ policies. I oppose crony capitalism because it hurts me and poor people for the gain of unsympathetic rich people who don’t necessarily serve my interests. I will not, however, try to vividly imagine myself as an incompetent, criminally-inclined, lazy good-for-nothing born in a broken family, and then make social policy decisions based on this fantasy. Depending on the circumstances, I might have a bit of natural sympathy for less fortunate people who are sympathetic to me, which would influence my actions accordingly, but this is quite different from asking me to virtually put myself in a completely different person’s shoes and head. Asking me to put myself in the head of a dairy cow and to make social policy decisions accordingly, would be only a bit more absurd.  

As for ‘deserved’ or ‘not-deserved’, it really doesn’t matter one iota. Most people would take the results of the ‘natural and social personality influence lotteries’ as given and then see who deserves what in terms of their subsequent actions. I think that this is a reasonable procedure, Rawls would object. But the main point is that it is irrelevant. Society is not an arrangement for giving people what they ‘deserve’, it is an arrangement for making given, real-life, existing humans better off than they would have been without it.

           

           Rawls then tries to argue that his Difference Principle is actually a principle of mutual benefit for all! He explains:

Rawls: “A further point is that the difference principle expresses a conception of reciprocity. It is a principle of mutual benefit. At first sight, however, it may appear unfairly biased towards the least favored…. But if we give any weight to the more fortunate, we are valuing for their own sake the gains to those already more favored by natural and social contingencies. No one had an antecedent claim to be benefited in this way, and so to maximize a weighted mean is, so to speak, to favor the more fortunate twice over. Thus the more advantaged, when they view the matter from a general perspective, recognize that the well-being of each depends on a scheme of social cooperation without which no one could have a satisfactory life; they recognize also that they can expect the willing cooperation of all only if the terms of the scheme are reasonable. So they regard themselves as already compensated, as it were, by the advantages to which no one (including themselves) had a prior claim.” (88)

Firstly, the existence of society in general greatly benefits everyone besides total aesthetics or psychopathic murderers, who can be safely disregarded. The ‘more advantaged’ don’t have to give up anything, besides any violent impulses that they might have, for the benefit of the ‘less advantaged’ in order to enter into society with them. So it’s not as if the ‘less advantaged’ will suddenly withdraw from society if the ‘more advantaged’ don’t concede to giving them ‘public education’ or ‘Social Security’. The benefits to the ‘less advantaged’ of even a society without any redistributive policies are so enormous that it would never be in their interests to give it up.

Secondly, it is not a common characteristic of human psychology to be satisfied with certain benefits already received and to renounce all further ones as excessive. Most people don’t stop striving for improvement in their standards of living, even if they recognize that our standards of living are today about 50 times better than those of people at the beginning of the 19^th century. Rather, they still strive for yet higher standards of living for themselves despite this fact, and I applaud them for doing so. To state that people would be satisfied with being fleeced for the benefit of others because they recognize that they already ‘have more than their fair share of natural endowments’ is an almost ludicrous proposition.

Finally, let us again assume that a large welfare state results in net benefits for 5% of the population (the least fortunate 5%) but net costs for 95% of the population, as might well be the case in reality, though it is impossible to say for sure. Let us unrealistically assume, for the sake of argument, that the 5% will renounce all social ties with the rest if a large welfare state is not implemented. An intelligent response by the 95% could be: “Ok, off you go then, you weren’t much benefit to us anyway, and would be a liability if we instituted a large welfare state for your benefit. Good luck starting a ‘welfare state’ society on your own. Oh, and if you try to use violence on us after you have left our society, we will use our superior numbers to overpower and crush you.”   I’m not sure what Rawls could say to convince the 95% to act otherwise. If he cannot, then the ‘least advantaged’ actually have very minimal bargaining power in reality, and consequently there is no reason for the 95% to care about the Difference Principle.

With this, I think that Rawls’ theory of justice is sufficiently undermined, and may be safely discarded. The rest of the book deals with implications and elaborations of the theory which we need not concern ourselves with, given that the base has already been shown to be faulty.

I think we can safely say that opponents of egalitarianism do not have to fear Rawls’ theory and the deliberations of his ‘original position’ wraiths. Egalitarianism remains either a subjective preference or a mistaken view of how best to achieve economic efficiency. Rawls’ arguments are insufficient to convince me otherwise.

             

           

           

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[1] John Rawls, A Theory Of Justice, revised edition (Cambridge, Mass: Harvard University Press, 1999).

Critique of Murray Rothbard's "The Ethics of Liberty"

            Murray Rothbard was a great economist, historian, political thinker, political activist, and thinker/writer in general. Reading Rothbard’s work fundamentally changed my perspective on the world, almost as much as reading Ludwig von Mises’ work did. Despite this, I think that one aspect of his intellectual legacy was negative rather than positive. This was his position that an objective, universalistic, rationally-determinable ‘natural law’, binding on all of mankind, existed and should provide the philosophical basis for social thought (instead of utilitarianism).

           

            In order to properly criticize this position, I wrote this passage-based critique of The Ethics Of Liberty[1], the book in which Rothbard laid out his position most systematically. I have focused my attention on the foundational chapters, as well as on the chapter in which Rothbard criticizes Ludwig von Mises’ utilitarianism.    

Chapter 2: Natural Law As “Science”

Rothbard: “Professor Hesselberg has shown, however, that Hume, in the course of his own discussions, was compelled to reintroduce a natural-law conception into his social philosophy and particularly into his theory of justice, thus illustrating the gibe of Etienne Gilson: “The natural law always buries its undertakers.” For Hume, in Hesselberg's words, “recognized and accepted that the social . . . order is an indispensable prerequisite to man's well-being and happiness: and that this is a statement of fact.” The social order, therefore, must be maintained by man.”

Brian: No, the social order is only an indispensable prerequisite to a man’s well-being and happiness if that man values everything that the social order can get for him, including vastly increased material wealth, the opportunity to specialize in a specific profession, and companionship, more than what he must give up in order to secure those benefits (ie. he must refrain from arbitrarily killing, assaulting, or robbing others). We can say that if the man wants the benefits, he must maintain the social order. But without the if statement, there is really no must about it.

Chapter 3: Natural Law Versus Positive Law

Rothbard: “At this point, we need only stress that the very existence of a natural law discoverable by reason is a potentially powerful threat to the status quo and a standing reproach to the reign of blindly traditional custom or the arbitrary will of the State apparatus.”

Brian: Replace “a natural law” by “a utilitarian science of human society” and the rest of the sentence still holds. Natural law is not at all necessary to criticize State orders or traditions, utilitarianism can serve this function equally well.

Chapter 6: A Crusoe Social Philosophy

Rothbard:  “Crusoe, we have said, learns about his ends and about how to attain them. But what specifically does his learning faculty, his reason, do in the process of obtaining such knowledge? It learns about the way things work in the world, i.e., the natures of the various specific entities and classes of entities that the man finds in existence; in short, he learns the natural laws of the way things behave in the world. He learns that an arrow shot from a bow can bring down a deer, and that a net can catch an abundance of fish. Further, he learns about his own nature, about the sort of events and actions that will make him happy or unhappy; in short, he learns about the ends he needs to achieve and those he should seek to avoid.”

Brian: We have two very different kinds of learning here. The first is learning “the natural laws of the way things behave in the world”, in Rothbard’s words. Inanimate objects such as nets and bows have constant properties that can be discovered by man’s reason. Even animals, because mainly guided by instincts, have relatively constant properties that can be discovered by man’s reason. The second is learning “about his own nature, about the sort of events and actions that will make him happy or unhappy”, in Rothbard’s words. This Crusoe and anyone else can surely do, but the all-important question is: once he discovers his own nature, has he also discovered something about man’s nature? I submit that he has not, because men are almost infinitely variable and differ so dramatically in tastes and conduct. What Crusoe learns about himself will not necessarily be applicable to other men, in contrast to what Crusoe learns about stones which will generally be applicable to other, similar stones as well.

Rothbard: “The individual man, in introspecting the fact of his own consciousness, also discovers the primordial natural fact of his freedom: his freedom to choose, his freedom to use or not use his reason about any given subject. In short, the natural fact of his “free will.” He also discovers the natural fact of his mind’s command over his body and its actions: that is, of his natural ownership over his self.”

Brian: Yes, these two things are natural facts, an individual man’s brain is in control of his actions and of his body. While true, these facts do not serve as the foundation for any kind of normative natural law theory, just as the fact that most men have ten fingers and ten toes at birth does not.  

Rothbard: “Suppose now that Crusoe is confronted with a choice of either picking berries or picking some mushrooms for food, and he decides upon the pleasantly tasting mushrooms, when suddenly a previously shipwrecked inhabitant, coming upon Crusoe, shouts: “Don’t do that! Those mushrooms are poisonous.” There is no mystery in Crusoe’s subsequent shift to berries. What has happened here? Both men have operated on an assumption so strong that it remained tacit, an assumption that poison is bad, bad for the health and even for the survival of the human organism—in short, bad for the continuation and the quality of a man’s life. In this implicit agreement on the value of life and health for the person, and on the evils of pain and death, the two men have clearly arrived at the basis of an ethic, grounded on reality and on the natural laws of the human organism.”

Brian: Two men can certainly agree on a lot of things, from the great value of life, as they do in this example, to the judgement that Mozart is the greatest musical composer of all time. But even if two men, or even two billion men, agree on something, it does not necessarily mean that all men who have ever lived or ever will live will so agree. And yet this is what the concept of a universal, natural law ethic implies. The existence of even one suicidal person in the world breaks the consensus that life is preferable to death. The consensus that life is preferable to death will remain extremely broad, but one does not need an “ethic” to pursue this preference. What’s wrong with just saying that most people will prefer life over death, and hence most people will try to adopt means that are suitable for attaining the end of preserving their lives? Why bring “ethics” into the discussion?

Rothbard: “If Crusoe had eaten the mushrooms without learning of their poisonous effects, then his decision would have been incorrect—a possibly tragic error based on the fact that man is scarcely automatically determined to make correct decisions at all times. Hence, his lack of omniscience and his liability to error. If Crusoe, on the other hand, had known of the poison and eaten the mushrooms anyway—perhaps for “kicks” or from a very high time preference—then his decision would have been objectively immoral, an act deliberately set against his life and health. It may well be asked why life should be an objective ultimate value, why man should opt for life (in duration and quality). In reply, we may note that a proposition rises to the status of an axiom when he who denies it may be shown to be using it in the very course of the supposed refutation. Now, any person participating in any sort of discussion, including one on values, is, by virtue of so participating, alive and affirming life. For if he were really opposed to life, he would have no business in such a discussion, indeed he would have no business continuing to be alive. Hence, the supposed opponent of life is really affirming it in the very process of his discussion, and hence the preservation and furtherance of one’s life takes on the stature of an incontestable axiom.”

Brian: If we assume that the Crusoe in the first scenario is not suicidal, then I have no problem calling his decision ‘incorrect’. He valued the end of preserving his life, but unwittingly adopted means that were not conducive to this end. He would have been better off if he were better informed. In the second scenario though, I cannot acquiesce in calling Crusoe’s decision ‘immoral’. Crusoe knew what the results of his action would be and decided to carry out the action, thus demonstrating that he preferred carrying out the action over not carrying out the action.

I am unimpressed by the so-called ‘axiom’ that Rothbard argues in favour of. If in the process of enjoying some vanilla ice cream, I stated that not everyone enjoys vanilla ice cream, I would not be contradicting myself. I am only demonstrating that I enjoy vanilla ice cream with my actions, not that everyone enjoys vanilla ice cream. It is the same thing with the preference for life over death. My continued existence does demonstrate that, at this moment, I prefer life to death. It by no means demonstrates that all men who have ever lived or ever will live always preferred/will prefer life to death at all times. I can, without contradiction, demonstrate that I value life over death with my actions, while at the same time arguing that other people might value death over life. One doesn’t have to be an “opponent of life” to argue that the preference for life over death is not a universally held preference among all mankind.

Finally, Rothbard says that life in terms of “duration and quality” is an “objective ultimate value”. But what if a man must choose between a longer duration of life and a greater quality of life, which most people will be in a position to do at least once in their lives? I will leave it to the believers in ‘natural law’ to resolve this paradox without reference to the subjective valuations of individuals. I believe that they will find it to be an impossible task.

Chapter 7: Interpersonal Relations: Voluntary Exchange

Rothbard: “A vital point: if we are trying to set up an ethic for man (in our case, the subset of ethics dealing with violence), then to be a valid ethic the theory must hold true for all men, whatever their location in time or place. This is one of the notable attributes of natural law—its applicability to all men, regardless of time or place. Thus, ethical natural law takes its place alongside physical or “scientific” natural laws. But the society of liberty is the only society that can apply the same basic rule to every man, regardless of time or place. Here is one of the ways in which reason can select one theory of natural law over a rival theory—just as reason can choose between many economic or other competing theories. Thus, if someone claims that the Hohenzollern or Bourbon families have the “natural right” to rule everyone else, this kind of doctrine is easily refutable by simply pointing to the fact that there is here no uniform ethic for every person: one’s rank in the ethical order being dependent on the accident of being, or not being, a Hohenzollern. Similarly, if someone says that every man has a “natural right” to three square meals a day, it is glaringly obvious that this is a fallacious natural law or natural rights theory; for there are innumerable times and places where it is physically impossible to provide three square meals for all, or even for the majority, of the population. Hence this cannot be set forth as some kind of “natural right.” On the other hand, consider the universal status of the ethic of liberty, and of the natural right of person and property that obtains under such an ethic. For every person, at any time or place, can be covered by the basic rules: ownership of one’s own self, ownership of the previously unused resources which one has occupied and transformed; and ownership of all titles derived from that basic ownership—either through voluntary exchanges or voluntary gifts. These rules—which we might call the “rules of natural ownership”—can clearly be applied, and such ownership defended, regardless of the time or place, and regardless of the economic attainments of the society. It is impossible for any other social system to qualify as universal natural law; for if there is any coercive rule by one person or group over another (and all rule partakes of such hegemony), then it is impossible to apply the same rule for all; only a rulerless, purely libertarian world can fulfill the qualifications of natural rights and natural law, or, more important, can fulfill the conditions of a universal ethic for all mankind.”

Brian: I agree that if we desire to elaborate and set up a universal natural law ethic for all of mankind as the basic law of our society, than a libertarian one is the only one that really qualifies. But this is actually a big if: what if a non-universal set of societal rules actually turns out to be better for the general well-being of mankind than the universal set? Why is universality of the rules necessarily the overriding consideration? Rothbard does not really justify his position, besides by saying that physical laws are universal and thus natural societal laws should be too. This is not really an argument at all though; it is just a striving to make unlike things (physical laws and ‘ethical natural laws’) more similar.

Chapter 8: Interpersonal Relations: Ownership and Aggression

Rothbard: “Let us set aside for a moment the corollary but more complex case of tangible property, and concentrate on the question of a man’s ownership rights to his own body. Here there are two alternatives: either we may lay down a rule that each man should be permitted (i.e., have the right to) the full ownership of his own body, or we may rule that he may not have such complete ownership. If he does, then we have the libertarian natural law for a free society as treated above. But if he does not, if each man is not entitled to full and 100 percent self-ownership, then what does this imply? It implies either one of two conditions: (1) the “communist” one of Universal and Equal Other-ownership, or (2) Partial Ownership of One Group by Another—a system of rule by one class over another. These are the only logical alternatives to a state of 100 percent self-ownership for all.

Let us consider alternative (2); here, one person or group of persons, G, are entitled to own not only themselves but also the remainder of society, R. But, apart from many other problems and difficulties with this kind of system, we cannot here have a universal or natural-law ethic for the human race. We can only have a partial and arbitrary ethic, similar to the view that Hohenzollerns are by nature entitled to rule over non-Hohenzollerns. Indeed, the ethic which states that Class G is entitled to rule over Class R implies that the latter, R, are subhuman beings who do not have a right to participate as full humans in the rights of self-ownership enjoyed by G—but this of course violates the initial assumption that we are carving out an ethic for human beings as such.

What then of alternative (I)? This is the view that, considering individuals A, B, C . . ., no man is entitled to 100 percent ownership of his own person. Instead, an equal part of the ownership of A’s body should be vested in B, C . . ., and the same should hold true for each of the others. This view, at least, does have the merit of being a universal rule, applying to every person in the society, but it suffers from numerous other difficulties.

In the first place, in practice, if there are more than a very few people in the society, this alternative must break down and reduce to Alternative (2), partial rule by some over others. For it is physically impossible for everyone to keep continual tabs on everyone else, and thereby to exercise his equal share of partial ownership over every other man. In practice, then, this concept of universal and equal other-ownership is Utopian and impossible, and supervision and therefore ownership of others necessarily becomes a specialized activity of a ruling class. Hence, no society which does not have full self-ownership for everyone can enjoy a universal ethic. For this reason alone, 100percent self-ownership for every man is the only viable political ethic for mankind.

But suppose for the sake of argument that this Utopia could be sustained. What then? In the first place, it is surely absurd to hold that no man is entitled to own himself, and yet to hold that each of these very men is entitled to own a part of all other men! But more than that, would our Utopia be desirable? Can we picture a world in which no man is free to take any action whatsoever without prior approval by everyone else in society? Clearly no man would be able to do anything, and the human race would quickly perish. But if a world of zero or near-zero self-ownership spells death for the human race, then any steps in that direction also contravene the law of what is best for man and his life on earth. And, as we saw above, any ethic where one group is given full ownership of another violates the most elemental rule for any ethic: that it apply to every man. No partial ethics are any better, though they may seem superficially more plausible, than the theory of all- power-to-the-Hohenzollerns.

In contrast, the society of absolute self-ownership for all rests on the primordial fact of natural self-ownership by every man, and on the fact that each man may only live and prosper as he exercises his natural freedom of choice, adopts values, learns how to achieve them, etc. By virtue of being a man, he must use his mind to adopt ends and means; if someone aggresses against him to change his freely-selected course, this violates his nature; it violates the way he must function. In short, an aggressor interposes violence to thwart the natural course of a man’s freely adopted ideas and values, and to thwart his actions based upon such values.”

Brian: This section is actually one of the most important sections of the book, and with it, I think, the general argument either succeeds or fails. As we discussed above, it assumes that we have to be looking for a universal ethic that applies equally to all of mankind. It is through this assumption that Rothbard disposes of any kind of elitist arrangement. As I explained above, if we do not particularly care about this assumption holding though, the argument is to no effect.

Rothbard then tries to dispose of all egalitarian arrangements by pointing out the gross impracticality of “Universal and Equal Other-ownership”. He writes: “But if a world of zero or near-zero self-ownership spells death for the human race, then any steps in that direction also contravene the law of what is best for man and his life on earth.” Here, Rothbard relies on another crucial assumption underlying his thinking, an assumption that I think is untenable. He assumes that we must ultimately settle on an absolutist ‘ethic’ of some kind. If one absolutist ethic can be shown to be generally good (absolute freedom and self-ownership), while another absolutist ethic can be shown to be horribly bad (complete egalitarianism), Rothbard assumes that anything in between the absolutist ethic of freedom and the absolutist ethic of egalitarianism will, because it is closer to the absolutist ethic of egalitarianism, necessarily be worse than just following the absolutist ethic of freedom.

But isn’t it at least conceivable that a non-absolutist arrangement could work better than both absolutist positions? When I, and other libertarian writers on economic and political affairs (including Rothbard himself), seek to argue against egalitarian policies, we don’t just state that since absolute egalitarianism is clearly ridiculous, any policy that contains any egalitarian elements must also be ridiculous. I suspect that we would be justly laughed at if we constantly employed this stratagem. Rather, we analyze and evaluate each social issue systematically, and generally argue that in most cases, freedom will work better than coercion (in either its egalitarian or elitist forms).

It is true that other libertarians and I also argue that since freedom works better as a general societal rule than elitist or egalitarian coercion, freedom should be allowed to operate even in isolated cases when coercion might produce a better result. Otherwise, a bad precedent might be set and the spreading use of coercion due to the precedent might end up causing more pain in general and in the long-run than it produced benefit in the isolated case. But while the costs of setting bad precedents and of compromising good general rules are significant and definitely worth considering carefully, it would be extravagant to say that these costs always override any benefits that might be obtained through the bad precedent-setting actions. There are no shortcuts to intelligent social policy analysis, and I think that Rothbard tries adopting one here.  

Rothbard: “Now the man who seizes another’s property is living in basic contradiction to his own nature as a man. For we have seen that man can only live and prosper by his own production and exchange of products. The aggressor, on the other hand, is not a producer at all but a predator; he lives parasitically off the labor and product of others. Hence, instead of living in accordance with the nature of man, the aggressor is a parasite who feeds unilaterally by exploiting the labor and energy of other men. Here is clearly a complete violation of any kind of universal ethic, for man clearly cannot live as a parasite; parasites must have non-parasites, producers, to feed upon. The parasite not only fails to add to the social total of goods and services, he depends completely on the production of the host body. And yet, any increase in coercive parasitism decreases ipso facto the quantity and the output of the producers, until finally, if the producers die out, the parasites will quickly follow suit.”

Brian: Again, the assumption that we need to find a universal ethic at all costs, which I think is not a justified assumption. Also, the argument assumes that every man has the same basic ‘nature’ as each another. What if some men, naturally, greatly enjoy being predators and despise engaging in production of any kind (Vikings for instance)? The fact that if everyone in the world became a predator the human race would die out is a good fact for would-be predators to be cognisant of, but there are means that predators can employ to avoid this eventuality. The most common technique is for predators to establish a monopoly of coercive force (or of predation) in a particular geographical area. They then use a combination of their superior force and of intellectual propaganda techniques in order to maintain their coercive, monopolistic rule. They are predators, but they use a great deal of their power to ensure that others don’t become predators in their geographical regions.

The result of the widespread use of this technique covered the earth in monopolistic ‘States’ long before the theory that governments should only exist by consent of the governed and should serve the interests of the governed became popular. This monopolistic State-system, while less than ideal from a social policy stand-point, certainly does not represent Rothbard’s nightmare scenario where everyone gives up production and becomes a predator. In this case, lucky predators can enrich themselves through their favored means as long as the prey doesn’t put up too much of a fuss. If a philosopher were to tell these predators that what they are doing does not accord with their natures as human beings, it is unlikely that they would be too bothered. Only the prey resisting the predators defensively in an organized fashion would ultimately serve to check their anti-social actions.  

Chapter 26: Utilitarian Free-Market Economics: C. Ludwig von Mises and “Value-Free” Laissez-Faire

Mises: “An economist investigates whether a measure a can bring about the result p for the attainment of which it is recommended, and finds that a does not result in p but in g, an effect which even the supporters of the measure a consider undesirable. If the economist states the outcome of his investigation by saying that a is a bad measure, he does not pronounce a judgment of value. He merely says that from the point of view of those aiming at the goal p, the measure a is inappropriate.”

Rothbard: “Now this is surely an ingenious attempt to allow pronouncements of “good” or “bad” by the economist without making a value judgment; for the economist is supposed to be only a praxeologist, a technician, pointing out to his readers or listeners that they will all consider a policy “bad” once he reveals its full consequences. But ingenious as it is, the attempt completely fails. For how does Mises know what the advocates of the particular policy consider desirable? How does he know what their value-scales are now or what they will be when the consequences of the measure appear? One of the great contributions of praxeologic economics is that the economist realizes that he doesn’t know what anyone’s value scales are except as those value preferences are demonstrated by a person’s concrete action.”

Brian: I think that this criticism of Mises is unfair. Mises says that the economist “merely says that from the point of view of those aiming at the goal p, the measure a is inappropriate”. Mises doesn’t say that he definitely knows that all of humanity will necessarily be aiming at the goal p, he just says that if they are, they will consider the policy a bad one. Mises makes it clear elsewhere in his writings that the findings of free-market economics are mostly useless from the point of view of total aesthetics or psychopathic murderers who don’t care about material well-being. The fact is though that the vast majority of humanity are neither of these things, and hence in most cases the evaluations of policies as ‘good’ or ‘bad’ by the free-market economist, if the listeners believe him when he describes the consequences of the policy, will generally be shared, at least in general terms, by the vast majority of the listeners.

Rothbard:  “Moreover, there is another fundamental reason for advocates of “inappropriate” policies to refuse to change their minds even after hearing and acknowledging the praxeological (economic) chain of consequences. For praxeology may indeed show that all types of government policies will have consequences that most people, at least, will tend to abhor; however, (and this is a vital qualification) most of these consequences take time, some a great deal of time. No economist has done more than Ludwig von Mises to elucidate the universality of time-preference in human affairs—the praxeologic law that everyone prefers to attain a given satisfaction sooner than later. And certainly, Mises, as a value-free scientist, could never presume to criticize anyone’s rate of time preference, to say that A’s was “too high” or B’s “too low.” But, in that case, what about the high-time-preference people in society who may retort to the praxeologist: “perhaps this high tax and subsidy policy will lead to a decline of capital; perhaps even the price control will lead to shortages, but I don’t care. Having a high time-preference, I value more highly the short-run subsidies, or the short-run enjoyment of buying the current good at cheaper prices, than the prospect of suffering the future consequences.” And Mises, as a value-free scientist and opponent of any concept of objective ethics, cannot call them wrong. There is no way that he can assert the superiority of the long-run over the short-run without overriding the values of the high time-preference people; and this cannot be cogently done without abandoning his own subjectivist ethics.”

Brian: Yes, the findings of free-market economics will be more important to people with lower time-preferences than to people with higher time-preferences, granted.

Mises: “Liberalism [i.e., laissez-faire liberalism] is a political doctrine. . . . As a political doctrine liberalism (in contrast to economic science) is not neutral with regard to values and ultimate ends sought by action. It assumes that all men or at least the majority of people are intent upon attaining certain goals. It gives them information about the means suitable to the realization of their plans. The champions of liberal doctrines are fully aware of the fact that their teachings are valid only for people who are committed to their valuational principles. While praxeology, and therefore economics too, uses the terms happiness and removal of uneasiness in a purely formal sense, liberalism attaches to them a concrete meaning. It presupposes that people prefer life to death, health to sickness . . . abundance to poverty. It teaches men how to act in accordance with these valuations.”

Rothbard: “In this second variant, Mises has successfully escaped the self-contradiction of being a value-free praxeologist advocating laissez faire. Granting in this variant that the economist may not make such advocacy, he takes his stand as a “citizen” willing to make value judgments. But he is not willing to simply assert an ad hoc value judgment; presumably he feels that a valuing intellectual must present some sort of ethical system to justify such value judgments. But, as a utilitarian, Mises’s system is a curiously bloodless one; even as a valuing laissez-faire liberal, he is only willing to make the one value judgment that he joins the majority of the people in favoring their common peace, prosperity, and abundance. In this way as an opponent of objective ethics, and uncomfortable as he must be with making any value judgments even as a citizen, he makes the minimal possible degree of such judgments. True to his utilitarian position, his value judgment is the desirability of fulfilling the subjectively desired goals of the bulk of the populace.

A few points in critique of this position may here be made. In the first place, while praxeology can indeed demonstrate that laissez faire will lead to harmony, prosperity, and abundance, whereas government intervention leads to conflict and impoverishment, and while it is probably true that most people value the former highly, it is not true that these are their only goals or values. The great analyst of ranked value scales and diminishing marginal utility should have been more aware of such competing values and goals. For example, many people, whether through envy or a misplaced theory of justice, may prefer far more equality of income than will be attained on the free market. Many people, pace the aforementioned intellectuals, may want less abundance in order to whittle down our allegedly “excessive” affluence. Others, as we have mentioned above, may prefer to loot the capital of the rich or the businessman in the short-run, while acknowledging but dismissing the long-run ill effects, because they have a high time-preference. Probably very few of these people will want to push statist measures to the point of total impoverishment and destruction—although this may well happen. But a majority coalition of the above might well opt for some reduction in wealth and prosperity on behalf of these other values. They may well decide that it is worth sacrificing a modicum of wealth and efficient production because of the high opportunity cost of not being able to enjoy an alleviation of envy, or a lust for power or submission to power, or, for example, the thrill of “national unity” which they might enjoy from a (short-lived) economic crisis.  

What can Mises reply to a majority of the public who have indeed considered all the praxeological consequences, and still prefer a modicum–or, for that matter, even a drastic amount—of statism in order to achieve some of their competing goals? As a utilitarian, he cannot quarrel with the ethical nature of their chosen goals, for, as a utilitarian, he must confine himself to the one value judgment that he favors the majority achieving their chosen goals. The only reply that Mises can make within his own framework is to point out that government intervention has a cumulative effect, that eventually the economy must move either toward the free market or toward full socialism, which praxeology shows will bring chaos and drastic impoverishment, at least to an industrial society. But this, too, is not a fully satisfactory answer. While many or most programs of statist intervention—especially price controls—are indeed cumulative, others are not. Furthermore, the cumulative impact takes such a long time that the time-preferences of the majority might well lead them, in full acknowledgment of the consequences, to ignore the effect. And then what?”

Brian: I think that Rothbard misunderstands Mises’ position here. Rothbard says that: “True to his (Mises’) utilitarian position, his value judgment is the desirability of fulfilling the subjectively desired goals of the bulk of the populace.” But if you look back at what Mises actually wrote, he said: “While praxeology, and therefore economics too, uses the terms happiness and removal of uneasiness in a purely formal sense, liberalism attaches to them a concrete meaning. It presupposes that people prefer life to death, health to sickness . . . abundance to poverty. It teaches men how to act in accordance with these valuations.” Preferring life to death, health to sickness, and abundance to poverty are real value judgements that liberalism assumes in its adherents. Mises clearly recognizes that if someone prefers poverty to abundance or sickness to health, (free-market) liberalism will not appeal to him.

The appealing thing about liberalism is that the free-market which it enables can cater to a wide array of different tastes. The only thing which market participants really have to agree on is to prefer abundance to poverty and to prefer the extra abundance that society enables more than the ability to violently assault and rob people which they must give up. Liberalism does not require unanimity from its adherents in terms of religion, lifestyle choices, ice cream flavour preferences, or a wide array of other things, and this is one of its great virtues as a political ideology.

            

           It is true, as Rothbard points out, that even if people agree on their fundamental valuations, their more detailed subjective valuations could in some cases lead them to want to deviate from absolutist libertarianism in certain cases. Firstly though, Mises wasn’t in fact an absolutist libertarian; he was a minarchist (supporter of strictly limited government) who might even have supported a limited scope for government welfare programs and public education, though his writings are unclear on these points. Thus, the fact that his version of liberalism wouldn’t necessarily lead everyone to advocate absolutist libertarianism wouldn’t bother him too much.

            

           Secondly, and more fundamentally, Rothbard fails to recognize that there are two complementary varieties of utilitarianism: egoistic utilitarianism (what the thinker believes will work best for him personally) and universalistic utilitarianism (what the thinker believes will work best for mankind as a whole). When engaged in intellectual discourse about social arrangements, utilitarians typically speak in terms of universalistic utilitarianism in order to persuade and to appeal to as broad an audience as possible. At the end of the day though, people will decide whether to support a particular social policy or political ideology based on their particular, egoistic utilitarian position. Mises points out how broadly beneficial his variant of liberalism is in order to persuade others to support it, but ultimately his advocacy of this position is based on his own egoistic utilitarian calculations. Mises, personally, thinks that his variant of liberalism is the best general way for organizing society, from his own subjective, egoistic point of view. People who value egalitarianism more than him or value material affluence less than him may support illiberal social policies, even if they are fully aware of their consequences, as Rothbard points out. But then to Mises and to those who think like him, these people are just enemies, enemies to be hopefully overruled (and overpowered if necessary) by the majority of citizens who agree with Mises.

            

           Now, Rothbard could try to respond by saying that this isn’t good enough, that advocacy of social policies shouldn’t just be based on subjective, egoistic whim. But it isn’t a question of good enough or not: that’s just the way it is. People will ultimately see the world through their subjective, egoistic points of view and will act accordingly. There is no objective natural law which can mysteriously induce people to conform to one another in terms of their fundamental valuations, however much Rothbard may wish there to be. I think that I have sufficiently demonstrated in this critique how Rothbard’s endeavour to formulate such an objective natural law fails.

       

             

   

 

    

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[1] Murray Rothbard, The Ethics Of Liberty (New York: New York University Press, 1998). 

Book Release: Thinking Like A Libertarian: Selected Writings Of A Utilitarian-Libertarian

I just wanted to let my readers know that I have revised and organized some of my best posts and used them to compile a collection in book format. 

If you have a Kindle E-Reader, you can get the book here: http://www.amazon.com/dp/B00HGZEFVW

If not, and you would like a free copy of the book, please leave a comment in the 'Comments' section of this post, and I will send you a copy of the book in pdf or epub format, whichever you request.

Thanks, and Happy Holidays!

Brian.