Freedom, Anarchy and the Law, by Richard Taylor, Englewood Cliffs: Prentice-Hall, 1973, 144 pp., $2.95
Libertarians have often said, and by and large it seems to be true, that professors of philosophy in the universities of both the United States and the rest of the "civilized" world—not to mention professors of sociology, economics and political science—are either extreme statists or moderate statists. Most of them do not understand the free market and they have no respect for it or patience with it.
Professor Richard Taylor of the University of Rochester, New York, is a conspicuous exception to this generalization. He is extremely skeptical of the institution of the state. "Government," he says (p. 94) "is the coercion through threat and force of the many by the few." And among the various forms of government, he has as many cavils about democracy as about any other, especially when its real workings are glossed over with the trite formula "We're really ruling ourselves." Even if the rulers or rules can be shown to be good, wise and farseeing, this gives them no claim to rule others: "The declaration, 'I am a wise and good man,' might be followed by…'Therefore, I am entitled to command you and you are obligated to obey,' but the relationship of the two declarations is one of mere sequence. The word 'therefore,' irrelevantly appearing between them, is purely decorative and expresses no rational connection at all." (p. 103.)
To give the reader some idea of the intellectual tone of this book, as well as its inimitable style, I am going to quote one choice passage in full. Taylor imagines, in a little fable he constructs, a society of human beings living at peace with one another, until in the course of time,
…they begin to find men encamped here and there in what they had thought of as their homeland, men whose numbers greatly increase with time, until it becomes almost impossible to venture out without encountering them. They detect in them a patronizing attitude toward themselves and find that these men are all accompanied by, or can quickly summon, armed servants, ready at an instant to do their bidding. These servants keep a close eye on things, noting the comings and goings of the people and speculating on their purposes, from time to time peering into their windows to see what is going on there, noting down all their impressions, and regularly sending these along to someone they deferentially refer to as The Man. They also come around occasionally to help themselves to a certain fraction of the contents of everyone's pockets, according to a formula provided by The Man. Eventually it is discovered that high fences have gone up around the entire periphery of the place, intended, the people learn, to keep everyone inside. In case anyone should want to leave, to go through this high fence, he must first seek permission from The Man. Such permission, one is assured, will probably not be withheld, provided it is first established that the applicant has not violated any of a long and complex list of rules. These rules of course emanate from The Man—but not in any arbitrary or despotic way. Not at all. The people are themselves, they learn, the authors of them, at least for all practical purposes. Indeed, the Man and his servants make and enforce all these rules only with the prior consent of the people who must obey them. This is ensured in the most obvious and foolproof way imaginable, by their being given the opportunity every few years of writing The Man a letter—or at least, those who have obeyed all the rules are allowed to do this; the others are not. The letter is very succinct and to the point; so brief, in fact, that it contains only the single word "yes" or "no," which is meant to express how its author feels about The Man and his latest rules. In time this right of sending the letter, at quadrennial intervals, comes to be represented as the most precious blessing anyone can possess, far exceeding in its importance any interest he may have in anything else. It matters little what else one is allowed or forbidden to do as long as he is allowed to write this short letter every few years; for without this, he has no freedoms at all, whereas with this one, he has them all. At least, so everyone is told. No one actually looks at these letters, of course, except to pile them into two stacks and see which is higher; but they do serve the overwhelmingly important purpose of ensuring that the people who write them are free men, governed by their own consent, and of demonstrating that the often frivolous and sometimes galling rules enforced at every turn at the point of a gun do not really in any way delimit anyone's freedom at all. On the contrary, they guarantee for everyone a higher order of freedom. Nor are the rules really concocted by The Man, notwithstanding appearances, but by the people themselves, for that is what they were really doing, the last time they sent him their terse and friendly letters.
About half of the rules make sense. People are not supposed to go around hitting each other, for instance, nor taking each other's money without asking. The Man can take their money without asking, to be sure; in fact, once each year he sends agents around to reach into the people' pockets and take a fixed proportion of what they find there. If the agents meet with resistance, they end up taking whatever they want. But this is all right, since the people in effect told them they could do this by writing "yes" in their last letter. Or, in the case of those who did not, then their neighbors did this for them. In any case, someone said "yes," which can accordingly be taken as the expressing of each man's will.
So about half of the rules have some sense to them. The rest, however, are pulled out of a hat. People propose rules—any rules, it doesn't matter what they are—and these are all dropped into a hat and from time to time randomly drawn out. One of them is to the effect that no one may drink goat's milk except at certain hours and in certain precisely defined areas, and at exorbitant cost, most of the cost of it being a hidden tax that goes to The Man. Many people have an inordinate fondness for goat's milk, but some who tried it did not like it; so they put in the hat the rule that no one should ever have it at all, and that rule somehow got drawn from the hat. For awhile it was vigorously enforced, until modified by The Man in response to public clamor on the one hand and his desire for more revenue on the other. Another such rule, not so old and hence still uncompromisingly enforced, is that one may never drink tea, even at home, nor even possess it, even in molecular quantities. This rule was originally one of those drawn from the hat, of course, but it came to be represented as expressing the most basic of all those virtues that are traceable to the founding fathers and, some say, to God. Thus, in order to avoid public disgrace, a person has to sneak into a remote cave and there, in the darkness and isolation, proceed to brew it; if he is discovered, he is stripped, for the time being and perhaps for life, of the most basic human right to send a quadrennial letter to The Man, is made to turn over a considerable portion of his possessions, or else has obloquy heaped upon him and is locked up for years in one of the many zoos built for this purpose. Far worse than this, however, is selling tea—an act that is made the more hazardous by the fact that The Man pays his servants to be purchasers of it in order to trap people into selling it so he can send them off to the zoos.
There are many rules like that, drawn from the hat. In time some of them become obsolescent and are left unenforced, or are enforced only sporadically at the whim of The Man's armed servants; but others are always drawn from the hat to replace them. One of them, for example, requires that no adult male share his life with an adult female not related by blood without first obtaining The Man's permission and submitting to certain ritualistic procedures. Having once got this permission, gone through with the required forms, and begun such an arrangement, he may not then dissolve it without again soliciting permission from The Man, and this permission is given only with reluctance, if at all. One may not take two or more such persons under his roof under any circumstances whatever, at least not at the same time, The Man insisting on zealous enforcement of this rule always, having declared it to be essential to something or other, [pp. 15-17.]
There—no libertarian could have said it better. But Professor Taylor does believe there should be a government, and that it should have certain limited powers. One of his main tasks is to state and defend a view of what those powers should be. He quotes John Stuart Mill's famous passage in ON LIBERTY that "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." (and other passages by Mill to the same effect), and says that Mill provides no criterion at all, since he provides no clear definition of what constitutes "harm" (p. 57). If we construe the term "harm" narrowly, limiting it to bodily injury, then the principle would not protect us against theft and fraud; such a definition would expand individual liberty far beyond any reasonable limit and leaves us free to do anything we want to others short of bodily injuring them. But if we adopt a wider criterion of harm, we end up with no individual freedom whatever, for many people may feel more harmed and actually be more harmed, though not necessarily in a physical way, by having their cherished beliefs questioned, or by the actions of those whom they don't consider patriotic, or who have long hair or get drunk or dress in a way they don't like, than by robbery or trespass. On this criterion, virtually all actions would be prohibited, because they would "harm" someone or other.
J.S. MILL'S ERROR
Mill, as if aware of this, amended his principle to read that the liberty of the individual encompasses "all that portion of a person's life and conduct which affects only himself"—but not that which adversely affects others. But this reformulation, as Taylor sees rightly, is a catastrophe:
One is free to be a drunk provided this does not adversely affect others. What others? And how adversely? Mill specifically mentions one's children and one's creditors—but having mentioned these, at what point shall we stop? Shall we include representatives of the Christian Temperance League? If not, why not? Indeed, the whole principle virtually explodes in its author's face when he finds that it permits judicial restraint of those whose styles of conduct are "offenses against decency" and "violations of good manners," and draws the appropriate inference…that such behavior should indeed be suppressed! Clearly this is no principle of liberty at all, but an instrument for grinding men down to conform to someone's conception of "decency" and "good manners." [pp. 59-60.]
What criterion, then, can we find acceptable, if not the first one which is too permissive and the second one which is too restrictive? At this point the libertarian claims that he has a solution; but, so far as can be discerned, Taylor has never read any of the literature of libertarianism, and knows nothing of its basic philosophy. His attempt to generate a criterion of his own, then, is all the more interesting.
To solve the Problem Taylor draws a distinction between "natural injury" and "conventional injury." A natural injury is anything that evokes deep resentment on the part of the injured party, "by virtue of his very nature as a man." A conventional injury is something one resents not by virtue of his humanity but because of what he has learned or how he has been conditioned by his culture (p. 63). The eating of pork and the desecration of religious or patriotic symbols are conventional injuries; being murdered, clubbed, robbed of the fruits of one's labor are natural injuries and resented by people in all cultures. There are, says Taylor, only three ways in which people may "naturally" injure each other: (1) assault, (2) theft, and (3) fraud. No one needs to be taught "that an assault upon himself is something bad, nor does anyone suppose that the evil of such an action is a mere consequence of some edict, declaration, or law." (p. 62.)
Each of these three terms is vague, of course, but not too vague to be manageable. " [A] violent blow to a man is…an assault—but so is deliberately driving him mad by forcing him to swallow a dangerous drug.…[D]epriving a man of his property by spreading lies about him can be thought of as a species of theft, being essentially no different from physical divestment or seizure of his goods." (p. 62.) But among the things not to be counted as injuries are offenses to taste or sensibility, e.g., offensive language and eccentric styles of dress. He goes into much more detail about this, but his limitation on each of these categories is fairly specific (Chapter 10).
Much could be said about his rationale for arriving at these categories: some libertarians would say that he should, like Rand, have developed a doctrine of natural rights from which these conclusions follow, and others that he should have gone in more for Aquinas and the tradition of natural law (which he does to some extent). At any rate, it turns out that the very categories of acts that should be called crime according to Taylor—as well as those that should not—are virtually identical with those that libertarians themselves have set forth. Dearest of all to the hearts of libertarians will be Taylor's remarks on "victimless crimes":
What one does with his own body and mind, whether he uses drugs, intoxicants, poisons, stimulants, or whatnot, whether he engages in activities dangerous to his own well-being, whether he takes certain obvious precautions for his own safety, such as wearing certain safety devices on the public highways or locking up his belongings, are beyond the concern of any legislator.…
…[A] legislator may ask concerning any practice whatever: Not whether it is in keeping with morality; not whether it accords with the ordinary standards of decency; not whether it reflects civilized manners; not whether it is offensive to the sensibilities of law-abiding citizens; not whether it clashes with the cultural and religious heritage of his society; not whether it is perhaps pointless, foolish, and profitless; not whether it is in keeping with the minimum standards of personal conduct; and not (even) whether it is perhaps extremely dangerous (to him, alone, who undertakes it).…
…[T] he lawmaker may ask only: Is it injurious to anyone but the agent? And if he is able to answer "yes" to that question, then he needs to ask still another: Is the injury thus wrought of a kind that would be felt by all or most men, independently of their training, customs, and conventions? And only if that question, which is a question of sociology rather than one of jurisprudence, can yield no answer but "yes" does the lawmaker have any concern with the practice at all. The morality of citizens, whether what they are doing is right or wrong, or whether they even know the difference between right and wrong, is of no more concern to him than to any ignorant and idle meddler, [pp. 68-69.]
JUSTIFICATION FOR THE STATE
What, then, is the justification for the existence of the state, and for obedience to its laws? It is inherently coercive, and most of the "justifications" for our obeying its mandates are quite patently false. The democratic apologia, that "after all we govern ourselves," is quite ridiculous: not only did you and I not originate a single law, but in a democracy we are subject to laws just because the majority have agreed to it (which is not even true in present-day democracies); a majority could well enslave a minority, and for the minority to be told that they are really free because they had a chance to cast their vote would be untrue and hypocritical (Chapter 15); "We've all taken a vote and have decided that you're to serve us for the rest of your life." Equally ridiculous is the contract theory in all its forms: you and I neither explicitly not implicitly agreed contractually to obey the laws of the state into which we happen to have been born. Taylor considers different varieties of contract, and concludes (correctly, I believe) that our relation to the state fulfills none of them (Chapter 16).
"The ultimate justification of the state, if it has any, can only be its expansion and enhancement of freedom" (p. 118)—the freedom of every citizen. Not even his happiness—this the state cannot bring about, and should not even if it could, this being left to the voluntary activities of individuals—but his freedom. But how can the state do this? "The state does not at all resemble…any instrument for the enhancement of freedom. On the contrary, coercion is inseparable from it…(p. 118.) Yet the state can, in certain respects, be an effective guarantor of freedom. Let us see how, according to Taylor, this is the case. Freedom, he says (Chapter 17), has two aspects, the negative and the positive:
(a) The negative aspect is the more familiar. Because the state prohibits and punishes crimes—assault, theft, fraud—it protects citizens against aggression and thus protects their freedom to pursue their chosen peaceful pursuits. Properly enacted and enforced, the criminal law takes away no freedom except the freedom to injure others (Chapter 18). The form of government does not matter here: even if the government were a hereditary despotism, if it limited its activities to protecting the citizens against these aggressions, it would be promoting their freedom.
(b) Those who focus only on the criminal law often forget that there is another aspect of freedom which government enhances, in fact makes possible, and that is enablement (Chapter 17). Someone wishes to adopt children, and the law places no obstacles in their way; but this doesn't enable him to do it, since "by its very silence it provides no means." Couldn't he just go ahead and adopt children as he pleased? No, nothing he might do would count as adopting a child. "He might…go around gathering up homeless children and bringing them home; but then someone else might gather up the same children a week later, and he would have accomplished nothing at all." (p. 120.) Or suppose a person wants to keep hunters away from his farm, and that nothing in the law prohibits this; but he still isn't free to do it, for he
cannot…even give meaning to the idea of his farm or distinguish it from anything else in the countryside, without a title or deed which defines its boundaries and law which protects his claims to it. Without these, every hunter in the county is perfectly entitled to demolish the woodlands as he pleases and slaughter away to his heart's content, having at least as much right to these lands as their 'owner'; for without law, and the state to enforce it, no meaning can be given to the idea of an owner, [p. 120.]
Freedom in this sense is not only compromised, it is completely impossible except within the framework of a legal order.
Limited-government libertarians are likely to reply "yes" to these points of Taylor: government, only if it is limited in the way described, enhances freedom and indeed (in some respects) makes it possible. But of course there are anarchist libertarians too, who have defended in detail the thesis that the criminal law and issues of enablement can be handled by an interlocking system of private defense agencies, arbitration agencies, and insurance companies: see Morris and Linda Tannehill, THE MARKET FOR LIBERTY, and Murray Rothbard, FOR A NEW LIBERTY. And although many objections have been made to all this—e.g., that dealing in defense is quite different from dealing in other services, and the "defenders" might collude to provide no defense at all and dominate the area by force of arms—the champions of anarchy have other arguments in rebuttal, and anyway they can correctly point out that governments suffer from equal or greater dangers in this regard.
What of Taylor's thesis concerning enablement? Here again the anarchist will say that such benefits can be conferred by competing agencies, hired by individuals, as well as or better than by the state. But here I see problems, though anarchists might present arguments that would convince me that they could be overcome. At any rate, Taylor, presumably not having read the libertarian-anarchist literature, sees no alternative but the state to handle the twin issues of (a) aggression and (b) enablement.
AREAS FOR STATE INTERVENTION
The state, then, says Taylor, has some use, though a limited one. I shall conclude with a few examples of cases in which Taylor believes the state is quite rightly involved, indicate why he thinks it should be (and whether this is consistent with his previous allegations about the function of the state), and (sometimes) whether libertarians would agree and why.
1. Taylor believes that some areas of land should be publicly owned so that everyone may have access to them: if the private ownership of land is extended to the private ownership of areas used exclusively for recreation, such as seashores and parks (p. 35), then only a few persons may be able to enjoy them and the rest of us are deprived of their use. Therefore they should be "publicly owned" (i.e., owned by the state).
It is certainly not clear how state ownership of such lands falls under one or another of the three areas in which government action is called for according to Taylor; what crime of assault, theft, or fraud is committed by those who (privately) own such lands? It seems likely to me that Taylor has not heard of any viable alternative to state ownership here, since he has apparently not read Rothbard and the other free market theorists who have presented and defended their case on the matter. Such a defense, as most libertarians doubtless know, would proceed somewhat as follows: there is a market for wilderness-freaks and beach-freaks just as much as for those who would buy the land in order to cut down the forests—lots of people "want to get away from it all" and are willing to pay for the privilege of doing it. In a country in which all land was privately owned, many, at least, of the scenic and recreation areas would be owned by those who, for a fee, would enable others to use them for boating, camping, hiking, and exploring. (The National Park Service, a government agency, charges money for this now, on top of the taxes that we all pay to maintain these government lands whether we use them or not.)
2. Another example is pollution, which has become so severe that today "there is no hope whatsoever or bringing it under control except by restraint imposed by the state." (p. 132.) Here, he says, "reason and good will and recognition of an evil, even if universal, are of little help, and the only hope lies in strong law vigorously enforced." Again, I wonder whether Taylor would have maintained this view, in the face of his previously described theories of what should be called crimes, if he had read the libertarian literature on the subject. The polluter is, after all, violating the property rights of whoever else's property he pollutes, not to mention the persons of the individuals whose lungs his products pollute. Taylor agrees that there are crimes against both persons and property, and pollution often falls under both. The polluter would be sued in the courts like any other trespasser. So laws governing pollution are not required to deal with the problem.
3. "[M]any species of wildlife would be quickly eradicated were it not for the protection of the state. Men in general agree that such wildlife should be preserved…and yet only the state, through the creation and enforcement of law, can provide such protection and regulation." (p. 132.) Now this one may present more of a problem. Some libertarians don't care whether the wildlife is preserved or not. Others do care, but do not want to see coercion exercised. Some would put forward a doctrine of the rights of animals—but, in view of the fact that there is a competition for life throughout the animal kingdom, that man is the only animal that survives by his rational faculty and most of the other living beings survive by killing and eating each other, any account of the rights of animals faces such overwhelming problems that I have yet to see a single satisfactory account of this matter by anyone.
Again, it is not clear how the killing of wildlife falls under any of the three categories of crime Taylor has previously delineated. Why then does he wish to make it one? His reasoning here is extremely interesting, of a kind well known to students of philosophy in many a contemporary book on ethics, but not much known to the libertarian community: (a) that there are some highly desirable ends that can be achieved only if everyone cooperates in achieving them, and (b) the only way everyone will cooperate is by being coerced by law into doing so. Thus, Taylor describes what he thinks would happen if there were no laws protecting wild species:
Without the intervention of the state, there would be unrestrained competition for these [species of wildlife], followed soon by total extinction. Men do not voluntarily restrain themselves from such temptation; and even if hunters agreed to a man that a given species of animal should never be hunted, they would nevertheless hunt it simply from the justified conviction that if they did not, others would. [p. 132.] [Emphasis added.]
In other words, even if 99 percent cooperated, the one percent could kill off the species; so we must have laws protecting the species.
The contemporary philosopher Colin Strang ("What if Everyone Did That?" in Baruch Brody (ed.), MORALITY AND PARTICULAR CIRCUMSTANCES, Prentice-Hall, 1970) even defends selective service by a similar line of reasoning:
The enemy threatens. A mere handful volunteer. The writing is on the wall: my volunteering will not affect the outcome. But conscript me with the rest to stay the deluge and I will come without a murmur. No good will come of my volunteering as long as millions of others don't do so at the same time; but great good will come of a general conscription which gathers me in with the rest.
He then goes on to say that my volunteering may do positive harm, e.g., if all who resist and survive will be executed; but if a million others fight together (possible only by conscription), we shall win the day. (This whole line or argument, called "the generalization argument," is set forth and defended in detail in Professor Marcus Singer's book GENERALIZATION IN ETHICS, and has been chewed over, ramified, attacked, and revised, in many dozens of reviews of this book in philosophical journals from 1961 to the present.)
My own response to the wildlife case would be briefly as follows: with all land privately owned, many people will be interested in preserving wildlife. What's to prevent them from growing the species themselves on their own property? Then anyone else who enters upon that property, for purposes of hunting or anything else, will be a trespasser on that property, and subject to the prosecution in the courts. Do you want to preserve beavers? Raise them yourself, and prosecute anyone who tries to hunt them on your land. There is more of a problem with migratory animals, since they will leave your land and enter land belonging to others, who may then shoot them down. But how else could it be, since I have no authority to tell you what to do on your property?
In any case, in a country with more than 200 million people in it, you can't have millions of roaming buffalo as you could in the days of the Indians; "there ain't no way." The case of birds, especially migratory birds, presents more of a problem; you can protect them only as long as they nest on (or fly above) your own land. Many other property owners will protect them as you do; but some won't, and then the creatures on or above such property may get killed. However, a person wealthy enough and concerned enough to buy the Canadian lands which are nesting grounds for the whooping crane, will probably find that many (though not all) of them survive their long journey to return to their nesting place, which he (since it is on his property) is in a position to protect, and this in spite of the seemingly monomaniacal passion for extensive travel possessed by these birds. (There is also the question of how far above your land your property rights extend. In Los Angeles, you are legal owner of anything up to 60 feet above your property; but I can think of no acceptable moral principle from which this figure follows.)
4. More clearly, in line with his views as to what should constitute a crime, Taylor believes that the state should be the arbiter of disputes—and that taxation of citizens for this purpose, and the other purposes of government which he considers legitimate, is perfectly justified. If my neighbor has killed my cattle and thus reduced me to poverty, he says, I can do one of three things: (a) I can guard my resentment and do nothing overtly at all; (b) I can assault him and try to take revenge on him or perhaps just recover the damage in some way; or (c) I can sue him for the recovery of the damage. Obviously, he says, the third is the sanest of the three courses of action—and it requires the existence of the state.
Since Taylor believes that anarchy will work only in small units, such as the family and small communes in which people know each other personally and are sympathetic to one another's purposes (Chapter 7), it is clear that he does not believe anarchy will work in a unit consisting of millions of people. But he never refers to any recent anarchist literature, so it is not clear what he would think if he had been acquainted with the concept of arbitration agencies (private courts), defense agencies, and so on. Apparently the possibility of all this has not occurred to him. Limited-government libertarians of course will agree with him on the need for the state to arbitrate disputes, and anarchist libertarians will say that the same purpose (rational arbitration of disputes) can be effectively provided for by a system of private competing courts. Since this dispute has been aired pro and con ad nauseam by numerous libertarians, I shall say nothing more about it at this point.
There are many other issues discussed in the book, such as the concepts of right and wrong, good and evil, rules and laws, comment on which would be more appropriate in a journal on ethics. But his views on these matters too are heady wine, forthrightly and elegantly presented. All in all, Taylor's book is a most exciting one, by a man who has evidently come to largely (but not entirely) libertarian conclusions quite on his own, without reference to the historical or contemporary books and articles written by libertarians. His book is a refreshing breeze in the mass of "contributions" to the literature of contemporary political philosophy.
John Hospers is director of the School of Philosophy at the University of Southern California. He is the author of LIBERTARIANISM and a number of books on philosophy. In 1972 he received one electoral vote as the presidential candidate of the Libertarian Party.