Many errors and many disagreements are possible in the field of implementation, but what is essential here is the principle to be implemented; the principle that the purpose of law and of government is the protection of individual rights. —Ayn Rand
In his wide-ranging Anarchy, State, and Utopia, philosopher Robert Nozick argues the libertarian case, in the process addressing several objections to the minimal state. One of these is the argument that since economic inequalities are often accompanied by political inequalities, the deliberate enhancement of economic equality is defensible to avert or reduce lopsided political power.
Yet Nozick intelligently counters: "The minimal state best reduces the chances of such takeover or manipulation of the state by persons desiring power or economic benefits, especially if combined with a reasonably alert citizenry, since it is the minimally desirable target for such takeover and manipulation. Nothing much is to be gained by doing so; and the cost to citizens if it occurs is minimized." But both the objection and the response are compressed into a single paragraph by Nozick. (Similarly, discussions of economic inequality in Ludwig von Mises' Human Action and in Milton Friedman's Capitalism and Freedom ignore this anti-minimal-state argument.)
The following discussion demonstrates that political discord arising from special economic interests will, at least on narrow issues, accompany even the libertarian state. Significant policy differences already proliferate among free-society proponents, indicating the outlines of potential politico-economic wars of a future libertarian utopia. Wouldn't it be valuable, then for libertarian thinkers, in response to the challenges to libertarianism on grounds of inequalities of wealth and power, to mobilize a more comprehensive answer than simple capsules of common sense?
Specific policy differences within the free-society fold are abundant. Novelist Ayn Rand, for example, sees a legitimate role for patent and copyright alike. "Patents and copyrights are the legal implementation of the base of all property rights: a man's right to the product of his mind." But economist Murray Rothbard asserts that "bracketing of patents and copyrights is wholly fallacious: the two are completely different in relation to the free market."
Rand contends that the most rational copyright solution is Great Britain's 1911 Copyright Act, establishing the copyright of books, motion pictures, and paintings for the author's lifetime and 50 years thereafter. But Rothbard, who endorses a contractual system of copyright, believes a creator's copyright should be perpetual. In Rand's assessment of patent, "The legal problem is to set a time limit which would secure for the inventor the fullest possible benefit of his invention without infringing the right of others to pursue independent research." Again Rothbard comes down differently. "Patents prevent a man from using his invention even though all the property is his and he has not stolen the invention, either explicitly or implicitly, from the first inventor. Patents, therefore, are grants of exclusive monopoly privilege by the state and are invasive of property rights on the market."
Nozick, who calls attention to the Rand-Rothbard copyright clash, apparently sides with the Randian argument—his publisher prudently copyrighted Anarchy, State, and Utopia. Rothbardian libertarians claim that the effect of copyright "can be obtained if authors and publishers include in the contract when they sell books a provision prohibiting its unauthorized printing, and then sue any book pirate for breach of contract;" yet, says Nozick, "apparently they forget that some people sometimes lose books and others find them."
On the other hand, Nozick seems more specific than Rand on the ideal span of patents, suggesting that it be the time independent discovery would have taken absent knowledge of the invention.
The Rand-Rothbard-Nozick tripartite division is paralleled among libertarians on the issue of blackmail. By F.A. Hayek's reckoning, "when the knower of an evil secret blackmails his victim" we have a case of true coercion. Nozick contends that the blackmailer rightly may charge the difference between his profit from exposure and nonexposure of his victim, although he may not charge all that the blackmail market will bear. And to complete the three-way split, Rothbard holds that blackmail should be legal. He implies a response to Hayek: "No violence or threat of violence to person or property is involved."
Rothbard also claims, in support of abortion, "What the mother is doing in an abortion is causing an unwanted entity within her body to be ejected from it: If the fetus dies, this does not rebut the point that no being has a right to live, unbidden, as a parasite within or upon some person's body." But libertarian embryologist Thomas L. Johnson counters, "A woman must have the right to prevent conception—to determine herself if she wishes to have or not have, a child—to obtain contraceptive information and materials—but she must also bear the responsibility for sustaining the life of a newly formed human if she willfully engages in intercourse which results in pregnancy." Consistently with Johnson, Robert Poole, Jr., writes in another context, "A libertarian society would be a full-liability society, where everyone is fully responsible for his actions and any harmful consequences they might cause."
Rothbard holds that children, lacking the rationality to direct their actions, constitute property owned by the parents. This may clash with his own contention that the so-called mentally ill should retain their liberties. After all, as Peter R. Breggin reminds as to the diagnosis of the mentally ill: "As soon as one person is allowed to judge another person's sovereignty, the other person automatically loses his sovereignty. That is a fixed principle." If second parties should not impose on others their assessments of the rationality of the so-called mentally ill, why allow them to do it to the so-called immature?
Libertarian conflicts can include those over the respective rights of airlines and landowners. The just claims of both are not self-evident to every impartial free-society scholar. Concedes Milton Friedman:
The notion of property, as it has developed over centuries and as it is embodied in our legal codes, has become so much a part of us that we tend to take it for granted, and fail to recognize the extent to which just what constitutes property and what rights the ownership of property confers are complex social creations rather than self-evident propositions. Does my having title to land, for example, and my freedom to use my property as I wish, permit me to deny to someone else the right to fly over my land in his airplane? Or does his right to use his airplane take precedence? Or does this depend on how high he flies? Or how much noise he makes?
Nozick discusses a number of issues in Anarchy, State, and Utopia that he admits are muddied by ambiguities or differences of libertarian opinion. While himself believing, for example, that a free society would permit an individual to sell himself into slavery, he acknowledges that others disagree. Murray Rothbard sees a person's control over his own will as inalienable and asserts that even volunteer soldiers who enlist for a fixed term should be allowed to quit the job at will.
Nozick personally holds that the benefits contemporary Americans obtain from eating animals do not justify the practice. Needless to say, some thoughtful libertarians differ. In Nozick's judgment animals count for something—some higher animals, at least, ought to be given weight in people's deliberations. But he immediately admits that it is difficult to prove this.
Animal-rights dilemmas can shade into abortion dilemmas if the unborn are considered subhuman. At least one libertarian abortionist, Canadian editor Marshall Bruce Evoy, urges that women having abortions elect to have fetuses anesthetized before dismemberment. If such a practice were imposed by legislation, would it be more like a legitimate (?) protection of animals from wanton imposition of agony or like an illegitimate (?) invasion of the woman's (property) rights?
Libertarians also differ over applications of agreed-upon principles. Nozick refers to problems that would arise in some communities even within a libertarian utopia.
May the majority of voters in a small village pass an ordinance against things which they find offensive being done on the public streets? May they legislate against nudity or fornication or sadism (on consenting masochists) or hand-holding by racially mixed couples on the streets? Any private owner can regulate his premises as he chooses. But what of the public thoroughfares, where people cannot easily avoid sights they find offensive?
His anticipated difficulties are of the general type obtrusively with us already.
In 1975 the United States Supreme Court adjudicated a case, Erznozick v. City of Jacksonville, challenging the validity of a Jacksonville, Florida, ordinance that prohibited a drive-in theater from displaying films showing nudity if its screen were visible from a public street or area. The screen in controversy was visible from two public streets and from a church parking lot. How would a similar dispute be determined in a libertarian utopia? Precisely why?
Rothbard affords a prime example of what is to him a plainly perceived wrong but which to other intelligent persons reasoning from analogous premises may not be so. "Wiretapping is a contemptible invasion of privacy and of property right, and of course should be outlawed as an invasive act. Few, if any, people would condone private wiretapping." He cites in this regard his principle that it is criminal to invade the property of anyone not convicted of a crime. But honest and thoughtful persons can sharply differ over what acts would be invasive, would invade the property of others.
The U.S. Supreme Court in 1928 adjudicated a criminal case, Olsmsted v. United States, in part upon the Fourth Amendment. The amendment, in barring unreasonable police searches and seizures, parallels Rothbard's opposition to property invasions. In that case several petitioner-conspirators had operated from a chief office in a large office building. Through the efforts of Federal officers,
Small wires were inserted along the ordinary telephone wires from the residence of four of the petitioners and those leading from the chief office. The insertions were made without trespass upon any property of the defendants. They were made in the basement of the large office building. The taps from house lines were made in the streets near the houses.
Was this a contemptible invasion of privacy and of property rights? The Supreme Court thought not. As Chief Justice William Howard Taft interpreted the Fourth Amendment for the majority:
The language of the amendment can not be extended to include telephone wires reaching to the whole world from the defendant's house or office. The intervening wires are not part of his house or office any more than are the highways along which they are stretched.
Not all libertarians would agree with Taft's thinking. But why not?
Consider instead a case absent any search of a common utility. The U.S. Supreme Court in 1942 adjudicated a Fourth Amendment case wherein Federal agents with the assistance of a building superintendent obtained access to an office adjoining that of the defendant. They utilized a detectaphone with a receiver so delicate as to catch and amplify sound waves from the defendant's office. Was this a contemptible invasion of privacy and of property right? The Supreme Court thought not; it upheld use of the detectaphone evidence as obtained legally and constitutionally (Goldman v. United States).
None of this is to chide Rothbard for failing to write a law text; the U.S. Supreme Court never has sat as a libertarian authority. It is to suggest rather that real-world cases may elicit radically differing libertarian assessments of what constitutes illegitimate invasion of personal rights. In the Rothbardian view, "Invasive action, may be defined as any action—violence, theft, or fraud—taking away another's personal freedom or property without his consent." The reader may judge for himself whether the police activities described above would fall within his definition.
Administrators or legislators or adjudicators in a libertarian polity must confront real-world issues arising from copyright, patent, blackmail, abortion, child abuse, airports, animal abuse, privacy invasion, nudity, and perhaps even slavery. Libertarian theorists will be found on all sides of various controversies arising from these issues.
Lobbyists and advocates will be employed by publishing houses and by wealthy authors (publish for profit) concerning copyright. They will be hired by corporations and by wealthy inventors (invent for profit) on patent. They will be hired by abortionists (abort for profit) as to abortion. They will be hired by well-heeled pediatricians and psychiatrists (treat for profit) regarding the supposedly immature and mentally ill. They will be hired by wealthy airlines (fly for profit) as to flight lanes. They will be hired by drive-in theater chains (pornography for profit), by bullrings and packinghouses (bait and slaughter for profit), and by detective agencies (spy for profit). And could a blackmail lobby be far behind?
Of course, the struggles of special interest groups for favorable policies in a libertarian state must not be exaggerated. Libertarian philosophers supposedly are not for sale. But lawyers are, and they include in their ranks individuals philosopher enough to long protract successful lobbying and litigation by the vested interests. In fact, the great Hayek himself holds a doctorate in law as well as in political science—although he presumably is not for sale.
It does not require a Marxian orientation to grasp that imaginative people will attempt to use even the libertarian state for their own economic ends. One capitalist theorist frankly reports: "People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices. It is impossible indeed to prevent such meetings, by any law which either could be executed, or would be consistent with liberty and justice." This remains as true in 1976 as when Adam Smith published it in The Wealth of Nations in 1776.
To find this enunciated from a pre-Marxist, American point of view, consult Number Ten of The Federalist wherein James Madison plainly draws upon Lockean (and libertarian) property rights principles to warn of clashes among capitalists.
The diversity in the faculties of men, from which the rights of property originate, is not less [than selfishness] an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.
Marxists and less doctrinaire opponents of the libertarian movement will be quick to expose the problems inherent in a utopian polity wherein great property ownership is enjoyed by the few. One of the most prominent political books of 1974, the year of Anarchy, State, and Utopia, articulately attacked contemporary capitalism's multinational corporations. That volume, Global Reach: The Power of the Multinational Corporations, called attention to the fact that in the United States 92 percent of the trust holdings are owned by one percent of the adults; two percent of them own some 90 percent of the corporate bonds and almost 100 percent of all municipal and state bonds. If property owners seldom meet but to promote their special interests, the foes of libertarianism have at least a superficially salable case in proposing that ownership be so diffused as to discourage economic conspiracies. Libertarian theory in its present degree of elaboration cannot provide formulations obviously correct to all of even the most fair-minded, intelligent, and knowledgable analysts; the libertarian state would remain a target for cynical if sophisticated manipulation.
Nozick's minimization of the enduring problem of manipulation of the State by powerful economic interests contrasts with his practicality in other respects. Observe his language in referring to a persistent strand in utopian thinking,
the feeling that there is some set of principles obvious enough to be accepted by all men of good will, precise enough to give unambiguous guidance in particular situations, clear enough so that all will realize its dictates, and complete enough to cover all problems which actually will arise. Since I do not assume that there are such principles, I do not assume that the political realm will whither away. The messiness of the details of a political apparatus and the details of how it is to be controlled and limited do not fit easily into one's hopes for a sleek, simple utopian scheme.
Critics of Nozick's libertarianism would anticipate the political apparatus controlled in disproportionate measure by the few major property holders and wielded for their ends to the consequent distortion of libertarian principle.
Economically motivated political ferment over at least narrow issues will accompany even a libertarian state. Decided differences over policy do arise among honest and capable free-society adherents; such differences indicate that a libertarian utopia secure from influential, special-interest lobbies exploiting libertarian rhetoric is impossible. It is to be hoped that theorists can develop a comprehensive strategy whereby the threat of economically powerful property owners subverting the libertarian polity—even if with libertarian slogans—can be stemmed.
George S. Swan, who is admitted to practice before the Ohio Supreme Court and the U.S. Court for the Southern District of Ohio, is currently studying for a masters in law at the University of Toronto.