Libertarianism and Public Goods: An HPRgument (Part 8)

Part 8 — Adam Kern
First I would like to thank all our readers for paying us their attention. It is an honor to have it, and that’s something both Sarah and I can agree on. And I would also like to thank Sarah for accepting my invitation, for giving us such a spirited debate, and for giving me the last word.
I have argued that libertarianism’s valorization of liberty, in purest white, and to the exclusion of other concerns, is incompatible with a government that provides public goods. [1] The same libertarian arguments that are so lethal to regulations, entitlements, and the other traps of the not-so-minimal state can also be turned against the minimal one. [2] And no argument that Sarah has produced can shield her ideal government from such attacks, [3] nor can she produce such a shield without becoming inconsistent.
Sarah admits the prima facie correctness of [1]. Yet she contests [2] and [3]. She says, “Only when a government is freely consented to and continuously consented to thereafter is it truly legitimate.” I think she wants to claim the converse as well, since that’s the only way her argument could go through. So her theory’s shield is this biconditional principle:
“A government is truly legitimate if and only if it is freely consented to and continuously consented to thereafter.”
First, this principle is too permissive for Sarah’s purposes. As one of our commenters recognized, (and as Sarah seems to recognize too—see Part 7, paragraph 5), this is not a strictly libertarian principle. It could legitimate a government that redistributes wealth and outlaws Happy Meals and does all the things that make Sarah swear upon her copy of Atlas Shrugged.
But more importantly, it is too restrictive for Sarah’s purposes. Sarah has mentioned two types of consent: explicit and implicit. I rest my case against explicit consent as a font of governmental legitimacy. As for implicit consent, I doubt that too. Sarah has been vague on what implicit consent is. That’s probably a good thing, since she would be embarrassed by the exercise.
The closest she comes is saying that “Use is a qualification of implicit consent”—that is, use is a necessary condition of giving implicit consent. That’s questionable, but I’ll grant that it is for sake of argument. Even so, use is not sufficient. Use alone does not establish implicit consent. Consider for example the sidewalk that I mentioned to in Part II.
But for the best example consider the case of a strangely cruel villain, Kindsis, an allegory with which I’ll end my argument. Kindsis steals your phone, the only one that you owned. You had depended upon your phone for for discharging the duties of your employment. There are, of course, other ways of communicating with the world—voice, mail, carrier pigeons—but these all have their various inconveniences. In fact, you couldn’t continue to hold your job by using them. But fortunately for you, though Kindsis retains possession of the phone, she allows you to use it—as long as you pay a regular fee for its use. Sometimes she calls it a “toll;” other times she calls it a “tax.” You use the phone. Have you thereby legitimated the theft?

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Part 5 — Sarah Siskind
If consistency is the price of Adam’s ‘coherence,’ I refuse to pay.  All the same, I will try to make my argument accessible to the most delicate of sensibilities.
Let’s turn now to the issue of citizenry.  I explicitly exclude all isolationists and agoraphobics because they explicitly refuse citizenship.  Consider a person who refuses citizenship.  Therefore they must refuse all its trappings: taxes, public utilities, public land, and police.  If a person abstains from all these things, how could they possibly be included in the body politic?
Adam argues “every government claims sovereignty over all people within its territory, including them.”  Yet consider his exact use of words, “within its territory.”  Note the possessive pronoun. Already this presupposes ownership, that the territory is the government’s.  Territory and public goods are interrelated.  Here, time is a contingency.  If we are out of the state of nature and placed in current day, then the purchase of property is of property already owned by the government.  One cannot own property in the land of the United States today without benefitting from its public goods (i.e. security from police, transportation by roads).  Whether or not one wants these public goods, the owner is benefitting by them.  Adam criticizes my knowledge of Economics, but there is one principle I recognize that he doesn’t; there is no such thing as a free lunch.  One cannot benefit from these public goods without paying for them through both taxes to fund these goods and the establishment of government by legitimating the transaction.
By ‘legitimating the transaction’ one cannot deny it occurred.  By paying an institution one cannot claim that institution does not exist.  Thereby payment legitimates government.
I am well acquainted with the prisoner’s dilemma but Adam misses my point entirely.  But by ‘free-riding’ a debt is incurred regardless of whether the person intends to pay it back. The debt does not go away merely by wishing it so. The government emerges from this debt.  The freeloader is indebted to the government by taxes to repay their debt and subsequently legitimates the government by paying them.  If the debtor does not pay, the government, like any creditor, may exact the proper penalty (tax evasion).
I would like to turn to human reason.  Merely a trip to the Harvard T stop will present you with a few people lacking in rational faculties.  So why do I say people are rational?  Because they must be treated as such.  Not only are those lacking reason in the extreme minority, but all people must be given at least the chance to decide what’s best for them.  To preemptively declare you do not know what is best for you is to establish a paternalistic state.  Adam introduces the shortcomings of economic models in predicting human action.  Well I hazard, why are these models still in use?  Why consider humans rational actors in the first place?  Because the model must assume we are rational to be a model at all. Similarly, a legitimate government must assume we are rational to be legitimate at all.
Finally, to Adam’s question.  I chose my words deliberately.  I said “property may be ethically justified.” I cannot therefore answer how it may be ethically justified because my statement is a presupposition.  I pose to you (the reader) whether you think private property (to be specific) may be ethically justified at all.  If so, this does not automatically render your property ‘legitimate.’  ‘Legitimate’ is recognized as true by others and thereby protected.
If, however, you feel private property is not ethically justified, I recommend checking out the Harvard Co-op.
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Part 4 — Adam Kern
First I should like to point out to all readers that Sarah and I are friends, and that all of Sarah’s snarkiness and my cleverness are meant to be taken in good humor. At least so I think. Now for things about which I am more certain: Let’s recap where the debate stands. In my first response I tried to render Sarah’s argument coherent and then demonstrate why it failed. To respond to such an argument, Sarah could have done two things:  say that I misinterpreted her, and that I defeated an argument which was not hers; or admit that I interpreted her correctly, but affirm that my argument does not actually defeat hers. Sarah, again, tried to have it both ways. But this time it seems she did so more out of maladroit zeal than logical self-contradiction, so that’s a step in the right direction I guess. I’ll deal with how Sarah uses the second strategy first. She insists that my attack of Principle A is misguided. First, note how her rehabilitation of it is circumscribed. She excludes everyone after the founding generation. She also tries to exclude my isolationists and agoraphobes; but that will not do, since every government claims sovereignty over allpeople within its territory, including them. But her main point is that she insists that everyone in the founding generation will voluntarily establish a government. For (1) it is in their interest. And (2) everyone is always rational. Both (1) and (2) are clearly false. As for (1): let’s go back to my use of the Prisoner’s Dilemma, since Sarah has so clearly missed the point. Otherwise she would not say: “In this case, group action given by consent is in an individual’s interest.” It’s not. It’s in the individual’s interest to free-ride, to not pay while everyone else does. So let’s assume Sarah’s neatly idealized portrait of purely rational man. For then it is rational for each person not to give his money to provide a public good. Anyone who wants to test this theory can do so by asking for voluntary donations to repair your favorite common space. As for (2), I am as faithful to human reason as anyone, but I will not say that everyone is always rational. That’s plainly false. For the clearest proof, consider the entire field of economics as practiced, which makes pains to say that its models apply only to rational actors, not to actual humans. So Sarah cannot rehabilitate Principle A to any decently useful status. But I feel like I’m repeating myself. We should move on to more interesting arguments. Sarah’s rehabilitation of Principle B is intertwined with her adoption of the first strategy: claiming that I misinterpreted her first principle all along. In Sarah’s own words, the only ones which she will accept, that principle is: “(In the state of nature) Property may be ethically justified but it is not legitimated” to be hopelessly vague.” I found this vague. I thought that Sarah was citing Locke without bothering to look him up. But now she says that she is starting afresh, with Siskind’s On Uncivil Government. Good. I’d rather dispute Siskind than Locke. So let’s toss it back to our philosopher with that. Explain your first principle please, Sarah. How is property “ethically justified” and what does “legitimated” mean?
————————————————————————————————————————————— Part 3 — Sarah Siskind
I commend Adam’s post.  For although he was only half correct, his response was twice as long! As for his inclusion of Murray Rothbard, I can only respond by saying that if guilt by association were a legitimate counterargument I’d have a much longer list of non-Libertarian wackos. The beginning, they say, is a good place to start.  So I’ll start there.  Adam asserts my first two premises have no bearing on the establishment of government.  He proceeds to summarize my “arguments.”  Though I am highly complimented to be so thoroughly confused with John Locke, I’d like to restate the first premise that Adam misquotes. “(In the state of nature) Property may be ethically justified but it is not legitimated.” I ask openly, what institution or body could possibly legitimate this right?  I’ll give you a hint; it’s starts with a ‘G’ and ends with ‘overnment.’  What practical good is an ethical claim to a car if there is no government to legitimate that claim? My second premise that “gets us no where in the establishment of government” according to Adam is, “It is in each man’s interest to license some body to provide certain public goods.”  Frankly, I see this as self-evident.  In this case, group action given by consent is in an individual’s interest.  I cannot see a better libertarian justification of public works.  Adam describes the problem of ‘freeloaders.’  I have been describing the solution as ‘government.’ Now let’s move on to my “principles.” Adam attacks my second “principle” by using an analogy of a sidewalk built around his property.  He states, “I benefit from it (the sidewalk) nonetheless; since I have no real choice.”  Having “no real choice” does not exactly seem voluntary to me (see first principle). Once again, I find I am misunderstood in Adam’s explanation of the word “legitimate.”  Adam instead uses “license (i.e., gives up his right to object to).”  This is painfully misleading.  A man might legitimate a government by using its public works and subsequently being obliged to pay taxes. Here, it is his right, some might even argue his obligation as a citizen to object to the actions of government he disagrees with.  In fact, it is his right to object to the government as a whole if he so chooses.  In which case, he must cease to legitimate the government by financially supporting it if he objects to its existence.  Correspondingly, he must stop benefitting from its public works.  This is called emigration and thousands of people do it every year. Therefore, I entirely agree that all “future generations” are excluded. Children that grow up to be adults cannot be bound onto a state by virtue of their parents’ citizenship.  Once a citizen becomes a rational adult at 18, it is their prerogative to consent to the government.  By all means, if “isolationists,” “agoraphobics,” or “non-conformists,” do not wish to be citizens, by what moral sanction are we to impose citizenship?  As for the accusation that I perversely assume, “people are rational,” well I plead guilty.  For herein lies the fundamental and radical libertarian principle; people are rational and free will exists. As tempting as it is to assume people are irrational creatures (especially after reviewing some of these comments) I hold that reason is the defining faculty of mankind.  If a government cannot treat its citizens as free and rational actors, there is no obstacle to an authoritarian regime.
—————————————————————————————————————————————-Part 2 — Adam Kern
I am arguing on behalf of a tension fundamental to (Siskind-style) libertarianism, a tension between its fundamental premise and its conclusion. When faced with such a tension, you must either scuttle your first premise or your conclusion. Some prominent libertarians have noticed this precise tension, stuck fast to their first premise, rejected the conclusion (government), and ended up anarchists. I cannot reject at least some government, so I doubt the first premise. Sarah tries to have it both ways, which means that she has made an error in argument. The fundamental premise to which I refer, and with which Sarah begins, is:
1:    Man in the state of nature possesses an absolute natural right to his property, broadly conceived: his person, his liberty, and his possessions.
For sake of argument, let’s assume 1. This premise gets us nowhere in the establishment of government. In itself it does not explain why men in the state of nature would form one. So Sarah needs Premise 2:
2:    It is in each man’s interest to license some body to provide certain public goods.
Let’s assume that too. That still does not get us to government. Someone, or some group, must establish it. So Sarah legitimates that by two different principles. A.   A person licenses (i.e., gives up his right to object to) whatever he voluntarily agrees to. B.   A person licenses whatever he uses and benefits from. Let’s admit Principle A. It has problems with its application. Only the people emerging from the state of nature, who themselves gave their money to the grand public version of BlueCross BlueShield, have licensed it. That cuts out all future generations still bound to their scheme. And even in that state of nature, Principle A has problems with non-conformists, either free-riders or pure isolationists. It is a commonplace of political theory that the provision of public goods is a massive Prisoner’s Dilemma. Everyone benefits if everyone agrees to the scheme, but I could benefit all the same if everyone else pays for the good and I don’t. Thus the individually rational choice, for every individual, is to not pay. Everyone realizes this; no one pays; thus no United States of Insurance. And that is assuming that people are rational. What about the obstinate outcast, the man who refuses to explicitly enmesh himself in any collective action, no matter how beneficial? You cannot expect agoraphobics to establish an agora. I think that is why Sarah introduces Principle B. Unfortunately it has problems as a principle. Let’s say that some public organization erects a sidewalk around my property. In order to exit my property, I must use this sidewalk. (And let’s say that I extract some nominal benefit from the sidewalk, which I never really cared about to begin with, but is a benefit nonetheless—such as my shoes degrade ever so much more slowly). Have I therefore licensed the existence of this sidewalk? I think not. But let me demonstrate the problem of the principle even more starkly. Let’s say that the public organization has erected a sidewalk, similarly situated, whose surface is plastered with American flags. I consider walking on the flag to be a great disrespect to it, morally reprehensible. But my taste (for that is what my moral conviction is according to the calculus of harms and benefits: no more privileged than a taste: no different from whether I prefer red bricks or tan ones) has no effect on whether or not I benefit from the sidewalk. I benefit from it nonetheless; since I have no real choice, I use it nonetheless; and so by Principle B I have given up my right to object to the sidewalk. That’s an implication I cannot accept, so Principle B is one which I cannot accept. So that’s my response to Sarah’s rough argument. Neither of her principles can do what she wants it to do: to license the public provision of public goods. I suspect that Sarah will want to refine Principle B further, in the hope of precluding all embarrassing counterexamples, but I doubt that she can prove successful. It’s like shaving a square into a circle: you can never get it exactly right.
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Part 1 — Sarah Siskind
Thank you Adam for both the invitation and the introduction.  I expect that Adam, far from a staunch supporter of big government, will keep this debate apropos and constructive, or destructive as the case may be.  I gladly accept and, with that, let’s get this show on the road. It is important to acknowledge that though Libertarianism is small, like any other party, it has factions.  That’s why there is ‘libertarianism’ the well-known philosophy, and “Libertarianism” the- put diplomatically- not so well-known party.  So let us allow one unifying and obvious factor; libertarianism is not anarchism.  Libertarianism does endorse government, it just asserts government must be justified before it is established and not vice versa. Though it’s said politics is the oldest profession next to prostitution let’s try to imagine a time before government.  There are no roads.   Private property may be ethically justified but a government does not legitimate it.  Eventually, violence, robbery, or the threat of insecurity will incentivize a people to establish a government.  Early government must have been something like insurance; simply a big pool of resources to establish a common good, for example the police or a road.  Obviously, by voluntarily giving your money to make a road you have legitimated the road’s existence.   Now let’s assume you played no part in the establishment of this government. You put in no resources and receive no benefit.  There was no consent and therefore you own no part of that road.  However, let’s consider you now desire to use this road.  Roads can only take so much wear and tear, so your usage costs money. It costs money as a fraction of the road’s original cost as well as its maintenance.  Your usage, without the addition of your resources, is the equivalent of stealing.  By giving your money to maintain the road, however, you are legitimating the road’s right to be there.  Legitimating the road, by proxy, legitimates its creator: the government.  Within this theoretical framework, government is legitimated by the voluntary use of its public goods. Libertarianism does not preclude government.  There is already a term for that: anarchism.  Libertarianism, seldom appreciated, is the justification of government. Now back to Adam to point out my egregious miscalculation.
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Prologue — Adam Kern
Watch this space. I have challenged Sarah Siskind, one of our staff’s most contentious, indefatigable, and clever (i.e., most libertarian) libertarians, to a debate on whether libertarianism can provide a good justification for public providence of public goods. We assume that public roads are justified. We ask whether libertarianism can provide an argument that validly ends with that conclusion. I think it cannot, and I think that libertarianism should be rejected for that very reason. Sarah thinks that it can, and she thinks I should convert to libertarianism for that reason. We will continue arguing on this point until one of us concedes. Regardless of the outcome, it’s gonna be a great fight. Two grandmasters are about to play some philosophic chess. I’ve given Sarah the first move. She promises she’ll make it very soon.