[Reference] Left-Libertarianism, rejoinder: Barbara H. Fried

TI: Left-Libertarianism, Once More: A Rejoinder to Vallentyne, Steiner, and Otsuka
SO: Philosophy & Public Affairs
VL: 33
NO: 2
PG: 216-222
YR: 2005
ON: 1088-4963
PN: 0048-3915
DOI: 10.1111/j.1088-4963.2005.00031.x
US: http://dx.doi.org/10.1111/j.1088-4963.2005.00031.x

Left-Libertarianism, Once More: A Rejoinder to Vallentyne, Steiner, and Otsuka
Copyright 2005 by Blackwell Publishing, Inc.

I admire the intellectual seriousness and intelligence of the left- libertarian project. Those virtues are powerfully underscored in the authors’ reply. Moreover, I believe that left-libertarians have achieved something important, in successfully disarming the right-libertarian claim that self-ownership implies a strong version of inequality.

Still, I stand by my two central claims: (1) self-ownership is an indeterminate concept that cannot carry the laboring oar in any theory of distributive justice; and (2) many versions of left-libertarianism appear to be thinly disguised versions of more familiar forms of liberal egalitarianism.

Abstract    Determinacy    Egalitarianism

The authors concede that self-ownership (like ownership of things) is sometimes indeterminate, but that the range of indeterminate cases is very restricted. As I understand it, their argument is as follows: (1) “ownership” is indeterminate when, but only when, the owner wishes to use his property in a way that constitutes an “incursion . . . onto the property of others without their consent.” (2) The category of uses that constitute such incursions is highly restricted, because ownership does not comprise a right to use property however one wishes (“It is not a general liberty of action”), but only a right to permissible uses. A use is permissible only if it “permissibly use[s] all the other objects involved in that act” (p. 6). So we have indeterminacy when, but only when, we have two conflicting uses of property, both of which are “permissible.” If we have two conflicting uses, one permissible and one not, we have a determinate outcome, as the permissible use (meaning the one that uses all other objects permissibly) always wins.

First, this analysis appears relevant only to conflicts between private owners over conflicting uses. It sheds no light on what is the real bone of contention in these debates: whether self-ownership implies the individual has a right to keep all income from his or her labor, as against a claim by the government.

As to conflicting private uses, I do not think the authors’ analysis solves the central problem dodged by all liberal, anti-harm principles: As between two conflicting uses, both of which have, as a matter of fact, compromised (“harmed”) the value of the other, on what normative basis do we decide which to privilege? As I read it, the authors’ restatement does not answer that question; it deflects it into the word “permissible.” Consider the authors’ case of hammer-owner A who wishes to smash car-owner B’s vehicle. Here, the authors claim that “full- ownership rights” determinately preclude A from smashing B’s car. This is so, because B uses his car permissibly (presumably, by leaving it sitting on the street), while A’s use would be impermissible (smashing B’s car). In thus prohibiting A’s preferred use, we are vindicating B’s full- ownership rights, without compromising A’s full ownership rights, because A’s proposed hammering was impermissible, hence never within her rights as an owner.

This restatement makes clear the distinction between permissible and impermissible uses is carrying a heavy argumentative burden. Without supplying some determinate content for the category of uses that are “permissible” and those that are not, the authors have not shown “full ownership” to be a determinate concept in the latter case. They have simply whisked all of the indeterminacy offstage, into the as-yet-to-be-defined category of the “permissible.”

It is easy to miss what is going on in the hammer/car example because we have such a strong intuition that A’s use is impermissible that we are likely to overlook the critical role of that intuition in giving “ownership” a determinate content. So consider instead a variant on the famous example that Coase used to unsettle conventional notions of causation.1 A railroad runs its train through an empty field. Some years later, a farmer buys the surrounding land to plant a hayfield. The train emits sparks in its normal operations, which one day set the hay on fire. Who has the right here: the railroad company, to run its trains with impunity, or the farmer, to grow crops in close proximity to the tracks, with full indemnity for any damage caused by sparks emitted by the train? As I stated in my original review, Coase posed the hypothetical, in part, to argue against the deeply embedded intuition that the railroad factually “caused” harm to the farmer. From a purely descriptive perspective, Coase urged, the social harm here is best understood as the joint product of conflicting desires—the farmer’s to grow flammable crops next to the tracks, and the railroad’s to run its train on those tracks without adequate spark suppressors—with respect to scarce resources (land). For present purposes, the problem is not factual causation, but legal entitlement: whose preferred use of his property shall be legally protected, the farmer’s or the railroad’s? Surely it begs the question to answer (as the authors’ analysis invites us to), ‘The railroad’s, because it makes permissible use of the farmer’s land, in imposing the risks associated with flying sparks’, just as it begs the question to answer, ‘The farmer’s, because imposing legal liability for fires caused by sparks constitutes a permissible restriction on that use’.

I do not mean to suggest that, in this and other examples of conflicting uses of property, we cannot resolve which use to privilege and which to penalize. Courts and commentators have offered many answers over the years, some more persuasive than others. To mention just a few: We should penalize the railroad, because it has physically intruded on another’s property; we should privilege the railroad, because it was the first comer; we should penalize the party who could have avoided the problem at the least cost (the farmer, by moving his crops away from the track, the railroad by installing a spark suppressor).2 Nor do I mean to suggest that the right answer is always hard to come by. We all know how the war of A’s hammer and B’s car does (and should) come out, even if we cannot agree on the reasons. My point, rather, is that, whether the right answer is easy to come by or hard, the concept of “full-ownership rights” does not help get us there, because the content of that concept is, as the authors’ argument shows, provided by those answers.

Abstract    Determinacy    Egalitarianism

The authors also question my suggestion that many versions of left- libertarianism appear to be liberal egalitarianism in drag. In making this suggestion, I was not claiming that left-libertarians and liberal egalitarians endorse the same premises: they do not. Nor was I simply observing that many left-libertarians endorse the same policy prescriptions as many liberal egalitarians: they do, but the fact that many theoretical routes lead to the same policy outcome is itself of genuine intellectual interest.

I argued instead a third point: that the principles that distinguish left-libertarianism from liberal egalitarianism (a commitment to self-ownership, and an egalitarianism limited to the value of “natural resources”) are in the end not doing very much work in many versions of left-libertarianism.

In some cases, this is so because of the meanings proponents have given to both principles from the start. Many versions of left- libertarianism have construed “self-ownership” so narrowly that the only forms of state power that it would prohibit (stealing others’ eyeballs, enslaving them) are ones that no sane government would contemplate. At the same time, they have interpreted a “natural resources” tax base so broadly that it loses all of its distinctive, Lockean meaning. Some have expanded the state’s taxing powers by defining “natural resources” capaciously, to include not just natural (physical) resources, but social opportunities, cultural capital, and (in Hillel Steiner’s case) even “germ-line genetic material.” Others have done so by defining natural resources narrowly, but permitting the state to tax the use of identical natural resources at different rates depending on the value users derive from them (so-called full benefits taxation)—a move that permits the state to expropriate the full value of talents if any external resources are required to exploit them. Whatever the motivation for these interpretations, their effect seems clear. Proponents end up with a distributive program on the tax side that converges with what conventional liberal egalitarianism would support: an expropriative tax on all differential endowments, external resources as well as talents.

In other cases, left-libertarians have interpreted both principles in a fashion that seems more consistent with the Lockean roots of left- libertarianism, producing a tax scheme that is clearly distinct from conventional liberal egalitarianism (roughly, a Georgian tax on natural, physical resources). But, having scrupulously adhered to left-libertarian principles on the tax side, many advocate redistributing tax revenues in accordance with traditional liberal egalitarian criteria, in particular, to compensate the unfortunate for unchosen inequalities in their talents. The resulting hybrid schemes, which judge the tax and transfer sides of fiscal policy by wholly different criteria, risk moral incoherence. As I put it in my initial review, “If the just state may not take more from the talented by virtue of their unequal talents—the premise of left- libertarianism—why may it give more to the untalented by virtue of their unequal talents?” The schemes risk operational incoherence as well. This is so because, as long as the Georgian tax base is substantial relative to income inequalities, redistribution of the tax base in accordance with liberal egalitarian principles will undo any operational effect of the Georgian tax, producing exactly the outcome we would expect from liberal egalitarianism alone.

A simple example will illustrate the last point. Imagine we have a two-person society, made up of Low Talents (LT) and High Talents (HT): LT can earn only $500 a year from his labor, whereas HT can earn $5000 a year from her labor. Suppose that, in addition to their earned income, LT and HT have appropriated unimproved tracts of land that generate annual rents of $2000 and $4000 respectively. Imagine that the left- libertarian state adopts a perfect Georgian tax scheme, which leaves untouched the differential incomes from differential talents, but levies a 100 percent tax on the annual rents from land. If the state were to use the $6000 in tax revenue to equalize claims on natural resources, it would split it equally between LT and HT. Imagine that the state, instead, decides to distribute the $6000 in tax revenue with an eye to offsetting the inequalities in earned incomes resulting from unequal talents. It would give $5250 to LT and $750 to HT, so that each ends up with an annual after-tax income of $5750. Clearly, the net result of this two-step process is to leave each person with exactly the resources he or she would have had under a liberal egalitarian scheme.3

What are we to make of this fact? I suppose one could argue, à la Nozick, that left-libertarian principles, although having no discernable operational consequences, do not disappear entirely from the argument, but instead “leave a trace” of some moral significance.4 I would be inclined to a more observable conclusion: that liberal egalitarian principles are doing all the redistributive work in such cases, leaving left- libertarian (Georgian) rhetoric to provide the window dressing.

As the authors note, left-libertarianism takes many forms, and some clearly hold their own better than others against competing demands from more familiar strains of egalitarianism. Whether, in the end, left-libertarianism is doing enough work in any of its forms to test the true loyalties of its proponents, I leave to readers to judge for themselves. And I encourage them to do so. The collection of essays the editors have assembled in Left-Libertarianism and Its Critics well repays close attention.


This article is a rejoinder to Peter Vallentyne, Hillel Steiner, and Michael Otsuka, “Why Left-Libertarianism Is Not Incoherent, Indeterminate, or Irrelevant,” in this issue of Philosophy & Public Affairs.

1. Ronald H. Coase, “The Problem of Social Cost,”Journal of Law and Economics 1 (1960): 1–23.

2. I would guess that the authors would go with the first of these decision rules here, to find in favor of the farmer in Coase’s example, or so I infer from the authors’ restrictive definition of “use” of property as “all the ways that persons can physically impact upon an object,” including “possession, occupation, incursion, and intrusion” (p. 203). Under that restrictive definition, the “costs” the farmer imposes on the railroad do not count as a use at all. The distinction between causal agents that are physically invasive and those that are not is a time-honored one in law, but the moral intuitions behind it don’t hold up well to scrutiny. They are also relatively easy to confound. When I park my car in the middle of a busy highway, and it is rammed by a driver going the speed limit, is the driver liable because the physically invasive cause? If my neighbor erects a fence that blocks sunlight from getting to my solar collectors, is the neighbor exonerated because the harm involved no physical invasion of my property?
The continued vitality of the “physical invasion” test, I believe, comes not from there being any intrinsic moral significance to physically invasive acts per se, but from the fact that such acts correlate strongly with conduct that we disfavor on other, unstated (often welfarist) grounds. To put it a different way, the hostility to physically invasive causes is, in Cass Sunstein’s useful terminology, a “moral heuristic.””Moral Heuristics,”Behavioral and Brain Sciences (2005)(in press). But this is a long side discussion that need not be resolved right now. For current purposes, the important point is this: If the authors mean to define “impermissible” uses as all (and only) those uses that physically invade others’ property, that definition of “impermissible” needs to be spelled out and defended normatively, and then tested to see if it in fact produces determinate outcomes that the authors are content to live with. Embedding that restriction in the definition of what it means to “use” another’s property does not avoid these difficulties; it merely relocates them.

3. To the extent that the Georgian tax base falls short of the amount needed to undo all other inequalities, some residue of Georgian principles will be reflected in the ultimate distribution of resources. But the extent will be purely fortuitous, relative to any sensible distributive principle. Imagine that the Georgian tax base in my original example totaled $3000 rather than $6000. In that case, redistribution of the entire $3000 to LT will still leave some of the inequality in LT’s and HT’s labor incomes unremedied: at the end of the day, LT will have $3500 ($500 in labor income plus a $3000 transfer payment), compared to $5000 in income for HT. But that compromise between left-libertarian and liberal egalitarian outcomes does not reflect any principled decision to split the difference between two warring principles. It simply reflects the happenstance of the size of the Georgian tax base relative to inequalities in earned incomes.
To underscore the capriciousness of outcomes here, relative to any sensible distributive principles, note that in my hypothetical, the left-libertarian state could administer the Georgian tax in the first instance by simply taxing away $1000 of the annual land rents paid to HT and transferring it to LT. If it did that, the state could no longer smuggle in a liberal egalitarian agenda at the back end, because it would have no excess tax revenues available to equalize unequal labor incomes after equalizing unequal natural resources endowments. Can it possibly be sensible, from any distributive point of view, to have the outcome of a tax and transfer system depend on the mere fortuity of the administrative scheme chosen to implement it?

4. Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), p. 180.



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