The Myth of Libertarian Neutrality

[R. A. Hettinga]

<http://www.techcentralstation.com/080304D.html>

Tech Central Station  
The Myth of Libertarian Neutrality

By Edward Feser
 Published 
 08/03/2004 


Editor's note: This is the third and final article in a debate over the
nature of libertarianism between Edward Feser and Will Wilkinson. Read
Feser's first article here and Wilkinson's response here. Wilkinson will
have more to say on this piece at his website here. For more on this debate
from TCS contributor Julian Sanchez click here. Also see more from Boston
University Law Professor Randy Barnett, here.

In my article "The Trouble with Libertarianism," I argued that there is no
common core to the various theories usually classified as "libertarian,"
and that since these theories have very different moral and social
implications, none can be said genuinely to be neutral between the various
moral and religious worldviews prevalent in a modern pluralistic society.
Will Wilkinson takes exception to my argument in his recent TCS piece. What
follows is a brief reply.

 

"Political Libertarianism"

 

The egalitarian liberal philosopher John Rawls made a distinction in his
book Political Liberalism between "comprehensive moral doctrines," which
comprise detailed and controversial moral and metaphysical accounts of
human nature and human society, and "political liberalism," which is
intended to be neutral between such comprehensive doctrines and to provide
a framework within which adherents of various doctrines can peacefully
co-exist. His aim was to find a way of showing how liberalism can be
defended without having to appeal to controversial moral and metaphysical
claims.

  

Inspired by Rawls, Wilkinson draws a parallel distinction between
comprehensive moral doctrines on the one hand, and "political
libertarianism" on the other. He suggests that political libertarianism is
a neutral framework that can be defended without having to appeal to any
particular comprehensive moral and metaphysical theory, including any of
the moral and metaphysical theories proffered by various libertarian
thinkers. The problem with my article, according to Wilkinson, is that I
fail to see this distinction.

           

 My answer to Wilkinson is that I am well aware that many libertarians
would try to make such a distinction, but I simply deny that they can do so
successfully. Indeed, showing this was the whole point of my original
article. Wilkinson's reply is thus little more than a prolonged exercise in
begging the question. He says that:

 

"
libertarianism, construed as a practical political theory, does not
require a 'deep' metaphysical justificatory theory. We needn't wait until
the last libertarian utilitarian or natural rights theorist dies in the
last ditch in order to say what libertarianism really is. The content of
political libertarianism is to be found in the overlap between these
different comprehensive libertarianisms. Something like: a relatively small
state governed by a rule of law that protects rights to personal autonomy,
contract, and private property from within the context of a robust and free
market economy."

 

But there are two problems with this characterization that reflect
Wilkinson's failure seriously to address my argument. First, his definition
doesn't say anything that an egalitarian liberal or non-libertarian
conservative couldn't agree with; indeed, many egalitarian liberals and
non-libertarian conservatives do in fact endorse "a relatively small state
governed by a rule of law that protects rights to personal autonomy,
contract, and private property from within the context of a robust and free
market economy." So Wilkinson's definition fails to capture anything
distinctively libertarian. The second, related, problem is that what counts
as e.g. "rights to personal autonomy, contract, and private property" and a
"relatively small state" -- something Wilkinson would have to elaborate
upon in order to make his definition informative -- is itself extremely
controversial, and controversial not only between libertarians and
non-libertarians, but even among libertarians themselves. It is therefore
no good to point to a commitment to "rights," "the rule of law," and the
like either as the common core of all libertarian theories or as the one
thing that all members of a pluralistic modern society can agree on,
because the content of these ideas is precisely what everyone disagrees
about. Wilkinson might as well argue that libertarianism, egalitarian
liberalism, socialism, and communism are all really varieties of the same
doctrine, because they "overlap" in their commitment to "freedom." Finding
some terminology that adherents of various positions all use hardly
suffices to demonstrate that there is some substantive view they all have
in common; what needs to be shown is that they use that terminology in more
or less the same way.

           

 To take two examples I appealed to in my original article, suppose we want
to know whether Wilkinson's "political libertarianism" entails a right to
abortion and/or same-sex marriage. One claim Wilkinson makes on behalf of
"political libertarianism" (paralleling the claim Rawls makes on behalf of
"political liberalism") is that it is a view that ought to appeal to a
sense of justice shared by all the members of a pluralistic society. But
either way one answers the question I just posed, it is blindingly obvious
that "political libertarianism" does not have such an appeal. For many
secularists and for the typical contractarian or utilitarian moral theorist
(libertarian or otherwise), abortion and same-sex marriage are going to
count as perfectly just, so that no prohibition of either of them can be
justified. But for the pious Muslim, orthodox Jew, or traditional
Christian, as well as for the typical natural law theorist (religious or
secular), abortion and same-sex marriage are going to count as paradigms,
not only of immorality, but of injustice: injustice in the first case
because abortion is regarded by such people as murder, and injustice in the
second case because the stability of the traditional family is regarded by
them as the foundation of any just social order (libertarian or otherwise)
and they typically regard same-sex marriage as a threat to such stability.
So for one group, justice requires allowing abortion and/or same-sex
marriage, and for the other, justice requires forbidding them. It follows
that whether or not "political libertarianism" allows for abortion and
same-sex marriage, it is inevitably going to be a conception which is far
from neutral between competing comprehensive doctrines. And this becomes
only more obvious when we consider that the reasons people differ over the
justice or injustice of the practices in question are also going to entail
differences over the justice or injustice of such practices as homosexual
adoption, cloning, embryonic stem cell research, and so on and on.

 

Moreover, since libertarian theorists themselves are going to disagree on
these issues, it is obvious that there is no interesting common core to all
the theories usually classified as "libertarian." A libertarian motivated
by contractarianism might plausibly regard the outlawing of abortion as
unjust, while a libertarian motivated by natural law considerations might
plausibly regard the permitting of abortion as unjust. A libertarian of a
utilitarian bent might plausibly regard the legalization of same-sex
marriage as legitimate, while a Hayekian libertarian might plausibly regard
it as a dangerous and unjustifiable tampering with inherited institutions.
Their disagreements are going to derive not only from the very different
foundations they give for libertarian conceptions of "justice," "rights,"
and the like, but also from the very different conceptions they thereby
arrive at of what "justice" and "rights" amount to in the first place. A
libertarian whose creed is based on an Aristotelian-natural law conception
of morality, for example, doesn't just differ from a utilitarian
libertarian in what grounds rights and justice; he has a totally different
conception of what rights and justice are.

  

As a result, the more socially and morally conservative sort of libertarian
may well find that he is closer in theory and practice to the Burkean or
natural law conservative than he is to "socially liberal" libertarians;
while the more socially liberal libertarian might find that he is closer in
theory and practice to the egalitarian liberal than he is to the morally
conservative libertarian. This is why I suggested in my original article
that when libertarians of various stripes "get clear about exactly what
they believe and why
 they might find that their particular version of
libertarianism commits them -- or ought to commit them -- to regard as
rivals those they might once have considered allies." (The standard
three-way classification of the most prominent views in American political
thinking as "conservative, libertarian, and egalitarian liberal" might
accordingly be less helpful and less revealing than an alternative two-way
classification, such as "libertarian and non-libertarian conservatives
versus egalitarian and non-egalitarian liberals.") In any event,
Wilkinson's characterization of "political libertarianism" doesn't reveal a
substantial common core to these various versions of libertarianism, but
merely papers over their very real differences by appealing to a conception
of rights and justice that is too vague to be informative. There is just no
way plausibly to disengage the content of libertarianism from its
philosophical foundations in the manner Wilkinson recommends.

            

 It helps not one whit for Wilkinson to suggest that the deep disagreements
between comprehensive doctrines that exist in contemporary society can be
mitigated within the context of "political libertarianism" by appealing to
"evidence from psychology and the social sciences -- evidence not grounded
in special, controversial, philosophical assumptions." For one thing, if
Wilkinson really thinks that psychology and social science in general are
free from "controversial philosophical assumptions," then he doesn't know
much about either social science or philosophy. For another thing, even the
harder sciences could surely do nothing to settle the deepest
disagreements. Opponents of abortion would say that it is just a biological
fact that the fetus is a human being from the point of conception, and then
conclude, from this and from the moral premise that every human being has
an inviolable right to life, that the fetus has a right to life. Defenders
of abortion would claim either that the fetus is only "potentially human"
or that while it might be human, it is not a "person"; and in either case,
they would draw the inference that it has no right to life. At bottom, the
dispute here is not scientific, but moral and metaphysical, and cannot be
settled without addressing the underlying moral and metaphysical issues.
The same thing is true of the debate over whether there is a right to
same-sex marriage: what counts as "marriage," as a "right," and so forth,
are issues that cannot even properly be understood, much less settled,
outside the context of substantive moral theory. Social and natural science
are in principle incapable of breaking the deadlock.

 

A dilemma

 

Now the point of all this (as I hasten to add for those readers about to
bombard me with hysterical emails about abortion and same-sex marriage)
isn't to decide here which view regarding abortion or same-sex marriage is
correct. It is rather to note that both sets of views can be defended on
grounds of justice by appealing to sophisticated comprehensive doctrines
held by millions of people in contemporary pluralistic societies.

            

 As I noted in my original article, Rawls's way of dealing with this sort
of problem was to hold that "political liberalism" need be neutral only
between "reasonable" comprehensive doctrines. The result is that Rawls
seems faced with a dilemma: he must either give so little content to the
key concepts of "reasonable" and "political liberalism" that his view
amounts to a useless tautology -- "political liberalism" is just whatever
is compatible with all "reasonable" comprehensive doctrines, where a
doctrine is "reasonable" only if it is compatible with "political
liberalism" -- or he must give so much content to them that he will end up
having to dismiss as "unreasonable" and "illiberal" a great many views held
by a great many members of contemporary pluralistic societies, thus
undermining his claim to be presenting a view that will solve the problem
of showing how adherents of the competing comprehensive doctrines prevalent
in such societies can peacefully co-exist. That Rawls opts for the second
horn of the dilemma is evidenced by his incorporation into "political
liberalism" of the redistribution of wealth entailed by his famous
"difference principle," and by his notorious suggestion that opponents of
legalized first-trimester abortions ought not to be regarded as
"reasonable." But this just shows how disingenuous is his claim to
"neutrality": Rawls's view is "neutral" only between those doctrines whose
adherents are willing to submit to the standard egalitarian liberal line on
social and economic questions. It can thus have no rational appeal for
those who did not already agree with Rawls before they read his book, and
his claim to be showing a way to divide through the most contentious issues
facing modern pluralistic societies is revealed to be bogus.

           

 Wilkinson seems faced with the same dilemma. Now it might seem, from the
vacuity of the definition he gives "political libertarianism," that he
embraces the first horn. But given the tone of his piece -- especially the
bizarre and unfounded accusation at the end of it that I want to force
"Roman Catholicism and Aristotelian metaphysics" on everyone -- one
suspects that Wilkinson is no fan of the conservative sort of morality
often associated with natural law theory, and would probably like to
formulate "political libertarianism" in such a way that a prohibition on
abortion, say, is incompatible with it. (This is, I grant, just an educated
guess, since Wilkinson is so extremely vague about what his position
implies with respect to specific problem cases like abortion -- as he has
to be if his view is to sound even remotely plausible.)

  

As with Rawls, then, the second horn of the dilemma is probably the one
Wilkinson would embrace, given his apparent broader commitments. But once
he embraces it, it is also clear that the "neutrality" he favors is as
phony as Rawls's. For natural law opponents of abortion would hold that it
is a requirement of justice that all human beings, including the unborn,
have their right to life protected by the state; in their view, no just
government can allow abortion, any more than it can allow slavery. And any
view that insists that abortion be legalized will, from the point of view
of the natural law theorist, thereby be imposing a particular moral view
(and a false one at that) upon others -- in particular, upon the unborn --
just as the institution of slavery was an imposition of slaveholders'
erroneous moral views upon slaves. Like Rawls's "political liberalism,"
Wilkinson's "political libertarianism" would have to define away the
problem this poses for his alleged "neutrality" by simply stipulating that
the opponent of legalized abortion is "unreasonable." Moreover, since there
are many libertarians (including some motivated by natural law theory) who
would hold that a libertarian state cannot allow abortion (since they take
abortion to violate the rights of the unborn), Wilkinson will also have to
stipulate that such people are just not "real" libertarians after all. Both
Rawls and Wilkinson start out promising a great breakthrough in political
thought, one which promises at long last to solve the problem of pluralism;
but the "solution" ends up being little more than a proposal to define
those who disagree with them out of legitimate political discussion.

            

 When the semantic game-paying is put to one side, however, it is clear
that, whatever one thinks of abortion, both pro-choice and pro-life
advocates can be reasonable (in the everyday sense of "reasonable," rather
than the ideologically loaded Rawlsian or Wilkinsonian sense); and it is
also clear that any view (whether one chooses to call it "political
libertarianism" or not) which requires either legalized abortion or a
prohibition on abortion is not genuinely neutral between all reasonable
worldviews. It is obvious too that a vast theoretical and practical gulf
separates pro-life and pro-choice libertarians, just as a vast theoretical
and practical gulf separated those believers in natural rights who held
slavery to be legitimate from those who held it to be unjust. Differences
this big cannot fail to reflect deep differences over the nature of
justice, rights, and the bearers of rights. Both the claims of my original
article are thereby confirmed: the differences between the various versions
of libertarianism are more significant than the similarities; and once one
gets clear about exactly which version of libertarianism one is talking
about, one will see that it is not genuinely neutral between all reasonable
comprehensive doctrines.

 

Wilkinson writes that "The mark of political maturity is waking up to the
irremediable complexity and diversity of our social world. Feser appears
not to have awakened." But it is Wilkinson who is asleep; indeed, he's
living in a dreamworld. For he fails to take seriously just how
irremediably complex and diverse our social world is. It is in fact so
complex that only a fool could believe that the deep moral disagreements
that divide it can be ignored for the purposes of politics, that all
"reasonable" people will inevitably abide by the allegedly "neutral" rules
of Wilkinson's conception of "political libertarianism" -- a conception
that one suspects just happens to square perfectly with Wilkinson's own
personal moral predilections, whatever they are (even as Rawls's "neutral"
framework just happens -- what are the odds?! -- to reflect precisely the
sensibilities of the typical Ivy League university professor).

  

Contrary to what some readers of my original piece suppose, I am not
hostile to all versions of libertarianism; in fact I am partial to a
version that combines elements drawn from the Aristotelian and the Hayekian
traditions. But I would not for a moment pretend that this view is
"neutral" between the comprehensive doctrines prevalent in modern
pluralistic society. It is no more neutral than any other view is, least of
all Wilkinson's. The Rawlsian quest to find some such neutral position is
understandable given the depth and fierceness of the moral disagreements
that plague contemporary political life, but it is a hopeless one. These
disagreements and their inevitable political consequences cannot be wished
away -- or defined away -- and libertarians do themselves no credit by
pretending otherwise.

 

Edward Feser (edwardfeser at hotmail.com) is the author of On Nozick
(Wadsworth, 2003).

 

Editor's note: This is the third and final article in a debate over the
nature of libertarianism between Edward Feser and Will Wilkinson. Read
Feser's first article here and Wilkinson's response here. Wilkinson will
have more to say on this piece at his website here. For more on this debate
from TCS contributor Julian Sanchez click here. Also see more from Boston
University Law Professor Randy Barnett, here.



-- 
-----------------
R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'