LIBERTARIANISM

LIBERTARIANISM
For and Against

Craig Duncan and Tibor R. Machan

ROWMAN & LITTLEFIELD PUBLISHERS, INC.

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Duncan, Craig, 1969–
Libertarianism : for and against / Craig Duncan and Tibor R. Machan.
p. cm.
Includes bibliographical references and index.
ISBN 0-7425-4258-0 (cloth : alk. paper) — ISBN 0-7425-4259-9 (pbk. : alk.
paper)
1. Libertarianism. 2. Liberalism. I. Machan, Tibor R. II. Title.

JC585.D83 2005
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Printed in the United States of America

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 For Trena—CD

For the Dougs—TRM

Contents

Foreword ix
Martha C. Nussbaum
Acknowledgments xv
A Note to Readers xvii
Tibor R. Machan and Craig Duncan

PART I

1 The Case for Libertarianism:

Sovereign Individuals 3
Tibor R. Machan

2 The Errors of Libertarianism 45

Craig Duncan

3 Fairness—or Equality—Is No Imperative 65

Tibor R. Machan

vii
viii / Contents

PART II

4 Democratic Liberalism: The Politics of Dignity 79

Craig Duncan

5 The Follies of Democratic “Liberalism” 127

Tibor R. Machan

6 Democratic Liberalism Defended 145

Craig Duncan
Index 159
About the Authors 169
Foreword
Martha C. Nussbaum

The topic addressed in this book is of extraordinary impor-

tance. In the world as a whole, inequalities in basic welfare
and life chances are rapidly growing. As the United Nations
Development Program summarized the situation in its Human
Development Report 2000:

Global inequalities in income increased in the 20th century

by orders of magnitude out of proportion to anything expe-
rienced before. The distance between the incomes of the
richest and poorest country was about 3 to 1 in 1820, 35 to 1
in 1950, 44 to 1 in 1973 and 72 to 1 in 1992.

People of good will in wealthy nations naturally wonder what

ethical responsibility, if any at all, they bear for changing this
situation and whether such problems are best addressed
through private charity or through government action, or
through some combination of the two.
Within the United States too inequality is a daily fact of
life. From now on let us focus simply on the issue of inequal-
ity within a single nation. About one fifth of America’s chil-
dren live in poverty, and the absence of national health care

ix
x / Foreword

means that many children and adults go without the oppor-

tunity for basic medical treatment. Although the United States
is among the richest nations in the world in terms of gross do-
mestic product per capita,1 it does not do so well on other so-
cial indicators. Twenty-six nations rank ahead of the United
States in life expectancy (including some relatively poor na-
tions, such as Costa Rica and Barbados). If we look at the
probability at birth of not surviving to age sixty, the U.S. fig-
ure is 12.6 percent, whereas most European nations are
around 8 percent. Maternal mortality is another area in which
the United States lags behind others.
One reason for the poor performance of the United States in
these areas is surely the fact that it has much more inequality
than most developed countries, and this translates into lack of
opportunity for many people to get adequate health care and to
lead safe and healthy lives. On the so-called Gini Index, a mea-
sure of economic inequality commonly used by economists, the
United States has greater inequality than any nation in Europe
and Australasia, much more inequality than Canada, and
around the same amount as Hong Kong and Singapore. To put
it another way, the richest 10 percent in the United States have
15.9 times as much income as the poorest 10 percent. Given the
absence of national health care, poverty usually means inade-
quate prenatal care and lack of essential medicines and treat-
ments for children. Nobel Prize–winning economist Amartya
Sen has demonstrated that the life expectancy and health data
for Harlem in New York City are very similar to those for Ker-
ala in southern India, a poor state in one of the world’s poorer
countries. Such data suggest that the gap left by the absence of
state action in these areas has not been made up by effective pri-
vate action, not where poorer Americans are concerned. The
wealth generated by permitting high rates of inequality does
not exactly “trickle down” to the poor, at least not enough to
give all children a decent shot at life.
If one believes, as I do, that all human beings ought to
have opportunities for lives in accordance with human dig-
 Foreword / xi

nity, these are depressing statistics. There have also been,

however, some encouraging signs in the United States over
the past few decades. One of the most encouraging is in the
area of disability. We have done much more than most nations
to integrate people with a variety of physical and mental im-
pairments into the educational system, the work force, and
generally into full participation in social life. If one were to
measure the life opportunities for people with a variety of dis-
abilities, the United States would rank well. But how has this
development come about? The state, with laws such as the
Americans with Disabilities Act and the Individuals with Dis-
abilities Education Act, has taken a strong hand. Such strong
state measures are increasingly under threat, in a nation in
which libertarian thought increasingly holds sway.
Libertarianism is an old political movement; it has been
around in some form ever since the 1960s. In some form, such
ideas are probably much older; at least, their proponents trace
them to (their interpretations of) much older thinkers, such as
John Locke in the seventeenth century. But in the Reagan/
Thatcher era and since, libertarian ideas have taken on increas-
ing importance in the public debate. By now it is not at all un-
common for people to assume that taxation is a morally
problematic interference with property that is theirs, and to
which they have a right; that a strong state is bound to be a
tyrant, playing havoc with people’s freedoms; that such mea-
sures as laws protecting people with disabilities, laws making
sexual harassment in the workplace illegal, and laws protecting
the environment are all excesses of overweening state power.
Many Americans feel that we would be better off if the state just
“kept its hands off” the parts of life that people value most.
Now, of course, there is general agreement that the state has
the obligation to protect national security and to protect all cit-
izens from force and fraud; to maintain systems of contract and
property rights; to ensure, in general, that the rule of law pre-
vails over anarchy. Anyone who ponders these areas of life will
see that personal freedom does not mean the absence of state
xii / Foreword

action. If the police, the fire department, the legal system, and
the military do not do their jobs, nobody is particularly free. But
beyond this point there is great disagreement. People disagree
about taxation—who has a right to what, and what is a reason-
able tax structure. They differ about anti-discrimination laws,
libertarians typically holding that they are a bad thing but
many other Americans holding that they are essential to a soci-
ety that values racial justice, gender justice, and justice for peo-
ple with disabilities. They differ about environmental
protection, some holding that industry should be free to make
any choice that seems profitable, others holding that state pro-
tection of the environment contributes to the well-being of all.
Both sides ought to agree, however, that the choices we
make in this matter are complex. There is no option of simply
“letting” everyone be “free” through “state inaction.” If one
lives (as I have for periods of time, in rural India) in a place that
has no clean water supply, no electricity, no public transporta-
tion, no public education, and no reliable legal system, one will
discover that one is not very free there to do the things one
wants to do. We should all agree that any meaningful human
freedom requires the state to provide some essential services
and guarantees. Moreover, in a rich nation such as the United
States, the choice to leave these matters unattended to is not in-
action but a choice; it is action. The differences between sides
must concern the extent and the nature of various state protec-
tions, and the nature of the actions the state should choose.
The debates that typically go on over such matters in
American politics are hasty and strident. They employ “sound
bites” and slogans rather than reasoned arguments. But de-
mocracy requires something better of us all—it requires that
we really think through our choices and stand for what we can
defend with good arguments. To make good arguments, we
also need to listen to the arguments of others. Often two sides
in a debate share important assumptions, and progress can be
made simply by setting out the argument in detail and finding
out where the differences really are. There has been a long tra-
 Foreword / xiii

dition of argument, in Western philosophy, about the scope of

state authority; thus listening well in this area means listening
as well to the arguments that predecessors have made.
The aim of the exchange between Machan and Duncan is
to provide an example of reasoned philosophical debate on
these important issues. Machan and Duncan differ sharply
about what is right in this area, but both agree in their com-
mitment to reason. They lay out their positions with ad-
mirable clarity, so that the reader can see where they agree (on
the importance of human dignity, for example) and where
they disagree. The structure of the book is like that of a philo-
sophical dialogue, each one posing questions and replying to
the questions the other has posed.
We can all learn by constantly confronting the best argu-
ments on the other side of the questions we care about, as well
as the arguments that support our own positions. My foreword
has not been at all neutral, and I do not intend it to be. I have
suggested some reasons why I am strongly skeptical about lib-
ertarian thought. But this means that I owe it to myself to
(re)read and ponder the arguments of Machan even more than
those of Duncan, and to try to think what the best arguments
are for the position that I have previously rejected. I hope that
readers who come to this book with strongly held positions on
one side of this debate will focus on learning the arguments on
the other. That is not only a good thing for one’s arguments, it
is a good thing for mutual respect in a democratic society.

Note
1. The only nations that rank ahead of the United States in the data of the
2004 Human Development Report are Norway, Ireland, and Luxembourg.
Acknowledgments

Craig Duncan would first like to thank Tibor Machan for be-
ing such a civil and amiable debate partner, despite the depth
of disagreement between us. Thanks are due too to the editors
of the Philosophers’ Magazine for publishing the “Open De-
bate” on libertarianism (First and Third Quarters 2003) out of
which this project grew. Special thanks go as well to Peter
Bardaglio, provost of Ithaca College, for arranging (with very
short notice) a faculty summer research grant, which was cru-
cial to the completion of this project. After a draft of my chap-
ters was completed, the comments of my colleagues Stephen
Schwartz, Frederick Kaufman, and Sean McKeever led to
many improvements and were much appreciated. Finally, I
am grateful to my wife Trena Haffenden, whose support sus-
tains me, and to our children Joseph and Beth, who have
taught me as much about responsibility as I have them.
Tibor Machan, in turn, wishes to thank Craig Duncan for
proposing this exciting project and for handling much of the
red tape associated with it, as well as for the civil tone of his
side of the discussion. He is also grateful to the Philosophers’
Magazine for hosting the initial debate on libertarianism. Jim
Chesher, Tibor’s longtime friend and his coauthor for several

xv
xvi / Acknowledgments

books, has been very generous with his time and skill as he
provided suggestions and some criticism of Tibor’s portion of
the input in this debate. Chapman University and Freedom
Communications, Inc., should also be thanked for the support
Tibor has received for working on this project. Of course, the
content of his contributions are entirely his responsibility.
Finally, both authors would like to thank Eve DeVaro and
Melissa McNitt of Rowman and Littlefield for their able assis-
tance with this project.
A Note to Readers

Not just American but world politics often revolves around

which conception of justice—or of a good society—should be
the aim not only of politicians and public officials but (espe-
cially) of citizens. Much of the globe is at this time grappling
with the challenges of citizenship participation. The more cit-
izens get involved and the better educated they become, the
more their input—or their act of withholding it—will influ-
ence the nature of the polities in which they live.
Of course, this assumes something about which philoso-
phers and others debate a good deal: Are we really in control
of our lives, particularly our political fates? We will not, how-
ever, enter that important discussion in this book, assuming
instead that what people think and do does make a difference,
even if slowly, on the shapes their societies are to take. In our
case, we urge two different ideals about this matter.
Tibor Machan is convinced that the libertarian idea of jus-
tice is right and ought to be promoted and implemented
wherever that is possible, while Craig Duncan advocates
democratic liberalism. These two positions may not seem to
be in opposition, and in some contexts of political discussion
their differences are not especially significant.

xvii
xviii / A Note to Readers

Critiques of Western democracies often encompass both

positions involved in our debate. But once the broad frame-
work of Western democracies is embraced, there remain seri-
ous questions about exactly what kinds of constitutional
provisions should be laid down and developed into the vari-
ous nuances of a country’s legal order.
Machan holds that a certain idea of individual rights
should constitute the centerpiece of a society’s system of jus-
tice, worked out within its system of law. He argues for the
view that an extension of John Locke’s theory of individual
rights to one’s life and property—in Locke, “person” and
“estate”—is required for a just society. Duncan, in contrast,
holds that a democratic liberal system ought to develop into
a polity the constitution of which provides for all a measure
of security and well-being, via public policy. Thus some re-
distribution of wealth, where it is required for providing
such security and well-being, is an imperative of justice as
Duncan sees it.
Since this is a debate-format book involving two authors
with very opposed ideas, some words are in order regarding
the process of writing the book. As the first step, each author
composed—independently of the other—an essay outlining
and defending his political philosophy. These first essays re-
spectively constitute chapter 1 (Machan’s defense of libertari-
anism) and chapter 4 (Duncan’s defense of democratic
liberalism) of the book. After completing these opening essays
defending their philosophies, the authors exchanged them
with each other, and each author then penned a critique of the
other’s opening essay. These critiques, also written indepen-
dently of each other, became chapters 2 (Duncan’s critique of
libertarianism) and 5 (Machan’s critique of democratic liberal-
ism). Finally, the critiques were exchanged, and each author
wrote a rebuttal; the rebuttals are chapters 3 and 6.
After completing the chapters, some light editing was
done to polish the prose, but the substance was left in place,
so that neither author could retroactively change points that
 A Note to Readers / xix

his coauthor criticizes in later chapters. After all, such retroac-

tive changes are impossible in a live debate, and the goal
throughout was to simulate the structure of a live debate in-
sofar as possible, thereby capturing some of the dynamism of
that format. The resulting back-and-forth, we think, cuts to
the heart of this important debate and reveals how a civil ex-
change of objections and replies can illuminate a topic that so
often generates shouting matches. As for which side prevails
in this reasoned exchange, we leave that to you, the reader, to
judge.
PART I
1
The Case for Libertarianism:
Sovereign Individuals
Tibor R. Machan

What I wish to argue here is that libertarianism, as the devel-

opment of classical liberalism and the political principles
sketched in the American Declaration of Independence, is the
best answer to the question, “How ought we to organize our
political societies?” Since the Declaration is an announcement,
not a detailed treatise, this concise statement of political ideals
needs to be fleshed out. The bottom line, though, of the
Founders’ idea, as well as of libertarianism, is that individual
members of human communities are sovereign, self-ruling or
self-governing, agents whose sovereignty any just system of
laws must accommodate.1
Throughout the world, the thinking about the United
States by ordinary folks—or at least in terms of the United
States as a political community—still brings to mind the sub-
stance expressed in the Declaration. This is that people have
been created equal and endowed by their creator—be that
God or nature—with unalienable rights, and that the role of
government in a just system is to “secure these rights.”
The revolutionary element in the Declaration is that un-
like in most official political statements of the past, it deems
the individuals constituting society to be the focus of political

3
4 / Chapter 1

importance—not the monarch, chief, tribe, party, class, or

even majority. The reference to unalienability renders the
document an especially radical one. It affirms the uncompro-
mising priority, within the context of public-policy decision
making, of everyone’s rights—among others, those to life, lib-
erty, and the pursuit of happiness. It also assigns to the just
powers of governments the primary function of securing
these rights. Thus the Declaration of Independence is in its
essence a libertarian document—it is concerned with the basic
right to individual liberty of all those who are citizens of a po-
litical community.2
Libertarianism—once referred to as “classical liberalism”—
proposes a strictly limited conception of politics, in contrast to
that embodied in, for example, monarchies (from absolute
types to those limited by the parliament), the welfare state,
fascism, or socialism. All such latter systems have top-down
structures and hierarchies of importance, in which certain
common ends or goals—or as the late Robert Nozick called
them, “end states”—are sought for everyone, rather than the
bottom-up type envisioned by the American founders, which
stresses procedural principles by which the society is to be gov-
erned. Order, fairness, cultural superiority, and the like are not
the goals of “bottom-up” governance; consensual community
life is.
It is human individuals, living their lives on terms of their
own, who matter most in such a political system. Even the
much championed democratic aspect of such a system is
strictly limited. The method of democratic decision making is
to be circumscribed and restricted so that only those demo-
cratic decisions can be construed as just and proper that do
not violate individual rights.
As a matter of history, the U.S. Constitution gave some, al-
though by no means full, expression of the ideals stated in the
Declaration. There were some major contradictions, including
slavery and some other coercive features within the Constitu-
tion, supposedly allowed so as to appease some powerful
 The Case for Libertarianism / 5

prospective U.S. citizens for the sake of creating a strong fed-

eral union that would be capable of resisting foreign interven-
tion. Still, what has been perceived as particularly novel about
the American founders’ vision remains a serious political al-
ternative today and still energizes a great many people to seek
to emigrate to the United States so they may benefit from the
protection of individual human rights promised, albeit some-
what confusedly, in that society.
What specifically are these energizing ideals? What does
the claim mean that every adult individual has unalienable
rights—rights that cannot be lost so long as one remains a hu-
man being—to, among other things, life, liberty, and the pur-
suit of happiness? That claim translates into a system of
political society wherein everyone is authorized to carry on
his or her chosen activities and pursue his or her objectives,
only if doing so does not violate others’ rights—and wherein
the government’s role is restricted, as already noted, to secur-
ing these individual rights. Other valued goals and ends are to
be sought without the use of coercive force, even that which
government might lend in aid of such pursuits. There is an
underlying assumption in the Declaration and in libertarian-
ism that once human beings are forbidden to deploy coercive
force in pursuit of their objectives, they will tend to pursue
them peacefully, with one another’s consent, and that this will
produce as good a human community as is achievable among
human beings. Indeed, libertarianism stresses the ideal of civil
society—meaning a society that eschews dealing with one an-
other by subjugation, oppression, conquest, or similar coer-
cive means, means taken to be standard in the non-human
animal world.
It is worth noting here, parenthetically, that among liber-
tarian political philosophers and theorists it is generally un-
derstood that there is a decisive difference between coercion
and force—the former is initiated, unjustified, and oppressive,
whereas the latter is the application of physical power for var-
ious purposes, some of which can be quite justified, such as
6 / Chapter 1

self-defense or the defense of someone who has delegated this

authority to another, or, of course, various productive ends,
such as hauling bricks or moving boulders. Force is akin to vi-
olence, which may be justified or not. Thus, being forced to
work may be unobjectionable if the source of this force is the
necessity to eat.3 (Not all libertarian thinkers keep strictly to
the distinction—some will use the phrase “coercive force” to
indicate the difference involved.)
One way to see this is to understand government as hav-
ing the professional duty to protect the basic rights of the citi-
zenry that has instituted, “hired,” or established it. This is
probably fruitfully illustrated by how at a sports event refer-
ees are hired to carry out a strictly limited role, namely, to
make sure everyone plays by the rules of the game.4 (Just as
referees can come to the aid of injured athletes without their
job description being changed to “medics,” so government of-
ficials are not barred from occasionally answering to emer-
gencies. The cop on the beat, though a peacekeeper, may now
and then give directions to someone who is lost, provided this
does not interfere with his essential task.)
Government’s role, like the referee’s, is important, without
doubt. The institution has been perceived as important, de-
spite much of the malpractice of various governments over
the centuries, because it is reasonably well understood that in
human affairs it is necessary and valuable to uphold stan-
dards of conduct and have specialists to do so properly, ad-
hering to the complications of due process. This is to say that
justice must be secured justly. (For libertarians the debate con-
cerns mostly whether a government, with a monopoly over
the lawful use of force within some region, or whether various
“defense-insurance”—or justice—agencies, without any such
monopoly status, ought to carry out this task.5 Some libertar-
ian theorists call themselves “anarchists,” some “minar-
chists.” The former substitute for government what they call
defense-insurance agencies, competing legal services or the
like, whereas the latter argue for a noncoercive system of law
 The Case for Libertarianism / 7

enforcement that would amount to proper government, via

the full—explicit or implicit—consent of the governed, yet
that would be a natural monopoly within a given geographi-
cal region.)
But politicians and bureaucrats, with the precarious task
of securing our rights without violating them as they do so,
are not also doctors, dentists, dance instructors, or members of
some other profession. Professional referees do some very
specific things, primarily to adjudicate disputes over rules—
and that is essentially what the libertarian or classical liberal
political position proposes. It rests on the idea that once they
reach adulthood human beings are sovereign individuals,
with no proper authority to govern another without that
other’s consent to be governed. As Abraham Lincoln put the
point, “No man is good enough to govern another man, with-
out that other’s consent.”6 Any coercion by one person of an-
other is thus deemed unjustified, and government is
employed to protect everyone against such coercion, includ-
ing itself. (Force used defensively or in retaliation is not, as we
have seen, the same as coercion—the use of force in violation
of people’s rights—although the distinction is not often put in
these terms.)
The mainstream political stance, in contrast, tends to be
represented by advocates of a more or less expanded welfare
state, both those on the Left and on the Right. What main-
stream politicians argue over are the expenses—and at times
the scope—of a democratically guided coercive welfare state,
not whether such a state should exist or is just.
I say “coercive,” but this begs the question, since advo-
cates of the welfare state often hold that what is taken from a
person, be it assets or labor time, is in fact owed to others by
a natural obligation of some sort, that others have a positive
right to it. If, for example, Charles Taylor is correct that we be-
long to our communities, that we are a part of these commu-
nities, then the services and resources we are made to
contribute are like dues we owe. As Taylor laments, “Theories
8 / Chapter 1

which assert the primacy of rights are those which take as the
fundamental, or at least a fundamental, principle of their po-
litical theory the ascription of certain rights to individuals
which deny the same status to a principle of belonging or ob-
ligation, that is a principle which states our obligation as men
to belong to or sustain society, or a society of a certain type, or
to obey authority or an authority of a certain type.”7
I have argued elsewhere, however, that rights theories in the
Lockean tradition do not take rights to have normative primacy.
Rights are derived from the requirements of the ethics of indi-
vidual flourishing within the context of human communities.
There is no denial of the essential sociality of human beings, but
the Lockean tradition maintains that the individual needs to be
at liberty to determine to what sort of community he or she will
belong—if only by means of tacit or implicit consent—and that
the right kind is one in which his or her sovereignty has primacy.
It is only such a community that is fitting—that is, meets the
standard of justice—for human beings.
Libertarians, following the political vision of the Ameri-
can founders (who themselves took their cues from the likes
of John Locke), believe that people have to take care of their
own specific welfare, within and by the voluntary coopera-
tion of their various communities and associations—families,
churches, service organizations, companies, clubs, and so on.
Only the general welfare is to be promoted by government,8
the securing of our basic rights—just as referees may be said
to promote the general welfare of an athletic event by up-
holding its rules. People, in turn, are capable of doing their
job of promoting their specific welfare—pursuing their own
happiness—effectively if the government sticks to this refer-
eeing role, namely, running the courts, the police, and the
country’s defense.
Obviously, there are nuances and complications when one
translates these libertarian ideals into practical policy. Still it is
fairly clear that libertarian political thinking would contrast
sharply with a great deal of the current mainstream thinking
 The Case for Libertarianism / 9

in even the Western world, let alone the rest of the world, con-
cerning the purpose of politics.
Interestingly enough, in the international arena the lan-
guage of this libertarian classical liberal political position is vi-
brant now. Ideas such as privatization, globalization, property
rights, and the infrastructure of a free market system concern
the extension throughout the world of the ideas laid out in the
U.S. Declaration of Independence. If the people of all the var-
ious societies around the globe want to prosper and improve
their lives, they do better by adopting the principles of a free
society associated with the American political tradition than
those of competing systems. Although in the United States
such ideals are not fully embraced or manifest, there remains
throughout the world a rhetorical identification of America
with the ideals of a fully free, voluntarist society of civil liber-
ties, freedom of thought and worship, free trade, free markets,
and capitalism. It is these ideas that are exported in the move-
ment roughly identified as “globalization.”
Also, interestingly, when the foreign policies of the U.S.
government are evaluated, libertarian notions tend to appear—
such as the critique of preemptive military attack, which rests,
at least implicitly, on the idea that unless someone initiates force
against a country—or is about to do so—that country is not au-
thorized to take forcible action. In short, the idea that force must
be limited to self-defense is quite prominent in such discus-
sions, yet of course many abandon it when it comes to the role
they assign to government in domestic affairs (e.g., precaution-
ary government regulations of various professions, which ar-
guably violate the ban on prior restraint, the prohibition of
using force on those who have not violated anyone’s rights but
merely might do so).
Now, what is crucial is why this libertarian alternative is a
good idea. It is one thing to say “We’re for it” but another thing
to say “We’re for it because it’s right.” In a column in The New
Republic, the author once recalled having attended an economic
conference in Japan and being cornered by a Japanese official
10 / Chapter 1

who complained that the Americans are arrogant because they

try to implore everybody else to accept their views about mar-
kets and economies. Certainly libertarians do this as well.
Of course, nearly all political ideals are championed for
all, although in recent times the doctrine of multiculturalism
has tended to soften that stance.9 One way of putting the point
is to ask, “Why should what was laid out for Americans work
elsewhere or be right for others around the globe? Why can’t
different communities have their own different political sys-
tems?” Many people say that about Cuba or even North Ko-
rea and (before March 2003) Iraq—why should these change
into more democratic, individualist societies rather than stick
to their more collectivist systems? Maybe within those soci-
eties such a system is more suitable. Yet, of course, those soci-
eties too are championed by some who would wish the whole
world conformed to their visions. So the problem of propos-
ing political ideas across the board, for all human communi-
ties, faces not only libertarians. If the implicit notion that
liberation is a kind of imperialism made good sense here, one
could go on to argue that urging Cuba, Iran, or any other so-
ciety around the globe to “democratize”—on the American,
classical liberal model—would be to practice imperialism, of
attempting to impose on others a system that is suited not to
them but only to the society imploring them to change. It
would smack of empire building, making every society con-
form to the principles of a dominant one. That is just the com-
plaint some make about American-style Western liberalism as
well as its purified version, libertarianism.
Yet, advocating everyone’s basic right to negative liberty—
that is, liberty from others’ intrusive or aggressive conduct—
and trying to export it peacefully, by persuasion and economic
pressures, imposes nothing on anybody (just as a strike by
workers does not constitute a coercive imposition on anyone).
Yes, an idea and policies consistent with it are being advo-
cated, suggested, and recommended. But no one is being
made to do anything. In fact, the situation is quite the oppo-
 The Case for Libertarianism / 11

site. The libertarian proposal for others to follow is akin to ad-

vocating the abolition of slavery. Slave owners looked upon
the abolitionists with the same attitude: “Why don’t you keep
your abolitionism to yourself? We like it here, we have our lit-
tle quaint tradition called slavery, and you shouldn’t come in
here and impose upon us your ideas of abolition.”10
That is the same line that Fidel Castro, Kim Jong Il, and
their defenders advance (as Saddam Hussein once did) in re-
sponse to those who advocate greater democracy and indi-
vidual rights in the countries they rule: “The Americans are
imposing upon us this idea of democracy and individualism
when they do not want us to force everyone into collective
farming and industrialization.” It is the same when others ob-
ject to free market globalization. What that idea comes to is
the freeing up of people’s commercial and related activities,
the removal of state impediments to them. The people who
complain most about it are those who believe they should
have the power to run economic institutions, in a top-down
fashion, just as monarchies ran their mercantilist societies.
In many corners of the world, this idea that governments are
responsible for everything—governments are supposed to es-
tablish religions (like in Iran or to some extent even in Israel),
governments are supposed to establish the conditions or culture
for the arts, for economics, and so on—is still very prominent.
Libertarians hold that the American Revolution (and it was a
genuine revolution, unlike the Russian one, which was just a
change of rulers), had been genuinely radical because it placed
on record, officially, for the first time the idea that it is individ-
ual human beings who matter most in society, not the tribe, clan,
ethnic group, religious organization, or even the family.
Now, libertarianism is sometimes advanced on the
grounds that when people enjoy the conditions of negative
liberty, everybody makes the best judgments and the most
beneficial consequences all around are realized. Such a conse-
quentialist approach is unwise, since it suggests that free men
and women always do the right thing while those who would
12 / Chapter 1

regiment them seldom do. No, libertarianism only requires

that everyone ought to be treated as somebody whose judg-
ment matters and who is owed such treatment that his or her
own judgment can guide his or her life. Only once this free-
dom to act on one’s judgment is secured can we begin to talk
about whether one chooses to do the right thing or the wrong
thing, whether one decides correctly or incorrectly. Such a dis-
cussion is supposed to be conducted in a civilized fashion,
through reason and not coercive force.
In a libertarian system no vice squad is sent to break up
prostitution, but prostitutes may be implored to stop their de-
grading professional practices. Once we send in the vice
squad we actually deny the prostitutes their humanity, as if
they could not make up their own minds. Indeed, by the lib-
ertarian’s understanding, any introduction of coercive, initi-
ated force in human relationships does violence to people’s
humanity. This is because human beings are by their basic na-
ture rational animals, whose primary tool of survival and
means of flourishing is thought, for which negative liberty is
the central prerequisite. So, even such vital objectives as help-
ing the poor, uneducated, or sick must be achieved not by sub-
duing others and conscripting them to take part in the mission
but by convincing them to do so.
There are better ways than coercion to solve problems. The
whole point of civilization is to imbue a culture, a society, with
the method of reasoning, argument, and persuasion rather
than coercive force. Force is supposed to be the major means
available to other animals, which do not have the capacity to
reason. Humans, in contrast, are supposed to be patient
enough to wait until they manage to convince other people or
learn to live with the fact that they have not managed that
task. That is what is made possible in a system in which rights
are the foundation of law.
One of the libertarian elements of the United States of
America, one that serves as an instructive model of how a
generalization of the position would work, is the guarantee of
 The Case for Libertarianism / 13

religious freedom. About 4,200 different religions and denom-

inations range throughout America.11 Are they at war with
each other? They are in a war of words every time one of their
members speaks from a pulpit: we are right, our God is right,
our scripture is right, and all the other 4,199 sects are wrong.
But they do not go to war with each other. They argue. They
try to persuade each other.
Why is that possible? One of the reasons is private prop-
erty rights. They can buy themselves land, build a church, and
come together on it; nobody can legally go disturb them there.
They have the right to run their own affairs within the confines
of what belongs to them. We have that right in a free society, in
our backyards, our houses, our yards, our companies, our as-
sociations, our clubs, and with our own “stuff.” If my stuff re-
ally is mine rather than the government’s, as some people in
our political community believe, then I can assign the use of
that stuff either to myself or those to whom I am devoted or
some cause I want to support; it is not taken from me by force.
Let me summarize my rather cursorily laid-out points in
favor of libertarianism. Human nature consists of everyone’s
being a rational animal, one whose survival and success de-
pends on initiating the process of thinking about the world,
becoming aware, paying attention. In human communities the
unique danger that arises is not a matter of the natural obsta-
cles to one’s life and success—those one faces in or out of com-
munities. The unique danger is from other persons who would
wish to survive and succeed on the basis not of their own ef-
forts or good fortune but of wresting support from other peo-
ple. So it is sensible, prudent, to establish law and order with
the goal of resisting such efforts—criminal undertakings—that
impede one’s liberty to progress peacefully in life on one’s own
or with willing others. The right to private property, via prop-
erty law in developed communities, secures for everyone a
sphere of personal jurisdiction so that it can be determined
when one is acting within one’s own sphere or intrudes on the
spheres of others. The job of adjudicating disputes about these
14 / Chapter 1

“border crossing” matters falls to the legal authorities or gov-

ernment, and they must rectify matters without themselves
violating anyone’s rights. As far as dealing with other soci-
eties is concerned, all this implies that no aggression may be
used in international relations and that force may be deployed
only in retaliation, whatever internal injustices are perpe-
trated in other societies.
The crux of libertarianism is, then, individual indepen-
dence in making decisions, including about associations with
others. Ideals such as cultural diversity, economic equality,
racial harmony, and the like must not trump this basic value.12

Individualism

One source of consternation for many political philosophers and

theorists—for example, Karl Marx, C. B. Macpherson, Charles
Taylor, Amitai Etzioni, John N. Gray—is the individualist ele-
ment in classical liberalism and, especially, libertarianism. They
have dubbed the version of individualism they associate with
these positions “atomistic,” meaning that human beings are
taken in these views to be isolated, separate, self-sufficient, in-
dependent living beings, along the lines of Robinson Crusoe.
It will be useful, therefore, to put on record at least one lib-
ertarian view of individualism that refutes this characterization.
Individualism is the view that, put briefly, human beings are
identifiable as a distinct species in the natural world and have as
at least one of their central attributes the capacity to be unique,
rational individuals. Whatever else is central about being a hu-
man being, each adult person, unless crucially debilitated, has
the capacity to govern his or her life by means of the individu-
ally initiated process of thought, of conceptual consciousness.13
Furthermore, excelling as such an individual human being
is the primary, proper goal of each person’s life. A just politi-
cal community, in turn, is one that renders it possible for all
(or as many as is realistically possible) to pursue this purpose.
 The Case for Libertarianism / 15

As the novelist-philosopher Ayn Rand put the point—

following similar observations by Aristotle and Thomas
Aquinas—adult persons are “beings of volitional conscious-
ness.” This involves, among other things, the crucial capacity
to choose to embark upon—to initiate—a process of (thought-
ful) action.
If we are entities of a type that can be a causal agent, an
initiator of its own behavior, a crucial basis for individuation
arises—that different human beings can and actually do
choose to exercise their conscious capacities and direct their
ensuing actions differently. Putting it more simply, if we have
free will our diverse ways of exercising it can make us each
unique. So even if there were nothing else unique about dif-
ferent persons, their free will could introduce an essential in-
dividuality into their lives. (This is something with a major
impact on the social sciences, on psychology and psychother-
apy, and, of course, on ethics and politics.)
Yet different people are also uniquely configured, as it
were, as human beings; thus they can face different yet
equally vital tasks in their lives. Our fingerprints, voices,
shapes, ages, locations, talents, and, most of all, choices are
all individuating features, so we are all unique. This is the
crux of the individualist thesis. Nonetheless, since we are all
such individuals, we constitute one species with a definite
nature associated with that species possessed by each mem-
ber. This may seem paradoxical, that one of the defining at-
tributes of the human (kind of) being is the distinctive
potential for individuality, based on both diversity and per-
sonal choice.
This position has certain implications that are very close to
those usually thought to follow from a somewhat different, of-
ten labeled “radical,” individualism. These implications are
the existence of the libertarian political ideas and ideals of in-
dividual rights to life, liberty, and property. We might call the
earlier version of individualism “atomistic” or “quantitative,”
the latter “classical.”14
16 / Chapter 1

Atomistic or radical individualism is distinct. It is usually

linked to Thomas Hobbes and his nominalist and moral-
subjectivist followers. Its most basic, ontological thesis is that
human beings are numerically separate bare particulars
(meaning “beings without a nature, without being classifiable
as any kind of beings”). Their individuality is quantitative,
not qualitative, primarily consisting of their existence as sep-
arate entities, not of their capacity and willingness to forge
distinctive lives of their own.
A problem that some see with the neo-Hobbesian indi-
vidualist tradition is that it implies that political norms are ul-
timately subjective—usually taken to be mere preferences.
For Hobbes, to start with, “whatsoever is the object of any
man’s appetite or desire, that is it which he for his part calleth
good: and the object of his hate and aversion, evil.” So the
classical-liberal polity is itself, by the tenets of such individu-
alism, no more than some people’s preference, one that oth-
ers may not share, and quite legitimately. As some critics
have put the point, in terms of the Hobbesian individualist
position liberty is just one among many different values peo-
ple desire. This political tradition has thus been vulnerable to
the charge of arbitrariness, of resting simply on preferences
that some people—for example, the bourgeoisie, capitalists, or
white European males—happen to have.
Even in Hobbes’s time there were other versions afoot,
usually linked to Christianity. By the tenets of a Christian ver-
sion, each person is a unique child of God, thus uniquely im-
portant and not to be sacrificed to some purpose of the tribe
or state, for example.15 This, at least, is one path to the conclu-
sion that a just political community must make room for the
sovereignty of the individual human being—one’s ultimate
and decisive role in what one will do, be it right or wrong. An-
other path is the secular, neo-Aristotelian view in terms of
which while human beings are rationally classifiable as such,
one of their essential attributes is that they can and usually
choose to be unique. So, in contrast to Marx’s claim that “the
 The Case for Libertarianism / 17

human essence is the true collectivity of man,”16 the classical

individualist holds that “the human essence includes the true
individuality of every human being.”
In the radical individualist tradition a major libertarian el-
ement is the subjectivity of values. Accordingly, free market
economists have tended to reject all government regimenta-
tion of social affairs, seeing them as driven by subjective pref-
erences that cannot be known to anyone other than those who
hold them. Such a view has served to undermine all efforts to
impose values on individuals.
The classical individualist position argues that values are
objective but also quite often idiosyncratic and they require
free choice to give them moral significance. This too prohibits
government imposition of values but not for skeptical rea-
sons. Also, it enables one to defend the political value of lib-
erty as more than simply one of many subjective preferences.
As far as free markets are concerned, one main reason they
function more successfully than statist alternatives is that in a
free market individual aspirations, goals, preferences, values,
and such have a major impact on what will be produced. This
in turn results in a more prosperous society than one where
such individual goals and so forth are trumped by various so-
called public-interest considerations that, in fact, are no more
than the interest of vocal groups of individuals overriding
that of others. Even the famous calculation problem identified
by Austrian economists makes more sense if individualism is
true. The reason governments cannot allocate or price goods
and services properly is that such resources are ultimately (al-
beit objectively) valuable for individuals, not collectives.17
The individualism that underpins much of libertarian po-
litical economy has vital implications for public policy. In the
law, for example, the position of criminal culpability gains
support from it. The rejection of collective guilt—or pride—in
social theory also has its support. In environmental public
policy it makes clear sense of the ubiquitous phenomena of
the tragedy of the commons, suggesting that human beings
18 / Chapter 1

must have an individual stake in caring for resources before

those resources can be expected to be well cared for. Public of-
ficials, since they can only represent a very general public in-
terest—to secure the rights of individuals—have no clear-cut
guide to policies of resource preservation and conservation.
Individualism also underlies the rejection of the precaution-
ary principle favored by environmentalists, whereby the mere
possibility of future problems can be invoked to justify violat-
ing individual rights.18
Libertarianism is seen by most to rest on some version of
individualism, although there are exceptions. Some believe
that the betterment of society as a whole is what requires an
individualist social and legal policy, even though there is
nothing ultimately true about individualism. If, however, it is
treated in public policy as if it were true, the results will be
advantageous to the entire community. (Karl Marx held a
view akin to this, claiming that for at least a stage of human-
ity’s development—namely, capitalism—the illusion of indi-
vidualism was very useful since it inspired a great deal of
productivity.)
Still, it is difficult to see how libertarians can avoid being
also individualists. This is especially true of those who stress
the need for the protection of basic human rights in the Lock-
ean individualist position.

Some Policy Implications

Libertarianism is, after all, a proposal to practice politics in a

certain way, guided by a set of principles, yet it is not a rigid,
deductive system of implied public policies. No functionally
effective theory can be that, since the future is not fully dis-
closed to us and we need a system that provides flexibility.
Constitutional law is based, roughly, on this insight: certain
fundamental principles are accepted and supposed to remain
stable and lasting, but the application of them can be novel and
 The Case for Libertarianism / 19

unpredictable. The basic principles are taken to be stable and

lasting because they pertain to human community as such,
meaning that they rest on certain known features of human na-
ture and its requirements within society. It’s akin somewhat to
medicine, where medical students learn the general principles
of human health but when they go into the field and apply
these, much diversity and novelty can be expected.
At this point I wish to present just a few more specific lib-
ertarian ideas about political life. These are still rather general
ideas, as they must be within the context of a discussion of po-
litical philosophy and theory. Also, they are not presented in
some order of priority. Yet they will point to more particular
issues than can be discussed when fundamental principles are
the focus.

Government Regulations
Libertarianism rejects the justice of government regula-
tions of business or any other profession or private activity—
gambling, prostitution, drug use, and commerce—on the
grounds that unless a person is violating another’s rights
(or is demonstrably threatening to do so), no one is justified
in interfering with what that person is doing. Just as in the
American legal system no one may interfere with any citi-
zen speaking his or her mind, worshiping, or publishing
written works, so in a free society no one, including the
government, is justified in such interference. Such interfer-
ence is best described by the legal term “prior restraint”—
that is, imposing burdens or restrictions on the conduct of
someone who has not been convicted of having violated or
threatening the violation of someone’s rights. It is only rights-
violating conduct—involving one person or persons taking over
the sovereignty of another—that justifies restraining a person,
and the rights involved would have to be negative, not posi-
tive, rights, since the latter are actually impositions of servi-
tude on persons. But let us spend a moment on the issue of
20 / Chapter 1

negative versus positive rights, a subject to which I will be

turning next.
Libertarianism—or those versions of the position that see
the function of a legal order as the protection of individual
rights—construes citizens as sovereign agents, whose self-
governance or self-direction while living in communities is in
need of respect and protection. Negative rights are the rights
that prohibit uninvited intrusions or interference by some on
others. An invited intrusion would be that performed by a
surgeon or dentist; an uninvited intrusion would be that of a
mugger or similar aggressor, as well as that of an official who
has not obtained the consent of the citizens in whose life he or
she is intruding. Negative rights are, then, borders that spell
out one’s sphere of jurisdiction or authority, and what belongs
within one’s jurisdiction includes one’s life and the results of
one’s productive activities or freely acquired assets.
Someone’s alleged positive right to health care or to the
education of his or her children could only be secured if those
who provide health care or education were required to pro-
vide it whether they have consented to doing so—or, alterna-
tively, some would be required to perform productive labor
the payment for which would be confiscated from them so as
to pay the health or education providers. All of this is, as the
late Robert Nozick observed, “on a par with forced labor,” and
so unjustified.19 The claim that one has positive rights rests,
mainly, on the belief that one comes into the world with obli-
gations to other persons (not one’s parents, who are due cer-
tain benefits for taking on the task of bringing one up). This is
well put by August Comte, the father of sociology:

Everything we have belongs then to Humanity . . . Positivism

never admits anything but duties, of all to all. For its social
point of view cannot tolerate the notion of right, constantly
based on individualism. We are born loaded with obligations
of every kind, to our predecessors, to our successors, to our
contemporaries. Later they only grow or accumulate before
 The Case for Libertarianism / 21

we can return any service. On what human foundation then

could rest the idea of right, which in reason should imply
some previous efficiency? Whatever may be our efforts, the
longest life well employed will never enable us to pay back
but an imperceptible part of what we have received. And yet
it would only be after a complete return that we should be
justly authorized to require reciprocity for the new services.
All human rights then are as absurd as they are immoral.20

The idea is that since we benefit from what others have

done over the centuries, we now owe something to the rest of
humanity in return for these benefits. But this is to assume
that we have agreed to receive the benefits on the terms that
require us to pay up in this way. Moreover, it assumes that
there are certain select persons, officials of the government,
who are authorized to extract that payment. None of this is
true. We often gain benefits from others—nice looking or
smelling people we walk by, the works of art others have pro-
duced, architectural wonders they have created—without its
being true that we owe them anything for this. (It is a fair as-
sumption that those who freely produced and created all of
this are well rewarded for what they did in a variety of ways,
not the least of which is the joy of the process itself.)
So, the attempt to justify government regulation of peo-
ple’s peaceful conduct on the grounds that they owe everyone
something—the basis of positive rights—fails. There are other
reasons some invoke to support such regulation but those do
not hold up either.21

Entitlements via Positive Rights

One of the most powerful ideas opposed to the free society
is a notion political philosophers call positive rights, which is ar-
guably another all-too-successful linguistic legerdemain, like
that which overtook the venerable concept of “liberalism.”
“Liberalism” once specified a political philosophy favorable
22 / Chapter 1

toward individual rights and (negative) freedom. Now, in to-

day’s lingo, it means nearly the opposite: an ideology pre-
scribing the systematic violation of liberty for the sake of
redistributing wealth and otherwise engineering society. (To be
sure, the new liberalism includes a subclause stipulating that
people may at least enjoy the sexual, pro-choice, and other
noneconomic freedoms distinctive to one’s chosen “lifestyle.”
But even these allowances are more and more falling victim to
the logic of this liberalism’s command-and-control statism—as
when liberals and conservatives team up to urge censorship of
sexually explicit fiction.) Just as the new “liberalism” is fake
liberalism, so the new “positive rights” are fake rights. In each
case, the heart of a valid principle has been gutted.
Natural rights—or, as they have been un-euphoniously
dubbed, “negative rights”—pertain to freedom from the unin-
vited interventions of others. Respect for negative rights re-
quires merely that we abstain from pushing each other
around. Positive rights, by contrast, require the opposite.
Fealty to positive rights requires that we be provided with
goods or services at the expense of other persons, which can
only be accomplished by systematical coercion. This idea is
also known as the “doctrine of entitlements.” That is to say,
some people are said to be entitled to that which was earned
or will be or could be earned by other people.
“Positive rights” trump freedom.22 According to the doc-
trine of positive rights, human beings by nature owe, as a mat-
ter of enforceable obligation, part or even all of their lives to
other persons. Generosity and charity thus cannot be left to in-
dividual conscience.
If people have basic positive rights, no one is justified in re-
fusing service to others; one may be conscripted to do so re-
gardless of one’s own choices and goals. (The class of
procedural positive rights—such as the right to vote, to receive
a fair trial—relates to the government’s obligations to citizens
once citizens have chosen to establish or institute a government or
similar legal agency for purposes of securing their basic rights. Thus
 The Case for Libertarianism / 23

several critiques of the libertarian idea that basic individual

human rights are all negative—are misguided.23 They argue,
essentially, that negative rights come to nothing without the
positive right to have them protected which they then dub as
more fundamental than the negative rights that are to be pro-
tected. What they miss is that such positive rights, like all bona
fide positive rights, are derived from the prior exercise of one’s
[not yet protected] negative right to establish a legal order.)
If positive rights are valid, then “negative rights” cannot
be, for the two are mutually contradictory. So the question is:
which of these two concepts is the more plausible, when we
consider how the issue of rights arise to begin with, in the con-
text of human nature and the requirements of survival and
flourishing in a human community?
The rights Locke identified—following several centuries
of political and legal thinking by theorists who had begun to
identify them more or less precisely—are “negative” insofar
as they require only that human beings abstain or refrain from
forcibly intruding on one another. Their existence means that no
one ought to enslave another, coerce another, deprive another
of property, and that each of us may properly resist such con-
duct when others engage in it. Ordinary criminal law implic-
itly rests on such a theory of individual rights. On a
commonsense basis, murder, assault, kidnapping, robbery,
burglary, trespassing, and the like are all easily understood as
violations of negative rights.
In the Lockean tradition, a conflict of (justified, true) rights
cannot exist. There may be disputes about boundary lines, the
exact historical record determining the propriety of a rights
claim, and similar practical detail. But once the facts of the
matter are unambiguously established, so is the specific right
of the matter. The justice of that specific claim (to a parcel of
land, say) is grounded in more basic, universal rights (to life
and freedom), in turn justified by a correct understanding of
human nature and what that implies about how we ought to
live and organize ourselves in communities.
24 / Chapter 1

That an understanding of human nature is even possible

is, among some philosophers anyway, a controversial issue.
Yet skepticism here, as in other cases, stems from an unrealis-
tic conception of what it takes to know something, to the effect
that we must know everything perfectly before we can know
anything at all. But if knowing something means to have the
clearest, most self-consistent, most reality-grounded and most
complete conceptualization possible to date (if not for all
time) of what it is we supposedly know, sweeping skepticism
is unjustified. We need simply admit that we will if necessary
amend our knowledge if later observation and thinking war-
rants it, and go with what we know now. What we know now
is that human beings, uniquely among the animal kingdom,
survive by means of their reason (which is simultaneously a
faculty of choice and hence of morality), that this moral and
rational faculty does not function automatically, and that the
social condition required to gain and retain the fruits of its un-
hindered exercise is freedom. If human beings are to survive
and flourish in a social context, the human rights to life and
liberty must be recognized and protected.
Those who sought to retain some elements of the political
outlook which Locke’s theory had overthrown—namely, the
view that people are subjects of the head of state (do, in fact,
belong to the state)—found a way to expropriate and exploit
the concept of human rights to advance their reactionary po-
sition, just as they expropriated and exploited the concept of
liberalism.
So much had the concept of human individual rights been
perverted at its root that it came to mean not liberty from oth-
ers but service from others. Who needs the right to pursue hap-
piness when one has the right to be made happy (even if the
thus-extracted “happiness” should render the indentured
providers of it miserable).
This was a view of rights that wiped the fact of human
moral agency right out of existence. Positive rights, so called,
are thus nothing more than mislabeled preferences or values
 The Case for Libertarianism / 25

that people want the government to satisfy or attain for

them—of course, by force.24 They are grounded in nothing
that pertains to the fundamental requirements of human na-
ture and human survival. The theorizers of such rights in fact
go out of their way to ignore such requirements. Yes, people
need bread, as stipulated. But they do not live by bread alone.
They are not ants, that can survive on whatever crumbs fate
happens to strew in their path. They need the freedom to
make the bread and trade the bread.
Also, they need consistent and objective governance. But
when the conceptual perversion known as positive rights be-
comes the guiding principle of a polity, the state cannot gov-
ern by anything like the consistent standards that emerge
from the theory of negative rights. The alleged positive rights
of the citizenry must clash constantly. To the extent one is con-
scripted to serve another, one can no longer serve one’s own
purposes—nor, indeed, even the purposes of many others,
given the scarcity of the time and skills to which others are
supposedly naturally entitled. There is no principle implicit in
the doctrine of positive rights which could resolve the con-
flicts. But positive rights conflict most of all with our basic
negative rights to life, liberty, and property.
Guided by such a doctrine, governments cannot merely
protect our rights. They must positively pit some rights
against other rights. Instead of simply “securing these rights,”
they must scrounge for some additional standard by which to
tell which and whose rights should get protection. Since no
such intelligible standard is available, the situation collapses
into one of rule not by objective law but by subjective men—
men who will decide which rights need protection and which
do not, on a shifting “case-by-case basis.” Perhaps the ascen-
dant pressure group of the moment will carry the day, or per-
haps the latest opinion polls. In practice, the working
(Hobbesian?) principle is: “You have a right to whatever you
can get away with,” the same consideration governing any
plain criminal.
26 / Chapter 1

The theories defending positive rights are just as incoher-

ent as the practice of them must be. Positive rights have even
been defended on the grounds that negative rights—of the
very poor, for example—entail these positive ones.25 Others
argue that all rights are in fact positive insofar as they are all
meaningless unless they are actively protected, and that the
right to the protection of one’s right to freedom is a positive
right, not a negative one.26
Both views suffer fatal flaws. The first generalizes into a
principle of law of an understandable but regrettable response
to what amounts to a rare moral emergency case—one that
becomes more and more rare the longer a society is free and
so able to build its prosperity. In some rare cases, an innocent
person might indeed be totally helpless and have no choice
but to obtain resources by stealing them. Perhaps only filching
that piece of fruit will stave off immediate starvation. But ex-
traordinary circumstances cannot generate laws granting a
permanent right to steal, not when stealing itself means taking
by force what by right belongs to others. There is no need for
a society to send the occasional Jean Valjean to prison for
twenty years; he might well be forgiven the transgression. On
the other hand, if the general concern for the plight of such in-
dividuals is genuine, there is no reason private charity cannot
suffice to meet the need, either. Moreover, for the members of
a society to engage in theft as a regular way of life can only
undermine the production of wealth that everyone’s survival
depends upon, including that of the poorest.
Others believe that we already have positive rights to the
services of the state and, thus, to the earnings of taxpayers
who must pay for these services. But they fail to show that any
such right to protection provision can exist unless there al-
ready exists the more fundamental—and “negative”—right to
liberty. To gain protection for something presupposes that one
has the right to act for that purpose, including the right to
voluntarily combine with others for the purpose of delegating
authority, forming the government, and gaining the protection.
 The Case for Libertarianism / 27

The services of government are something people must

choose to obtain, by their consent to be governed. They do not
have a natural right to them prior to having freely established
that institution. Indeed, for this reason the institution of taxa-
tion, which fit well those regimes that treat people as subjects
who live by permission or the ruling elite or monarch, is
anathema to the free society wherein even the funding of the
legal order must be secured voluntarily.27
A more recent version of the positive rights case for wealth
redistribution is the capabilities approach, introduced by
Amartya Sen28 and defended also by Martha Nussbaum.29 Just
as with positive freedom, the right to freedom becomes the right
to be provided by others with various goods and services, so with
the capabilities approach the burden is placed on those who
have goods and services—mostly funds that can be subjected to
confiscatory taxation—so as to facilitate the development of
those lacking them. The idea is defended on grounds, basically,
of need—or, to use Nussbaum’s terms, a “comprehensive con-
cern with flourishing across all areas of life” which for her, not
negligibly, also “is a better way of promoting choice than is the
liberal’s narrower concern with spontaneity alone, which some-
times tolerates situations in which individuals are in other
ways cut off from the fully human use of their faculties.”30
So, in order to enhance flourishing, including significant
choice, Nussbaum and others seem to be willing to grant
some people—the government—the power to compel other
people to provide for those in need to at least whatever will
secure for them the materials that satisfies such “comprehen-
sive concern.” The need, of course, does not arise because oth-
ers have done anything to the needy, thus their enforceable
obligation to alleviate it is dubious. At most others ought to
extend help as a matter of their generosity.31
In Nussbaum and others, however, notice the assumption
that since “something ought to be done,” then “government
ought to do it.” Unless one assumes there is some semantic
equivalence or direct implication between these two claims, a
28 / Chapter 1

linking premise is needed. That this fallacious move places

others into the position of subservience—even servitude—to
those in such need appears to Nussbaum to be unproblematic.
In a sense Nussbaum & Co. generalize globally the rationale
offered for Good Samaritan laws, even though the latter per-
tain to emergencies (such as an injured party in need of med-
ical attention after a car crash) and, in any case, are subject to
the criticism that no one is to be put in anyone else’s service
against his or her will.32
The bottom line is that in all these cases it is alleged that
human beings are entitled to provisions from unwilling others
who have them and government officials are very much in the
business of securing such entitlements. (Sen’s works routinely
use titles that include the concept of “freedom” but in the am-
biguous sense whereby both negative and positive freedoms
[!] are at issue for him and those who sympathize with his ca-
pabilities approach.)
This approach is natural to socialists who see human be-
ings as essentially species beings. For nonsocialists, however,
the defense of positive rights and the capabilities approach
may be linked to the American idea—from the Declaration of
Independence—that “governments are instituted” so as “to
secure . . . rights.” Although the rights to be secured were neg-
ative ones—to life, liberty, and the pursuit of happiness,
among others—it makes sense for those who see government
in the role of enabling people rather than protecting their sov-
ereignty to introduce the idea of positive rights. These would
then still require being secured by the government, although
now by means of a vastly expanded administration involving
wealth redistribution as a central function. The balancing be-
tween securing negative and positive rights would naturally
become a central element of the political processes, issuing in
repeated class-warfare-type political activism.
Because it is itself arbitrary and incoherent, the doctrine of
positive rights leaves government free to be arbitrary and inco-
herent. As long as some people are getting resources that were
 The Case for Libertarianism / 29

earned by somebody else, that’s all that counts. One day it’s
aiding AIDS research that tops the to-do list; the next it’s fos-
tering the arts by splurging on PBS; the next it’s curing every-
one of smoking and plundering the tobacco companies. No
principles, no logic, no standards of restraint tell us from day to
day what one will be free to do and what one will be prohibited
from doing; there is no surefire way to know. As under fascism,
whatever the leaders say, goes, so long as they continue to gen-
uflect mechanically before the altar of democracy.
If we are to reverse course, and achieve a more consis-
tently free society, we must tear up the counterfeit standard of
rights and restore a gold standard—the standard that enables
us to actually pursue, and achieve, life, and happiness.

Against Mandated Affirmative Action

Over the last few years the United States has required all
government agencies at the federal and state levels—includ-
ing firms doing business with the state and schools that are
state administered—to practice affirmative action. Some claim
that the phrase itself refers to a uniquely legal or public policy.
It is, they claim, a term of art for this unique practice, not
matched by anything apart from what government does.
Actually, the practice itself has always existed and only re-
cently has been dubbed “affirmative action.” It amounts to
people’s making an energetic, vigilant effort to benefit, in
trade or other activities—including admission to schools, pro-
motion to higher ranks in fire or police departments—some
special group deemed to be disadvantaged. As such affirma-
tive action is a rather familiar practice in life, albeit not so des-
ignated until recent times.
When one hires people or goes to a shop owned or oper-
ated by someone from an actually or apparently disadvan-
taged group—blacks, Hispanics, Italian, Hungarian, or Polish
Americans—one is often embarking upon what is the desired
behavior sought via affirmative action. Similarly, when one
30 / Chapter 1

selects a restaurant because one believes those who own or are

employed there need some extra support so as to gain a leg up
in the business, one is engaging in affirmative action. The buy-
ing of works of art just to encourage artists or patronizing some
store in the hope that those who run it will remain in business—
even though at the moment one has no particular wish for its
services or goods—counts as affirmative action as well.
Consumers and producers have for centuries embarked
upon such practices. Some famous black Americans acknowl-
edge this, as did the late Carl Rowan, a black journalist, when he
told a group of students on C-Span that his “employer practiced
affirmative action” when he got his first job as a reporter from a
white publisher. The latter apparently decided to give Mr.
Rowan a chance because he was black and he wanted blacks to
gain access to journalism. This decision also paid off for the em-
ployer, given Mr. Rowan’s excellent performance on the job.
The type of official affirmative action that’s at issue in con-
temporary debate—for example, in connection with Proposi-
tion 209, the California referendum that went into effect a
while ago, banning all preferential hiring by state agencies,
whatever the motivation—has to do with government orders
to select students or contractors on the basis of racial or sexual
criteria not relevant for the purpose at hand. It is the govern-
ment that selects the (groups of) people who are to be proper
candidates for affirmative action, usually based on certain so-
ciological and historical facts pertaining to the disadvantage
many of the race or sex in question have suffered in the past
and the assumed advantage accrued from such disadvantage
to the dominant groups, usually Caucasians. By this means the
matter of deciding who is to be the beneficiary of affirmative
action and whether the practice is a good idea is taken out of
the hands of those who have to carry out the policy.
Thus often those required to act affirmatively cannot claim
credit for their occasional good judgment in adopting the
practice since they carry it out under the threat of punishment.
Of course, some might well have done the right thing anyway,
 The Case for Libertarianism / 31

just as some volunteer for service in a war even when con-

scription is in force. But for others, who act because the prac-
tice is mandated by law, any credit for the deed is voided by
the bureaucrats, except in so far as having a minor say
through the democratic representative process is concerned.
Beyond this minimal genuine affirmative action expressed
during the vote for a policy or person, many of those imple-
menting affirmative action policies carry on as ordered, leav-
ing it indeterminate as to whether they followed their
conscience or merely complied.
When it comes to government’s following affirmative ac-
tion policies, another distinction needs to be kept in mind. A
government which is confined to its proper scope of authority
is under the fiduciary duty to serve well all those under its ju-
risdiction. That is the spirit underlying the Fourteenth
Amendment to the Constitution—no citizen’s due process
(i.e., what the citizen is owed) is to be neglected by the gov-
ernment. We ought all to be treated equally well under the
law, no one is special. That is what citizenship implies.
When governments engage in affirmative action, this prin-
ciple is violated.33 Government conducted affirmative action
is procedurally unjust. Governments must relate to people as
citizens, period, not as some special group in whom a special
interest is taken. That is the only way government can be
just—it is why justice is depicted as blind.
Some will argue that sometimes government must pro-
vide protection to special groups when their members are the
target of injustice. Blacks, therefore, may receive special treat-
ment, as per affirmative action policies, because they are tar-
gets of unjust discrimination, something that affirmative
action would redress.
However, injustice is never a matter of how groups, but
only of how their members, are being treated. Any redress
must, therefore, be a matter of rectifying or punishing those
who committed the injustice, not members of groups whose
other members have been unjust to some persons. Affirmative
32 / Chapter 1

action, therefore, administers collective punishment, some-

thing that is anathema to a system of justice that must respect
and protect individual rights.
Let us return to private affirmative action. Even there it
would be valid only in emergency, rare cases, such as those
having to do with new arrivals in a country or, more generally,
with people who may need a temporary break, as it were. A
private company may elect to do this but is always open to
criticism if the policy persists, discriminates unjustly, and un-
dermines good business. Publicly held corporations, further-
more, could practice affirmative action only when those who
own its stock have instructed management to do so. Since af-
firmative action, rightly understood, can only have a valid
point when the details of a situation are well known—it must,
in other words, amount to local policy contingent on special
knowledge and circumstances—most publicly held compa-
nies would have little justification to practice it. (An exception
might be if there is some disaster nearby and the company de-
cides temporarily to lend a hand to its casualties.)
Government-conducted and dictated affirmative action is
not only unjust but can become the source of serious resent-
ment to anyone, be they racists or not. The following might
help make this clear.
If one who is white were to call a black person a “nigger,”
that, however insulting it is, does not justify being beaten up
for it. No one should be assaulted for being insulting, period,
and that goes for whatever they say.
Now, in the same vein, people’s sovereignty—their free-
dom, for example, to associate only with those who are
willing—should not be usurped by government, even if their
judgments and conduct leaves much to be desired. I may
choose rotten pals, an unsuitable mate, or the wrong employee,
but what I do must remain my choice, not that of others who
impose their judgment against my will. (Of course, if I an-
nounce that my offer of a service or good is available to all po-
tential purchasers, it can be legally actionable if I then impose
 The Case for Libertarianism / 33

an unannounced standard of selection after the fact. By the

standard of the “reasonable person,” it is to be expected that
without full disclosure of special criteria, none will be applied.)
In any case, freedom to associate with those who are will-
ing is a hallmark of a free society. This means freedom of asso-
ciation across the board, even in cases where such association
is misguided by racial prejudice and where those affected
forgo serious benefits as a result, ones they would enjoy were
those with the prejudice acting more rationally, decently. The
reason is that in associating with others—except where con-
tracts specify otherwise or where one would violate another’s
basic and derivative rights—one is making a decision as to
how one will live one’s own life, be this judgment good or bad.
To make a person devote his or her life—or any portion of it—
to a purpose he or she rejects amounts to subjecting the person
to involuntary servitude. No free society can tolerate this, even
for purposes that can be quite admirable.
Law professor Richard Epstein34 of the University of
Chicago has argued the radical but sound thesis that even the
bulk of civil rights legislation of the 1960s cannot be consid-
ered of real help to blacks and women in our society. Epstein
agrees that such legislation is in violation of a fundamental
principle of free societies, namely, freedom of association.
Civil rights laws violate the right to freedom of association by
forcing people to hire and promote folks they may not want
to. By this means the spirit, if not the letter, of a vital and
sound principle of the American constitutional system is as-
saulted. Whatever gains may have been reaped through such
legal action are marred severely because of this fundamental
flaw that is embodied in securing them. Indeed, all civil rights
legislation is wrong that goes beyond striking down racist and
sexist policies by government, ones that violate the provision
of the Fourteenth Amendment prohibiting “the den[ial] to any
person . . . equal protection of the laws”—so that cops and
judges and government in general may not deliver services
differentially to the citizens they serve.
34 / Chapter 1

Mandated affirmative action programs are also an insult

to the people who are intended to be helped by it. Certainly
blacks and women have suffered in the past from injustices, as
have other groups throughout human history. To think that it
is now necessary and proper to “even the scales” is wrong
from several perspectives, not the least of which is that be-
cause the really guilty parties are mostly dead, one can pun-
ish only innocent people. This mirrors the practice in Ghana
where a young virgin from a family is given to a priest so as
to atone for the sins of some elder of that family. It is the
height of injustice to punish the innocent just because the
guilty are no longer around.
Accordingly, when citizens are restricted regarding who
they hire or do business with, their own judgment is su-
perceded by others and they are placed into servitude to oth-
ers by such a policy. Among other things, this serves to
obscure their own wrongdoing. It, furthermore, can seriously
obstruct their own appreciation of the wrong they do. Indeed,
policies such as mandated affirmative action encourage preju-
dice to linger, even if underground. For what folks will focus
upon is not their own prejudicial conduct, which they might
have been prompted to reflect upon by being treated as free,
sovereign citizens who are in charge of their own lives, and
had they been addressed as capable of changing their own
free will of how they behave. Instead, they will focus upon the
fact that their sovereignty has been denied, their freedom
taken away, and in that regard they have a just complaint.
Affirmative action also gives the racists among us a ra-
tionalization for racism, only now their animosity toward a
minority has some semblance of justification: if women and
blacks support mandated affirmative action, is there not really
something wrong with women and blacks? After all, they give
backing to tyrannical policies of government.
It is also worth considering that mandated affirmative ac-
tion may not really help those blacks and women who can use
the help. Instead it is the middle-class blacks who appear to
 The Case for Libertarianism / 35

get from this government mandate a boost in their economic

or professional lot. The very people who ought to continue to
make it on their own and have every chance to do so appear
to get the extra, unfair advantage. Those in genuinely bad
straits often are not even touched by this facade of assistance.
But while arguably nothing much of substance gets done
for most blacks by affirmative action, the policy does every-
thing to boost the self-image of racist Americans. For now
they can submerge their racism within a legitimate rage. They
can now hate the government for imposing on people plainly
unfair, even racist, policies.
What irony! Supporters justify this program on grounds that
it supposedly creates a level playing field, one that is needed af-
ter many decades of injustice inflicted upon those who are the
subject of mandated affirmative action. In fact it appears instead
to help exactly those who seem to have no desire for fairness
and good sense about matters of gender and racial justice. These
very people against whose mentality the programs were sup-
posedly enacted now finally gain public sympathy in its wake.
If one were a racist, this would be most welcome.
Another aspect of this policy is that it treats the minorities
intended to be benefited as if they were inept at recovering
from the damage that past injustice has inflicted upon them.
Are blacks and women unable to rise from the ruins of their
families? Jews, Hungarians, Poles, and millions of others
throughout history had to recover without the benefit of the
U.S. Congress, without allegedly remedial public policy in the
way of mandated affirmative action. Arguably, this approach
is only going to hamper the recovery itself, by instilling in
folks the conviction that they are, after all, not quite up to han-
dling problems the way others can. (Jim Sleeper makes this
point in his Liberal Racism.)35
In the social realm it seems progress has been forthcom-
ing, but it is obscured by all the hope invested in government
remedies. These days, for example, being racist is not accept-
able in the deep South. A while back I heard a hospital worker
36 / Chapter 1

in Opelika, Alabama, make a racist remark about a black col-

league. When I rebuked him for it—he made the racist com-
ment to me—he said “I am sorry, I am a racist, but I cannot
help it.” His response reflected not self-righteousness but a
desperate effort to seek some kind of excuse. This presup-
poses that the man knew very well that his racism is not some-
thing acceptable in a decent human being. Yet, I’ll bet that if
this guy were to lose a promotion to an African American be-
cause of mandated affirmative action, he would feel comfort-
able about hating them, under the guise of hating big
government. How convenient, not having to live squarely
with your vile, irrational feelings, having the government
help you to disguise them as anger at oppression.
If any group has very good reason for opposing affirma-
tive action mandates by the government, it is American
blacks. It is, as Shelby Steele noted on the PBS News Hour, a
way white liberals can feel good about themselves without ac-
tually having to do much of substance.

Against the War on Drugs, and for Tolerance

In an important essay in the now discontinued publication
Heterodoxy [“Just Say Yes!” September 1996], Peter Collier dis-
misses the libertarian view on drug abuse by saying that its
“strong appeal . . . is that it plays well with the American no-
tion of rugged individualism and don’t tread on me.” After
this dismissive, anti-intellectual characterization of the posi-
tion’s “appeal” (never mind the merits of the arguments be-
hind it), Collier goes on to say that “its defect is that it
nowhere acknowledges the enormous destructive power of
psychoactive substances and their ability to cause the disinte-
gration of individual personalities, families and communities,
and the fact that it is based on the questionable assumption
that individuals will act less anti-socially when drugs are legal
and guilt free than they do now when they are illegal and stig-
matized.”
 The Case for Libertarianism / 37

As a libertarian who has often advocated drug legaliza-

tion, I know that Mr. Collier has got it wrong.36 Most libertar-
ians fully acknowledge all of what Mr. Collier claims they do
not. Most of them do not predict with any measure of cer-
tainty that people “will act less anti-socially when drugs are
legal,” etc. What they claim is that people ought to and will be
able to act less antisocially and will no longer act criminally as
drug users, in light of the decriminalization of drug abuse.
Most of all, libertarians claim that it is morally wrong and
bad public policy to punish people who violate no one’s rights
and who already punish themselves by abusing drugs. They
argue that the mere fact that some vices are far more tempting,
far more difficult to resist, than others does not justify the pa-
ternalistic actions of the state against those who lack the
strength of will and character to resist. They defend legaliza-
tion on the grounds of principles such as the right to one’s life,
one’s liberty of conviction and action, and the right to one’s
private property, all of which are relentlessly abrogated by the
drug war that Mr. Collier’s statist approach to the problem
supports. They add that allowing the state to intrude upon in-
nocent citizens for this reason more or less opens the door for
it to intrude for any other—as William Pitt the Younger noted,
“Necessity is the plea for every infringement of human free-
dom. It is the argument of tyrants; it is the creed of slaves”
(speech on the India Bill, November 1783).
Libertarians—albeit summoning somewhat different ar-
guments for their conclusion (as it is to be expected from a di-
verse and individualist lot)—not only find the drug war, as
well as all the drug, alcohol, and related prohibitions, be it in
America or anywhere around the world, not only a sustained,
unremitting violation of individual rights but a demoralizing
approach to helping people who find it very tough to deal
with drugs. They consider it a social calamity when govern-
ments posture as Florence Nightingales, thereby displacing
the much more promising avenue of rescue via the work po-
tentially available from local communities—families, friends,
38 / Chapter 1

professional associations, religious groups, etc., all of which

are better positioned to address drug-related problems than is
any level of government.

Conclusion

Libertarianism rests on numerous ideas drawn from various

disciplines, and none of those could be fully explored here. The
thrust of the position should by now be plain enough: Indi-
viduals are responsible to live their lives properly and ethi-
cally, and this requires that they be able to choose how to act.
Further, within their communities they require a sphere of per-
sonal authority or jurisdiction, which is best secured via a well-
protected set of basic rights, including the right to private
property. Individuals have the right to pursue their happiness
by forming special communities, provided all members choose
to be part of them and everyone enjoys what the economists so
quaintly call “the exit option.” It is the role in their general
communities—in the polity—of the legal order or government
to secure their rights, and for this the people entrusted with
that role must strictly abide by due process, which is to say, es-
chew the violation of rights as they secure rights themselves.37
Some have charged that libertarianism is utopian and for
that reason alone a bad idea. Libertarianism is, of course, the
consistent, uncompromising development of certain notions
we are all familiar with—for example, the barring of physical
force from human relations, the requirement that even as we
retaliate against or fend off coercive physical force, we need to
act with restraint, or that one of the differences between hu-
man and other living beings is that the former can, if they act
with discipline and perseverance, exclude brute force from
their community lives (that is, they can be civilized).
As such, libertarianism is demanding, because it has no
tolerance for anyone’s, including government’s, coercive
meddling for any purposes whatever. Government—which is
 The Case for Libertarianism / 39

to say, certain other people—is not to be our daddy, nanny, or

uncle; it is to be our civilized bodyguard.
The reasoning behind these ideas is not simple, but it in-
cludes one crucial fact that immediately refutes the claim that
libertarianism is utopian. That is that human beings are in fact
incapable of being forced to be morally good. It is up to them
whether they will, or whether they will fail in that all-important
task. We have free will, and we ought to excel at being human
individuals, but there is no formula by which that goal can be
guaranteed. Indeed, one reason government must be limited
is that it wields a very dangerous weapon, namely, physical
force, a weapon that may only be used by people who know
their limits clearly and well; otherwise those in government,
who are just like us, become despotic, tyrannical.
Utopia, in contrast, is a form of society wherein morality is
guaranteed, where everyone is going to do what is right and
be happy and fulfilled. Shangri-La is a good example, as were
Sir Thomas More’s Utopia and Karl Marx’s communism. In
those proposed societies the objective is to secure for every-
one, by means of political organization and action, perfect ful-
fillment. (That is why Marx could envision the withering
away of government itself, since once utopia has been reached
there will be no need for law enforcement—all of us will be
law abiding, automatically.)
It is clear from just this brief contrast between libertarian-
ism and utopianism that the two are opposites. No, libertarian-
ism is not dystopian—not, that is, based on the view that social
life must turn out terribly. It is entirely noncommittal about
how good people will turn out to be, with the one provision:
when people are free and their rights are protected, the chances
that they will be good and decent are better than if they can
dump their mistakes on their fellows with impunity (as they
can, for example, in the welfare state that we live in now).
There is no doubt, of course, that libertarianism is demand-
ing. But all standards are demanding—they require of us to do
our best, according to certain terms. However, libertarianism
40 / Chapter 1

recognizes that doing our realistic best requires freedom and

also runs the risk that we will fail. So there can be no guaran-
tees as far as the libertarian is concerned when it comes to how
good people will be once they are free. They are, however, more
likely to be better than they are when they are oppressed, regi-
mented, and ordered about in their daily lives.
The bulk of the challenges of human life, in all realms,
should be tackled without aid of coercive force, something
that critics of libertarianism seem to reject. Once the legal or-
der secures everyone’s rights—or does as well as possible at
this task—it needs to withdraw and leave free men and
women to meet the nonpolitical challenges they face. That is
the crux of libertarianism.38

Notes
1. There are different routes to libertarian political conclusions, and in
this discussion I will be sketching one within the normative natural law and
rights tradition, not a consequentialist, utilitarian, or positivist one. It is my
view that the widely championed consequentialist approach, which ap-
pears to reject principles in favor of expected utilities—so that, for example,
a regime of liberty is just because it maximizes value—has serious prob-
lems, since the value of consequences cannot be assessed without principles
as standards for evaluating them. There is also the non-consequentialist as-
sumption in most versions of consequentialism that the results of policies
can be correctly estimated before they occur. Yet that is just what the more
principled approach to politics—and libertarianism in particular—con-
tends. For more, see Tibor R. Machan, The Passion for Liberty (Lanham, Md.:
Rowman & Littlefield, 2003), chap. 3, “Against Utilitarianism: Why Not Vi-
olate Rights If It Would Do Good?”
2. For a defense of this, see Tibor R. Machan, ed., Individual Rights Recon-
sidered: Are the Truths of the U.S. Declaration of Independence Lasting? (Stanford
Calif.: Hoover Institution, 2001), especially Ronald Hamowy, chap. 1, “The
Declaration of Independence.” This, of course, is a mere historical fact, not
any argument for the stance itself.
3. G. A. Cohen’s complaint that disadvantaged workers are forced to
work, therefore, is no argument against a capitalist, free market system. Life
forces nearly everyone to work. See his “Are Disadvantaged Workers Who
 The Case for Libertarianism / 41

Take Hazardous Jobs Forced to Take Hazardous Jobs?” in Moral Rights in the
Workplace, ed. Gertrude Ezorsky, 61–80 (Albany: State University of New
York Press, 1987). For a discussion of a libertarian view of labor, see Tibor R.
Machan, “Rights and Myths at the Workplace,” in Moral Rights in the Work-
place, 45–50, and James E. Chesher, “Employment and Ethics,” in Commerce
and Morality, ed. Tibor R. Machan, 77–93 (Lanham, Md.: Rowman & Little-
field, 1988).
4. For more on this, see Tibor R. Machan, Generosity: Virtue in Civil Soci-
ety (Washington, D.C.: Cato Institute, 1998), chap. 6, “Generosity via Gov-
ernment.”
5. For a detailed discussion of this issue, see Tibor R. Machan, “Anar-
chism and Minarchism, A Rapprochement,” Journal des Economists et des Es-
tudes Humaines 14 (December 2002): 569–88. See also Aeon Skoble, Freedom,
Authority, and Social Order (Chicago: Open Court, 2005).
6. Available at www.usdreams.com/LincolnW7.html.
7. Charles Taylor, Philosophy and the Human Sciences (Cambridge, U.K.:
Cambridge University Press, 1985), 188. For more on this, see Tibor R.
Machan, “Libertarian Justice,” in Social and Political Philosophy: Contemporary
Perspectives, ed. James P. Sterba, 93–114 (London, U.K.: Routledge, 2001). An
important element of rights theory is identified in Douglas B. Rasmussen
and Douglas J. Den Uyl, Liberty and Nature (Chicago, Ill: Open Court, 1990).
The authors understand rights to be meta-norms, meaning these are princi-
ples of the societal framework within which action-guiding ethical or moral
principles may be followed or neglected. A society with basic Lockean
rights is one that secures for everyone the opportunity to be a moral agent.
8. See, for a libertarian interpretation of “general welfare,” www.house
.gov/science/taylor_4-9.html.
9. I have argued, in “America’s Founding Principles and Multicultural-
ism,” chapter 6 of my book Classical Individualism (London: Routledge,
1998), that in comparison to other political systems, the relatively libertarian
polity of the United States accommodates the requirements of multicultur-
alism better than do others wherein conformity to common practices is
stressed far more than is diversity and, especially, individuality.
10. Libertarians tend, in the main, to oppose wars of liberation or na-
tional building, not because it is wrong to help with such efforts abroad but
a country’s military already has a job, namely, to secure and defend the
rights of the citizens there.
11. Available at www.adherents.com/.
12. Equality is, of course, a core value in libertarianism, only it is the
equality of respecting the rights of individuals—all of them—rather than
the equality of sharing benefits and burdens available in society. This lat-
ter type of equality, perhaps better dubbed “fairness,” is supported from
42 / Chapter 1

various perspectives, but the crucial public policy implication of it con-

cerns regimenting people’s lives whenever benefits and burdens are not
shared equally. That, as Robert Nozick demonstrated in his famous Wilt
Chamberlain case, would require massive inequality of power and be not
only intolerably coercive but self-defeating as well. See Robert Nozick, An-
archy, State, and Utopia (New York: Basic Books, 1974), 161–63.
13. A comparable approach is deployed by Martha Nussbaum, “Human
Functioning and Social Justice: In Defense of Aristotelian Essentialism,” Po-
litical Theory 20 (1992): 202–46, albeit with different substantive results for
political theory—to wit, a robust welfare state and global wealth redistribu-
tion. Nussbaum, along with Amartya Sen, defends the view that human na-
ture can be known from our historical encounters with human beings, but
what our knowledge of it suggests is that social justice must involve a
mainly egalitarian wealth-redistribution policy so as to enable everyone to
flourish. The libertarian insistence on the vital importance of individual
moral choice and responsibility is missing from her politics.
14. I draw on David L. Norton, Personal Destinies, A Philosophy of Ethical
Individualism (Princeton, N.J.: Princeton University Press, 1976), and my
own Classical Individualism: The Supreme Importance of Each Human Being
(London: Routledge, 1998) for this distinction.
15. J. D. P. Bolton, Glory, Jest and Riddle: A Study of the Growth of Individu-
alism from Homer to Christianity (New York: Barnes and Noble, 1973).
16. Karl Marx, “Critical Remarks on the Article: ‘The King of Prussia and
Social Reform,’” in Selected Writings, ed. David McClellan (Oxford, U.K.: Ox-
ford University Press, 1977), 126.
17. For more on this, see Ludwig von Mises, Economic Calculation in the
Socialist Commonwealth (Auburn, Ala.: Ludwig Von Mises Institute, 1990).
18. For more on this, see Tibor R. Machan, Putting Humans First: Why We
Are Nature’s Favorite (Lanham, Md.: Rowman & Littlefield, 2004).
19. Nozick, Anarchy, State, and Utopia, 169.
20. August Comte, The Catechism of Positive Religion (Clifton, N.J.: Augus-
tus M. Kelley, 1973), 212–13.
21. See Tibor R. Machan and James E. Chesher, A Primer on Business Ethics
(Lanham, Md.: Rowman & Littlefield, 2003), chap. 16–26; see also Tibor R.
Machan, Private Rights and Public Illusions (New Brunswick, N.J.: Transac-
tion Books, 1995) and Tibor R. Machan, “Government Regulation vs. the
Free Society,” Business and Professional Ethics Journal 22 (2003): 77–83.
22. Not, of course, in every sense of that term. “Freedom” can mean just
what positive rights secure for someone, as made clear in the discussion in
note 9. Consider, for example, the following: “No, life is always a struggle
for freedom. Whenever I sign a cheque for some idiot company or other, I
feel a little like a man in an electric chair or in a hospital bed, streaming with
 The Case for Libertarianism / 43

wires and connections and linkages.” James Wood, The Book against God
(New York: Farrar, Straus and Giroux, 2003), where the first person protag-
onist consider himself to be free if he can escape the bonds of obligation he
himself has incurred and that others, in turn, are made to assume.
23. In recent times the doctrine has been reshaped by such philosophers
as Ronald Dworkin, James P. Sterba, Henry Shue, and legal scholars like
Stephen Holmes and Cass R. Sunstein. Shue’s Basic Rights (Princeton, N.J.:
Princeton University Press, 1983) goes so far as to argue that no negative
rights exist at all, since in any realistic sense rights are meaningless unless
given protection, which is a positive service from others. But Shue forgets
that the libertarian establishes secondary, derivative positive rights without
contradicting himself, via compact and contract. Holmes and Sunstein, who
echo Shue twenty-one years later, also fail to appreciate the idea that pro-
tecting rights via government and law requires consent. As the Declaration
of Independence puts it so succinctly, governments derive “their just pow-
ers from the consent of the governed.”
24. For a full exposition of the positive rights doctrine as developed by
theorists of the political left, see Tom Campbell, The Left and Rights (London
and Boston: Routledge, 1983).
25. See, Sterba, note 7 above.
26. See, e.g., Shue, note 23 above.
27. For a more detailed discussion of this issue, including viable alterna-
tives to taxation, see Tibor R. Machan, “Dissolving the Problem of Public
Goods: Financing Government without Coercive Measures,” 28, in The Liber-
tarian Reader, ed. T. R. Machan (Lanham, Md.: Rowman & Littlefield, 1982).
28. Amartya Sen, “Markets and Freedoms: Achievements and Limita-
tions of the Market Mechanism in Promoting Individual Freedoms,” Oxford
Economic Papers 45 (1995): 519–41. See, on the recently launched capabili-
ties approach project, the explanation provided at: www.fas.harvard.edu/
~freedoms/capability_defined.html.
29. Nussbaum, “Human Functioning.” A similar conception of human
rights to welfare or empowerment is defended by Alan Gewirth, Reason and
Morality (Chicago: University of Chicago Press, 1978). For libertarian cri-
tiques of Gewirth’s political views, see Eric Mack, “Deontologism, Negative
Causation, and the Duty to Rescue,” and Douglas J. Den Uyl and Tibor R.
Machan, “Gewirth and the Supportive State,” in Gewirth’s Ethical Rational-
ism, ed. Ed Regis, Jr. (Chicago: University of Chicago Press, 1984).
30. Nussbuam, “Human Functioning,” 225–26. Another contemporary
theorist who advances an argument along similar lines is Jürgen Habermas,
The Inclusion of the Other: Studies in Political Theory, eds. Ciaran Cronin and
Pablo De Greif (Cambridge, Mass.: MIT Press, 1998), whose conception of a
just society based on discursive democracy involves various prerequisites
44 / Chapter 1

that will enable the citizenry to be able to take part in the discussion of pub-
lic policy. Of course, the discussion then focuses on incidentals, since the im-
portant issue of whether such provisions must be made is already settled
before the discussion gets under way. For more on this, see Tibor R. Machan,
“Individualism and Political Dialogue,” in Classical Individualism (London:
Routledge, 1998), chap. 13.
31. See Machan, Generosity, Virtue.
32. One standard justification for Good Samarian laws is that they apply
to professionals, such as doctors, who have gone on record offering their
services to those in dire medical need, that the law merely spells out the oc-
casion when that offer must be delivered. Still, even this rationale has prob-
lems, as shown in Mack, “Deontologism.”
33. That is one reason the California law enacted by Proposition 209
makes good sense, though its substance should never have required a ref-
erendum.
34. Richard Epstein, Forbidden Grounds (Cambridge, Mass.: Harvard Uni-
versity Press, 1992).
35. Jim Sleeper, Liberal Racism (New York: Viking, 1997).
36. See, for example, Tibor R. Machan and Mark Thornton, “The Re-
Legalization of Drugs,” Freeman 41, no. 4 (April 1991): 153–55.
37. This is not the whole story or the whole problem with critics of the
libertarian stance. In any case, those who wish to explore the various liber-
tarian approaches to the problem of drug abuse—including the failed poli-
cies of the federal and local governments on this problem—can begin by
checking the bibliography of (and reading) Mark Thornton’s essay, “The Re-
peal of Prohibition,” in Liberty for the 21st Century, eds. T. R. Machan and
D. B. Rasmussen (Lanham, Md.: Rowman & Littlefield, 1995).
38. For a somewhat longer outline of libertarianism, see Tibor R. Machan,
The Liberty Option (London: Imprint Academic, 2003). For a good selection
of varied libertarian ideas, see Tibor R. Machan, ed., The Libertarian Alterna-
tive (Chicago: Nelson-Hall, 1974); Machan, The Libertarian Reader; and David
Boaz, ed. The Libertarian Reader (New York: Free Press, 1997).
2
The Errors of Libertarianism
Craig Duncan

As a political philosophy, libertarianism has a certain seductive

allure. Who among us, after all, enjoys paying taxes or likes
having his or her actions constrained by laws? Our aversion to
these things makes it tempting to think, like libertarians, that
taxes and laws either should not exist or should exist only in
forms radically reduced from their present levels. Despite its
somewhat seductive allure at the abstract level, however, we
have good reason to reject libertarianism. In arguing against it,
I will make four major objections to it: the “Unanchored Prop-
erty Objection,” the “Inadequate Defense of Dignity Objection,”
the “Dilemma of Consent Objection,” and the “Insufficiency of
Charity Objection.” To these objections I now turn.1

1. The Unanchored Property Objection

Interestingly, Professor Machan’s libertarianism and my dem-

ocratic liberalism (which I defend in chapter 4) share some-
thing in common at the level of foundations: they both purport
to be grounded in respect for human beings’ distinctive capac-
ity for choice. Despite sharing a common foundation at the

45
46 / Chapter 2

most abstract level, however, Machan and I differ very signifi-

cantly in our concrete interpretations of the moral ideal of re-
spect for the human capacity of choice. For instance, according
to Machan this ideal entails that individuals have an absolute
moral property right to all the money or goods they receive via
market exchanges, whereas on my view the ideal instead en-
tails that legal rights to property should be defined in a way
that ensures all individuals have fair access to a life of dignity.
Exploring this difference will reveal a large gap in the argu-
ment for libertarian property rights.
According to Machan, taxation is a form of theft (p. 26).
This claim of Machan’s has to be understood with care, how-
ever. As the law stands, you do not have legal title to all the
pre-tax money that others pay to you in form of wages,
salaries, sales, etc. You only have legal title to your after-tax
earnings. Thus libertarians like Machan must concede there is
no illegal crime of stealing involved with taxation. Instead,
Machan must argue that taxation is the moral equivalent of
stealing. Hence he must argue that people have a moral right
to keep and control all their earnings—that is to say, a right
that exists independently of any government-created laws or
other conventions, much like the human rights not to be mur-
dered, tortured, enslaved, and so on.
Several fatal problems beset this view of moral rights to
property. An analogy will help make these flaws vivid. Sup-
pose Annie is an antiques dealer who sells her wares from a
small stall housed in a large building containing an antiques
market, with many other dealers selling their wares at similar
stalls. The building’s owner, suppose, charges vendors a per-
centage of their sales intake—say, 20 percent—as payment for
the opportunity to sell from one of the building’s stalls. If An-
nie’s earnings in sales for a given month were $2,400, then al-
though that amount of money is in her possession, it is not
hers, if by “hers” is meant legal ownership; $480 of those dol-
lars in fact legally belong to the building’s owner. The owner
is not stealing her money when he demands this sum from
 The Errors of Libertarianism / 47

her. Suppose that Annie recognizes this but goes on to protest

that the antique mall owner’s commission charge violates her
moral right to keep all of her sales earnings. The obvious re-
ply to Annie’s charge is that but for the market owner’s ini-
tiative and effort—in constructing the building and the stalls,
in maintaining it, in securing it, in advertising its existence,
and so on—Annie would not have had the opportunity to ac-
quire any sales earnings in the first place. This makes it churl-
ish at best and exploitative at worst for her to insist that she
has a moral right to every penny of her sales.
Something similar is true of government taxes; after all,
the existence of our economic opportunity is highly depen-
dent on the government’s activities of enforcing contracts,
protecting legal property rights, keeping the peace, maintain-
ing the national defense, printing currency, insuring bank de-
posits, preventing monopolies, fighting inflation, negotiating
trade agreements, maintaining transportation infrastructure,
and so on.2 As in the case of Annie the antiques vendor, then,
to insist that one has a moral right to all of one’s income earn-
ings is to ignore the efforts of one’s fellow citizens who work
in government or who as taxpayers contribute to the support
of the government.3 “Sure, without my fellow citizens’ work I
wouldn’t have been able to earn the money I did,” the liber-
tarian seems to say, “but that doesn’t mean I owe my fellow
citizens anything for their work.” The exploitative nature of
this is obvious; this surely means that in fact one has no moral
right to all of one’s pre-tax earnings. A moral right to commit
the moral wrong of exploiting one’s fellow citizens would, af-
ter all, be a strange moral right indeed.4
Importantly, this skeptical conclusion certainly does not
mean that taxation is always immune to moral criticism. There
can be schemes of taxation that are tilted too heavily against
low-income earners, or schemes that are tilted too heavily
against high-income earners, so that the taxes levied are justi-
fiably judged unfair. The guiding ideal in judging this ques-
tion of fairness is one of reciprocity: there should be at least
48 / Chapter 2

some rough balance between the benefits one gains and the
burdens one shoulders in contributing to society. (For more
details on this ideal of reciprocity, see my essay in chapter 4.)
This potential sort of moral criticism of tax schemes, however,
is off limits to libertarians like Machan, for according to him it
is wrong for ideals of fairness to shape laws and public policy;
laws and public policy must be confined purely to defending
individuals’ rights. (In the following section, I will in fact ar-
gue that individuals have rights to fair treatment, but in this
section I will not pursue this line of thought.) Hence Machan’s
need to object (implausibly) to taxes on the grounds that they
violate an absolute moral property right to all of one’s pre-tax
earnings, rather than on grounds of fairness.
There is another important objection to Machan’s claim
that one has a moral property right to every penny of one’s
pre-tax earnings. This is that Machan’s claim does not follow
from the foundation he provides for it. In fact Machan devotes
scant attention to the task of justifying property rights—much
less attention than this task warrants, given the importance of
property rights to libertarianism. What argument there is ap-
parently comes with the following sentence: “The right to pri-
vate property, via property law in developed communities,
secures for everyone a sphere of personal jurisdiction so it can
be determined when one is acting within one’s own sphere or
intrudes on the spheres of others” (p. 13; cf. p. 38).
The problem is that legal property rights of the sort we al-
ready have in the United States—rights that legally allow for
taxation—suffice to define adequately each individual’s
sphere of personal jurisdiction. One does not need rights to
every penny of one’s pre-tax earnings in order simply to de-
fine these spheres. How many of us, after all, currently have
our lives blighted by uncertainty as to whether the actions we
take with our possessions are legal or illegal?5
I presume Machan’s actual thought is that maximal prop-
erty rights are necessary to create a maximal sphere of per-
sonal jurisdiction—a maximal sphere of liberty, in a word. It is
 The Errors of Libertarianism / 49

fallacious, however, to think that maximal property rights

lead to maximal liberty, even when the liberty in question is
negative liberty. To see this, consider that if, say, Susan owns a
field, then although she has negative liberty to use the field, as
a result of her ownership other people lack the negative liberty
to use this field except by her permission; unauthorized users
of it will find themselves on the wrong side of the law.6 This
can all be quite proper; I agree that there should indeed be
some sort of legal property rights to personal belongings
available to citizens. My point is just that libertarian property
rights are not straightforwardly entailed by the value of nega-
tive liberty. This fact is easiest to appreciate if one imagines
that the libertarians’ wishes are granted and everything that
can be privatized is, so that all roads are privately owned toll
roads, all parks are privately owned admission-charging
parks, all libraries are run like Blockbuster Video stores, and
so on. In such a scenario, a poor person who could not afford
road tolls, admission charges, and the like, might have no neg-
ative liberty to go anywhere whatsoever.
There is yet another well-known problem facing any ac-
count of a moral right to property, commonly known as the
problem of “initial acquisition.” Machan’s proposed moral
right to property is, after all, a right to keep whatever items
come one’s way through voluntary exchanges. But what are
these voluntary exchanges? They are voluntary exchanges of
property, of course. Thus the moral value of voluntary ex-
change presupposes the existence of property rights of some
form; one cannot derive such rights from this moral value
alone. Consider an example: I give you fifty dollars, say, in vol-
untary exchange for your jacket. In order for this to be a per-
missible exchange, I must already own the fifty dollars, and
you must already own the jacket. Also, of course I acquired my
fifty dollars and you acquired your jacket via earlier voluntary
exchanges of things we previously owned, and so forth and so
on back into time. But how did the whole process get going?
There must have once been a point where some unowned
50 / Chapter 2

resource—a parcel of land, say—came to be owned by some-

one, in an act of initial acquisition. But how should this ac-
quisition have happened ideally? Through some process of
“finders keepers,” or something else? Machan does not say.
I conclude, then, that Machan has supplied no foundation
in which to anchor the incredibly strong moral rights to prop-
erty that lie at the heart of his libertarianism.7

2. The Inadequate Defense of Dignity Objection

We have seen that both Machan’s libertarianism and my demo-
cratic liberalism purport to be grounded in an ideal of respect for
the distinctive human capacity for choice—that is, an ideal of re-
spect for the distinctive dignity of humans. We have already seen,
however, one important difference of interpretation regarding
this idea, a difference concerning property rights. In this section I
will examine another difference in interpretation, one concerning
the legitimate uses of force in defense of others’ dignity.
According to libertarianism, force can be legitimately used
in only a few types of situations.8 The kernel of truth in liber-
tarianism’s hostility to force is that there is indeed a strong
moral presumption against force, inasmuch as subjecting oth-
ers to force bypasses their valuable capacity for choice. On
Machan’s extreme interpretation of this truth, we can appar-
ently override this presumption and permissibly use force
only in two cases: when the person subjected to force has him-
self or herself earlier authorized the use of force (by consent-
ing to a legally binding contract, say) and when the person
himself or herself fails to respect another person’s dignity by
intentionally using physical force to interfere with the other
person’s choices, as is the case with murder, assault, and theft.
By contrast, my theory allows the use of force in additional
cases. This is so because a person can fail to respect another’s
dignity in more ways than just the single way of intentionally
using physical force to interfere with the other’s choices.
 The Errors of Libertarianism / 51

These other ways are possible because there is after all such
a thing as economic power over others.9 The power to hire a per-
son (or not) is obviously a significant form of power. Addition-
ally, being fired from one’s job can be a serious disruption to
one’s life. A failure to be promoted as expected can also seriously
disrupt one’s plans. Thus people with the ability to hire, fire, and
promote other people (or not) have a significant sort of power.
This is inevitable, so long as firings and refusals to hire or pro-
mote people are possible, as they should be in some fashion. But
as with political power (the abuse of which libertarians are so
fond of noting) this private economic power can be abused: on a
societal level, economic discrimination against minorities can be
used to maintain a castelike system of social stratification; on an
individual level, employees can (among other things) be threat-
ened with job loss or lack of promotion unless they dispense sex-
ual favors, perform unreasonably dangerous tasks, work an
insane number of hours, or do other humiliating things they
would never do but for their employer’s power over them.
Fortunately, the state’s power can be used to make these
private forms of power more accountable, by (among other
things) enabling some form of sexual harassment suits; en-
abling the formation of employee organizations (e.g., unions);
and by passing anti-discrimination laws, health and safety
laws, minimum-wage laws, and mandatory overtime-pay
laws. The abuses of economic power listed above are abuses in
virtue of being acts of exploitation, which we can define as tak-
ing unfair advantage of a person’s vulnerabilities. More specif-
ically, exploitative exchanges are not appropriately reciprocal;
in them, one party is treated more as an instrument for an-
other’s private gain, rather than as a person in his or her own
right. In this way the exploited party’s dignity as a person is
insulted. The same is true of unfair treatment generally—the
recipient of unfair treatment is not treated as a person whose
worth is equal to others. Unfairness is a threat to dignity.
In short, there are other serious sorts of threats to human
dignity beyond the threat of intentional, forcible, physical
52 / Chapter 2

interferences with other people’s choices. If the importance

of dignity grounds rights against this threat to one’s dignity,
as libertarians believe, then surely it also grounds rights
against other threats to dignity. Such rights include a right
to fair access to economic opportunity, a right to fair access
to personal security (for one’s body and property), a right to
fair access to political influence, and a right to fair access to
criminal justice (that is, a right to a fair trial).
We should now ask whether these rights are “positive
rights,” as Machan understands them. A simple answer of yes or
no is not possible here; these “fairness rights” are like Machan’s
idea of positive rights in some respects, and unlike them in oth-
ers. Fairness rights are like Machan’s idea of positive rights in
that their observance will require positive efforts from others,
rather than merely the sort of forbearance shown in refraining
from murder, assault, and theft. This is so because (as I say in
chapter 4) like most other good things in life, fairness is not free
of charge. Fairness does not spontaneously occur, like the beauty
of a sunset. Fair access to political influence will require the
funding of voting booths, ballot printing, tallying machines and
workers to operate them; a right to fair trial will require the
funding of highly trained judges, stenographers, and public de-
fenders for indigent defendants, not to mention courthouses,
law books, and the like. Fair access to economic opportunity will
require some system of publicly funded education so that igno-
rance does not radically reduce the opportunities open to chil-
dren of poor or negligent parents. Fair access to personal
security will require some public protective system of police,
prisons, and armed forces. The rather horrifying alternative of
private protective associations (private, for-profit police forces,
which one hires on one’s behalf) would at best lead to a situation
in which the wealthy have superb protection and the poor have
meager protection or none at all—a security analogue of the cur-
rent health care situation in the United States.10
Thus fairness rights are like Machan’s idea of positive
rights in that their observance costs something. However, they
 The Errors of Libertarianism / 53

are unlike Machan’s idea of positive rights in other regards.

First, they are not a “right to be made happy,” as Machan says
(p. 24). Instead they are access rights. A right to a fair trial, for
instance, does not guarantee you will be found innocent. A
right to fair access to economic opportunity does not guaran-
tee you will be happy; you must make yourself happy by
working to make use of your opportunities. A right to a fair
vote does not guarantee your favorite candidate will win—
and so on. Second, fairness rights are not necessarily rights
against everyone in the world. Instead they are first and fore-
most rights against the institutions that possess power over
you; that is, they are rights to fair treatment at the hands of
these institutions, and thus they are rights against all those
participants who have the power to shape these institutions.
For example, the right to fair access to economic opportunity
is most fundamentally a right against your government, inso-
far as its laws create and sustain the economic system that pre-
vails in your country. Inasmuch as our government is a
democracy, moreover, the right to fair access to economic op-
portunity is a right against your fellow citizens, who have
power to influence the government. Note, however, that cor-
relative with this right there is also a duty. As an economic
participant, we might say, you have a moral right that the eco-
nomic system into which you were born ensure you fair access
to economic opportunity, but as a citizen you have a moral
duty to do your fair share of the work needed to support a fair
economic system. Thus these are not rights to get anything for
free.11
In short, Machan’s objections that positive rights are rights
to be made happy, or to get something for free, do not work
against the fairness rights that I have defended. One other ob-
jection Machan makes is that positive rights conflict with nega-
tive rights. “If positive rights are valid,” he says on page 23,
“then ‘negative rights’ cannot be, for the two are mutually con-
tradictory.” This is mysterious. The rights to a fair trial, to fair
access to economic opportunity, and so on, certainly do not
54 / Chapter 2

stand in contradiction to one’s negative rights against murder,

assault, censorship, religious persecution, and so on. A state can
define and protect all these rights simultaneously. To be sure,
inasmuch as respecting positive rights requires economic contri-
butions from many people, positive rights do conflict with one
alleged negative right, namely, a property right to all of one’s
pre-tax earnings. As I have argued in section 1, however, it is im-
plausible to suppose that this alleged negative right exists.
Finally, it is likely that Machan would make yet another
objection, namely, that it is a mistake to see these rights (as I
do) as fundamental, pre-legal rights. Instead, says Machan
(p. 22), these rights, when they exist, are established contrac-
tually, by citizens consenting to a government. If by this he
means that the rights to a fair trial, to an equal vote, etc., exist
only in the case where citizens have created a government that
legally recognizes these rights, then I disagree. Fairness rights
exist whenever relations of power exist. Since government is a
power-wielding institution, we can and should judge its laws
by asking whether they respect citizens’ fairness rights. The
problem with Machan’s alternative, consent-based view will
be explored in the next section.

3. The Dilemma of Consent Objection

Machan places himself in a tradition dating back to John

Locke by insisting that in order to be legitimate a government
must obtain the consent—even if only the tacit consent—of all
the citizens under its authority.12 Unfortunately Machan’s fail-
ure to provide much detail regarding the nature of tacit con-
sent leaves his position open to several important objections.
First, what counts as tacit consent to a government’s author-
ity? Does mere residence in a country suffice, as Locke be-
lieved?13 If this is Machan’s view, it is unconvincing. As the
eighteenth-century philosopher David Hume pointed out in
criticism of Locke, the burdens of exiting one’s society and set-
 The Errors of Libertarianism / 55

tling in a new one are high enough to make exit an intolerable

or nonexistent option for most people. There is the cost of
moving to and resettling in a foreign country, in addition to
the burdens of adjusting to a new culture and possibly a new
language.14 One may have moral duties (e.g., caring for eld-
erly parents) that tie one to a specific locale. Finally, and most
decisively, one simply may not be able to find another coun-
try that will legally let one in. For the majority of people, then,
remaining in the society of their birth is not a choice in any
significant sense, and thus their residence cannot plausibly be
construed as an act of tacit consent to society’s authority.
Even if Machan were somehow able successfully to rebut
this objection, it is not clear to me that a “residence = tacit con-
sent” claim genuinely supports his position. For, of course,
Machan wants to limit sharply government’s authority, but an
undemanding account of tacit consent threatens to legitimate
all manner of activities that he regards as illegitimate. For ex-
ample, the Swedish government, with its heavily regulated
economy and its high levels of redistributive taxation, is anti-
thetical in most ways to libertarianism. But if simply remain-
ing in Sweden counts as tacitly consenting to the government
there, then Machan must concede there is nothing illegitimate
about Sweden’s decidedly non-libertarian government.
Alternatively, Machan can opt for a more demanding ver-
sion of tacit consent. There are problems, however, with this
option. If residence does not suffice for tacit consent, there will
surely be individuals living within a country’s borders who do
not consent to the government there. Maybe they want no
government at all, or a more socialist government, a more lib-
ertarian government, a more religious government, or what-
ever. Will such individuals be permitted to stay in society but
be exempt from its laws? This would destroy the rule of law.
Instead, will such individuals be told to secede and convert
what land they own into their own sovereign nation? This will
not do either. A choice of “either consent or secede,” like the
choice of “consent or move abroad,” is an empty one for most
56 / Chapter 2

people; rejecting the unrealistic option of secession hardly suf-

fices for tacit consent. Moreover, even when someone is willing
to convert his land into a separate nation, it is foolish to permit
this. Swiss cheese–style secession is undoubtedly a recipe for
eventual societal breakdown and its attendant dangers.
Hence, making government’s authority contingent on all of
its citizens’ consent runs into problems no matter how one un-
derstands consent. The best response to this dilemma is simply
to concede that political society, owing to its territorial nature,
is unlike other associations to which one might belong; one is
simply born into it, rather than voluntarily deciding to join. It
would be nice if it were otherwise, but realistically we must
concede it is not. From this observation, one can proceed in two
directions: like anarchists, one can claim that all governments
are thereby illegitimate; alternatively, one can argue that the
benefits of (some forms of) government are so substantial that
government is legitimate, despite the fact that not all citizens
consent to it. The second direction is surely the right one.
This has important implications for the fairness rights dis-
cussed in the previous section. Since society and its laws cannot
be founded on the consent of all of its members, we have to set-
tle for the next best thing to a consensual society, by creating a
society (a democracy) the basic structure of which has the con-
sent of the majority of its members and deserves the consent of
all of its members. That is to say, we should create a society the
basic structure of which we can reasonably ask all others to ac-
cept, even though we can predict that some unreasonable citi-
zens will not in fact accept it. (For further discussion of this
idea, see chapter 4, section 3). Since we cannot reasonably ex-
pect citizens to accept institutions that treat them in fundamen-
tally unfair ways, this means that when governments exist at
all, they must create laws that respect citizens’ fairness rights.
Of course, this will hardly settle the matter as far as
Machan is concerned. “Even if Duncan is right that there exist
fairness rights,” he might say, “it is up to citizens voluntarily to
protect them, by voluntarily funding a legal system that gives
 The Errors of Libertarianism / 57

citizens a fair trial, by voluntarily funding an education system

that gives citizens a fair start in life, and so on.” Indeed, on
Machan’s extreme view, even his own favored libertarian
rights to security of person and property can legitimately be
protected only by a police force that is funded in a voluntary
fashion, rather than by tax revenues. So we must ask: Why not
leave the funding of rights-protecting institutions to charity,
rather than taxes? This is the subject of the following section.

4. The Insufficiency of Charity Objection

According to Machan, all taxation is “on par with forced la-

bor” (p. 20 , quoting Robert Nozick), on a par with conscrip-
tion (pp. 12, 25, and 31), or on a par with indentured servitude
(pp. 24, 28, 33). A government escapes these evils only by re-
nouncing taxation altogether and opting for a voluntary sys-
tem of funding. This view, however, suffers from several
severe flaws. For starters, note the numerous and obvious dis-
analogies between taxation and forced labor, which make any
serious assimilation of the two little more than overheated
rhetoric. Under a scheme of taxation, and unlike a scheme of
forced labor, you get to choose what sort of career you will
pursue and where you will live. You can choose whether you
value material goods more than leisure time, or vice versa, and
choose between more demanding and less demanding jobs ac-
cordingly. Indeed, if you are ultra-wealthy, you may not have
to work at all, for you may instead live off of investment in-
come. It surely shows a serious lack of proportion to think of
some multimillionaire—who may well at this moment be sip-
ping scotch on the deck of his yacht in the ocean waters near
his second home—as anything like an indentured servant.
Putting aside Machan’s overheated rhetoric, one can also
object to his view on grounds of realism. This objection has
two aspects. First, the current behavior of many citizens
shows that it is foolish to believe that leaving things to charity
58 / Chapter 2

will generate sufficient funds to protect citizens’ rights to se-

curity and fairness. Many individuals and corporations cur-
rently exploit each loophole in existing tax law, setting up tax
shelters, moving their domicile abroad, and so on.15 What rea-
son do we have to think that repealing all tax laws will sud-
denly lead these individuals, via some unprecedented
conversion to civic-mindedness, to make sufficient contribu-
tions to the maintenance of government institutions? Second,
it is not only the tax avoidance of current individuals that
gives cause for alarm; one should also be alarmed by the be-
havior of many individuals in real-life economies of the past,
which in a great many ways were nearer to the laissez-faire
ideal than our own. For instance, two centuries ago, at the
start of the Industrial Revolution, and onward until the ap-
pearance of the welfare state in the twentieth century, laws
regulating workplace safety, working hours, etc., were either
nonexistent or minimal at best and barely enforced. Many rich
landowners and industrialists then showed themselves to be
serenely indifferent to the plight of their fellow citizens, living
in conspicuous luxury while masses of people suffered.
And suffer they did. In a study of Great Britain, for in-
stance, the economic historian Roderick Floud reports that as
late as 1914 “much more than half of the population lived at
or close to levels at which their health was affected by the lack
of food, warmth, or housing.”16 For many people—an esti-
mated 30 percent of the population in London, for example—
these health effects were serious enough to render them
unable to work a normal day as adults. For those who could
work, life was hard. In 1856, for instance, the average work
week was sixty-five hours(!)—twelve hours a day Monday
through Friday, and a half-day on Saturday. Many workers
worked longer hours than these. Work, moreover, was often
dangerous, with many miners dying prematurely from black
lung, potters dying from lead poisoning, needle-grinders suf-
fering from “grinder’s asthma,” match-factory workers be-
coming disfigured by phosphorous-caused “phossy-jaw,” and
 The Errors of Libertarianism / 59

so on.17 It would be foolish to jeopardize the tremendous gains

that have been made since the start of the Industrial Revolu-
tion by returning to a laissez-faire economic system and trust-
ing in the charity of the well-off.
This cautionary point draws further strength from an
awareness of what social scientists and philosophers call “col-
lective action problems.” Consider, for instance, the safety of
factories in a libertarian regime with no workplace safety
laws. Suppose you are a charitably disposed factory owner
who wants to make his or her factory safe. The problem is that
safety devices often cost a significant amount of money, and
safe procedures may be slower at producing goods. Hence
your goods will be more expensive to produce, and you will
be unable to sell them as cheaply as your competitor, Joe
Sleazo, who cares nothing for the safety of his workers except
insofar as this affects his profit margins.18 Thus you will likely
lose sales to Joe Sleazo, forcing you eventually to choose be-
tween cutting your factory’s safety standards or going out of
business. In this way, then, even if you are charitably disposed
to your workers, the structure of the unregulated economy
may force you to lower your standards. This is the “race to the
bottom,” and in addition to being true of workplace safety, it
is true of many other business policies. As a factory owner you
may wish to pay your workers a decent wage, give them de-
cent working hours, avoid polluting the environment, and so
on, but if Joe Sleazo pays his workers subsistence wages,
works them ragged, and pollutes, then decent behavior on
your part may make your enterprise uncompetitive and put
you out of business. What a society needs to avoid this perni-
cious downward spiral is a change of the rules of the game, in
the form of workplace safety regulations, minimum wages
laws, overtime regulations, anti-pollution laws, and so on.
Moreover, there are other collective action problems, be-
yond the “race to the bottom,” to which libertarianism is ex-
posed. Consider for instance Machan’s insistence that all
government institutions be funded by voluntary contributions
60 / Chapter 2

rather than taxes. Problems arise for this proposal even if we

restrict our attention to the institutions Machan himself ap-
proves of, namely, the legal system, police forces, and the
armed forces. This is because these institutions are, in the lan-
guage of economists, “public goods”—that is, goods the exis-
tence of which requires the contributions of many people but
the benefits of which can be enjoyed by all people, even non-
contributors.19 If I live within the borders of the United States,
for instance, I will be protected against foreign attack like
every other resident, whether or not I pay money to support
the armed forces. I will also benefit from the deterrence of
crime created by the police force and legal system, whether or
not I pay to support these institutions.
This fact creates the incentive to become a “free-rider”: “If
I will acquire the benefit whether I contribute or not,” some
people will reason, “then why contribute?” This incentive to
free-ride is problematic for at least two reasons. First of all, if
enough people reason in this fashion, there will be insuffi-
cient funds to supply the good. The good’s existence, then, is
made vulnerable or is ruled out entirely. Secondly, even if
there are enough scrupulous contributors (as compared with
free-riders) to fund the good, these scrupulous contributors
are being exploited by the free-riders. This is bad enough in
itself, but it may well have an additional bad consequence:
rather than be exploited by their fellow citizens, after all,
many initially civic-minded individuals may cease their own
contributions in disgust—better to be a non-contributor than
a sucker, they may reason—thereby further threatening the
good’s existence. The solution to these two problems is to
make contributions compulsory, that is, to pay for the goods
by taxes; this will protect the public good against the threat
that free-riding poses to its existence, and it will protect con-
tributors against exploitation. If citizens are entitled to use
the law to defend their dignity against threats to their person
and property, surely they can use the law to defend their dig-
nity against threats of exploitation.
 The Errors of Libertarianism / 61

Machan trivializes this line of thought by citing examples

of trivial goods. We benefit, Machan notes, from “nice looking
or smelling people we walk by,” (p. 21) but we owe them no
money for this benefit. This is right, but the good of a nice-
smelling person does not require many individuals’ contribu-
tions for its provision, and more importantly, as goods go it is
hardly in the same league (to put it mildly) as the good of pro-
tection against foreign invasion, murder, theft, and so on. This
good of protection is of fundamental importance, as any rea-
sonable person can recognize. The same is true of other goods
of fundamental importance, such as provisions to ensure that
trials are fair, votes are equally counted, access to economic
opportunity is fair, and so on.

Conclusion

I have focused on four errors committed by libertarians such as

Machan. First, they defend an extreme account of moral rights
to property but do not anchor these rights in an adequate
moral foundation. Second, despite their focus on the impor-
tance of negative liberty to human dignity, they are blind to the
existence of threats to human dignity beyond intentional uses
of physical force, namely, threats posed by private economic
power and by social arrangements that give some people un-
fair access to essential goods like economic opportunity, per-
sonal security, political influence, and criminal justice. Third, it
is unpersuasive to claim that rights to fair access to these goods
exist only when all citizens consent to a government that rec-
ognizes such rights in its laws; if governments, to be legiti-
mate, really needed the consent of all their citizens, then no
feasible government would be legitimate. Fourth, it is inade-
quate to leave the funding of rights-protecting institutions to
charity. History suggests this is unwise, and in any case people
who contribute to the support of such institutions are entitled
to protect themselves against exploitation by free-riders.
62 / Chapter 2

There are other problems with libertarianism besides these

four. But these problems are enough to refute libertarianism’s
claim to our allegiance.

Notes
1. In this critique I will focus on the fundamental claims of libertarian-
ism, rather than its policy implications regarding affirmative action, drug le-
galization, and so on. The issue of affirmative action in particular is indeed
a complex one. For important defenses of it, see Ronald Dworkin, Sovereign
Virtue: The Theory and Practice of Equality (Cambridge, Mass.: Harvard Uni-
versity Press, 2000), chaps. 11 and 12; and Elizabeth S. Anderson, “Integra-
tion, Affirmative Action, and Strict Scrutiny,” NYU Law Review 77 (2002):
1195–271.
2. This is an oft-made point in the literature against libertarianism. For
some references, see Fried “Left-Libertarianism: A Review Essay,” Philoso-
phy and Public Affairs 32 (2004), note 49. See also section 4 of chapter 6 of this
book for quotations from “founding fathers” who make this very point.
3. One important disanalogy between the vendor case and the case of
taxation is the fact that vendors choose to join the antique market on the
owners’ terms, whereas most citizens are born into the state. I will explore
the implications of this important fact in section 3 below, “The Dilemma of
Consent Objection.”
4. This truth can be easily obscured by the terms used in sentences like,
“The government taxes your earnings.” For one might ask: If, as this sentence
says, the earnings in questions are yours, does this not mean that you own
them, and thus that government taxes do in fact confiscate money you own?
The answer to this question, however, is no. Possessives like “your,” “my,”
“his,” “her,” etc., do not always signify ownership. When you speak of “my
mother,” “my country,” “my shadow,” “my first kiss,” and so on, you do not
mean that you own your mother, your country, your shadow, or your first kiss
(whatever that would come to!). At a general level, the phrase “your x”
merely indicates that you stand in a relation to x that not everyone else in your
audience stands in; this leaves it open as to whether the relation in question
is one of ownership or some other relation. Legally speaking, then, the sen-
tence “your pre-tax earnings are $x” just means that you stand in a particular
relation to $x, namely, that this number is the amount that will be entered into
the tax equations that determine how much money you legally own.
5. Moreover, where there is uncertainty due to a vaguely worded prop-
erty law, one solution is to rewrite the law. Eliminating rather than rewrit-
ing a vague law is like treating a case of dandruff with decapitation.
 The Errors of Libertarianism / 63

6. This point is extensively explored in G. A. Cohen, Self-Ownership,

Freedom, and Equality (Cambridge, U.K.: Cambridge University Press, 1995),
chap. 2.
7. For a survey of philosophical issues related to property rights, see
Lawrence Becker, Property: Philosophic Foundations (Boston: Routledge and
K. Paul, 1977). For a critical evaluation of Robert Nozick’s well-known liber-
tarian discussion of initial acquisition (building on John Locke’s theory), see
Cohen, Self-Ownership, Freedom, and Equality, chap. 3. Indeed, the gap in argu-
ment surrounding the problem of initial acquisition has permitted the rise of
“left-libertarians”—thinkers who are absolutists about owning one’s own la-
bor but who are egalitarians about the ownership of external natural resources.
See Fried, “Left Libertarianism” for a recent survey of left-libertarian literature.
8. Libertarians’ recognition of only a few types of legitimate force, how-
ever, does not mean that the number of instances that the libertarian state must
use armed force will likewise be few, however. I wonder whether a libertar-
ian state will need frequently to deploy anti-riot police squads to keep the un-
employed and impoverished from rioting, for instance. Machan might reply
that libertarianism, by permitting material inequalities that create incentives
for entrepreneurs to innovate, would generate the economic growth needed
to solve these problems (see for instance his claim on page 17 linking a free
market with “a more prosperous society”). The relationship between material
inequality and economic growth is a complex relationship, however, and one
that is much debated among economists. If anything, the empirical evidence
suggests a negative correlation between inequality and economic growth, due
in part to the wasted human potential among the poor and uneducated. For
further discussion, see Andrew Glyn and David Miliband, eds., Paying for In-
equality: The Economic Costs of Social Injustice (London: Rivers Orem, 1994);
Klaus Deininger and Lyn Squire, “Economic Growth and Income Inequality:
Reexamining the Links” (1997), www.worldbank.org/fandd/english/0397/
articles/0140397.htm; and the references in note 12 of Alan B. Krueger, “In-
equality, Too Much of a Good Thing,” unpublished manuscript available on-
line at www.irs.princeton.edu/pubs/pdfs/inequality4.pdf.
9. Though insofar as a person’s economic power depends upon the
state’s physical enforcement of his or her property rights, it is debatable just
how separate economic power is from physical power.
10. Machan, by labeling the doctrine of positive rights “arbitrary and in-
coherent” (p. 28), must think that these judgments of fairness are arbitrary
and incoherent. But what is the ground for this assertion? That people dis-
agree about fairness? This ignores the broad consensus that exists regarding
many forms of unfairness—cheating, racial discrimination, childhood
poverty, etc. Moreover, people disagree about the limits and content of neg-
ative rights, too; Machan cannot think that this makes the doctrine of nega-
tive rights arbitrary and incoherent.
64 / Chapter 2

11. The only exceptions concern those who are necessarily dependents:
children, and people who owing to profound disability are incapable of par-
ticipating in the economy. For them, fair access to the means of subsistence is
a right to be provided with means necessary for a decent life. (Note the mis-
placed emphasis involved in Machan’s complaint [p. 20] that no parent has a
right “to the education of his or her children.” On the contrary, it is not the
parents who have the right to have their children educated; it is first and fore-
most the children who have the right to an education.) Children, of course,
will upon reaching maturity assume the correlative duty of this right, namely,
a duty to support a system that gives children a fair start in life. The pro-
foundly disabled will not. This is one case where the fairness rights I am de-
fending take an asymmetric form—that is, are not counterbalanced with a
correlative duty. I cannot see that this is an objection, however; the plight of
the profoundly disabled is hardly an enviable one. As such, a complaint that
the profoundly disabled are exploiting their fellow citizens does not ring true.
12. Arguably, though, Locke waffles on the issue of whether the consent
of all or of just the majority is needed. See for instance John Locke, Two Trea-
tises of Government, ed. Peter Laslett (Cambridge, U.K.: Cambridge Univer-
sity Press, 1960), 362, para. 140. For a non-libertarian interpretation of Locke
generally, see A. John Simmons, The Lockean Theory of Rights (Princeton, N.J.:
Princeton University Press, 1992), especially chap. 6.
13. John Locke, Two Treatises of Government, 348, para. 119.
14. David Hume, “Of the Original Contract,” in Modern Political Thought:
Readings from Machiavelli to Nietzsche, ed. David Wootton (Indianapolis, Minn.:
Hackett, 1996), 387–96.
15. In 2002, for instance, American multinational companies reported a
record $149 billion in profits in tax-haven countries (i.e., countries with low
or no corporate taxes). “Taxing Global Profits,” New York Times, September
17, 2004.
16. Roderick Floud, The People and the British Economy: 1830–1914 (New York:
Oxford University Press, 1997), 23. Quoted in Emmet Barcalow, Justice, Equal-
ity, and Rights (Belmont, Calif.: Wadsworth/Thomson Learning, 2004), 216.
17. Floud, The People and the British Economy, 23, 31, 78.
18. I borrow the character of Joe Sleazo from Richard B. Freeman and
Kimberly Ann Elliott, Can Labor Standards Improve under Globalization?
(Washington, D.C.: Institute for International Economics, 2003), 37. This is
an example of the collective action problem known as the “Prisoner’s
Dilemma.” For further discussion of this and other collective action prob-
lems, see Jon Elster, Nuts and Bolts for the Social Sciences (Cambridge, U.K.:
Cambridge University Press, 1989).
19. For further discussion of public goods, see Joseph Stiglitz, Economics
(New York: W. W. Norton, 1993), 180–82, and John Rawls, A Theory of Justice,
rev. ed. (Cambridge, Mass.: Harvard University Press), 234–42.
3
Fairness—or Equality—
Is No Imperative
Tibor R. Machan

The idea that equality of conditions—apart from the condi-

tion that all receive equal respect and protection for their
basic and derivative rights—is a sign of a good and just society
is widespread and prominent among academic political
thinkers, far more so than the idea that a consistent, un-
compromised condition of freedom, in the sense of respect for
everyone’s negative rights to life, liberty—including, espe-
cially, ownership—and the pursuit of happiness, makes a so-
ciety just.1 That’s to say, most academic political thinkers are
egalitarians, not libertarians.
So in this last portion of my contribution to this work I
wish to address the claim that fairness or equality of condi-
tions is indeed what justice requires. It is something Professor
Duncan endorses, certainly, when in outlining his own posi-
tion (chapter 4) he identifies human equality as a “core value”
and tells us, “If we want a fair society in which all citizens are
treated as equals, we need a level training field as much as a
level playing field” (p. 103). He also stresses that “a concern to
respect human equality in addition to human freedom will
lead to a concern with more than just an adequate opportunity
to shape one’s life” (p. 101).

65
66 / Chapter 3

It is not difficult to tell from our respective discussions

that whereas Professor Duncan finds equality to be a core
value, libertarians consider this a mistake—they consider lib-
erty, or the right to it, the core political value of a just society.
One reason they find the attempt to establish “more than just
an adequate opportunity to shape one’s life”2 objectionable is
that doing so is a serious threat to respecting and protection
everyone’s equal right to liberty!3
As noted, in our time and for a couple of centuries previ-
ously many prominent political thinkers—probably most un-
ambiguously Jean Jacques Rousseau4—have claimed that a
very strong moral, even political, imperative is that people
must be treated fairly, that they be treated as basically equal,
with equal benefits and burdens for all. Among those today
who promote this idea explicitly is the philosopher Kai
Nielsen5 and the even more prominent legal theorists Ronald
Dworkin6 and Cass R. Sunstein.7
The policy implications of this view are, for the most part,
the extensive and continuous redistribution of wealth. No one
has the right to keep assets, for example, that he or she came by
either via hard work, good luck, or especially the voluntary
payments of others via market transactions or even gifts. A
beautiful model who gains considerable wealth because others
wish to pay for seeing her, for example, is to be taxed exten-
sively, and the funds taken from her are to be spread out to oth-
ers who do not enjoy this advantage, who are disadvantaged.
Even a very hardworking executive or tennis professional, paid
a large salary because he or she has successfully put a corpora-
tion on a firm economic footing or entertained millions with his
or her superb athletic prowess, may not keep these earnings but
is taxed progressively—not proportionately—and the funds are
to be redistributed by politically appointed bureaucrats (who
are first paid for this work quite handsomely). Nor may anyone
who is lucky enough, say, to win a huge amount of money in a
lottery keep his or her winnings; they must be parted from a
significant portion of it, and that, too, will be redistributed.8
 Fairness—or Equality—Is No Imperative / 67

All in all, the ideal of fairness or equality as espoused by

its champions would not even allow the sort of differences in
wealth and poverty that would remain after the familiar taxa-
tion policies of most welfare states—those policies do not go
far enough, the champions argue.
There are various philosophically interesting reasons of-
fered why this ideal really is a political imperative and why
the law and public policy ought to be guided by it. One is
hinted at in John Rawls’s discussion, in his A Theory of Jus-
tice,9 of whether people ever deserve the wealth they obtain
in market transactions. He claims they do not, that none of
us really earns anything, since we are all basically socially
conditioned, including those of us who turn out to be hard-
working, entrepreneurial individuals. Our ambition or effort
really is not something we cultivate for ourselves, so we
should not be rewarded for it with what we earn. It is en-
tirely accidental who will be ambitious and who will not, so
letting stand the original distribution that comes from vol-
untary exchanges must be unjust. The second argument rests
more on intuition; many hold that it is simply natural for us
all to share in the common wealth of society—that we know
this to be so intuitively.10
The intuitionist approach is one on which I will not
spend much time, other than to note that intuitions are no-
toriously bad guides to what we ought to be doing. To reit-
erate what W. Somerset Maugham pointed out, “intuition,
[is] a subject upon which certain philosophers have reared
an imposing edifice of surmise, but which seems to me to of-
fer as insecure a foundation for any structure more substan-
tial than a Castle in Spain as a ping pong ball wavering on a
jet of water in a shooting gallery.”11 Intuitions are in con-
stant flux. On their basis slavery, for example, was appar-
ently morally and politically acceptable in one age, though
not in another, and so with the abuse of women and chil-
dren and prisoners of war, to name just a few areas wherein
we clearly seek for moral stability but are not provided with
68 / Chapter 3

it by intuitions. Intuitions—or as they are better known,

common sense—can be an initial clue to where the truth lies,
but it cannot be decisive.12
Another serious challenge to individualism and individ-
ual rights maintains that people are by their very nature parts
of a larger whole—society, tribe, humanity, the ethnic group
or the community—and so belong to a group the members of
which are owed loyalty and solidarity from them. Socialists
like August Comte and Karl Marx held this view, as do some
contemporary communitarians like Charles Taylor. These
thinkers insist that the classical liberal polity rests on the false
belief in atomistic individualism. This view holds that we are
independent, self-sufficient beings who can do without soci-
ety altogether and for whom social relations are entirely op-
tional. Such a view is similar to what some economists work
with as they analyze market relations, but critics claim classi-
cal liberals rest all their ideas on it.13
This ant-colony/beehive notion of human social life gains
some support from the Aristotelian idea that we are all essen-
tially social. But to take it as far as socialists and communitari-
ans do is an extreme leap. It denies that individuals can form
ideas of their own, govern their own lives in light of these
ideas, and are responsible for the result. Others should not be
burdened if they live in misguided ways. Also, it is wrong to
believe that we are obligated to shoulder burdens and share re-
wards, as if we belonged to some natural club or tribe. But fair-
ness or equal treatment follows if we do, so this idea is often
invoked to support the redistributionist state. In fact, though
we are social beings, there is an essential individuality to our
lives as well, and this requires for our flourishing that we en-
joy sovereignty in how we live, rather than involuntary servi-
tude to people with whom we did not choose to associate.
As such, it is not unfair at all to be better off than others—
they are not owed our lives and labors by us, contrary to how
egalitarians think. It is not unfair, either, that some people gain
the friendship of very appealing persons while others are left
loners, or that some are sought out by audiences for their tal-
 Fairness—or Equality—Is No Imperative / 69

ents and skills while others must fend for themselves without
such enthusiastic support. The main issue of political morality
is, instead, that none of this involves forcing people to do what
they do not choose to do—that is, using coercion on them.14
That is what civilized life requires, not the abolition of distinc-
tions and differences that may yield variable advantages.
Concerning fairness or equality, one reason that these
seem such ubiquitous imperatives in our time could well be
that in a reasonably abundant society children grow up being
treated rather fairly by parents, who owe all of them (in the
family) decent treatment. Just as a teacher is supposed to at-
tend to all of his or her students—having in effect made a
promise to all of them to serve them with his or her skills—so
parents have basically promised their kids to treat them
equally well, provided they have the wealth to do so.15
But all of this is highly conditional and by no means
basic—what is basic is the responsibility to keep the promise
to provide service or good rearing. Yet having grown up with
the justified expectation, based on the promise, of equally
good treatment or fairness from parents and teachers, it makes
some psychological sense that this expectation be extended to
governments that claim to be providers for their citizens—not
just providers of equal protection of their basic rights to be
free but of whatever governments (politicians) promise (in a
welfare state, for instance).16
Yet this expectation is misguided, for two reasons: the
government is not a parent, and governments should not at-
tempt to provide citizens with everything they would like.
The Rawlsian case is a bit more complicated, because, as
we already noted, it rests on a very controversial yet widely
championed idea in our time, namely, determinism. This view
holds that all people behave as they must, based on the factors
that impel them to do so. Be these factors genes, evolutionary
forces, peer pressure, or whatever, there is a widespread idea,
drawn from the extrapolation from classical physics, that
none of us is free or responsible and thus deserving of either
gains or losses. It is all a matter of accident.
70 / Chapter 3

Paradoxically, however, from this picture, based on a de-

terministic view of human life, a moral conclusion is drawn,
one that is incompatible with determinism—that we all ought
to work to fix the accidental distribution of benefits and
harms, gains and losses, by means of a political order that is
guided by fairness. Since “ought” implies “can,” this impera-
tive cannot be reconciled with determinism. But never mind—
just as Kant believed that a deterministic (phenomenal) world
coexists with a (noumenal) realm where choice is possible, so
Rawls and his followers embrace this two-world picture, one
in which determinism rules, another in which freely chosen
moral and political conduct would remedy matters.
These last points not only indicate the paradoxical nature
of the Rawlsian-based fairness imperative but also undermine
it. It turns out that, after all, we are moral agents, that we can
act in ways that make us more deserving, perhaps deserving
even of greater wealth than what others obtain.
Furthermore, there is a non sequitur afoot in this version
of the fairness imperative: that one does not deserve one’s as-
sets does not mean that others may take them away. One does
not deserve a lot of things that others have no authority to
take from one—say, an extra kidney, a good second eye, one’s
labor and talents, etc., etc.
For these reasons—among probably others that have to do
with the debilitating nature of trying to implement an egalitar-
ian regime—the fairness imperative is misguided.17 It is also
impossible, since in the effort to accomplish the massive redis-
tribution of benefits and harms, those who take on this task ob-
tain an inordinately greater measure of power over others than
those others have. That, in turn, is the most insidious inequal-
ity or unfairness that a human community can contain.
Instead of ending on a highly abstract note, let me recount
here that over the years I’ve written a lot about the virtue of
liberty—one of my books has that as its title, in fact—yet even
among many of my readers who find my arguments sound and
my conclusions true there are many who do not seem to be able
 Fairness—or Equality—Is No Imperative / 71

to shake their disdain for the rich, thinking it is quite unfair that
they are so much better off then the rest of us. Even lovers of lib-
erty often think of the rich as they might of prostitutes—sure, it’s
wrong to stop them, but they are an unsavory lot, aren’t they?18
Why is this attitude toward the rich so widespread? Why
do some find it so awful that certain people who can afford it
take long vacations on the French or Italian Riviera and drive
fancy cars and wear snappy outfits that cost a bundle even
while others struggle? It is generally not some particular rich
person who draws such ire, not someone who may have em-
bezzled or otherwise illicitly gained his wealth. Not at all—it
is the fact of their being rich, period.
An anecdote may be of some use here. A few summers
ago I had a chance to tour Versailles, where I took a close look
at the palace of Marie Antoinette and Louis the XVI.19 A point
recurred to me during this visit that I had thought of on sim-
ilar visits to castles and palaces around the globe, how easily
people still confuse the wealth that comes by way of conquest
with wealth that is achieved. French royalty, for example, or
the Habsburgs, or any other dynasty, became wealthy and
spent enormous sums on luxuries not in consequences of
hard work, diligence, or even simple good luck but because
millions of others were kept in servitude and had their labors
taken from them. Unlike, say, a Bill Gates, Warren Buffett, or
the late Sam Walton, as well as many, many others who have
earned and kept earning their wealth through innovation,
wheeling and dealing, or other honest means, the bulk of the
rich in the past gained it mainly by way of conquest and sub-
jugation.
In the economic theories of ancient times—say, Aristotle’s—
it was generally believed that wealth had to be expropriated,
that it was all a zero-sum process: those who gained had to
make others lose. That, of course, created a widespread moral
disapproval of riches, to the point that calling riches “filthy”
was nearly axiomatic—if by “filth” is meant “wrongful,”
“nasty,” or “inexcusable.”
72 / Chapter 3

But matters have changed significantly over the years, and

at least in certain parts of the world those who are wealthy can
very often honestly claim to have made themselves so, apart
from that little bit of luck that’s always handy in such cases.
Now economic prosperity, even great abundance, is more akin
to other types of excellence that human beings can achieve on
their own initiative—scientific or artistic achievements, even
philosophical astuteness. A fabulous athlete, or a scientist or
artist whose work is widely welcome and rewarded will, of
course, manage to afford some very unusual perks in life—
and now a fabulous financier or business genius can as well.
Even those who are somewhere in the middle class eco-
nomically can afford journeys, clothing, dining, books, enter-
tainment, and the rest that in the past only a small fraction of
the human race could hope for. Still, even in our time there are
millions in various regions of the world who are systemically
barred from even aspiring to such prosperity as is near at
hand for most North Americans, Western Europeans, Aus-
tralians, and New Zealanders. But in these regions a different
economic order has taken hold, albeit not without resistance,
and wealth can in the case of many be attributed not to theft
and expropriation but to achievement, to earning power. The
rest, who are trapped in political economic systems wherein
free trade and property rights are barely heard of, would still
be justified in thinking of the rich in their midst as filthy,
mainly because they are rich from stealing from everyone else.
So, perhaps one should show a bit of understanding, if not
tolerance, toward those who still live with the bad habit of re-
garding with suspicion everyone who is rich.20
Getting wealthy honestly is, then, relatively new. It may
take a while before we will all consider it as clean and treat
poverty as filthy—since very few of the poor will have any
excuse for being poor any longer. Instead of wishing we were
all in the same boat—equal in opportunity, conditions, and
results—we will readily appreciate that variable circumstances
are natural as well as often moral. We may learn that attempt-
 Fairness—or Equality—Is No Imperative / 73

ing to equalize it all can only lead to the worst type of inequal-
ity, namely, inequality of the power of some over others.
The reason is plain: Equality of conditions, even of oppor-
tunity (apart from the legally protected right to freedom to
seek what one wants) is, technical philosophical considera-
tions aside, simply quite impossible. It introduces a plethora
of conflicts, inconsistencies, and problems, and it implies, ul-
timately, a totally socially engineered culture that can easily
serve as a model of dystopia for politically geared science fic-
tion novels.21
In his critique of my opening essay, Professor Duncan ob-
serves that we share a premise as we begin our defense of our
respective political position, that being the basic dignity of the
human individual. This is roughly right, except that built into
his idea of human dignity there is in Professor Duncan’s under-
standing room for one person’s taking from another portions of
his or her life and works, whereas in mine this is precluded. No
one is entitled to other people’s person or estate, however unfair
this may seem when looked at as if these persons had some sort
of covenant to share. But they do not have such a covenant, not
unless they enter into one freely, uncoerced.

Notes
1. Although the ideas and ideals of laissez-faire capitalism or, more
broadly, libertarianism are in sufficient circulation to be subjects of discus-
sion and, certainly, severe criticism, the egalitarian stance is clearly the fa-
vorite of major figures in political philosophy and theory who teach at the
most prestigious institutions and publishing with the most prominent
presses, both commercial and university. I do not believe there can be any
reasonable dispute about this.
2. Libertarians consider respecting everyone’s right to liberty (and so forth)
a right that is, of course, held equally by everyone, so there is a measure of
equality in the libertarian view of justice—consider, as a case in point, that the
Declaration of Independence states that we are all “created equal,” just before
it states, as well, that we possess “unalienable rights; that among these are life,
liberty, and the pursuit of happiness.” (See, for more on this, Roderick Long,
74 / Chapter 3

“Equality: The Unknown Ideal,” at www.mises.org/fullstory.aspx?

control=804.) This is the extent of egalitarianism in libertarianism. Libertarians
deny, also, that individual have the right to equal opportunity—it would be
wrong to attempt to engineer society for this purpose, and also quite impossi-
ble, since clearly those not involved in the engineering process would not have
the equal opportunity for having things their way. Furthermore, they have ar-
gued that the assumption that one can secure both the right to equality (as in
equal opportunity or equal conditions) and the right to (negative) liberty is er-
roneous. The attempt to secure any so-called right to equality will routinely
undermine respect of the equal right to liberty of all.
3. It needs to be noted that in a discussion about political theory, not un-
like theories in other disciplines, what one ought to aim for is a compara-
tively better position, not one that meets the impossible criterion of a final
answer. No position human beings formulate could ever be final, not about
substantive matters such as how a human community ought to be organized.
Answers to such questions can always be modified, updated, improved
upon, as new facts come to light, as the old facts may need reorganization.
4. The work that addresses the issue most directly is Jean-Jacques
Rousseau, A Discourse on Inequality, trans. Maurice Cranston (New York:
Penguin Books, 1984).
5. Kai Nielsen, Equality and Liberty: A Defense of Radical Egalitarianism (To-
towa, N.J.: Rowman and Allanheld, 1985).
6. Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality
(Cambridge, Mass.: Harvard University Press, 2000).
7. Cass R. Sunstein, The Second Bill of Rights: FDR’s Unfinished Revolution
and Why We Need It More Than Ever (New York: Basic Books, 2004).
8. Professor Duncan asserts that taxation cannot be theft, since it is legal.
Does this imply that the deliberate killing of Jews in the Third Reich could
not have been murder, since it was legal? Instead of quibbling here, let me
note that, more precisely, taxation is a form of extortion. It amounts to the
government threatening to punish—with the possibility of killing, in the
case of one’s strong resistance—someone unless he or she gives up portions
of his or her wealth, income, property or whatever other form the tax takes.
For a detailed treatment of this matter, see Tibor R. Machan, “No Taxation,
With or Without Representation,” in Robert W. McGee, ed., Taxation and
Public Finance in Transition and Developing Economies (New York: Springer,
2005). As to how a legal system can be funded without such extortion, see
Tibor R. Machan, “Dissolving the Problem of Public Goods: Financing Gov-
ernment without Coercive Measures,” in The Libertarian Reader, ed. T. R.
Machan (Lanham, Md.: Rowman & Littlefield, 1982).
9. John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard Univer-
sity Press, 1971).
 Fairness—or Equality—Is No Imperative / 75

10. “The assertion that a man deserves the superior character that enables
him to make the effort to cultivate his abilities is . . . problematic; for his char-
acter depends in large part upon favorable family and social circumstances
for which he can claim no credit.” Rawls, A Theory of Justice, 104. If this is not
a flat-out denial of free will and personal responsibility, it difficult to tell
what it amounts to. Cf. David L. Norton, Personal Destinies: A Philosophy of
Ethical Individualism (Princeton, N.J.: Princeton University Press, 1976), 328:
“To my knowledge, nowhere has attention been called to the fact that egali-
tarianism’s ubiquitous suspicion of advantage precludes to its adherents our
natural delight in the presence of persons of surpassing moral excellence.”
11. W. Somerset Maugham, A Writer’s Notebook (Baltimore: Penguin,
1967), 325.
12. Intuitions are initial clues because they are unexamined but strong
convictions or beliefs. They are, however, acquired haphazardly, unself-
consciously, so upon scrutiny can be found to be misguided.
13. The source of this idea is the philosophy of Thomas Hobbes who, in
his Leviathan, laid out an understanding of human beings as entirely unique
and who join society as a matter of a social contract they enter. They have
no human nature in line with which they conform to certain limits, and
whatever limits that befall their lives are a matter of their own decision.
14. Two especially insightful works elaborate these points along classical
liberal, libertarian lines: Murray N. Rothbard, Egalitarianism as a Revolt
against Nature, and Other Essays, 2nd ed. with an introduction by David Gor-
don (Auburn, Ala.: Ludwig von Mises Institute, 2000), and Antony Flew, The
Politics of Procrustes: Contradictions of Enforced Equality (Buffalo, N.Y.:
Prometheus Books, 1981).
15. Within a theological framework of political justice the idea that we are
all God’s children also encourages the idea that whoever stands in for God on
earth—say, the king or the government—owes us all care, and we in turn must
share whatever burdens face humanity. Since I am operating here from a nat-
uralist framework, I merely mention this point and do not discuss it further.
16. For a development of this point, see Tibor R. Machan, Private Rights
and Public Illusions (New Brunswick, N.J.: Transaction Books, 1995).
17. A similar imperative is that of impartiality—so that, for example, if
one has moral responsibilities toward some persons, impartiality will re-
quire that these be fulfilled toward all others (at least in reach). As Peter
Unger puts it, “On pain of living a life that’s seriously immoral, a typical
well-off person, like you and me, must give away most of her financially
valuable assets, and much of her income, directing the funds to lessen effi-
ciently the serious suffering of others.” Peter Unger, Living High and Letting
Die: Our Illusion of Innocence (London: Oxford University Press, 1996) [my
emphasis]. Thus we have the spectacle of some contemporary moral
76 / Chapter 3

philosophers advocating worldwide forcible wealth redistribution. For the

libertarian this amounts to advocating involuntary servitude to all by all, an
incoherent idea if there ever was one.
18. Apropos loving liberty, I should note that the negative liberty or right
to it that libertarians defend is not one value among others, such as security
or a healthy diet. This kind of liberty is a precondition for the pursuit of any
value and is, in fact, not a value in itself but in relationship to how it makes
possible the pursuit of all values. As F. A. Hayek pointed out, “That freedom
is the matrix required for the growth of moral values—indeed not merely
one value among many but the source of all values—is almost self-evident.
It is only where the individual has choice, and its inherent responsibility,
that he has occasion to affirm existing values, to contribute to their further
growth, and earn moral merit.” (“The Moral Element in Free Enterprise,” in
Mark W. Hendrickson, ed., The Morality of Capitalism [Irvington-on-Hudson,
N.Y.: Foundation for Economic Education, 1992], originally written for The
Freeman, 1962.)
For a discussion of the nature of such liberty, between two libertarians
with somewhat different approaches to the issue, see Tibor R. Machan and
John O. Nelson, A Dialogue, Partly on Political Liberty (Lanham, Md.: Univer-
sity Press of America, 1990).
19. Actually, while the palace was unbelievably vast and sumptuous, it is
often noted that the queen and the king were a rather economically minded
pair, compared to others of their class, and it was not they but the nobility
in France that stood in the way of various financial reforms that would have
been to the benefit of the entire country.
20. We might think of it along these lines, also: Suppose in the past some-
one’s beauty or good constitution had been achieved by depriving others of
something belonging to them. But in time these assets were either come by
naturally, or with the efforts of those who possessed them. That there are
still those who resent the beauty or good constitution of others could per-
haps be appreciated because most people still believe these have been the
result of oppression, extortion, or conquest.
21. Such works do actually exist—for example, Kurt Vonnegut, “Harrison
Bergeron,” in Welcome to the Money House (New York: Bantam Doubleday,
1988); Ayn Rand, Anthem (Los Angeles: Pamphleteers, 1946); and, of course,
the classic George Orwell, Animal Farm (New York: Harcourt, Brace, 1946).
PART II
4
Democratic Liberalism:
The Politics of Dignity
Craig Duncan

For the medieval philosopher St. Thomas Aquinas, the idea of

hell posed one hell of a problem. He revered the Bible, of
course, and the Bible says that punishment should fit the
crime—as the famous phrase has it, “an eye for an eye, a tooth
for a tooth.” Yet the horrors of hell last forever, making hell an
infinitely bad punishment. Wouldn’t hell, then, be a fitting re-
sponse only to an infinitely bad crime? But—and here is the
problem—how could any finite human being possibly be
guilty of such a crime?
Here is Aquinas’s answer: “Sin which is committed
against God is infinite. For the sin is the more serious, as the
person against whom one sins is the greater. For example, it is
a more serious sin to kill a prince than to kill a private citizen.
But the greatness of God is infinite. Therefore, one deserves
infinite punishment for a sin that is committed against God.”1
In short, when a person commits a crime, we are to measure
the seriousness of that crime with reference to the “greatness”
of the party wronged by the crime. Since God’s greatness is in-
finite, an offense against God counts as an infinite crime.
To be sure, Aquinas’s answer has its problems (for one
thing, it implies that the average murderer’s crime is on a par

79
80 / Chapter 4

with Hitler’s crime—both are infinitely bad!). But that is neither

here nor there, for this is not an essay on theology but on polit-
ical philosophy. Aquinas’s answer is worth examining even in
an essay on political philosophy because it contains an idea
with political implications that are worth exploring, namely, the
idea of wronging a being’s “greatness.” “Greatness” is one of
many such words Aquinas could have used to express his idea;
other similar words include “honor,” “majesty,” “augustness,”
“magnificence,” “sublimity,” and—to use a word that will fig-
ure prominently in the pages to come—“dignity.” This allows
us to redescribe Aquinas’s idea in different terms. When
Aquinas says that the ultimate crime is to sin against God’s
greatness, we might say he means that the ultimate crime is to
fail to show due respect for the dignity of God.
Aquinas’s main focus is on God, but he also mentions
princes and private citizens, and it is here we can discern the po-
litical implications of his idea. They are not appealing implica-
tions, for they are mired in the distinctly unappealing political
assumptions of the Middle Ages. It is a greater crime, Aquinas
says, to kill a prince than it is to kill a private citizen. In fact, this
medieval idea of “greater dignity, greater crime” was explicitly
formalized in feudal Anglo-Saxon England in the institution of
the wergild. The wergild fixed the value of each person’s life: a
serf’s wergild was less than a noble’s wergild, which in turn was
less than a king’s wergild. If you killed someone, the law re-
quired you to pay that person’s wergild. As Marilyn McCord
Adams comments, “On this system, someone might be able to
afford to kill a serf, but not a noble, or a noble but not a king. . . .
[G]uilt was proportional to the augustness or majesty of the of-
fended party and not just to the act of the offence.”2
Fortunately, times have changed. If you respond in horror
to the wergild system, then to that extent you have internal-
ized an egalitarian idea of first-order importance, namely, the
idea of the equal dignity of human beings. It is this egalitarian
idea that lies at the foundation of the political philosophy de-
fended in this chapter, which I will call “democratic liberal-
ism.” To that defense I now turn.
 The Politics of Dignity / 81

1. Dignity and Responsible Choice

Let us begin by exploring the idea of dignity. Consider a

thought experiment described by the American philosopher
William James. In a discussion of utopian political visions,
James poses the following question:

If the hypothesis were offered us of a world in which [various

thinkers’] utopias should be all outdone, and millions kept
permanently happy on the one simple condition that a certain
lost soul on the far-off edge of things should lead a life of
lonely torture, what except a specific and independent sort of
emotion can it be which would make us immediately feel,
even though an impulse arose within us to clutch at the hap-
piness so offered, how hideous a thing would be its enjoyment
when deliberately accepted as the fruit of such a bargain?3

I suggest that the “emotion” to which James refers is surely

none other than that of respect, namely, respect for the dignity
of that “certain lost soul” whose torture would guarantee
the happiness of millions. The power of this idea of dignity
is apparent from the size of the benefit—unimaginable
happiness—that is foregone in its name.
What is it, though, that gives a human being such a pow-
erful dignity? The most plausible answer looks to our impres-
sive mental capabilities: our self-consciousness, our capacity
to imagine future consequences, to articulate our values, to
deliberate as to which course of action is best, to guide our
choices by these deliberations, and so on.4 This is a plausible
answer, because this constellation of mental capabilities al-
lows adult human beings to cross an important threshold,
namely, the threshold that separates beings who are morally re-
sponsible for their actions from beings who are not. The pow-
ers of choice that ordinary human adults possess are such that
they are responsible for their choices in a way that young chil-
dren, for instance, are not. That is a significant difference, well
worthy of a deep respect. This fact is acknowledged in the nu-
merous distinctions we draw between appropriate ways of
82 / Chapter 4

treating adults and appropriate ways of treating children.

“Show me some respect,” a young adult might say to her eld-
ers who persist in treating her as a not-yet-responsible being.
Of course, a number of puzzles accompany the notion of
moral responsibility. Where exactly should we draw the line
between beings who are responsible for their actions and be-
ings who are not? Moreover, insofar as moral responsibility is
widely thought to depend on the existence of a free will, we
face the well-known challenge of how free will can exist in a
world of atoms and energy bound by scientific laws. Clearly,
it would be foolish of me to attempt to solve this deep chal-
lenge in the short space I have here. Instead I will be content
to note that regardless of the puzzles that abound in the de-
bate over free will, it is hard to deny that there is surely some
difference between adults and children that warrants us treat-
ing them differently. Adult decision making is typically com-
petent in the way a young child’s simply is not. The capacity
for this sort of competent decision making is what I have in
mind when I speak of the capacity for responsible choice. The
free-will debate, however it turns out, will surely not erase all
morally relevant distinctions between adults and children.
In proposing that politics be founded on respect for human
dignity, understood in terms of the distinctive human capacity
for choice, I am aligning myself with a long-standing tradition
in moral philosophy, the best-known adherents of which range
from the ancient Greek and Roman Stoics to the eighteenth-
century German philosopher Immanuel Kant and beyond.5 I
will later have more to say about Kant’s position in particular.
For now, though, I want to continue to develop this foundation
for politics. Toward that end, the next obvious question to ask
is this: Supposing the source of human dignity does lie in our
capacity for responsible choice, what does it mean to respect
this capacity? The answer to this is threefold: one respects the
capacity for responsible choice by observing a strong pre-
sumption against impairing it, against constraining it, and
against ignoring it (that is, against failing to recognize its exis-
 The Politics of Dignity / 83

tence).6 Each of these ways of failing to respect dignity requires

commentary. The next section takes up this task.

2. Respecting Human Dignity

The most devastating way one can fail to respect another per-
son’s dignity is by failing to recognize any presumption
against impairing that person’s capacity for responsible choice.
In general, one impairs a person’s capacity for responsible
choice by crippling the mental capabilities necessary for re-
sponsible agency or by preventing their healthy development.
Certain forms of abuse, both physical and psychological, can
produce this result, especially if the victim is a child. Quite
plausibly, too, a person’s capacity for responsible choice is crip-
pled while he or she is in the grip of a severe substance addic-
tion. Additionally, one can impair other people’s capacity for
choice by paralyzing them with fear or by incapacitating them
with intense and prolonged pain—and so on. In all these cases
the implications for dignity are especially severe. For when a
person’s capacity for responsible choice is destroyed, we may
say that his or her dignity is correspondingly diminished.7
The second way in which one can fail to respect another
person’s dignity is by failing to observe any presumption
against constraining the exercise of that person’s capacity for
responsible choice. The clearest case of this lies in physical
constraints on a person’s body. At the extreme, the person is
shackled to a dungeon wall, thereby removing nearly all op-
portunity for action. A prison cell allows a greater scope of ac-
tion than a set of shackles but drastically less scope than exists
outside of prison—and so on for other less confining physical
restraints. In the case of constraint, it is not genuinely apt to
say that the constrained person’s dignity is diminished, for un-
like the case of impairment, the person’s capacity for respon-
sible choice will remain intact so long as the constraint is not
so extreme as to be mentally incapacitating. Rather, the harm
84 / Chapter 4

of constraint lies in preventing the person from using this ca-

pacity in significant ways. This is a serious harm, for ideally
one’s life should reflect one’s dignity, much like the moon re-
flects the light of the sun. While constrained, however, a per-
son’s life does not reflect his or her capacity for responsible
choice, much like the moon no longer reflects any light while
in the earth’s shadow during a lunar eclipse. For this reason,
it is best not to say the person’s dignity is diminished, as we did
in the previous case of impairment; rather, we should say that
the person’s dignity is obscured.
In addition to physical constraints, there is another impor-
tant sort of constraint by which one may obscure another per-
son’s dignity, namely, threat-based constraints. The paradigm
instance of this type of constraint is a mugger with a gun in his
hand who says, “Your money or your life.” Complying with
his demand, you might later say, “He forced me to hand over
my wallet; I had no choice but to do as he said.” Of course, in
a technical sense this is not quite right: you could have made a
dash for it, or tried to tackle the mugger, or defiantly said to
him, “No, you’ll just have to shoot me if you want my money.”
From this technical point of view, the mugger does not con-
strain you unless and until he does so physically. We should
however ask why, contrary to this technical point, it seems so
natural to say that you were forced to do as the mugger said,
even if no shot was ever fired. It is natural to say that you were
forced to hand over your money, despite having some choice
in a technical sense, because owing to the lethal threat against
your life you had no “real” choice, we might say. Your choice
was between handing over your wallet or putting your life in
serious jeopardy; those were your only options. Since the latter
option is an intolerable one, handing over the money was your
only tolerable option. Given this, no one could reasonably hold
you responsible for the loss of the money; your exercise of re-
sponsible choice was constrained during the mugging. During
that time, your dignity was obscured—eclipsed, we might say,
by the dark shadow of the mugger’s deed.
 The Politics of Dignity / 85

This discussion of constraining a person’s exercise of re-

sponsible choice helps us to understand one of our core val-
ues, namely, the value of freedom. This is so because
constraints on people’s exercise of their powers of choice are
in fact constraints on their freedom. It thus follows that re-
spect for a person’s dignity requires one to respect that per-
son’s freedom. There is yet more that respect for dignity
requires. For in addition to underlying the core value of hu-
man freedom, I now will argue that the ideal of respect for hu-
man dignity also underlies the core value of human equality.
The key question to ask about the value of equality is: In
what sense are people equal? The answer to this question is
hardly obvious; after all, some people are stronger than others,
some are smarter, virtuous, better looking, more artistic, more
personable, and so on. The ideal of respect for human dignity
has an answer to this question, however. Recall the mental pre-
requisites of responsible choice mentioned earlier: our self-
consciousness, our capacity to imagine future consequences, to
articulate our values, to deliberate as to which course of action is
best, to act on our choices, and so on. To be sure, people differ in
each of these mental abilities; some are better than others at
imagining future consequences, or at guiding their choices by
their deliberations, etc. Yet once a person’s degree of these abili-
ties passes a certain threshold, we rightly hold him or her to be
capable of responsible choice. That is to say, all those who pass a
basic line of competency share the status of “responsible being,”
even if some are more competent than others. (Compare the
class of responsible beings with the class of pregnant women—
all of the women in this class are pregnant, even though some
are more advanced in their pregnancy than others.)8 Impor-
tantly, this is not to say all members of this class do in fact make
choices we judge to be wise, prudent, moral, etc.; many do not.
Rather, it is to say that members of this class make choices—
good or bad—for which we can properly hold them responsible.
On this account of equality, one respects another person
as an equal by recognizing in one’s actions the other person’s
86 / Chapter 4

status as a being capable of responsible choice. Failing to do

this is another failure of respect for human dignity, alongside
impairing a person’s capacity for responsible choice, or con-
straining its exercise. One fails to recognize other people’s sta-
tus as beings capable of responsible choice when one treats
them as something other than such a being. Consider in this
regard the famous formula of Kant, according to which you
should “always treat humanity, whether in your own person
or in the person of any other, never simply as a means, but al-
ways at the same time as an end.”9 Suppose for instance (to
take one of Kant’s own examples) that I borrow some money
from another person and make a lying promise to repay it,
with no intention ever to do so. In this case I am surely not
treating the other as a person in her own right, with her own
life to lead and own choices to make; rather I am treating her
as nothing more than, say, an ATM machine with buttons I
may push to obtain free money.
So treating others as mere instruments for achieving your
personal ends is one way of failing to recognize others as re-
sponsible beings, and thus one way of failing to treat them as
equals. Moreover, treating others as mere instruments is not
the only way of failing to treat them as equals (that is, of fail-
ing to treat them as “ends,” to use the Kantian lingo). You
might for instance treat them as pieces of refuse to be de-
stroyed or cleared away (as in cases of “ethnic cleansing”). Or
you might treat them paternalistically, as incompetent at mak-
ing their own choices—say, by censoring what they read, or by
assigning them their occupation, choosing their spouses for
them, etc. Or you might treat them as nothing at all, as nonen-
tities. You would do this, for instance, if you look upon other
people who are suffering impairment of their capacity for re-
sponsible choice, or a constraint on its exercise, and you treat
them with indifference despite being able to help them with
only a reasonable level of effort on your part. Finally, you
might in light of a stereotype view other people as beings
whose choices are fated to take a certain form; in this case you
 The Politics of Dignity / 87

are treating others as mere cardboard cutouts of people, not

full-blooded ones. In short (and at the cost of some linguistic
infelicity), we can say that respecting people’s capacity for re-
sponsible choice requires that we observe a very strong pre-
sumption against treating people in instrumentalizing,
refusizing, infantilizing, nonentitizing, or stereotyping
ways—that is, against treating them as inferiors, rather than
as equals who are capable of responsible choice.
To fail to observe this presumption, we may say, is to insult
another person’s dignity, and hence to fail to respect it. Thus we
may set insulting other people’s dignity alongside the other fail-
ures of respect previously examined: diminishing other people’s
dignity by impairing their capacity for responsible choice, and
obscuring other people’s dignity by constraining their exercise
of this capacity. Much of the rest of this chapter will be an ex-
ploration of the political implications of the strong presumption
against these ways of failing to respect human dignity.

3. The Liberal Principle of Legitimacy

So far we have focused on the dignity of the human individual,

which has led to an understanding of the freedom and equal-
ity of individuals. But of course, human individuals live in so-
cieties. This is surely part of our nature; as Aristotle famously
said, humans are social animals.10 In fact, our capacity for re-
sponsible choice itself requires nurturing social relations for
its development. Young children who through some misfor-
tune are forced to grow up on their own in the woods—“feral
children,” as they are called—are hardly recognizable as hu-
man, so irreparably diminished are their linguistic and other
cognitive skills.11 It is time, then, that we considered what im-
plications the ideal of respect for dignity has for the way we
ought to organize our societies.
The first question to ask is what society is. I propose we un-
derstand society as a system of cooperation by which members
88 / Chapter 4

gain in their ability to complete the fundamental tasks of liv-

ing. Certainly, compared to a solitary existence, life in society
better enables one to feed, clothe, shelter, and protect oneself
from nature’s threats. The enablement that social cooperation
makes possible need not be limited to enabling us in meeting
our basic needs, however. Whatever goals one has beyond
meeting one’s basic needs, the resources (both physical and
human) that cooperation generates will better enable one to
meet those goals, compared with a Robinson Crusoe–style ex-
istence (and even Crusoe, remember, was raised in human so-
ciety). These same resources will also better enable one to
fulfill whatever basic moral duties one has (these too ought to
be reckoned tasks of living).
This system of social cooperation should be one that re-
spects the dignity of its members. This is easier said than
done, however, for a fundamental dilemma arises in this re-
gard. For societies of more than a handful of people, after all,
cooperation requires authoritative rules; the history of human
experience is testament to this fact. Moreover, in a world of
less than perfect beings, these rules will need to be enforced
via some sanctions, especially when there is potential for seri-
ous conflicts of interest. In general, sanctions against uncoop-
erative behavior can take many forms, as a glance at various
forms of cooperation shows. Examples include the with-
drawal of good will (if you refuse to buy a round of beers
when your turn comes, you will not get invited out again),
penalties assigned by referees in sports,12 the withdrawal of
privileges (disbarring lawyers, removing medical licenses,
etc.), and the fines and imprisonment meted out by criminal
law. These last sorts of sanctions most acutely raise the
dilemma I have in mind. Imprisonment and heavy fines, after
all, constrain people’s exercise of their capacity for responsible
choice. Moreover, insofar as punishment of this sort makes
some people (the punished) subordinate to others (the pun-
ishers), it is in danger of failing to recognize other people as
beings who are competent to make their own choices.
 The Politics of Dignity / 89

The fundamental dilemma of human dignity, then, is this:

On the one hand, as the case of feral children shows, the human
capacity for responsible choice requires some sort of society for
its development; yet on the other hand, society requires au-
thoritative rules, the enforcement of which both constrains
people’s exercise of their capacity for responsible choice (thus
threatening their freedom) and risks failing to recognize people
as beings capable of responsible choice (thus threatening their
equality). Put in terms of dignity, we may express the funda-
mental dilemma as this: Human dignity is diminished outside
of society, and yet in society it risks being obscured or insulted.
How, then, can we reconcile the binding rules necessary
for life in society with respect for human dignity—in particu-
lar, with respect for other people as free and equal beings?
This puzzle is especially acute for political society, since in the
typical case (immigration being the exception) one is simply
born into the society in which one lives. Unlike the case, say,
in which a group of friends all agree to play basketball, there
does not appear to be any voluntary act in which all citizens
consent to the rules of their society.13 I believe the best re-
sponse to the fundamental dilemma of human dignity is to
follow the twentieth-century philosopher John Rawls and rec-
ommend that society be ordered along the lines of what he
calls “the liberal principle of legitimacy.” According to this
principle, political decisions are legitimate insofar as they are
conducted in accordance with a constitution the essentials of
which it is reasonable to expect all citizens to accept as free
and equal citizens.14 This means the basic rules of society
should be chosen so as to create a reasonable balance among
the various inevitable threats to human dignity, chief among
which are the threats of constraint and insult.
Begin first with the threat of constraints. Here it is impor-
tant to realize that because not all choices a person might make
are equally significant—some choices are much more fateful
than others—it follows that not all constraints on choice are
equally significant. In particular, it is not reasonable to expect
90 / Chapter 4

citizens to accept a distribution of constraints that significantly

constrains the fateful choices of their lives—the choice of occu-
pation, of spouse, of friends; the choice whether to have chil-
dren; and so on. By contrast, lesser constraints, such as
reasonable taxes, red lights at intersections, anti-pollution laws,
and so on, will leave citizens largely free to choose the shape of
lives. This suggests that in asking what set of basic social rules
it is reasonable to expect citizens to accept, one key criterion is
whether proposed sets of rules are likely to leave citizens with
a tolerable amount of choice over the shape of their lives.
This is key, for absent such choice a person’s mode of life
becomes that of a mere creature of circumstance; his or her
dignity is obscured, and hence his or her life is degraded. The
choice over the shape of one’s life, moreover, must be a real
one, in the sense explored above when discussing the case of
mugging. It will not do, for instance, for a totalitarian state to
say, “Well, our citizens do in fact have a choice of their lives’
shape—a choice between the gulag and conformity.” Like-
wise, consider an impoverished worker who lives on the edge
of disaster and must constantly face “choices” in which all but
a handful of options have intolerable consequences: do this or
face hunger, do this or face illness, do this or face eviction, do
this or see your children suffer, and so on. Since her existence
is merely one of lurching from crisis to crisis, she has no sig-
nificant choice over the shape of her life. Although her exer-
cise of her capacity for responsible choice is not as constrained
as that of gulag prisoner’s, it is significantly constrained all
the same. We might say that while gulag prisoners and im-
poverished workers are of course alive, they are not living
much of a life.15 To actively live a life requires at least a toler-
able amount of choice among sets of tolerable options. Hence
we can say this about the threat to dignity that comes with the
constraints that life in society imposes on a person’s freedom:
In choosing basic rules that it is reasonable to expect all citi-
zens to accept, one key criterion is whether they leave citizens
with genuine choices over the shape of their lives.
 The Politics of Dignity / 91

What, though, about the second threat to dignity identified

above, the threat to citizens’ equality? This was the risk inher-
ent in any distinction between the rulers and the ruled, namely,
the risk of failing to recognize citizens’ status as beings capable
of leading their own lives via their capacity for responsible
choice. The proper response to this threat surely lies in some
form of democracy, which gives citizens an equal share of vot-
ing power, thereby recognizing in a significant way their equal
status as beings capable of responsible choice. By contrast, to
live under a dictatorship (even a benevolent one) and be given
no say as to who rules and what laws they create is not to live
as a competent adult who can order his or her own affairs.
Rather, it is to live as a schoolboy or schoolgirl, in thrall to
those in authority, and with little or no recourse to challenge
their dictates. The line of argument from respect for dignity to
democratic government is thus straight and short.
Putting this element of democracy together with the goal
of leaving citizens free to shape their lives gives us a response
to the fundamental dilemma of human dignity; we can con-
clude that society’s basic social rules should establish a liberal
democracy—that is, a democratic form of government limited
by a constitutionally guaranteed set of individual rights that en-
sure one has significant freedom to choose the shape of one’s
life. The dignity-based political philosophy that recommends
this form of government I will refer to as democratic liberalism.
As with any political philosophy, however, much depends on
the details. What precise form should democracy take, and pre-
cisely which rights should be guaranteed? I will consider each
of these questions in turn, beginning with individual rights.

4. The Dignity-Based Conception of Rights

We can group individual rights into civil rights, personal rights,

economic rights, and political rights. Basic civil rights include
rights to freedom of expression, freedom of association, and
92 / Chapter 4

freedom of conscience.16 Basic personal rights include a right to

bodily integrity (which encompasses more specific rights
against slavery and against cruel punishment, as well as rights
against murder and assault) and a right to privacy. The right to
privacy is a complex one that encompasses more specific rights
against unreasonable searches and seizures, as well as rights to
choose the form of one’s intimate relations, for example. These
latter rights include a strong presumption against interfering
with a person’s choices regarding friends, sexual relations, and
children (whether to have children at all, and if so, how to raise
them). Basic economic rights include the right to hold personal
property and make contracts on equal terms with others (a
right formerly denied to wives, who in the past could only hold
property in their husband’s name) and rights against discrimi-
nation (as a job-seeker, employee, or consumer). Basic political
rights include the equal right to vote and run for office; rights
against discrimination in public services (education, govern-
ment benefits, etc.); and such due process rights as the right to
equality before the law and the right to contest any charges
against one in a fair and timely trial.
This is a long list of rights. Moreover, each right on the list
has a complex structure; books discussing them fill library
shelves, and in the space I have here I cannot hope to argue for
any of them in detail. What I hope instead to do is indicate in
outline form how the understanding of human dignity—and
in particular, the understanding of human freedom and equal-
ity that follows from this, which I have called democratic
liberalism—supports these rights. Take freedom of expression
as a case in point. Some of the argument for this is admittedly
of a purely instrumental character. For example, it may be
dangerous to entrust a government with even a limited power
to censor speech, for once having this taste of power, those in
charge may tyrannically seek ever more. Moreover, freedom
of expression is needed to promote the vigorous public debate
on which democracy relies. These are powerful arguments,
but I do not think they exhaust the case for freedom of ex-
 The Politics of Dignity / 93

pression. The latter argument would offer little protection to

nonpolitical forms of expression. The former argument risks
overestimating, in paranoid fashion, the prospects of govern-
mental tyranny. In addition, I fail to see how a very general
worry about tyranny can generate a specific account of several
necessary limits to freedom of expression (such as restrictions
on libel, which I will discuss in a moment).
Fortunately, not all of the argument for the right to free-
dom of expression is of an instrumental nature. This right
gains obvious intrinsic support from considerations of dig-
nity, and its emphasis on the importance of an ability to give
shape to one’s life. Censors, after all, may deprive a person of
valuable information she needs in shaping her life. In cases of
significant state control of information, it is the state that sig-
nificantly shapes citizens’ lives, rather than citizens shaping
their own lives. Moreover, since a person’s conception of her
fundamental moral duties is among the most important of
contours in the shape of her life, it follows that insofar as these
duties require her to speak or express herself in other ways,
freedom of expression is a necessary element of her ability to
shape her life. (Think in this regard of a religious person who
believes that God requires her to be a “witness” to religious
truth and evangelize on its behalf, or think of a person who
believes that he has a fundamental moral duty to speak out
against serious injustices of which he is aware.) For such peo-
ple, limits on expression will be experienced as limits on their
ability to shape their lives in fundamental ways.17
Considerations of human equality also support freedom
of expression. In general, the ideal of respecting humans as
equals translates into the political sphere as an ideal of equal
citizenship; laws and social practices should not distinguish
between first- and second-class members of society. Instead
the mass of citizens should be recognized as competent adults
who are themselves capable of making responsible choices.
That is to say, authorities should presume each adult citizen to
be capable of responsible choice. This presumption may not
94 / Chapter 4

be true in every case; some adult citizens indeed may be so

imprudent that they fail to qualify as competent at leading
their own lives. Government laws are necessarily general in
scope, however, rather than tailored to each individual citizen,
and in general adult citizens are competent to lead their own
lives.18 A society in which government censors decide what
the general public can and cannot read or hear, however, is not
a society in which the mass of citizens are recognized as com-
petent adults. Instead the censors view the mass of citizens as
immature beings who must for their own good be protected
from sources of expression that might corrupt them or other-
wise harm them. In short, a censoring society is one that in-
fantilizes most of its members; by failing to recognize its
members’ capacity for responsible choice, such a society
thereby insults its members’ dignity.19
The right to freedom of expression does, though, have lim-
its. For instance, in the United States the Supreme Court has
rightly judged that consistent with the right to freedom of ex-
pression the state may criminalize speech that is both intended
to and likely to create “imminent lawless action,” such as in-
citement to riot.20 A proper understanding of the right to free-
dom of expression would recognize other exceptions as well.
Examples of these include: reasonable constraints on defama-
tion (libel, in written form; slander, in verbal form); restrictions
on material that may harm minors (e.g., daytime TV/radio
broadcasts and billboards of a sexually or violently graphic na-
ture); restrictions on speech that creates a hostile work envi-
ronment (e.g., sexual harassment); laws against passing on
classified information or printing words in violation of a copy-
right; and laws against false or misleading advertising.
In each of these cases, the nature of the restrictions is to be
determined by asking what restrictions it would be reasonable
to expect free and equal members of society to accept. Take li-
bel law for instance. Leaving this as a private tort (i.e., the sub-
ject of a private lawsuit) rather than a public criminal offense
takes the government out of the censorship business, thereby
 The Politics of Dignity / 95

avoiding the equality-based worries of infantilizing treat-

ment. As for the freedom-based worries regarding restrictions
on expression, here a reasonable balance must be struck be-
tween various burdens on people’s ability to control the shape
of their lives, and burdens that fall in different places with dif-
ferent sorts of libel laws. If the harm of libel is not legally rec-
ognized at all, for instance, people will lose important control
over their reputations, for these will be highly vulnerable to
the spread of false and malicious rumors. This is a real harm,
inasmuch as some control of one’s reputation is crucial for
control of one’s life more generally. On the other hand, too se-
vere a penalty for libel and too loose a definition of it will sig-
nificantly impede the flow of important information, as the
fear of a libel suit will lead some people with important infor-
mation to keep their mouths shut. As remarked above, people
need a free flow of information in order to plan their lives ef-
fectively, so this is a significant burden. Inasmuch as there are
burdens at stake with either the presence or absence of libel
law, a reasonable compromise clearly is needed. The current
U.S. understanding is a plausible compromise along these
lines. According to this understanding, a party who takes of-
fense at a published claim and sues for libel must prove that
the writer knew the published claim was false or otherwise
acted with a reckless disregard for the truth.21 This under-
standing of libel offers potential victims protection against the
most serious threats to their reputations at the hands of un-
scrupulous malefactors while at the same time offering com-
petent journalists reasonable assurance against a lawsuit.
This discussion of the right to freedom of expression indi-
cates the manner in which other individual rights are justified.
The decisions protected by the right to privacy, for instance, are
some of life’s most fateful ones, and ones that typically lie at the
heart of a person’s self-understanding—hence a fundamental
concern with people’s ability to give shape to their lives leads
to a fundamental concern with protecting privacy. The right
against economic discrimination protects one against artificial
96 / Chapter 4

obstacles that compromise one’s ability to choose an occupation

(a fateful decision) as well as earn the resources one in general
needs to shape a life. Additionally, economic discrimination can
create a castelike distinction between first- and second-class
members of society; thus it is obviously objectionable on the
grounds of equality as well (I will have more to say about this
shortly). And so on for the other rights.
Having briefly discussed liberal rights, I want to turn now
to the other half of democratic liberalism and discuss what sort
of democracy the ideal of respect for human dignity requires.

5. Improving Democracy

As with individual rights, the issues related to the structure of

democracy are complex ones, and my remarks will have to be
suggestive. One important question concerns whether to have
a direct democracy (in which citizens themselves propose and
vote on laws) or a representative democracy (in which elected of-
fices perform these functions). To a large extent this question is
settled by pragmatic considerations (direct democracies are bet-
ter suited to small city-states than to today’s large nation-
states), but a dignity-based case is not wholly silent here. I do
not believe that the demands of dignity require direct democ-
racy, for to say that citizens are competent beings capable of re-
sponsible choice is not to say they are all competent to judge the
various issues requiring political attention, from taxes to de-
fense to education to the environment and so on. A representa-
tive democracy instead, and more accurately, presumes citizens
are first and foremost competent to choose leaders who are
themselves competent at judging these issues. This is not to say
that the ideal of direct democracy has no relevance, however.
Since in fact many private citizens do have competent knowl-
edge of a variety of issues, especially those that directly impli-
cate their interests, a representative democracy should also
create significant space for citizen input into its deliberative
practices (via open hearings and other public forums, say).22
 The Politics of Dignity / 97

In addition to the choice between direct and representa-

tive democracy, other important choices concern the structure
of political elections and campaigns. Regarding elections, one
important choice is that between “winner-take-all” electoral
systems and systems of “proportional representation.” In a
winner-take-all system of voting, such as exists in the United
States, the candidate with the highest number of votes is
elected, and no one else. The major disadvantage of this sys-
tem is that it easily leads to a political scene in which two par-
ties dominate, making it extremely hard for smaller parties to
arise and win office. (Think, for instance, of how hard it is to
get elected in the United States if one is not a member of the
Republican or Democratic parties.) This is so because many
voters will see a third-party vote as a wasted one, given the
dim prospects of electoral success.
By contrast, most European democracies have an electoral
system of “proportional representation,” which allows a greater
variety of parties to win legislative office. Although such sys-
tems can be structured in different ways,23 one example of such
a structure will indicate the general idea. A legislative district in
this structure is not a small district with one representative, as in
the current U.S. system for the House of Representatives, but
rather a larger district with (say) five representatives. Each
party then fields up to five candidates for the district. Corre-
spondingly, each voter has five votes to spread among the can-
didates as he or she pleases (including the option of multiple
votes on a particularly favored candidate). Once the votes are
counted the top five vote-getters receive legislative seats. Such
a system, unlike our current one, gives small parties a realistic
chance of winning a seat, for any candidate receiving over 20
percent of the vote is guaranteed election, and in races with
many participants a candidate can often win with less than this.
This is likely to enrich public debate by including a greater di-
versity of viewpoints, which in turn is likely to improve the
quality of debate and thereby improve the quality of laws and
public policies. A second benefit, and one that is even more sig-
nificant from the point of view of democratic liberalism, is that
98 / Chapter 4

proportional representation is more truly representative, inas-

much as the views of legislators will more closely mirror the ac-
tual spectrum of views that prevail among citizens. This
reduces the gap between the ruling group and the ruled, and
thereby better respects the dignity of citizens.
Beyond the choice of electoral systems, another important
choice in the design of democracy is the choice of campaign
systems. An important question here is what role money ought
to play. In the United States, the amount of money involved in
politics is staggering. According to data from the Federal Elec-
tions Commission, for instance, the average cost of all cam-
paigns for the U.S. House of Representatives in 2002 was nearly
$468,000. More particularly, the average cost of a winning
House campaign was $898,000; the average cost of defeating an
incumbent was $1.6 million.24 In the 2000 House races, 94 per-
cent of the candidates who spent the most money won.25 Run-
ning for the U.S. Senate, moreover, is even more costly. For
Senate races in 2002, the average cost of all campaigns was $2.2
million, the average cost of a winning campaign was $4.8 mil-
lion, and the average cost of defeating an incumbent was $6.8
million.26 In the 2000 Senate races, 85 percent of the candidates
who spent the most money were successful at the polls.27 In the
2004 presidential election George W. Bush spent $367 million,
compared to John Kerry’s $323 million.28
The obvious threat here is that our system is becoming (has
become?) merely a democracy in name and truly a plutocracy in
practice (plutocracy being rule by the wealthy). The system is
broken, and in general politicians are not nearly as responsive to
the needs of everyday people as they should be. As things stand
now, the huge amounts of money involved in politics give
wealthy citizens (and large corporations) wildly disproportion-
ate political influence, in terms of access both to politicians and
to political office itself.29 This is obviously incompatible with any
reasonable conception of equal citizenship, for the point of an
equal right to vote is subverted when dollars rather than votes
are the driving force in the formation of law and policy.
 The Politics of Dignity / 99

What can we do to fix this? Something is needed to give

nonwealthy candidates a fair chance of obtaining office, and to
free them once elected from the need to indebt themselves to
wealthy campaign donors. Fortunately, one such remedy is al-
ready in place in Maine, Arizona, Vermont, North Carolina,
Massachusetts, and New Mexico—namely, the “Clean Money,
Clean Elections” system of public campaign finance. This sys-
tem is a voluntary one—that is, it is a candidate’s choice
whether or not to participate in the Clean Elections system.
Candidates who wish to participate must qualify by collecting
a set number of five-dollar donations from voters in their dis-
trict. A candidate running for the Arizona House, for example,
must collect two hundred of these five-dollar donations. Once
qualified, candidates must not spend any private money, in-
cluding their own; instead each receives a fixed amount of
campaign funding based upon previous campaign averages in
their state. Sticking with the example just used, an Arizona
House candidate receives ten thousand dollars for the primary
and fifteen thousand for the general election. Additionally, if a
Clean Elections candidate is outspent by a privately funded
opponent, then funds matching the private candidate’s expen-
ditures are released to the Clean Elections candidate. Indepen-
dent expenditures can also trigger matching funds (e.g., if, say,
MoveOn.org funds advertisements for liberal candidates or
the NRA funds advertisements for conservative candidates).
These matching funds are not limitless—in Arizona, for in-
stance, matching funds are capped at triple the original grant
amount—but in practice they have worked well to give pub-
licly funded candidates competitive shots at gaining office.30
While this system has only been in place since 2000 in
Maine and Arizona (and not even that long in other states), it
is already a tremendous success. In Arizona, for instance, there
was a 58 percent increase in the number of people who ran in
the 2000 election cycle compared with the 1996 cycle. Clean
Elections candidates now hold 41 percent of all statewide of-
fices.31 Voter turnout in 2002 was 22 percent higher than in
100 / Chapter 4

1998.32 The number of minority candidates tripled between

1998 and 2002.33 Also, while of course the system requires tax-
payer money, the amount required is affordable—$12.9 million
in Arizona in the 2002 elections, for example34—and it is
money well spent, inasmuch as it preserves the health of our
democracy. Like health care for individuals, we should not in
any case expect health care for democracy to be cost-free.

6. Opportunity for Free and Equal Workers

So far we have discussed the forms of individual rights and

democratic governance that it would be reasonable to expect
members of society to accept as free and equal people. These
subjects were worth discussing because of the far-reaching
implications they have for the freedom and equality of soci-
ety’s members. Another subject that needs discussing is the
structure of the economy, for this too has far-reaching impli-
cations for the freedom and equality of society’s members. A
full discussion of this subject would evaluate various capital-
ist and socialist ways of structuring the economy. Limited
space precludes a full discussion, however; my strategy in-
stead is to examine the system that readers are presumably
most familiar with—namely, capitalism of the sort that pre-
vails in the United States—and ask whether this system is
compatible with respect for human dignity, and if not,
whether it can be made so.
The first point to make is a negative one. The account of
human freedom central to democratic liberalism focuses on
people’s ability to give shape to their own lives. This account
will surely lead to an endorsement of some form of property
rights, since control of the shape of one’s life requires the con-
trol of some significant amount of personal resources (one’s
residence, means of transport, clothing, money for raising a
family, money for vacations and hobbies, etc.). This account,
though, does not lead to an endorsement of absolute property
 The Politics of Dignity / 101

rights, according to which nearly all forms of taxation and all

limits on freedom of contract count as illegitimate restrictions
on freedom. Absolute property rights are not necessary in or-
der for people to be able to shape their lives. Property and
contract rights are not currently absolute in the United States,
for instance; we must pay taxes and heed business regula-
tions. Yet it would be preposterous to suppose on this account
that no one in the United States has adequate ability to give
shape to his or her life. Millions of people have this ability, and
have it in spades.
A concern with human freedom, then, leads to a focus on
whether members of society have adequate opportunity to
shape their lives rather than on whether absolute property
rights are granted to members. We will shortly ask whether all
Americans genuinely have adequate opportunity in this re-
gard. But first I want to note that on the subject of opportunity,
a concern to respect human equality in addition to human free-
dom will lead to a concern with more than just an adequate
opportunity to shape one’s life. In many contexts, after all, we
often speak of the importance of equal opportunity. A dignity-
based approach such as democratic liberalism implies that we
are right to speak of this as important.
What exactly, though, do we mean when in political con-
texts we speak of the importance of “equal opportunity”? In
fact, there is more than one way to define the ideal of equal
opportunity; I will look at two such definitions. The first and
least demanding definition of equal opportunity requires only
that jobs be granted or denied to people on the basis of their
qualifications, regardless of how they came by these qualifica-
tions. This familiar conception of equal opportunity—which
we can refer to as formal equality of opportunity—rules out dis-
crimination on the basis of race, ethnicity, sex, sexual orienta-
tion, religion, and so on. The conflict between this sort of
discrimination and the ideal of equal citizenship is obvious.
Martin Luther King Jr. perhaps described it most movingly in
his famous “I Have a Dream” speech delivered at the Lincoln
102 / Chapter 4

Memorial on August 28, 1963, exactly one hundred years after

President Abraham Lincoln’s Emancipation Proclamation:

One hundred years later, the life of the Negro is still sadly
crippled by the manacles of segregation and the chains of
discrimination. One hundred years later, the Negro lives on
a lonely island of poverty in the midst of a vast ocean of ma-
terial prosperity. One hundred years later, the Negro still
languishes in the corners of American society and finds
himself an exile in his own land.35

Discrimination, then, can reduce a person from an equal

member of society into an internal exile (“an exile in his own
land”). At best, discrimination treats another being as a nonen-
tity whom it is fitting to confine to a “lonely island”—that is, to
marginalize from society’s mainstream. Worse yet, it can treat
another being as a mere instrument, someone who exists to do
the bottom-of-the-barrel, unwanted jobs in society, so that the
people who really matter do not have to do them. Worst of all,
it can signal that another being is to be regarded wholly with
contempt and treated as a piece of refuse. As remarked earlier,
such nonentitizing, instrumentalizing, and refusizing treatment
is utterly inconsistent with respecting another being’s dignity.36
The second definition of equality of opportunity goes be-
yond the first; following the philosopher John Rawls, we can
refer to this conception as fair equality of opportunity.37 In addi-
tion to requiring (like formal equality of opportunity) that job
seekers be hired on the basis of their qualifications, fair equal-
ity of opportunity requires that job seekers have equal oppor-
tunity to obtain qualifications in the first place. In the
contemporary United State this requirement is surely not met.
Reports about the poor quality of inner-city schools compared
with wealthy suburban schools are depressingly familiar, for
example. Fixing this inequity will require equalizing the fund-
ing between urban and suburban schools. Unfortunately, one
consequence of any such reform is that suburban dwellers
will have to pay more in taxes than they currently do to keep
their own schools at the same level of quality, since after such
 The Politics of Dignity / 103

a reform they will share the costs along with inner-city resi-
dents of raising the latter’s schools to suburban levels. This is
unpleasant, of course, but it just reflects the fact that basic fair-
ness, like other good things in life, is not free of charge. If we
want a fair society in which all citizens are treated as equals,
we need a level training field as much as a level playing
field.38 Thus the ideal of respect for dignity identifies fair
equality of opportunity, rather than merely formal equality of
opportunity, as the superior conception of equal opportunity.
We should not, however, deceive ourselves into thinking
that improved education can by itself genuinely equalize the
opportunity to acquire job qualifications. Differences in fam-
ily cultures will remain, including the extent to which parents
emphasize education; the amount they read to their children;
the amount they are willing and able to help with homework;
whether they can provide quiet areas for study; whether they
teach their children good grammar and social skills; whether
they are willing and able to take their children to museums,
libraries, and other stimulating places; and so on.39 These acts
should not be required by law; among other reasons, to do so
would violate the right to privacy mentioned above in section
4. Moreover, while the phenomena so far listed concern just
education, family differences matter at the level of job compe-
tition too, of course. Family connections can help one get a job,
and family wealth can pay for an elite college education, fund
an unpaid summer internship to gain job skills, and provide
much needed start-up funds for opening a business (or collat-
eral for a business loan). In addition, individuals from rich
families can take steep risks as young would-be entrepre-
neurs, secure in the confidence that they will not have to live
in poverty should they fail.40 And so on. While the economic
advantages owing to family wealth can be blunted by public
policy (say, with a more equitable distribution of wealth),
those owing to family culture and connections cannot.
Economic opportunity, in short, will never truly be equal
so long as the private family exists in some form, as it should.
While we should strive to make opportunities more equal, we
104 / Chapter 4

must at the same time recognize sensible limits to this ideal.

But just as importantly, we should also avoid an opposite
failing—namely, that of looking at differences in pay between
people on different rungs of the economic ladder and wrongly
reasoning that inasmuch as genuinely equal opportunity re-
ally does exist, each person is getting exactly the outcome he
or she truly deserves. Judgments of desert require more nu-
ance than this. The next section examines this subject.

7. Desert and Market Outcomes

Suppose we really did live in a society that was free of racial and
other types of discrimination and that provided all its members
with high-quality schools. Apart from the unequal opportuni-
ties stemming from differences in family wealth and family cul-
ture, could we say that in such a society all people get exactly the
economic rewards they deserve to get, so that it would be
morally objectionable to disturb whatever income distribution
was produced by the workings of a capitalist marketplace (as
happens, say, when taxes on the well-off help to fund health
care, housing, and other forms of assistance for the poor)?
No. Far too many factors go toward determining your eco-
nomic reward for there to be any simple correlation between
this and your just deserts. For starters, much of your reward
depends on luck. This luck takes several forms: simply being
in the right place at the right time (say, a chance noticing of
some job opening, or a chance meeting that leads to a useful
business contact, etc.); or being born to the right family; or be-
ing born with genes that make one “gifted” in some way that
the market values. Much of your economic compensation also
depends on large-scale phenomena that are in no single indi-
vidual’s control: how scarce your skills are, what patterns of
consumer taste prevail, what level of unemployment prevails
in your society, where in the business cycle (the cycle between
growth and recession) your society is, how competent the po-
 The Politics of Dignity / 105

litical and economic leaders of your society are, what collective

bargaining agreements already exist, what natural resources
are to be found in your society, what your society’s level of
technology is, and so on—for none of which you can individ-
ually take any credit. To better see this role that luck plays, con-
sider that the average American today in 2005 commands
vastly more resources than almost all Americans who lived in
1805, and vastly more than almost all Cambodians, say, in
2005. But is a typical American individual of today really per-
sonally more deserving of material comfort than nearly all
Americans of 1805 and nearly all Cambodians of today? Surely
not. This is not to say that no one deserves anything of what
they earn. Rather, it is to say that applying a notion of desert to
the economic realm is a tricky business and that we should
thus avoid hasty conclusions to the effect that any and every
interference with market outcomes involves taking away from
people resources they are entitled to on grounds of desert.
A more reflective stance on economic desert would begin
by asking what its basis is. Here we can usefully distinguish
between objective criteria and subjective criteria. The claim
that one deserves reward in proportion to one’s contribution to
society is an example of an objective criterion, whereas an ex-
ample of a subjective criterion comes with the claim that one’s
deserts depend on the level of one’s efforts—one’s efforts, pre-
sumably, to be a productive member of society. This can use-
fully be thought of as a subjective version of the objective
criterion of social contribution, since one’s level of effort re-
flects the strength of one’s desire to contribute to the economy.
In my view the choice between these objective and subjec-
tive criteria is not an easy one; in fact, I believe our common-
sense moral beliefs attach importance to both criteria, even
though they can conflict in many situations. Instead of trying
to resolve this tension, I want to show that neither view of
desert leads to a moral prohibition on any sort of interference
with market outcomes. Start with an effort-based theory of
desert. Clearly, one’s financial rewards in an economic market
106 / Chapter 4

do not depend merely on one’s effort. I may try very hard to be

a good mechanic, for instance, but if I do not succeed in my at-
tempts to fix cars, I will eventually find myself with no cus-
tomers; my (low) financial earnings will thus not match my
(considerable) level of effort. On the other hand, if I am a
wealthy investor (I own thousands of shares of Microsoft, say),
I can earn a comfortable living just from the returns on my in-
vestments, with no effort on my part at all once the investment
is made; my (high) financial earnings will thus not match my
(nonexistent) level of effort. (I may spend some effort in moni-
toring my investments, of course—but if I am wealthy enough
I can pay someone to do even this task for me.) Hence on an
effort-based theory of desert it is simply not plausible to claim
that in a perfectly free capitalist market each individual earns
exactly what he or she deserves to earn; hence one cannot, on
an effort-based theory of desert, oppose all interferences with
market outcomes as either taking away from people money
they deserve or giving to people money they do not deserve.
The theory of desert based on social contribution rather
than effort is a more plausible foundation from which to argue
that justice requires us to leave market outcomes alone. This ar-
gument runs as follows: The better one is able to produce goods
that consumers desire, the more money one will typically earn;
the producing of goods that consumers desire is a type of social
contribution; hence, one’s financial rewards in the free market
match one’s social contributions. This argument, however, is far
from perfect, for the correlation between social contribution
and financial reward is approximate at best. For example, porn
king Larry Flynt, the founder of Hustler magazine, undoubt-
edly earns more in a year than, say, two hundred nurses com-
bined earn, but does he really contribute more to the common
good than two hundred nurses combined contribute, on any
plausible way of measuring this? I doubt it. This is but one of
many examples of a mismatch between reward and social con-
tribution. Does a pro wrestler really contribute, say, forty times
more than a superb daycare worker? What about a cigarette
company executive versus a farmer? And so on.
 The Politics of Dignity / 107

Let us, however, temporarily waive these difficulties for

the sake of argument. It is after all quite a challenge to know
how best to measure a person’s contribution to the common
good, if not by market returns, and I lack the space here to
confront this challenge. Even waiving the difficulties identi-
fied in the previous paragraph, however, we still do not yet
have a contribution-based argument requiring us to leave
market outcomes alone. For apart from self-employed indi-
viduals, the revenue from sales of a product or service accrue
firstly to a firm rather than to the individual. What follows
then from a contribution-based account of desert is that in a
perfectly competitive market, the group of people constituting a
firm collectively deserves the firm’s revenue. This leaves as
still to be addressed the question of how the group should di-
vide its revenue amongst themselves.
On a contribution-based theory of desert, this question is
answered by measuring each individual’s contribution to the
firm’s production. But how should this be measured? One pos-
sible strategy suggests itself, namely, that an individual’s con-
tribution to the firm should be measured by whatever price his
or her skills can command on an open labor market. However,
this view assumes too rosy a picture of the way in which wages
are determined. Consider for instance that your wages are in-
fluenced by the overall supply of people with your skills. If
people with your skills suddenly become scarce, you will
likely be able to demand a pay raise, even though your contri-
bution to the firm’s production remains what it always has
been. In this case an increase in pay does not correspond to an
increase in contribution. The flip side of this example is the
case of someone with fairly common skills. Due to a large
supply of these skills, such a person will command only a
low wage, regardless of how essential his or her skills are to
a firm’s production. One example of this (out of many pos-
sible examples) is the case of janitors. They typically have
low wages, despite the fact that janitors perform an essential
service—without janitors other employees would have to work
among piling-up trash and grime or do the job themselves and
108 / Chapter 4

have far less time for their other tasks.41 The same, moreover,
can be said of any essential task, from stocking shelves to op-
erating a cash register to loading trucks with freight.
A critic might try to defeat this point by saying that indi-
viduals could have avoided these lower-rung jobs had they
merely “applied themselves” by studying harder in school.
On this view, low wages are one’s just deserts—punishment,
of a sort—for past imprudence. This view, however, suffers
from a number of flaws. First, we should remember our ear-
lier observation that fair equality of opportunity to acquire
qualifications or find a job does not yet prevail in our society
and in fact never will, given differences in family culture and
connections that no institution can fix. Not everybody has a
fair go in life. Second, even if fair equality of opportunity did
prevail, it is hardly the case that imprudent decisions made as
a teenager truly make one deserving of lifelong low wages;
such a “punishment” does not fit the “crime.” Third, it may be
that some people through bad genetic luck (a low innate in-
telligence, say) are simply not capable of performing more
highly paid jobs. Finally, and most decisively, this view ig-
nores the fact that such jobs as cleaning floors and emptying
wastebaskets must be done by someone. If everyone were to
gain a college degree, then this only means that someone with
a college degree would end up cleaning floors, barring some
technological breakthrough or some unprecedented system of
sharing cleaning tasks among a wide pool of employees
(which would in any case boost the wages associated with
cleaning well above their current level). All of this reveals a
mismatch between wages of workers at the bottom end and
those workers’ actual contributions to production.
A similar mismatch exists at the top end as well. Consider
for instance the case of CEO pay compared to the pay of
workers on the shop floor. According to The Economist (a right-
of-center periodical), the top one hundred CEOs have an av-
erage annual compensation of $37.5 million each, over a
thousand times the pay of the average worker.42 This ratio
 The Politics of Dignity / 109

represents a tremendous increase in less than a generation;

thirty years ago, for example, the equivalent ratio was thirty-
nine to one, with the top one hundred CEOs receiving an av-
erage of $1.3 million a year in pay.43 In some individual cases,
moreover, the ratio is now far higher than a thousand to one;
for example, Ed Whitacre, the CEO of SBC Communications
(a telecommunications company), was paid $83 million in
2001.44 To put this into perspective, consider that a minimum-
wage worker, earning $5.15 an hour and working forty hours
a week with no vacations, would have to work 7,748 years to
earn what Whitacre earned in this single year.
It is hard to believe the dramatic increase in CEO pay in re-
cent years is entirely justified by a corresponding increase in
CEOs’ economic contributions. In fact, between 1990 and 2003
average CEO pay rose nearly two and a half times faster than
did corporate profits.45 Consider too that the pre-tax pay of
chief executives in the United States is three times that of chief
executives in similar-sized companies in Britain and four
times those in France and Germany.46 It is hard to believe that
American CEOs are genuinely three to four times more pro-
ductive than their European counterparts. A better explana-
tion lies in the clubby nature in which many CEOs’ pay is set.
As Princeton economist Paul Krugman explains,
The key reason executives are paid so much now is that they
appoint the members of the corporate board that determines
their compensation and control many of the perks that
board members count on. So it’s not the invisible hand of
the market that leads to those monumental executive in-
comes; it’s the invisible handshake in the boardroom.47

Since cronyism rather than productivity explains much of lav-

ish CEO pay, there is an obvious mismatch between it and
one’s desert (understood as a function of one’s contribution).
Beyond the issue of just CEO pay, we find a more general
phenomenon of those people at the top of the American eco-
nomic ladder reaping huge gains in comparison with the rest
110 / Chapter 4

of workers. Between 1973 and 2000, for example, the average

real income of the bottom 90 percent of American taxpayers
actually fell by 7 percent, while the income of the top 1 percent
of taxpayers rose by 148 percent.48 Even within the top 1 per-
cent bracket, gains were lopsided; the income of the top 0.1
percent rose by 343 percent, and the income of the top 0.01
percent rose 599 percent.49 Indeed, the gains in income have
been so strong at the high end that 94 percent of the growth in
total income since 1973 has gone to the top 1 percent of tax-
payers.50 Clearly, America’s increased prosperity in the last
thirty years has not been shared with average workers.
Like generations past, however, American workers over
the past thirty years have been doing their part to contribute
to the economy; they thus deserve to share in the economy’s
increased prosperity. The important moral ideal at the root of
this claim is one of reciprocity—those who contribute should
benefit in kind. This moral ideal in fact follows from the
deeper ideal of human equality, as I earlier interpreted this.
For when exchanges in the labor market do not take place on
a reciprocal footing, a morally objectionable asymmetry exists.
One party is being unfairly taken advantage of—exploited, in a
word—and thereby treated to some extent less like a person
and more like a mere tool for another’s purposes. Such in-
strumentalizing treatment, I earlier noted, is inconsistent with
the ideal of human equality in its most defensible form.
In short, neither an effort-based nor a contribution-based
account of desert supports the rather common view that the
free market gives people exactly what they deserve. On this
common but mistaken view, the free market is like a natural
lake into which various gardeners dip their buckets; just as the
amount of water withdrawn exactly matches the size of a per-
son’s bucket, on this view the free market’s reward exactly
matches the size of the contributions that a worker puts into it.
The statistics cited above suggest a rather different metaphor.
We should think of the economy not as a natural lake but in-
stead as a man-made irrigation system, which like other man-
 The Politics of Dignity / 111

made things is often in need of some adjustment: some work-

ers toil in their modest garden patches while the irrigation sys-
tem above drips meager amounts of water; meanwhile a leaky
valve elsewhere in the system means others receive lavish
amounts of water (and grow lavish gardens as a result).
Thinking of the economy as a man-made irrigation system
is apt for another reason—a modern economy is certainly a
man-made creation rather than a natural phenomenon. It is
the creation of a dense network of very complex property and
contract laws, together with a society’s accountancy practices,
prevailing styles of corporate governance, the actions of cen-
tral banks (e.g., the Federal Reserve), regulatory schemes, and
the functioning of police and the justice system, among other
things—all of which take different forms in different capitalist
countries. Given this complexity, it would be amazing indeed
if any modern market economy succeeded in rewarding its
participants exactly as they deserve.
Of course, even if man-made modern market economies of-
ten fail at the task of ensuring that people get what they deserve,
it does not straightaway follow that any nonmarket institution—
government, in particular—can succeed at this task. The cen-
trally planned economies of the Soviet Union and its satellites,
for example, were failures. But within a market framework, gov-
ernment may have a role to play in making the market more re-
ciprocal than it otherwise would be. To advert to our earlier
metaphor of an irrigation system, if some people are receiving
inadequate amounts of water whereas others are overflowing in
it then surely some plumbing is in order to remove the clogs and
leaks that create inadequate and excessive flows. Government
has a role to play here, most obviously in assisting those at the
bottom of society, which I will shortly discuss. But government
also has a less obvious role to play, in creating a framework
within which individuals can do their own “plumbing.”
What is needed for this are labor laws that create the space
for various forms of employee organizations, so that employ-
ees have some significant say in their work conditions and
112 / Chapter 4

pay. These organizations can take various forms, from tradi-

tional labor unions to “workers councils” to employee-owned
firms. The first of these forms of organization (a labor union)
is familiar to Americans; the remaining two forms are less fa-
miliar. Workers councils, common in Europe, do not collec-
tively bargain as unions do over wages, hours, or benefits, but
they do have significant legal rights to information and con-
sultation with management on labor policies. In employee-
owned firms, by contrast, workers have the same ultimate
power over a firm’s organization that shareholders in a tradi-
tional firm have; it is up to them how to use it.51
These forms of employee organization make it more likely
that employee contributions receive the recognition they are
due. But they are important for another reason as well, a rea-
son that stems from the fact that an employer has a significant
sort of power over employees, namely, the power to fire them.
How significant this power is varies, of course; firing a
teenager from a summer job is quite a different matter from
firing a middle-aged parent whose family lives from paycheck
to paycheck. In the large majority of cases, being fired is dis-
ruptive enough to one’s life to make the threat alone an effec-
tive tool of employee control. The loss of earnings can be
significant; finding a new job can sometimes be a lengthy
process and often can require uprooting one’s family and
moving to a new location. At the extreme—say, if jobs are
scarce and there is no safety net in the form of unemployment
insurance, health insurance, etc.—the threat of being fired is a
serious threat to one’s health or even to one’s life.
The power that employers have over employees is prob-
lematic from the point of view of respect for human dignity,
much as the power of political rulers over the ruled is also
problematic from this point of view. While in neither case is
this power over others wholly eliminable, at the very least it
should be made accountable, so that one does not live wholly
at the mercy of those with power. Measures that can make em-
ployers’ power accountable include health and safety laws
 The Politics of Dignity / 113

that protect employees, laws defining sexual harassment (and

other forms of harassment), and laws that facilitate the forms
of employee organization mentioned above (unions, workers
councils, employee-owned firms). In the latter case, laws can
protect employees who are attempting to unionize against be-
ing dismissed, and they can require a firm to recognize a
union once some significant threshold of employee support
has been crossed.52 Forms of encouragement, from tax breaks
to regulatory relief, could also be given to firms that establish
workers councils or are owned by their employees.
In short, rather than attempting to micromanage the econ-
omy in order to ensure each worker receives the treatment he
or she deserves, it is better for the government to act for the
most part indirectly, by facilitating forms of corporate gover-
nance in which employees have some significant say regard-
ing their treatment. That said, there remains a direct role for
government to play in aiding people at the bottom of the eco-
nomic ladder. It is to this topic we turn in the next section.

8. A Dignified Minimum

One obvious form of support for people at the bottom is mini-

mum-wage legislation. This acknowledges that full-time work-
ers (who presumably are doing jobs that need doing by
someone) deserve wages that enable them to live dignified
lives. Wages below a decent minimum wage treat workers more
like disposable instruments for others’ needs than people with
their own lives to live. The current level of $5.15—which totals
to a mere $10,300 a year for a full-time worker who works fifty
weeks a year—is surely too low. One obstacle in the way of rais-
ing the minimum wage is the widespread belief that this would
increase unemployment. Recent research by the economists
Alan Krueger and David Card, however, has cast serious doubt
on this claim. In a “controlled experiment” of sorts, Krueger and
Card compared the effect on low-wage employment of a raise
114 / Chapter 4

in New Jersey’s minimum-wage laws with similar employ-

ment a few miles away in Pennsylvania (a state that had not
recently raised its minimum wage); there was little discernible
difference in unemployment rates.53 Moreover, there are other
ways apart from minimum-wage laws by which to raise the
wages of low-end workers. The current Earned Income Tax
Credit, for instance, is a refundable tax credit that significantly
boosts the income of working families in the United States. (In
this scheme low-income workers receive a credit to apply
against their taxes; they then receive a check for any part of
their credit that is unused once their taxes are paid. This can
increase a low-income family’s earnings by several thousand
dollars a year, thereby reducing poverty. In 1999, for instance,
the Earned Income Tax Credit lifted 4.7 million working fam-
ilies above the poverty line.)54
Another direct way for government to repair some of the
shortcomings of the market is to maintain a social safety net, in
the form of unemployment insurance, social security, and mea-
sures to ensure that health insurance is affordable. In addition
to these benefits (which poor and nonpoor alike receive), there
should be maintenance income for those in poverty. In fact,
even those who never find themselves in need of this safety net
benefit from it. Partly this benefit consists in peace of mind that
one will not find oneself in abject destitution. But that is not the
whole of the benefit; the social safety net also benefits even
those who never receive its payments inasmuch as it dulls the
edge of employer power over employees. Since it cushions the
blow one would receive in the event of losing one’s job, the so-
cial safety net makes an employer’s threat of firing less fear-
some and thereby helps to keep his or her power over others
within reasonable bounds. (In this regard, one current hole in
the American safety net concerns health care. Around forty-
five million Americans lack health insurance, and those who
do have it usually receive it through their employers.55 Receiv-
ing health care through an employer is clearly far from ideal,
however, inasmuch as this can tie a person to his or her current
 The Politics of Dignity / 115

job, reducing his or her employment options and thereby in-

creasing an employer’s threat power.)56
That said, one of the most obvious functions of the social
safety net is that of helping those people at the bottom of the
economic ladder. This function is necessary in order to make
real the ideal of equal citizenship discussed earlier, which
rules out citizens having to live as “internal exiles” in their
own land, marginalized from society’s mainstream. Deep
poverty conflicts with this ideal, for it rules out much of what
middle-class citizens take for granted: owning one’s own
home, having a reliable car, attending sporting events, going
away on vacation, providing music lessons (or other extras)
for one’s children, belonging to a gym, and so on. An impor-
tant role of the social safety net lies in dismantling the poverty
traps that can deny individuals effective access to these main-
stream experiences and others.
Of course, whether poor individuals are to a significant ex-
tent trapped in poverty or rather are failing to avail themselves
of the opportunities they already possess is a controversial
question that makes debates over the welfare provisions of the
social safety net especially heated. A full explanation of the
causes of poverty is clearly beyond the scope of this short es-
say. Let me instead simply say that while the causes of poverty
are complex, many citizens’ views on poverty unfortunately
consist of little more than stereotypes. For instance, consider
the popular image of poor people as made up mainly of “wel-
fare queens”—the image of nonworking African-American
women who live in ghettos supporting their out-of-wedlock
children on government checks year after year. In fact, 51 per-
cent of the poor are (non-Hispanic) white, compared to 25 per-
cent who are black; 37 percent live in suburbs; 66 percent of the
poor do not live in female-headed families; and among poor
family heads (male and female), 60 percent are employed, with
23 percent of poor family heads working at least fifty weeks a
year, full-time.57 Over the period 1979–1991, moreover, fully
one-third of Americans were poor for at least one year, but
116 / Chapter 4

only 5 percent were poor for ten years or more.58 This variety
is indeed what one should expect, given the large number of
poor people in America—35.8 million people in 2003, accord-
ing to the most recent data at the time of writing, equivalent to
12.5 percent of all Americans (up from 12.2 percent in 2002).59
Hence the poor comprise more kinds of people than pop-
ular belief supposes. The same is surely true of the causes of
poverty. Yes, a significant chunk of poverty is undoubtedly
due to imprudent decisions made on the part of individuals.
But not all of it is. As just noted, many of the poor are work-
ing hard, struggling to make ends meet. In addition, many are
unemployable on account of old age or severe disability. Lim-
itations on opportunities explain a significant amount of
poverty as well. We have already noted the inequalities in op-
portunity that exist in public education and in family cultures
and connections. Moreover, even apart from these inequali-
ties, economic opportunity itself is not unlimited; in particu-
lar, it is not the case that everyone who wants a job can easily
find one. This is obvious in a recession, when the unemploy-
ment rate is high. But involuntary unemployment is always
present to some extent, owing to the way the economy is
managed by the Federal Reserve. If the unemployment rate dips
too “low”—below what economists call the “non-accelerating
inflation rate of unemployment” (NAIRU)—then the Federal
Reserve will raise interest rates to slow down the economy
(the economy will slow, because higher interest rates mean
less business investment in new projects); this deceleration in
turn will bring the unemployment rate back up (fewer new
business projects means less need for employees).60 This is not
a nefarious plan on the part of the Federal Reserve; its goal is
to prevent runaway inflation (which can be sparked by an ex-
tremely tight labor market), and runaway inflation is indeed
worth avoiding, even at the cost of some unemployment.61
But the Fed’s policy does mean there will always be a signifi-
cant number of people who at any given moment are unable
to find a job through no fault of their own.
 The Politics of Dignity / 117

Acknowledging these points is compatible with also ac-

knowledging that some abuse of the welfare system does ex-
ist. The right to public assistance is not a boundless right,
and abuse is a matter of serious concern. It is important to
note, however, that the existence of some amount of abuse
does not straightaway entail that the entire welfare system
should be scrapped, any more than the existence of some
speeding entails that we should do away with the highway
system. For to scrap the entire welfare system would be to
leave some citizens trapped in destitution. In short, any
given society here has a choice between (1) deciding to help
those who are poor, at the cost of tolerating some abuse of
the system; or (2) deciding to tolerate no abuse whatsoever,
at the cost of leaving the non-abusing majority of the poor in
humiliating conditions. Surely choice (1) is preferable, for
while the cost of welfare abuse pinches an individual tax-
payer only slightly (since the total cost is spread among mil-
lions of similar taxpayers), the cost of being trapped in
poverty pinches a poor individual hard enough to devastate
his or her life.
All the same, a society is within its rights to try to reduce
the level of abuse it must tolerate. The first step is to under-
stand exactly what behavior is abuse and what is not. This
should be understood with reference to the ideal of reciproc-
ity. It is not abuse for the elderly and severely disabled to re-
ceive support without working, for example; because they
are not employable, their nonwork does not amount to treat-
ing their fellow citizens as mere instruments in support of
their own purposes.62 However, able-bodied citizens of work-
ing age who draw support while not seeking work (or train-
ing for it) instrumentalize their fellow citizens, provided that
non-humiliating work opportunities do in fact exist for them.
Such behavior is a departure from the ideal of reciprocity. For
this reason it is compatible with respect for human dignity to
require those who receive public assistance to work, when
possible.
118 / Chapter 4

Building a work requirement into a system of public assis-

tance must be done right, however. For example, at least two
challenges arise when those who receive public assistance are
single parents caring for dependent children. To see the first
such challenge, note that child rearing is in general socially
productive labor, although it is not paid; society after all needs
to be replenished with new generations. In a sense, then, sin-
gle parents on public assistance are in fact already working. I
do not think, however, that this fact by itself ought entirely to
exempt single parents from a work requirement. A society can
conceivably acknowledge in general the social contributions
of parents and at the same time judge that particular forms of
parenting—namely, single parenting in conditions of poverty
and unemployment—are inauspicious enough not to warrant
subsidizing. A second challenge that arises with requiring sin-
gle parents to work concerns the cost of childcare. Reliable
childcare is expensive, and the low-wage jobs for which wel-
fare mothers are eligible often do not pay enough to make it
affordable. For this reason work requirements need to be ac-
companied by vouchers or refundable tax credits that make
childcare accessible to low-income workers. If this is not done,
it is innocent children who will pay the price up front, and so-
ciety who will pay the price later when these children become
adults. (Indeed, there are independent reasons to provide
high-quality day care for poor children; a number of recent
studies suggest that it can in fact pay for itself by reducing
rates of juvenile delinquency and crime later on, as well as by
raising rates of college attendance.)63
Whatever the form a work requirement takes, it should
not be seen as a form of punishment for poverty, as it was in
the poorhouses of the past. Rather, it is simply an acknowl-
edgment that the ideal of reciprocity imposes obligations on
all persons—on the well-off, not to treat fellow citizens as
nonentities who can be abandoned to suffer in degrading con-
ditions; and on the poor, not to exploit the good will of their
fellow citizens.64 Indeed, this ideal of reciprocity ought also to
 The Politics of Dignity / 119

lead us to adjust somewhat our understanding of the goal of

public assistance, which is usually described as enabling indi-
viduals to become “self-supporting.” This is a laudable goal,
but as described it is misleading, for no person apart from a
bona fide Robinson Crusoe–type is genuinely self-sufficient.
Instead, we are all mutually dependent on each other’s play-
ing his or her part in the economy at large, which is in truth a
system of joint production that is not the making of any single
individual.65 The goal of welfare and other provisions of the
social safety net is best described not as making current wel-
fare recipients “self-sufficient” but instead as moving them
into a more balanced relation of reciprocity with their fellow
citizens. But by the same token, the goal is also to move well-
off citizens into a more balanced relation of reciprocity with
less well-off citizens, by requiring them to acknowledge that
all citizens who do their part in a system of joint production
are at a minimum entitled to a life of dignity.

9. Conclusion

Throughout this essay I have defended an understanding of

human dignity in terms of the capability for responsible
choice, together with an ideal of respect for human dignity
thus understood—an ideal that establishes very strong pre-
sumptions against diminishing, obscuring, or insulting hu-
man dignity. This has helped illuminate such fundamental
values as freedom and equality. It has also led to an endorse-
ment of democratic liberalism, yielding plausible conclusions
as regards the structure of individual rights, democracy, and
the economy. A glance back at the wergild system of medieval
times, which by law punished the murder of a prince differ-
ently from the murder of a peasant, shows how far we have
traveled down the path of respecting dignity, toward demo-
cratic liberalism. Now we have the challenge of traveling the
rest of the way together.
120 / Chapter 4

Notes
1. Thomas Aquinas, Summa Theologica, Prima Secundae, q. 87, a. 4, arg. 2.
Quoted in Marilyn McCord Adams, “Hell and the God of Justice,” Religious
Studies 11 (1979): 442.
2. Adams, “Hell and the God of Justice,” 442. Wergild literally means
“manprice” in Anglo-Saxon (www.en.wikipedia.org/wiki/Wergild).
3. William James, Essays in Pragmatism (New York: Hafner, 1948), 68.
4. In focusing specifically on human dignity, I do not mean to suggest that all
talk of dignity is out of place as regards nonhuman animals. For excellent dis-
cussion of this issue, see Martha Nussbaum, Frontiers of Justice: Disability, Na-
tionality, Species Membership (Cambridge, Mass.: Harvard University Press,
2005), chap. 6.
5. The preamble to the United Nations’ Universal Declaration of Human
Rights (1948), for instance, begins, “Whereas recognition of the inherent dig-
nity and of equal and inalienable rights of all members of the human family
is the foundation of freedom, justice, and peace in the world” [emphasis
added]. Available at www.un.org/Overview/rights.html.
6. I speak of observing a strong presumption against impairing, constrain-
ing, and ignoring the capacity for responsible choice, rather than an absolute
prohibition against these, because the theory I will defend is not an absolutist
theory. We may face tragic choices in which, say, constraining a person is
necessary to prevent even graver indignities to others. I will have more to
say about this later in section 3.
7. It is not necessarily destroyed altogether, for as I observed in note 4,
there may be other forms of dignity besides the characteristic human sort lo-
cated in the capacity for responsible choice.
8. To be sure, this account of human equality does not grant equal sta-
tus to absolutely every living being with human DNA. Profoundly re-
tarded individuals and young children do not make the cut, for instance.
This by itself is not an objection to my proposed foundation for moral
equality, however, since to my knowledge no one proposes treating
young children or the profoundly retarded—someone who understands
no language of any kind, for instance—exactly the same as citizens gen-
erally (e.g., granting them the right to vote). This does not imply, how-
ever, that these human beings have no rights of any kind. Children’s
status as responsible beings in training will give them certain rights. Pro-
foundly retarded people’s status as bearers of tragic misfortune will
morally rule out subjecting them to further indignities beyond what they
already suffer by nature; one should not kick people who are already
down. Beyond these merely suggestive remarks, however, in the short
space I have here I will not address further the difficult question of what
 The Politics of Dignity / 121

rights incompetents possess. For more discussion on the disabled, see

Martha Nussbaum, Frontiers of Justice, chaps. 2 and 3.
9. Immanuel Kant, Groundwork of the Metaphysic of Morals, trans. H. J. Pa-
ton (New York: Harper and Row, 1964), 96.
10. Aristotle, The Politics and the Constitution of Athens, rev. student ed.,
trans. Benjamin Jowett, ed. Stephen Everson (Cambridge, U.K.: Cambridge
University Press, 1996), 1253a3.
11. For information and references on feral children, see the material at
www.feralchildren.com.
12. Playing a sport is a type of cooperative activity, despite the presence of
competition. For to play a sport genuinely is to commit oneself, to a signifi-
cant extent, to play by the rules of the sport. (Think of the ideal of good sports-
manship, for example). Someone who sees no intrinsic reason not to cheat is
not playing a sport; rather, he is treating it as something like a ritual that is to
be exploited (rather than participated in) for his own ends. In analogous fash-
ion, the presence of economic competition does not fundamentally alter the
cooperative aspect of society. If economic competition degenerates into a no-
holds-barred struggle to destroy others, society has disappeared and been re-
placed by something akin to a ritualized form of warfare.
13. This has not, however, stopped some philosophers (e.g., John Locke)
from claiming that appearances are deceiving, that in fact all members of so-
ciety do consent—tacitly consent—to its rules. For my criticism of this claim,
see chapter 2, section 3 of this book.
14. John Rawls, Political Liberalism (New York: Columbia University Press,
1993), 137.
15. For further astute discussion of this contrast, and of the idea of shap-
ing a life, see Richard Norman, Ethics, Killing, and War (Cambridge, U.K.:
Cambridge University Press, 1995), chap. 2.
16. I believe that the right to freedom of religion—a right of fundamental
importance—is in fact entailed by the rights to freedom of expression, asso-
ciation, and conscience. Thus there is no need to list it separately. If I am
wrong about this, then of course freedom of religion should be added to the
list alongside these other freedoms. For further discussion of this matter, see
Andrew Altman, “Freedom of Speech and Religion,” in The Oxford Handbook
of Practical Ethics, ed. Hugh Lafollette (Oxford, U.K.: Oxford University
Press, 2004), 358–86.
17. This point is made in Joshua Cohen’s admirable article, “Freedom of
Expression,” Philosophy and Public Affairs 22 (1993): 207–63.
18. Moreover, if in a given society citizens are not in general competent to
lead their lives, one must ask whether this is remediable through improve-
ments in the education system, rather than inherent in the nature of things.
I believe our modern experience with liberal democracy shows that with a
good education citizens in general can achieve such competency.
122 / Chapter 4

19. Cf. the words of the French philosopher Helvétius: “To limit the press
is to insult a nation; to prohibit reading of certain books is to declare the in-
habitants to be either fools or slaves” (Claude Adrien Helvétius, De
L’Homme [London: Thoemmes, 1999], vol. 1, sec. 4). The main idea of this
passage is surely correct, though as I note in what follows, some narrowly
defined limits to freedom of expression are necessary.
20. Brandenburg v. Ohio (1969), 395 U.S. 444.
21. New York Times Co. v. Sullivan (1964), 376 U.S. 254
22. For some innovative suggestions along these lines, see Bruce A. Ack-
erman and James F. Fishkin, Deliberation Day (New Haven, Conn.: Yale Uni-
versity Press, 2004).
23. For useful information on these various ways (and their pros and cons),
see the website of the Center for Voting and Democracy at www.fairvote.org.
24. These statistics are available at the website of the Center for Respon-
sive Politics (www. opensecrets.org/bigpicture; click on links labeled “The
Price of Admission” and “Different Races, Different Costs”).
25. URL www.opensecrets.org/pressreleases/Post-Election2000.htm.
26. URL www.opensecrets.org/bigpicture.
27. URL www.opensecrets.org/pressreleases/Post-Election2000.htm.
28. URL www.opensecrets.org/presidential/index.asp. .
29. For one such example involving the company Enron and House ma-
jority leader Tom DeLay, see Paul Krugman, “Machine At Work,” New York
Times, July 13, 2004. For an in-depth study of an earlier example, see Jeffrey
H. Birnbaum and Alan S. Murray, Showdown at Gucci Gulch: Lawmakers, Lob-
byists, and the Unlikely Triumph of Tax Reform (New York: Vintage Books, 1988).
30. Public Campaign, “The Road to Clean Elections,” (www.publicam-
paign.org/publications/trtce/TheRoadToCleanElections.pdf ).
31. Clean Elections Institute, Inc., “2002 Success of Clean Elections”
(www.azclean.org/documents/2002SuccessStats.doc).
32. Clean Elections Institute, Inc., “2002 Success of Clean Elections.”
33. Clean Elections Institute, Inc., “2002 Success of Clean Elections.”
34. Clean Elections Institute, Inc., “The Road to Victory” (www
.azclean.org/documents/ 2002RoadtoVictory-Final.pdf). The money comes
from fees on lobbyists who represent for-profit activities and from a ten per-
cent surcharge on civil and criminal fines (Public Campaign, “The Road to
Clean Elections”).
35. Martin Luther King, Jr., “I Have a Dream,” in The Moral Life, 2nd ed.,
ed. Louis Pojman (Oxford, U.K.: Oxford University Press, 2003), 649.
36. Race relations have improved significantly since the time of King’s
speech, thanks in large measure to the Civil Rights Movement’s victories in
the form of the 1964 Civil Rights Act and 1965 Voting Rights Act. We still have
a significant way to go before racial discrimination is eliminated, however.
For evidence of continued discrimination, see chapter 6, section 3 of this book.
 The Politics of Dignity / 123

37. John Rawls, A Theory of Justice, rev. ed. (Cambridge, Mass.: Harvard
University Press, 1999), 63.
38. For valuable suggestions as to how to spend the extra money raised
for failing schools, see Matthew Miller, The Two Percent Solution: Fixing
America’s Problems in Ways Liberals and Conservatives Can Love (New York:
Public Affairs, 2003), chap. 6.
39. Cf. Richard Rothstein, Class and Schools (Washington, D.C.: Economic
Policy Institute, 2004).
40. This point is made in Brian Barry, Why Social Justice Matters (Cam-
bridge, U.K.: Polity, 2005), 194.
41. Cf. Elizabeth S. Anderson, “What Is the Point of Equality?” Ethics 109
(1999): 322. My defense of democratic liberalism is heavily indebted to this
article.
42. “Special Report: Ever higher society, ever harder to ascend—Meritoc-
racy in America,” The Economist, January 1, 2005, 22–25. This article also re-
ports that social mobility (i.e., individuals’ likelihood of moving up the class
ladder) has declined in the United States since the 1970s, to point where the
United States now has less social mobility than many other countries, such
as Germany, Sweden, Finland, and Canada. This decline in mobility has be-
gun to worry even conservative commentators; see for instance David
Brooks, “The Sticky Ladder,” New York Times, January 1, 2005.
43. “Special Report,” The Economist, 24. This figure is adjusted for inflation.
44. Matthew Boyle, “When Will They Stop?” Fortune, May 3, 2004, 123.
45. Robert Trigaux, “Executive Compensation Rises through Lavish to
Absurd,” St. Petersburg Times, April 26, 2004 (www.sptimes.com/2004/
04/26/Columns/Executive_compensatio.shtml). For further data see the
summary at www.faireconomy.org/press/2004/CEOPayRatio_pr.html and
Lucian Bebchuk and Jesse Fried, Pay without Performance: The Unfulfilled
Promise of Executive Compensation (Cambridge, Mass.: Harvard University
Press, 2004).
46. Alan B. Krueger, “When It Comes to Income Inequality, More Than
Just Market Forces Are at Work,” New York Times, April 4, 2002.
47. Paul Krugman, “For Richer,” New York Times Magazine, October 20,
2002, 66. See Derek Bok, The Cost of Talent: How Executives and Professionals
Are Paid and How It Affects America (New York: Free Press, 2002) for an ex-
tended study of CEO pay.
48. Paul Krugman, “The Death of Horatio Alger,” The Nation, January 5,
2004 (www.thenation.com/doc.mhtml?i=20040105&s=krugman).
49. Krugman, “The Death of Horatio Alger.”
50. Krueger, “When It Comes to Income Inequality.”
51. For a sophisticated defense of worker-owned firms, see Samuel
Bowles and Herbert Gintis, “A Political and Economic Case for the Demo-
cratic Enterprise,” Economics and Philosophy 9 (1993): 75–100.
124 / Chapter 4

52. Laws like this already exist in the United States, but the monetary
sanctions levied against firms who fire union-seeking employees are so
minimal that many businesses break these laws with little hesitation and
treat the fines as just another routine cost of business. Another problem is
firms’ ability to delay recognition of a union for years (sometimes as much
as ten years) owing to a ridiculously slow recognition process overseen by
the National Labor Relations Board. For details see Human Rights Watch,
Unfair Advantage: Workers’ Freedom of Association in the United States under In-
ternational Human Rights Standards (2000), available online at www.hrw.org/
reports/2000/uslabor. For valuable suggestions as to how to improve U.S.
labor laws, see Richard Freeman, “Lessons for the United States,” in Work-
ing under Different Rules, ed. Richard Freeman, 223–39 (New York: Russell
Sage Foundation, 1994). These problems help explain the extraordinary de-
cline in unionization rates in the United States, to the point where by 2003
under 9 percent of the private sector was unionized, less than half the union-
ization rate of every other industrial democracy (www.aflcio/ecouncil/
ec02262003b.cfm). This is surely part of the reason that average wages have
fallen in the United States over the past two decades, while in the same pe-
riod they have risen in every other OECD country—that is, every other ma-
jor developed country. (See Richard Freeman, “The New Inequality in the
United States,” in Growing Apart: The Causes and Consequences of the Global
Wage Inequality, eds. Albert Fishlow and Karen Parker [New York: Council
on Foreign Relations Press, 1999], 29).
53. David Card and Alan B. Krueger, Myth and Measurement: The New Eco-
nomics of the Minimum Wage (Princeton, N.J.: Princeton University, 1995).
Other natural experiments are also examined in this book. See also the sym-
posium on the book in Industrial and Labor Relations Review 48:4 (1995). For
a concise summary of the shift in thinking among many economists regard-
ing the minimum wage, see Thomas Palley, “Building Prosperity from the
Bottom Up,” Challenge 41 (1998): 59–72.
54. Center on Budget and Policy Priorities, “Facts about the Earned In-
come Credit: Tax Time Can Pay for Working Families” (2004), 21, citing the
U.S. Census Bureau’s Current Population Survey; available online at
www.cbpp.org/eic2004/eic04-factbook.pdf.
55. Associated Press, “Ranks of Poverty and Uninsured Rose in 2003,
Census Reports,” New York Times, August 26, 2004 (www.nytimes.com).
Forty-five million Americans constitute 15.6 percent of the population. This
is an increase from the 15.2 percent of Americans who lacked health insur-
ance in 2002.
56. For a helpful overview of America’s employer-based health insurance,
see Uwe E. Reinhardt, “Employer-Based Health Insurance: A Balance
Sheet,” Health Affairs 18 (1999): 124–33. See Miller, The Two Percent Solution,
 The Politics of Dignity / 125

chap. 5, for a discussion of what is probably the most feasible option in the
American context for fixing this hole in the safety net (namely, “community
rated” private insurance plus a requirement that all citizens purchase health
insurance, with the poor assisted by public subsidies). For examples of
health systems from other countries, which can serve as useful compar-
isons, see Laurene Graig, Health of Nations: An International Perspective on
U.S. Health Care Reform (Washington, D.C.: Congressional Quarterly Books,
1999). Finally, for insightful philosophical reflection on health care, see
Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Cam-
bridge, Mass.: Harvard University Press, 2000), chap. 8.
57. Mary Jo Bane and Lawrence M. Mead, Lifting Up the Poor: A Dialogue
on Religion, Poverty and Welfare (Washington, D.C.: Brookings Institution
Press, 2003), 59. The figures are for the year 2001 and come from the U.S.
Census Bureau’s March 2002 Annual Demographic Supplement, tables 2–4.
The Census Bureau’s threshold for poverty was $18,104/year for a family of
four in 2001. One reason for popular misconceptions about the poor lies
with media images that disproportionately display poverty as a black phe-
nomenon. For a sophisticated media critique, see Martin Gilens, Why Amer-
icans Hate Welfare: Race, Media, and the Politics of Antipoverty Policy (Chicago:
University of Chicago Press, 2000). For full-length studies of the working
poor, see Katherine S. Newman, No Shame in My Game: The Working Poor of
the Inner City (New York: Vintage Books, 2000) and David K. Shipler, The
Working Poor: Invisible in America (New York: Knopf, 2004).
58. Bane and Mead, Lifting Up the Poor, 58.
59. Associated Press, “Ranks of Poverty and Uninsured Rose.”
60. Paul Krugman, “Labor Pains,” New York Times Magazine, May 24, 1999,
24–26.
61. A significant number of economists, however, believe the importance
of NAIRU has been overrated and that the Federal Reserve could do more
to lower unemployment without creating runaway inflation. See for exam-
ple James K. Galbraith, Created Unequal: The Crisis in American Pay (Chicago:
University of Chicago Press, 2000); Thomas I. Palley, Plenty of Nothing: The
Downsizing of the American Dream and the Case for Structural Keynesianism
(Princeton, N.J.: Princeton University Press, 2000); and George A. Akerlof,
“Behavioral Macroeconomics and Macroeconomic Behavior,” American Eco-
nomic Review 92 (2002), 411–33. For a variety of viewpoints, see the sympo-
sium on NAIRU in the Journal of Economic Perspectives 11:1 (1997).
62. In saying that the seriously disabled are not employable, I have in
mind primarily those with very serious mental disabilities. A person in a
wheelchair is employable, of course, provided he or she can reach the work-
place. Considerations of dignity point to the need for laws requiring busi-
nesses to make reasonable accommodations for the physically disabled, so
126 / Chapter 4

that they too can participate in work. Cf. Nussbaum, Frontiers of Justice,
chaps. 2 and 3.
63. For a summary of recent studies see Alan B. Krueger, “Inequality, Too
Much of a Good Thing” (Unpublished manuscript), available online at
www.irs.princeton.edu/pubs/pdfs/inequality4.pdf). See also the Com-
mittee for Economic Development’s 2002 report, “Preschool for All: Invest-
ing in a Productive and Just Society” (www.ced.org/docs/report/report
_preschool.pdf).
64. This point bears on an assessment of the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996 (PRWORA), by which the U.S.
Congress instituted work requirements as a condition of welfare receipt. On
the whole, the framework I am employing supports this reform, though I
think much less attention was paid to crucial issues of childcare and job
training than was necessary. The most successful systems of welfare in
America, such as the Minnesota Family Investment Program, pay a great
deal of attention to these issues. For details, see Dave Hage, Reforming Wel-
fare by Rewarding Work: One State’s Successful Experiment (Minneapolis: Uni-
versity of Minnesota Press, 2004). I am skeptical, moreover, of one other
significant element of PRWORA, namely, its time limits, which restrict fed-
eral welfare receipt to a total of five years over the course of a single lifetime.
I know of no a priori guarantee that misfortune never totals to longer than
five years for any individual.
65. I take the term “system of joint production” from Anderson, “What Is
the Point of Equality?” 321.
5
The Follies of
Democratic “Liberalism”
Tibor R. Machan

One of the ways contemporary philosophers go about sup-

porting various ethical and political ideas and ideals is by con-
sidering what we all supposedly take to be intuitively right
and good. Professor Duncan gives us a good example when
he quotes William James, regarding “the ‘emotion’ [of] re-
spect, namely, for the dignity of that ‘certain lost soul’ whose
torture would guarantee the happiness of millions” (p. 81).
That feeling is supposed to be a decisive indicator of what we
all ought to value. Duncan shares this methodology with sev-
eral other twentieth-century moral and political philosophers,
including the most famous of them, John Rawls, who invokes
intuitions as part of his foundation for his ethical and political
reflections and recommendations in A Theory of Justice.1
Yet, as Rawls himself came to realize in his later book Po-
litical Liberalism,2 the intuitions on which his own ideal of jus-
tice relies are far from universal among human beings. Rawls
noted in his later work that the principles he identifies as cru-
cial to a just society are mostly applicable in the context of
Western political history. He could have gone farther and
noted that even in the West, there are many competing intu-
itions. The writer W. Somerset Maugham put it well when he

127
128 / Chapter 5

noted that “intuition [is] a subject upon which certain philoso-

phers have reared an imposing edifice of surmise, but which
seems to me to offer as insecure a foundation for any structure
more substantial than a Castle in Spain as a ping pong ball
wavering on a jet of water in a shooting gallery.”3 Consider
the following as support for what Maugham is noting:

To us today the revelation of the legal murders and cruelties

connected with the trial of children are revolting. We have
become so habituated to the kindly and even anxious at-
mosphere of the Children’s Courts, that it is hard to believe
that the full ceremonial, the dread ordeal, of the Assize
Courts could have been brought into use against little chil-
dren of seven years and upwards—judges uttering their
cruel legal platitudes; the chaplain sitting by assenting; the
Sheriff in his impressive uniform; ladies coming to the
Court to be entertained by such a sight—the spectacle of a
terrified little child about to receive the death sentence
which the verdict of 12 men, probably fathers of families
themselves, had given the judge power to pass.4

Many other practices and beliefs, held equally firmly and

“naturally,” could be cited to illustrate the problem with rest-
ing decisive moral and political ideas and ideals on intuitions
or feelings. In Duncan’s analysis the belief in the fundamental
value of the sort of equality he champions is made to rest on
intuitions, but that is not a good enough reason for us to ac-
cept what he is advocating.
As I stress in my own opening essay, however, there is a
version of egalitarianism that does deserve serious support; it
rests not on intuition but on the facts that human nature is
ubiquitous (other than in crucially incapacitated persons) and
that from it certain basic principles are derivable, principles
that then equally apply to all. This is the natural-rights posi-
tion that I find most convincing, one that is associated with
John Locke and other natural law/natural rights defenders of
classical liberalism and libertarianism. It is, of course, an egal-
 The Follies of Democratic “Liberalism” / 129

itarianism that is limited to equal respect for the human dig-

nity of each person, a dignity that involves the distinctive ca-
pacity to be, in adulthood, a moral agent. It is this naturalist,
rather than intuition based, conception of human dignity that
supports the political imperative to respect the rights of all
human beings and the ethical imperative to establish a legal
order for the protection of those rights.5
In the matter of our distinctive (enough) human nature,
which renders us but not other animals moral agents, Duncan
and I are not so far apart.6 Duncan, however, seems to develop
his democratic liberal politics more along lines we learn from
Martha Nussbaum, also a neo-Aristotelian naturalist, who
supports an extensive welfare state rather than the libertarian
polity I consider just and proper.7 Duncan says, accordingly,
“The most devastating way one can fail to respect another
person’s dignity is by failing to recognize any presumption
against impairing that person’s capacity for responsible
choice” (p. 83). Doing so, however, is not confined to viola-
tions of that person’s negative rights—to, say, life, liberty,
property, and so forth—but extends to failing to enable the
person to develop in such a way that responsible choice is
likely to emerge in his or her life. The following makes clear
how Duncan arrives at his robust egalitarian politics from a
conception of human nature that is rather similar to that
which I have associated with normative classical liberalism:

I propose we understand society as a system of cooperation by

which members gain in their ability to complete the funda-
mental tasks of living. Certainly, compared to a solitary exis-
tence, life in society better enables us to feed, clothe, shelter,
and protect ourselves from nature’s threats. The enablement
that social cooperation makes possible need not be limited to
enabling us in meeting our basic needs, however. (pp. 87–88).8

Once one understands society as “a system of cooperation,”

one needs to ask for what purpose such a system would be
130 / Chapter 5

most appropriate and what terms of cooperation may be re-

quired of all members of society.
There is a problem, just for starters, with the concept “co-
operation,” namely, that its meaning includes the idea of the
voluntary mutual interaction of human beings. Such interaction is
itself open to moral assessment. One can, after all, cooperate in
carrying out evil deeds.9 What is it, however, that the coopera-
tion that supposedly gives rise to society aims at—or should
aim at? This is crucial, because the answer will determine some
of the constitutive features of a just society. In other words, not
any society, even if voluntarily established, may be just.
Furthermore, there are societies that are not established
voluntarily, at least if we go by ordinary usage. North Korea,
the Third Reich, Cuba, and apartheid-ridden South Africa
were or are all societies, yet they are by no means cooperative
human associations. Aristotle’s polis was by no means a co-
operative association of human beings.10
But let us not get bogged down here. There are more im-
portant matters to consider in Duncan’s discussion.11 I want
instead to turn to Duncan’s support for democracy, a support
that may arguably be taken as illiberal, in the sense spelled out
by Fareed Zakaria in his recent book The Future of Freedom.12
Duncan tells us this to start with, without realizing that he is
ignoring the most important problem with democracy,
namely, its proneness to be illiberal.

One important question concerns whether to have a direct

democracy (in which citizens themselves propose and vote
on laws) or a representative democracy (in which elected of-
fices perform these functions). To a large extent this question
is settled by pragmatic considerations (direct democracies
are better suited to small city-states than to today’s large na-
tion-states), but a dignity-based case is not wholly silent
here. I do not believe that the demands of dignity require di-
rect democracy, for to say that citizens are competent beings
capable of responsible choice is not to say they are all com-
petent to judge the various issues requiring political atten-
 The Follies of Democratic “Liberalism” / 131

tion, from taxes to defense to education to the environment,

and so on. A representative democracy instead, and more ac-
curately, presumes citizens are first and foremost competent
to choose leaders who are themselves competent at judging
these issues. This is not to say that the ideal of direct democ-
racy has no relevance, however. Since in fact many private
citizens do have competent knowledge of a variety of issues,
especially those that directly implicate their interests, a rep-
resentative democracy should also create significant space
for citizen input into its deliberative practices (via open hear-
ings and other public forums, say) (p. 95).

This entire passage and what follows it fail to raise a most

important question, namely, the proper scope of either direct or
representative democracy. The issue is well known by refer-
ence to the shopworn example of the lynch mob. It is directly
democratic, if it involves everyone in a given community, or
representatively democratic, if the leaders step forward to
carry out the will of the people (which is not, of course,
Rousseau’s general will by a long shot).
The libertarian, in contrast, approaches democracy much
more skeptically. Although to a great many people around the
globe democracy is nearly synonymous with liberty—they think
when they say “a democratic country” that they are referring to
one that is a free country—this is not at all assured. Yes, there is
something to the common impression, because in a free country,
sure enough, everyone is free, among other things, to vote, to take
part in the political process.13 When some people (other than
criminals) do not have this aspect of the right to liberty respected
and protected, the country is clearly not sufficiently free.
But is democracy enough for a country to be free? No. A
country can even lose its freedom democratically, as when the
majority, once it has gained power, curtails the freedom of the
minority. Indeed, one important way to explain and under-
stand the rise of Hitler is that in the Weimar Republic the ma-
jority voted him into power and thus abolished not only
freedom but democracy.
132 / Chapter 5

What then is the right relationship between democracy

and liberty? I am, of course, talking about the kind of liberty
that means not violating the basic rights of anyone. (There is
freedom or liberty of the kind that has nothing to do with
rights but concerns so enabling one that he or she can do
things. That kind of freedom is secured through productivity,
by providing oneself—or, as in welfare states, being provided
with by others—with various resources that make it possible
to do things.) Can democracy even exist as a procedure in a
society that is fully committed to liberty or, rather, to the re-
spect and protection of the right to do what one wants?
Actually, despite the fact that a bloated democracy is in-
compatible with full liberty for all, individual liberty and de-
mocracy are compatible, provided democracy is applied
within limits. The best-known example of such limits is made
evident in the case of the lynch mob. Since the lynch mob,
though democratic, fails to adhere to certain rules, it is actually
tyrannical. The majority proceeds to impose measures that vi-
olate individual rights (to, say, a justly conducted trial, one that
observes due[!] process). This example can help us see how de-
mocracy requires limits in order to be compatible with liberty.
But what is there left for the democratic process to address
if it must be limited by certain rules? Two matters are directly
at issue here.
For a free country to be established successfully, it needs
majority support. This is a matter of power. Freedom cannot be
secured unless there is plenty of power to protect it. This is one
reason that sometimes even nondemocratic countries can be
quite free, even more free than democratic ones. If a powerful
enough dictator or single party embarks upon the protection of
individual rights, as some do (especially as regards the opera-
tions of a free market capitalist system), apart from the lack of
political liberty there can be plenty of liberty in such a country.
But usually this will not work without majority support. So,
where democracy is crucial to liberty is in providing liberty
with adequate backing so those who would want to engage in
 The Follies of Democratic “Liberalism” / 133

oppression have no chance to do so. In short, it is at the found-

ing of a country—which can be brought about gradually or by
revolution—that democracy is crucial. What the limits of such
democratic procedure come to is plain: they must address the
defense or protection of individual rights by setting up a con-
stitution or similar political order and by giving it firm support,
in which the unalienable rights of individuals are fully secure.
Fine, but then what? Where does democracy come in dur-
ing the administration of a free country? Actually, it does so
only in specific, limited areas. For example, democracy is vital
in the selection of the system’s administrators, in deciding on
who will be the political and legal administrators who carry
out the task of rights protection (which can be very compli-
cated once the system is in operation in a developed, modern
society). Also, more importantly than this, democracy would
function in the decision making process that extends the basic
principles of a free society to new areas of concern, such as
how property rights or rights to free expression apply to, say,
radio, television, computer programs, space, and the Internet.
Here is where the democratic process would function cre-
atively, lending support to new laws, either through the oper-
ations of the courts (via jury verdicts) or the acts of the
legislature, kept in check by the judiciary, which would have,
in a free society, the job of striking down decisions that violate
the rights of individuals.
A free country is one the members of which do not have
burdens to which they have not given their full consent im-
posed upon them by others. Burdens and benefits that arise
from nature—say, respectively, a weak constitution or a beau-
tiful figure—do not constitute a limitation on one’s liberty,
since they (a) were not imposed by others and (b) others have
no enforceable obligation to remove these unless they are one’s
parents or guardians or ones who have contracted to provide
such a service (e.g., an insurance company or a hospital).
If a democratic system addresses the ways in which the
principle of liberty is upheld effectively enough, there is no
134 / Chapter 5

conflict between democracy and liberty. But once democracy

serves to usurp individual liberty—for example, by leading
the majority of voters to trample on others’ rights—it is no
longer a part of a country’s free institutions but becomes, as it
has in so many societies around the globe, including in the
United States of America, an instrument of greater or lesser
tyranny, the proverbial tyranny of the majority.
Duncan spends some time exploring the specifics of a dem-
ocratic electoral system; I will not address his efforts, since they
are all predicated on his conception of a broader than just
scope of democracy. For those who consider a constitutional
system with demands on everyone to respect individual rights
as the proper one, democracy’s scope would need to be limited
to electing various administrators who will uphold law that
rests on such individual rights and on legislators who will de-
velop basic principles to cover novel problems. For example,
the principle of the individual’s right to freedom of speech and
religious worship may need interpretation for what at some
point would be novel cases, such as use of the Internet or cell
phone communication, and religious practices such as those
introduced by the Reverend Moon (who performs mass mar-
riages among the faithful). Beyond electing those who would
carry out such a function, all in support of assisting in the
maintenance of justice as per the basic constitutional tenets,
democracy has no place in a free society (other than when pri-
vate social groups freely and voluntarily elect to practice dem-
ocratic methods to reach decisions among their members).14
As Duncan reports, “The account of human freedom cen-
tral to democratic liberalism focuses on people’s ability to give
shape to their own lives” (p. 100). Is this, however, the right
account of human freedom? Certainly there are conceptions of
freedom that focus on our ability. One may win some cash and
exclaim, “Now I am free to travel to visit all the places where
I couldn’t go before”; or, “Finally, I am free to help out the
causes I wasn’t able to support in the past”; or, again, “At last
I am free to get my fitness program under way at a proper
gym where I can now obtain good advice.”
 The Follies of Democratic “Liberalism” / 135

Are these, however, matters of politics? No, not if human

beings are treated as moral agents, free to make their own
moral decisions regarding how their own lives and re-
sources—including their labor and the compensation they
have received for it—are to be allocated by them. Even such
issues as racial discrimination are arguably mainly ethical in
their nature, not political, unless the discrimination occurs
within the processes of the administration of laws. In the lat-
ter cases, racial or any other type of discrimination based on
factors irrelevant to one’s citizenship would amount to ad-
ministrative injustice. However, if I discriminate for reasons of
race or sex in my market transactions—say, I refuse to patron-
ize a shop at the mall because the clerks there are women or
black or have some other attributes that are irrelevant to their
performance as clerks—I am doing something most likely to
be morally wrong but not violating anyone’s rights. No one
has a right to my patronage. I am not to be conscripted to be-
come a customer of anyone’s services, to become anyone’s
trading partner. To endorse coercing people to be such cus-
tomers or providers amounts to the promotion of involuntary
servitude, except when prior announcement of nondiscrimi-
natory provisions has been made.15
Because Duncan’s approach to politics heavily relies on
the institution of taxation, an institution avidly defended by
several prominent political and legal theorists in our time,16 it
will be of some use here to offer some critical comments on
that institution. Since the American revolution, when monar-
chy was rejected by the founders of what came closest to a free
society and when sovereignty was legally established for in-
dividual human beings, not governments, there has been a
problem with taxation. To put it plainly, the institution is an
anomaly in a genuinely free society.
In such a society one has unalienable—meaning, never
justifiably violable—rights to life, liberty, and the pursuit of
happiness, among other rights.17 But instead of transforming
public finance from a coercive to a voluntary system, the
framers left taxation intact, albeit changed so that at least there
136 / Chapter 5

would be representation in the process and it would be lim-

ited to support certain clearly public purposes.
Those who cherish government intervention in human so-
cial and economic affairs and prize that over individual sov-
ereignty have made use of this anomalous feature of our legal
system to justify the expansive state. It is quite natural that
this should have occurred—whenever one compromises a
principle, eventually the compromise devours the principle
altogether. (This is why ethics counsels even against little
white lies—they corrupt character.)
By now the tax system in the United States does not even
adhere to the principle “No taxation without representation.” (It
was the famous pre-Revolutionary patriot James Otis who said,
“Taxation without representation is tyranny.”) Government ac-
tually taxes, by means of heavy borrowing, members of future
generations, ones certainly not represented in Congress. Taxes
are imposed on travelers all over by local politicians who do not
represent them. What is far worse, but to be expected, given the
logic of such processes, is that instead of confining taxation to fi-
nancing the only proper function of government, which is “to
secure [our] rights,” taxation is now used to fund every project
in society that the human imagination can conceive.
But, it might be objected, to quote Justice Oliver Wendell
Holmes Jr., that “taxation is the price we pay for civilization”?
No, and it is useful to consider the source of this idea: It comes
from one of America’s legal giants who had no sympathy at
all for limited government—quite the opposite.
In fact, taxation is best conceived now as a type of extortion.
The government tells the citizenry, “You may work for a living
only if you hand over roughly 40 percent of your earnings to us
to fund goals we have decided need funding. You may live in
your home provided you hand over a substantial amount of
funds with which we will do what the majority of voters and
their representatives believe needs doing.” This is not what cit-
izens of a bona fide free society deserve from their agents, ones
who are entrusted with protecting, not attacking, their rights.
 The Follies of Democratic “Liberalism” / 137

But, did “we” not enter into a social compact that resulted
in the tax system we have? No we didn’t, not if we indeed have
unalienable rights—no contract can give up anyone’s rights. I
certainly may not enter a contract the provisions of which in-
clude that your rights are violated. A contract—or compact—
can only be entered into voluntarily; unwilling third parties
may not be conscripted to it.18 If, as in the case of the closest to
a free country in the modern era, namely, the United States, the
society is supposed to be grounded on unalienable individual
rights, the only way government can come about is through
“the consent of the governed.” While this had been under-
stood too loosely in the past, even by the American founders,
its meaning is clear: You and I must consent to be governed.19
Now, we do consent to being governed if we remain within
the legal jurisdiction of a certain sphere, but only to the extent
that is just; it is the just powers of government only to which we
can consent, and to tax is not one of the just powers of govern-
ment. To be properly funded, some other, but in any case volun-
tary, means must be found. Since, however, this is a very novel
idea—about as novel even in the United States as free markets
are in the former Soviet bloc countries or freedom of religion in
Iran—studies as to how to bring it off are in short supply. (Re-
member, most universities are tax funded, so they are not likely
to encourage alternative ways of funding government.)
Still, there has been some progress in the study of funding
government without any coercive means. One method pro-
posed is to charge for all contracts that are, ultimately, backed
by the courts. Certainly, one can just shake hands and pro-
ceed, but this is not likely when multimillions are at stake and
legal recourse is wanted in case of some kind of mishap. There
is also the possibility of funding government via lotteries.20 At
the beginning, governments could make ample money so as
to fund plenty of their proper undertakings by selling off all
the properties that they should not own in the first place.
These observations do not exhaust the field of public fi-
nance for a government of a free society. Still, if the idea were
138 / Chapter 5

not dismissed so readily by those who prefer taxing their fel-

lows for projects of their own, human beings could put their
minds to the task profitably enough and find a way to elimi-
nate this anomaly from our midst.21 Duncan, unfortunately,
sees little worth exploring here, probably because democratic
liberals (which, to be sure, is the same as democratic socialists)
find the idea of a free society as per the libertarian’s under-
standing of it quite unpalatable.22
There are several other details one could take up in Dun-
can’s defense of his democratic liberal polity. There is the
complaint that free markets do not actually reward those who
deserve being rewarded; that CEOs get a great deal more
money than others, and perhaps not always because they de-
serve it; that there needs to be a government imposed mini-
mum wage, etc.; and so forth. All these measures, many of
which are already part of the welfare states of many Western
countries, are objectionable from the point of view of the lib-
ertarian alternative wherein all forced, nonconsensual ex-
changes are banned.
Some of the concerns about free markets have to do with
the historical fact that the system has always been in force as
a mere shadow of its theoretical self, incorporating various el-
ements of feudalism, mercantilism, the welfare state, and
other systems that arguably generated the problems—for ex-
ample, the Great Depression, which can be traced to monetary
policies of the federal government.23
There is one area of concern, however, that deserves special
mention. It has to do with the nature of corporate commerce
and, more specifically, the structure of the modern business
corporation. First of all, the libertarian theory does not sanc-
tion any kind of corporate welfare—subsidies, price supports,
protectionism, or the like. All of these would be banned in a
free society. Second, the system of limited liability would have
to be seriously rethought, partly because it was established un-
der mercantilism and feudalism and, as with taxation, a good
deal of it is antithetical to a bona fide free polity. Third, even
 The Follies of Democratic “Liberalism” / 139

the practice of silent ownership, without any liability for mal-

practice that injures innocent third parties, would need to be
reconsidered in a fully free society. By no means, then, is the
libertarian lobbying for any special privileges for business, any
more than for art, science, education, athletics, entertainment,
or any other group of citizens with specific goals they wish to
pursue. To the extent that Duncan is critical of libertarianism
because he believes it aims to plead a special case for business,
he is seriously misunderstanding the position.
In conclusion, I wish to offer some points concerning the
general approach taken by those who, like Duncan, see liberty
in the tradition exemplified by, among others, Amartya Sen,24
namely, as enablement rather than absence of coercion or
physical intervention in the lives of others. This tradition has
been influenced by philosophical positions outside political
philosophy proper. The very idea of “liberalism” has been un-
der the influence of the modern materialist view that human
beings are moved to behave as they do by forces outside their
own control, that they lack free will and, therefore, meaning-
ful moral responsibility. Accordingly, the very idea of deserv-
ing what one obtains through one’s conduct and interaction
with others has had serious problems. John Rawls made it
very clear that the notion of deserving something is difficult if
not impossible to support. As he put the point, “No one de-
serves his greater natural capacity nor merits a more favorable
starting point in society.” Why? Because even “a person’s
character [i.e., the virtues he or she practices that may provide
him with ways of getting ahead of others] depends in large
part upon fortunate family and social circumstances for which
he can claim no credit.”25
When one views human beings along such lines and also
takes them to possess dignity, which warrants treating them
with respect, the result is that one regards them as all in the
same boat, as it were, socially, economically, psychologically,
and so forth. Anyone who is not enjoying reasonable benefits
in life is then considered as somewhat of a member of a team
140 / Chapter 5

to whom considerations are owed by other team members re-

gardless of performance. Whatever misfortune or even failing
befalls a person is everyone’s responsibility to remedy.
Of course, there is a serious paradox here. The first part of
the story, as Rawls and others tell it, removes moral responsi-
bility for human life, but the second part imposes moral re-
sponsibility on everyone to take care of all those who have
been left deprived. This result is, actually, a problem with
modern materialist philosophy, one to which Immanuel Kant
tried to provide a solution with his separation of reality into
the phenomenal and the noumenal parts—the one behaving
entirely deterministically, the other containing, somewhat
mysteriously, elements of moral freedom and responsibility.
Democratic liberalism has followed this paradoxical ap-
proach in the area of political economy, by making some room
for the negative freedom that is required by our moral nature,
as well as affirming the propriety of positive freedom that will
enable the many who are deemed unable to cope to make
headway in life.
In essence, then, the natural law libertarian subscribes to a
different human ontology from Duncan’s—people are nearly al-
ways capable of making responsible choices and need the room
in their communities to do this, and only very rare cases warrant
departing from this understanding of human social affairs (com-
parable to how in the criminal law only rarely are defendants ex-
culpated because they are deemed incapable of lawful conduct).
This, more than anything else, accounts for why the libertarian
alternative is found wanting by many, even while some ele-
ments of it are readily incorporated into opposition views.
I wish to end with a point about practicality. Most liber-
tarians realize that despite the fact that theirs is the least
utopian of political viewpoints (since it can never promise full
solution of all social problems via political means), it is not
likely to be fully realized. They take the libertarian political
position as the best one available to people, just as a moral
philosopher would take the ethics he or she has found justi-
 The Follies of Democratic “Liberalism” / 141

fied as the best moral system. But neither expects the system
to be lived up to fully, despite the fact that that is what should
happen. As with the best ethics, so with the best politics—all
one can do is strive to promote it. It would be foolish, know-
ing about the human proclivity to yield to many temptations
to be less than excellent, to expect the best polity to be realized
with any regularity.

Notes
1. John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard Univer-
sity Press, 1971).
2. John Rawls, Political Liberalism (New York: Columbia University
Press, 1993).
3. W. Somerset Maugham, A Writer’s Notebook (Baltimore: Penguin,
1967), 325.
4. Ernest W. Pettifer, Punishments of Former Days (East Ardsley, U.K.: EP,
1974), 35–36.
5. For a more detailed account of this point, see Tibor R. Machan, “Hu-
man Dignity and the Law,” DePaul Law Review 26 (1977): 119–26.
6. See, for more of my own libertarian approach—but one developed
from a neo-Aristotelian naturalist ethical based—Tibor R. Machan, Putting
Humans First: Why We Are Nature’s Favorite (Lanham, Md.: Rowman & Lit-
tlefield, 2004).
7. See an especially focused paper on this topic from Professor Nuss-
baum: Martha Nussbaum, “Human Functioning and Social Justice: In De-
fense of Aristotelian Essentialism,” Political Theory 20 (1992): 202–46.
8. Arguably Duncan builds into his understanding of society the ques-
tion-begging element of the requirement of choice—cooperation of the
membership. Clearly, innumerable societies, ordinarily understood, lack
this element.
9. For an elaboration of this point, see Tibor R. Machan, “Why Agree-
ment Is Not Enough,” Philosophia 28 (2000): 269–81.
10. It is valuable here to recall that there are certain libertarian hints even
in Aristotle, as far as what may count for a just society, as when he notes that
“the virtues are modes of choice or involve choice.” (Nicomachean Ethics,
1106a3 & 4.) This suggests that for Aristotle only a polis wherein choice is re-
spected and protected can qualify as encouraging moral virtue since only in
such a polis can “modes of choice” be made secure. For more on this way of
142 / Chapter 5

reading Aristotle, see Fred D. Miller Jr., Nature, Justice, and Rights in Aristotle’s
Politics (Oxford, U.K.: Oxford University Press, 1995).
11. As an additional small but not negligible matter, Duncan uses “lib-
eral” in the unique contemporary, post New Deal American, sense of that
term. “Liberal” had, of course, meant anyone who championed liberty in the
sense that one ought to be free from other people’s intrusiveness, from op-
pression or rule by others (monarchs, tsars, dictators, and others who aspire
to rule unwilling subjects). The meaning of “liberal” changed for a variety of
reasons, not the least of which is that in American calling oneself a social
democrat or democratic socialist simply did not meet with open arms. In Eu-
rope, in contrast, liberals are still viewed as mostly classical liberals, guided by
the thought of John Locke, Adam Smith, John Stuart Mill, and Lord Acton.
12. Fareed Zakaria, The Future of Freedom: Illiberal Democracy at Home and
Abroad (New York: W. W. Norton, 2003). Zakaria, of course, does not ad-
vance a radical libertarian case here, although arguably he intimates one.
13. Considering that billions of people around the world, even today, are
barred from taking part in any sort of political process, to which they clearly
have a basic, natural right (given that everyone has such a right to liberty of
action, including political action), it is no surprise that democracy means for
them the crux of political liberty. But as Zakaria and others, including John
Locke, warned, liberty may be endangered by democracy, despite democ-
racy exemplifying liberty in a certain sphere of human activity. If democracy
means the right of all citizens to take part in the political process, there is
still the issue of what counts as political. If the scope of politics is minimal,
as in the libertarian framework, that may mean that all may vote on certain
limited issues. For more, see Tibor R. Machan, Private Rights and Public Illu-
sions (New Brunswick, N.J.: Transaction Books, 1995).
14. For the details of the sort of legal order I am sketching here, see
Randy R. Barnett, Restoring the Lost Constitution: The Presumption of Liberty
(Princeton, N.J.: Princeton University Press, 2004).
15. For more on this, see Tibor R. Machan and James E. Chesher, “Capi-
talism and Racial Justice,”A Primer on Business Ethics (Lanham, Md.: Row-
man & Littlefield, 2003), chap. 6.
16. See, for example, Liam Murphy and Thomas Nagel, The Myth of Own-
ership, Taxes and Justice (New York: Oxford University Press, 2002), and
Stephen Holmes and Cass R. Sunstein, The Cost of Rights: Why Liberty De-
pends on Taxes (New York: W. W. Norton, 1999).
17. The Bill of Rights includes the Ninth Amendment in order to make
clear that not only enumerated rights ought to be respected and protected
in a free society.
18. An exception would be a compact involving children and their par-
ents. For more on this, see Tibor R. Machan, “Between Parents and Chil-
dren,” Journal of Social Philosophy 23 (1992): 16–22.
 The Follies of Democratic “Liberalism” / 143

19. Barnett, Restoring the Lost Constitution.

20. For an extensive discussion of funding a legal order without coercion,
see Tibor R. Machan, “Dissolving the Problem of Public Goods: Financing
Government without Coercive Measures,” in The Libertarian Reader, ed. T. R.
Machan (Lanham, Md.: Rowman & Littlefield, 1982).
21. Considering that much of the research on public finance is carried out
at universities and colleges that rely very heavily on the institution of taxa-
tion, it is not a mere possibility that those conducting the research have a
special interest in not exploring the option being proposed by classical lib-
erals and libertarians. If business corporations can be accused of biased re-
search because of their commitment to making a profit, it is no stretch to
assume that state funded education and scholarly institutions will exhibit
bias in how they explore possible alternatives to taxation for purposes of
public finance.
22. If palatability were the standard for considering an idea worthy of ex-
amination, hardly any of the most challenging political systems would pass
the test.
23. For discussions of this particular historical event that is often blamed
on free market capitalism, see Murray N. Rothbard, America’s Great Depres-
sion (Princeton, N.J.: Van Nostrand, 1963); Milton Friedman and Anna Ja-
cobson Schwartz, The Great Contraction, 1929–1933, 1st ed. (Princeton, N.J.:
Princeton University Press, 1965); Gene Smiley, Rethinking the Great Depres-
sion (Chicago: I. R. Dee, 2002); and Jim Powell, FDR’s Folly (New York:
Crown Forum, 2003).
24. Amartya Sen, Rationality and Freedom (Cambridge, Mass.: Harvard
University Press, 2003).
25. Rawls, A Theory of Justice, 104.
6
Democratic Liberalism
Defended
Craig Duncan

I am grateful for Professor Machan’s critique of my essay on

behalf of democratic liberalism. The points he raises merit
replies; that is the purpose of my final contribution in this
chapter. In particular I will reply to Professor Machan’s
charges relating to the role of moral intuition, to the scope of
democracy, to the nature of political freedom, and to the al-
leged libertarianism of America’s “founding fathers.”

1. On Moral Intuition

Quoting Somerset Maugham, Machan alleges that moral intu-

itions are too insecure a foundation on which to erect a political
philosophy. His own theory, Machan claims, rests not on intu-
ition but on a foundation of shared human nature from which
his libertarian principles are derivable (pp. 128–29). This, he
says, is the method of the natural rights/natural law tradition.
I beg to differ, for a number of reasons. First, we should note
that there is at least as much diversity of opinion within the nat-
ural rights/natural law tradition as there is in the tradition of
egalitarian liberalism in which I work. Aristotle, Cicero,

145
146 / Chapter 6

Aquinas, Locke, and all the rest of the thinkers associated with
this tradition hardly speak with one voice. Indeed, Machan
himself recognizes the diversity of practices that were once
thought “natural” but no longer are (p. 128). I do not know
why he thinks this diversity is a problem for my theory but
not his; after all, it is his theory, not mine, that purports to be
a “natural” law/rights theory.
Second, Machan’s claim to derive ethical principles directly
from human nature is implausible, because human nature is it-
self a mixed bag, with some good elements and some bad ele-
ments. We probably have built-in tendencies toward sympathy
with and respect for other people, and these are good tenden-
cies. But we probably also have some built-in tendencies to clas-
sify people as “insiders” and “outsiders” and to treat the latter
group worse. We probably have built-in susceptibilities to su-
perstitious thinking—and so on. Thus one needs moral judg-
ment to distinguish between the good and bad elements of
human nature. Once we recognize this, we can see that Machan
is doing essentially the same thing as I am. Like me, he is fixing
his attention on the unique human capacity for choice and
judging that this is a capacity that is worthy of respect. We dif-
fer in what this respect amounts to, but this is a substantive dif-
ference in our moral views. It is not an epistemological
difference in which I rely on “intuition” and he does not.
Third, in his chapter in defense of libertarianism (chapter 1),
Machan himself concedes the need for moral judgment when it
comes to applying his principles. Libertarianism, he there
states, is “not a rigid, deductive system of implied public poli-
cies” (p. 18). He compares the art of applying political theory
with the art of applying medical knowledge, which requires
much uncodifiable judgment in particular situations. All of this
is true and wise and to Machan’s credit. But it flies in the face
of his criticisms of my theory. For I need not appeal to “intu-
ition,” if this is mysteriously thought of as a faculty by which
we gain insight into a rational realm of moral truths that exist
in some Platonic heaven. Instead my appeal is to people’s ca-
 Democratic Liberalism Defended / 147

pacity for moral judgment, a capacity that develops as their

moral experience increases. To my readers I say: Use your best
judgment in deciding whose theory better respects the human
capacity for choice, mine or Professor Machan’s.
Fourth, Machan in fact needs to rely on moral judgment, not
just as regards applying his libertarian principles, but even as re-
gards defining the content of the principles themselves. Machan,
for instance, recognizes a right of self-defense (pp. 6, 9). Surely,
though, this is only a right to take reasonable measures in my
own defense. If I learn that Harry the Hit Man intends to kill me
next week, for instance, I do not have the right to shoot him to-
day as he eats his Big Mac in peace, in a preemptive attack. By
contrast, if Harry is swinging a knife at me at close quarters this
very moment, then I do have the right to defend myself with
lethal force. In the spectrum of cases between these two ex-
tremes, however, where exactly do we draw the line between
reasonable and unreasonable uses of force? It is not always an
easy line to draw; often much judgment is required.1
Much the same is true of other libertarian principles. Lib-
ertarians will have to distinguish between recklessness (as in
reckless driving, say) that rises to the level of criminal negli-
gence and recklessness that falls short of this level—and like-
wise with other elements of liability law. A key criterion in
drawing these lines will be whether or not a person has taken
reasonable precautions against harming others. Even Machan’s
beloved property rights will be subject to judgments of rea-
sonableness, moreover, for the degree of control that one has
over one’s legal property should surely not be absolute. If I live
near neighbors, for instance, the fact that I own my front yard
does not mean I should be able to play my trumpet on it at
three AM, or burn bonfires on it, or have afternoon sex with my
partner on it, or fence it in and raise smelly pigs on it, or host
bare-knuckled fighting competitions on it, or some other such
thing. Accommodating the reasonable demands of others is
a necessary element of life in society, and plausible principles
of property must recognize this. Drawing the line between
148 / Chapter 6

reasonable and unreasonable demands, though, requires

moral judgment. I cannot see that the task of drawing this line
is any less “intuitive” than the task, say, of drawing the line be-
tween fair and unfair levels of economic opportunity—a line
that my theory regards as important.2

2. On Democracy

According to Professor Machan, my defense of democratic lib-

eralism is guilty of “ignoring the most important problem
with democracy, namely, its proneness to be illiberal” (p. 130).
Moreover, I “fail to raise a most important question, namely,
about the proper scope of either direct or representative democ-
racy” (p. 131). But in fact I devoted an entire section of chap-
ter 4 to a discussion of individual rights (namely, section 4,
“The Dignity-Based Conception of Rights”). When en-
trenched in a constitution, these rights will limit the authority
of democratic legislators. Thus it is hardly the case that ac-
cording to my theory democratic authority is boundless.3
It is true that the individual rights that my theory recog-
nizes are not as expansive as the rights that Machan’s liber-
tarian theory recognizes. But this is a strength of my theory,
not a weakness, for Machan’s theory excessively constrains the
authority of democratically elected legislators. According to
Machan, legislators’ authority is restricted to crafting laws
that apply libertarian principles to novel situations—say,
defining property rights as regards software programs, genet-
ically engineered plants, and so on. In his own words: “Be-
yond electing those who would carry out such a function [i.e.,
applying libertarian principles to new situations], all in sup-
port of assisting in the maintenance of justice as per the basic
constitutional tenets, democracy has no place in a free society”
(p. 134). Instead, whenever legislators veer away from liber-
tarian principles, their laws will be voided by a libertarian ju-
diciary tasked with “the job of striking down decisions that
violate the rights of individuals” (p. 133).
 Democratic Liberalism Defended / 149

In other words, in Machan’s ideal “free society” libertari-

anism is not up for debate. If you are not a libertarian, too bad;
you still only get to vote for legislators who must operate
within the stringently defined boundaries set by libertarian
judges. Do you think there should be minimum-wage legisla-
tion? Machan’s ideal judges will strike it down, if you manage
to get such legislation passed. Do you think there should be
environmental regulation? Machan’s ideal judges will strike it
down, if you manage to get it passed. Do you think there
should be anti-discrimination legislation? Machan’s ideal
judges will strike it down, if you manage to get it passed. And
so on. Machan’s “free society” is actually a society ruled by an
elite corps of libertarian judges, who have the final say on vir-
tually every piece of legislation.
That is not the case in the democratic liberal society I en-
vision. It is true that the judiciary will rule out some possible
laws; legislators cannot ban synagogues, or censor political
debate, or stop African Americans from voting, etc. But there
will be much democratic debate over tax legislation, environ-
mental regulations, corporate law, minimum-wage legisla-
tion, property rights, health care, education policy, campaign
finance, and so on. On my theory, policy in these areas is to be
set by elected legislators, rather than unelected judges. If you
have views on these matters—indeed, if you have libertarian
views on these matters—then you can vote for politicians who
support your views, or you can run for office yourself. Surely
this is a fairer way of resolving disagreements in politics than
Machan’s way of restricting legislators only to debating the
best way of applying his own theory. Libertarians’ excessive
truncation of democracy is thus yet one more instance of their
regrettable blindness to the importance of fairness.

3. On Freedom and Discrimination

Machan objects to my understanding of freedom in terms of

people’s ability to give shape to their lives. He concedes that
150 / Chapter 6

there are coherent conceptions of freedom that focus on a per-

son’s abilities to choose; as he notes, after winning some cash
you may exclaim, “Finally, I am free to help out the causes I
wasn’t able to support in the past.” Or, “At last I am free to get
my fitness program under way at a proper gym where I can
now obtain good advice” (p. 134). However, Machan goes on
to deny the political relevance of conceptions of freedom that
focus on ability. Indeed, we can agree with the concrete exam-
ples he cites. Government should not worry about whether
you have a superb personal trainer or about whether you are
able to give to as many charities as you would wish.
Other examples, however, reveal that ability-based concep-
tions of freedom are often politically relevant. Imagine for in-
stance a cancer-stricken person in the 1960s learning of the
passage of Medicaid legislation creating government-funded
health care for the poor. “Finally,” the person might say, “I am
free to get treatment for my leukemia, which so far I haven’t
been able to afford on my wages as a hotel maid.” Or imagine
an African-American teenager, full of dreams, on the passage of
the 1964 Civil Rights Act banning racial discrimination in em-
ployment. “At last,” she thinks to herself, “I am free to escape
the poverty in which I was raised.” Are these gains in freedom
really politically irrelevant? Should we really say, as Machan
must, that while health care and the absence of discrimination
increase freedom on some conceptions of freedom, these con-
ceptions are not ones that matter for politics? Surely not. For re-
call that both Machan’s libertarianism and my democratic
liberalism claim to be founded on an ideal of respect for the
unique human capacity of choice. How then can it always be
politically irrelevant what people are actually able to choose?
Machan makes it quite clear, however, that abilities to
choose are indeed politically irrelevant on his view, even when
a person’s abilities to choose are limited by racial discrimina-
tion. He writes: “Even such issues as racial discrimination are
arguably mainly ethical in their nature, not political, unless the
discrimination occurs within the processes of the administra-
 Democratic Liberalism Defended / 151

tion of laws” (p. 135). By way of illustrating this point, he

notes, “If I discriminate for reasons of race or sex in my market
transactions—say, I refuse to patronize a shop at the mall be-
cause the clerks there are women or black or have some other
attributes that are irrelevant to their performance as clerks—I
am doing something most likely to be morally wrong but not
violating anyone’s rights” (ibid.).
Regarding our economic decisions as consumers, Machan
may well be right. But change the example to our economic de-
cisions as employers (an example that Machan does not explic-
itly consider), and things look different: “If I discriminate for
reasons of race or sex in my market transactions—say, I refuse
to hire any blacks or women in my law firm or factory—I am
doing something most likely to be morally wrong, not, how-
ever, violating anyone’s rights.” This is far less plausible. After
all, my economic power as an employer is often much, much
greater than my economic power as a consumer (for I am just
one of thousands or even millions of consumers). As such, it is
of public concern when as an employer I use my power over
others in a discriminatory way, a way that fails to respect the
dignity of those others. This is not typically the case with the
much less concentrated sort of power that consumers possess.
These reflections reveal that libertarians’ rejection of anti-
discrimination employment legislation is a serious flaw. More
needs saying, though, for some people will agree with libertar-
ians’ rejection of anti-discrimination legislation, on the alleged
grounds that racial discrimination is no longer a significant
phenomenon in the U.S. economy. In response to such people,
two points are in order. First, it is important to note that liber-
tarians do not just oppose anti-discrimination laws in contem-
porary America; they oppose it at all times and all places. So to
African Americans living in the Jim Crow South prior to the
civil rights era, libertarians could say only, “We will dismantle
laws that legally require discrimination. But we will not pass
laws forbidding discrimination by business owners and employ-
ees. If you don’t want a person to discriminate against you,
152 / Chapter 6

then talk to him or her and convince him or her of the wrong-
ness of discrimination.”
Is this enough? No doubt eradicating legally required dis-
crimination is necessary. But it is not enough. Writing in 1955,
the eminent historian C. Van Woodward observed,

Right here it is well to admit, and even to emphasize, that

laws are not an adequate index to the extent and prevalence of seg-
regation and discrimination practices in the South. The practices
often anticipated and sometimes exceeded the laws. It may
be confidently assumed—and it could be verified by present
observation—that there is more Jim Crowism practiced in
the South than there are Jim Crow laws on the books.4

In other words, Jim Crow laws often merely ratified in law

various practices that already existed and were able to sustain
themselves without the law. Hence merely dismantling the laws
is not enough. And this is one example of many. Consider too
how sex discrimination in the past went well beyond whatever
sex discrimination the law required.5 Consider as well the case of
modern India, where caste discrimination continues to exist in
ample measure despite not being required by law.6 To a low-
caste individual who calls for a legal ban on caste discrimination,
a libertarian like Machan can only say, “No, sorry, such legal ac-
tion would be unjust; it must not be done.” “But caste itself is
gravely unjust!” the individual will likely—and rightly—retort.
The second point in response to critics of anti-discrimination
law is this: It is unfortunately not the case that in the United
States racial discrimination is a thing of the past. The most
convincing evidence of continuing job discrimination comes
from “audit studies,” in which black and white testers are
given resumes identical in terms of education and job quali-
fications; they then apply for jobs, go for interviews, etc., and
in the process differences of treatment are noted. In a dra-
matic recent study, sociologist Devah Pager had four college-
educated testers, two black and two white, apply to 350
entry-level jobs in the Milwaukee area. Their qualifications
were designed to be the same, with the one exception that
 Democratic Liberalism Defended / 153

within each black pair and each white pair one of the testers
reported that he had spent eighteen months in prison for co-
caine possession. Alarmingly, the white tester who reported a
criminal record was more likely to be called for an interview
(called back 17 percent of the time) than was the black tester
with no criminal record (called back 14 percent of the time).7
Simply being black is apparently more of a liability in the cur-
rent job market than is being a convicted felon.
Other studies back up these results. Economists Marianne
Bertrand and Sendhil Mullainathan, for example, recently sent
out five thousand résumés to 1,300 employers advertising job
openings in Boston and Chicago. The résumés were con-
structed to be identical in quality, the one difference being that
the names on some were black-sounding names like “Jamal”
and “Lakisha,” whereas the names on others were white-
sounding names like “Emily” and “Greg.” Disturbingly, appli-
cants with white-sounding names were 50 percent more likely
to be called for interviews than were those with black-sound-
ing names.8 These studies and others9 reveal a continued need
for anti-discrimination law.10

4. On Libertarianism and the “Founding Fathers”

Machan spends a good portion of his critique reaffirming his

opposition to taxation. In my critique of libertarianism in
chapter 2, I said why Machan is wrong to think that taxation
is always unjust, no matter the type or amount of taxation.
Rather than repeat those points here, I want instead to com-
ment on Machan’s attempt to link his opposition to taxes with
the views of America’s founding fathers.
As he did in his defense of libertarianism in chapter 1,
Machan in his critique of my view appeals to the Declaration of
Independence, written by Thomas Jefferson—in particular, to
its mention of the unalienable rights to “life, liberty and the
pursuit of happiness” (p. 135; cf. pp. 4, 5, 28). Machan interprets
this phrase as supporting his own libertarian conception of
154 / Chapter 6

rights. Jefferson and other founding fathers did not interpret it

this way, however; Machan admits this himself when he notes
(p. 136) that the founders opposed not taxation in general as he
does but rather taxation without representation.11 In fact, Jeffer-
son’s choice in the Declaration to speak of “life, liberty, and the
pursuit of happiness” rather than the Lockean threesome of “life,
liberty, and property,” is itself significant. Remarkably, when the
Marquis de Lafayette, the statesman and principal author of the
French 1789 Declaration of the Rights of Man and Citizens, sent
Jefferson a draft of this document and invited him to comment
upon it, Jefferson returned it with the words “right to property”
bracketed and replaced by “pursuit of happiness.”12 For Jeffer-
son, property rights were important, but important mainly as
instruments for the promotion of human happiness; when
property law stands in the way of human happiness, it is in
need of reform.
Other writings of Jefferson confirm the instrumental view
he took of property rights. In an important letter to James
Madison, for instance, Jefferson pens a passage that is worth
quoting at length:

I am conscious that an equal division of property is imprac-

ticable. But the consequences of this enormous inequality
producing so much misery to the bulk of mankind, legisla-
tors cannot invent too many devices for subdividing prop-
erty, only taking care to let their subdivisions go hand in
hand with the natural affections of the human mind. The de-
scent of property of every kind therefore to all the children,
or to all the brothers and sisters, or other relations in equal
degree is a politic measure, and a practicable one. Another
means of silently lessening the inequality of property is to
exempt all from taxation below a certain point, and to tax
the higher portions of property in geometrical progression
as they rise. Whenever there is in any country, uncultivated
lands and unemployed poor, it is clear that the laws of prop-
erty have been so far extended as to violate natural right.
The earth is given as a common stock for man to labour and
 Democratic Liberalism Defended / 155

live on. If, for the encouragement of industry we allow it to

be appropriated, we must take care that other employment
be furnished to those excluded from the appropriation.13

While Jefferson here recognizes that strict equality is not

an achievable goal, he clearly approves of measures to reduce
inequality, including progressive taxation and public employ-
ment for those who cannot find work.
We can also note non-libertarian views among other influ-
ential thinkers at the time of the founding of the United
States.14 Benjamin Franklin, for instance, takes a line nearly
identical to the line I defend in chapter 2, writing that:

all the property that is necessary to a Man, for the Conserva-

tion of the Individual and the Propagation of the Species, is
his natural Right, which none can justly deprive him of: But
all Property superfluous to such purposes is the Property of
the Publick, who, by their Laws, have created it, and who
may therefore by other laws dispose of it, whenever the Wel-
fare of the Publick shall demand such Disposition. He that
does not like civil Society on these Terms, let him retire and
live among Savages. He can have no right to the benefits of
Society, who will not pay his Club towards the Support of it.15

Sounding a similar note, Thomas Paine, the author of the

famous pamphlet Common Sense (which probably did more to
galvanize support for revolution against Britain than any
other piece of colonial writing), writes as follows in his pam-
phlet Agrarian Justice (1797):

Separate an individual from society, and give him an island or

a continent to possess, and he cannot acquire personal prop-
erty. He cannot be rich. So inseparably are the means con-
nected with the end, in all cases, that where the former do not
exist the latter cannot be obtained. All accumulation, there-
fore, of personal property, beyond what a man’s own hands
produce, is derived to him by living in society; and he owes on
every principle of justice, of gratitude, and of civilization, a
156 / Chapter 6

part of that accumulation back again to society from whence

the whole came.16

Obviously, Mr. Paine was no libertarian.

I do not mean to charge Machan with wrongly thinking that
the founding fathers shared his views on every point. He is
surely aware they did not. The passages quoted above, however,
should succeed in countering the false impression that Machan
creates, namely, that Thomas Jefferson and the other founding
fathers shared his basic libertarian foundation but just failed
consistently to follow through with its implications in every de-
tail. Moreover, whatever the founding fathers thought, we
should of course not defer uncritically to past thinkers, but in-
stead think for ourselves. I am certain Professor Machan would
agree. Ironically, so does Thomas Jefferson. I wish to end, then,
on a point of agreement, by quoting Jefferson himself:

But I know also, that laws and institutions must go hand in

hand with the progress of the human mind. As that becomes
more developed, more enlightened, as new discoveries are
made, new truths disclosed, and manners and opinions
change with the change of circumstances, institutions must
advance also, and keep pace with the times. We might as
well require a man to wear still the coat which fitted him
when a boy, as civilized society to remain ever under the
regimen of their barbarous ancestors.17

Notes
1. For some idea of the moral subtleties involved, see Judith Jarvis
Thomson, “Self-Defense,” Philosophy and Public Affairs 20 (1991): 283–310.
2. I explore fairness via the notion of desert in section 7 of chapter 4. I
mention this here because in his critique in chapter 5 Machan spends a good
deal of time (pp. 139ff.) criticizing John Rawls for his attack on notions of
desert. Whatever its merits against Rawls, however, this criticism does not
impugn my defense of democratic liberalism, since far from attacking
desert, I showed how notions of desert support democratic liberalism rather
than libertarianism. Any theory that allows luck as large a role in determin-
 Democratic Liberalism Defended / 157

ing people’s fates as libertarianism does is a theory that assuredly fails to re-
spect claims of desert.
3. Machan also errs interpretively in referring to me as a democratic social-
ist (p. 138). Socialism is defined as an economic system in which the means of
production are publicly owned. I am not convinced that such a system is work-
able, at least not without unacceptable costs in other values besides fairness. So
I am in favor of a regulated capitalist economy, and hence am not a socialist.
Perhaps as debates between capitalists and socialists continue, and as socialist
models get defended in ever more detail, I will eventually be persuaded. (The
most likely contender is David Schweickart’s “market socialist” model, which
has no capital markets but does have competitive markets for consumer goods
and factors of production. See David Schweickart, After Capitalism [Lanham,
Md.: Rowman and Littlefield, 2002].) For now, though, I see no alternative to
some form of capitalism. Fortunately there are many such forms. I favor the
form that (as I argue in chapter 4) best respects human dignity.
4. C. Vann Woodward, The Strange Career of Jim Crow (Oxford, U.K.: Oxford
University Press, 1955), 102 [emphasis in the original]. Quoted in Samuel
Freeman, “Illiberal Libertarians: Why Libertarianism Is Not a Liberal View,”
Philosophy and Public Affairs 30 (2001): 135. Freeman argues that libertarianism
ought not to be considered even a version of classical liberalism, inasmuch as
(among other reasons) it shuns all legal devices for combating castelike priv-
ileges—privileges that liberalism from its inception has always opposed.
5. Moreover, sex discrimination still exists. For evidence, see Ian Ayres,
Pervasive Prejudice? Unconventional Evidence of Race and Gender Discrimination
(Chicago: University of Chicago Press, 2003). In speaking of past sex dis-
crimination, my point above is that even when sexual discrimination in pri-
vate employment was as blatant and severe as it was in the past, a
libertarian government would have been powerless to do anything about it.
6. For evidence of the reality of caste discrimination in contemporary In-
dia, see Human Rights Watch, Caste Discrimination: A Global Concern (2001),
available online at www.hrw.org/reports/2001/globalcaste/. Sex discrimi-
nation is also a large problem in India. On this see Martha Nussbaum, “Sex,
Laws, and Inequality: India’s Experience,” Daedalus 131 (2002): 95–106.
7. Devah Pager, “The Mark of a Criminal Record,” American Journal of So-
ciology 108 (2002): 937–75.
8. Sendhil Mullainathan and Marianne Bertrand, “Are Emily and Greg
More Employable than Lakisha and Jamal? A Field Experiment on Labor
Market Discrimination,” American Economic Review 94 (2004): 991–1013; for
a brief summary of their research, see Alan B. Krueger, “Sticks and Stones
Can Break Bones, but the Wrong Name Can Make a Job Hard to Find,” New
York Times, December 12, 2002.
9. E.g., Marc Bendick Jr., Charles W. Jackson, and Victor A. Reinoso, “Mea-
suring Employment Discrimination through Controlled Experiments,” Review
158 / Chapter 6

of Black Political Economy 23 (1994): 25–48; Ayres, Pervasive Prejudice?; see also
the audit studies described in the U.S. Department of Housing and Urban
Development, Housing Discrimination Study 2000, an executive summary
of which is available online at www.huduser.org/Publications/pdf/
Phase1_Executive_Summary.pdf.
10. Libertarians sometimes argue that the invisible hand of economic
competition can be counted on to eliminate discrimination. This takes too
idealized a picture of economic competition. For a persuasive rebuttal, see
Cass Sunstein, Free Markets and Social Justice (New York: Oxford University
Press, 1997), chap. 6.
11. Jefferson writes: “I approved from the first moment of . . . the power of
taxation [in the new Constitution]. I thought at first that [it] might have been
limited. A little reflection soon convinced me it ought not to be.” Letter to Fran-
cis Hopkinson (1789), in The Writings of Thomas Jefferson, ed. Albert Ellery Bergh
(Washington, D.C.: Thomas Jefferson Memorial Association, 1903–1904), 7:300.
Quoted at etext.virginia.edu/jefferson/quotations/jeff1330.htm.
12. Richard K. Matthews, The Radical Politics of Thomas Jefferson
(Lawrence: University Press of Kansas, 1984), 28. This source makes clear
how removed Jefferson’s political philosophy is in many respects from
Machan’s libertarianism.
13. Letter to James Madison (October 28, 1785), in The Papers of Thomas
Jefferson, ed. Julian P. Boyd (Princeton, N.J.: Princeton University Press,
1950–1982), 8:681–82. Quoted at press-pubs.uchicago.edu/founders/
documents/v1ch15s32.html.
14. For a helpful overview of the variety of political ideologies that figured
in the public debate over ratification of the Constitution, see Isaac Kramnick,
“The ‘Great National Discussion’: The Discourse of Politics in 1787,” William
and Mary Quarterly 45 (1988): 3–32. For a collection of quotations from the
founding fathers specifically to do with property, see press-pubs.uchicago
.edu/founders/tocs/v1ch16.html. On equality, see press-pubs.uchicago.edu/
founders/tocs/v1ch15.html.
15. Benjamin Franklin, Letter to Robert Morris (December 25, 1783), in The
Writings of Benjamin Franklin, ed. Albert Henry Smyth (New York: Macmil-
lan, 1905–1907), 9:138. Quoted at press-pubs.uchicago.edu/founders/
documents/v1ch16s12.html.
16. Paragraph 59 of Thomas Paine, Agrarian Justice. An online version of this
work is available at www.thomaspaine.org/Archives/agjst.html. In this same
work Paine proposed that a national fund be created by a 10 percent tax on in-
heritances. From this fund would be paid old-age pensions (i.e., social secu-
rity), as well as grants to young adults to help them get started in the world of
work.
17. Thomas Jefferson, letter to Samuel Kercheval (July 12, 1816), in The
Works of Thomas Jefferson, ed. Paul Leicester Ford (New York: Knickerbocker,
1904), 12:12. Quoted in Matthews, Radical Politics, 22.
Index

ability: to give shape to a life. Bertrand, Marianne, 153

See shape, ability to give to a Bible, the, 79
life; and freedom, relation to. Buffett, Warren, 61
See freedom Bush, George W., 98
absolutism, moral, 120
Adams, Marilyn McCord, 80 campaign finance. See democracy
addiction, 83 capabilities approach, the, 27–28
adults, contrasted with children. capitalism, 18, 100, 157
See children Card, David, 113
affirmative action, 29–36 caste, 152, 157
African–Americans, 31–32, CEOs, salaries of, 108–109, 138
34–36, 115, 150 charity, 22, 57–61
anarchism, 6, 50 childcare. See children
animals, non-human, 120, 129 children, 64, 69, 92, 118, 142;
anti-discrimination law. See childcare, 118; contrasted
discrimination with adults, 81–82; feral, 87;
Aquinas, Thomas, 14, 79, 146 rights of, 120.
Aristotle, 15, 71, 87, 130, 141, 145; choice: human capacity for. See
Neo-Aristotelianism, 16, 129. responsible choice, human
association, right to freedom of. capacity for; real vs.
See rights technical, 84, 90.
atomism. See individualism Christianity, 16
Austrian school of economics, 17 Cicero, 145

159
160 / Index

citizenship, equality of. See corporate welfare. See welfare

equality corporations, structure of,
civil rights. See rights 112–13, 139–39
Civil Rights Act of 1964, 122, 150 Crusoe, Robinson, 14, 88, 119
civil society, 5 Cuba, 10, 130
classical individualism. See
individualism Declaration of Independence,
classical liberalism. See U.S., 3–5, 28, 43, 73, 153–54
liberalism Declaration of the Rights of
“Clean Money, Clean Elections” Man and Citizens, 154
system of campaign finance. defamation, 94
See democracy democracy, 4, 91, 96–100,
coercion, 5–7, 22, 38, 40, 69, 139. 130–34; campaign finance,
See also force 98–100; “Clean Money, Clean
collective action, problems of, 59 Elections” system of, 99–100;
Collier, Peter, 36 direct vs. representative
communism, 39 forms of, 96; and equality,
communitarianism, 68 relation to, 91, 98; and
Comte, August, 20–21, 68 fairness, relation to, 149; and
conscience, right to freedom of. freedom, relation to, 131–33,
See rights 142; vs. plutocracy, 98; proper
consciousness, 14–15, 81, 85 scope of, 131–34, 148–49;
conscription, 12, 22, 135, 137 proportional representation
consent, 8, 20, 27, 43, 54–57, 89; vs. winner-take-all electoral
tacit, 54–55, 121 systems, 97–98. See also vote,
consequentialism, 11, 40 right to
constitutions: constitutional law democratic liberalism. See
18; U.S. Constitution: liberalism
Fourteenth Amendment, 31, desert, 67, 69, 75, 104–113, 139,
33; Ninth Amendment, 142. 156; contribution-based
constraints, on choice. See definition of, 105–108; effort-
responsible choice, capacity based definition of, 105–106;
for individual vs. collective,
contract, right to. See rights 107–108; objective vs.
contribution-based definitions subjective criteria of, 105.
of desert. See desert determinism, 69–70, 140
cooperation, 8, 87–88, 129–30, dictatorship, 91
141; and competition, dignity: and capitalism, relation
relation to, 121. to, 157; and democracy,
 Index / 161

relation to, 96; diminishing of, continuing, 152–53; right to

82–83, 87, 89; discrimination, freedom from, 92, 95–96; sex
as insult to, 102; equal dignity discrimination, 152, 157
of humans, 80; exploitation, drugs, 19, 36–38
as insult to, 60; and freedom Dworkin, Ronald, 66
of expression, relation to, 93; dystopia, 39, 73
fundamental dilemma of,
88–89; insults to, 34, 87, 89, 94; earned income tax credit, 114
types of insults: infantilizing eclipse, as metaphor for
treatment of others, 86, 94; obscuring dignity, 84
instrumentalizing treatment economic power. See power
of others, 86, 102, 110; economic rights. See rights
nonentitizing treatment of education, 20, 64, 102–103, 121
others, 86, 102; refusizing effort-based definitions of
treatment of others, 86, 102; desert. See desert
stereotyping treatment of electoral systems. See democracy
others, 87, 115; libertarianism employee-owned firms, 112–13
as failing to protect, 50–52; ends, treating others as, 86
obscuring of, 84, 87, 89–90; as entitlements, 22
originating in the capacity for environmental policy, 17–18, 59,
responsible choice, 81–87; and 149
proportional representation, Epstein, Richard, 33
relation to, 98; John Rawls on, equality: of citizenship, 93, 96,
139-40; recognition of, 82, 89, 101, 115; and dignity, relation
91, 93–94. to, 80, 85–87; equal dignity of
diminishing dignity. See dignity humans, 80; and freedom of
direct vs. representative expression, relation to, 93; as
democracy. See democracy impossible to achieve, 73–74;
disabled people, 64, 120–21, lack of in United States, x,
125–26 108–110; libertarian
discrimination, 32, 135, 158; understanding of, 41, 128–29;
anti-discrimination law, 51, and material prosperity,
149, 151–52; caste relation to, 63; origin of
discrimination, 152; as a ideals of, 69; Thomas
constraint on freedom, Jefferson on, 154–55; of
149–53; as contrary to opportunity. See opportunity
equality of opportunity, society as a threat to, 89, 91; as a
101–2; racial discrimination, threat to liberty, 65–66. See
101–102, 122; evidence of also democracy
162 / Index

Etzioni, Amitai, 14 free-riders, 60

exploitation, 47, 51, 110; free- free will. See freedom
riding as a form of, 60. freedom, 40, 42, 100; and ability,
expression, right to freedom of. relation to, 134, 139, 149–50;
See right of association. See rights of
conscience. See rights
fair equality of opportunity. See constraints on, 89–91; and
opportunity dignity, relation to, 85; as
fairness, 4, 48, 63, 69, 70, 103; essential to human
democracy, relation to, 149; flourishing, 24; of expression.
and desert, relation to, 156; See rights of markets, 17,
and equality, relation to, 41, 137–48; free markets and
68; exploitation as a form of, desert, relation between,
51; fair equality of 104–113; negative freedom,
opportunity. See opportunity 10–11, 49, 74, 76; vs. positive
fair trial, right to. See rights freedom, 28, 140; of religion.
fairness rights. See rights See rights of the will, 14, 75,
as not a legitimate goal of 82, 139–40. See also
government, 4 democracy; rights
families: connections of, 103;
culture of, 103 gambling, 19
Federal Reserve, the, 116 Gates, Bill, 71
feral children. See children Ghana, 34
feudalism, 138 globalization, 9, 11
firing, power of. See power. God, 16, 75, 79–81, 93
first-class citizens. See Good Samaritan laws, 28, 44
citizenship, equality of Gray, John N., 14
Flynt, Larry, 106 Great Depression, 138
force, 9, 12, 50, 84; vs. coercion,
5–6; as contrary to Hayek, F. A., 76
libertarianism, 23, 38, 40, 69. health and safety laws, 51,
See also coercion 58–59, 112
formal equality of opportunity. health care/health insurance,
See opportunity 20, 114–15, 124–25, 150
“Founding Fathers,” 137, 153–56 hell, 79
Fourteenth Amendment. See Helvétius, 122
Constitution, U. S. hiring, power of. See power
Franklin, Ben, 155 Hitler, Adolf, 131
free markets. See freedom Hobbes, Thomas, 16, 25, 75
 Index / 163

Holmes, Jr., Oliver Wendell, 136 joint production, economy as a

human nature, 146; materialist system of, 119
theory of, 139–40; as social, 8, judgment, moral, 146
68, 87 judiciary, function of in
human rights. See rights libertarian society, 133, 148–49
Hume, David, 54 justice, 6, 14, 31–32, 42, 130,
134–35
ignoring others’ capacity for
choice. See responsible Kant, Immanuel, 70, 82, 86, 140
choice, capacity of Kerry, John, 98
impairing others’ capacity for King, Jr., Martin Luther, 101–102
choice. See responsible knowledge, realistic conception
choice, capacity of of, 23
impartiality, 75 Krueger, Alan, 113
incitement to riot, 94 Krugman, Paul, 109
India, xii, 152
individualism, 11, 14–18, 68; labor laws, 111–12, 124. See also
atomistic theory of, 14–16; unions
classical theory of, 15, 17 labor unions. See unions
Industrial Revolution, the, Lafayette, Marquis de, 154
58–59 laissez-faire economy, 58
inequality. See equality left-libertarianism, 63
infantilizing treatment of others. legitimacy, liberal principle of, 89
See dignity, insults to liability, law of, 147
inferiors, treating others as, 87 libel, 94–95
initial acquisition, as problem liberalism: classical, 4–5, 9, 22,
for property rights. See rights 68, 128–29, 142, 157;
instrumentalizing treatment of democratic, 80, 91
others. See dignity, insults to liberty. See freedom; rights,
insults to dignity. See dignity negative
integrity, bodily, 92 life, right to. See rights, negative
intuitions, moral, 67–68, 75, life, shape of a. See shape,
127–29, 145–48 ability to give to a life
Iran, 10 Lincoln, Abraham, 7, 102
Iraq, 10 Locke, John, 8, 23, 41, 54, 64,
121, 128, 146
James, William, 81, 127 lotteries, as a way to fund
Jefferson, Thomas, 153–56, 158 government, 137
Jim Crow laws, 151–52 luck, 66, 104, 156
164 / Index

Macpherson, C. B., 14 equality of opportunity,

Marx, Karl, 14, 16–18, 39, 68 102–104; formal equality of
materialist view of human opportunity, 101.
nature. See human nature Otis, James, 136
Maugham, Somerset, 67, 127 overtime pay, 51, 59
means, treating others as. See
instrumentalizing treatment Pager, Devah, 152
of others Paine, Thomas, 155, 158
mercantilism, 138 paternalism. See infantilizing
minarchism, 6 treatment of others
minimum wage legislation, 51, Personal Responsibility and
59, 113–14, 138 Work Opportunity
Minnesota Family Investment Reconciliation Act of 1996.
Plan. See welfare See welfare
More, Sir Thomas, 39 personal rights. See rights
Mullainathan, Sendhil, 153 Pitt the Younger, William, 37
multiculturalism, 41 plutocracy, 98
murder, 23, 50, 61, 74, 92 political power. See power
political rights. See rights
NAIRU, 116, 125 positive freedom. See freedom
natural rights. See rights positive liberty. See freedom
needs, 27, 88 positive rights. See rights
negative freedom. See freedom poor people, aid to. See poverty;
negative liberty. See freedom welfare
negative rights. See rights poverty, 12, 90, 114–16, 118, 124
Nielsen, Kai, 66 power: economic , 51, 63, 112,
neo-Aristotelianism. See 114–115, 151; to fire, 51, 112,
Aristotle 114; relations of, as
Ninth Amendment. See generating rights to fair
Constitution, U. S. treatment, 53–54; to hire, 51;
nonentitizing treatment of need for accountability, 112;
others. See dignity, insults to political, 51, 112; to
North Korea, 10, 130 promote, 51
Nozick, Robert, 20, 41 precautionary principle, the, 18
Nussbaum, Martha, 27–28, 129 prior restraints, 19
privacy, right to. See rights
obscuring of dignity. See dignity promotions. See power to
opportunity, economic, 52–53, promote
148; equality of, 73–74; fair property, right to. See rights
 Index / 165

proportional representation. See human dignity, 81–87;

democracy regulations, government, 19
Proposition 209, 30 religious freedom, right to. See
prostitution, 12, 19 rights
public goods, 60–61 respect, 81–87, 102, 129, 147
punishment, 32, 92, 118 rich people, resentment of, 71–72
rights: of children. See children;
race to the bottom, the, 59 civil, 91; to contract, 92, 101,
racial discrimination. See 137; of disabled people. See
discrimination. disabled people economic, 91;
racism, 33–36 to a fair trial, 22, 52–54, 92;
Rand, Ayn, 15 fairness rights, 52–54, 64; to
rationality, 13–14, 23 freedom from discrimination.
Rawls, John, 67, 69–70, 75, 89, See discrimination to freedom
102, 127, 139–40, 156 of association, 33, 91, 121; to
reasonableness, 89–90, 94–95, freedom of conscience, 92, 121;
147–48 to freedom of expression,
reciprocity, 47–48, 51, 110, 91–95, 121, 134; to freedom of
117–119 religion, 13, 121, 134, 137;
recognition, of dignity. See human, 24, 46, 120; to liberty.
dignity See rights, negative moral, 46;
redistribution. See wealth natural, 128–29, 145–46;
referees, 6, 8, 88 negative rights: as prohibiting
refusizing treatment of others. intrusions, 20, 22–23; to
See dignity, insults to liberty, 26, 76; to “life, liberty,
responsible choice, human and the pursuit of happiness,”
capacity of: as deserving of 4, 5, 28, 65, 73, 129, 135,
respect, 81–87; failing to 153–54; personal, 91–92;
respect this capacity, ways of: political, 91; positive rights:
by constraining it, 82–84, and fairness rights, relation to,
87–90; by ignoring it, 82, 87; 52–54; and freedom, relation
by impairing it, 82–83, 87; as to, 42–43; libertarian rejection
foundation for both of, 20–29; to privacy, 92, 95,
libertarianism and 103; to property, 72, 92; as a
democratic liberalism, 45–46, basic right, 38; initial
50, 146; and free will, relation acquisition, problem of, 49–50;
to, 82, 139–40; mental libertarian right to, as lacking
prerequisites of, 81; nurturing foundation, 45–50; as non-
of, need for, 87; as source of absolute rights, 100–101, 147;
166 / Index

secures personal sphere of South Africa, 130

jurisdiction, 13; Thomas sovereignty, of individuals, 7, 20
Jefferson on, 154–55; to self- Soviet Bloc, the, 137
defense, 6, 9, 147; to vote, 22, Steele, Shelby, 36
52–54, 92, 98, 131, 142; stereotypes. See dignity,
unalienable rights, 4, 73, 137, insults to
153. subjectivism, moral, 16, 25
Rousseau, Jean Jacques, 66, 131 Sunstein, Cass, 66
Rowan, Carl, 30 Supreme Court, United States, 94
Russian Revolution, the, 11 Sweden, 55

safety net. See social safety net tacit consent. See consent
secession, 55–56 taxation: aimed at wealth
second-class citizens. See redistribution, 66;
citizenship, equality of alternatives to, 137–138; vs.
security, 52, 60 charity, 57–61; as consistent
self-defense, right to. See rights with property rights, 101; as
self-governance, 20 contrary to freedom, 27, 135;
self-sufficiency, as a misleading as a form of theft or
ideal, 119 extortion, 26, 74, 136; “no
Sen, Amartya, 27–38, 139 taxation without
sex discrimination. See representation,” 136; as not a
discrimination form of theft or extortion,
sexual harassment, 51, 94, 113 46–48; universities supported
shape, ability to give to a life, by, 137, 143.
90–91, 93, 95–96, 100, 134, 149 Taylor, Charles, 7, 14, 68
skepticism, 24 theft, 23, 26, 46, 50, 61, 72, 74
slander, 94 Third Reich, the, 130
slavery, 11, 67 threats, 84
Sleazo, Joe, 59
social contract, 54, 75, 137 unalienable rights. See rights
social mobility, 123 unemployment: insurance
social safety net, 114 against, 114; rates of, 116
social security, 114, 158 unions, labor, 112–13, 124
socialism, 28, 68, 100, 138, 157 utopian political thought, 38–39,
sociality, human. See human 81, 140
nature
society, conception of, 87–88, Valjean, Jean, 26
120, 129–30 Versailles, 71
 Index / 167

voluntary exchange, 49, 67 126; “welfare queens”

vote, right to. See rights stereotype, 115; welfare
state, 138; work
Walton, Sam, 71 requirements, 117–18, 126
war, 41 wergild system, 80, 119
wealth: redistribution of, 66, 68, Whitacre, Ed, 109
76; resentment of. See rich winner-take-all electoral
people systems. See democracy
Weimar Republic, 131 work requirement, in welfare
welfare: abuse of, 117; system. See welfare
corporate, 138; Minnesota workers councils, 112–13
Family Investment Plan, workplace safety. See health and
126; Personal Responsibility safety laws
and Work Opportunity
Reconciliation Act of 1996, Zakaria, Fareed, 131
About the Authors

Craig Duncan is Assistant Professor of Philosophy at Ithaca

College in Ithaca, New York.

Tibor R. Machan is R. C. Hoiles Professor of Business Ethics

and Free Enterprise at Chapman University in Orange, Cali-
fornia.

169