Feser, War, and Libertarianism

by David Gordon

In the last of a series of three posts on a blog for conservative philosophers called Right Reason, Professor Edward Feser has raised disturbing charges against Murray Rothbard’s libertarianism. The “Rothbardian view of the world,” he claims, “is radically subversive and paranoid.” Rothbard’s worldview “parallels Marxism” and is incompatible with natural law and the teachings of the Roman Catholic Church. Catholic supporters of Rothbard are “acolytes of St. Murray of the Holy Anarchy.”

Feser’s harsh remarks are the latest stage of a remarkable intellectual evolution. A scant three years ago, he was himself still a libertarian. In his excellent book On Nozick, published in 2003, he presented a strong defense of the libertarian self-ownership principle and Lockean property rights. Though by no means a Rothbardian, Feser treated Rothbard with respect. He adopted, e.g., Rothbard’s view that all rights are property rights. [1]

Feser at one time maintained that libertarianism was consistent with traditional morality. In “What Libertarianism Isn’t” (2001) written for the same Lew Rockwell site that he now denounces, he called for an alliance between moral traditionalists and libertarians. Libertarianism, he was anxious to claim, was by no means to be equated with the libertine and anti-traditional views of some of its exponents.

So far, so good; but as time went by, Feser came more and more to see a tension between ordinary libertarianism and the demands of morality. His controversial article “Self-Ownership, Abortion, and the Rights of Children: Toward a More Conservative Libertarianism,” published in the Journal of Libertarian Studies (Summer 2004) displays a new stage of his views. As the title suggests, Feser still saw himself as a libertarian, but his libertarianism was, to say the least, idiosyncratic. There might be a libertarian case, he claimed, for restricting homosexual conduct, drug use, and other activities at odds with conservative morality. These vices, if allowed, might impede children’s character development. As Feser interpreted the self-ownership principle, children were entitled by it to a clean moral environment. Hence morals legislation usually taken to be quintessentially anti-libertarian was in fact fully libertarian.

The article aroused much discussion, but little support, among libertarian philosophers; and by the next year, Feser had repudiated libertarianism altogether. In his Hayek Lecture at the 2005 Austrian Scholars Conference, Feser stunned his audience. He devoted the bulk of his lecture to an assault on Murray Rothbard’s views. Contrary to Rothbard’s claims, he said, libertarianism could find no support in natural law. Though in practice the free market has much to be said for it, the absolute property rights defended by Rothbard must be abandoned. Instead, Feser supported a more limited view of these rights, as taught in Catholic social thought.

It is against this background that Feser’s latest remarks must be understood. After a long struggle, he had broken free from libertarianism: he could no longer reconcile libertarianism with traditional morality, as taught by the Catholic Church. How must he have felt, then, when he encountered the two volumes of Neo-CONNED! These volumes, which aroused Feser to fury against Rothbard and his followers, contained contributions that argued that the Iraq War manifestly violated Catholic teaching on just war. [2] The books reminded him that some people claimed to be both Rothbardian anarchists and conservative Catholics.  How dare they! Feser supports the war; here were writers who, by claiming that this view was obviously mistaken, challenged his own grasp of Catholic tradition. It was imperative, from his standpoint, that he strike back. Those he condemned as defenders of an un-Catholic social philosophy must not be allowed the upper hand.

But a slight obstacle confronted him. Pope Benedict XVI has denied that the American assault on Iraq is a just war. In a widely circulated statement made while he was Prefect of the Congregation of the Faith, the then Cardinal Ratzinger opposed a unilateral American attack. He noted that the “concept of a ‘preventive war’ does not appear in the Catechism of the Catholic Church.” His predecessor, Pope John Paul II, also strongly opposed the war.

His first thrust in response, though accurate enough, seems hardly sufficient. He notes that the Pope has not made his view of the war binding on Catholics; Feser is then free to disagree. But why do so? Feser answers with a bold stroke. The two popes themselves are in this area innovators: conservative Catholics will find better guidance to traditional teaching in various manuals, untainted by the dubious teachings of Vatican II, that he cites. Judged by these manuals, Feser thinks, a strong case can be made that the Iraq War is just.

I would not presume to instruct Catholics about the teachings of their Church, but Feser seems to me to rely on a dubious assumption. He takes for granted that the manuals he has consulted state the accepted pre-1960 position of the Church and that the views of the Pope and his predecessor depart from tradition. But several standard authorities from pre-Vatican II days argued that the conditions for just war are so stringent that they can rarely, if ever, be met. Cardinal Journet, e.g., states in The Church of the Word Incarnate, Volume I, pp.306–307: “After reading this specification [by St. Thomas] for a just war we might well ask how many wars have been wholly just. Probably they could be counted on the fingers of one hand.” Cardinal Journet was a well-known conservative, and the reformers of Vatican II viewed his great treatise on the Church as defending an overly hierarchical view. Cardinal Ottaviani, the principal opponent at Vatican II of the liberals, went so far as to say “that modern wars can never fulfill those conditions which. . . govern – theoretically – a just and lawful war. Moreover, no conceivable cause could ever be a sufficient justification for the evils, the slaughter, the destruction, the moral and religious upheavals which war today entails." (Quoted from Ottaviani’s  Institutiones Juris Publici Ecclesiastici [1947] in Neo-CONNED!  Just War Principles: A Condemnation of War in Iraq, pp.422–423)

But let us set this point aside. How well does Feser make his case, judging him by the manuals he himself cites? Feser proceeds methodically: he sets forward the standard criteria for a just war and argues that the Iraq War satisfies all of them. Unfortunately for his argument, he fundamentally misconceives his task. If he wants to justify the Iraq War, he must show that the actual war undertaken by President Bush is justified. It is not enough to claim that some military action or other against Iraq was justified.

Feser’s discussion of the just cause requirement illustrates this failing. He maintains that a number of reasons justified war against Iraq: the case for war cannot be reduced to one reason, such as the fear of WMD. Feser places principal emphasis on two of these reasons. Perhaps most important, Saddam Hussein violated the terms of the agreement ending the first Gulf War. He impeded the work of the inspectors who were to monitor whether he had disarmed. In response, could he not be forced to comply?

Feser is right that Saddam was often evasive and uncooperative when dealing with the inspectors; but in what way did his behavior threaten the United States or, for that matter, anyone else? Iraq was greatly weakened by the regime of sanctions and hardly in a position to menace other countries.

But what if Feser is right? He would in that case have provided an argument for compelling Saddam to allow the inspectors to proceed unimpeded. In no way would we have an argument for Bush’s policy of “regime change” and American military occupation and control of Iraq.

A similar problem affects the second of the two justifications that Feser finds compelling. He notes that, according to the manuals, just wars are not confined to self-defense. A state may use force to implement justice. Was not Saddam Hussein a brutal tyrant? If so, was not it not justifiable to “liberate” his subjects?

Once more, Feser goes too far. His argument at most supports a policy of aiding specific oppressed groups: How do we get to “regime change”? Michael Walzer, the leading specialist on just war among American political philosophers, has well stated the essential point: “[C]hange of regime is not commonly accepted as a justification for war. . .humanitarian intervention to stop massacre and ethnic cleansing can also legitimately result in the installation of a new regime [but] there is no compelling case to be made for humanitarian intervention in Iraq. The Baghdad regime is brutally repressive and morally repugnant, certainly, but it is not engaged in mass murder or ethnic cleansing; there are governments as bad (well, almost as bad) all over the world.” (Michael Walzer, Arguing About War [Yale, 2004], pp.148–49). [3]

One way of putting my contention is the United States has not acted with the right intention in its invasion of Iraq. American aims in Iraq have not been confined to redressing real or imagined just causes for war: Bush and his advisers aim at hegemony. To say this is not, as Feser thinks, to rely on dubious conspiracy theories. We do not have to guess Bush’s subjective motives; we have only to pay attention to American policy. Can he really doubt that Bush aims at hegemony over Iraq? This very fact constitutes the failure of right intention: the issue is not to guess at something further in the minds of the president and his chief advisers.

Elizabeth Anscombe (by the way a conservative Catholic as well as an outstanding philosopher), as usual, grasps the essence of the matter: “If war is to be just, the warring state must intend only what is just, and the aim of the state must be to set right certain specific injustices. That is, the righting of wrong done must be a sufficient condition on which peace will be made.”(“The Justice of the Present War Examined,” in G.E.M. Anscombe, Ethics, Religion, and Politics [University of Minnesota Press, 1981], p.74.) Although Anscombe thought that the German invasion of Poland on September 1, 1939 provided a valid cause for aiding Poland, she held that this did not suffice to justify British policy. The British war aims were unlimited; nothing short of total surrender could satisfy them. Hence the British war was unjust.

Surprisingly, Feser takes the right intention criterion to involve only subjective motives. Citing a manual by Austin Fagothey, he suggests that if there was an objectively good reason for war, “the badness of the subjective motives of those who initiated it does not by itself suffice to show that the war should be ended.” [4]   Perhaps not; but the point does not carry over if one takes account of the intention displayed in action as well as subjective motives. Here the wrong intention vitiates the action: it is not something that can be pared away, leaving a moral action intact. Feser says that one should not abandon an otherwise just war because of wrong intention. Given that 'so much blood and treasure has been lost in the enterprise', the cause should be pursued to the end; if the war continues, “the losses accrued so far will not have been in vain.” Is not the reply obvious? So long as the war continues, the wrong intention also continues. And as St. Thomas, almost as important an authority as Fagothey, long ago noted, a single wrong feature of an act makes the entire act wrong.

I fear that this argument would leave Feser unmoved. He thinks American hegemony is perfectly all right. America should act to preserve “world order,” acting when other nations cannot handle a problem by themselves. “If you want to call this ‘empire’ I [Feser] have no objection.” It is neither a pagan empire of the Roman sort nor “airy-fairy” Wilsonian idealism. Here he takes leave of the just war tradition altogether; where do his manuals endorse world domination by a single nation?

Feser’s account of the “last resort” criterion also leaves much to be desired. He rightly points out that this principle does not forbid all resort to war. One cannot rightly argue that because it is virtually always possible to carry on more negotiations, one can in practice never arrive at the last resort. He wrongly uses this point to claim that the Iraq War met the criterion. Were not negotiations going on since the end of the Gulf War? Was this not enough?

He ignores the fact that the head of the inspection, Hans Blix, asked for a few more months for his inspectors to complete their report. Bush refused, although (I suspect because) the findings of this report would bear crucially on the presence of WMD. “Regime change” would not wait. If Feser thinks this is following the last resort criterion, there is nothing more to say.

Feser has several times surprised me, but at one place he has shocked me. In commenting on treatment of prisoners of war, he notes that his manuals allow branding and mutilation as acceptable punishments, under certain circumstances. It does not follow that these are acceptable tactics in interrogation, and Feser hastens to add that he does not recommend these tactics. But he evidently agrees that they are not intrinsically immoral. How can one think otherwise? The manuals have spoken!

He cites one bad argument in support of this repellent position. If the death penalty is sometimes within the state’s power, then are not lesser punishments also allowable? This argument fails because there are other ways a punishment can be classified than degree of bodily harm. Whether a punishment is intrinsically degrading, failing to respect the criminal’s humanity, is not settled by how much physical damage it does. Would it not be unacceptable, e.g., to subject someone to the psychological torture of a fake execution, even though the victim by hypothesis suffers no physical injury? Branding and mutilation are, I suggest, intrinsically degrading and on that account always wrong, Feser and his manuals to the contrary notwithstanding.

It is also a bad argument to claim that because, if one accepts the manuals, branding and mutilation are not intrinsically immoral punishments, then very harsh interrogation tactics are also not intrinsically immoral. Perhaps harsh tactics  are allowable only for punishment. One cannot without further argument drop the context and say, “Harsh tactics are all right in punishment; therefore harsh tactics are not intrinsically immoral; therefore it is possible that harsh tactics are acceptable in interrogation.”

Feser does not confine himself to a defense of his own views on the just war tradition. He carries the fight to his Rothbardian opponents. He asks an excellent question. Rothbardians condemn the Iraq War as unjust, based on their understanding of the just war criteria. But how can they appeal to these criteria, when they reject the legitimacy of the state? The first of the standard criteria is that the war must be declared by lawful authority: only states, not private individuals, may legitimately make war. The just war criteria appear then to rule out anarchy.

Rothbardians disapprove of the state; but states exist and are unlikely soon to disappear. Given this unfortunate circumstance, we must ask, how can the state be limited? The just war tradition is a long established way of restricting aggression by the state: why then cannot someone appeal to it to condemn particular wars, even if he thinks no state legitimate? In like fashion, an anarcho-capitalist can condemn actions of the United States as unconstitutional, even if he thinks that there should not be a United States government at all.

Feser will no doubt respond that this is to use the just war criteria for one’s own ends: someone with this tactical view of the criteria does not really accept them. Are not Catholics required genuinely to adhere to the criteria? As such, must they not accept the legitimacy of the state?

I do not think the conclusion follows. A Rothbardian who fully accepted the criteria would then say that no war was justified, because the just authority criterion cannot be met. Private individuals, organized in protection agencies, could respond forcibly only if subjected to attack. What is the problem?

Alternatively, Catholic Rothbardians could favor modifying the lawful authority criterion so that well-established protection agencies meet its requirements. No doubt the manual worshippers would disapprove, but this hardly seems a decisive consideration.

Feser unfortunately does not confine himself to posing this excellent  question. He makes a number of other remarks about Rothbard’s worldview, most of which seem to me mistaken. After correctly noting that Rothbard regards the state as a criminal enterprise, he deduces from this that since the United States is the most powerful state, it is the greatest criminal enterprise. Its ostensible reasons for actions are always likely to conceal sinister motives. “In short, the United States is in the Rothbardian scheme of things an ‘Evil Empire’ and its actions in the world can be presumed to be the chief source of international tensions.”

This completely misconstrues Rothbard’s view. How peaceful or aggressive a state is can only be determined by the empirical record. From the fact that a state is more powerful than others, it does not follow that its actions are worse. Rothbard of course did take a very critical view of United States foreign policy, but this was the product of his detailed investigation of history. In like fashion, a socialist or communist government is not, in Rothbard’s opinion, necessarily more aggressive than its less economically interventionist rivals. Rothbard’s Cold War revisionism stemmed from his refusal to deduce foreign policy in the a priori manner Feser attributes to him. [5]

Feser goes on to suggest that Rothbard and his followers “ape Marxist themes.” They think “in capitalized abstractions, substituting ‘The State’ for [the Marxists’] “Capital’.” Nothing could be further from the truth. Rothbard insistently defended methodological individualism: “states” or “nations” are fully analyzable as individuals in certain relations and possess no independent power of action. Has Feser ever looked at America’s Great Depression or Conceived in Liberty? No one who has read these works could ignore Rothbard’s constant reference to individuals.

Feser’s other “parallels” between Marx and Rothbard are likewise devoid of merit. The basis of Marx’s system is the inevitable tendency of the forces of production to develop. The forces of production determine the relations of production, i.e., the contending economic classes and their roles in the economic process. The relations of production in turn determine the ideological superstructure. There is nothing in Rothbard’s system corresponding to this. Unlike Marx, Rothbard did not hold that economic class determines one’s beliefs. Rothbard believed in free will and was not a determinist at all.

Rothbard did not adhere to a philosophy of history, in the Marxist sense of an inevitable development of history toward some consummation. Rothbard certainly regarded the state as oppressive, but it hardly follows that he viewed history as “a long nightmare of oppression from which we are only now awakening.” When Rothbard postulates a conflict between government exploiters and oppressed subjects, he is not aping a Marxist theme. As Ralph Raico noted in an article of fundamental importance, exploitation of other classes by bureaucrats and public debt-holders “was a commonplace of 19^th century social thought.” Marx drew on the analysis of the French classical liberals in developing his own view of class conflict. (See Raico, “Classical Liberal Exploitation Theory: A Comment on Professor Liggio’s Paper,” Journal of Libertarian Studies, Volume 1, 1977.) Feser might with profit consult Rothbard’s brilliant discussion of Marxism in his Classical Economics, if he wishes to understand the differences between Rothbard and Marx.

Feser raises a philosophical objection to Rothbard’s libertarianism. Suppose one regards activities such as using illicit drugs and viewing pornography as intrinsically immoral. These activities do not violate libertarian rights (if one rejects the argument of Feser’s 2004 paper); hence a libertarian society cannot prohibit them. But if these activities are immoral, the libertarian is committed to a right to do wrong.

Such an alleged right is inconsistent with true natural law. According to natural law, the purpose of rights is to promote human flourishing. One cannot have a right to what is inimical to such flourishing. Rothbard missed this point because he wrongly based his version of natural law on bare human survival, rather than flourishing. [6]

Feser’s objection is not convincing. Of course, one does not have a “right to do wrong” under that description. But why cannot one have a right to do whatever does not initiate force? Someone with this right may wrongly choose to act immorally but not invasively. But if his activities are described in this way, no paradoxical claim of a specific right to do wrong is being made.

Feser might respond that this is a mere verbal evasion of his objection. People in Rothbard’s system are at liberty to engage in certain kinds of immoral activities, even if one chooses to speak only of a general right to freedom rather than specific rights to use drugs or view pornography. The objection turns not on a verbal paradox, but on the fact that natural law cannot recognize such an unrestricted right to freedom.

But why not? Why cannot Rothbard hold that people best flourish if they are free to choose for themselves how to conduct their lives, so long as they do not forcibly invade the rights of others? [7] Contrary to Feser’s views, Rothbard based his ethics on human flourishing, rather than bare survival. He remarks, e.g., that the “natural law, then, elucidates what is best for man – what ends man should pursue that are most harmonious with, and best tend to fulfill, his nature. (Ethics of Liberty, NYU Press, 1998, p.12)

Feser would of course, appealing to the ubiquitous manuals, reject this view of natural law. But I do not think he has shown that it is inconsistent. Is it, though, to be preferred to Feser's rejection of the liberty to do wrong? Here is one reason for thinking so: On Feser’s view, is it not objectively wrong to advocate in public mistaken religious views? Doing so may, after all, imperil people’s salvation. If the state allows the free expression of religion, is this not then a merely prudential matter? Freedom of conscience does not follow from natural law: “error has no rights.” The fifteenth error condemned by Pius IX in the Syllabus of Errors is that “Every man is free to embrace and profess that religion which, guided by the light of reason, he shall consider true.” Does Feser concur that this is an error?

Notes

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