Reply to Feser on Block

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Ed Feser’s recent Contra the Rothbardians yet again: A Reply to Walter Block is the latest entry in the author’s growing separation from libertarianism.

I’m sure Block will reply, but I jotted a few notes down when reading his piece, and assemble some of them here.

Large Scale Public Actions and Contract Enforcement. Feser writes:

I wrote only of large-scale public actions of a political or commercial type that have an inherent tendency to further the public legitimation of behaviors contrary to traditional morality.

A couple comments in response to this. First, this view would seem to argue that even private contracts between gays that attempt to mimic some of the legal rights married people have–such as rights of inheritance, custody of kids, visitiation/hospital rights, power of attorney, including medical power of attorney and living wills, and co-ownership of real estate, etc.–would not be enforceable. The courts would be justified in both monopolizing law enforcement and justice and courts, and in refusing to enforce even private civil agreements between gays. I guess they get to hold hands, and that’s about it. But as I have argued, private contracts between gays ought to be enforceable.The Trouble with Minarchy

Second, as indicated above, even if Feser’s moderate limitations on standard libertarianism are limited to very visible/large-scale behavior, and limitations thereon by a local government–his views seem to require a state, at least at the local level. After all, in anarchy, how is he going to say that a local government could in some cases be justified in restricting some publicly immoral/corrupting behavior? In other words, Feser’s views necessarily entail the existence of the state; so to that extent they are not libertarian, because libertarianism rejects aggression, and states require aggression. See my What It Means to be an Anarcho-Capitalist; Gene Callahan, The Most Crucial Gap in Politics. (NB: I think even when Feser was a libertarian he was a minimal-state type, not an anarchist.)

On Reluctant Aggressors

In my view, it’s a bit curious that Feser has renounced libertarianism but then seems not to like it when implications of this–such as not being completely opposed to all forms of aggression (for this is what it means to be a libertarian)–are pointed out. I have noted this many times. Those who are not pure or complete libertarians are of course impure because they do not oppose aggression 100%; they condone it in some cases. This is why they are not libertarians; if they did oppose aggression consistently, they would be libertarians. But they say they are not libertarians, yet bristle at having it pointed out that they actually do in some cases condone aggression.

I’ve seen this many times. For example, see some of my posts on the nature of aggression here, such as Feser’s reply to one of my replies (which was deleted from the L&P blog when I was banned for a while–but thank goodness for Google cache, eh?–see 1, 2, 3), and my The Trouble with Feser (on Libertarianism).

See also my post Minarchists as State-Aggressors; and similar interchanges with or comments on non-libertarians such as: Scott Richer and Thomas Fleming et al. (Fleming again); one Ralph Luker; Jonah Goldberg. Notice how Richert et al. wriggle and squirm, trying to deny that they actually do condone aggression. It’s kind of amusing.

On Taming Our Beasts Feser writes:

UPDATE: It occurs to me that some readers might wonder whether what I say above about a community prohibiting “large-scale public actions of a political or commercial type that have an inherent tendency to further the public legitimation of behaviors contrary to traditional morality” would entail the banning of books, political speech, and the like that defended liberal moral attitudes. The answer is no. As my JLS article makes clear, the context of my discussion was the question of what might, from the point of view of traditional morality, be detrimental to the moral development of a child. A thoroughly “pornified” popular culture, from which, as any parent knows, it is extremely hard to shield children without withdrawing from society altogether, is arguably detrimental in this way. But the existence of books and speeches arguing for a certain anti-traditional moral point of view is not. The former sort of thing has an inevitable impact on the sensibilities and inclinations of people exposed to it over time. The latter doesn’t.

This seems a bit naive. Does Feser think that people are so nuanced? I am reminded of one of my favorite Mises quotes:

No socialist author ever gave a thought to the possibility that the abstract entity which he wants to vest with unlimited power—whether it is called humanity, society, nation, state, or government—could act in a way of which he himself disapproves.

Local Government

the question I was concerned with in the article was simply that of whether the thesis of self-ownership per se automatically rules out all governmental measures by which a local community might seek to uphold a genteel “Main Street U.S.A.” ethos. It was not a defense of any particular policy, much less of any sort of draconian paternalism.

Again: note how Feser assumes that there is a local government, that is itself compatible with self-ownership. I would grant you: if this is so, then yeah, maybe it is legitimate for it to further infringe on self-ownership. The reason is government itself has to violate rights (self-ownership) just to exist; and if you grant this is okay, then where does it end? but the point is, he has to assume the legitimacy of the state to make his arguments; so if libertarianism is not compatible with the state, then you can’t argue that various measures that require a state for enforcement, could ever be compatible with libertarianism.

Libertarians and Socialism. Feser writes (in comments):

This is one reason — by no means the only one — why I am no longer a libertarian. Fusionism, I now think, is an illusion. Genuine conservatives who also think of themeselves as libertarians should therefore abandon libertarianism. Indeed, I would say that real libertarianism, when thought through consistently, is really “left libertarianism,” a view that at its heart is simply incompatible with the basic natural law and conservative conviction that authority does not ultimately derive from contract or the consent of the individual, and that we have obligations that we did not consent to and can have no natural right to neglect. So much the worse for libertarianism, then. It is, I now think, on all fours with socialism, egalitarian liberalism, and all the rest — just one modern “rationalist” (in Oakeshott’s sense) ideology among others, which a conservative ought to oppose.

Oh really? Isn’t this a bit strong, even for Feser? To claim that we are on all fours with socialism? Come on. Feser with his careful nuances–distinguishing between laws regulating promotion of homosexuality (okay) and those restricting gay handholding (bad?)–can at least grant us, even if he thinks libertarianism is too rationalistic, that we are not “on all fours” with socialism?!

In fact, if anything, Feser’s non-libertarianism (whatever you might call it) is more on all fours with socialism. We may share rationalism with socialists (arguably) but he shares the advocacy of the state and therefore of institutionalized criminality, as opposed to we anarcho-libertarians who on principle oppose aggression of any form from any source.

In any event, even if he thinks libertarianism has gone astray, is it really plausible for a former libertarian and conservative to maintain we are on all fours with socialism? Is its persistence, or origin, our fault? Come on. We are its most vocal critics.

Libertarian Obsession with Rights:

Classical liberalism — the tradition of Locke, Smith, and Hayek — is a more interesting and plausible view, and less obviously at odds with conservatism. (I reject the assimilation of classical liberalism and libertarianism — the latter is really a kind of classical liberal “heresy,” a grotesque distortion that arises when one focuses obsessively on rights and ignores the other elements of the more nuanced sort of moral theory to be found in the great classical liberal theorists.)

But we only focus on rights when people like Feser or others advocate or condone or use force or violence. In other words, Feser is in favor of aggression, in some cases, just like a socialist, dictator, or petty criminal. We are said to have an “obsessive” focus on rights–i.e., our pointing out every case where there is aggression, that violates rights; could it be, perhpas, because non-libertarians have a remnant of conscience that makes them uncomfortable having it pointed out that they advocates aggression? They don’t like being called on it, I think.

The Future and Libertarianism

I don’t think “political liberalism” or “political libertarianism” have a hope in hell of working. And yes, I think that things are going to get much worse. I say this with nothing but the deepest regret. I’ve got three children, and I do not like the world I fear they are going to inherit.

Again, this is overwrought. Even if he thinks we are too principled or too much against aggressioon–does he really think that this bad world we have coming is because of … libertarians?? This minority of harmless radical academics who have very few adherents? When all the dangers we face are from institutionalized aggression coming from the state? A state which is based on the idea that some agggression is justified–an idea Feser himself shares. Not us.

Libertarian Rigor.

Let me say also that I think Eric [Mack] is an excellent philosopher, from whose work I’ve learned much. Indeed, since the kind of libertarianism based on self-ownership is the kind I used to be attracted to — there are other kinds — and since Mack’s is, in my view, the most sophisticated version of self-ownership based libertarianism around today, I would recommend to those interested in these matters that they read his work. It’s a little hard to get a hold of, scattered as it is among various journal and book articles, but well worth the effort. And much, MUCH more interesting and philosophically rigorous than the stuff most Rothbardians are putting out.

Rigorous–I call to Feser’s attention, e.g., Hoppe’s magisterial A Theory of Socialism and Capitalism. Res ipsa loquitur.

Natural Law and Intrinsic Morality:

libertarians draw (what now seems to me to be) the grotesque conclusion that we can have a natural right to do something even if it is intrinsically immoral: addict ourselves to heroin, commit suicide, let a starving man die, and so forth. Yes, they (including my younger self) hedge this by saying that it might still be against other moral principles — e.g. wisdom, charity, or kindness — to do such things, but even to make the sort of claim at issue is to go way beyond anything the classical liberals would have said.

Feser maintains that if something is “intrinsically immoral” there can be no (natural) right to do it. Personally, I think his error here is over-reliance on natural law theory. Let me splain why.

First, I tend to agree with Hoppe “that the concept of human nature is far “too diffuse and varied to provide a determinate set of contents of natural law”. A Theory of Socialism and Capitalism, n. 7, p. 235 (quoting Gewirth). Feser’s gut might tell him something is intrinsically wrong, but it’s really not possibly to rigorously demonstrate this (after all he apparently cares about rigorous arguments now).

Second, I think this helps to highlight the semi-positivist notion that rights flow from anything, even natural law. I think it shows the danger of relying on natural law as the “source” or “grounding” of rights. I personally think you don’t need to really rely on “natural law” to ground rights. No space go go into this in detail here–and I plan to write more about this in the future–but I think we need to recognize that aggression is not defined in terms of rights, but rather the other way around. So Feser gets it wrong when he writes, “what counts as ‘aggression’ depends on what rights we have”. I don’t blame him here; I think many libertarians are confused on this. Again, no space to elaborate: but in my view, pure deductions of rights from natural law all stumble on the is-ought dichotomy: you can’t derive an ought or ethic, from an is or fact, Rand’s flip comment that what a thing is, determines what it ought to do, notwithstanding. Rather, rights are merely a convenient conceptual description of situations when the use of force is, and is not, justified or legitimate (which may be said to correlate with the concept of aggression). So, in cases where force may be used in response to X, X is aggression, and there is a right to not have X happen. And to find out when force is justified, one must appeal to a pre-existing and shared ethical system. That is, interpersonal/political ethics (what our rights are) has to be a hypothetical undersaking, based on presupposed ethics shared by all civilized people who are part of the inquiry. The fact that some savages or outlaws or criminals outside the civilized system do not accept civilized ethical norms is utterly irrelevant. (Even Rand’s system is really based on a hypothetical base: the amoral choice to live; see also Part III of this paper by Khawaja.) This is why I see the appeal of theories of rights that rely on undeniable ethical presuppositions of relevant parties to the discussion; see, e.g., my New Rationalist Directions in Libertarian Rights Theory.

In sum, I think Feser et al. can’t show most of what they want to is really “intrinsically immoral”; and even if they could, it has nothing to do with rights, which need not be based on natural rights theory. In my view this is one danger of overuse of the idea of “natural rights”. They should just be rights. Defended with reason, not with appeal to basically traditional religious moral views which opens the door for a Feser to step in and seize control of the spigot or source of rights. Elaborations on the dangerous legal positivism inherent in natural law theories of rights will have to await another blogpost. Stay tuned, y’all.

3:41 pm on July 13, 2006