I recently ran across The Need to be Anarchists, by big-L Libertarian Carl Milsted. The piece provides a good illustration of some of the dangers of relying on utilitarian arguments and being overly focused with “strategy” and tactics. And it demonstrates the importance of relying on principle and carefully distinguishing the pursuit and advocacy of truth and rights from activist concerns.
Milsted, who runs the website "Holistic Politics" (res ipsa loquitur), argues that we libertarians are uncomfortable with government because "Taxation is theft". On the other hand if we "call for no government" we are "subject[ed] to ridicule." So we libertarians face a dilemma: damned if we do, damned if we don’t.
Apparently, being subjected to ridicule is undesirable — perhaps it is not a good way to "get things done." (See the activist mindset creeping into a question of what our rights are; whether aggression is justified?) So Milsted wants to cut the Gordian knot by abandoning the ridiculous opposition to theft and state, assuming he can find a way to justify it. Here we have the activist or tactical mindset making Milsted look for a way to justify theft: here is where utilitarianism enters the picture. Both activism and utilitarianism push principle to the side as a nagging inconvenience. There is no room for principle in the ultra-pragmatic ever-shifting weighing and balancing of utilitarianism; and activists want results, and now!, damnit, not principles.
Milsted concludes that we have to "allow some theft to enable the minimal state that maximizes liberty." He bases this conclusion on the idea that if a given act of theft creates enough surplus value to be able to "adequately compensate" the victim, then it’s worth doing and justified — the victim is made whole, and the rest of society is made better off. For example, in the case of national defense, or "country roads," because of "economies of scale," government can do these things more cheaply, so that, if
the majority assesses a tax on everyone to spread the burden of supporting the new defense system. This is theft of the minority. However, suppose that the economies of scale are such that this tax is less than half of what people would have had to pay for defense on their own. Now we have theft with adequate compensation.
Aside: I have long noticed that many brash young libertarians of the activist flavor who are not all that interested in theory and What Has Gone Before are — perhaps influenced by Rand? — often unfamiliar with the great body of libertarian literature and want to reinvent the wheel from a clean slate (many engineers, in my experience, take a similar pragmatic, isolated, almost anti-intellectual approach in their views on politics). Now I don’t know if this observation applies to our current author, but he does seem blithely unaware that his stab at theory is nothing more than a rudimentary version of what utilitarian legal theorist Richard Epstein proposed in his book Takings: Private Property and the Power of Eminent Domain.
Anyway, Milsted tries to justify his reasoning by appealing to Rothbard:
In the Bible, a thief was supposed to pay double. Should he do that, he can go free. Murray Rothbard called for the same principle in The Ethics of Liberty. In other words, theft is morally acceptable if all victims are paid back double.
Milsted’s "in other words" does not follow from Rothbard’s reasoning, nor is it correct. Rothbard was merely arguing for a certain standard for restitution after a crime has happened. As should be quite obvious, specifying the standard for damages payable for a crime most certainly does not mean the crime is "morally acceptable." If it did, this would imply that if someone is trying to take my property I have to let them if they offer me enough money. But this is untrue. The standards for what can be done to stop a crime and what should or may be done after it is too late to stop it are different. If someone tries to take my car, I may use force against them to stop them; I would argue it is justified to kill them, if necessary, to prevent the crime. After the crime is committed, however, killing the criminal won’t prevent it, so, arguably, the only remedy left is some form of restitution. This does not mean that the restitution justifies the crime, however.
In fact, if theft is morally acceptable if enough restitution is paid, the same reasoning would apply to all crimes, including murder, rape, and torture. By this reasoning, if a billionaire can pay your heirs millions of dollars in compensation for torturing you to death against your will, his act of murder is morally acceptable.
Here Milsted perhaps unwittingly takes utilitarianism to a reductio ad absurdum, saving his critics the trouble. As has been pointed out many times, the utilitarian standard would permit, for example, a very desperate rapist to rape a woman of loose morals, since the damage to her is arguably small (by utilitarian standards) and the benefit to him great, providing a net benefit to society; or a rich man to be taxed to support the poor, since the money means so much more to the destitute than to the one rich man. And so on. Utilitarians usually deny the aptness of such reductios, but Milsted here seems to embrace it.
In my view, our author’s argument here demonstrates the perils of thinking in utilitarian terms — you start thinking that an act of crime is okay so long as some people benefit from the crime more than the victim suffers. The focus on individual rights is lost, as is the distinction between victim and aggressor.
In any event, the appeal to utilitarianism is problematic on several fronts. It is, first and foremost, ethically bankrupt because it is an unproven, and indeed, false, assertion that it is justifiable to rob one man if the robbery benefits others. It is also economically incoherent because the subjective and ordinal nature of value makes it impossible even in principle to ever determine whether a given invasive action results in a "net" benefit or "surplus" (see on this Rothbard’s Toward a Reconstruction of Utility and Welfare Economics).
Moreover, even if we assume away the ethical and methodological problems with using a utilitarian standard, it would be completely unworkable in practice, given the corrupt nature of government; and indeed, as with the utilitarian case for intellectual property, those who assert this or that measure is a "net benefit" don’t ever make a serious attempt to show that it really is. Instead, they say, "defense" is "obviously" a public good, and satisfies the test; "roads" are "easy cases"; and so on. They can never tell you in dollar or util terms what the alleged surplus is; they just know there is one. And they never make a serious attempt to take into account all the costs. For example, even if utilitarianism made sense, and even if we assume that national defense and public roads led to surpluses that could be used to compensate the victims (Epstein analogizes this to measures that increase the "size of the pie"), why assume that the state, once given the power to engage in wealth transfers, will restrict itself only to "efficient" takings? Surely there is a real risk — even inevitability — that the state will not restrict itself to the few things it "ought" to be doing.
Additionally, even if the state engages only in "efficient" activities, what about mushrooming costs of these activities? Let’s say national defense benefits citizens more than the taxes to pay for it cost them (and that it would be more expensive to buy defense on the free market). Does this still hold true a decade down the road, when the state decides to use its restless army for imperialist ambitions? Or when the use of the army provokes a war, which leads to the state imposing conscription? And so on.
In other words, utilitarianism is both ethically bankrupt as well as economically incoherent (see pp. 12—15 of this article for further references). It cannot serve to justify theft.
The focus on tactics and strategy also leads to confusion about libertarian principles. Writes our author,
Libertarians have a serious dilemma. Either we make a Machiavelli [sic] trade-off and allow some theft to enable the minimal state that maximizes liberty, or we plunge ahead calling for no government and hope for the best, based on some daring theoretical extrapolations. The former makes us uneasy. The latter subjects us to ridicule. 99+% of the people consider anarchy to be too risky to be attempted.
Not surprisingly for a big-L Libertarian, Milsted’s focus is on strategy, tactics, activism, and rhetoric. Such a focus often leads libertarians to confuse "what persuades people" with "what is true." We principled libertarians have no problem recognizing the difference between what is right and true, with what is likely and what we can get away with. They are different questions. But strategists have trouble seeing past strategy and "what works". If a principles-based libertarian says, "public education is unjustified and ought to be abolished," a typical reply of a tactician-activist is "but that is not practical" or "but that is not going to sell with the average person". In other words, the activist makes the mistake of confusing what will sell with what is true. But the committed activist too often relegates something that will not sell now, today, as useless, and in effect as untrue — or, more to the point, he adopts the view that what is true does not really matter; only results matter. Sure, both inquiries — what is the best strategy to achieve liberty? what is liberty? — have their own value and roles. But they are not the same.
In Milsted’s case, his activist-tactical approach leads him to mistake the nature of anarchism and libertarianism. To be an anarchist is not to "plunge ahead calling for no government and hope for the best, based on some daring theoretical extrapolations." Only the activist would think this way, since he thinks in terms of things we advocate and try to achieve. But anarchists per se are not "in favor of" some "alternative system." That’s not what it means to be an anarcho-capitalist.
Rather, as I have pointed out elsewhere, to be an anarcho-capitalist is simply to recognize (a) aggression is unjustified; and (b) even the minarchist state necessarily commits aggression (and is therefore unjustified). It does not mean one predicts such a situation will occur, or "is workable," etc. It only means that the anarchist libertarian opposes all forms of aggression: both private aggression committed by criminals, and institutionalized aggression the state is able to perpetrate only because a large percentage of the population erroneously regards it as legitimate.
In other words, if one is not an anarchist, this means one either holds that states do not commit aggression, or maintains that aggression is (in some cases) justified. Admirably, Milsted does not try to evade this. He acknowledges that the state commits aggression. It is theft he is trying to justify, after all. He simply thinks aggression in some cases is justified; such a view is also common among socialists and criminals. As I noted above, his reasons in support of justified aggression are confused. On the one hand, his reasoning seems to be based on a desire to avoid being “subjected to ridicule." This is obviously not a justification for violent invasion of others’ bodies or property. Certainly not one that will satisfy libertarians who oppose aggression as a matter of principle. His argument also relies on utilitarian reasoning, and rests on the false assumption that a crime can be justified ahead of time by the criminal paying the proper toll. (See also this post by Manuel Lora, critiquing Milsted’s political gradualism and anti-radicalism.)
I don’t say Milsted’s attempt to justify a small bit of aggression is evil or insincere. In fact it’s common and probably sincere. I think he would like to reduce aggression, but he is willing to break some eggs to make an omelet. However, if libertarianism is at root about the opposition to aggression and the desire for peace, harmony, and cooperation — as I believe it ought to be — the proposed normalization of theft simply isn’t libertarian.