Major law professors from major universities are attacking basic libertarian ideas in major law journals. These libertarian critics among the lawyer professorate have a new (really an old) line of attack on property and freedom. This article shows where they go wrong and why their attack is totally without merit.
The battlefield smoke of these lawyers should not be allowed to obscure basic issues: Will we own and dispose of our resources and property ourselves, or will others enslave us? Will each of us make our own decisions (within lawful bounds) over our justly acquired property, or will others (the State) control our property and make them for us?
The attackers try to redefine one man’s freedom and property rights as another man’s coercion. They picture people in society as fighting a zero-sum game over a fixed pie. They picture freedom as power or command over resources. They picture government as merely shifting a fixed amount of freedom (resources) from one person to another and not diminishing freedom or even causing net harm. They picture ownership of property as coercive and arbitrary. They try to dilute the very idea of coercion by viewing virtually all actions as coercive, even voluntary exchanges. They picture free actions as coercive. They try to reduce self-ownership and free choice to empty concepts by focusing on the effects that others have on one’s set of opportunities. They sweep law and morality off the stage altogether, or else view them as arbitrarily shifting around a limited amount of freedom. The notion that interpersonal exchanges raise welfare is absent. The notion that an individual runs his own life is suppressed.
Every single idea just mentioned is wrong, and yet they are being proposed by major law professors from major universities in major law journals. Deeply flawed views like these can seem maximally silly to some of us, not worthy of attention, yet we must address them. Ideas like this can gain broad currency and become part of the basic atmosphere of thought. In that way, they can corrupt thought and lead us astray. And these ideas have been around for a long time.
This particular attack on freedom, while somewhat related to the well-known confusion between negative and positive freedom, cuts far, far deeper and wider. What is actually involved in this attack is an attempt to substitute what I call uncivilized freedom for civilized freedom. It is really an attempt to substitute an immoral society for a moral society, or a Hobbesian jungle society for a lawful society. The attack is being made by moral skeptics, but their theory, such as it is, does not depend on or flow from moral skepticism. It flows mainly from a host of other mistaken ideas.
The overall aim of all these ideas is to make the concept of freedom empty and to discredit free markets. As one proponent writes, citing another: "Liberty, in Fried’s phrasing, is an u2018empty idea,’ because it is impossible for law to maximize freedom from interference with choice." In the course of this article, I will debunk this and other such notions.
This attack on freedom makes government out to be merely shifting resources (equated to freedom) around while keeping the total amount the same. Is this true? When a state presses men into a war financed by taxing its citizens, has the total extent of freedom really stayed the same? If Stalin kills millions, is the amount of freedom really the same? Of course not. Anyone and any State that initiates aggression increases the extent of coercion and reduces freedom.
This attack on freedom supposes that any act of mine, innocent or not, that affects your opportunities reduces your freedom. Is this true? If one hit song loses popularity and is replaced by another hit song, has the winning artist reduced the freedom of the losing artist? One can suppose that is true only by equating possession of a good with freedom. But an artist selling a song does not possess the potential customers. If freedom means anything, it means that customers choose which song to buy and which artist to patronize. To say that the losing artist loses freedom is to say that he had control over his customers; but of course he never did. If they patronize someone else, he does not lose something he never had. He does not lose freedom. He loses wealth.
Do we live with law and morality or don’t we? Are the rights that we attain in civilized society merely "veneer" or empty talk, as one of the attackers alleges, that cover up a war of one person’s desires against another’s? When lawyers attack freedom by viewing law as merely an arbitrary device, an instrument of raw power, they deny that there are such things as good laws and bad laws. They assert that mankind has no meaningful values. (Lysander Spooner recognized this clearly in his piece called "Natural Law; or the Science of Justice.") These attackers then say that they have no means to judge any dispute, unless it be by an attempt to measure pleasure and pain and sum them up, following the method of the skeptical Oliver Wendell Holmes, Jr. Like Holmes, such lawyers become moral skeptics. The result is to de-civilize. This is entirely consistent with their substitution of uncivilized freedom for civilized freedom.
Uncivilized and civilized freedom
Social and political thinkers use the word freedom (or liberty) in two conflicting ways. They lead to very different ideas about society and politics. I will argue that when we assess social and political matters, one of these conceptions is both flawed and wicked and should be ruled out of court in favor of the other conception. There are good reasons entirely to reject one view and accept the other.
But just as important as choosing one concept over the other is that these prominent legal thinkers confuse these two concepts, mixing them at will, and thereby producing entirely erroneous conclusions about freedom and government. Let us clear up this confusion before it does too much damage.
Conception one, which I will reject, says we are free when there are no restraints or constraints, proper or improper, on our behavior. It says we are free if we can do anything we want to do. We are free if we can kill someone or rob them, not being restrained by others. Or we are free to take a safari, if we have the money and leisure time to do so. We are free if we have the power or the wealth or capacity to get our way. In this meaning of freedom, a man is free to rob someone. He loses freedom if someone robs him. One man’s freedom is another man’s coercion. One man’s gain is another man’s loss. Actually, robbery and property have no meanings in this conception; a man simply takes what he wants. Uncivilized freedom is basically power and/or wealth. In a society in which this meaning of freedom prevails, which is basically a Hobbesian jungle, a man is free to coerce anyone he wants to if he can. A man is free to kill. That is one reason why this conception of freedom is wicked and immoral.
Conception two, which I will endorse, says that we are free when we are not being forced to act against our wills by palpable violence or the threat of violence of others. This is a standard libertarian conception. Being chained up denies us our freedom. Being robbed or raped forces us to give over our property or our property in our body; these are acts that are anti-freedom. In the first conception, they are expressions of freedom by the robber or rapist. The libertarian concept of freedom has moral content in using the concept of property. As Hoppe tells us: "Property is thus a normative concept: a concept designed to make a conflict-free interaction possible by stipulating mutually binding rules of conduct (norms) regarding scarce resources." Or as Spooner tells us (in his "Natural Law"): "The science of mine and thine — the science of justice — is the science of all human rights; of all a man’s rights of person and property; of all his rights to life, liberty, and the pursuit of happiness." In a society in which this meaning of freedom prevails, a man is not at liberty (or free) to kill and steal. The freedom of man A does not imply that he is allowed to kill or rob man B. He can choose to do so, but it is a loose, confusing, and inconsistent use of language in rigorous discourse to say that he is free to kill when freedom is taken as conception two.
I label conception one of freedom as uncivilized freedom and conception two of freedom as civilized freedom. The distinction between these two concepts of freedom is, as I have since discovered, a very old one. An early example occurs in the writings of John Winthrop. He distinguishes two kinds of liberty: "natural (I mean as our nature is now corrupt) and civil or federal." The first of these "…is a liberty to evil as well as to good. This liberty is incompatible and inconsistent with authority, and cannot endure the least restraint of the most just authority…" The second of these arises "in reference to the covenant between God and man, in the moral law, and the politic covenants and constitutions amongst men themselves." It is "a liberty to that only which is good, just, and honest."
In the standard accounts of positive and negative freedom, negative freedom is civilized freedom and vice versa. Negative and/or civilized freedom is freedom from improper impositions of force. But positive freedom is not the same as uncivilized freedom. Positive freedom refers to the power to act to achieve an objective, such as having health care, the idea being that one is not free unless one has health care. We can, of course, possess legitimate resources with which to obtain health care. But the promoters of positive health care freedom typically want the State, within our overall realm of civilized freedom, to ensure health care by statute and taxes. In this case, positive freedom involves the force that is evident in a situation of uncivilized freedom. Positive freedoms, like right to health care, are therefore poisons of uncivilized freedom absorbed into the political body’s bloodstream of life-giving civilized freedom. Uncivilized freedom is the positive swamp from which emanates the polluting vapor of a positive freedom by right that in practice violates rights. Uncivilized freedom refers to an untrammeled free-for-all state of nature in which there is no State, no property, no morality, and no law.
Sen and Coase
It may seem that uncivilized freedom is so far from social reality that we may reject it out of hand. After all, we have laws against many kinds of violence. We do not live in a Hobbesian jungle. This is true, but the fact is that many important thinkers, not necessarily self-proclaimed socialists, promote and/or use the uncivilized freedom concept in both nascent and full-fledged forms. It is important to see what they say.
I start with a mild example of negative and positive freedom, but an example which begins to introduce the distinction between uncivilized and civilized freedom and to spell out more clearly what they mean and how they differ. Amartya Sen, the 1998 Nobel Prize winner in economics, writes: "Libertarians must think it important that people should have liberty. Given this, questions would immediately arise regarding: who, how much, how distributed, how equal? Thus the issue of equality immediately arises as a supplement to the assertion of the importance of liberty." Sen is thinking of liberty as something of a zero-sum game. There is a fixed amount that gets distributed and not everyone has equal shares. As Roderick Long points out, "…equality of liberty is not a supplement to the value of liberty, but simply follows from the ideal of total liberty." Long then distinguishes two kinds of freedom in these words: "Sen’s failure to recognize this may be due to his thinking of liberty in positive terms, as freedom to do this or that, in which case the need to respect others’ liberty would be a limitation on one’s own liberty, thus rendering total liberty for all impossible. But if liberty is understood in negative terms, as freedom from coercive interference, then total liberty for all is entirely possible."
Although positive liberty does not necessarily infringe another’s liberty, unless turned into an enforced matter, Long’s statement accurately hints that Sen’s comment leads into the concept of uncivilized versus civilized freedom. Long’s key observation is this: "…the need to respect others’ liberty would be a limitation on one’s own liberty…" The exercise of uncivilized freedom by one person limits the uncivilized freedom of another, whereas the presence of civilized freedom for one person has no such limiting effect on the civilized freedom of another. Sen appears to conceive of liberty as a zero-sum game. Libertarians want everyone to have liberty. Why then does Sen ask who gets it and how much and how equal? He sees liberty as a competition. The root conception of his thought is uncivilized freedom.
The next example clearly associates equal liberty (really equal power over resources) with uncivilized freedom. It occurs in a paper written by Damon J. Gross, who is a Georgist. He writes: "At the outset I hasten to acknowledge that there is a serious general problem with arguing about property rights from concerns about liberty. The problem is that any system of property rights (that I can think of) restricts someone’s liberty in some way. For example, private property rights in an object restrict the liberty of all but the owner to use the object without the owner’s permission."
This statement does not relate in any obvious way to positive and negative freedom. It is much deeper. It asserts that property in and of itself restricts liberty. How can this be? One would have thought that security of justly-acquired property brings a measure of greater freedom. Gross’s statement only makes sense under the notion that liberty is uncivilized liberty. In that case, all objects belong to no one or to anyone who takes them, that is, one is at liberty to take anything, such liberty only being barred by the actions of others attempting to do the same. In the realm of uncivilized liberty, a property right then naturally appears as a restriction on liberty. What it secures to one person is necessarily not available to another. Where Sen only hinted at an assumption of uncivilized freedom, Gross makes the presupposition of uncivilized freedom much more clear.
Ronald Coase, another Nobel Prize winner, makes his use of uncivilized freedom quite explicit. Coase uses a raw utilitarian analysis that is untempered by any factors such as morality, rights, first use, and justice. Near the end of his famous article, The Problem of Social Cost, he recognizes that his analysis lacks all morality: "In this article, the analysis has been confined, as is usual in this part of economics, to comparisons of the value of production, as measured by the market. But it is, of course, desirable that the choice between different social arrangements for the solution of economic problems should be carried out in broader terms than this and that the total effect of these arrangements in all spheres of life should be taken into account. As Frank H. Knight has so often emphasized, problems of welfare economics must ultimately dissolve into a study of aesthetics and morals."
Followers of Coase ignore this advice and so does he in the body of his paper. Instead, he assumes a milieu of uncivilized freedom, sanitized of any ethics. In his scenario, anyone may harm anyone else; and the only criterion to control the harm is total production. He writes: "…the question at issue is whether it is desirable to have a system in which the railway has to compensate those who suffer damage from the fires which it causes or one in which the railway does not have to compensate them. When an economist is comparing alternative social arrangements, the proper procedure is to compare the total social product yielded by these different arrangements." In passing, also note the use of the words "desirable" and "proper procedure." Coase contradicts himself. He rules out any morality, but he introduces his own value judgment that an economist should ignore all other effects of the arrangements chosen except the harm to total production.
Coase discusses a case in which the court made a ruling in favor of a brewer, based upon the brewer’s prior long use of a ventilating shaft. He goes on to belittle its criterion of judgment: "The economic problem in all cases of harmful effects is how to maximise the value of production…The economic problem was to decide which to choose: a lower cost of beer and worsened amenities in adjoining houses or a higher cost of beer and improved amenities. In deciding this question, the u2018doctrine of lost grant’ is about as relevant as the colour of the judge’s eyes."
Gary North recognizes that Coase is assuming that a society has uncivilized freedom, although he does not use this term. North first quotes Coase who is championing the utilitarian point of view. Coase writes: "The question is commonly thought of as one in which A inflicts harm on B and what has been decided is: how should we restrain A? But this is wrong. We are dealing with a problem of a reciprocal nature. To avoid the harm to B would inflict harm on A. The real question that has to be decided is: should A be allowed to harm B or should B be allowed to harm A? The problem is to avoid the more serious harm."
North then analyzes and criticizes this standpoint: "To begin with, such reasoning is morally perverse, if it is accepted as a methodological standard governing economic analysis in all instances involving competing economic actions. It would be just as easy to say of kidnapping that any restrictions on kidnapping by the state harm the kidnapper, and that a lack of restrictions harms the victims. If we are going to build an economic system in terms of the supposedly u2018reciprocal nature of harm’ — that each economic actor suffers harm when he is restricted from acting according to his immediate whim — then economics becomes positively wicked, not value-free, in its attempt to sort out just how much harm the courts will allow each party to impose on the other."
North’s analysis is excellent. Coase’s inattention to civilized freedom and his presumption of a milieu of uncivilized freedom do indeed mean that a law against kidnapping harms the kidnapper. If we begin with a Hobbesian state of nature, which is uncivilized freedom, then, as Long expressed the matter: "the need to respect others’ liberty would be a limitation on one’s own liberty, thus rendering total liberty for all impossible."
Coase goes to great lengths in his paper to show that judges use utilitarian considerations in judging cases, among other criteria. In dealing with the law applying to nuisances and in many other instances, utility cannot and, in my view, should not be automatically dismissed as a factor to consider. I say this because particular cases take on a vast range of peculiarities. But utility surely is not the only factor, should not be the first factor, and in many cases cannot be the main factor. A judge simply must first and foremost examine who is responsible for a tort or nuisance. But Coase pooh-poohs the assessment of responsibility: "The problem which we face in dealing with actions which have harmful effects is not simply one of restraining those responsible for them. What has to be decided is whether the gain from preventing the harm is greater than the loss which would be suffered elsewhere as a result of stopping the action which produces the harm." Since responsibility is a moral concept, Coase logically downplays responsibility because he eschews moral considerations. Coase relentlessly hews to the immoral realm of uncivilized freedom.
Coase completely overlooks that there are social losses when judges make rulings and legislatures make laws that break society’s basic rules of the game (or natural laws) respecting property, as I have explained in an earlier article. In other words, society actually operates in a realm of civilized freedom; and analyzing matters as if it operated with uncivilized freedom leads to inapplicable and yes, wicked, results.
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an important instigator of the utilitarian and uncivilized freedom approach to man and society. For two views of Holmes as "radical moral skeptic," see here and here. Holmes took a decidedly non-moralistic view or non-natural rights view of law. He viewed law as an arbitrary set of prescriptions imposed by judges; or as heavily influenced by the judge’s considerations of the community’s utility. Instead of basing his thinking on the idea of property rights, basic ideas of right and wrong, and precedents brought about by juries, he looked at matters in a narrow utilitarian way.
In a famous 1894 paper titled "Privilege, Malice, and Intent," the views that would affect his subsequent jurisprudence begin to appear. In this paper, he writes: "The gratification of ill-will, being a pleasure, may be called a gain, but the pain on the other side is a loss more important. Otherwise, why allow a recovery for a battery?" The thought that a battery might be wrong and that allowing a battery undermines an important social rule against doing harm for no good reason, Holmes does not mention.
Or consider this issue that Holmes raises: "For instance, a man has a right to set up a shop in a small village which can support but one of the kind, although he expects and intends to ruin a deserving widow who is established there already." Why is it that the man has this privilege and no tort is involved? (A privilege is like a right. It is behavior that is allowed by law.) His narrow answer is that this "rests on the economic postulate that free competition is worth more to society than it costs." Is that all there is to it? I think not. A more complete view will note that the consumer should be free to deal with either the man or the widow. To restrain the man is to restrain the consumer, and there are no moral grounds for doing that. If restraint is imposed, by preventing the man from setting up his shop, then society is actively harming both man and consumer. Or if the man sets up his shop and then he and others are made to compensate the widow, then again they are being harmed. In these instances of society doing harm, it violates its own basic rule against theft and injury. Therefore its act (or a law to that effect) is unlawful. Social utility also declines because society endangers all of its members by violating its own basic law against theft and doing harm. If social utility happens to rise because of the man’s competition, that is a secondary matter.
A number of other things come across in this Holmes article. One is that Holmes and any judge have to deal with difficult case specifics. They need principles to guide their decisions. They are not quite sure which ones to use and where these principles come from. They are on the front line. But not to be forgotten, as Holmes seems to, is that there are a great many prior decisions and settled matters of law to go by. Furthermore, the lawyers arguing the case bring up these and other relevant matters of law. The judge is boxed in or guided by precedents and arguments; and juries play a major role in deciding cases. When there is settled law on a matter of behavior, there is what seems to be privilege on one side or another. Do juries, judges, or the law create the privilege out of thin air? That is how Holmes views it. This makes law arbitrary or something arising solely due to the implied violence that lies behind the law. Or do they discover the right using deeper principles including a sense of justice? Presumably there are reasons for any privilege. If so, the privilege is discovered and reflects the accumulated sense of justice of juries and judges.
Robert Lee Hale and his followers
The law and economics movement that Coase spurred is the second such movement, the first having occurred earlier in the twentieth century. It too was wedded to the concept of uncivilized freedom. Its main proponent, in very open and clear fashion, was lawyer Robert Lee Hale (1884—1969), one of the fathers of Legal Realism. In 2002, Barbara Fried, a chaired Stanford law professor, wrote a book that resurrected Hale’s work. She links him to what she calls the progressive assault on laissez-faire and to the first law and economics movement. She also applauds Holmes and Coase, which is in keeping with their adherence to uncivilized freedom. (Hale also cites Holmes.) Another in the same anti-libertarian vein is Ian Ayres whose article "Discrediting the free market" appears in 1999 in the University of Chicago Law Review. Ayres is a chaired professor at Yale Law School.
In a lengthy 1973 article in the University of Miami Law Review, economist Warren J. Samuels reviews and accepts Hale’s analytical scheme. Samuels explains Hale’s view in this way. "…an individual would have complete or voluntary freedom if…he were unconstrained by others in any form as to his behavior and/or choices…" The key words here are in any form. Complete freedom, in this view, means that one can kill someone else; and if one is constrained by others from killing someone else, one is not completely free. This is uncivilized freedom, that is, freedom as unconstrained human power. This approach, which eschews the idea of justice, means that if one has to pay for something belonging to someone else, then one is not completely free. Samuels writes: "A different example involves the consumer having to surrender the price of the bread in order to purchase the loaf, and the grocer or retailer having to surrender the loaf in order to have income. Both have alternatives but they are limited…Neither has voluntary freedom." Why propose a concept that places murder and a free market transaction on the same plane? The intent is to discredit the free market.
While Fried and Ayres do not possess the stature of Holmes, Hale, Coase, or Sen, they are chaired professors at major American law schools. They are promoting the Hale critique as some kind of ray gun that is slaying the libertarian dragon. Ayres’ encomiums are particularly ill-informed: "Barbara Fried, however, has written a masterful book that reminds us that these a priori defenses of the free market were long ago demolished. A small band of progressives — led by Robert Hale, an economist teaching at Columbia Law School — developed an especially piercing critique of standard justifications for libertarian market policies. Fried’s book has rediscovered this critique and has made it available to modern readers." This statement can be believed only if one accepts ballyhoo as knowledge.
The basic trick in Fried and Ayres is to bait and switch. They bait the reader into a world of uncivilized freedom, and then apply the results to the world of civilized freedom that we live in. This produces fallacious conclusions. They posit a world of unalterable antagonisms where morality and property are absent, a world of uncivilized freedom where one man’s freedom clashes with the next man’s, and then they claim the results hold in a world of civilized freedom.
Ayres writes: "Hale showed that government regulations do not, as a conceptual matter, interject coercion into our world but rather (re-)distribute the coercion that unavoidably inheres in any system of private property." Hale showed nothing of the sort. Only if one regards the world as being in a situation of uncivilized freedom does the idea of redistributing coercion even begin to make any sense; but in such a world private property does not even exist. In such a world, all goods and human beings are for the taking. But once we shift perspective to that of a civilized society, that part of coercion which is aggression is aggression against property. It does not "unavoidably" inhere in property. Far from it. Aggression arises when human beings choose to invade property, and no institution is in a stronger position to aggress on a wide basis and get away with it than the State. Ayres has baited and switched.
But Ayres is also wrong to say that Hale showed that government is not coercive, because Hale has no theory of how private property arises other than an assertion that the State creates it arbitrarily. In Hale’s society of uncivilized freedom, he defines coercion to mean any impact whatsoever that any human action has in altering someone else’s opportunity set. Samuels, following Hale, defines coercion as "the impact of the behavior and choices of others upon the composition of one’s opportunity set." Power he then defines as the capacity to coerce. A market that a libertarian might think of as free is, in this definitional scheme, a system of power and mutual coercion. It is only by definition that Hale can claim that private property is coercive. By no logic or theory is such a claim proven.
Robinson Crusoe has "voluntary freedom in the absence of others," Samuels says, but "With the arrival of Friday, each one’s freedom becomes volitional, each necessarily limiting by virtue of their interaction the alternatives open to the other. Each is therefore coercing the other through the mere presence and impact of his behavior and/or choices. It is a system of mutual coercion." Again, we have a vision of uncivilized freedom in which Crusoe and Friday engage in a zero-sum game and are unable to discern a moral code to guide their behavior. In the Hale approach to human interaction, there is no distinction between an act of violence and an innocent act. Each of these affects someone else’s opportunities, and each is called coercive. Since any and all uses of property impose conditions on others and exclude use by others without the owner’s permission, Hale’s terminology treats all property as coercive.
One school of thought unites Hale, Samuels, Fried, and Ayres. I quote at length from Ayres’ review of Fried’s book on Hale: "Expanding one person’s freedom of choice necessarily restricts other people’s ability to choose: if the law gives me the right to my body, it necessarily denies others this right. Liberty, in Fried’s phrasing, is an u2018empty idea,’ because it is impossible for law to maximize freedom from interference with choice (p 52, chs 3—4). The formal and necessary conservation of total freedom suggests that the function of law is instead to distribute a fixed quantum of formal liberty. The implication of Hale’s analysis is that in any legal system that distributes rights, the notion of true laissez faire — no government interference with individual rights — is not even a logical possibility (p 21). As we will see, while Hale rejected as empty the concept of u2018negative’ liberty, that is, liberty from government interference — he, like other progressives, did embrace the possibility that law could further an egalitarian notion of u2018positive’ liberty that u2018measure[s] the individual’s power to effect his or her desires’ (p 37). Hale adumbrated this startling distributive view."
If the law (for example, natural law) indeed gives one person the right to his body, then it must also give others the rights to their bodies. This limits "other people’s ability to choose" and it "denies others this right." That is about all that Ayres has written that is correct. Liberty is not therefore an empty idea, the reason being that liberty does not mean "freedom from interference with [all] choice" when we have law and rights to our bodies, that is, civilized freedom. "Freedom from interference with [all] choice" is what uncivilized freedom means. One cannot simultaneously have uncivilized liberty and law, rights, and property or civilized freedom. Ayres illegitimately mixes the two conceptions of liberty in successive sentences. This is how he arrives at the totally false conclusions that liberty is an empty idea, that the legal system merely re-arranges rights, that it is a system of mutual coercion, and that laissez faire is impossible.
Fried makes a concerted attack on libertarianism not only by using Hobbes-Hale uncivilized freedom but also by linking it to Coase. "All social costs generated by activities, argued Coase, are really the joint costs of conflicting desires in a world of scarce resources," she writes. This statement reduces all desires to the same level. The batterer of Holmes has the same status as the one battered. The kidnapped has the same status as the kidnapper. Morality disappears. Cooperation disappears. Civilization disappears. All resources are magically open to everyone. The idea is to drag the libertarian’s propertied and moral world down into the subterranean world of uncivilized freedom where one aggression is as good as another. Her goal is to discredit self-ownership and all its implications. If this can be done, then the only alternative left is the State. What we have here is a disguised attempt to resurrect Hobbes and his Sovereign.
But the attempt is completely unsuccessful, because social costs are generated in the world of civilized freedom, not in that of uncivilized freedom. Fried writes: "Coase’s morally neutral description of the social problem…of conflicting desires strips away the usual veneer of rights talk plastered over such problems…wherever we put the entitlement, we will sacrifice one party’s interests for the other’s. The recognition that an individual’s exercise of her own rights might well infringe another’s interests was hardly new with the [Legal] Realists or Coase."
In Fried’s statement appears the conflict of interests and desires that must occur in the uncivilized world of Hobbes. Rights no longer appear as expressions of just property but as "veneer." Instead, they appear as arbitrary entitlements, always sacrificing one person’s interest to another’s. In this world of uncivilized freedom, self-ownership, and "an individual’s exercise of her own rights" have no meaning, because property has no meaning. But then Fried, having baited the reader in the uncivilized scenario, without warning switches to the civilized world we live in and would have us conclude that therefore "an individual’s exercise of her own rights might well infringe another’s interests." The argument is fallacious. Fried is mixing two entirely incompatible concepts of rights. One is an arbitrary entitlement in a world of uncivilized freedom. The other involves rights in a world of civilized freedom, but in the latter world, rights involve non-aggression and do not conflict at all.
Given self-ownership and non-aggression, one person’s exercise of rights in no way denies the rights of others. It is not true that self-ownership and its attendant rights (which is where "we put the entitlement" in the civilized world) "sacrifice one party’s interests for the other’s." That would only happen in a world of uncivilized freedom, but such a world has no self-ownership and has no rights. Fried is attempting to undermine the concept of self-ownership and its derivative rights that occur in a world of civilized freedom by reference to the conflicts that arise in a world of uncivilized freedom. She is baiting and switching. She is mixing conflicting conceptions at will.
Mankind, despite the twentieth century, is not now generally living in uncivilized freedom. Civilized freedom predominates, although it is always threatened. Furthermore, predominantly, mankind has not historically lived in uncivilized freedom. When the earth was sparsely populated, game was plentiful. It was easier to hunt game and gather fruits and berries than fight other human beings. If there is evidence of widespread warfare in prehistoric times along the lines of a Hobbesian state of nature, it has not yet come to light. Massive uncivilized freedom is more apparent as a twentieth century phenomenon and/or as a phenomenon associated with some civilized states of the last few thousand years, including those that used slavery. One reason is that internally civilized states build up great wealth which provides a condition needed to make war externally. And states themselves, which are relatively new in the history of man, are organizations that centralize wealth and power. These are then easily turned in the direction of uncivilized behavior, both internally and externally.
In a world of civilized freedom, if one’s opportunity set is limited by a direct physical aggression, we say the act limits freedom. If it is limited by indirect or innocent acts, we do not say it limits freedom. Why is this? When a man sets up a shop that puts a widow out of business, he does not limit the widow’s freedom. He reduces her wealth. Believers in uncivilized freedom view this as coercive and argue for forced wealth redistributions for situations like this. Why isn’t this situation coercive? The widow cannot force her customers to deal with her and not the man. The man cannot properly force her to stop servicing her customers, but he can get her customers to deal with him willingly. The former way is a crime and harms the widow’s freedom; the latter way does not. If the man forces the widow, he takes something from her, which is her option to deal with her customers. But that option is contingent on her customers choosing to deal with her. The widow does not have a call on anyone’s business. They agree to it; they have the option. The widow’s freedom is a freedom to reach an agreement with a customer. She cannot prevent a customer from patronizing the man. The widow never had that freedom, so the man does not take it away from her when he attracts a customer from her. The widow is not free to coerce her customers. This is why the man does not harm the widow’s freedom when he attracts a customer from her.
My impression of leftist intellectuals who are anti-libertarian and pro-socialism, usually in the form of very much wanting the State to redistribute wealth, is that they will go to almost any lengths to build a case for what they want in the first place. Any figure of old who provides even a fig leaf of support will be taken into their fold to lend credibility to their counterproductive nostrums. They will overstate their case as much as possible, declare libertarianism dead, exploit any and all divisions within the libertarian camp, ignore major libertarian writers and books, misconstrue libertarian views, and attempt to raise inane ideas and questions to the status of serious criticism.
The Godfather and Luca Brasi extorted a man’s signature by demanding either his signature or his blood on a contract. A long line of skeptical legal theorists from Holmes to the present would have us believe that laws, morals, rights, property, and prices are merely guns held to people’s heads that redistribute wealth so that the government is to be construed as either not introducing its own coercion or else as rectifying the coercions of others.
We should not listen to these people. Their ideas, as I have argued, are rife with logical fallacies. What is more important, they are highly destructive. The entire train of thought of these freedom-attackers is entirely foolish. All it accomplishes is to throw away moral concepts such as property and freedom that are valuable to mankind and replace them with nothingness and conflict. All it results in is unease and moral enervation, an incapacity to move forward, replaced either by a strong tendency to move downwards to nothingness or to move downwards into a regime of the arbitrary exercise of power.