Libertarian vs. Libertine

There is a temptation for libertarians to make an illogical leap from “Vices are not crimes” to “Vices are not wrong”, and too many succumb to the temptation.

There are many things one should not do that nevertheless should not be viewed or treated as crimes.

Generally, one shouldn’t lie. It would be wrong to tell your spouse you were working late when you were actually at a strip club or out playing poker. It’s not a crime, but it’s wrong.

Identifying a situation where lying would be justified is quite beside the point; the point is we can identify circumstances where lying is wrong, though not a crime.

Misconceptions About Market Anarchists

In a Facebook note, Kyle Bennett lists:

15 Ways You Are Probably Wrong About Anarchists, Agorists, and Voluntaryists

1. We don’t want to turn your government anarchist. That makes as much sense as accusing you of wanting to dye your hair “bald”.

2. We get it, there’s no historical precedent. That tends to be a common problem with new things, yet new things are created every day.

3. We don’t expect utopia. If you think that’s what we’re after, maybe it says more about your idea of the function of government than ours.

4. Some of us live with our parents, and maybe even have a room in the basement. Some of us are parents. Most of us are just adults with lives not too different than yours.

5. Arguing on facebook is not how we think we’re getting anything done, it’s what we do in our spare time. It’s what we do to connect with each other, to exercise our ideas before applying them out in the real world, or just for fun.

6. Convincing you is not important to us, except in an abstract or personal sense. You’re probably not as important as you’d like us to think you are.

7. We’re not seeking consensus, nor to sway the masses. The requirement that our lives be ruled by public opinion is one of the things we oppose.

8. We’re not the ones breaking Starbuck’s windows. We like coffee too.

9. We’re not trying to mooch off the system, we want to be free to produce for ourselves the useful things the system produces, and to do it better.

10. We’re against a lot of the same things you are, and more. We value most of the same things you do, and maybe more highly. It’s our means that are different. When those values and oppositions come into conflict, we don’t make excuses, we resolve it.

11. We’re not nihilists. We’re for a lot more than we’re against, it’s just that the main thing we’re against is so overwhelming it blots out the view of everything else.

12. Solving problems requires work and time. We’re not the ones with illusions of having our wishes fulfilled through documentation and edict.

13. We don’t blame you for creating the system, but we’re amused by how obviously self-fulfilling your prophecy that “we can’t do anything about it” is.

14. We don’t want a violent revolution, we want billions of peaceful ones.

15. “We” are neither a monolith nor a collective. We’re not defined by our label, our label is a recognition of the overlap between our individual beliefs. Extrapolate from it at your own risk.

Confessions Of A Spoontard

At least Anthony Gregory had the honesty to admit how he totally screwed us all, along with any hope for liberty:

“We were on the verge of obtaining a reasonable degree of liberty. We were going to get our taxes slashed and simplified but not abolished, the military budget reduced and the troops brought home, drugs decriminalized and managed via harm reduction, a significant liberalization of immigration controls without totally open borders, new restrictions on the Fed’s central planning powers adopted in 2008 and 2009, some more flexibility on pharmaceutical testing and health insurance, moderate patent reform, a diminution of pages in the Federal Register, prison reform, genuine oversight and remedies for police misconduct, strengthened due process and warrant requirements in national security cases, a plan to phase out massive entitlements, some fair-minded school reform, and a scaling back of federal gun laws. We were on the cusp of this moderate but significant step toward liberty, where we would not get all we wanted, but we would get much of what we wanted. But I ruined it all. I cited Murray Rothbard and Lysander Spooner. I made the perfect the enemy of the good, and now the liberty that was in our grasp is lost forever. Sorry, everyone. My selfish desire to adhere to ideological purity has spoiled our chances at increased freedom once again.”

Imagine My Relief

I accidentally flicked on Hannity tonight and there was Ron Paul’s former son, Senator Quisling of Kentucky, explaining that we really don’t need to lay off any government workers because of the sequester.

Imagine my relief. I was afraid some parasites might actually have to find work in the productive sector….

My Articles Featured On Other Sites

Here’s a list of my articles that have been featured on other sites. At some point I expect to republish all the articles here, but for now at least these are links to the articles or archived copies:


The Fundamental Fallacy of Government

Marketing Market Anarchism

A Parliament of Whores?

The Revolution Will Be All Business

Disputing Narveson On The Coercion Of Free Riders

Economic Secession

[UPDATE: It seems that has gone away since I posted those links so I’m moving the articles to this blog.]


Look Ma: Invisible Hands

The Invisible Hand Of Spontaneous Corruption

The Wrong Hill

An Embedded Premise

The Fallacy Of Control

A Short Argument For Intellectual Property
(I now recognize the above argument is wrong.)

At the Free State Project:

A Porcupine’s Worth Is His Price

Equal Authority

In my last article I argued that equal treatment is not a principle of justice. There are various formulations of equal treatment – equality under he law, equality of opportunity, or equality of outcome, for instance. I’ve sought to demonstrate that these formulations are incoherent, that they add nothing to justice, and they strongly tend to erode justice.

In Equality: The Unknown Ideal, Roderick Long points to a very different kind of equality as the foundation of justice. First he draws our attention to a passage from an early draft of the Declaration of Independence:

We hold these truths to be sacred and undeniable: that all men are created equal and independent; that from that equal creation they derive rights inherent and inalienable, among which are the preservation of life, and liberty, and the pursuit of happiness.

But what sort of equality did Jefferson have in mind, in claiming to derive rights from “equal creation”?


For the answer to this question we must turn from Jefferson to Jefferson’s source, John Locke, who tells us exactly what “equality” in the libertarian sense is: namely, a condition

wherein all the power and jurisdiction is reciprocal, no one having more than another, there being nothing more evident than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another, without subordination or subjection….

In short, the equality that Locke and Jefferson speak of is equality in authority: the prohibition of any “subordination or subjection” of one person to another. Since any interference by A with B’s liberty constitutes a subordination or subjection of B to A, the right to liberty follows straightforwardly from the equality of “power and jurisdiction.” As Locke explains:

[B]eing all equal and independent, no one ought to harm another in his life, health, liberty or possessions…. And, being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us that may authorise us to destroy one another, as if we were made for one another’s uses, as the inferior ranks of creatures are for ours.

Locke points to the self-evident fact that no individual is born with moral authority over, or moral subordination to, any other individual. By nature individuals have equal authority – legitimate authority over their own lives, but not over the lives of others.

Right there, Locke has essentially derived the non-aggression principle, a priori. The fact that individuals naturally have equal moral authority means that no individual can morally aggress against another.

Notice that equal authority in no way implies equal treatment of the types previously discussed. The only offense against equal authority is forceful interference with another individual’s legitimate authority over himself.

This coincides perfectly with what I said in my last article:

So what is just? There is a very simple principle of justice and it has been identified by libertarians – justice is embodied in the principle of non-aggression. Aggression is unjust and the proper goal of libertarianism is to identify and curtail such injustice. That’s it.

Equal Treatment Is Not A Principle Of Justice

I’ve mentioned a conversation on gay marriage I heard recently between Stephanie Murphy and Mark Edge on Free Talk Live. In my recent piece Marriage Recognition As A Positive Right I explained why I take exception to the comparison of marriage rights to gun rights.

I called the show and argued that the proper libertarian goal was to get the state out of marriage and that state recognition of gay marriage was a step in the wrong direction. Both Murphy and Edge resisted this argument in favor of a principle that government should treat people equally.

Stephanie Murphy stated her principle clearly

“.. actually I think one of the most important principles of liberty is that people are individuals and as such they have natural rights and they should be treated equally.”

Later she concluded with

“I think it helps people be more willing to hear you when you’re saying people should be treated equally, I mean, who could disagree with that?”

That’s certainly a common and generally respected opinion on liberty, but I strongly disagree with it. I will argue that equal treatment is not a legitimate principle of liberty or of justice. I will argue instead that “equality under the law” is a seductive and dangerous principle that, in practice, systematically erodes liberty and justice.

Murphy pointed out that current marriage law discriminates, holding that as a knockdown argument in favor of legal recognition of gay marriage. But what does equal treatment under the law mean? If the law says that marriage is a legal union between one man and one woman then so long as the law is applied to each individual equally it satisfies the formal principle of equal treatment. If it is apparent to you that such law is nevertheless unjust you should be more than half way to understanding why the principle of equality under the law is incoherent.

Wouldn’t equality under the law require recognizing gay marriage since straight marriage is recognized? My answer is that it satisfies the formal principle of equality under the law in precisely the same sense that a law defining marriage as between one man and one woman does – and that neither satisfies the principle of justice. Why not? As Murphy herself points out, legal recognition of marriage entails many state granted privileges. Those legal privileges consist primarily of positive rights – legal claims on other persons and their property. For instance the state forces businesses to provide married employees and their spouses with certain family and medical leave and also with certain insurance coverage. These are just a couple of many, many positive rights being sought by gay marriage advocates – I saw one on John Stossel’s show this week who said there were over 1,100 such privileges granted with marriage and I believe him.

So the argument via the principle of equal treatment is really saying that if you’re going to compel people to provide certain benefits to straights it’s only fair to compel people to provide the same benefits to gays. But of course it’s not fair at all – certainly it’s not fair to the people being compelled. Aggression on behalf of one person cannot justify aggression on behalf of others.

As Lynette Warren and I pointed out in Marriage, The Institutional Man, and The Sovereign Individual:

But what does the state have to offer aside from benefits? The state has nothing sacred or even moral to impart. The state has only carrots and sticks and any carrot it might offer you was taken from someone else by way of a stick. You can only defile that which is sacred or intimate in your marriage by inviting the state to take part in it.

Positive rights cannot be morally justified. And once positive rights are legally granted, people are extremely reluctant to relinquish them. Just look how difficult it is to even publicly discuss rolling back the positive legal rights entailed in Social Security and Medicare. It’s fair to say that “positive rights” are just another term for legal “entitlements”.

The principle of equal treatment is routinely used to argue for the expansion of such entitlements, and with routine success. One of the arguments for Obamacare was that since health care was provided for seniors via Medicare, it should be provided for all citizens. I heard public officials argue that all citizens should be provided with the same health benefits as members of congress – else people are not being treated equally.

Libertarians often get lost in the weeds arguing that they are for equality of opportunity, not equality of outcome. But in this they have no leg to stand on, since there is nothing intrinsic in the principle of equal treatment to identify either opportunity or outcome as the proper standard, nor is there even any coherent standard of equal opportunity.

So what is just? There is a very simple principle of justice and it has been identified by libertarians – justice is embodied in the principle of non-aggression. Aggression is unjust and the proper goal of libertarianism is to identify and curtail such injustice. That’s it.

Gays are certainly victims of government aggression, we all are. The moral remedy cannot be to impose even more unjust positive claims on their behalf. The only moral remedy is to roll back any and all aggression against them. If this seems extremely difficult, that’s because it is. But realize that rolling back aggression can only become more difficult with every additional positive right that is made law.

Does the principle of equal treatment add anything whatsoever to the principle that justice is non-aggression? Not a whit. In the absence of aggression you have justice. Equal treatment under the law, on the other hand, is a principle that strongly tends to produce an ever growing body of unjust positive claims on other people and their property.

Incoherent Equality

I’ve pointed to James Buchanan’s attempt to apply an incoherent notion of generality to constitutional law. This principle of generality is really what people mean by “equality before the law”. In a review of Politics by Principle, Not Interest by Buchanan and Roger Congleton, Anthony de Jasay gently, but thoroughly, shreds the principle.

Consider taxation: The principle of generality, or equality before the law, posits that all individuals should be taxed equally. That sounds pleasing to many. Unfortunately the principle can give us no guidance on what such generality or equality needs to look like. Does a poll tax where every citizen pays an equal sum satisfy equality before the law? How about a flat tax on income where every citizen pays an equal percentage? But then again, why a tax on income instead of total wealth? Or why not a tax where every citizen is left with an equal income after taxes?

Which of these proposed polices satisfies the principle of equality before the law? Sober reflection reveals that the principle provides no standard by which one may choose between these polices – any ranking of the policies depends on an entirely subjective understanding of equality which has nothing to do with equality before the law.


Although the “treat like cases alike” meaning of generality is no more than a tautology for “apply the rule,” the “non-discrimination” meaning clearly does not bear pushing anywhere near its logical limit – a telling sign that it has some defect that comes to light when the meaning comes to be stretched a little. In fact, Buchanan and Congleton are far too intelligent not to sense this problem. They are fairly diffident about providing a working definition that would tell us, in every case, what rule would pass for general.

In one basic case, though, they are perfectly confident about what rule would be the truly general one. This case is the two-person (or two-coalition), two-strategy game of benefit- or burden-sharing, as exemplified by Hume’s farmers digging a drainage ditch. A two-by-two matrix describes four alternative allocations of the workload. Along what the authors call the diagonal, both farmers dig for two days or neither digs. Along the off-diagonal, either one digs for three days and the other for one, or the other way round. Which of the two off-diagonal, asymmetrical alternatives is the actual solution depends on which “farmer” is enabled by the political choice mechanism to coerce the other. A rule applied to this type of case is general if it outlaws the off diagonal solution, so that only the symmetrical, equal-sharing solutions remain available.

Both farmers work the same length of time. Obviously, the Pareto-optimal solution among all the symmetrical ones is that they should both work as long as it takes to complete the ditch; but this is not the point. The point is that generality has been found to reside in symmetry. From here, a promising avenue seems to lead toward a more developed form of generality. The simple version of the rule would say that the farmers, when placed in the circumstances described, should dig the same number of days, preserving one kind of equality, albeit a rather rudimentary one.

However, there is no compelling reason why equality of days worked should be regarded as the best, let alone the sole valid criterion of symmetry. If one farmer is frail, old, or arthritic, or if one has a higher opportunity cost because when he digs he cannot attend to the calving or lambing, or if his end of the ditch has a nasty, sticky, clayey patch, then a rule laying down equality of labor time might well be held to produce asymmetrical shares of pain or cost. Likewise, it might also be argued that symmetry calls for labor time to vary inversely with productivity or directly with the benefit each farmer will derive from the drained meadow. Symmetry in the relevant variable must prevail, but why is labor time the relevant variable rather than pain, productivity, opportunity cost, benefit, or something else?

Is That The Best Idea You Can Come Up With?

I rather enjoyed the gentle dancing bits at the beginning of this protest at the Jefferson Memorial, but one reason I’m disinclined to take part in something like this is that you never know when the Human Megaphone is going to start chanting something pathetic like: “THIS IS WHAT DEMOCRACY LOOKS LIKE!”

At this point, I pictured Charles Durning from O Brother Where Art Thou playing Murray “Pass The Free Trade Pappy” Rothbard, with his idiot son Junior:


People like that democracy Pappy, maybe we should get us some…


Sweet weepin’ Jesus on the cross, is that the best idea you can come up with?


Thank God your momma died giving birth, if she’d a seen ya she’d a died of shame!

Marriage Recognition As A Positive Right

Sunday night I was listening to Stephanie Murphy and Mark Edge on Free Talk Live (the best talk radio show on the air, by the way) and the topic of gay marriage came up. Edge alluded to a constitutional argument that New Hampshire gay marriages need to be recognized in all 50 states. Murphy then pointed out that gun rights advocates want reciprocity of state gun permits under the same constitutional principle.

The constitutional arguments don’t really interest me since the constitution has no legitimate authority, but I was struck by a profound difference between the gun rights and marriage rights being discussed – the difference between positive and negative rights. Briefly, a negative right is a right to be free from forceful interference in the conduct of one’s peaceful private affairs, while a positive right is a claim that others have a duty to provide you with something. Free speech is a classic example of a negative right, it is simply the right to not be silenced by force. When people say children have a right to an education they are usually advocating a positive right, an obligation upon others to provide such education. It should be clear that libertarians should support negative rights, not positive rights.

Gun rights are negative rights. What gun rights advocates fundamentally seek is merely to be left alone in the conduct of their own peaceful affairs. But their peaceful behavior in this sphere is criminalized to a very high degree. It is often very difficult for gun owners to remain in compliance with existing gun laws, almost impossible if they travel.

Contrast this with the situation in regard to gay marriage. First recognize that marriage is not a product of the state, what we are really talking about is state recognition of marriage. Gay marriage is recognized in a few states, but not in most. But marriage exists quite apart from legal recognition, as even the government (paradoxically) recognizes – for instance, on one level polygamous marriages are not recognized by the state, while on another level they are recognized: as crimes. Surely libertarians ought to recognize that partners in a voluntary polygamous marriage are indeed married even though their marriages are not recognized by the state. So now I’ll point out that gay marriage is allowed in all 50 states, even though it is only legally recognized in a few. Gays can marry privately, as polygamists and others do, without facing the criminal jeopardy that polygamists – and gun owners – face.

For gun owners and polygamists the mere decriminalization of their peaceful private behavior would look pretty damned close to total victory.

Gay marriage is not criminalized. No doubt there are laws on the books which violate the legitimate negative rights of gays (but that’s true of everyone) and such laws are evil on their face, but gays can marry privately without going to jail like polygamists. Insofar as there is a legitimate right to marry it is a negative right, a right to be free from forceful interference. And that negative right is not being systematically violated with respect to gay marriage.

The “rights” most gay marriage advocates are now seeking are positive rights. There is no legitimate right to have one’s marriage recognized by others. If you look at what I call my marriage and decide that it’s not really a marriage, that’s your prerogative. If you give married people a discount but decide I don’t qualify, that’s your prerogative. If you won’t rent an apartment to me and my wife because you don’t recognize our marriage, that’s your prerogative. None of these actions harm me because I don’t have any right to your recognition or your business.

But take a look at this list of “rights” that these advocates are seeking. I find nary a negative right in the list, there’s really nothing in there about being left alone. Let’s look at some clear examples:

Family and Medical Leave

The Family and Medical Leave Act (FMLA) guarantees family and medical leave to employees to care for parents, children or spouses. As currently interpreted, this law does not provide leave to care for a domestic partner or the domestic partner’s family member. Family and medical leave should be a benefit for all American workers.

That’s clearly seeking a positive right, a claim against others. Here’s another:

Employee Benefits for Federal Workers

According to the GAO Report, marital status affects over 270 provisions dealing with current and retired federal employees, members of the Armed Forces, elected officials, and judges. Most significantly, under current law, domestic partners of federal employees are excluded from the Federal Employees Health Benefits Program (FEHBP).

…and another…

Continued Health Coverage (COBRA)

Federal law requires employers to give their former employees the opportunity to continue their employer-provided health insurance coverage by paying a premium (the requirement was part of the consolidated Omnibus Budget Reconciliation Act of 1985; hence the common name COBRA). An increasing number of employers, including 198 of the Fortune 500, now offer their employees domestic partner benefits. Although this trend is encouraging, the Federal COBRA law does not require employers to provide domestic partners the continued coverage guaranteed to married couples.

…and another…

Social Security

Social Security provides the sole means of support for some elderly Americans. All working Americans contribute to this program through payroll tax, and receive payments upon retirement. Surviving spouses of working Americans are eligible to receive Social Security payments. A surviving spouse caring for a deceased employee’s minor child is also eligible for an additional support payment. Surviving spouse and surviving parent benefits are denied to gay and lesbian Americans because they cannot marry. Thus, a lesbian couple who contributes an equal amount to Social Security over their lifetime as a married couple would receive drastically unequal benefits, as set forth below.

Now I wouldn’t deny for a moment that the government is illegitimately interfering in the lives of gays, it does that to everyone. My point is that advocates for the legal recognition of gay marriage are not seeking freedom from government interference, they’re seeking positive rights under the argument that since such claims are already in the law they should be applied equally.

Principled libertarians cannot endorse the expansion of such positive rights – claims against others. To endorse that is to endorse aggression. On Free Talk Live, Mark Edge expressed doubt that legal recognition of gay marriage would entail an expansion of government. What cannot be doubted is that under existing law it would entail an expansion of positive claims against the liberty and property of others, as the examples above show. It is a terrible mistake for libertarians to support this expansion, once such positive rights have been granted people are extremely reluctant to give them up.

Yet many libertarians find arguments for equal treatment compelling. In a coming article I’ll explain why such arguments should be rejected.