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A Reply To "Libertarianism by Conjecture and Refutation"


J. C. LESTER

A reply to "Libertarianism by Conjecture and Refutation", Norman Barry, Humane Studies Review, volume 13, number 2, Spring 2001, a review of Escape from Leviathan: Liberty, Welfare and Anarchy Reconciled, J. C. Lester, London: Macmillan, 2000.

As someone who wishes his own book to succeed, I am grateful for a review with such high praise from a well-known classical liberal. As a critical rationalist who wishes to learn from his mistakes, I am grateful for Norman Barry's thoughtful criticisms. The only way that I can hope to try to repay these and appreciate their full force is by doing my best to reply to them. So that is what, in the spirit of gratitude and truth-seeking, I shall do here. I say this in case less critical-rationalist-minded persons mistake my motivations (and so might be inclined to dismiss my reply) as being merely vain or churlish in objecting to some criticisms in what was, by any standards, a very favourable review. In all honesty, I welcome those criticisms. I shall quote the main ones and then respond to them. I leave out some quibbles I have about Barry's exact exposition. Though, "rarely has capitalism been justified with such philosophical expertise" overlooks that it is defended rather than "justified" private-property anarchy rather than "capitalism". And on the general point that my exposition is "not always crystal clear", I can only plead that the book covers an awful lot of ground, much of which is difficult, and often applies a new theory for the first time.

"Perhaps Lester pushes the analogy with Popperian science a little far when he says that libertarianism is 'as unsupported as universal scientific theories.' [2] After all, scientific theories, unlike those of ethics and politics, display a greater vulnerability to falsification, and there is considerable agreement among scientists as to what counts as a refutation of a theory."

That theories in ethics and politics are harder to falsify, if true, hardly means that they have worse, or better, support than scientific theories. If critical rationalism is true, then universal theories in all fields must remain completely unsupported conjectures. Passing tests in no way supports them.

"Furthermore, there is a strong a priori element in Lester's thinking that does not gel easily with Popper's scientific empiricism (though that philosopher is clearly no ordinary empiricist). Certainly, the apodictic reasoning of Mises, who constructed the whole of economic theory from apriori premises, would not be acceptable since, in Popper's view, a proposition that could not be falsified had zero empirical content. Some of Lester's ratiocination looks suspiciously like this."

Originally, Karl Popper evolved empirical falsificationism as a way of distinguishing science from non-science (though all apparent falsifications are themselves, perforce, theory-laden conjectures subject to testing; something which many critics have failed to understand). But Popper's overall epistemology of critical rationalism, particularly as influenced by Imre Lakatos (who showed him that mathematics was falsifiable) and William Bartley (who showed him that everything else was too, including critical rationalism itself), is much broader than its scientific origins. From the outset, Popper readily acknowledged that there would be empirically unfalsifiable aspects even of empirical science. He certainly did not object to mathematics and logic. There is no reason that he would be bound to object to empirically unfalsifiable aspects within any theory. What is more, Popper explicitly advocates something extremely like Ludwig von Mises's rationality as a way of making social science theories more falsifiable overall (e.g., "The Rationality Principle", 357ff of A Pocket Popper, David Miller, ed., Fontana Press, 1983). For unless we suppose that people are attempting to act in the best way that they can make sense of, much behaviour can be dismissed as unintelligibly and uncriticisably 'irrational'. For instance, John Watkins used Popper's rationality assumption in a paper explaining the behaviour of a ship's captain who had crashed his ship during a manoeuvre in a prima facie 'crazy' way (in Borger, Robert and Cioffi, Frank, eds., Explanation in Behavioural Sciences, University Press, London, 1970). It is confusing and ultimately impossible to eject all the a priori aspects of a theory, as some economists have tried with rationality. To assert them clearly is to make them more criticisable, rather than to put them beyond criticism. Mises was hardly a critical rationalist in his approach, of course, and he took the a priori aspect too far in the opposite direction.

"However, Lester slightly relaxes this rigor when he admits into the theory what he thinks is the necessity of cardinal utility (knowing how much a person is better off from a course of action). While he concedes that such notions are not strictly measurable, he claims that 'without the notion of cardinal utility we are left without the notion of conscious beings.' [3] I am not sure this is consistent with his minimalist, even materialist, view of the self that he espouses earlier. I wonder what some persistent interventionist might make of the notion of 'conscious being': it could be used as a device for suppressing our choices in the market."

I see why my unorthodox position will make many libertarians, and economists, chary. But why is that due to lack of rigour? I explain why I think it is necessary to allow that approximate cardinal utility sometimes makes sense. Norman Barry does not say why it does not, so I have nothing to add. That the concept might be abused cannot be an objection to its making sense (and see below on interpersonal comparisons of utility, which is more precisely where the risk is usually thought to be located). I do find it hard to understand how a conscious being could have a hierarchy (ordinality) of real desires but these desires had no felt intensity (approximate cardinality). This might just be a failure of imagination on my part, but it certainly does not seem to be true of humans that we are like this.

"Withholding a benefit to which a person might (mistakenly) think he is entitled, often a feature of positive liberty, is not a loss of freedom: only the imposition of a cost is. This might cover most cases of unfreedom, but there is a problem because of its unavoidably subjectivist nature. Those of a deep religious persuasion undoubtedly feel a loss of subjective liberty when their faith is traduced, as Muslims undoubtedly did when the author Salman Rushdie parodied their beliefs. This example is used by Lester, but not very satisfactorily. He simply says they had no 'realistic case' without properly analyzing it in the context of his philosophical position. I do not think the notion of harm can be eliminated from a discussion of permissible actions, even though Lester rightly points to its conceptual ambivalence. Despite the ambiguity here, and irrespective of the Muslims' perhaps explicable anger at Rushdie, it is hard to imagine that they suffered a loss in liberty. Only by a perverse definition could their interests be said to have been harmed. The disputatious nature of harm is matched by the irredeemably subjectivist aspect of Lester's criterion of the imposition of cost."

A lot more might be said about the Rushdie case, which I spend only a few hundred words on. I was not interested in getting to the bottom of that in the depth that a periodical article might but, rather, using the example to explicate how 'minimising imposed costs' applies to the taking of offence. But not only do I not say that they have no "realistic case" (Barry's words), I say that I do not mean to deny that they do have a case ("I do not need to deny that having others criticize their religion is an imposed cost to the Muslims to some degree" p.67). And I deal with various analogies and possible criticisms and counter-criticisms explicitly "in the context of [my] philosophical position". So I am, again, at a loss to know what to add. I cannot see how it can be denied that it is against the self-perceived interests, which is what I am discussing, of sincere Muslims that their religion is mocked (though their persons and property are not physically harmed). Barry seems again to be conflating a criticism of my theory of liberty as such with a criticism concerning its possible misapplications. I argue just earlier in the book that there is an inescapable subjectivist aspect of imposing a cost. To show that this is "irredeemably subjectivist" in practice Barry needs to show what is wrong with my replies to posited criticisms or give his own unanswerable example. I am sure that he could usefully have said a lot more here. I just wish he had.

"In his discussion of the propertarianism versus libertarianism debate he comes down on the side of liberty. Indeed, the notion of self-ownership derives from the idea of liberty conjectured in a state of nature. However, the fact that liberty must prevail over property might pose some problems for Lester's compatibility thesis. He quotes the familiar example of the property owner buying up land so that he surrounds an otherwise innocent person, completely eliminating his freedom. Is property to be legitimately limited to prevent this happening? Lester merely asserts that liberty takes priority. Similar problems, identified by David Friedman, occur with a possible conflict between liberty and an uncontroversial notion of utility. Are we entitled, albeit illegitimately, to seize a gun when that is the only way of controlling a dangerous lunatic? Lester seems to go along with common sense solutions to admittedly unusual cases; they do pose probably insoluble intellectual problems. But they could be converted into more plausible scenarios by anti-libertarians using well-chosen examples."

If we are libertarians then liberty surely must take priority. As for this being merely asserted, there are a few sentences of explanation as to why this is the lesser imposition and so more libertarian and this is, in addition, in a context discussing similar issues. What I say of Friedman's examples is, broadly, that they are acceptable in the abstract but that they exactly lack plausible scenarios that make them a practical problem. Barry's mere assertion that anti-libertarians could think of some does not give me anything substantial to consider.

"There is a property problem more immediately relevant to public policy than the examples of 'desert island ethics' analyzed in detail by Lester, however. I refer here to the original ownership of land and the rationale of land rent. It is a problem that bothered classical economists in the nineteenth century and it should concern libertarians today more than it does. It certainly has a bearing on Lester's compatibility of liberty and property thesis, for the case for a land tax (Henry George's single tax) is the only example of an interventionist policy I know that is consistent with efficiency (utility) and a superficially plausible notion of liberty. What gives the lucky inheritor of land the sole title to a resource limited by nature? What can possibly justify the differential rent paid to an owner of a property in New York which is identical to a property in Idaho? The owner of the New York apartment did not create that extra value: in a sense, everybody did. Are libertarians saying that inheritors of land display entrepreneurship? If so, then that concept becomes entirely analytic. Of course, the followers of Henry George did not deny that improvements to land should be fully rewarded. They were, on the whole, pro-market, and they could easily argue that no efficiency losses would occur through the single tax (as land has little alternative use). I do not deny that there are libertarian replies to consistent Georgists, but I was disappointed that Lester ducked the issue with his assertion that '… exclusive land ownership, for reasons of security and privacy, is usually a relatively trivial imposed cost on people and its absence a great one.' [5] I am not sure that it is trivial, even though in the modern world knowledge is probably a more fertile source of wealth creation than landownership. Lester does recognize some constraints on original acquisition, [6] deriving from a version of Locke's injunction to leave 'as much and as good' for others, and also those embodied in the claim that it is illiberal for people to consume irreplaceable natural resources. It is therefore a little disappointing that he gives no attention to the only socialist proposition that ever made any sense, i.e., collective restraint on individual landownership."

For some reason, Georgism simply did not crop up during the considerable time I was writing, and rewriting, this book. I certainly did not mean to duck the issue. Indeed, I took it for a dead duck. I am happy to say why here, though probably at too short a length to impress its adherents. Not merely land but absolutely every product and even ourselves have a considerable part of their (market and non-market) value because of the demand of other people. Insofar as there is mere luck involved in this—and there will always be some, I suppose—we are still not thereby proactively imposing on other people. But if the state taxes us for whatever reason then that ipso facto proactively imposes on us. So such taxes cannot be libertarian. I see no realistic case that these taxes can improve welfare any more than any other kinds of taxes. All the usual moral hazards and waste associated with taxation appear to apply equally to land taxes. Further, land is not the inherently fixed finite resource that is supposed to distinguish it. Superior agricultural techniques (producing vastly more food per acre, when politics allows) and building techniques (producing vastly more living space simply by building skywards, when politics allows) mean that the real price of land, and so its relative scarcity, is declining. It is not declining at the same rate everywhere and would be declining faster with less political intervention. But the differences in price are themselves a market signal that taxes would, as ever, also disrupt and so slow growth. Admittedly, such developed agricultural and habitational land will command relatively higher prices. And greater populations and so even greater demand will ensue. But—as is so well argued in Julian Simon's Ultimate Resource—the greater division of labour will ensure that, paradoxically for common sense, the relative scarcity of land will continue to decline (not that interfering with the market would obviously be desirable in any way even if this were not so).

"With regard to welfare, which Lester handles with considerable aplomb, there is only one area that provoked dissent from this reviewer. After eloquently defining welfare in terms of want-satisfaction, where only the individual is qualified to determine utility (defined in preference terms rather than quantifiable units of pleasure), Lester suddenly invokes the idea of the interpersonal comparison of utilities (an assertion which has an unacknowledged affinity with his earlier sympathy for cardinal utility). [7] It is true that he does so somewhat warily, aware as he no doubt is of the way in which interventionist, Benthamite utilitarians have used the notion to smuggle in all sorts of constraints on liberty and the market (for example, progressive income tax) which allegedly make everybody better off. Lester, however, says we make such utility comparisons all the time. Of course, a mother often says Susie needs a new dress more than Tommy needs shoes, and she no doubt thinks the family as a whole is better off as a result of the purchase. But we don't want such judgments to invade public policy. To my surprise, Lester says 'general arguments can show that certain social rules are likely to promote over-all want-satisfaction.'[8] It is true that he does not want some sort of comprehensive utility function imposed on society, but he is obviously worried by the implications of the formal Pareto criterion. For a welfare improvement to occur, everybody must gain, and there is a rigid prohibition on any interpersonal comparisons of utility in Paretianism.

"This austere doctrine means, for example, that any movement from a slave to a free society requires the agreement (or compensation) of the slaveowners, or that the landowners in Britain would have to have been compensated on the repeal of the Corn Laws in 1846. But the problem here has been misunderstood. The Paretian is not necessarily precluded from making moral judgments about the evils of slavery or monopoly landownership; he is not necessarily an emotivist or a logical positivist. All he is arguing is that such appraisals have no relevance to a scientific analysis of what constitutes a welfare improvement. Slaveowners and monopoly landowners are simply immoral, but Lester is reluctant to make ethical judgments. Sometimes we must, though, if we are to have a fully compatible set of values."

I do explicitly acknowledge the affinity with cardinal utility in the rationality chapter, where I say that "Cardinal utility and economics will be discussed in more detail in the welfare chapter" (p.48) and explain it in the statement that "the motive-utility of aprioristic economics (that we must aim at what it most satisfies us to aim at) becomes the goal-utility of preference-utilitarian welfare (that we are better off if we really achieve what it most satisfies us to aim at)." (p.49) Obviously, preference utilitarianism (which I am there defending as a theory of welfare) requires some interpersonal comparisons or it would merely be some form of Paretianism. In the welfare chapter, I allow broad, non-scientific, interpersonal comparisons of utility for the sake of argument to show that this leads back to libertarian conclusions in any case. I cannot use moral judgements within the context of my thesis just because my whole argument is that there is an objective congruence of liberty, welfare and private-property anarchy. My moral judgements are irrelevant to this. In any case, do we not partly think that slavery is wrong because it is a terrible imposition that the relatively slight gain to the owner cannot begin to excuse? This is an intuitive interpersonal comparison.

"To conclude on a slightly critical note: anarcho-capitalists are very good at showing how a private enterprise system of law enforcement could work, how even national defense could be provided voluntarily, and how well-defined property rights would solve all the problems of the environment. Indeed, with some minor discordances, Lester has shown how in such a world all our values are compatible. Getting there, however, is not only an immense practical problem, but it is also an intellectual one which tests compatibility to the full. How can unfunded pension systems be wound up without hurting one generation? What about all those people who have become completely dependent on welfare through coercive national insurance schemes? Can they all be compensated in any changeover? We know the world looks very pretty in theory but in practice it bears the same tawdry and weary face that it always did. And always will?"

Barry mentions another area where I might well have said something but did not. Again, I do not see it as a hole in the theory. My compatibility thesis might naturally seem to entail a compatible transition. But it is not part of, or entailed by, the compatibility thesis—that maximum liberty and maximum welfare do not clash as an end-state—that we must, whatever our current circumstances, always be able to move towards this efficiently in an immaculately compatibilist way. People have come to rely severely on, or stoically to tolerate, certain regular political impositions in a way that does not happen with individually unpredictable common crime (but if it did then that might also have to be phased out instead of stopped dead if welfare were to be maintained). To cut off state pensions immediately is certainly libertarian but possibly not utilitarian (and possibly it is: a short sharp shock might well be better than having it drag on). Perhaps it is not a practical political proposition mainly because all government rests on opinion. So some compromise might be necessary to get us out of the mess that we are in as quickly as possible. Phasing these things out, though not fully libertarian, could ensure that no one is left in the lurch while all newcomers make their own preferred arrangements. A similarly imperfect possibility is selling off various 'state assets' to help with adequate funds for this or tying their sale to dealing with the dwindling ex-state aspects of provision. I suggest these things as practical political possibilities. Concessions to what is practical appear inevitable. The various publications of free-market policy institutes, though not always excellent or even particularly libertarian, are probably much better on sorting out the piecemeal, practical transition than I can hope to be. Having said that, some practical possibilities are clearly more libertarian than others and I would hope that these could be explored first (as they are not always at present).

J. C. Lester (July, 2001)

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As someone who wishes his own book to succeed, I am grateful for a review with such high praise from a well-known classical liberal. As a critical rationalist who wishes to learn from his mistakes, I am grateful for Norman Barry's thoughtful criticisms. The only way that I can hope to try to repay these and appreciate their full force is by doing my best to reply to them
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Barry seems again to be conflating a criticism of my theory of liberty as such with a criticism concerning its possible misapplications. I argue just earlier in the book that there is an inescapable subjectivist aspect of imposing a cost. To show that this is "irredeemably subjectivist" in practice Barry needs to show what is wrong with my replies to posited criticisms or give his own unanswerable example. I am sure that he could usefully have said a lot more here. I just wish he had.