Revisiting Nagel's "Libertarianism Without Foundations" (Part 2)

One of Nagel’s central objections to Nozick is that he places far too much moral weight on property rights. It seems reasonable to take some of a person’s property when needed to, say, save a life. Nagel writes, “It is far less plausible to maintain that taking some of an innocent man's property is an impermissible means for the prevention of a serious evil, than it is to maintain that killing him is impermissible. These rights vary in importance and some are not absolute even in the state of nature.” Later he elaborates:

 

There is no reason to think that either in personal life or in society the force of every right will be absolute or nearly absolute, i.e., never capable of being overridden by consequential considerations. Rights not to be deliberately killed, injured, tormented, or imprisoned are very powerful and limit the pursuit of any goal. More limited restrictions of liberty of action, restrictions on the use of property, restrictions on contracts, are simply less serious and therefore provide less powerful constraints.

 

Nagel’s objection to Nozick is sensible. But he fails to recognize that it applies with equal force against liberal egalitarianism. Rawls, for instance, claimed that the protection of basic liberties enjoyed lexical priority over competing social concerns—that is, these liberties are “never capable of being overridden by consequential considerations.” Thus, limited restrictions on basic liberties are impermissible, even to prevent a serious evil. By way of example, Rawls’s stance on bodily autonomy implies that the state may not compel a 15 second blood draw even when needed to save a life. So here again, Nagel misses Nozick’s point, which is that Rawls holds personal property to a different standard than all other basic liberties.

Revisiting Nagel’s “Libertarianism Without Foundations”

Thomas Nagel‘s review of Nozick’s Anarchy, State, and Utopia, titled “Libertarianism Without Foundations,” is probably the most famous critique of Nozick’s libertarianism. Although I’m not a Nozickian myself, I’ve always thought that Nagel’s objections missed the mark.

 

Consider Nagel’s take on the Wilt Chamberlain argument. Here Nozick argues against so-called “patterned principles” of distributive justice such as Rawls’s difference principle which requires the distribution of wealth and income to maximize the material welfare of the poorest. Nozick objects that these principles fail to respect economic liberty and offers a famous thought experiment about Wilt Chamberlain to make the point.

 

Begin by assuming that the initial distribution of resources is perfectly just, according to your favorite theory of distributive justice. Now assume that Wilt Chamberlain offers people the opportunity to watch him play basketball for a quarter per game. A million people buy tickets to Wilt’s games and the perfect distribution of wealth and income is thereby disrupted. If economic justice is about achieving a perfect distribution, then we must conclude that the new, post-Wilt distribution is unjust. Yet Nozick argues that this new distribution is clearly not unjust. After all, who has a legitimate complaint about it? Not Wilt, because he chose to play basketball for a quarter per ticket. Not Wilt’s customers, because they chose to pay a quarter per ticket. And not those who chose not to buy a ticket because they have the same amount of money that they had before—the amount of money which was, by hypothesis, the just amount for them to have.

 

Nagel objects to the Wilt Chamberlain argument on the grounds that Nozick assumes that Wilt’s customers have the right to use their money however they like. But here, according to Nagel, Nozick

 

erroneously interprets the notion of a patterned principle as specifying a distribution of absolute entitlements (like those he believes in) to the wealth or property distributed. But absolute entitlement to property is not what would be allocated to people under a partially egalitarian distribution. Possession would confer the kind of qualified entitlement that exists in a system under which taxes and other conditions are arranged to preserve certain features of the distribution, while permitting choice, use, and exchange of property compatible with it.

 

Nagel’s criticism is unpersuasive. Rawls himself recognizes that ownership of personal property is a basic liberty on a moral par with freedom of speech and bodily autonomy. Thus, your right to use your personal income to watch Wilt play must not be subordinated to a patterned principle of distribution, by Rawls’s own standards.

 

To make this point clearer, let’s apply Nagel’s response to Nozick to another basic liberty—bodily autonomy.  Imagine that Twin Rawls endorses a patterned principle of blood distribution: “Distribute blood in the way that maximizes the welfare of the worst off.” Twin Nozick objects that this patterned principle violates bodily autonomy because it will require compelled blood donations. Twin Nagel replies that Twin Nozick misinterprets bodily autonomy—you only have the right to decide what happens to and in your body insofar as those decisions align with the patterned principle of blood distribution. Here Twin Nozick can reply that it’s Twin Nagel who has the implausible interpretation of the right of bodily autonomy, at least insofar as it is understood as a basic liberty. If we take bodily autonomy seriously as a basic liberty, we are precluded from subordinating it to a patterned principle of distribution. Nozick’s point is that the same principle should hold with respect to personal property.

Fall 2021: The Obligation to Disclose

Many universities remain silent about their Fall 2021 plans. For instance, my own employer, Georgetown University, has apparently communicated almost nothing to students. 

Universities should instead communicate as much as possible about what they expect their plans to be, including the probabilities that various alternatives might occur. The reasons for this are fairly simple:

1. Students choosing to enroll or to continue at a particular university are making a high-stakes decision.

2. Their choice is dependent upon the expected value of that education and the social and educational environment. They depend heavily upon the representations made by universities. This is not a buyer-beware market. 

3. The quality of life and kind of education they expect to receive is clearly material to their decision to enroll or continue at one place rather than another. Many students would turn down admissions offers and select a different school if they knew, for instance, that social distancing will be maintained in Fall 2021, or that courses will be online, etc. Universities should not be trying to retain or acquire students on the basis of misrepresenting such facts. Students should know what they are buying. 

4. Further, education is sold with reasonable prior expectations. When I order a pizza, I expect it not to have a cauliflower crust unless it explicitly states that. Similarly, when a student signs up for schooling, they have certain reasonable expectations about what university life will be like. Just as the pizza joint needs to tell you they only have cauliflower crust, so a university should disclose if it expects to violate the typical norms. Thus, simply keeping silent about, say, hybrid or online classes amounts to misrepresentation. "The students assumed we would have in-person courses, but we never said that," is not a justification. 

Of course, many universities refuse to be candid because it is in their self-interest not to be. They recognize that admitted students would not enroll or that current students would transfer if they knew what Fall 2021 is likely to be like. So, to protect their own revenue and rankings, they refuse to disclose this information, and even refuse to disclose just how unsure they are. My own employer, Georgetown, tends to wait to announce anything like this until after the deposits are in, the matriculation letters of intent are signed, and students are stuck. If you walk around our campus, you'll see many highfalutin' banners about values and principles, but these are just for show and marketing purposes. 

The Unseriousness of Democratic Theory

First, a reading from Bizarro Matthew 14:15-21:

As evening approached, the disciples came to him and said, “This is a remote place, and it’s already getting late. Send the crowds away, so they can go to the villages and buy themselves some food.” 

 

Bizarro Jesus replied, “They do not need to go away. You give them something to eat.” 

 

“We have here only five loaves of bread and two fish,” they answered.  

 

“Bring them here to me,” he said. And he directed the people to sit down on the grass. Taking the five loaves and the two fish and looking up to heaven, he gave thanks and broke the loaves into 5000 tiny crumbs and broke the fish into 5000 tiny slivers. He then directed his disciples to give each person one tiny crumb and one tiny sliver of fish muscle. The people each consumed 1.91 Calories* and remained very hungry. 

In this Bizarro Matthew parody, Bizarro Jesus does not take hunger seriously. Sure, the people go from having no food to having some infinitesimal amount, but it would be silly to treat this as a morally or nutritionally significant change. The amount matters, and being > 0 is not enough.  Bizarro Jesus cannot pat himself on the back and claim he's fed people. He hasn't fixed the problem anymore than doing a single jumping jack stops heart disease. It would be as if he'd distributed a penny (in current USD) to every poor person and then said that he'd reduce the problem of poverty. 

Now consider a similar situation in democratic theory. Imagine we have a political system in which a small cadre of people--say the king and his advisors, the Central Committee, the aristocracy, or whatnot--make all political decisions, decisions which bind everyone else. The vast majority of people are powerless. 

Suppose someone comes along and says, "I know how to fix the problem here. Let's keep the government bureaucracy which executes the rules, but instead of having a hereditary king or elite Central Committee, we'll let all 200 million members of our society vote as equals on who gets to be king or on the Central Committee." Here, we change things. The vast majority of people go from having no power to technically having some--a tiny, infinitesimal amount. But if you agree that Bizarro Jesus hasn't really fed people, then you should agree that distributing equals voting rights doesn't really empower people either, nor does it protect individuals from their government or give them any meaningful or worthwhile say. 

Even if we got rid of the central government and bureaucracy, and instead had direct democracy all the time, the problem would remain. Everyone would have equal voting power, but that power would for almost all people almost all the time be tiny. To say individuals are empowered in this situation is like saying Bizarro Jesus fed everyone. Going from 0 to ε power is not empowerment or freedom. The amount of control matters. It is morally and intellectual unserious to claim otherwise. 

One way of thinking about democracy--when it is working at its best, really--is that it empowers the People without thereby empowering any of the individual people who constitute the People. Of course, in practice, all democracies empower some people (e.g,. racial majorities) more than others (racial minorities), and empower some people (charismatic liars, the well-connected) quite a bit. But even in principle, the secret joke at the heart of large democracies is that equal basic power for all amounts to everyone having almost no power. 

Sure, democracy might, in principle, equalize people in one particular respect, but that's not the same thing as empowering them.

*Yes, I looked this up, and this is a high estimate of the caloric content of 5 loaves of bread and two fish split among 5,000 people. I charitably assume Bizarro Jesus and his Bizarro Disciples don't take any for themselves.  

The Central Simple Silliness of Philosophical Republicanism

Philosophical republicanism is a relatively newish philosophy, with some roots in ancient Greek, ancient Roman, and Renaissance thought. The central tenet of republicanism is that political structures should be arranged to protect people from domination. Domination is defined as being subject to arbitrary interference.

Pettit motivates the case for republicanism in part by claiming to have found a counterexample to the liberal conception of freedom. Liberals, he says, claim that a person is free just in case they are not interfered with (in various ways). Different liberals put a slightly different spin on this definition of freedom, but Locke, Kant, Mill, Berlin, and others all seem to agree.

But, Pettit says, consider the hypothetical situation in which a slave is owned by a kindly and neglectful master. The master has the right to interfere with the slave at will, for instance, by ordering the slave to work, physically mutilating the slave, or whatnot. But the master simply ignores the slave and allows the slave to do whatever they want. As a result, suppose the slave leads a life much like yours. (If you want, imagine that the law allows slaves to own property, hold jobs, etc., so long as the master allows that or does not expressly forbid it.) Here the slave is free from interference, but nevertheless it's clear that the slave is not truly free. After all, they remain a slave. 

So, Pettit says, this shows the liberal conception of freedom is wrong. Even if a person is not interfered with, they might still be unfree, the liberal would have to agree. 

Now, one immediate move the liberal could make is to say that fine, the mere absence of interference is not enough. A person must also have a publicly recognized and adequately enforced right to non-interference. Indeed, liberals have long argued this, so perhaps the problem comes from Berlin oversimplifying the liberal conception of freedom. 

Pettit responds by asserting that what makes the slave unfree is that they are dominated by the master. The master has the power and right to arbitrarily interfere with the slave at will and may do so with impunity. Even though the master never does so--indeed, the slave reliably and correctly predicts the master never will--the slave remains unfree because the master has this power and right. So Pettit claims that to be free requires that a person not be subject to such domination.

That seems fine, but what Pettit does with this idea is bizarre. He rightly recognizes that to be dominated by others means one is unfree. People should not be subject to the arbitrary inference of others. Fair enough. But then he ends up defending a philosophy which allows and authorizes a very high degree of interference with everyone, provided that this ioterference comes about the right way and thus doesn't qualify as "arbitrary". (In more recent writings, he modifies the definition of domination slightly, but the details don't concern us here.) What's weird about this is that Pettit realized that domination is bad, but then forgot that what makes domination bad is not merely the arbitrariness/risk of interference, but the interference itself. Pettit is right that the slave with the kindly master is still unfree, so he is right that mere non-interference is not sufficient to make one free. But somehow Pettit moves from "non-interference is not sufficient to make one free" to "non-interference isn't even necessary to make one free". What he should have said is that a person is free when they A) are not interfered with (in certain ways) and B) they are not subject to arbitrary, at-will interference from others, because they have adequately protected and recognized rights against such interference. What Pettit instead says is that a person is free even if 1. they are continuously interfered with in all sorts of ways provided 2. the interference comes about the right way, through a process which somehow pays attention to and tracks their interests, and in which they have a voice. 

It's as if someone said, you know, it sucks when you go outside and could get bitten by mosquitos at any time. So what would be better is if we get placed on a regular, scientific, predictable schedule of government-mandated mosquito bites and you get to vote on when they happen.

Pettit thinks democratic processes which engage in frequent interference are fine, and count as non-arbitrary, provided that individual citizens have sufficient ability to participate in the government, the citizens can contest the laws, the government listens to citizens, and there is sufficient division of power such that no one subset of society continuously rules over others. (Again, the details are more complex, but they won't concern us.) 

But this brings us to the central problem with democratic freedom. As an individual, except in special cases (such as you are Joe Biden), you have almost no power over what happens in democracy. Democracy does what it does regardless of whether you vote one way, the other way, or not at all; whether you advocate one thing, the other thing, or nothing; whether you protest or stay home; etc. Democratic participation rights are almost always ineffective. From the standpoint of every normal individual in a democracy, democracy is a process by which everyone else can arbitrarily do as they please to do you with near impunity. Giving you the right to participate in this system as an equal usually--except in extremely unusual situations--provides you with basically no protection against what others decide and gives you basically no influence on what happens. It's you with your bucket against the incoming tsunami. 

This is one reason why I find certain democratic theorists' views so bizarre. Indeed, they are so bizarre I have a hard time believing democratic theorists sincerely believe what they say. Some democratic theorists downplay individual liberal freedoms in favor of collective participation rights. They claim the latter are more important and valuable than the former. But this means they favor situations in which everyone is powerless as individuals over situations in which each of us has extensive rights of control over ourselves and very little control over others. The only way you could favor that is if you simply don't care about freedom and instead love power and authority. To lionize so-called "democratic freedoms" over liberal freedoms is really to say that freedom doesn't matter. 

Call for Papers: Special Issue of Implications Philosophiques

I've been asked to post this advertisement:

Implications Philosophiques will have a special issue on liberal philosophy. Details here. 

Contributions must be in French. They are especially interesting in these questions, which I will take the liberty of translating here:

• Existe-t-il une conception libertarienne de la justice sociale?  (Is there a libertarian conception of social justice?)
• L’égalité a-t- elle une place dans la pensée du marché libre? Inversement, le marché libre accepte-t-il une justification égalitariste? (Is there a place for equality in free-market thinking? Conversely, does the free market accept an egalitarian justification?)
• Existe-t-il une pensée libérale de l’exploitation? (Is there a liberal philosophy of exploitation?)
• Le libéralisme / libertarisme doit-il n’être que la caution philosophique du capitalisme? Ou bien un libéral / libertarien peut-il être anticapitaliste?  (Should liberalism/libertarianism be the only philosophical grounding of capitalism? Or can a liberal/libertarian be anti-capitalist?)
• Dans le conflit entre libéralisme économique et démocratie, est-ce la démocratie qui a nécessairement raison? (With regard to the conflict between economical liberalism and democracy, is democracy necessarily right?)
• Le féminisme doit-il être libéral?  (Should feminism be liberal?)

Against the Heckler's Veto: Why We Should Ignore the Welfare of People Who Choose Not to Vaccinate Out of Paranoia

Emily Oster recently argued that once adults are vaccinated, we should go back to normal. We needn't wait for children to be vaccinated. While unvaccinated kids will get infected at higher rates than vaccinated adults, simply avoiding infections in children is not the goal. Instead, the goal is to avoid severe illness. In fact, the data shows that children's rate of moderate to serious illness, once infected, is on par with the overall rate for vaccinated adults. So, get the adults vaccinated and then get back to normal. The point of keeping children masked and out of school wasn't to protect the children, but to protect adults.

I would add here that in a normal year, flu is much worse for kids than COVID-19. (COVID-19 is of course much, much worse for adults and thus much worse overall, but that's not what we're discussing now.) However, none of you recommended we close off schools or shut down things to protect children from the flu in 2019. Accordingly, if you say we should shut down schools or close the economy to protect kids (not adults, just kids) from COVID-19, I don't believe you are sincere, and neither do you. (The charitable thing is for me to assume you know you are making a bad argument with a conclusion you don't believe, but that you are doing so for social reasons. Soi-dissant progressives especially derive social benefits from exaggerating the risks of COVID-19.)

On Facebook, one prominent philosopher responded to Oster's argument by asking, what about the adults who are eligible to vaccinated but choose not to do so because they are paranoid about the vaccine? A fairly large percentage of adults assert that they will never take the vaccine. Note that he was not here discussing the very small number of people who have genuine contraindications to the vaccines, such as people with genuine allergies to the ingredients. Rather, he meant dumbasses and dipshits who refuse the vaccine out of paranoia, conspiracy theories, scientific illiteracy, and so on. What do we owe them?

Here, I think this is a softball question: nothing. The reason is that we generally have no obligation to change our behavior to accommodate a heckler's veto. (Indeed, if you are a rule consequentialist, you might go further and argue we have a general duty not to accommodate such vetos, in order to reduce the tendency of others to make them.)

The idea of heckler's veto goes as follows: Take any action, P, which is permissible. Now imagine that a person makes a credible threat to do something wrongful or bad if you choose to do P. Do you thereby acquire a duty not to P? For instance, if the bully says that he'll beat someone else unless you break up with your girlfriend, do you have a duty to break up? If the evil government official says that he will persecute other people unless you quit your religion and join his, do you have a duty to do so? If I credibly threaten to kill a kitten unless you stop playing guitar, do you have a duty to do so? If I threaten to kill a kitten if you watch the Bachelor tonight, do you have a duty to avoid watching it?

Here, most people conclude the answer is no. The heckler does not change the moral valence of your actions by making a credible threat. In some cases, it might be prudent to give in, and perhaps if the heckler threatens a genuine moral disaster, you might have compelling moral reasons to give in. But you don't in general have to acquiesce to the heckler's demands. (Even an act utilitarian can agree, though I won't go through the exercise of explaining why here.)

This is even more obvious when the heckler intends to harm himself. For instance, suppose I say, "Unless you, the reader, stop playing video games, I will cut my finger off." This does not seem to impose upon you any obligation to stop playing. You can rightly tell me to go to hell. 

Now apply this to adults who could safely take a good vaccine, who have access to good vaccines, but who choose not to become vaccinated out of paranoia or scientific illiteracy. Should we keep the economy or schools shut down to protect them? No. In effect, the voluntarily unvaccinated are saying to the voluntarily vaccinated, "You had better choose to keep yourselves miserable, hurt your own economic prospects, ruin your social life, have no vacations or shitty vacations, keep your kids away from schools, and so on, or we will voluntary expose ourselves to high health risks." The proper moral reaction to such a threat involves words "fuck" and "off". In this case, the adults in question voluntarily choose to incur these health risks. We do not impose it upon them by getting back to normal; they impose it upon themselves. After all, they could have chosen to become immune. Their reasons for choosing not to do so--scientific illiteracy, social benefits from propounding conspiracy theories, etc.--explain their behavior but do not excuse it, and do not give us reason to treat their implicit threat differently. 

In response to this point, the philosopher in question suggested that while it's true we don't owe it to the hecklers to stay shut down, we might owe it to their kids. After all, a small minority of these irrational parents will die because they choose not to become vaccinated, but their kids will suffer the consequences. 

But then this brings us back to the heckler's veto when the heckler threatens a third party. Suppose I make the following credible threat to you, the reader: "Henceforth, you had better start voting the opposite way, and you'd better give up your favorite hobby. Otherwise, I will kill myself. Sure, you don't owe it to me to acquiesce to my threat, but think of my kids! They'll be so sad! And even with my life insurance, their economic prospects will suffer! You owe it to my kids to acquiesce to my threats." 

Here, again, it seems the answer is no, you don't have a duty to comply. Yes, my kids would suffer, but that's my fault, not yours. It's regrettable, but the negative consequences of my actions do not impugn you.

So, let's be clear. People who, out of irrationality or illiteracy, choose to avoid the vaccines, have no moral standing to demand of us that we keep shut down. They are, in effect, threatening us, demanding that we keep being miserable in order to protect them and their children from themselves. The morally proper response is to ignore them. Once vaccines are available for all adults who want them, we should go back to normal.