Category Archives: Law & Legal Philosophy

Libertarians: Limited Government – or Abortion Bans?

The following is a guest post by Neera K. Badhwar, Professor Emeritus of the Department of Philosophy at the University of Oklahoma and a Senior Fellow in the PPE Program in the Department of Economics at George Mason University.

Libertarians want a limited government, a government that protects rights, enforces contracts, defends us against foreign enemies, and otherwise stays out of our affairs. The vast majority of libertarians support abortion rights on the grounds that the pregnant woman owns her body and has a right to decide how to use it. Some libertarians, however, support abortion bans because they believe that abortion violates the fetus’ right to life, a right they regard as being as strong as a child’s right to life. It is commonly held that both positions are consistent with libertarianism as a political theory.

I disagree. Whereas regarding abortion as morally wrong is consistent with support of a limited government, support for legal bans on abortion is not. For a fetus’ rights can’t be protected across the board without opening the door to a hugely invasive, almost unlimited-in-the-bedroom, government. The reasons for this have to do with the nature of pregnancy, the relation between the pregnant woman and the fetus, and the nature of the state.

One reason legal bans on abortion invite governmental invasiveness is that abortion is often indistinguishable from miscarriage. According to the NAPW, “fifteen to twenty percent of all pregnancies (or approximately 1 million a year in the U.S.) will end in a miscarriage or stillbirth”. A government that looks upon almost all abortions as a crime will tend to be vigilant about every pregnancy loss. Was it really a miscarriage – or was it an abortion?  Zealous prosecutors have criminally charged women who have had miscarriages on the mere suspicion of a self-induced abortion – even while Roe v. Wade was in force.Indeed, even in California, where the law explicitly holds that a woman can’t be charged with murder for loss of her pregnancy, prosecutors charged two women with murder after they had stillbirths that their doctors judged had been caused by drugs. (In one case, the prison sentence was overturned after the woman had served four years in prison, in the other case, it was dismissed

Another reason why an abortion ban invites greater government invasiveness is that, although every state allows an abortion when the mother’s life is in danger, not many such dangers are clear-cut. If a woman is hemorrhaging, and without an abortion sepsis will set in and kill her, an abortion is clearly justified. But what if the danger is not imminent, and it’s possible that the fetus will be expelled naturally? With the threat of prison looming over them, how many doctors will be willing to take the risk of performing an abortion? If the past is prologue, not many. When prosecutors started charging doctors who seemed to them to be over-prescribing pain medicines to their patients, scores of doctors stopped prescribing them.* The results were devastating: pain patients either lived in constant pain, or turned to the black market and bought drugs adulterated with heroin or fentanyl, a potent killer. (One pain patient recently killed his doctor for leaving him in constant pain, and then killed himself. We should expect many doctors to stop performing life-saving abortions when the danger to the mother is probable, or even certain, but not imminent, out of fear of prosecution. After Texas passed S.B.8 in September 2021, a woman with an ectopic pregnancy was turned away by her own doctor as well as by a hospital – even though an ectopic pregnancyis a death sentence for the fetus, and likewise for the woman if she can’t get an abortion in a timely fashion. 

In cases like these, we can blame the doctors for not doing their job, since the Texas law does allow an abortion in a medical emergency, and a pregnancy that will kill both the fetus and the mother is a medical emergency if anything is. But the medical emergency exemption does not cover pregnancies that are threatening to women with pulmonary hypertension, or certain heart conditions or other health problems. Pregnancies in these conditions pose an especially high risk for low-income, rural women who don’t have access to good doctors. 

Legally enforced abortion bans also open women – including women who are not pregnant but could become pregnant – to encroachments on their bodily autonomy. According to civil rights attorney, Cynthia Conti-Cook, “pregnant people’s decisions—to self-medicate, to not medicate, to seek substance abuse treatment, to drink alcohol, or smoke cigarettes—are all decisions that could be criminalized.” And thanks to digital technology, the state could easily surveil these behaviors. Prosecutors could also “subpoena women’s medical records and private social media files as part of criminal investigations into abortion providers”. Some politicians have even suggested keeping tabs on women’s menstruation cycles – and at least one official has already done so.

Anti-abortion libertarians could argue, rightly, that such invasions are not essential to state bans on abortion. But the point is that they are highly probable, if not inevitable, given the nature of the state, and a commitment to a limited state requires libertarians to refrain from providing the state with additional tools for abusing us. Libertarians of all people should be aware of the tendency of government to encroach on more and more of our lives, and to be more and more punitive

Some states currently exempt women who seek abortions from criminal penalties, but there is no guarantee that these protections will remain in place. There is a strong anti-abortion movement of “abortion abolitionists”pressuring legislators to eliminate such exemptions. And if the fetus is a person with rights equal to that of a child, then it stands to reason that the mother who kills it is a criminal, and must be treated as such. 

Again, just as a RICO violation “does not require intent, recklessness, willfulness, or even knowledge on the part of the accused,” a woman who does illegal drugs and has a stillborn child can be charged with homicide, even if she didn’t know that she was pregnant, or didn’t know that drugs could lead to a still birth. Of course, the elimination of mens rea is not inherent in an abortion ban, and no libertarian would support it. But Congress and state legislatures often pass laws without the requirement of mens rea, and libertarians who want to keep the state within bounds must take this feature of the state into account.

If the fetus has as strong a claim to life as a child, then the fact that the fetus resulted from rape or incest, or that it has severe anomalies, cannot justify an abortion. After all, a child born of rape or incest, or with severe anomalies, may not be killed. This leads to a further reason why abortion bans must expand the role of government in our lives. More babies with birth defects will be born, most parents will be unable to take care of them entirely on their own, and private charities will be limited in their ability to help. The obvious outcome is that the state will have to provide support for them. But no new or more extensive state program comes without higher taxes and a new and more meddlesome bureaucracy. 

For all these reasons, abortion bans open the door to an ever-more powerful state. Two of the three reasons I’ve given – the nature of pregnancy and the pregnant woman’s relation to a fetus – don’t apply to laws against homicide as ordinarily understood. The closest thing to a miscarriage in the case of homicide is an accidental death. But whereas a miscarriage often cannot be distinguished from an abortion, an accidental death can often be distinguished from a murder. Again, no one person has the unique relation to the victim of a homicide that a pregnant woman has to a fetus. So the possibility of homicide does not invite the kind of encroachments on our bodily integrity that abortion bans invite on women’s bodily integrity. The only thing comparable to them is the war on drugs. 

Libertarians can believe that abortion is morally wrong and try to persuade others of their position without contradicting their commitment to a limited government. But they cannot support a legal ban on abortion without doing so. They must choose between abortion bans and a limited government. 

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*The Supreme Court decision of June 27th, 2022, declaring that doctors who act in good faith can’t be prosecuted just because their actions fall “outside the usual course of [medical] treatment,” has finally freed doctors to follow their best clinical judgment, based on each patient’s specific circumstances.

Locke and Land Acknowledgements 

The following is a guest post by Kyle Swan, Professor of Philosophy and Director of Center for Practical and Professional Ethics at CSU Sacramento.


Stuart Reges is suing his employer, the University of Washington, for violating his First Amendment speech rights. The University initiated an investigation into whether Reges violated its anti-harassment policy for publishing a land acknowledgement statement on his course syllabus. His read, 

“I acknowledge that by the labor theory of property the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington.” 

Reges is protesting the recommended acknowledgment circulated by the University. The protest is clearly protected speech. I hope Reges wins his suit decisively. 

But what about Reges’s statement? He appears to be serious. In a Quillette article he writes, 

“I am a Georgist, and according to the Georgist worldview, Native Americans have no special claim to any land, just like the rest of us. But since few are familiar with that economic ideology, I leaned instead on a principle described in John Locke’s Second Treatise on Government, now known as the labor theory of property or the ‘homestead principle.’ To the Georgist idea that land is owned in common by all living people, Locke added that by mixing one’s labor with the land, one encloses it from the shared property because people own the products of their labor. If, for example, you make the effort to grow corn on an acre of land, you come to own that acre of land, so long as there is still plenty of land left for others to use.” 

The labor theory Reges refers to is a theory of property acquisition. In its original state, the entire earth is given to us in common. Nobody owns stuff in the world. The question is, how can we remove things from the commons and make rightful claims to them that would allow us then to exclude others from using them? 

Locke provides some conditions. First, it has to be true that someone hasn’t already done that — the stuff has to not be already owned. Second, the person appropriating something from the commons has to do it in a way that improves it through their productive activity — gathering berries, hunting deer, growing vegetables, clearing trees — all kinds of activity counts. Finally, the way they do this has to leave enough and as good for others, so that no one would have reason to complain about the appropriation. 

Professor Reges’s acknowledgment is saying that Coastal Salish people weren’t ever in a position to claim ownership. They were never rightful owners. So when settlers came to the area in the late 1840s or whenever, he supposes these settlers were appropriating the land from the commons, rather than from a group of people. 

Professor Reges’s application of Locke’s theory is dubious. I’m a philosopher, not a historian, but it seems unlikely to me that there were no groups of native people engaged in productive activity in the relevant areas when settlers showed up. 

More importantly, though, if Reges is correct and there weren’t people there already with legitimate ownership claims, then the behavior of government authorities in the mid-19th C was very odd. Because what they were doing was negotiating treaties with the native peoples, including the Salish. Doing so suggests their recognition of legitimate claims made by these groups. Why were they making contracts to acquire land from these native peoples if they didn’t own the land? It seems incredible they would do this if they regarded the lands as unused, unoccupied, and unowned. So it looks like this was a transfer of land ownership rights, not an original appropriation of them. 

Now everything hangs on how these contracts were presented and executed. Were the negotiations above board? Were all the relevant people groups represented? Did they all sign? Were all the terms of the contract fulfilled? Again, I’m a philosopher, not a historian, but if not, if there were problems with the agreement, then there wasn’t a legitimate transfer of the Washington territories. 

If that’s right, then a different part of Locke’s theory applies, which you can find in a later chapter of the 2nd Treatise, Of Conquest. There Locke argues that an aggressor who “unjustly invades another man’s right can…never come to have a right over the conquered…. Should a robber break into my house, and with a dagger at my throat make me seal deeds to convey my estate to him, would this give him any title? Just such a title, by his sword, has an unjust conqueror, who forces me into submission. The injury and the crime is equal, whether committed by the wearer of a crown, or some petty villain. The title of the offender, and the number of his followers, make no difference in the offence, unless it be to aggravate it.” 

And so “the inhabitants of any country who are descended and derive a title to their estates from those who are subdued and had a government forced upon them against their free consents, retain a right to the possession of their ancestors….the first conqueror never having had a title to the land of that country, the people who are the descendants of, or claim under those who were forced to submit to the yoke of a government by constraint, have always a right to shake it off, and free themselves….If it be objected, This would cause endless trouble; I answer, no more than justice does.” 

Locke’s theory of acquisition has two parts. The first is a theory about how original appropriation would be legitimate. The answer has to do with labor and productive activity. But that part doesn’t seem to apply to this case, since it looks like the Salish already had an existing claim. The second part of the theory is about how acquisition by transfer would be legitimate. The answer here has to do with agreement, and everything depends on the quality of the agreement and how it was or wasn’t honored. But we see there’s more to the story. When there has been no agreement, no just transfer and only conquest, Locke says that people retain “the native right of their ancestors.” 

Locke has long been accused of providing intellectual and justificatory cover for the (mis)appropriation of Indigenous people’s land in America and around the world. But it seems like it’s been Locke’s views that have been misappropriated.

Libertarianism and Abortion

I offer this as a tentative foray into a discussion about abortion, obviously spurred by the recent SCOTUS decision, Dobbs v. Jackson.  I note that I have long been convinced that as brilliant as Judith Jarvis Thomson’s contribution to the debate was, it doesn’t actually solve anything. (For more on that, see the chapter Lauren Hall and I co-authored in The Routledge Companion to Libertarianism.)

Different libertarians define their political ideology in different ways.  (No surprise; different egalitarians do this, different socialists do this, different welfare liberals do this; in short, all political ideologies are multiply defined.  Presumably those adopting the same name have at least a family resemblance.)  

Some libertarians adopt the Non-Aggression Principle. Others adopt a view that indicates simply that individual liberty is the predominant value, never set aside to promote any other value. Others accept that natural rights are the foundation for the view. Others adopt some form of consequentialism. My own libertarianism is defined by commitment to the harm principle: no interference with an individual or consensual group is permissible except to rectify or prevent genuine significant harm.

What does this my form of libertarianism say about abortion? If the principle was only about harm to persons, abortion would presumably be clearly permissible since the fetus is not a person even though it is human. Of course, religious libertarians are likely to believe that all human life is sacred and that the intentional ending of such is necessarily wrongful. While I do not believe that, the harm principle in my view is not only about persons or humans. Genuine significant harm can occur to non-humans and merit interference, so whether or not the fetus is a person is not all that matters.

The question then is: is abortion a genuine significant harm? To clarify, I use the term “significant” to indicate that de minimis harms are not the sorts of things we interfere with (the cost of doing so may be a greater loss than the harm itself). I use the term “genuine” to indicate we are not discussing mere hurts or offenses, but hurts that wrongfully set back the interests of another (for more on this, see Feinberg or chapter 3 of my 2018). Once this is recognized, it should be clear that some abortions may well be genuine significant harms and some may not. Aborting an 8 month old fetus merely because one decided on the spur of the moment to take a world tour is, I think, wrongful. It would also be significant—ending the life of a human that could have been very good. On the other hand, aborting a 6 week old fetus because one was raped is unlikely to be wrongful and is at least plausibly less significant since at that stage spontaneous abortions are not uncommon.

Some will now likely object that what is wrongful is subjective. I basically think this is false—it is at least false if meant in anyway that is troubling for what I am saying here. People do not simply decide for themselves what is wrongful.   For more on this, see this BHL post and this one.

Assume I am right thus far: some abortions are genuinely and significantly harmful and some are not. What does that mean for law? On my view, answering this means first recognizing that law is a blunt instrument and as such has to wielded carefully. Perhaps making all abortions illegal after 8 months pregnant is reasonable. Making all abortions illegal is not. If a clear set of guidelines for wrongfulness can be decided upon, perhaps laws against abortions that are wrongful would be reasonable. I can’t here work out what such a list would include, but I do think a law against aborting 8 month old fetuses reasonable. Perhaps also a law against aborting a fetus on a whim (perhaps have a 5 day waiting period). Laws requiring parental (or spousal) consent might sound good but are likely to run up against significant objections, including the real possibility of rape and incest and unacceptable familial pressure. The final list will be difficult to determine and absent a final list, jurisdictions may adopt differing lists (as SCOTUS allows).

Importantly, the jurisdiction issue is more complicated than some recognize. Philosophers have long debated what would give a government legitimate jurisdiction over a group of people. I won’t be able to delve into that here, but will simply assert that I do not believe any of the US state governments is likely to have genuine legitimacy over all people within their borders. For that reason, it strikes me as perfectly acceptable for the federal government or other state governments to aid an abortion-seeker in a state wherein they are unable to get an abortion legally. (For one way this can work, see this interesting story.)

Moralism and Contemporary Politics

People have asked me why I seem so focused on moralism.  There are multiple reasons, including having too much personal experience with people who operate as moralists, but what it really comes down to is that if we take moralism broadly to be a view that we should use the machinery of law to impose a moral view on the jurisdiction, most people in politics today are moralists.  (So, not just a justification of a specific law, but of the whole system of law.  A loss of viewpoint neutrality.)

On the right, we we have what are called “common good constitutionalists” or “common good conservatives” who basically say we should interpret the Constitution of the United States of America in such a way that will get us the common good of society.  Of course, what they mean by “the common good” follows from their conservative beliefs (see Patrick Deneen and Adrian Vermuele).  

On the left, you see basically the same thing without the claim made explicit. You have people pushing a particular view about how to guarantee equality and freedom in society, meaning a particular view about how society should be set up—and of course, that is a way meant to attain their view of the common good.

Of course those on the left and those on the right disagree about what the common good is.  This is what “culture clashes” are. So, for an obvious example, the two camps here would take opposing sides with regard to today’s SCOTUS decision in Dobbs v Jackson Women’s Health Organization.  One side (or at least some on that side) thinks all human life is deserving of the same basic respect as all other human life; the other thinks women deserve the respect that would enable them to control their own lives.

Both sides seem to believe that the machinery of the state—the law—should be used to make society moral, given their own (competing) views about what that entails.   (And we are likely to see this play out from SCOTUS fairly quickly.)

Importantly, libertarians are different.  We believe that people should be free to live their lives as they see fit subject only to the restriction that they don’t wrongfully harm others.  Some might say that this is a form of moralism as well—one wherein the view of morality is simply thinner than those of the other two views.  Perhaps that is right, but consider how it plays out.  Those on the left would want to force people to recognize and work for equal rights for women and to pay for programs meant to help with that.  Those on the right want to force women to carry pregnancies to term.  Meanwhile, libertarians want to force people not to force people to do anything.  That last seems obviously better.

Once more, against moralism in community

Legal moralists worry about the degradation of social norms and community connections. Their worry is that immorality tears at the “fabric of society” where that “fabric,” presumably, is the system of moral beliefs held in common by most people in the community.  Legal moralists are thus happy to impose their own moral views on others with the power of government—they think that this must be done if the norms (and moral beliefs commonly held) are threatened. 

In their willingness to use government power to impose their views of morality, moralists ignore the fact that when a government is empowered to force people to act in certain ways, that power crowds out the ability of individuals to interact freely with one another. That is a problem for their view because if individuals can’t freely choose to act in ways others (including the moralists) think is bad, they also can’t freely choose to act in ways others (again, including the moralists) think is good.  The problem for the moralist, then, is that you can’t have a morally good community if people can’t choose freely—you could at best have a simulacrum of such, more like a collection of automatons than a community of persons.  A morally good community is an association of moral beings—beings that choose for themselves—who (often) freely choose the good.  Putting this a different way, the moralist has to believe you can have a community made top down, forced upon members who are free, but that is impossible.  Community thus has to be made bottom-up; community is made by the individuals within it choosing to interact well together.

This applies, by the way, regardless of the level or size of community.  A condo or homeowners association, for example, can’t be made into a genuine community by fiat—even if those trying to do so take themselves to know (or actually do know!) what is best for everyone.  It simply cannot work—or rather cannot work unless everyone in the group agrees—in which case, it is not top down after all.  

To be clear: if you want to start a genuine community, do so only with people who already agree with you.  (Like, but not necessarily as rigid as, a cult.)  I’d add that if you want the community to remain a community, you’ll need a way to guarantee that all who enter it agree with you in advance.  (Again, like, but not necessarily as rigid as, a cult.) Otherwise, you’ll face opposition from some of the newcomers—different ideas about what the community should be.  And those ideas from newcomers (at least those who enter justly), will have just as much claim to be legitimate as yours.  Denying that entails not community, but moralist dictatorship.

Employment, Coercion, and Voting

Sally works for a big corporation.  She works 9 to 5, with a half hour lunch, Monday through Friday.  She often brings work home with her and on Saturdays, she takes a class, hoping it will help her receive a promotion and raise.  On Sundays, she cleans her home and preps for the following week.  This is her schedule every week unless she manages to get a vacation day or two (or if she gets sick)—in which case, work backs up and her return is hard.

Sally does not like her job but there are no other jobs available that she would like.  She wishes she didn’t have to work. Some will say she only takes the job because of coercion. This would be “circumstance-based,” “background,” or “situational” coercion (for discussions, see chapter 7 of Scanlon or chapter 4 of Cohen-Almagor). In this sort of coercion, there is no individual person or clear corporate entity that does anything coercive. There is no one to blame for Sally’s situation and no one to interfere with to help Sally.

Some will insist that what is described is not coercive at all—that without a coercer, there cannot be coercion.  They might also insist that Sally consents to the the employment.  They might even say Sally consents to the social system within which she is employed.  Some of this is true—Sally does, I think, consent to her employment. What about the claim that there is no coercion?

Generally speaking, we think of coercion as one agent, P, acting to get a second agent, Q, to do some action, A, typically by threatening to do something Q does not want to happen (firing Q, harming Q’s relative, etc).  When P does this, it is reasonable to think P is responsible—or at least partly responsible—for Q’s (coerced) actions and that P is subject to justifiable interference.  In Sally’s case, there simply is no P acting to get Sally to keep working.  There are only the facts of the social, political, and economic world which jointly make it such that if Sally does not work, she will not be able to afford to live. The circumstances are what matters and circumstances aren’t agents that do things.

Does this mean it makes no sense to say Sally is coerced?  I’m skeptical.  Sally is not doing as she wants to do.  She acts counter-preferentially because of the way the social, political, and economic world she (and we) inhabit is set up.  While there is no particular agent to blame or interfere with, we can still think there is something unfortunate going on.  If you don’t want to call it coercion, call it shcoercion.  The important point is not one of conceptual analysis but of the morality of the situation.

Some think that the situation is not merely unfortunate but that it is so unjust we ought to change things in the political and economic order so that Sally (and the rest of us) would not be coerced (or shcoerced) by circumstances to work a particular job.  Marxists and others on the left might even say the situation is so unjust that we ought to have the government act to make it such that Sally would not have to work at all.  (See, for example, Van Parijs.)

While I would deny that the world should be set up in such a way that anyone can choose not to work at all if they prefer that, it seems clear that a situation where many people have to work at jobs they don’t like at all is at least unfortunate. (I’m also OK with saying it is coercive or shcoercive, but would note that not all coercion or shcoercion is bad).

A world in which most people work is good for all of us.  A world in which many have to work at jobs they don’t like is, obviously, less good than one in which all of us could work at jobs we like.  This is not a Marxist or socialist claim.  Indeed, I believe the most reasonable way to actualize such a situation—where all or most can work at jobs they like—is to move far more toward a free market (or freed market—see, for example, Carson) than we have.  I’ll keep further thoughts about that for a possible future post. 

In the meantime, here’s what really strikes me as odd: the same people that think they are unjustly coerced into working will often also say that voting in a democratic system—including a democratic system like ours—is indication of consent to the system.  This strikes me as completely incongruous with the view that they are coerced into working.  I didn’t have any part in making our democratic system and I deny that when I vote within that system, I am thereby consenting to it.  I vote, when I do, thinking “I wish we had a better system, but I want to vote now even though I am participating in what seems to me a clearly illegitimate system.”  No one asked for my consent to a two party system.  Or a system within which the majority can ruin the lives of a minority.  Perhaps this system is less coercive than the employment system—but if so, its because I can choose simply not to vote at all.  I’m not, that is, coerced into voting.  I am, though, coerced into voting in a bad system if I wish to vote at all.  Its not like I can go out and vote in a good system—that option is not possible for me.

If it’s true that others made impossible the option of Sally not working at all—or not working at all given the system we live in (I doubt it)—then the coercion there would be on par with the coercion that leaves me only able to vote in what seems to me an illegitimate system. It strikes me as more likely that it is circumstance-based coercion (or shcoercion) in both cases. In both cases, I think, there is no specific agent to blame or interfere with. In neither case does this mean we should rest comfortable with the social-political-economic order. If we ought to think of changing things for people like Sally, we ought to think of changing things for people like me. But many people seem to think Sally is treated unjustly and I am not. Why? That is, why do people believe that voting in a system they had no part in making constitutes consent to that system but working for an employer in a system they had no part in making does not?

A Trilemma for “Taxation is Theft”-Libertarians

Claiming that taxation is theft is an effective way to signal that you think of yourself as a libertarian of the more radical, uncompromising, and possibly more Rothbard-inspired sort. But are there substantive reasons to endorse the slogan? It is easy to point at differences between taxation and theft, after all: Taxation is widely regarded as legitimate, taxation is expected, institutionalized and to some extent automated, (at least some) taxation is put to good public use, etc. More sophisticated defenders of the “taxation is theft”-slogan will not deny these differences, though; they will concede that theft and taxation aren’t the same in every respect. Instead, they will explain that the fact that taxation is legal is morally irrelevant, and that taxation and theft are thus on equal footing in one important respect: they are both coercive takings of property and as such pro tanto morally wrong (see for example Michael Huemer’s defense of the claim that taxation is theft here and here).

Obviously, legal conventions determine people’s legal property entitlements. But it is less obvious what role legal conventions play for people’s moral property entitlements. In the following, I will try to sketch a trilemma for libertarians who endorse the “taxation is theft”-slogan, arguing that none of the three basic positions one can take on the role of legal conventions supports their cause.

A (pure) conventionalist position is that people’s moral property entitlements are simply determined by whatever legal property entitlements are conveyed by the law. That position is quite implausible in its own right (surely there are at least moral criteria that legal property conventions should meet to be morally justifiable), and of course it doesn’t help to make sense of the “taxation is theft”-slogan. If moral property entitlements were simply determined by legal conventions, then the fact that taxation is legal would imply that what we morally own is what we own post-tax. Obviously, conventionalism is also not a position many libertarians will be drawn into.

An anti-conventionalist position is that people’s moral property entitlements are determined by natural, non-conventional criteria (i.e., principles of just acquisition and just transfer, as in Nozick’s entitlement theory of justice). Legal conventions may at best have a minor role to play in specifying what is left vague and indeterminate in people’s natural property rights. This position lends some support to the “taxation is theft”-slogan: If the only morally relevant role of legal conventions is to carve out the more precise specification of antecedent natural property rights, and if that may be done without taxation, then the fact that taxation is legal is morally irrelevant and all infringements of natural property rights are morally on a par, no matter if it is state agents or non-state agents that engage in them.

The problem, though, is that the anti-conventionalist view arguably implies that almost all of today’s legal property entitlements are morally void (compare Twin Nozick in Loren Lomasky’s article and Matt Zwolinski’s related discussion at Bleeding Heart Libertarians). After all, hardly anyone can claim to own property with a clean record of title transfers going back to a just acquisition from the state of nature. I don’t even know how to look for such a record for all the materials that are built into my laptop, for example. If that means that I don’t really own it, from a moral (natural property rights-) perspective, then taxing my purchase of it can also not count as an infringement of my moral property entitlements. In other words, while the anti-conventionalist position in principle makes sense of equating taxation and theft, it can depict neither taxation nor theft in today’s societies as a violation of moral property entitlements, simply because all (or most) claims to property would be morally suspicious. This is an implication most “taxation is theft”-libertarians will not be willing to endorse.

The most plausible view is a mixed view about the role of legal conventions. On this view, there are moral standards for legal property conventions (they must be something useful for us, after all), but at least when a basic moral threshold is met, then legal conventions do determine pro tanto moral property entitlements. This quite plausibly explains why it is morally wrong to steal even in the non-perfect societies we are living in, where most property titles can’t be proven to have a clean track record going back to an initial acquisition from the state of nature, but where property conventions may well be taken to meet the basic moral threshold, while having considerable room to improve in many respects.

Of course, there is a wide range of views one could take about what exactly the moral standards for legal property conventions are and where the basic moral threshold is to be set. But, just to have some criteria on the table, arguably property rights should be conveyed by well-defined and transparent rules, they should give owners sufficient control over what they own, they should be properly enforced, violations should be properly rectified, and they should be in line with broader moral principles, like, for example, equality before the law. It is also plausible that principles of just acquisition and just transfer should be incorporated into legal conventions, such that, for example, somebody who creates something valuable from something she legally owns should also own the creation (because creating or adding value to something should be taken to ground property entitlements).

But whatever the moral standards for property conventions may be in detail, on the mixed view taxation cannot be equated to theft. The fact that the former is legal, while the latter is not, is of moral relevance. What moral property entitlements people have will depend on legal conventions, at least as long as these meet the basic threshold, and in our societies taxation is part of these legal conventions. What people morally own will thus be what they own post-tax – but not post-theft. Obviously, this should not be confused with an “anything goes” position about taxation; one can evaluate and criticize different tax policies in light of the moral standards property conventions should meet, of course, even after the basic moral threshold is met (see also Andrew J. Cohen’s related discussion at Bleeding Heart Libertarians).

Some libertarians may say that no system of property that includes taxation meets the basic moral threshold (according to their interpretation of it). But if this were so, we would get back to the problems of the anti-conventionalist position. If current legal conventions don’t meet the basic threshold, then neither taxation nor theft will violate moral property entitlements in today’s societies, since current legal conventions would fail to give rise to moral property entitlements. One cannot cherry-pick and accept the moral relevance of current legal conventions when it comes to the property titles they assign, but reject their moral relevance when it comes to taxation.

(Thanks to Andrew J. Cohen for feedback on a draft version).

Springsteen Fandom and Vaccine Passports

Bruce Springsteen is the first live act returning to Broadway. He is now featured at a few dozen shows running at the St. James Theater. What sort of freedom should Springsteen fans have to associate with other Springsteen fans?

Let us suppose Lee loves Springsteen’s music. Lee owns a restaurant in Jersey City called the “Bruce Tramps Bar & Grill.” Lee’s restaurant is filled with Springsteen and E-Street band memorabilia. It plays a revolving soundtrack of Springsteen’s discography. After the recent shutdowns nearly bankrupted Lee and coincided with a very painful divorce, Lee realized how important Springsteen’s life and music are personally and for everyone. As Lee will say, Springsteen matters. The stories Bruce tells are deeply meaningful.

Lee wants to set up a Bruce-safe space. Lee has decided to require as a condition of admission to his restaurant that you show a ticket stub from his performance at the St. James Theater, or any ticket stub from any other live Springsteen performance, ever.

We might think Lee is making a risky business move, but it turns out that Lee’s devotion is common. Bruce has inspired some very dedicated fans. There is even a documentary about their fandom, “Springsteen and I.” Fans of The Boss will talk at length about how his music resonated deeply with them and helped them through difficult times. Writing for The New York Times in 2012, David Brooks admired Springsteen’s talent for helping people to understand themselves and their world. After attending several of his concerts in Europe, Brooks wrote, “The passion among the American devotees is frenzied, bordering on cultish. The intensity of the European audiences is two standard deviations higher.” So, a business revolving around things Springsteen might do very well.

Imagine Lee explained his decision this way: “Things are crazy now. I want a place where ‘Bruce Tramps’ can feel safe and know they are among friends. So the only way you’re getting in here is if you know and care about The Boss. Any Springsteen concert ticket stub will do. I don’t care about your race, sex, sexual orientation, color, or creed. I just want to be sure you get the Boss.” People warn Lee that ticket stubs can be forged and just handed off to others, but Lee says the ticket-stub is a passport to getting into the restaurant. Lee says it’s an important step toward ensuring a safer space for fans.

You know what? That bar & grill might just succeed. People might want that type of environment.

Should Lee be able to have a place like that?

Now imagine all The Boss haters out there. They complain. Why should Lee, and any Bruce Tramps, be able to restrict others from Lee’s bar & grill? They take it to the state. The governor and state legislature of New Jersey are outraged, too. They pass a law. From this point forward, any business operating in New Jersey “may not require patrons or customers to provide any documentation certifying Springsteen concert attendance to gain access to, entry upon, or service from the business operations in this state.” When asked why, the governor claims that requiring evidence of Springsteen concert attendance reduces individual freedom and harms privacy. As the governor says, people should be free to decide what sounds go in their ears.

Lee complains emphatically, and so do many patrons of the “Bruce Tramps Bar & Grill.” Lee says, “It’s my restaurant! You don’t have to come here!” Well, too bad, Lee, and too bad for all the Bruce Tramps who want to eat and drink there among like-minded others. The state of New Jersey has spoken.

In case this seems outlandish, substitute “COVID-19 vaccination or post-infection recovery” for “Springsteen concert attendance” in the text of imagined NJ law, and you’ve got a quote from a law recently passed in Florida. This is the law that now binds cruise ships, restaurants, health clubs, and… any other business in Florida. Businesses are legally forbidden to demand, as a condition of entry, that patrons provide some written or digital evidence that they are at low risk to transmit COVID-19. If you do require that, agents of the state will come to your business, sooner or later with guns, and compel you to stop or else they’ll impose a $5000 fine per incident. If you don’t pay that fine, ultimately they will use the force of the state to shut you down.

Why?

In May, many media outlets quoted Florida governor Ron DeSantis as saying, “In Florida, your personal choice regarding vaccinations will be protected and no business or government entity will be able to deny you services based on your decision.” Many arguments against such vaccine passports talk about protecting people’s freedoms to decide what goes into their bodies. DeSantis had previously issued an executive order where he claimed that vaccine passports “reduce individual freedom and will harm patient privacy.” When applied to private entities such as restaurants, health clubs, or cruise lines, the least we can say of DeSantis is that he is conceptually confused. You do not enhance freedom by crushing it. That is what the state of Florida is doing, and so too the other states forbidding businesses from demanding “vaccine passports.”

With the “Bruce Tramps Bar & Grill,” it might seem Lee and other fans of the Boss have an idle affectation about the people with whom they’ll keep company. We might even think they’re weird but admit it’s their choice to be that way. If they want to hang around only with other Bruce Tramps at a restaurant, well… more power to them. No one gets hurt from this exercise of their freedom.

The stakes are much higher with communicable disease. Cruise ships are confined spaces where disease can run rampant. This is what happened on the Diamond Princess and other cruise ships at the start of the pandemic. In health clubs, people exercise vigorously and breathe hard, aerosolizing whatever germs are in their lungs. In concerts and stadiums, when people cheer and scream, their mouths are vuvuzelas spewing infection.

The law now forbids Florida businesses from requiring patrons to show they have taken a key step to reduce the risk they pose to others. Even worse, patrons who want to associate only with other risk-averse patrons are now not free to do so in businesses that want to cater to them. That is the cost to freedom from these bans on vaccine passports. (Here we can pass over the loss to freedom that comes when people get infected and are hospitalized or drop dead, as well as the loss of freedom to those whom they infect.)

Even though a cruise line would want to sell me a lower-risk cruise, I am unable to purchase one from a company whose ship departs a Florida port and which requires as a condition of boarding that one provide some proof of vaccine status. That’s at least as groundless as not being able to go to Lee’s bar & grill to hang around only with other Bruce Tramps.

People might disagree about the seriousness of the pandemic or the best ways to manage risk. Here I pass no judgment about what is reasonable to believe about this disease in particular. I admit it seems to me a poor risk management strategy to forbid people to do what they believe best reduces it. (See a related recent great post by John Hasnas.) It also seems like a poor strategy from politicians who claim to protect freedom that they forbid voluntary acts among consenting adults who are concerned about risk. This is analogous to Nevada passing a law that forbids brothels from requiring patrons to wear condoms.

Even if we disagree about how serious COVID-19 is, the least we can do is leave people and businesses alone to sort out how they manage such risks.

Thanks to Andrew Jason Cohen for thoughts about an earlier draft.

Against Busybody Moves to Limit Liberty


I grew up in a fairly densely populated but suburban area, primarily with single family homes and duplexes. Each home had a yard, perhaps 30 feet by 75, mostly fenced in. We knew all of our neighbors on the block—say a dozen homes on each side—and a few on surrounding blocks. Many moved there from more crowded, mostly urban areas. Some people had vegetable gardens in their back yards, most did not. (Almost) no one had farm animals. I am not sure if there were any laws prohibiting such. A neighbor on the next block over (but only 4 houses away from us), had chickens in their yard. Chickens! For some, this was scandalous. The idea that someone might keep live chickens in their yard in our neighborhood was just appalling to them. And they did their best to rid the neighborhood of this apparently appalling pox on mankind. I no longer recall if they succeeded—I don’t think they did, but I may be wrong.

To be honest, back then I didn’t think much about those chickens—or those adults seeking to get them out of the neighborhood. Lately, I find myself thinking a lot about such people and the immense variety of things they would prohibit. Of course, some things should be banned—involuntary slavery, for example. Unfortunately, though, the list of things for which there are advocates of prohibition is extremely lengthy. That list includes:

large sodas; alcohol; cigarettes; marijuana, cocaine, other currently illicit drugs; certain books and magazines; curse words and profanity; hateful speech; guns; chickens, pigs, and rabbits (in suburban or urban areas); tall grass; parking on an unpaved space, even on one’s own property; crossing the street against the light, even when no cars anywhere around; non-standard building structures; non-standard colors for homes; homes built less than 30 feet apart; homosexuality; non-monogamous intimate relationships; intimate relationships with more than 2 partners; picking up prescription medications for one’s spouse; working for a wage below some minimum (perhaps a legally enforced minimum, perhaps someone’s idea of a “liveable wage”); grants from corporate donors; and far more.

As noted, some things should be prohibited. Involuntary slavery, murder, and rape are obvious examples. None of the items on the list above are like those three. All three necessarily make use of unconsented-to force against another. (In language I use elsewhere, all necessarily involve the wrongful setting back of one or more person’s interests by another.) None of the other things I’ve named above do that. And yet, there people have proposed banning each. The arguments for banning them usually involve one or more of four rationales. There are, of course, sophisticated arguments for and against each of these; here I just point out a simple problem with each. The four rationales and a simple objection to each are:

(1) The items in question or their uses are bad for the user, reducing their level of well-being. BUT: It’s interesting that those making these claims—for example, that accepting a job for less than a “liveable” or legally minimum wage is bad for you and you thus shouldn’t be allowed to accept it–don’t seem to consider the possibility that they themselves likely do things that might be bad for them. For example, proponents of such bans might work long hours, drink too much alcohol, care too much about the prevailing zeitgeist, etc. Perhaps those things should be banned. More time with family, relaxing, communing with nature, etc, is likely better for you than working long hours after all. It’s not clear why it’s less reasonable to ban comparatively long hours than it is to ban comparatively low wages. Some people, after all, may be quite happy being productive at some task without making alot of money. Proponents of bans for paternalist based reasons seem generally incapable of imagining that other people might think something they like is bad for them. (I am not denying that there are objective standards of what is good or bad for someone; I am denying such claims justify limiting liberty, whether they are objective or not.)

(2) The items in question or their uses are somehow offensive to others. BUT: Again, it’s interesting that those making these claims—for example, that pornography is offensive and should thus be banned–don’t seem to consider the possibility that others might find something they like or do offensive. Indeed, some of us might find the attempt to ban pornography offensive. It’s not clear why it’s less reasonable to think banning pornography is offensive than permitting it. A ban, after all, might make people mistakenly think there is something wrong with nudity or sexuality, essential aspects of being a human person. Proponents of bans for offense based reasons seem generally incapable of imagining that other people might find something they like offensive. (Again, I am not denying that there are objective standards of offensiveness; I am denying such claims justify limiting liberty, whether they are objective or not.)

(3) Banning the items or their use is good for others not using them (even if the items or their use do not offend or harm those others). Robby’s carrying a gun puts others at risk; Jill’s doing meth in the house next door might lower their property value. BUT: It’s not clear how much risk is usually present in these sorts of cases or why someone else’s benefit justifies interference with Robby or Jill. Of course, if the risk of gun carrying is sufficiently high, banning it would really be about protecting others from harm, not merely benefitting them–and that, I agree, would be a good reason to prohibit something. But while reducing the risk of a harm is a benefit, the claim here is only about benefiting someone, not reducing the risk of a harm. If I gift you $1000, I benefit you, but not gifting you the $1000 is not harming you. Banning meth in my neighborhood may well benefit me in terms of raising my property values—something I am very happy to see happen. But does my preference for increased property values justify interfering with Jill’s use of meth? Would it justify punishing Sally for keeping her yard messy? Banning Sheila’s use of an old, falling apart car? All of those things—visible meth use, messy yards, and junker cars— would reduce property values in a neighborhood. And again, proponents of interference with some to benefit others don’t seem to recognize that there are lots of ways to interfere with them–the proponents of interference--to help others. Perhaps they could be forced to teach at a local school, pay higher taxes, clean up messy yards, help out at addiction clinics, fix up cars. (And again, I am not denying that there are objective standards of benefit; I am denying such claims justify limiting liberty, whether they are objective or not.)

(4) The items in question (or their uses) are themselves immoral. (I’ve written about this here before; e.g., see this, this, and this.) BUT: Arguments for such immorality are usually not forthcoming and of course, proponents of these claims of immorality never consider the possibility that their interference with the way other people choose to live their lives is itself immoral. It’s precisely, of course, the sort of problem solved in Loving v Virginia and Obergefell v. Hodges. Thankfully, we no longer abide by the wishes of those who would ban interracial or same sex marriage. The busybodies that wanted to interfere with such were defeated. If only we could defeat the rest of the busybodies wishing to interfere in the lives of their neighbors. Again, proponents of bans for morality based reasons seem generally incapable of imagining that other people might find something they like immoral. While some think a marriage of 3 or more people is immoral, others think that heteronormative marriage is immoral. While some think cocaine and meth use are immoral, some think alcohol use is immoral. Some of us think banning any of these is immoral. (And again, I am not denying that there are objective standards of morality; I am denying such claims are usually accompanied with good arguments about such, or that they would justify limiting liberty, whether they are objective or not.)

As suggested, I think the only good reason to ban something is that it is itself harmful or used to cause harm. But it’s not enough merely to assert that something (guns, alcohol, what have you) causes harm. We need—and often don’t get—clear evidence of the harms discussed and why/how they are necessarily connected to the items for which a ban is sought.

So why are attempts to prohibit things so frequent (and too often successful)? It seems clear enough that the proponents of bans that get attention are simply good at working other people into a frenzy to join their crusade, whether the crusade be for good or bad (though it’s always claimed to be for good). Such people, it seems to me, rather enjoy imposing their desires on others–either because they are not satisfied with the degree of control they have over their own life (perhaps it is not enough) or because they are not satisfied with having control only over their own life (perhaps its too much!). It is a desire for power over others rather than a desire for power to live ones life as one wishes that seems to drive these people. We might do well to figure out how to decrease the occurrence of such a desire. (Even if not prohibiting it!)

Moralism and Busybodies: From Community to Police State

In previous posts (for example, here), I have discussed what seems to me an extremely worrisome form of legal moralism wherein people essentially invoke “community” as a moral good in order to instantiate what they want regardless of what others in their supposed communities prefer.  Put differently, they think interference with your activities is warranted simply to maintain or promote the existence of a community they value, whether or not you or anyone else values the sort of community they do.  They might want a neighborhood community where all of the houses are painted the same color or that have the same flowers in front, for examples.  Should you want a different color paint or different type of flower, it’s too bad for you.  These are examples you might hear of in a Homeowners or Condo Association, and are fairly insignificant.  Indeed, in an HOA or a COA, where the rules are in the legal documents, I’d suggest there is no problem at all—because living in an HOA or a COA entails voluntary agreement to the terms of those documents.

These sorts of rules, though, might exist in neighborhoods lacking such an agreement.  Sometimes neighbors simply pressure each other to not use some paint colors, for example, in order to prevent reductions in property values.  While annoying, even these aren’t the sorts of problems I really worry about—perhaps because the claims involved aren’t—and aren’t meant to be—moral claims.  When the same dynamics involve moral claims, the intensity of demands and thus disagreements are often worse.

The general problem is what we euphemistically call “busy bodies.”*  These are people who think they should not only pay attention to your life, but also think they should tell you what to do.  Often, such people mean well.  They are simply trying to help.  Some busybodies cross a line, however, by not merely offering advise but demanding your compliance.  They might demand you not paint your house a certain way, for example, explaining that it will hurt property values and then adding that if you did it anyway, you would be failing in your obligations to your neighbors (see this for a related amusing story).  In what such obligations are grounded, though, they don’t say. 

This is still a minor issue—it’s just painting your house.  But busybodies might also come and tell you how to discipline your child—and again, while this can be done in a friendly “here’s some advice, take it or leave it” way, it can also be done as a demand based in some unstated moral view.  They might insist, for example, that your child not be allowed to play in the woods, be left alone, climb a wall, or ride a specific type of bike.  They might say “if you do allow those things, you are a bad parent; good parents don’t behave that way.”  (Of course, about some things they may well be right.)

Make no mistake, some people have no problem interfering with the lives of others; some are naturally interventionist. They think they know how other people should live. They think they know how you and I should live. And, very importantly, they believe the government should make us do what they think we should do and disallow us doing what they think we should not.  Here’s where we get the biggest problems—problems that arise from further steps along a path to authoritarianism.  From encouraging people to maintain their homes for simple practical reasons or offering (even undesired) parenting advise, to claiming we have duties to follow such advice, to seeking governmental power to force compliance, we have a spectrum of activities that are worrisome. 

To make the point clear, consider that some people believe smoking tobacco cigarettes—perhaps especially menthol flavored—is not only bad for you, but also (perhaps for that reason) immoral.  And that some people (President Biden) are perfectly happy to use government power to enforce your compliance—all for your own good.  The U.S. FDA’s stance on this is clear:

Banning menthol—the last allowable flavor—in cigarettes and banning all flavors in cigars will help save lives … With these actions, the FDA will help … address health disparities experienced by communities of color, low-income populations, and LGBTQ+ individuals, all of whom are far more likely to use these tobacco products,” said Acting FDA Commissioner J. Woodcock, M.D.

Should any of us, including people in communities of color, low-income populations, or amongst LGBTQ+ individuals, think the benefits of smoking outweigh the costs for us, its too bad for us.  The busybodies are perfectly willing to use their power to bully the rest of us.  Such people do not mind sending police to arrest you should you try to sell single cigarettes, sell any without a license you’ve paid them for, or even for smoking one in your own home.  They will also not mind putting you in prison for failing to comply—or killing you on a street corner. (See this, if the story does not sound familiar.)

We should not think, though, that this is just about government.  Busybodies are often willing to use any sort of organization to make others comply with their desires. They are more than willing to vote to limit your ability to do what you want, of course.  But they are also quite willing to work to impose such restrictions in the workplace or neighborhood. They have no compunction against encouraging the boss to set policies that limit your ability to do what you want. They don’t mind petitioning a business to stop performing a service you enjoy or to stop selling a product you like.  They certainly don’t mind having the government make activities you enjoy illegal or limited.  What they seek is a society they like, regardless of what you or anyone else likes.  If some people must be imprisoned or killed for the cause, they seem to think that is simply a cost of attaining a good community or society. 

*See Antony Davies and James Harrigan’s Cooperation and Coercion: How Busybodies Became Busybullies and What that Means for Economics and Politics for more on the general problem.