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Libertarianism is Not Amoral

Randy Barnett over at Volokh points to this post at A Stranger in a Strange Land, which maintains that libertarianism is "amoral," that "the philosophy exists outside of judgments on morality."

This is simply laughable. Libertarianism is nothing but an effort to impose a particular perspective on the relationship between morality and governance. It is a fundamentally moral position, based on addled and anachronistic impulses that are only maintainable because the moral agency involved has been written out of the equation.

A Preference for Markets is a Moral Position. Consider, for example, the establishment of a market for human organs. The traditional libertarian position on the issue is that such a market should be permissible and that people who morally object should simply avoid participation in the market.

Markets for human organs may have positive consequences. Regardless, there are strong moral objections to the very existence of those markets. It is fundamentally a moral question - should everything be alienable, should everything be commodifiable? This question doesn't just affect participants in the markets - many people experience real negative externalities merely from the existence of those markets. If someone declares bankruptcy, will they have to sell an organ to satisfy outstanding creditors?

I consider the vast majority of market transactions to have a degree of coercion. Robert Hale, a legal realist, made this argument in 1923. Morris Cohen made a similar argument in his Property and Sovereignty in 1927.

A Preference for State Neutrality is a Moral Position. I don't believe that state inaction is qualitatively different or more threatening, as a rule, than other forms of collective action, whether through organic social movements or corporate activity. Sometimes it's worse, sometimes it's better. Both the libertarian insistence that the state (a) has a monopoly on legitimate force and (b) is uniquely threatening because of that monopoly, are moral positions.

For instance, the question of whether state racial discrimination is more invidious than private racial discrimination is a moral question.

Strong Limits on Democracy is a Moral Position. The most galling aspect of libertarianism is its kneejerk anti-majoritarianism. The threat of majoritarian tyranny is real, but no more real than the threat of denial of popular sovereignty. Part of the beauty of the American system of government is precisely the extent to which it is not Liberal, that it allows people to come together to democratically deliberate about the future of the country.

Perhaps this only happens in periods of heightened political participation (see Bruce Ackerman), or perhaps normal politics in some way embodies this. But there is no doubt that it conflicts with the libertarian vision. Bruce Ackerman's two "constitutional moments," or periods of democratically legitimate revision of founding principles, are the reconstruction era and the New Deal, with it expansion of the commerce clause and the fields of national governmental power.

Preferring the Private over the Public is a Moral Position. The belief that private behavior has no or little impact on other people is a normative position, not positive. The reality is that private behavior does impact others, whether it inspires empathy and compassion or contempt. Believing that private behavior is not an area of governmental action is in fact a moral devaluation of the interests one person has in another's private behavior.

Even toleration is a fundamentally moral position. I think it is good when dealing with things like gay rights, bad when dealing with things like racism. But imposing toleration on everyone is a fundamentally moral position, even at the meta-level. In many ways, it can be authoritarian, forcing people to experience horrendous experiences because of an artificial collective impotence.

The defenders of a libertarian "amorality" seem to be claiming something akin to Rawls' political liberalism. In a society of fundamentally competing reasonable moral worldviews, a policy of neutrality is in many ways superior to the alternatives. But it is not perfect, it is not really capable of deduction from first or neutral principles, and it is certainly not amoral. Reading morality out of it leaves it as an oppressive, impersonal, technocratic impotence.


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