In the previous post I described the capabilities approach and discussed some of its appeal. The story grows in the telling, as they say, and I’ve decided to split the current post on why libertarianism could use the capabilities approach into two separate posts. In this post I’ll suggest how some common justificatory bases for libertarianism fail, and do so in ways readily grokked from a capabilitarian vantage. The next post will focus on how other (better) species of libertarianism are already fairly compatible with capabilities.

Libertarians should adopt a capabilities framework simply because in some form it has compelling normative force. Simplistically, for any society at any point in capabilities space, it seems intuitive that that society would be improved by advancing any capabilities of its members without regressing on other capabilities for any of its members. Things admittedly get more complicated when some capabilities advance at the expense of others, or the capabilities of a select few advance significantly faster while their fellows languish, or again when capabilities conflict with one another (examples of religious doctrines standing in opposition to other basic capabilities come to mind, or perhaps property claims). These are topics I hope libertarians and capabilitarians can have late night dorm room arguments about. But the simple case seems trivially true. But many common forms of libertarianism fail for trying to get too much mileage out of one good idea and ignoring the complexities of the human condition, including the historical contingency of socioeconomic patterns, human diversity, and human frailty.

the Bullet-bitarians

Consider the non-aggression principle (NAP), which states that violent aggression against person or property is always wrong. In it’s strongest form, some “thin” libertarians take this as the totality of their ethical theory, so that “anything peaceful” is hunky-dory. A weaker version allows that the NAP proscribes violent aggression, but leaves what one ought positively to do to other ethical systems. But the NAP utterly fails to grapple with real life complexity. Matt Zwolinski and Julian Sanchez have written persuasively on several reasons why the NAP fails, but the central reason is that the NAP is an absolutist position. Like any absolutist (as opposed to presumptive-but-defeasible) position, it falls victim to the first moderately imaginative reductio ad absurdum to happen along. Here is one of the reductios from Zwolinski,

But taken to its consistent extreme, as Murray Rothbard took it, the NAP implies that there is nothing wrong with allowing your three year-old son to starve to death, so long as you do not forcibly prevent him from obtaining food on his own. Or, at least, it implies that it would be wrong for others to, say, trespass on your property in order to give the child you’re deliberately starving a piece of bread. This, I think, is a fairly devastating reductio of the view that positive duties may never be coercively enforced.

We could bite this bullet, but a whole firing squad awaits us down this path. If, more sanely, we take the obligations of parents to children as a whole field where the NAP offers nothing of value, then we must conclude that the full libertarian political framework is really based on something else, justified on other grounds. The capabilitarian, meanwhile, acknowledges upfront that a human life consists of periods of dependency, notably infancy and childhood. Infants and children require care and development; any society that would countenance withholding such care in order to spare adults from coercion should be condemned.

The capabilitarian is also sensitive to the fact that women have historically been expected to provide this care, usually uncompensated. The legacy of such gendered expectations can frustrate the effective ability of women (men too, to some extent) to pursue the kinds of lives they have reason to desire. NAP libertarianism, of course, has no response to this kind of systemic, patterned inequality, not even to say that the cultural norms perpetuating the malignant pattern should be dispensed with.

Zwolinski and Sanchez both point out that the NAP is parasitic on a theory of property. Propertarian conceptions of libertarianism maintain that all rights can be construed as property rights. The right to be free from violent assault, for example, is really the property right to one’s own person — self-ownership. But property too cannot support the heavy load demanded of it by many libertarians. The idea of property in central cases has a lot of intuitive appeal. If I am on stranded on deserted island and procure for myself a fishing spear, a stockpile of coconuts, and a hut, then, should it turn out that the other half of the island is inhabited by collectivists, I have a strong intuitive moral claim that those islanders can’t just take my stuff. “It’s mine, goddamnit” is actually pretty good justification.

But many forms of property are less crystal clear. Rights to land? How deep into the ground do these rights extend? And how does our understanding of underground rights change as we discover that the contents of the earth beneath us have value? And these contents (water, oil) tend not to obey human property lines; do you have recourse if I “drink your milkshake“? Other quantities also fail to respect human drawn boundaries: pollution, noise, radiation, and all the externalities of human action that can radically impact the value of land property. Perhaps inconveniently for the hardline propertarian, many socially useful forms of property are those that cannot be simply homesteaded. Consider the radio spectrum, or the divvying up of fishing rights or other renewable resources that can easily be depleted without conscious effort at preventing a tragedy of the commons. These notions and the disputes that arise from them require discussion, and deals, and guidelines that all depart from the simple intuitive case of my stuff on the island.

We encounter another hail of bullets if we’re not prepared, as Locke was, to acknowledge that we cannot claim property without leaving as much and as good behind for those who come after the initial claims. Or as Nozick acknowledged, we mustn’t adhere to a principle of property in the face of “catastrophic moral horror”. And we should remember that property rights themselves require coercion, as Kevin Vallier helpfully explains:

Rousseau asks us to imagine someone who is not convinced of natural rights to property, at least as interpreted by the richer laborers in society. The responder has a rational complaint: who made you [the rich, the “haves] judge of where your property rights begin and end? It’s a dangerous juridical power, one that can easily be used to keep people hungry and powerless. In light of the suffering of the property-less, why should they ever think that the claims of the rich and powerful are naturally legitimate? What could justify the haves in using coercion to protect their property when the have-nots have so little?

This alludes to a final point about property. The distribution of property in society did not arise from the rational and moral negotiations of neutral beings in some original position, veiled or otherwise. We inherit our present distributions of property and power from a history filled with blood and oppression and terror. None of the above should be taken to deny the immense usefulness of property rights, nor the intuitiveness of the central cases. But property is not fundamental. We must find our justification elsewhere. This history, to the extent that it adversely impacts some individuals’ ability to develop their capabilities and execute their life plans, would matter very much to the capabilitarian.

Objectivism and false flourishing

It usually begins with Ayn Rand, they say, and it certainly did in my case. Rand bases her libertarianism on the moral primacy of the individual, and asserts that the individual should live for their own happiness according to rational self-interest. “Rational”, because the individual must employ reason to survive in a world of objective reality — that is, a world where facts will not bend just because they may hurt our feelings. Rand offers an inspiring vision of the individual as a rational creature capable of amazing accomplishments, especially when that individual enjoys the comradeship of other equally rational and self-interested people who can prosper by trading value for value with one another as moral equals. No one is subjugated for the sake of a morally vacuous collective or majority (vacuous because groups cannot reason or value; only individuals can).

But of course this vision is unrealistic. We are inescapably dependent creatures. Each of us is born without our prior consultation, completely dependent on the humans around us, and raised in an environment not of our own choosing. This environment has profound impacts on every aspect of our being that propagate through the rest of our lives. If we are lucky enough to survive to old age, we’ll encounter a fate symmetric to infancy: the gradual loss of our independence and the rational faculties that make us characteristically individual. A hardcore Randian may argue that old age can be predicted and it’s the individual’s responsibility to plan for it, but there is no such argument for the dependent and coerced nature of childhood. And what about those born with nonstandard mental capacities or those whose capabilities are diminished by accident or villainy? It’s no surprise that Atlas Shrugged includes no children with any significant camera time, and no senile or handicapped people at all.

We reason, but our rationality is famously imperfect and heavily scaffolded by our environments. We are individuals, and I won’t argue that the moral buck doesn’t ultimately stop with the individual. But we are also social beings, to such an extent that an individual too long apart from society may lose what is recognizable as humanity.

I always find Ayn Rand’s message that the individual and their happiness must not be sacrificed on the altar of need or collective desire deeply stirring. It is a presentation of human flourishing, and as such it’s a richer basis for libertarianism than the NAP or property fetishism. But a realistic concept of human flourishing must contend with the objective reality of the human condition a far sight better than the wishful fantasies of Objectivism. The capabilities approach is consistent with a similarly lofty vision for the individual. In Sen’s words, the capabilities approach “gives a central role to the evaluation of a person’s achievements and freedoms in terms of his or her actual ability to do the different things a person has reason to value doing or being.” The individual has good reason to strive for the heroic, and to view “his own happiness as the moral purpose of his life, with productive achievement as his noblest activity, and reason as his only absolute.” But a capabilitarian, to adopt this romantic humanistic vision, would nevertheless struggle to reform our cultures and institutions so that each individual can actually develop their capacities to the fullest extent feasible and can rationally, effectively determine their own moral purpose, not just those already blessed at birth.

a brief note on spontaneous order

Friedrich Hayek’s conception of libertarianism (he would prefer “liberalism”) is, in my view, far more sophisticated than those discussed above. Hayek observed that the free actions of individuals within a regime of stable rules, undertaken on the basis of local knowledge for individual ends and undirected by a grand teleology delivered from on high, result in a spontaneous order capable of, among other things, allocating resources more efficiently than a rationally planned society. I’ll discuss in a later post how capabilitarians can benefit from a libertarian appreciation of spontaneous order as a powerful tool for expanding human capabilities in a way that respects individual agency. But for now I want to suggest how capabilitarian attention to social patterns can sharpen the libertarian understanding of spontaneous order.

The libertarian thinker, Charles W Johnson, in his brilliant essay on rape culture, Women and the Invisible Fist, points out that spontaneous order can arise just as easily from dispersed coercive interactions as it can from dispersed consensual interactions. Emphasis in the original:

But nothing conceptually requires that emergent orders need be benign orders. If widely distributed forms of intelligence, knowledge, virtue, or prudence can add up, through many individual self-interested actions, into a benign undesigned order, then there’s no reason why widely distributed forms of ignorance, prejudice, folly or vice might not add up, through many individual self-interested actions, into an unintended, malign order. So might widely-distributed, micro-level practices of violence; since libertarians are centrally concerned with individual freedom from violence and coercion, the possibility our threefold distinction raises of an emergent but non-consensual order must surely give us pause.