Bottom-up contextual libertarianism

Libertarians love to contrast bottom-up market solutions with top-down government mandates. A demand – or the potential for demand that may develop with creative persuasion – is discerned and the savvy entrepreneur employs unique localized knowledge to meet the need. An individual is situated in a particular set of circumstances, with a particular history and set of skills, contacts, prejudices, desires, etc. How the individual interacts with the market is contextual in a way no central planner can appreciate. Given the freedom to exchange and a trustworthy currency, the decentralized actions of individuals in their particular contexts spontaneously generate a market order whereby the aims of far-flung strangers are furthered.

But libertarians often approach their own political philosophy in an ironically top-down way. Libertarian theories are often based on one or a few abstract principles (the non-aggression principle, and hardcore property rights that the NAP is parasitic upon), and then let the chips fall their where they may for the applications of the theory. This may seem “bottom-up” in a facile way, starting from a foundation and building on top of it. But this is really the blueprint of a central architect. There’s none of the characteristic duct tape and kludge of a complex adaptive system, none of the quirky diversity of individual purposes.

In a “Libertarian Case for Bernie Sanders“, Will Wilkinson contrasts the project of developing a theory of liberty from abstract principles with the alternative approach of jotting down already deeply held values and trying to build a workable theory of liberty from there. Forgive the long quotation, but Wilkinson writes better than I can summarize:

Thomas Reid, the Scottish Enlightenment philosopher, pointed out that there are two ways to construct an account of what it means to really know something, rather than just believing it to be true. The first way is to develop an abstract theory of knowledge—a general criterion that separates the wheat of knowledge from the chaff of mere opinion—and then see which of our opinions qualify as true knowledge. Reid noted that this method tends to lead to skepticism, because it’s hard, if not impossible, to definitively show that any of our opinions check off all the boxes these sort of general criteria tend to set out.

That’s why Descartes ends up in a pickle and Hume leaves us in a haze of uncertainty. It’s all a big mistake, Reid said, because the belief that I have hands, for example, is on much firmer ground than any abstract notions about the nature of true knowledge that I might dream up. If my theory implies that I don’t really know that I have hands, that’s a reason to reject the theory, not a reason to be skeptical about the existence of my appendages.

According to Reid, a better way to come up with a theory of knowledge is to make a list of the things we’re very sure that we really know. Then, we see if we can devise a coherent theory that explains how we know them.

The 20th century philosopher Roderick Chisholm called these two ways of theorizing about knowledge “methodism”—start with a general theory, apply it, and see what, if anything, counts as knowledge according to the theory—and “particularism”—start with an inventory of things that we’re sure we know and then build a theory of knowledge on top of it.

The point of all this is that an analogous distinction applies to our thinking about politics.

Suppose you’re especially interested in liberty, as I am. If you’re a theory-first methodist, what you’re going to do is concoct a general theory of liberty and then use it to tell you what a maximally free regime looks like. I think the analogy to theories of knowledge is very good here, since strong theory-first libertarians often come to the conclusion that no state-based regime can ever qualify as fully free. This amounts to deep theory-driven skepticism about government that’s a lot like deep theory-driven skepticism about knowledge. But then, well… what? I can’t tell you for sure that I’m not stuck in a computer simulation, so I don’t know that I have hands. And I can’t tell you for sure how to square my intuitions about coercion and consent with the legitimacy of government (or property, for that matter). Okay. Sure. So what now? We’ve got to get on with life. What gloves should I buy for my maybe-computer-simulated hands? What kind of maybe-illegitimate government should we want to live under?

Wilkinson notes that this does involve a proto-theory of liberty – or more generally, a proto-theory of politics or of the good. But this proto-theory can be revised after life and dialogue with others persuades us we’ve maybe got something a little out of whack here or there.

Bottom-up capabilities

Wilkinson specifically mentions the evidently flourishing nations earning places of prominence in the Fraser Institute’s 2015 Human Freedom Index (pdf), which tracks various kinds of freedom, from rule of law and stable government to ease of starting a business and freedom of movement. Wilkinson suggests that these nations, even though they include anti-libertarian things like socialized health care and high levels of wealth redistribution, nevertheless also perform better than other nations at ensuring negative liberty for their citizens, the kind of liberty qua freedom-from-coercive-constraint that libertarians cheer. Questions of legitimacy and coercion are important, but as Loren Lomasky and Fernando Tesón point out in Justice at a Distance, even if no government is fully legitimate, there are surely degrees of legitimacy, and the Fraser Institute’s favored nations must rank highly in relative legitimacy.

Wilkinson’s “data-first particularism” reminds me of the capabilities approach, and my own writing on how it and libertarianism might be joined. The capabilities approach does not begin with simple premises and derive from there. In thinking about capabilities you first consider all the things a flourishing life comprises and then you try to kludge together a halfway coherent theory to underpin them. Or you begin with obvious injustices or social diseases and work out your theory to avoid these pitfalls. Consider a world

where enforcement of property rights is perfect and government violence is minimal, but where all the property is owned by a rich, cohesive majority group, large enough to function economically on its own. Further, members of the majority loathe the minority group, and uniformly refuse to sell or lease them property; neither will they employ them except perhaps for dangerous or degrading jobs for exploitative wages; neither will they educate them in their first class schools.

To echo Wilkinson (and Thomas Reid), if your theory says that a rigid caste society is okay as long as property rights are protected, then that is a reason to reject your theory, and not just a tasty bullet to chomp down on. Wilkinson’s question, “What kind of maybe-illegitimate government should we want to live under?” can be answered: one that is empirically most consistent with the advancement of human capabilities.

Contextual politics

My fellow Sweet Talker Sam Hammond has discussed something very similar to what Wilkinson is driving at, a means to build politics from the bottom up. With characteristic brilliance, Sam has described a secular analog to that old chestnut, the Euthyphro dilemma.

[T]he original dialogue between Socrates and Euthyphro was not really about the nature of god, but about the nature of normative authority more generally. By being constant through time and space and separate from human particularity, God simply reflects the idealized universality and generality which we seek in our principals of justice.

In lieu of god, secular moral philosophy from Kant on has been trying to somehow leverage sureness back into our moral sense through convoluted transcendental arguments. Such efforts usually involve the metaphysical construction of an “ideal self” in some ideal scenario behaving in ideal ways to which we must all rationally assent. Our secular Euthyphro dilemma thus becomes: Are our abstract moral theories based on what is right, or is what is right based on our abstract moral theories? Against any Kantian construction, the dilemma is no less powerful as when levied against divine command.

In a subsequent post, Sam defends Ordoliberalism as a practical approach to building politics from the bottom up.

In this view, law is a public good that must be calibrated to encourage co-ordination. On the other hand, ignoring the societal outcomes of a legal system based on the dogma of natural rights leads to disaster. For example, in the early 1900s the cartelization of the German economy was upheld by “laissez-faire” courts emphasizing the inalienable right of freedom to contract. Ordoliberals recognized the dramatic expansion of cartels as a key factor behind the rise of national socialism, and thus made competition law a central plank in their post-war project.

To Ordoliberals, the property system, including contract and liability law, was itself as much a type of competition policy as anti-trust measures like explicit acts prohibiting monopoly. This point of view is sometimes referred to Ordnungspolitik, an organic conception of regulatory policy as integral to and a part of economic order. The Ordo Yearbook of Economic and Social Order was thus one of the earliest academic journals to publish what today is called law and economics, public choice theory and constitutional economics, with a special emphasis on limiting the influence of rent seeking through a strong, independent state apparatus. Note that these are all fields which blur the line between market and state, consistent with the interdependence thesis.


This focus on path dependency and public choice helps the Ordoliberal dissolve the dogmatic debates between “capitalists” and “socialists”. For example, in a dynamic world it may very well be the case that public pension plans are pro-market. From a public choice perspective, corporate welfare policies like auto-industry bailouts are a clear consequence of special interest lobbying through trade unions. Looking closer, the bailouts are less about the company as they are about shoring up massive pension liabilities. Thus an Ordo could argue that to oppose an actuarially transparent public pension scheme is to tacitly support the maleficent alternative.

Emphases mine. Just as Wilkinson observes that we find ourselves in a state and must get on with it, Sam suggests that the lines between the state and the market are and must be blurred. The market is contingent upon the legal order even while legal rules must be made in accordance with economic principles and human nature if they are to be socially useful, or in my language, capabilities-enhancing. Culture and institutions interact with the market, government, and politics in complex ways. The same laws will not necessarily have the same social effects where norms of strong family bonds prevail, for instance. And feminist consciousness, a communications revolution, or an extended economic upswing can influence both the public policies that are demanded as well as the effects of those policies when in place. The dynamic interplay of economics, the law, politics, and culture amid pervasive political disagreement and our own uncertainty is far too complex and open-ended for any central planner to successfully manage, whether that central planner is the Politburo or the ab initio political theorist, libertarian or otherwise.

Libertarians who so often understand the importance of particular context in the market rarely understand that politics also is contextual. What Will Wilkinson, Ordoliberals, and capabilitarians can all teach us is that politics pervades our social lives, and our disagreements cannot be idealized away. While inconvenient for some, this is not a tragic truth.

7 thoughts on “Bottom-up contextual libertarianism

  1. As I see it, libertarianism is one of only three generic possibilities with regard to political philosophy. This is based on the unique invariant of government that I call the Presumption of Sovereignty. This is shorthand for the fact that a government is the only entity for which it may be permissible to commit acts that would otherwise be mala per se crimes (killing, confinement, confiscation of property).
    This condition is based on some moral standard. Under Authoritarianism, this standard is arbitrary (good king, bad king). Power is the measure of its presumption. Under Utilitarianism this standard is morally subjective, derived by cultural bias, majoritarianism or some other analytically opaque assertion of the ‘good’. Its measure is utility. Libertarianism’s measure is liberty. The moral standard is objective. This means the Presumption of Sovereignty is constrained to questions of justice, Strictly moral issues are inherently subjective, and therefore, would not be within the proper purview of a libertarian government.
    The definition of liberty is consent. A right is its exercise. Therefore, none of the ‘rights’ that are commonly asserted in political/legal contexts are absolute, be they property, religious or speech ‘rights’. When property, religion or speech is used to violate the consent of another, they are not rights in this context.
    Consent is what separates liberty from license on the one hand and permission on the other. License by definition has no constraints. Permission’s default is constraint, with any actions being exceptional. Consent’s constraints are exceptional and self-defining: totality, competence, reciprocity and, most contentiously, publicity. This last is the interface where context separates rival interests from actual rights.

    1. Paul Crider

      I don’t think I’ve ever heard utilitarianism described as subjective. Also, doesn’t cultural bias apply to what is construed by different people as liberty?

      1. I refer specifically to political liberty here; the political right to act within the inherent constraints of your own consent. It is the political analog of the legal presumption olf innocence in that it establishes a default political condition. Simple morality is subjective, or at least, difficult to discern from the outside as it were, but justice (transitive morality) is objective.
        Perhaps ‘external’ would be a better term than ‘subjective’. My point is that a moral standard is imposed under utilitarianism without proper consideration of morality as an executive functiion exclusive to each individual. It views compliance with compulsion as functionally equivalent to morally constrained behavior, as long as the compulsion is properly licensed by the designated authority. This is a subjective standard, since it need offer no analytical (observational, objective) justification. ‘The greatest good for the greatest number’ leaves it up to some analytically opaque principle (literal or cultural majoritarianism) to determine what ‘good’ is and what number will justify what might objectively be considered the violation of a given individual’s consent.

  2. Will’s post would be more convincing if either Sanders (or, indeed, his opponents) were arguing about the Denmark and Sweden that are, rather than their 1970s fantasies (that were fantasies even then.)

    1. Paul Crider

      Well Sam Hammond is very worth reading. 🙂 On the lines between the state and market being blurred, I think Sam does a good job of explaining the idea in his Ordoliberalism post, which is worth reading in full. The state and its policies set the conditions for how the market will function. Even basic land property rights have to be defined and interpreted (how far down into the earth or up into the sky do the rights extend? How do pollution or other externalities apply?). All these sorts of considerations can be beneficial or detrimental to whatever your concept of liberty or the good is. And there will probably be interactions between policies. It’s at least plausible that a really free labor market might only get political traction if there’s a social safety net.

      I imagine as a market anarchist you might disagree? I guess even in an anarchic legal order their would be political contestation over how the law is interpreted and what precedents are set; legal factions/schools would arise.

      If you’re interested in the capabilities approach, I wrote a little bite-size piece for
      And a really long piece here at Sweet Talk that begins here:

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