Professional Documents
Culture Documents
David J. Harris
I wrote this almost three years ago for a course that focused on the relationships between
the human body and our political and social identities. During the writing process, I
quickly realized that a comprehensive treatment of these issues would have been book-
length, and so I pared down my argument to those issues I was most prepared to focus on.
I apologize if the result is disjointed or patchy, but I hope that the argument still comes
across clearly.
This essay is copyright David J. Harris 2005. I am licensing it under the terms of the
http://creativecommons.org/licenses/by-nc-sa/3.0/us/.
If you would like to discuss this essay with me or would like to redistribute it in a way
that is not compatible with the terms of the above license, feel free to email me at
David J. Harris
Libertarians have a complex suite of radical policy proposals that, if implemented, would
dramatically change the structure of our government, eliminating the social safety net,
most if not all taxes, all subsidies and tariffs, all business regulations not directly related
to fraud, public education, and most other government functions other than protection
from physical force or deception. In some formulations, only the police, military, and
courts would remain, and democratic support for more government intervention would be
ignored. Libertarians are a small minority, and most people find the libertarian end-state
undesirable, so one may wonder why nonlibertarians should bother thinking about them.
The first reason is that libertarianism, “in theory, if not in practice, it is the ideological
‘spear-point’ of ‘free market reform’ throughout the world,” with “many of its prominent
exponents, such as Milton Friedman, F. A. Hayek, Ludwig von Mises and Robert
Nozick” “highly esteemed by scholars.”2 In other words, we should take the theory
1
David D. Friedman, The Machinery of Freedom: Guide to a Radical Capitalism
[selected chapters online unedited] (Peru, IL: Open Court Publishing, accessed
November 27, 2005); available from
http://www.daviddfriedman.com/Libertarian/Machinery_of_Freedom/MofF_Chapter_
41.html.
2
Ernest Partridge, “With Liberty for Some,” in Environmental Philosophy, eds.
Michael Zimmerman, Baird Callicott, Karen Warren, Irene Klaver, and John Clark
(Upper Saddle River, NJ: Prentice Hall, 2004, accessed November 27, 2005);
RIGHTS AND REASON• 3
seriously because while few want to adopt their entire project, specific policies and ideas
are influential. The second reason is that libertarians can be highly persuasive, and if we
do not agree with their proposals, it is important to understand both why we disagree and
why we find their reasoning so compelling. The final reason is that beneath its
ideological excesses, libertarianism offers important insights that can only be gained by
individual rights have implications outside the state, and weakly libertarian views are
common throughout ethics. For example, both “autonomy” and “non-maleficence,” two
important pillars of medical ethics, can be restated in explicitly libertarian terms.3 More
importantly, Americans consider Ayn Rand’s radically capitalist Atlas Shrugged to be the
most influential nonreligious book in their lives4 and largely apolitical descendants of
Rand’s philosophy like Nathaniel Branden’s bestselling books on self-esteem are popular
facts and assumptions;6 in this essay I will identify and refute several of them, paying
special attention to the problems the human body and mind create for libertarian premises
like absolute nonaggression, inviolable rights, and perfect rationality. My goal is to deny
libertarians easy access to first principles and rules of thumb so that each situation must
are derived from the same philosophical tradition as American government (Lockean
liberalism), they often ring true to us until critically evaluated; understanding the
implications of individual rights taken to their logical conclusion may help us better
identify cases where ideology interferes with morality in our own society. Conversely,
freeing libertarians from their rigid ideological confines will allow them to turn their
insights to a more nuanced and effective critique of the real problems of modern
governance.8
Libertarian values
I define libertarianism as any philosophy that supports property rights, whose moral or
legal code consists largely of opposition to coercion and that requires governments, as
mere collections of individuals, to abstain from the initiation of force. Most readers will
7
Most libertarians use “man” and masculine pronouns unless speaking specifically
about women. Though I generally keep my writing gender-neutral except when
necessary, I will in some cases write “man” (in scare quotes) to refer to “the libertarian
conception of ‘man.’” Additionally, when I refer to the same “man” as one of the
authors I quote, I will maintain “his” gender rather than having an example begin
about a man and end with a gender-neutral person.
8
Jeffrey Friedman, “What’s Wrong With Libertarianism,” Critical Review 11, no. 3
(Summer 1997, accessed November 27, 2005): 442-460; available from
http://www.tomgpalmer.com/papers/friedman-whatswrong-cr-v11n3.pdf.
9
Fulton Huxtable, Fatal Blindness, “Introduction,” available from
http://web.archive.org/web/20021018224823/www.fatalblindness.com/introduc.htm,
accessed December 4, 2005.
RIGHTS AND REASON• 5
be less familiar with libertarian ethics than with the politics that flow from them, and in
this section, I will summarize several derivations of the libertarian moral code. I will
largely let the authors of these positions speak for themselves so that I might avoid
caricaturing their positions, which will be largely interchangeable for my purposes. I will
which is somewhat distinct from the other morality-based theories and explain how my
libertarian principles begins with self-ownership: “You own your life” because “to deny
this is to imply that another person has a higher claim on your life than you have.” One
has fundamental rights to life, liberty and property, and when people “exchange property
voluntarily,” they must both be “better off or they wouldn’t do it.” Normally, taking life
is “murder,” taking liberty is “slavery,” and taking property is “theft.” “It is the same
whether these actions are done by one person acting alone, by the many acting against a
you have no right to impose rulers on others. No matter how officials are
selected, they are only human beings and they have no rights or claims
that are higher than those of any other human beings... You cannot give
them any rights that you do not have yourself... This is the basis of a truly
free society. It is not only the most practical and humanitarian foundation
for human action, it is also the most ethical.
This brief sketch includes most libertarian principles, including the right to life, self-
ownership, nonaggression, the value of trade, and limits on government. The influential
10
Ken Schoolland, The Adventures of Jonathan Gullible: A Free Market Odyssey, (HI:
Sam Slom, 1987) Animation (accessed November 27, 2005) available from
http://www.jonathangullible.com/mmedia/PhilosophyOfLiberty-english_music.swf;
epilogue (accessed November 27, 2005) available from
http://www.jonathangullible.com/mmedia/Epilogue.pdf.
6 • DAVID J. HARRIS
libertarian theorist Murray Rothbard and his followers defend self-ownership from
alternatives by arguing that “if all goods were co-owned... then no one... would be
allowed to do anything unless he had previously secured every other co-owner’s consent
to do so; and yet, how can anyone grant such consent if he were not the exclusive owner
of his own body (including his vocal chords) by means of which his consent must be
living entails exclusive use of objects like food, “property rights to other things must be
presupposed as valid, too. No one who is alive could possibly argue otherwise.” The
Rothbardian argument, like the Objectivist argument I will review below, thus logically
true, could not be articulated; supposedly, disputing their reasoning entails implicitly
conceding it.
John Locke and Robert Nozick take a slightly different approach, arriving at
reflect[ing] the fact of our separate existences. They reflect the fact that
no moral balancing act can take place among us; there is no moral
outweighing of one of our lives by others so as to lead to a greater overall
social good. There is no justified sacrifice of some of us for others. This
root idea... leads to a libertarian side constraint that prohibits aggression
11
Locke’s Second Treatise of Government, cited in page 10 of Nozick’s Anarchy, State,
and Utopia.
RIGHTS AND REASON• 7
12
against another.
Thus far, the most significant difference between the libertarians I have cited is their view
on whether or not government should exist: Locke “easily” grants government the right
to solve certain “inconveniences of the state of nature,” while Rothbard and his followers
state. Note that all the derivations of libertarian values I have mentioned so far focus on
rights and prohibitions against rights violations as opposed to balancing costs and
benefits to the group; all consider individuality a necessary precondition for rights.
Rand’s Objectivism
Because Rand was violently opposed to calling herself a “libertarian,” before I discuss
her philosophy, I should explain why I feel justified in calling Objectivism a libertarian
philosophy. The political goals of non-anarchist libertarians are usually identical (or at
least very similar) to those of Obectivists. Both groups oppose the initiation of force,
though the reasoning differs slightly. Nathaniel Branden, a longtime associate of Ayn
Rand and expert on Objectivism, writes that Rand’s opposition to the label “libertarian”
had as much to do with the way the word sounded as with any legitimate ideological
difference, and sees “libertarianism” as the best available label for Objectivist political
philosophy.13 Libertarians often see Rand as misguided, and even dangerous14 but many
admire her writing for its clarity, passion, and success in providing “liberal capitalism
with a moral foundation.”15 Regardless, the philosophies are similar enough that many
12
Robert Nozick, Anarchy, State, and Utopia, (New York: Basic Books, 1974), 33
13
Nathaniel Branden, “Objectivism and Libertarianism,
http://www.nathanielbranden.com/catalog/articles_essays/objectivism_and_libert.html
, 1999 (accessed November 27, 2005).
14
Murray N. Rothbard, “The Sociology of the Ayn Rand Cult,” 1972, available from
http://www.lewrockwell.com/rothbard/rothbard23.html, 2003 (accessed November 27,
2005).
15
Cathy Young, “Ayn Rand at 100,” Reason, March 2005, available from
8 • DAVID J. HARRIS
criticisms of one will apply to the other, especially because of the influence of
ethics may apply better to Objectivism than to most other libertarian philosophies
because Rand explicitly noted that absolute property rights depended on the impossibility
of overlapping claims16 and defined any ethical system that differed from her “objective”
one as illegitimate, as it would conflict with her axioms, which, like the Rothbardian
Rand holds that “that which furthers” an organism’s “life is the good, that which
threatens it is the evil,” and the nature of that organism, including the fact that it exists as
a living being “determines what it ought to do.” In other words, ethics follows logically
from an organism’s nature, especially from its life. In the case of “man,” reason is the
“basic means of survival,” so “that which is proper to the life of a rational being is the
good; that which negates, opposes, or destroys it is the evil.” From this follows the
“basic social principle of the Objectivist ethics:” “just as life is an end in itself, so every
living human being is an end in himself, not the means to the ends or the welfare of
others—and, therefore, that man must live for his own sake, neither sacrificing himself to
The most important theoretical distinction between Objectivism and other libertarian
philosophies is that Rand’s politics were derived from her own metaphysics,
epistemology, and ethics; unlike Rothbard, she began with the right to life and used it to
derive the right to property and self-ownership rather than the other way around. All the
philosophers I am dealing with here consider both self-ownership and the right to life to
be absolute, so for my purposes, it will not matter which one comes first. I will note
Consequentialist libertarians
Though some of the best defenses of a free market have come from F. A. Hayek, I have
little to say to his followers; unlike the libertarians I consider here, Hayek scorned
“wooden insistence... on certain rough rules of thumb,” favoring the market precisely
because it would allow for nuance, experimentation, and multiple alternatives.19 Though
influential among libertarians, he rejected their label and may actually be more properly
aspects of libertarianism, and especially his son David Friedman, who takes the threat of
government coercion so seriously that he advocates a stateless society, are also largely
18
Ayn Rand, “The Objectivist Ethics,” The Virtue of Selfishness, (New York: Signet
reissue edition, 1964), 13-36, all emphasis Rand’s.
19
F. A. Hayek, The Road to Serfdom (Chicago: University of Chicago Press 1972), 18.
20
Jonah Goldberg, “Libertarians Under My Skin: Grow Up Already,” National Review
Online, March 2, 2001, available from
http://www.nationalreview.com/goldberg/goldberg030201.shtml (accessed November
27, 2005).
10 • DAVID J. HARRIS
immune to my criticism, as they restrict their efforts to finding the best government, not
the most moral one.21 Though Rothbard, Rand, and Nozick often argued from
consequences, arguing that their philosophies would produce outcomes that were both
moral and desirable, they did little empirical work to support their claims, and their
argument was primarily moral. Other libertarians like David Boaz of the Cato Institute
work from both perspectives, though they grant rights primacy. The following quotation
from Boaz shows that this group of libertarians will be unimpressed with my argument:
I have two answers for Boaz and those that agree with him. The first is to refer them to
assertions and circular reasoning to be the only way to sustain both lines of argument. 24
21
For example, see David D. Friedman, The Machinery of Freedom: Guide to a Radical
Capitalism [selected chapters online unedited] (Peru, IL: Open Court Publishing,
accessed November 27, 2005); available from
http://www.daviddfriedman.com/Libertarian/Machinery_of_Freedom/MofF_Chapter_
41.html.
22
David Boaz, “No Contradiction Between Rights and Consequences,” Liberty, May
1999, available from http://www.libertysoft.com/liberty/features/73symposium.html,
accessed December 3, 2005.
23
Jeffrey Friedman, “The Libertarian Straddle: Rejoiner to Palmer and Sciabarra,”
Critical Review 12, no. 3 (Summer 1998, accessed November 27, 2005) available
from http://www.tomgpalmer.com/papers/friedman-rejoinder-cr-v12n3.pdf. See also
Friedman’s “What’s Wrong With Libertarianism.”
24
“Libertarian philosophy is self-sustaining if one accepts its premises, but one would
only accept them if one had already been pushed in a libertarian direction by
consequentialist considerations. Yet consequences are irrelevant once the
philosophical premises are accepted. Libertarian philosophy repudiates social science,
but it needs social science if it is to be persuasive. On the other hand, libertarian social
RIGHTS AND REASON• 11
There is no reason to assume the happy coincidence that both rights and happiness will be
maximized in the same system, unless, as Boaz asserts, “individual rights are rooted in
the nature of man.”25 This is precisely the assumption that I am attacking, so Boaz’s
“man’s” nature will be inoperative and Boaz will need to defend his positions on other
answer to Boaz is that if, as he concedes, “Americans do still believe firmly in the broad
outline of rights theory,”26 and if both he and other Americans all agree that these rights
can be overridden by other values, then rights simply become one value among many,
circumstances,” where “it is wrong to hit people or take their stuff, and everyone knows
this,” and then concluding that “non-aggression is indeed a moral imperative” in other
The differences among libertarians make my task more difficult than it might
otherwise be. A libertarian could read my essay and object, “okay, you’re right that there
escapes those problems, and the toughest questions, like what to do about conjoined
twins, are too rare to worry about.” My point is not just that some libertarians have bad
science needs libertarian philosophy to achieve closure. Empirical research does not,
as of yet, seem to have legitimately gotten anyone 100 percent of the way to
libertarianism; there remain, at the very least, some public goods and, in principle, the
need for economic redistribution. Libertarian philosophy fills the gap between what
free-market economists can prove about the undesirable consequences of government
intervention and the absolute prohibition of all intervention. Consequentialist and
nonconsequentialist arguments for libertarianism may be antithetical in principle, but
they are symbiotic in practice. The resulting organism, unfortunately, can neither swim
nor fly. The weaknesses of each of its two parts are aggravated by those of the other.”
Jeffrey Friedman, “What’s Wrong,” 444.
25
David Boaz, Libertarianism: A Primer (New York: The Free Press 1997) 84.
26
Boaz, “No Contradiction.”
12 • DAVID J. HARRIS
views; I intend to show that those views are a necessary result of depending exclusively
on libertarian ideas; shrinking from the hard cases makes the theory ambiguous and
shows simple principles to be inadequate. At the very least, libertarians must detail what
their backup philosophy is in the cases where rights do not apply, and provide a
framework for deciding which principles to use. They would also need to show that
whatever system of ethics they used in these hard cases could not override individual
rights in “normal circumstances.” As far as I know, none have. My goal is not to show
that self-ownership, individual rights, and so on are bad, but to show that they are
insufficient. Good liberal ideas like rationalism and individual rights must not
overwhelm other values like beneficence and empiricism or reduce all social interaction
to mere nonaggression. Unlike some of their critics, I do not see libertarians as evil, just
overzealous in defending a specific kind of liberty: libertarians are not “anarchists who
want police protection from their slaves,”27 but merely liberals that carry on an important
Delineating rights
Either man’s rights are inalienable, or they are not. You cannot say such
a thing as “semi-inalienable” and consider yourself either honest or sane.
When you begin making conditions, reservations and exceptions, you
admit that there is something or someone above man’s rights, who may
violate them at his discretion—Textbook of Americanism29
27
Kim Stanley Robinson, Green Mars, (Spectra, May 1, 1995) 318
28
Richard Carnes, as cited by Mike Huben, “Critiques of Libertarianism: Quotations,”
available from http://world.std.com/~mhuben/quotes.html (accessed November 27,
2005).
29
“Textbook of Americanism,” pamphlet, 12, cited in The Ayn Rand Lexicon:
Objectivism From A to Z, ed. Harry Binswanger, (New York: Meridian 1986), 211.
RIGHTS AND REASON• 13
prohibit trespass by thousand megawatt laser beams and machine-gun
bullets but not by flashlights and individual carbon dioxide molecules. But
how, in principle, do you decide where along that continuum the rights of
the property owner stop?—David Friedman30
Property rights, including self-ownership, are central to all forms of libertarian morality.
As Rothbard showed that merely being alive among others entails absolute property
rights, and Rand argued that those rights will never conflict or overlap, I intend to show,
using several examples involving children, that life entails conflicts that cannot be
resolved in a property rights framework and that attempting to do so would justify child
neglect or even child slavery. I will also challenge the libertarian conception of the
individual, which is the cornerstone of all libertarian theories of rights. These are by no
means the only challenges the body poses to libertarian conceptions of rights; as David
Friedman noted above, metabolizing and breathing requires polluting others’ property
with carbon dioxide, which violates their rights in the same way that trespassing does.
This challenges both the libertarian claim that property rights are “natural” or a necessary
consequence of living as a human being, and also the claim that under nonaggression is a
The debate among libertarian factions about abortion mirrors the debate in the larger
society, essentially a conflict between the liberty of the mother and the life of the child.
Most libertarians are “pro-choice,” with a significant minority of “pro choice” libertarians
opposing both abortion and government interference with the women that choose it.31
30
David Friedman.
31
In 1998, only 43% of libertarians agreed that “abortion is wrong,” and only 12%
agreed that “abortion should be made illegal.” Both the U.S. Libertarian Party and
orthodox Objectivism oppose state interference with abortion as well. Statistics from
“The Liberty Poll,” Liberty, February 1999, available from
http://www.libertysoft.com/liberty/features/70libpoll.html. Libertarian Party position
from “National Platform of the Libertarian Party” (Atlanta GA, May 2004, accessed
14 • DAVID J. HARRIS
The fact that there is any debate at all among about whether abortion is “wrong” (let
alone one split nearly evenly) is itself an indication that delineating rights is much more
difficult than libertarians like to admit. If two libertarians, reasoning from the same
situation and the same principles, can arrive at multiple conclusions, this greatly weakens
their assertion that every “claim of conflicting rights must represent a misinterpretation of
fundamental rights.”32 The ability to satisfy all parties by delineating rights objectively is
evinced among libertarians. Furthermore, the common libertarian position (held, for
example, by two-time Libertarian Party presidential candidate Harry Browne and the
Libertarian Party platform35) that even if abortion is murder, the state should not be
involved, would not satisfy any libertarian that derived his or her political views from
individual rights rather than from projected outcomes. If the state is obligated to stop
murder, then it is obligated to stop murder when the victim lives inside another human
being.
Both orthodox Objectivism and Rothbardian ethics fare even worse. Consider the
A fetus does not have a right to be in the womb of any woman, but is there
by her permission. This permission may be revoked by the woman at any
time, because her womb is part of her body. Permissions are not rights.
There is no such thing as the right to live inside the body of another, i.e.
there is no right to enslave.37
John Walker of Libertarians For Life points out that even if this is true, abortion may be
too harsh a “punishment” for the fetus: “most abortions are not simple removals where
the child dies for lack of sustenance. They are usually very unambiguous acts of
destruction.”38 In other words, abortion is lethal force, not just revocation of the
mother’s permission to live inside her body. On the other hand, libertarians are not
opposed to force per se, only to the initiation of force, and if the fetus is truly enslaving
its mother, abortion may be an example of permissible retaliatory force. The question
that arises is, how much force is permissible in expelling an intruder? Can I shoot people
that breathe on me? There is no easy answer to this in a libertarian framework, and I will
leave the question unanswered. But the notion of fetal enslavement leads to some
and Rothbard (like most libertarians) believe that the state (or nonstate “protective
association”) should use its resources to prevent all forms of coercion against its citizens,
including the loss of liberty they define as “slavery,” such a view obliges the state to
terminate all unwanted pregnancies at taxpayers’ expense! I doubt any libertarian would
endorse such a position (the Libertarian Party opposes it explicitly39), but if an unwanted
embryo really is trespassing in its mother’s womb and enslaving her, and the state should
36
Murray Rothbard, The Ethics of Liberty, (New York: New York University Press,
1982), 1998 edition, xi.
37
“Frequently Asked Questions,” Capitalism Magazine’s Abortion is Pro-Life, available
from http://www.abortionisprolife.com/faq.htm, accessed November 27, 2005.
38
John Walker, “Children’s Rights Versus Murray Rothbard’s The Ethics of Liberty,”
1991, available from http://www.l4l.org/library/chilroth.html, accessed December 3,
2005.
39
“National Platform of the Libertarian Party,” previously cited.
16 • DAVID J. HARRIS
protect people from such losses of liberty, then anyone that believes the maternal
enslavement argument would have a tough time justifying any opposition to state-
sponsored abortions.40
One would also have difficulty identifying any obligation a mother has to her
child after birth; is an obligation to feed a newborn baby “enslavement” as well? After
all, as Rothbard notes, “birth is indeed the proper line of demarcation, [but] the usual
libertarian theory is the inalienability of the will, and therefore the impermissibility of
enforcing voluntary slave contracts.” In other words, the mother cannot sell herself into
slavery to her offspring, so she can terminate the relationship at any time, including after
birth: Though a parent “may not murder or mutilate his child… [he] should have the
legal right not to feed the child, i.e., to allow it to die.” (In parentheses, he notes that
“whether or not a parent has a moral rather than a legally enforceable obligation to keep
his child alive is a completely separate question,” one which he does not address.)
Rothbard asserts, “a free baby market will bring such ‘neglect’ down to a minimum,”
ignoring the connection the existing baby market has with child exploitation.42
40
I am not taking a stance on whether abortions should be subsidized by government,
only pointing out that libertarian principles can disappoint even libertarians when
taken to their conclusion.
41
Rothbard, The Ethics of Liberty, 97-101
42
There is already a $10 billion a year industry in buying and selling children. It is
devoted largely to child prostitution. Absent parental obligations, Rothbard’s “free
baby market” will no doubt allow thousands of young girls the opportunity to rent out
their vaginas in exchange for food from the entrepreneurs that buy them from
impoverished parents for paltry sums. Rothbard allows for no social safety net, so the
children’s right to run away will not be worth much if their only alternative is
starvation. Pamela Shifman, UNICEF adviser on violence and sexual exploitation,
notes that children can be “lured into the hands of traffickers through false advertising
[or] by promises of a better life; but very often children are lured into the hands of
traffickers because they see no alternatives for themselves and their families, and they
are desperate, and so they are willing to believe anything and do anything in order to
survive.” Forcing children into these situations hardly seems just, yet as we shall see,
libertarian arguments against Rothbard are unconvincing, showing those of us that
RIGHTS AND REASON• 17
Walker argues that that the parents brought their child into the world as a helpless
being without the child’s consent, making them responsible for the child in the same way
that disabling an innocent bystander makes one responsible for his or her future
welfare.43 That position seems convoluted to me, as it seems to imply that fertilizing an
egg and nurturing it until it becomes a small person is a form of aggression committed by
both parents against the unborn child. Rothbard provides what I think is a better example
Walker’s appeal to the power of the parents and the needs of the child falls on deaf ears;
as he notes, libertarians do not normally speak in these terms, as they explicitly reject
positive obligations and duties to others.45 Rothbard has the upper hand here; in a
libertarian framework, a child has no more claim on the mother’s life, liberty, or property
than on anyone else’s and neglecting to feed one’s child is no worse than neglecting to
feed one’s neighbor. Unless libertarians acknowledge positive rights and obligations
(which would justify a whole host of “evils” from mandatory charity to the draft)46 then
condemning a woman for aborting or abandoning her child is to condemn her to child-
oppose sexual slavery for children that libertarian ideology is inadequate. Quotation
and statistic from Peter Heinlein, “Child Trafficking: A Thriving, $10 Billion per Year
Industry,” Voice of America News, available from
http://www.voanews.com/english/archive/2005-05/2005-05-25-voa60.cfm, accessed
December 4, 2005.
43
John Walker, “Why Parental Obligation?” (New York City, January/February 1984,
updated in 1991 and accessed November 27, 2005)
http://www.l4l.org/library/whyparob.html.
44
Rothbard, The Ethics of Liberty, 103
45
Llewellyn H. Rockwell, Jr., “The Right To Exclude,” Ludwig von Mises Institute,
August 13, 1999 (accessed November 27, 2005) http://www.mises.org/story/282.
46
Rand, “The Wreckage of the Consensus,” Capitalism: The Unknown Ideal (New
York: Signet paperback) 227.
18 • DAVID J. HARRIS
rearing slavery. Clearly—as common sense tells us—some value other than
nonaggression must govern the interaction of parent and child. If other values are
allowed to violate the mother’s “right” to not feed her baby, then perhaps they apply in
other cases, and negative rights may not be as integral a part of our nature as Boaz and
Conjoined twins
An important element of the confusion arising in the case of children stems from the
intimate connections between mother and offspring during pregnancy and the dependence
of the baby on the mother both before and after birth; conjoined twins present even more
difficult issues, as the connection is often more profound and long-lasting, and involves
an even greater dependence on the other party for life. Recall the importance of the
explicitly depends on the separateness of individuals, which is (or appears to be) called
into question by conjoinment. Does one twin have the right to drink alcohol if the other
one wants to stay sober? If one twin commits a crime, how do you imprison one without
probably impossible to partition the physical “self” of conjoined twins for individual
ownership. Furthermore, conjoined twins provide what may be an even tougher question
than abortion in situations where continued conjoinment threatens the life of both, but
surgical separation guarantees that one will be cut off from vital organs and die. This
may seem like an extreme example, but as historian Alice Dreger points out,
Libertarians should be able to answer these questions to our satisfaction before we allow
inviolable individual rights to supplant other elements of our ethics or grant that they
flow directly from our nature. Alternatively, if their ethics do not apply here, libertarians
must articulate a principle that allows us to pick an alternate framework. They must be
nonaggression in other arenas where they believe absolute property rights are desirable.
Recall that what matters here to the libertarian is not the number of surviving
twins, but the actions taken by the twins, the parents, the doctors, and the state. What
matters is who aggresses against whom and the legitimacy of that aggression. I can think
each be derived from the same principles, making it difficult to pick one without using
nonlibertarian values as a tiebreaker. First, the state might be obligated to prosecute those
that performed the surgery; second, the state might be obligated hire a doctor to perform
the surgery; third, the state might leave the question entirely to the parents. I address
The first view is that, since neither twin has initiated force against the doctor, he
or she may not harm either twin, regardless of the parents’ wishes. The state would
prosecute any doctor performing the surgery for murder. This view is simple and
internally consistent, but conflicts with the position most libertarians have on abortion:
could they favor lethally separating babies from their mothers to prevent the
inconvenience of child-rearing but oppose lethally separating babies from one another to
save a life? This view also suffers from neglecting the parents’ wishes and consigning
A second possibility is that one twin is aggressing against the other by “stealing”
blood and so on. In such a situation, the state (perhaps acting through a doctor) would be
morally obligated to act on behalf of the victim by separating the twins, regardless of the
parents’ wishes and the well being of the other twin. This scenario may seem far-fetched,
but in such a case, the British courts held that one twin had a right to “quasi self-defense”
against the other, and that doctors were justified in killing the aggressing twin to save her
victim despite parental objections to the procedure.48 This line of argument is unlikely to
appeal to most libertarians, even though forceful intervention against aggressors is one of
the few government functions they support, because it involves a lethal attack on a baby
that never chose to be a “parasite” on her sister. It also neglects the fact that both twins
are using one another’s resources without consent. Should they both be punished?
Furthermore, as Dreger points out, separating such intimately connected people does
severe violence to both twins, and perhaps neither would want the doctor to act on their
behalf.49
A final possibility is that since sacrifice surgeries typically occur when the
children are very young, the parents may have “ownership” of both twins and may decide
But this line of thinking has several obvious flaws. First, there is the
question of whether anyone should be able to make such a grave choice on
behalf of someone else. there might be some circumstances in which
consent ought never to have been presumed. Suppose Angela Lakeberg
had survived and eventually learned that her identical twin sister, Amy,
had been killed because people believed that Amy and Angela wanted this.
What emotional trauma would Angela have had to face? Would she have
been obligated to believe she wanted her sister to die? Should we assume
that Angela would have traded her sister’s life for her own?50
Such expansive power over one’s offspring could easily slide into justifications for child
48
Dreger, 95-109
49
Dreger, 94-95
50
Dreger, 95
RIGHTS AND REASON• 21
molestation and even child slavery; if one owns one’s children and can have one of them
killed or sold without outside interference, this does not seem unreasonable. As noted
before, Rothbard would prohibit child abuse, but given asymmetries of power, the
children in a libertarian society with no social safety net, it is easy to imagine children
“voluntarily” submitting to abuse “in exchange for” services like food from their parents.
This happens now and would no doubt be more common if parents legally owned their
children.
Incidentally, in the Lakeberg case, only one of the two twins had a fully
functioning brain, which may have made this case easier, especially from the Objectivist
viewpoint that “man's rights do not depend on his ability to feel pain; they depend on his
ability to think.”51 But using this as evidence raises difficult questions about the right of
mental patients, people with brain injuries, and other people we generally see as
deserving of freedom from pain but who cannot think rationally the way normal adults
do. As we shall see, some libertarians are loath to deny any rights to mental patients
(including the rights to bear arms, to vote, and so on), and so they would probably be
very uncomfortable with justifying killing an innocent person on the grounds that they
It is important to note that this is not just a difficult issue for libertarianism;
however, is that simple libertarian principles do nothing to clarify the situation unless
51
Edwin A. Locke, “Animal ‘Rights’ Versus Human Rights,” Providence Journal (June
8, 2005, accessed November 27, 2005) available from
http://www.aynrand.org/site/News2?page=NewsArticle&id=11197&news_iv_ctrl=108
4
52
Dreger, 93
22 • DAVID J. HARRIS
supplemented; they can justify several alternatives, none of them appealing, and leave no
way but whim to distinguish among them. Knowing “man’s nature” and respecting “his”
rights sheds little light on complicated situations like these, where, as Rand and Boaz
assure us can never happen, rights come into conflict. But if we accept positive
obligations to others and recognize that legitimate rights can collide, a solely libertarian
outside of the “normal circumstances” in which nonaggression applies, one must wonder
why libertarians think their philosophy applies to organ donations,53 euthanasia, and
children in general, and also wonder why libertarianism is necessary in the first place.
down when applied to the human body, I will now show some ways that they fail to
Defining reason
[The absolutist position that] either we are perfectly rational or we are not
rational at all… fosters the paranoid fear that science might be on the
verge of showing us that our rationality is an illusion… that fear, in turn,
lends spurious attractiveness to any doctrine that promises to keep science
at bay, our mind sacrosanct and mysterious… [but] our freedoms [are]
enhanced, not threatened by demythologizing the self—Daniel Dennett54
Abnormal psychology
former member of Ayn Rand’s inner circle, believes that people are only “addicted” to
nicotine because they have been “brainwashed” into believing that smoking is
53
The Objectivist-influenced Capitalism Magazine actually supports free trade in
human organs. David Holcberg, “Human Organs for Sale?” Capitalism Magazine,
November 24, 2005, available from http://capmag.com/article.asp?ID=4484, accessed
December 4, 2005.
54
Daniel Dennett, Freedom Evolves, (New York: Penguin Putnam Viking, 2003), 271.
RIGHTS AND REASON• 23
55
addictive. An article by the Ayn Rand Institute puts “addiction” in scare quotes, noting
that rational people can simply choose not to smoke.56 The libertarian psychiatrist
Thomas Szasz flatly states, “drugs cannot cause addiction.”57 This is not a coincidence.
Szasz maintains “that the only means we possess for ascertaining that a man wants to
stop smoking more than he wants to enjoy smoking is by observing whether he stops or
continues to smoke”58 because any other test would justify paternalism that libertarians
reject. If people don’t always do what they want to do (for instance, if they want to stop
buying cigarettes but can’t), then perhaps an arbiter could help consumers by restricting
their choices—an impossibility if people are rational and rights are absolute. Szasz
continues, “The idea that the state has a duty to protect people from themselves is an
recognizes, every purported failure in human rationality may justify a government agency
to assist people in overcoming it, which is why he and other libertarians are so adamant
in presuming rationality, even in cases like addiction, where people are not able to quit
even when they seem to want to. Addiction also presents an interesting slippery slope
when combined with libertarians’ unwillingness to consider hard cases as legitimate tests
1. I will kill you if you do not steal a loaf of bread from a bakery.
2. I will imprison and torture you until you steal the bread.
55
Barbara Branden, “1998 Interview with Full Context,” available from
http://www.barbarabranden.com/interview.html (accessed November 27, 2005)
56
Thomas A. Bowden, “The Tobacco Industry Surrender: Only Moral Certitude Can
Save It,” Ayn Rand Institute, November 10, 1998,
http://www.aynrand.org/site/News2?JServSessionIdr001=6b6ahlxm34.app5a&page=N
ewsArticle&id=5304&news_iv_ctrl=1021, accessed November 27, 2005.
57
Thomas S. Szasz, "Do Drugs Cause Addiction?" DebatesDebates Show # 113, August
26, 1996; transcript available from http://www.szasz.com/addiction.pdf (accessed
November 27, 2005).
58
Thomas S. Szasz, “The Therapeutic State: The Tyranny of Pharmacracy,” (The
Independent Review, 5 no. 4, Spring 2001) Independent Review, 496, available from
http://www.independent.org/pdf/tir/tir_05_4_szasz.pdf (accessed November 27, 2005).
24 • DAVID J. HARRIS
3. I will imprison you and addict you to heroin. Once you are addicted, I
will release you and condition further doses upon stealing the bread. If
you do not get more heroin, you will go through intense withdrawal and
possibly die.
4. You were a heroin addict prior to our meeting. I am your only possible
source of more drugs. You must steal the bread to get more, or suffer
withdrawal.
5. If you do not steal a loaf of bread to eat, you will starve to death.
6. If you do not steal a luxury car, you will have an unattractive car.
My understanding is that in scenarios 1 and 2, Rothbard would have you convicted for
theft, though the owner of the bread could choose to pardon you due to the unusual
circumstances. He apparently did not take a stance on whether one should “die
heroically” rather than aggress against another, only on what the legal framework should
be in such situations.59 Rand would also not take a stance on the first two situations,
noting that physical force negates reasoning and thus ethics.60 Scenario 3 is essentially
the same as scenarios 1 and 2; you are physically and emotionally suffering in both cases,
possibly risking death, and cannot necessarily be condemned morally for coercing others
because you have been physically forced to do so by me. Once released, however, your
situation is identical regardless of who introduced you to heroin. The heroin withdrawal
feels the same regardless of whether one was initially addicted voluntarily or
involuntarily; thus either libertarian ethics depend on this trivial distinction, or it is unable
to condemn the drug user that steals to support his or her habit. If it cannot condemn
theft to buy drugs, it cannot condemn theft to buy food, either, since both the “food
addict” (i.e. a human) and the heroin addict need their respective substances to survive.
At this point, theft is a legitimate means of fulfilling certain needs, and Rand and
59
Rothbard, The Ethics of Liberty, 152-153
60
Rand, “The Wreckage of the Consensus,” Capitalism: The Unknown Ideal (New
York: Signet paperback) 235.
RIGHTS AND REASON• 25
Rothbard lose all their moral high ground when reduced to quibbling over why it is
legitimate to steal food but not medicine, medicine but not books, books but not jewelry,
states, “In some emergencies, considerations of rights go out the window,” and excludes
famine from the “normal situations” in which libertarian ethics apply because “social and
political life may be impossible.” Boaz tries to stop slipping from situation 3 to 4 and 5
by noting that in such emergencies, the key issue is that “a person finds himself in a
desperate situation through no fault of his own. It cannot be enough that… he has too
little to survive.”61 As I noted before, I do not find this distinction compelling. First,
assigning blame is often arbitrary. If farmers’ crops fail because of drought, is that their
fault for not buying insurance or growing a different, drought resistant crop (in which
case they must suffer for their lack of foresight) or is it outside their control (in which
case they can steal as much as they need)? Second, people will inevitably favor
themselves when evaluating fault, making competing claims inevitable. Third, such a
system might actually favor a lack of foresight so that people find themselves repeatedly
in situations where they are allowed to steal because, say, they had no way of knowing
that investing all their money in the dog tricycle industry would leave them destitute
Szasz’s solution is to deny that drugs can compel human action in the same way
that force can, stopping the slide even earlier, between steps 2 and 3, though it seems silly
to assert that a person’s moral situation depends on whether they are afraid of potentially
fatal “drug craving, restlessness, muscle and bone pain, insomnia, diarrhea and vomiting,
cold flashes with goose bumps” and convulsions62 or afraid of being shot. In order to
61
Boaz, Primer 84-87, Emphasis original.
62
National Institute on Drug Abuse, “NIDA InfoFacts: Heroin,” available from
26 • DAVID J. HARRIS
sustain this distinction, and thus libertarian views on property rights, Szasz needs to
Rothbard and Rand did with threats to their own philosophies. Rothbard was less than
pleased with Szasz’s views because they “eliminate[ ] the whole problem of whether an
act is consciously willed or decided upon, or not,” but Szasz countered that dismissing
some behaviors as involuntary would make moral responsibility impossible.63 Since this
would present a very difficult challenge to a purely libertarian morality, which depends
on all actions being rational and freely chosen, Szasz is forced to deny that all forms of
Szasz sees “medical discourse about bad brains” as a threat to “moral discourse about bad
behaviors,”65 and he carries his views on human rationality and freedom to their logical
everyone else,68 and opposes state involvement in health in all areas but containing
or incompetent that conflict with the patient’s liberties. Other libertarians disagree, but
they have few principles to stand on, as Szasz applies their own philosophy more
consistently than they do, and libertarians lack alternative values to weigh against the
losses of liberty Szasz documents. Because of this, he is influential, though perhaps not
popular; he writes for Reason, and had the admiration of Sir Karl Popper Popper70 and
Hayek.71
Interestingly, there are areas where other libertarians go even further than Szasz
does in preserving individual liberty. Szasz believes that people “have a ‘right’ to be sick
with hay fever because it does not endanger others, but we do not have a right to be sick
with infectious tuberculosis because it does endanger others.”72 He recognizes the right
to be free from preventable infection or impaired drivers, and supports coercive measures
to protect people in those cases. Lew Rockwell, a follower of Rothbard, disagrees about
demographic groups have higher crime rates than others. Government should be
According to Rockwell, criminalizing drunk driving “is worse than racial profiling,
because the latter only implies that the police are more watchful, not that they criminalize
race itself… what’s being criminalized in the case of drunk driving is not the probability
68
Thomas S. Szasz, “Thomas Szasz's Summary Statement and Manifesto,” March 1998,
available from http://www.szasz.com/manifesto.html, accessed November 27, 2005.
69
Szasz, “The Therapeutic State,” 494.
70
Sir Karl R. Popper, “From Sir Karl Popper,” 1961, 1981, 1984, (accessed November
27, 2005), available from http://www.szasz.com/popper.html.
71
Thomas S. Szasz, “From F. A. Hayek,” 1964-1983 (accessed November 27, 2005),
available from http://www.szasz.com/hayek.html.
72
Szasz, “Therapeutic State,” 494,
28 • DAVID J. HARRIS
that a person driving will get into an accident but the fact of the blood-alcohol content
itself.”73 Despite overwhelming evidence that the 97% of Americans that fear drunk
related crash at some time in their lives74—Rockwell actually asserts that drinking can
improve driving ability through increased caution because his ideology is incompatible
Szasz notes the logical impossibility of proving that something (such as witches
or mental illness) does not exist, thus shifting the burden of proof onto his opponents.
But the charge is easily reversed: Szasz makes the grand claim that human action is
always the result of reasoning, not physiological causes, i.e. that everything the mind
does can be explained in terms of its proper functioning. Few would make the same
argument about devices considerably simpler than brains. If Microsoft Word causes my
computer to crash, that cannot be explained in terms of word processing. If a car crashes,
out a window, its descent cannot be explained in terms of reasoning. Szasz is right that
we should be incredulous about the existence of witches, but that is because witches
violate the natural laws of the universe and operate by unique principles. We should be
equally incredulous about brains that, unlike computers, livers, or The Titanic, are
infallible. Even if Szasz is right that mental illnesses are only “illnesses” in the sense that
a whale is a metaphorical fish, that does not necessarily solve the problem; whales live
underwater, are externally shaped like fish, and locomote like fish, and so for some
73
Llewellyn H. Rockwell, Jr. “Legalize Drunk Driving,” November 3, 2000, available
from http://www.lewrockwell.com/rockwell/drunkdriving.html (accessed November
29, 2005).
74
Both figures from Mothers Against Drunk Driving, “MADD Online: General
Statistics,” http://www.madd.org/stats/0,1056,1789,00.html, accessed December 4,
2005.
RIGHTS AND REASON• 29
purposes, it can be useful to define them as such, even if it is not objectively correct.
Likewise, defining a term like mental illness out of existence does not make it go away,
and it does not mean that there is no overlap between interpersonal problems and
incompetent, since ownership depends on the competence to use one’s property. And if
Though Szasz’s views are unpopular among the psychiatrists he critiques, even
those that believe that he “is largely wrong” and that libertarian values are “less relevant
to the seriously mentally ill than to almost anyone else” nevertheless concede that he
“always wins the debate.”75 The reason is that his position “touches on fundamental
values of our society” like individual rights, liberty, reason, and self-reliance. When
Szasz reduces coercive psychiatry and drug prohibition to the fundamental question of
“whether the individual is viewed as a private person or as public property,” where “the
former has no obligation to the community to be or stay healthy” and “the latter does,” 76
it is difficult to justify most public health measures without staring down the slippery
slope to the sacrifice of all individual rights on the altar of health, especially after a
Germany.77 Starting from the premise that people have ownership of their bodies—
assault, even if it cures the patient of his disease.” But unless we take at face value the
Objectivist principle that there can be no legitimate arguments for an illegitimate position
—and I hope that the difficult choices involved in aborting, separating, and even raising
children have put that view to rest—there is no reason to assume that requirements for
consent cannot be overridden by other factors, especially when the patient’s self-
ownership and ability to consent are called into question. Szasz rejects this question,
makes clear that his views about mental illness, involuntary treatment, and
the insanity defense were well established before his exposure to
psychiatry, psychoanalysis, or even medicine and that he was unusually
successful at avoiding any experience that might have been relevant to
them. Szasz's views are entirely ideological; they have nothing to do with
empirical data and are therefore immune to arguments on the basis of
data.78
Since his views on mental illness are thus nonfalsifiable, and in light of mountains of
evidence79 from people that actually deal with the mentally ill, they are highly suspect.
This description of Szasz’s views fits neatly with Jeffrey Friedman’s analysis of Rothbard
and Rand: in each case, an incomplete empirical picture blossomed into an ideology that
rejects the possibility of empirical refutation. As Friedman notes, and as Boaz implicitly
counterexamples that the theory rejects. In other words, the counterexamples (like
mental illness) do not exist because the theory is true, and the theory is true because there
recognizing it is critical for separating libertarianism’s useful insights from its dogma. As
I will show in the next section, human nature would be a threat to libertarian assumptions
78
Michels.
79
Consider, for example, Lawrie Reznek’s The Philosophical Defense of Psychiatry.
(New York: Routledge, 1991).
RIGHTS AND REASON• 31
even Szasz were right that mental illness cannot occur.
Normal Psychology
Unfortunately for Szasz, there is evidence that even mentally healthy people are not
prices and is “difficult to reconcile” with rational-actor models like those that justify
absolute self-ownership and totally unfettered free trade.80 Harvard psychology professor
Steven Pinker notes that “our brains were shaped for fitness, not for truth,” often drawing
people to illogical conclusions that happen to support their position, to make large
sacrifices for small short-term gain and to consistently miscalculate odds at great
economic cost.81 The empirical question of whether people always act rationally has
in self-disgust grinds his cigarettes down the disposal swearing that this
time he means never again to risk orphaning his children with lung cancer
and is on the street three hours later looking for a store that’s still open to
buy cigarettes; who eats a high-calorie lunch knowing that he will regret
it, does regret it, cannot understand how he lost control, resolves to
compensate with a low-calorie dinner, eats a high-calorie dinner knowing
he will regret it, and does regret it; who sits glued to the TV knowing that
again tomorrow he’ll wake early in a cold sweat unprepared for the
morning meeting on which so much of his career depends; who spoils the
trip to Disneyland by losing his temper when his children do what he
knew they were going to do when he resolved not to lose his temper when
they did it?82
Szasz might assert that such a person merely lacks willpower, but if, as
psychologists believe, we are all such people under certain circumstances, then the
80
David A. Hirshleifer and Tyler Shumway, "Good Day Sunshine: Stock Returns and
the Weather," Dice Center Working Paper No. 2001-3, March 28, 2001, available from
http://ssrn.com/abstract=265674 (accessed November 28, 2005).
81
There are situations in which self-deception can be advantageous, which is why if our
minds were shaped for advantage in a hunter-gatherer society rather than for truth,
then we may not always function well in a world filled with confusing modern stimuli
from televisions, cigarettes, and slot machines. Steven Pinker, How the Mind Works
(New York: W. W. Norton 1997) 305, 337, 346, 396.
82
Economist Thomas Schelling, cited in Pinker 395.
32 • DAVID J. HARRIS
fiction. Though he can be a very useful fiction when his assumptions fit reality well,
entirely when these assumptions break down. Compared to Homo economicus, real
people are more optimistic, bolder, less able to distinguish between themselves and
others, more emotional, more likely to damage themselves to spite others, less able to
learn, and more likely to make mistakes,83 leading to bad predictions, economic waste,
and avoidable harm to themselves and others. Consider what this means for drug
addiction, where this discussion began: people will overestimate their ability to quit,
underestimate the costs to their health, begin using drugs for bad reasons (like spiting
their parents), and not notice that they are addicted or learn how difficult it is to quit until
it’s too late. In economics, it means that people are likely to be fooled by scams, create
depend on, buy more than they can afford, not save enough, invest in bad places, expect
stocks to go up when one buy’s and down when one sells, overestimate the value of
trends, and so on. This doesn’t mean that government economic intervention or
schooling will necessarily improve matters, but it does mean that they can’t simply be
ruled out simply because they are inconsistent with “man’s” “rational nature.” As
economist Richard Thaler noted, “basing descriptive economic models on more realistic
models,”84 and this is especially true with regard to the ethical side of economics, which
83
Richard H. Thaler, Journal of Economic Perspectives, Winter 2000, 14 No. 1 133–
140, available from http://gsbwww.uchicago.edu/fac/richard.thaler/research/homo.pdf,
accessed December 3, 2005.
84
Thaler, 140.
RIGHTS AND REASON• 33
cannot be easily tested and depends even more heavily on understanding human nature
Libertarianism reminds us that we must justify our positions and that our values can
sometimes conflict. When Harvard philosophy professor Robert Nozick asks whether
there is “really someone who, searching for a group of wise and sensitive persons to
regulate him for his own good, would choose that group of people that constitute the
membership of both houses of Congress,”85 the answer is clearly “no,” and the prospect
uncomfortable.
having exhausted most of the ideas permitted by its ideology 20 years ago.86
Still, once it overcomes the limits of its own ideology, Friedman believes that “post-
von Mises and Hayek, would be very well positioned to offer a critique of modern
governance that the modern left is ideologically unable to provide. Because “it is literally
85
Nozick, 14.
86
Jeffrey Friedman, What’s Wrong, 449.
87
Jeffrey Friedman, What’s Wrong, 457.
34 • DAVID J. HARRIS
modern governments are called upon to govern,” libertarians’ experience with self-
organizing systems like markets, their mistrust of benevolent dictators, and their
alienation from democratic politics may provide important improvements over the current
culture, and foreign policy based on ignorance, ideology, and appeals to motives like
nationalism rather than to efficacy. One of the biggest barriers to such useful
“before one has the necessary information to assess its accuracy.”88 Perhaps by blocking
libertarians’ recourse to their first principles, my critique will indirectly help bring this
change about and force post-libertarians to critically evaluate not just their own ideology,
88
Jeffrey Friedman, What’s Wrong, 445-459.
RIGHTS AND REASON• 35
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