Libertarianism and Rectification

This is my first post (of what I hope will be many) on libertarianism. I myself am not a libertarian but I really do enjoy debating with libertarians. I am fortunate to have had two excellent colleagues who are libertarians. Before coming to Waterloo I taught at Manchester University with Hillel Steiner (a left-libertarian). And here at Waterloo I have Jan Narveson (a right-libertarian) just down the hallway in the philosophy department. I have profited immensely from the many discussions and debates I have had with them over the years.

By seriously entertaining the arguments of my theoretical opponents I open my mind to new considerations that I would have failed to seriously entertain if I only discussed issues of justice with like-minded scholars (NOTE: such openness also guards against “group polarization”, a topic I will blog about at a future time). Furthermore, as a professor one is constantly exposed to diverse viewpoints in the classroom (from the left, right and everything in-between!) and I have never viewed the classroom as a venue for me to “indoctrinate” students with my own viewpoints. In fact, my classroom experiences actually play a formative role in my own intellectual development. So I try to create an atmosphere of openness and invite students to engage in civil debate with me as well as their peers. I find this helps me fine-tune my own moral and political sensibilities.

I would like to briefly outline one line of argument I have been recently developing against libertarianism. The thrust of this criticism stems from a larger beef I have with theories of justice that function at the level of “ideal theory” but I won’t get into that (at least not yet! :)). There are of course many variants of libertarianism, each of which is subject to different kinds of concerns and objections. Here I wish to raise a challenge for libertarians of a particular ilk- those who support Robert Nozick’s “entitlement theory of justice". This account of justice maintains that “whatever arises from a just situation by just steps is itself just (Nozick, 1974: 151). An important (though much neglected) component of Nozick’s theory is the principle of rectification. To make a long story short, the principle of rectification maintains that victims of injustice are sufficiently compensated if they are no worse off (having received compensation) than they would have been had the injustice not taken place (what Gregory Kavka (1982) calls the No Net Harm Criterion). If one takes the principle of rectification seriously (as good libertarians ought to!), then I believe this will lead libertarians to endorse conclusions that will not sit well with them.

It is useful to begin by distinguishing between intragenerational rectification and intergenerational rectification. The former refers to compensation for victims who are alive to collect rectification awards while the latter encompasses all injustices and, in theory, ensures that the present distribution of entitlements be that which would have obtained had only the principles in acquisition and justice in transfer been observed throughout history (Robert Litan, 1977: 234). Both types of rectification pose formidable challenges to libertarians.

Libertarians who champion the entitlement theory of justice, in the “here and now”, face a dilemma. If they believe that the distant injustices of the past have not been rectified then they should advocate, as Nozick himself does, a stringent prioritarian principle (like Rawls’s difference principle) rather than complain that the current welfare state is an unjust violation of their property rights. So good libertarians should join the fight with egalitarians (at least for the foreseeable future) rather than raising principled objections to redistributive taxation (in the current, non-ideal setting). I suspect this conclusion will be unpalatable to many libertarians thus lending support to the hypothesis that they are not seriously committed to the principles of entitlement. In which case one could be forgiven for thinking that some libertarians use Nozick simply as a façade to mask the fact that they are simply making a self-interested (rather than principled) argument for lower taxation.

On the other hand, if libertarians believe that the requirements of intergenerational rectification have been satisfied, then intragenerational rectification for (what THEY [not me!] see as) the victims of the existing welfare state (i.e. the rich) will require compensation the extraction of which will mandate an extensive (rather than minimal) state. And this conclusion will strike most of us (including, I suspect, some libertarians) as calamitous. Let me expand on this second horn of the libertarian dilemma.

Suppose one believes that the requirements of the No Net Harm Criterion has in fact been satisfied (how one could actually determine this I profess not to know!). Suppose further that we had knowledge of the exact date when intergenerational rectification had been satisfied. That date was 20 years ago. In such a scenario we could characterise the history of this society as having the following three stages:

Stage #1: Colonialism/ Slavery, etc... This stage was one where severe and frequent violations of the principles of initial acquisition and just transfers occurred. These transgressions were not rectified for centuries and thus issues of intergenerational rectification arose.

Stage #2: (Just) Welfare (or Compensatory) State: This stage was one where redistributive taxation occurred and eventually compensated the ancestors of the victims of past injustices for the atrocities that occurred during Stage #1.

Stage #3: (Unjust) Welfare State for the past 20 years: The past 20 years has been a situation where redistributive taxation has been imposed on the affluent members of society but such redistribution is not warranted by the No Net Harm Criterion. So for the past 20 years the affluent members of society have been “forced to work” for the benefit of others and this is a severe infringement of their right to self-ownership. This injustice has gone on for twenty years and this generates a claim to intragenerational rectification.

*If* the history of one’s society looked something like this, then (and only then) could one make sense of why, in the “here and now”, libertarians object to redistributive taxation. Libertarians believe that such taxation is analogous to forced labour as it violates the self-ownership of tax payers who are forced, under threat of coercion, to pay for universal education, healthcare, and the other social provisions of the welfare state. According to the No Net Harm Criterion, justice requires us to compensate the victims of the welfare state so that they receive the distribution of holdings *that would have* obtained had the injustice (i.e. redistributive taxation for 20 years) not taken place.

In the case of intragenerational rectification (unlike intergenerational rectification) it will be much easier to identify who has profited and who has been harmed by the welfare state. The problem for the libertarian will be extracting this compensation from those who have profited from the injustice of the welfare state. It is not simply enough to eliminate redistributive taxation itself (though that will be seen as a necessary measure). Eliminating redistributive taxation would simply prevent future state-sanctioned violations of self-ownership from occurring but it will not redress the injustices of the past. So the affluent (and their descendants), in the “here and now”, can demand compensation from those who reaped the benefits of universal education, universal healthcare and the other social provisions of the welfare state (and did not pay an equal share of the costs of these provisions). The consequences of the principle of rectification, in this kind of scenario, would be deeply troubling. It would lead to exploiting the most vulnerable members of our society. Recipients of welfare would be expected to repay their debt to the affluent. Those who received medical treatment funded through universal healthcare would be expected to repay their debt to the affluent, etc…. If these individuals cannot afford to repay their debt, why not make them the servants of the affluent? If taxation truly is analogous to forced labour, as Nozick suggests, then the rich have already served 20 years as the indentured servants of the poor. It seems only fair that, if the poor cannot repay the rich, that they sacrifice some of their own time to help compensate for the time the affluent spent working for the poor. This would help us to compensate the affluent for their lost time.

No doubt many libertarians will want to resist the conclusion that rectification could legitimize slavery. But given the fact that they often invoke such language when they oppose redistributive taxation, it is not self-evident how they could avoid such conclusions if society actually decided to implement the libertarian account of distributive justice. Far from legitimizing the “minimal state”, the entitlement theory of justice, when applied to non-ideal societies, will either inspire an egalitarian redistributive state (to rectify intergenerational injustice) or a draconian libertarian state that seeks to extract compensation from the most vulnerable members of our society. Either conclusion is one that should raise serious concerns for libertarians who invoke the principles of entitlement.

I can anticipate a few possible responses libertarians might make to my challenge. But I won’t pursue those here as I have gone on for long enough for just one blog entry! But I hope libertarians think the question of what their theory prescribes in non-ideal theory (rather than the idyllic Lockean state of nature) is a question worth taking seriously.

Cheers,
Colin