LIBERTY:
Libertarian Justice

By Tibor R. Machan

“Some critics of classical liberalism and libertarianism have suggested that community life is alien to libertarians. Not so. People flourish best among other people, provided those others do not thwart their freedom.” By Tibor R. Machan.

What view of human nature underlies the libertarian view of a just political system? At the core is a recognition that human beings are essentially creative, inventive, and choosing agents. To be human means to take the initiative by exercising one’s thinking mind, as manifested by intentions, deliberations, wants, omissions, and specific actions, all of which one can be responsible for. The mind of a deliberating human being is not a passive, reflexive, or reactive faculty but an active one. Individual human beings are distinguished by virtue of their capacity to activate their conceptual form of awareness so as to learn how to live and flourish. They think; and on the basis of their thinking, they do. This is not an intellectualist view of rationality; rather, reason is understood as permeating human awareness and judgment, including action, even if it isn’t deliberative. Among philosophers who share crucial elements of this view we can list Socrates, Aristotle, Augustine, Aquinas, Descartes, Spinoza, Kant, Wittgenstein—and, of course, Ayn Rand, who has generated perhaps the most philosophically potent arguments for libertarian justice (although she repudiated the label of “libertarian” because of her antagonism to the views some libertarians hold).

Thus, we treat human beings appropriately by, first of all, acknowledging that they are thinking beings. We do them justice, especially in the realm of politics or organized community life, if we don’t thwart the rational capacity for creativity, inventiveness, and initiative of innocent persons. I speak here at the most general level. Justice in particular cases must take more-specific facts into account (including, obviously, whether a person has committed a criminal act).

Justice as Liberty

A conception of justice that requires liberty in the political realm—in contrast to one that requires “fairness,” order, harmony, or welfare—rests on the above view. Adult human individuals possess free will and need to guide their own lives to achieve excellence or to flourish. The decisive issue about justice as a guiding principle of a community has to be human nature and its requirement of sovereignty.

Let me first state the most basic tenets of libertarianism. If these are wrong, then so is libertarianism:

1. Adult human beings (and children derivatively and with proper adjustments) are sovereign over their lives, actions, and belongings. They have rights, among others, to life, liberty, and property.
2. Human beings have the responsibility in their communities to respect and act in recognition of this fact when dealing with others.
3. Human beings ought to develop institutions that ensure the protection of their sovereignty, delegating the required powers to agents (governments or the equivalent) for that purpose.
4. Such delegation of powers must occur without the violation of sovereignty or individual rights.
5. The agencies to which the power of protecting rights is delegated must exercise this power for the sole purpose of protecting those rights.
6. All concerns, including the protection of individual rights, must be acted on by members of communities without violating those rights.

Human Nature and Human Rights

Human beings, unlike the rest of the animal world, can rely on very few instincts to guide us in our lives. We must discover how to live and flourish. That’s why we need education—we are not born with sufficiently detailed genetically built-in programs that guide us through life in the way that geese, cats, or even the higher mammals are. We have to learn everything—how to eat, talk, walk, drive, and the many more complex tasks that living a human life entails.

The decisive issue about justice as a guiding principle of a community has to be human nature and its requirement of sovereignty.

The wilds and the rest of the nonhuman world—viruses, mad dogs, earthquakes, floods, and so forth—do not always leave us in peace, undisturbed and unharmed. We often face terrible hardship caused by them. Yet these problems do not require the use of force against other persons. At the same time, however, because other persons can impose themselves on us without our giving them permission to do so, force may be necessary to fend them off. We have the best chance to make the effort to think through the problems that face us and to solve those problems when we live in freedom, undisturbed by violence from our fellows. Instead of interacting with others coercively, human beings are then able to enjoy the fruits of voluntary cooperative interactions, including competing with others, trading with them, and so forth. It is only such a community of voluntary interaction that is suitable to us all.

Libertarianism and Community

Some critics of classical liberalism and libertarianism have suggested that community life is alien to libertarians. Not so. People flourish best among other people, provided those others do not thwart their freedom. We have the right to and we ought to live in communities, but only if this does not involve coercion, compulsion, or some other violation of our sovereignty.

Conservatives such as George Will and modern liberals and communitarians unite against libertarians, however, on grounds that the libertarian view of human beings is too narrow. Will joins Michael Sandel in claiming that “much damage is done when we define human beings not as social beings—not in terms of morally serious roles (citizen, marriage partner, parent, etc.)—but only with reference to the watery idea of a single, morally empty capacity of ‘choice.’ Politics becomes empty; citizenship, too.”

Of course, human beings are “social beings.” But this does not mean what Marx meant by it, that is, that “the human essence is the true collectivity of man.” Rather, it means that human beings live and flourish best in the company of others. Yet this is something that as human beings they must do by choice when they reach maturity; otherwise it isn’t a fully human community in which they live.

The social options available are numerous, some suitable, some not. And we are responsible for making the right choice about the kind of social unions in which we partake. And when prevented from exercising this choice, as in a totalitarian state, violence is done to us even as those perpetrating the violence claim they are promoting the public interest. As F. A. Hayek noted, the “growth of what we call civilization is due to this principle of a person’s responsibility for his own actions and their consequences, and the freedom to pursue his own ends without having to obey the leader of the band to which he belongs.”

If we are to solve problems in society, the only thing strictly forbidden in law is violating another’s rights. This is the central tenet of a libertarian theory of justice.

Human beings are properly held responsible for assuming various social roles in life—in their marriages, families, polities, and so on—but this responsibility is empty if not chosen by them freely. What George Will so cavalierly and callously regards as a “morally empty capacity of ‘choice’” is, in fact, the indispensable prerequisite of the moral life.

Liberty in Context

Just as one must flesh out many details to learn the implications of the fundamental principles of physics for dealing with a particular area of the physical world—so, in politics, basic political principles do not tell us everything we need to know to achieve liberty, nourish a free society, and improve our lives. The principles provide a framework within which we can act to solve our problems.

If we are to solve such problems in society, the only thing strictly forbidden in law is violating another’s rights. This constitutes the central tenet of a libertarian theory of justice and must guide any legal order that has as its goals to establish, maintain, and further justice in the life of a human community. Hayek was right to say that “freedom is the matrix required for the growth of moral values.”