The Limits of Libertarianism and the Promise of a Qualified Care Ethic

© by J. Garrett

Slightly Revised March 27, 2013

Contents
1. Types of Libertarianism
2. Libertarianism and Under-Age Human Beings
3. The Problem of Appropriate Kindness
4. Libertarianism and Discrimination
5. Do I Own My Body? Do I Own My Life?
6. Relational Ontology and Modified Care Ethics: An Alternative to the Ownership Metaphor
7. On the Religious Claim that Our Lives are the Property of God

Types of Libertarianism

Philosophical libertarianism. The type of libertarianism on which I concentrate here is probably the best-known kind in philosophical circles, the kind defended by John Hospers in his contribution to The Libertarian Alternative, ed. T. Machan (1974). This kind of libertarianism is essentially a rights-based ethical philosophy that accepts the following claims:

(1) All basic moral or human rights are non-interference rights, rights not to be interfered with by other human beings as long as the bearer of the rights respects similar rights of others. (Such rights are called "negative" rights in academic ethics.) There are no basic "welfare" rights, basic rights to receive things that we need. (Such rights are called "positive" rights in academic ethics.)

(2) Moral or human rights attach first of all to individual human beings.

(3) Governments derive their rights and duties from the rights of individual human beings, for the protection of which governments are rightfully instituted; governments exceed their appropriate function when they act in ways that are not justified as protection of the basic rights of individuals.

This ethical philosophy cuts across the descriptions of "left" and "right" in contemporary politics. Libertarians end up on the left, right, or middle of the political spectrum depending on how they emphasize aspects of the libertarian philosophy.

Civil libertarians. Although not all "civil libertarians" (supporters of the American Civil Liberties Union, for example) are libertarians in the sense sketched in the previous paragraph, some may be libertarians who emphasize non-interference rights of liberty (supporting, for example, the rights of persons to engage in any form of mutually consensual sex or religious practice so long as that activity does not harm any nonconsenting party).

Neo-liberals and economic conservatives. Other libertarians seem to end up on the politically conservative end of the spectrum. They are the economic conservatives who emphasize the non-interference right to property (i.e., the right not to have one's [legitimate] possessions taken without one's consent). They oppose government's underwriting "welfare" rights, because that role requires taxation over and above what is required to defend our non-interference rights. Libertarians believe that such taxation constitutes an attack on the non-interference right of property. In most cases, "libertarians" of this general sort are really quasi-libertarians. They do not consistently oppose all government spending to promote the social welfare--if they did, they would oppose all governmental spending on the Center for Disease Control and on public schools.

Such "libertarians" who emphasize the right to property are occasionally found (e.g., in the Republican Party) in an uneasy alliance with "values conservatives" who want government to censor movies and TV and to crack down on "deviant," even if consensual (and therefore "victimless"), sexual practices. Economic conservatives could find common cause with "values conservatives" in opposing government support for family planning or abortion.

"Libertarians" of this variety frequently end up supporting a large state, in an apparent contradiction to the "minimal state" picture painted by libertarian philosophers. This support for a large state arises from a belief, justified or not, that our rights (especially property rights?) are in great danger from "our enemies" (it used to be the "evil empire" of the Soviet Union). Since state activity is justified in defense of our rights, a large military establishment is justified if it is necessary to protect against a large threat. Since such a military must presumably be properly equipped with the latest technology, if "our enemies" also have access to the latest technology, the argument goes, the government is presumably justified in paying large funds acquired from taxpayers to corporations that supply military hardware and software. Thus, we see that by making certain factual assumptions or accepting certain premises about the "real world," "minimal-state" libertarians can mutate into advocates of a big government of a very specific type, generating what has been called the military-industrial state.

Anarcho-libertarians. Finally, there are anarcho-libertarians. These libertarians have historically been associated with the political left, although they typically differ from the Marxist and social-democratic left in their distaste for a strong state. They typically differ from the libertarians of the economic conservative type because they appreciate the social nature of human beings and they do not necessarily defend the distributions of wealth and property that arise from what is ostensibly "free trade." They are often more sensitive than libertarians of the economic conservative type to the existence of class divisions between rich and poor, and they understand that poverty contributes to powerlessness and effective loss of liberty. (The rest of this essay does not discuss this kind of libertarianism except insofar as it overlaps with the best-known kind described above in the first paragraph.)

Libertarianism and Under-Age Human Beings

Libertarianism will need a special theory to deal with human beings who are under age. Under-age children cannot "support themselves," and yet the libertarian frowns upon the notion that anyone has a positive right to receive from government what he or she needs. Without an addendum for children libertarianism would make the survival of the human race precarious.

The general strategy appears to be to make under-age children the responsibility of their parents. This would at least be compatible with the libertarian view that government has no obligations to save adults from the costly consequences of their own free choices. As with other roughly foreseeable consequences of an adult's action, the child and the actions of the child are the parent's responsibility until the child becomes an adult.

An under-age child would not have the full liberty or property rights of an adult person. Presumably this lack of full rights would reflect the fact that the child lacks developed rationality and emotional maturity. So libertarianism will have to deny that the under-aged child is a full-fledged person. Does the child have a right to life that is less absolute than that of an adult? Suppose the answer is yes, even if this "yes" is limited to newborns who may be born with highly "abnormal" physical features. Libertarians would then defend the parents' right to end the life of the "deformed infant." Presumably we now can guess how this kind of libertarian would solve the abortion quandary, when the woman's liberty of choice would otherwise clash with the "right" to life of the conceptus. The conceptus' right to life could block the woman's liberty of choice only if the conceptus' right to life is at least as strong as the woman's freedom of choice.

The Problem of Appropriate Kindness

Most ethical systems have a place for generosity or appropriate kindness. The American citizenry, rightly or wrongly, expect governmental leaders to display it. This has been illustrated in the themes of speeches by Presidential candidates. Former V.P. Walter Mondale in 1984 talked of compassion, George Bush in 1988 used the slogan "a kinder, gentler America," and George W. Bush in 2000 has tried to portray himself as a "compassionate conservative."

Writers in the movement known as care ethics stress the important moral roles of mothers, whose compassion for their children guides what they do for them. Many would agree that a properly directed compassion has an important role to play in social life. It seems to be the impulse behind admirable acts of charity.

Now, compassion has a very limited place in libertarian ethics. Libertarians often distinguish so sharply between charity and what we are obliged to do that compassion seems to be a mere option, not something a morally admirable person would necessarily feel.

Now, it is logically possible for one to hold the following semi-libertarian position. One might think that

(1) government has no role in the compassion business, but

(2) people have duties as private persons to exercise compassion through nongovernmental agencies, religious or secular.

In that case, however, the libertarian view that there are no positive (rights or) duties would have to be relaxed. "Libertarians" of this sort would require a second ethical philosophy to guide their duties in the private sphere. (Perhaps it would be a form of virtue ethics that included the virtue of generosity.)

The semi-libertarianism of such a person would be incomplete because it would have to be "completed" by a second ethical philosophy. But would it even, strictly speaking, be libertarianism any more? For if A has a duty (even a duty that government ought not enforce) to provide B with something B needs, then B, in those circumstances, would have a positive right to that thing. And this no longer seems to be libertarianism.

Libertarianism and Discrimination

Libertarians believe that property owners have the right to do with their (legitimately acquired) property as they see fit, so long as they do not violate the non-interference rights of others. It logically follows, then, that property owners may hire and promote as employees whomever they choose, regardless of whether they do so in a nonprejudiced way and regardless of whether their choices are economically wise for the business in question. Libertarians do not merely insist that employers (whom they typically assume to be owners or agents subservient to owners) have the right to hire anyone they wish who will help their business be financially successful. They insist that that employers have the right to hire anyone they wish (period). That is, they may hire and promote their incompetent cousins if they wish. The result may be economically disastrous but employers, as owners, are under no obligation to seek or pursue economic success in an intelligent way.

It follows, then, that for libertarians employers are under no obligation to hire employes in a manner that is free of racial or gender or sexual-orientation discrimination.

Again, it is conceivable or logically possible for individuals to hold the following semi-libertarian position:

(1) governments should not be in the business of passing and enforcing nondiscrimination laws;

(2) it is not virtuous or right for individual owners to discriminate in hiring or promotion on the basis of race or gender or sexual orientation.

Someone who holds this view is in the position of claiming that such discrimination is morally wrong yet it should not be considered legally wrong. Perhaps a person would try to defend opposition to a legal ban against immoral discrimination by the argument that the marketplace by itself would weed out immoral businesspersons who discriminate. But is this optimistic view that the marketplace "punishes" immoral discrimination really plausible?

Someone who holds this semi-libertarian position could not say that libertarianism provides a complete moral system for them. She would have to have a second moral theory, perhaps virtue ethics or utilitarianism, to justify a "private" morality that would rule out private discrimination.

Do I Own My Body? Do I Own My Life?

The right to life, of course, is the first of the three chief rights that the libertarian tradition recognizes. From John Locke's time on, it has been assumed that the right to life is bound up with the individual's ownership of his own body or life.

The libertarian tradition assumes that we do own ourselves, and this is the foundation for some arguments in defense of the right to commit suicide, to request assisted suicide or euthanasia for oneself (and, if a willing partner in the act can be found, to receive it).

Libertarians also occasionally argue that women have a right to choose abortion because of their unqualified ownership over--hence absolute right to control whatever happens to--their bodies. Of course, this argument will fail unless it is also granted that the biologically human conceptus is not a "moral patient" in the full sense. (A "moral patient" in the full sense is a being with the full normal set of moral or human rights, including, of course, the non-interference right to life.) If the conceptus were a full-fledged moral patient, then it would possess a right to life and there would be a head-on conflict between this right and the woman's absolute right to dispose over her body.

The libertarian tradition assumes we can own ourselves, and on that basis we can put ourselves out for rent or hire, as it were, ourselves out for hire for a wage, just as we can put a horse or a truck out for hire or rent. The myth or story of self-ownership is the foundation of an ethical system that justifies wage relationships. Some libertarians have even argued that we can contract ourselves into slavery (which would be analogous to selling to someone some external object that you own).

Some libertarians have concluded that women are entirely within their rights to hire themselves out to bear another person's child (surrogate motherhood), which takes two forms--in the one, the fertilized ovum is placed in the surrogate mother, in the other, the mother contributes the ovum but gives up any right to the baby that results from the process.

The idea that people own themselves, their lives or their bodies, gains some plausibility from the fact that a well-known opposing claim runs up against obvious objections. I have in mind here the essentially religious claim that our lives are not our property but the property of God.

While the religious argument against suicide encounters serious obstacles from a rational point of view (Difficulties With the Religious Argument), the libertarian argument for a right to suicide based on idea that the person owns his own body faces a different problem.

What is not usually recognized is that statements like "I am the owner of my own body" are essentially metaphorical. What is usually owned is something other than oneself as an embodied individual. We own a tool or a piece of clothing, or even land and, in the days of slavery, people owned other persons. But it is not entirely obvious that people can own themselves. The owner does not appear to be distinct from what is owned in this case.

Ownership is related to control. A more or less unqualified right of ownership over a possession entitles the owner to use the possession at will, without the interference of others. Control makes sense primarily where one being can control another. Plato already (in Republic iv) noticed this, and in explaining the notion of self-control was led to postulate the existence of at least two powers in the human soul, the controlling rational element and the controlled appetitive (or spirited) element. He argued that unless we could discover two (or more) elements in the person, the notion of self-control would just be nonsense. Similarly, unless we can discover two elements in the person, the owner and the life owned, the libertarian idea that persons are owner of their own lives remains in the realm of poetry and does not correspond to anything real.

There is a long Western philosophical tradition that might be assumed to help the libertarian here. From the time of Plato on, and especially within the religious monotheistic cultures of Christianity, Islam, and Judaism, a prominent philosophical view of human nature known as dualism has maintained that human nature consists of two parts: human souls and human bodies. According to this view, they are essentially distinct (maybe even separable). Among these two items, the true person is the soul. Thus the myth or story of self-ownership seems to rest on the philosophical theory of dualism.

What if that theory is false? Maybe what we call soul (thinking, emotions, habits, memories, etc.) and what we regard as bodies (the space-occupying thing consisting of our various bodily organs) are just two ways of regarding one essentially unified thing. Maybe there is no separable "me" that can own my body.

Even more radically is it doubtful that we can distinguish ourselves from our lives. A body is conceivably a physical thing that occupies space, able in a sense to be a place for personhood to appear. But an actually functioning human life is, while it functions at or above a certain level of complexity, no different from the person. I don't "own" my (sentient, self-conscious, active) life. I just am my life, and my life is me. There is no ownership here, which would require two things. This is identity through and through. There are not two factors, there is one.

If this is right, then the libertarian claim that a person owns her life is a metaphor that does not make a lot of sense. Perhaps it is just a symbol for the "conclusions" that people draw from it, namely, that others ought not to interfere with my decisions primarily affecting me physically. But strictly speaking it is not a premise or a reason from which conclusions might be drawn.

It does not follow from this that libertarians are wrong to defend a woman's right to choose abortion or a terminally ill patient's right to choose assisted suicide under certain conditions. These rights are perhaps best understood as

partial statements of conditions under which people are most likely to flourish, to live well.

They, like all valid ethical principles, are tools in service of living well. They encourage, they do not suppress the capacity of persons to deliberate well.

Pro-choicers may be reluctant to give up the rhetorical power of "it's my life, I can do with it what I wish," and fear that yielding the vocabulary of ownership will strengthen their opponents in the area of abortion rights. But the sword cuts two ways: if the rhetoric of ownership of life is abandoned, then "pro-lifers" will no longer be able to say that the human conceptus owns its life. If rights are best understood as partial statements of the conditions under which people are most likely to flourish, then the awkwardness of claims about the rights of the conceptus becomes apparent. For the flourishing human being that the conceptus might become stands at the end of a long process of development. "Rights" language fits the value of fetal life quite badly. This does not mean that abortion destroys nothing of value or that the value of fetal life does not increase as the conceptus passes through developmental stages.

Relational Ontology and Qualified Care Ethics:

An Alternative to the Ownership Metaphor and Libertarianism

At least as useful as the metaphor of ownership whose limits I have been discussing is the metaphor of a web of relationships. Feminist/feminine philosophers and theologians have been now for several years advocating a relational ontology of human nature.

Relational ontology is the view that human beings are best understood in terms of their historical and contemporary relationships with other persons, rather than as fundamentally separate and isolable from one another.

On this view, which is admittedly more complicated and less easily pictured than the metaphor of ownership, persons are what they are because of their relationships with one another. These relationships are both positive (for example, relations of affection and co-membership) and negative (for example, relations of hostility and group difference and separation), but they both constitute who we are. Relationships account, among other things, for the special nature of the bond between mother and conceptus, which is different from the connection between father and conceptus. (The father, of course, never carries the conceptus inside him and in that sense is always clearly separate from the new human being.)

Persons who know a little about relational ontology and care ethics may reason that

(1) The mother has a special relationship to the conceptus

(2) She has a strong duty under care ethics to care for a being with whom she has a very intimate relationship.

ERGO she has an absolute duty to carry that pregnancy to term no matter what.

This is a mistake. It arises from failure to realize that duties to particular beings under care ethics are prima facie duties (duties "for the most part" which are subject to being modified or overridden by other factors) until the full context is taken into account. Thus care ethics cannot determine, merely from knowing that a woman is pregnant, that she has an absolute or near-absolute duty to preserve the life of her conceptus. Besides biological factors such as the health of the woman and her age, relational factors such as the way in which the pregnancy occurred, the nature of the woman's support system, including the presence and reliability of the father, and the already under-way plans she has for her life, make up the context in which she is involved and shape what her duty is in the concrete.

While care ethics, because of its reliance upon a relational ontology, is superior in many respects to libertarianism, if it is not appropriately qualified it can lead to problems that libertarianism can arm us to deal with. It is well-known that caregivers can give too much, that they can care excessively for intimate others who are abusive in return or simply refuse to learn to care for themselves when they could. While a strict libertarianism would say each of us owes another person nothing unless there is a prior agreement or promise, a flawed care perspective can lead to the view that we have duties to others that do not stand up under rational examination. Obviously, a care perspective that has the capacity to determine the limits of appropriate care is superior to one that does not have such resources. Libertarianism can suggest some of these limits, but so can principles of justice in other theories, such as John Rawls' difference principle. (See John Rawls' Theory of Justice.)

Difficulties with the Religious Claim that Our Lives Are the Property of God (1) God's existence cannot be proven beyond a shadow of a doubt (which is one reason why faith is important here). (2) Even if God's existence could be proven, one might still doubt whether God is properly understood as a person and an owner in more or less the same terms as adult human beings. (3) Even if God's existence as a person and owner were generally admitted, it would still be possible that He delegated his ownership over our bodies and lives to ourselves, perhaps within limits. But (4) what are those limits and how can we be sure what they are? The general idea that our bodies and lives are the possessions of God does not help. Those who make the religious argument against suicide and euthanasia assume that God did not delegate our deaths to us; but the ancient Greek and Roman Stoics, with a considerable plausibility on their side, argued that the rational deity delegated to the wisest (most godlike) of humans the right and even the duty to deliberately select the appropriate "time to depart."