An uncertain libertarian

Some time back, Mark approached me about joining him and Rogier to start a new blog. Although surprised that anyone would ask me to join them in blogging, I was glad for the opportunity. Though I don’t get to do it as often as I wish, I enjoy blogging. So I agreed, with an understanding that I might not be as prolific as Mark and Rogier. Thereafter followed a flurry of emails, mostly focused on the choice of a name. I favored “Negative Liberty” for reasons I’ll get into below, but it took me too long to acquire the domain name and I demonstrated that even libertarians of my sort can function within a democracy when I acquiesced to being outvoted.

That phrase, “libertarians of my sort” probably needs some explanation, so in this, my first post, I finally get around to doing what Mark and Rogier did in each of their first posts: I’ll tell you a little about me, why I’m here, and what I expect to accomplish.

First, let me say that I have never been comfortable with the labels “Libertarian” or “Libertarianism,” for a variety of reasons. No doubt the primary reason is that I have not engaged until recently in any formal study of Libertarianism. I have had and no doubt still have some misconceptions about it.

Originally, I think I considered “Libertarians” to be pie-in-the-sky “whack jobs” — by which I mean I thought of them as somewhere between airheads and unmedicated street people. I might have learned differently if I’d paid more attention to other libertarians, but the only “libertarian” I knew appeared to me a slavish follower of Objectivism, or, as I considered it, the Cult of Ayn Rand — a movement I still cannot get behind.

Also because of this, I never had much acquaintance with the Libertarian Party beyond whatever was published about them in the popular press (which only seemed to endorse my views on libertarians).

This was without a doubt a prejudice and mistake on my part. But I’ve finally reached a point in my life where I recognize that and for some time now I’ve been taking a closer look. You can thank (or curse) the Cato Institute for that.

Despite my avoidance of Libertarianism-with-a-capital-L, though, I’ve always been “anti-establishment.” Evidence from my earliest years, which I won’t go into here (you’d thank me, if you knew the details), shows this has been lifelong, and when I finally ran away from home at the age of 17, it was immediately after my father said, “As long as you live in my house, you’ll follow my rules.”

(My parents and I are now on very good terms; I particularly enjoy time spent with my dad who, ironically, seems to share many of my views; and I even returned to live in their home briefly some years after running away.)

My rebellious nature, rooted in the idea that I “should” be able to live my life however I wished to, has occasionally gotten me into trouble through the years. Fortunately, I’ve found a way to channel “the fight” by becoming a criminal defense attorney in Fresno, California. As part of my law practice, I write a decidely-anti-authoritarian blog or two. These blogs are Probable Cause: The Legal Blog with the Really Low Standard of Review and my less-frequently-updated Fresno Criminal Defense blog. Years before that, I created and maintained Unspun™, whose tag line “modestly” proclaimed it was “Just What the Spin Doctor Ordered™” and which not-infrequently endorsed a libertarian frame of mind which people more-than-occasionally confused with “liberal.”

Perhaps those are more personal details — and shameless self-promotion — than you think necessary. Blame it on Toby Keith.

Despite my lifelong anti-authoritarian leanings, it’s only recently that I’ve become comfortable referring to myself as “a libertarian” — I prefer the lower-case spelling to differentiate myself from the political party, with whom I still don’t want to be associated, at least yet. There’s a good reason for my only recently getting comfortable with being seen as “a libertarian”: it’s only recently that I’ve come to realize that my anti-authoritarianism has a lot in common with a particular concept in libertarian philosophy: negative liberty.

Negative liberty needs to be distinguished from positive liberty. As the Stanford Encyclopedia of Philosophy article linked in that last sentence notes:

It is useful to think of the difference between the two concepts in terms of the difference between factors that are external and factors that are internal to the agent. While theorists of negative freedom are primarily interested in the degree to which individuals or groups suffer interference from external bodies, theorists of positive freedom are more attentive to the internal factors affecting the degree to which individuals or groups act autonomously.

But as the article goes on to note, theorists of positive liberty are also — paradoxically, in my way of thinking — concerned with the possibility, the ways, and the extent to which governments can “make” people free.

I have a concern with this concept of “positive liberty.” For one thing, it seems to me paternalistic. Isaiah Berlin would disagree and tried to distinguish between positive liberty and paternalism. From where I stand, however, all attempts by government to create positive liberty end in paternalism. I think this is inevitable, given positive liberty’s focus on being free from one’s “lower self.” The idea reeks of puritanism. And as H. L. Mencken in A Mencken Chrestomathy noted, puritanism too often appears to be “the haunting fear that someone, somewhere may be happy.”

In other words, despite philosophical arguments that “it doesn’t have to be that way,” positive liberty just too often seems to be destructive of negative liberty.

For these reasons — and my belief that the Constitution of the United States was intended as a Constitution of Negative Liberty — I’m opposed to an overly-large, overly-powerful government.

But what does “overly” mean?

It is exactly a consideration of this point which makes me “an uncertain libertarian.” For I feel fairly certain that what I believe might be the “purest” form of negative liberty — anarchism — won’t work. Although I am not comfortable with this idea, I do believe that people need a certain amount of control. Without controls, true negative liberty is impossible. Without controls, those with greater resources can either ignore the rights of, or step in and control, those with lesser resources. An example of the former is Apple’s recent invasion of privacy for all those who use iPhones or iPads; a recent example of the latter is the military-industrial attack on academic freedom.

I also think that although I want my government to be small enough not to interfere with my freedom, government has to be large enough “to establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” I’m not opposed to believing that a part of what government should do “to promote the general Welfare” is to build roads and schools, regulate corporations, and perhaps a few other things.

The danger here is that government is susceptible to the same failure from which the corporate world suffers. I am not so cynical as to believe that corporations set out to invade privacy and otherwise harm individuals. What happens is that when they have the power to do something and they believe that the doing of that thing will benefit the corporation, they will do it. Sometimes they fail to understand how the thing they wish to do harms individuals. (Sometimes they don’t fail to understand this!) Unchecked, the thing will be done; the individuals be damned.

There is no big surprise here. Mobs (and democracies!) suffer the same failings. There is something about human beings operating as a group that strips us of our humanity.

An overly-large, overly-powerful government, being comprised of human beings operating as a group, is not immune from this failing.

But there’s that problem again: “What does ‘overly’ mean?”

Part of my reason for joining “Nobody’s Business” was to force me to explore this conundrum. I knew — I know — that having to write about such things, and trying to convince people that what I think (or what I may come to think!) is right, will force me to learn.

I hope you’ll be pleased to join in this journey, to read what I, Rogier, and Mark write here and that you’ll throw your two cents’ worth — and more — into the Comment sections on our posts.

About Rick Horowitz:
Rick is a criminal defense attorney with an office in Fresno, California. He also writes Probable Cause: The Legal Blog with the Really Low Standard of Review.
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  1. Jeff Rogers
    Posted April 20, 2011 at 8:26 pm | Permalink

    As someone who has never really given much thought to having a personal philosophy, it will be a treat to follow this new blog, especially since the positions that you articulate seem to be pretty spot on for me, particularly the differentiation between positive and negative liberty.
    Rogier, whose blog I have enjoyed following for a long time, seems to have fallen in with an articulate and entertaining crowd here.

  2. Posted April 21, 2011 at 10:36 am | Permalink

    Hey Rick, glad you could make it. I think it will be interesting to see where your exploration of libertarianism takes you.

    And thanks for the kind words, Jeff. You are clearly the kind of highly perceptive reader we’re looking for.

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  • By Finding the balance | Nobody's Business on May 11, 2011 at 1:18 pm

    […] I made my introductory post here at Nobody’s Business, I titled it “An Uncertain Libertarian.” The reason for my uncertainty was only briefly mentioned, largely implied, and had to do with the […]