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Involuntary Consent

The other day I had a conversation with a libertarian friend of mine, during which we briefly touched on some of the ideas I will be discussing in this essay. That's partially why I decided to write about this subject in the first place; another part of it is that I actually was a libertarian for quite some time, and beyond "I don't believe it to be true anymore" I've never really properly explained to anyone why I eventually rejected the ideology.

This is going to be both an attempt to critique libertarianism, and an attempt to justify myself, primarily to myself but also to libertarian friends who may be reading this (hello!). I should probably like to write a few more posts on the subject of libertarianism, but for now, I want to focus primarily on one aspect of it: the obsession with consent. I believe this to be the defining feature of any libertarian worth their salt. As Thoreau famously wrote, "there are a thousand hacking at the branches of evil to one who is striking at the root." He may not have been referring to libertarianism, but nevertheless, I will attempt to be the one who strikes at the root (I do not hope to fell the tree today, but it is my hope that I will at the end of this at least have weakened it). If my blow lands or misses is for you to decide.

Let us first begin by examining libertarianism and seeing what it is, not because I don't expect most people to know this already, but because I would like to avoid accusations of straw-manning by this and that type of libertarian, and because it doesn't hurt to make sure we're all on the same page. The defining principle of libertarianism is the so-called non-aggression principle. Some who fancy themselves libertarians have tried to get their colleagues to reject this principle, but it is my humble opinion that they belong to the broader classical liberal tradition, rather than the more narrow tradition of libertarianism that grew out of it. They would probably not disagree. In any case, as I was saying, the defining principle of libertarianism is that you may never aggress against anybody. What constitutes aggression? An aggressive, rather than defensive, attack on someone's private property—including their body, which libertarians argue are "self-owned". But under libertarianism, "attacks" on someone's private property or person are not limited to what most people see as attacks, i.e. vandalism, abuse, and other forms of outright violence. Anything that is done to your property without your consent constitutes an act of aggression: taxation, climbing over your picket fence to retrieve a football that accidentally ended up on your lawn, regulations preventing you from painting your house in outrageous color patterns or building a skyscraper in your backyard, etc. The mere existence of a government constitutes an infringement upon your right to private property, which by libertarians is held to be absolute and non-negotiable.

What would a libertarian society look like, then? Most libertarian philosophers, with the exception of a few, have argued that it would be stateless. Indeed, this seems to be the logically consistent conclusion of the idea that private property is absolute and "aggression" immoral. In lieu of a government, private companies or non-profit associations would administer justice and uphold peace and order. Inhabitants of the stateless society would voluntarily pay these so-called "dispute resolution organizations" to keep them safe. They would also most likely be willing to pay money for infrastructure, healthcare, education, and other necessities of life in civilized society. It is, of course, impossible to know exactly how the stateless society would function and look like, but these are the most common theories of the best and brightest of the libertarian world.

But how does the statist society function and look like? This might seem like a dumb question since we all live in one and therefore know the answer. But humor me for a minute; I promise to keep it brief. Inhabitants of the statist society pay money to the government, and in return, the government administers justice and upholds peace and order. It also builds and maintains infrastructure, provides healthcare services, education, and other necessities of life in civilized society. This all sounds awfully similar to the stateless society, and that is because it is. A stateless society could, and if we are to believe the most prominent libertarian theorists, most likely would, function more or less exactly like a statist society. A stateless society could even consist of one big corporation owning all the land, and leasing it to tenants who would pay the company for the right to a slice of the land as well as in exchange for protection and services like unemployment protection, healthcare, and education; in other words, neo-feudalism on steroids. It doesn't matter how the society actually looks and feels, so long as consent is present.

This is what libertarians mean when they say they want freedom or liberty. They do not care about real freedom; only nominal freedom and a very specific idea of consent, completely divorced from reality. This particular idea of consent is integral not only to libertarian philosophy but to libertarian economics as well. "Everyone who participates in a voluntary exchange of goods or services is better off," goes the radical free-market mantra. This may be true in theory (or if we reject the overly technical libertarian definition of "voluntary exchange" and replace it with something less rigid). But in real life, it isn't so. The real world is full of asymmetries; asymmetries of power, of information, of opportunity, and so forth. The widow who sells her wedding ring to buy food is not doing so because she wants to, or because she believes the food to be a higher good than the wedding ring. For all intents and purposes, she is compelled to sell her wedding ring by the circumstances she finds herself in. It does not matter that the pawnbroker isn't holding a gun to her head; he doesn't have to because the external environment is effectively doing it for him. If she doesn't sell the wedding ring, she dies of starvation. This might seem like an over-the-top example, and maybe it is. But it illustrates an important point about consent: it is possible to have technical consent without real consent (and it is also possible to have real consent without technical consent, as I shall explain later). There are equally grim examples in the real world, however. Hong Kong is hailed by most libertarians as an example of the superiority of the free market. It is true that Hong Kong has a considerably higher GDP per capita than do most countries. Apparently, the little island even has the most Rolls Royces per capita in the world. But not everyone can live in the up-market Victoria Peak and drive a two hundred-thousand-pound car. Tens of thousand Hong Kong natives are forced to live in literal cages; in September 2015, almost 300,000 were on the waiting list for public housing, up from about 100,000 in 2009. The Daily Mail article linked to earlier describes the life of Leung Cho-yin:

'It's not whether I believe him or not, but they always talk this way. What hope is there?' said Leung, who has been living in cage homes since he stopped working at a market stall after losing part of a finger 20 years ago … 'It's impossible for me to save,' said Leung, who never married and has no children to lean on for support. Leung and his roommates, all of them single, elderly men, wash their clothes in a bucket. The bathroom facilities consist of two toilet stalls, one of them adjoining a squat toilet that doubles as a shower stall. There is no kitchen, just a small room with a sink. The hallway walls have turned brown with dirt accumulated over the years … Nearly 1.19 million people were living in poverty in the first half of last year, up from 1.15 million in 2011, according to the Hong Kong Council Of Social Services.

Cage-homes in Hong Kong Prison cells are nicer than this.

When asked, most people would say that Leung and his roommates are not living in freedom. Most libertarians, however, would say that the poor would be even worse off had it not been for the free market policies adopted by Hong Kong decades ago, and the only obstacle to true freedom is the government, as it takes money from people by force to pay for the socialist public housing programmes, and distorts the housing market by reducing the demand for cheap private housing. This is so absurd; I'm not even sure libertarians believe it. But they do say it, and they do make excuses for these conditions. The idea that the free market, in fact, doesn't set everybody free is completely alien to libertarians. But I digress. The point of this is to make it clear that libertarians can tolerate a lack of real freedom, so long as nominal freedom exists.

Some don't even seem to care very much about nominal freedom, and yet they haven't been able to wipe out the libertarian mind virus. Hans-Hermann Hoppe is one such man. Immensely popular in the alt-right atmosphere, Hoppe's most famous—or perhaps infamous—idea can be found in Chapter 10 of Democracy: The God That Failed:

In a covenant among proprietor and community tenants for the purpose of protecting their private property, no such thing as a right to free (unlimited) speech exists, not even to unlimited speech on one’s own tenant-property. One may say innumerable things and promote almost any idea under the sun, but naturally, no one is permitted to advocate ideas contrary to the very covenant of preserving and protecting private property, such as democracy and communism. There can be no tolerance toward democrats and communists in a libertarian social order. They will have to be physically separated and removed from society. 1

Whereas Hoppe's mentor, Murray Rothbard, was a free speech absolutist (even going so far as to defend the right to incite violence2), Hoppe is not. He has abandoned the idea that aggression is always wrong (or, at the very least, he has redefined aggression): acts of aggression can sometimes be justified if they are committed in order to defend society from ideas that are harmful to the absoluteness of private property. If I'm a communist and agitate for communism, it does not matter if I write my ideas on pieces of paper that belong to me, or if I voice my opinions from a soapbox in my own backyard. If I do these things, I must be physically removed. Private property, then, can sometimes be violated in order to save the institution of private property. Hoppe goes even further:

Likewise, in a covenant founded for the purpose of protecting family and kin, there can be no tolerance toward those habitually promoting lifestyles incompatible with this goal. They—the advocates of alternative, non-family and kin-centered lifestyles such as, for instance, individual hedonism, parasitism, nature-environment worship, homosexuality, or communism—will have to be physically removed from society, too, if one is to maintain a libertarian order.

Think about what Hoppe is actually saying: in order to maintain a libertarian social order, central tenets of libertarianism may sometimes have to be violated. This sounds self-contradictory, but it doesn't have to be. Hoppe—whether he knows it or not—is using terms like "libertarian order" and "private property" as euphemisms for "civilization" and "order." Let us look at the justification of the physical removal of communists and degenerates. Hoppe says it is necessary in order to protect the institution of private property. But why is private property so necessary? As is noted in Chapter 2 of Hoppe's A Theory of Socialism and Capitalism, private property is good not necessarily because we have a natural right to it, but because it is needed to reduce and resolve conflicts in a world of scarcity:

To develop the concept of property, it is necessary for goods to be scarce so that conflicts over the use of these goods can possibly arise. It is the function of property rights to avoid such possible clashes over the use of scarce resources by assigning rights of exclusive ownership. Property is thus a normative concept: a concept designed to make a conflict-free interaction possible by stipulating mutually binding rules of conduct (norms) regarding scarce resources.3

In other words, the goal—or telos–of private property is to promote order. Order, then, is more important than private property, because private property is only a means to achieve the end of order. Order, of course, is necessary if we are to live together in civilization. But is private property really the only, or even the best, way to uphold order and protect civilization? Hardly. The State, too, does all these things. It is the job of the State to prevent conflicts, and resolving them when they do arise. It does the former by setting down rules that guide human interactions. To the extent that the body politic recognizes the legitimacy of these rules, conflict is avoided. There will always be some who refuse to follow the rules, however, and the State's job is to put these people in prison, deport, or even execute them, depending on what rules they break. In other words: its job is to physically remove those who constitute a threat to civilization. We established earlier on in the essay that technical consent can exist without real consent; well, the reverse is also true. It doesn't matter that people haven't given technical consent to the State. The overwhelming majority recognize its authority as legitimate and are willing to pay taxes to keep it going. By any standard, this constitutes real consent and is surely far more important when considering the legitimacy of the State.

The State, then, is not necessarily morally evil. Like private property, it is a means to an end and is morally good and useful to the extent that it achieves the end of order and civilization. There are tyrannical states, which don't care about the common good but instead wish simply to enforce a utopian political agenda or line the pockets of their rulers, no matter the cost to their citizens' well-being. Those states are morally evil because they do not work towards their telos. But there are also cases where private property is morally evil; when some are able to buy apartments that cost tens of millions of dollars while their fellow countrymen are forced to live like animals. And if we admit to ourselves that the State can be morally good and that taxation isn't evil, we can be more pragmatic in our approach to public policy. For example, if it can be shown that public housing programs would allow the working poor to live considerably better lives, we can use tax money to fund those programs. If it can be shown that public education promotes the overall health of society, we can fund that. We can use the State to protect those areas of life that are precious to us, that we do not want to sacrifice on the altar of free-market capitalism, which knows the price of everything and the value of nothing.

The difference between the libertarian society and the statist society is one of semantics, and the same is true of the difference between the Hoppean society and, say, Franco's Spain. Libertarians, especially those who admire Hoppe, ought to stop the unproductive obsession over what is really nothing more than a problem of semantics, and instead focus on what sort of things are conducive to a well-ordered society, and promote those instead. It is easy to get caught up in dogma, especially when you encounter a philosophy that promises the comforts of internal consistency and gives you the ability to answer any question about ethics, economics, or politics before the question has been posed.

  1. Hoppe, H. (2001). Democracy: the god that failed, p. 218. New Brunswick [NJ]: Transaction Publishers. A PDF version of the book can be found here. Return to text:

  2. Rothbard, M. (1998). The ethics of liberty, p. 81. New York: New York University Press. A PDF version of the book can be found here. Return to text:

  3. Hoppe, H. (2010). A theory of socialism and capitalism, p. 18. Auburn, Ala.: Ludwig von Mises Institute. A PDF version of the book can be found here. Return to text:

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