 Welcome to Free Thoughts, a podcast project of the Cato Institute's libertarianism.org. Free Thoughts is a show about libertarianism and the ideas that influence it. I'm Aaron Powell, a research fellow here at Cato, an editor of libertarianism.org. And I'm Trevor Burrus, a research fellow at the Cato Institute Center for Constitutional Studies. Many arguments for libertarianism fall into one of two camps. On the one hand, there are consequentialist arguments, and on the other, there are deontological or sometimes rights-based. What's the difference between these two? And does one of them provide a better foundation for libertarianism than the other? Our guest today is Tom G. Palmer, a senior fellow at the Cato Institute, director of Cato University, and also executive vice president for international programs at the Atlas Economic Research Foundation. Welcome, Tom, to Free Thoughts. It's a pleasure to be here. When people talk about the philosophy behind libertarianism, often it kind of seems to fall into two camps. One that gets labeled consequentialist, and the other that gets labeled sometimes rights-based, and other times it's called deontological. So maybe we could start by just having you tell us what those terms briefly mean before we delve into all the specifics of them and the history of them. Well, it's an interesting story. A lot of different things have contributed to libertarian ideas from economics and history and law and sociology and obviously moral philosophy. So sometimes you get people saying, I believe in rights, I'm a moral philosopher, and then an economist comes along and says, well, I think these ideas work out in practice. They yield good consequences. So sometimes they're called philosophical justifications or economic justifications. In fact, in some sense, they're both philosophical because the idea of looking to the consequences has its grounding in how people should behave and how we should relate to other people. It's fundamentally a kind of moral philosophical question. Now, quite often you hear people say, well, I believe in rights, and rights means regardless of the consequences. Just do the right thing and it doesn't matter what falls out of it. Others say, well, look, we want to live in a world where it's livable, where it's a world of peace and prosperity and people live together in some harmonious fashion. They're not constantly killing each other or eating each other or all the other horrible things we could imagine. And so they're focused on consequences. I think in some way they're talking past each other. The first point is that consequentialism is a moral theory just as any other moral theory. It says we should look to the consequences. The difference between these two is a suggestion that for rights, it doesn't matter what the consequences are. And I think in this case these two camps are talking past each other. They should sit down and figure out what they're trying to get at. Normally, when we take an action, we don't think what are all the consequences that will flow from it. One couldn't do that if I decide to go into a store. It never occurs to me to think, gee, I could go into the store and buy this thing or I could whip out a gun and kill everyone here and take it. This just doesn't occur to me as something I could entertain. I think about what's the right thing to do. That's how we guide our lives by certain maxims of how we should be haven. The civilized world is largely informed by libertarian principles of voluntary interaction. The question is at what level do we justify that? And that's the point where these two camps, if you will, should understand they really do have more common ground than they might think. You can't, in my opinion, justify a system of rights irrespective of any consequences they might have. We'd look to the whole system. So the consequentialist argument is about justifying a system of rights, equal rights for everyone else that are well-defined, legally enforceable, and the case of alienable property can be transferred. So we look at that and we say that yields the kind of world that a rational person or a decent person would want to live in. But we couldn't judge every action we take by all the possible consequences it could have. If I told you, I said, go out into the world and every time you do something, act in such a way it would have the best consequences for all of humanity. Well, what would you do? You'd be crippled by analysis paralysis. It would be impossible. You wouldn't know what to do in any given case. But I can give you a set of rules, the basic ones that we teach to children. Don't hit other people. Don't take their stuff. And if you make a promise, you should keep it. So it's a pretty good rules. And you don't have to think in every case, will keeping this promise yield the best outcome or not? If I hit people, will that yield the best outcome or not? You just know, don't do that. Bad people go around hitting people and decent people don't. So the idea of rights, it's a standard of action. But it's not the justification for the system of rights as such. For that, in my opinion, you should look to the consequences. Now, you mentioned deontology. There are other people who have argued quite differently. And Immanuel Kant is a very important figure in this regard. He justified a system, broadly, a kind of libertarian approach to rights. We take other people as ends in themselves. They're not just things in the world that I could move about. They have principles of motion on their own, their own purposes and goals in life. And we are constrained in how we can treat them. So he says, we should always act in such a way, if we're looking to the morality of an action, that the maxim that guides our act could be formulated as a universal rule for all, for everybody. And that tells us, for instance, don't go around stealing. If everyone were a thief, then the concept of property wouldn't make any sense. And of course, there'd be nothing to steal. The reason why there's stuff for the thief to steal is other people are not thieves and so they generate wealth. So the principle of being a thief could not be a universalizable maxim. It couldn't be a universal law for everyone. But wouldn't that also apply to things like, is it morally permissible to be a farmer? Well, if everyone's a farmer, then you wouldn't have. Because he's talking about the maximum that would guide your action with regards to others. It doesn't apply to whether you're a farmer or a pinmaker or an airline pilot. If everyone were an airline pilot, then there wouldn't be any food. So there couldn't be any airline pilots. That's not the level at which this is invoked. It's about how we should treat other people and the behavior that we should expect from our fellow human beings. So the relationship here between rights and consequences, are you saying that they need to be looked at together? So someone who has a view where they just look at one side of them as having a morally insignificant or it's insufficient to answer the questions. Because someone might come along and say, well, it sounds to me like you're saying that sometimes you can kill somebody. And the answer is, yes, sometimes you can. Certainly if you're acting in self-defense and so on. That's one of the problems with these kinds of deontological claims, that they have to be hedged around so much with qualifications to yield a formulation that's useful for guiding human behavior. So we do recognize the right of self-defense. Some people would say, of course, never kill anybody under any circumstances whatsoever. And some of those are, of course, strong libertarians, extreme pacifists. But most of us don't believe that. We do believe in that force may be justified in acts of self-defense, but not to initiate it, not to aggress against another person. And then also maybe strange situations like asteroids. We always have these questions about what happens when there's an asteroid and we have to suddenly break possible, seemingly unbreakable, moral maxims in order to get everyone together to. Well, I've never bumped in an asteroid in my life, so I've never actually faced this particular problem. I think morality is about those principles that obtain, for the most part, namely, they help us to lead lives in social order with other human beings or, let's say, we could be more general, other rational agents. Who knows? There might be other rational agents out there in the universe that maybe will encounter someday. So other rational agents. But it's not the case that we should have a rule that could guide us unearingly with absolute certainty in every conceivable situation that we might face. No moral philosophy can do that. That's assing too much of it. Indeed, the idea that we should be able to just deduce logically and then follow it, regardless of the consequences, in my opinion, is hardly a moral philosophy. Aristotle talked about morality as governing those things that are true for the most part. And if we think about the foundations of moral life in the modern world, as David Hume articulated them, the normal circumstances of justice. We have scarcity. We have limited generosity. People are not selfish all the time, but they're also not purely altruistic either. Our generosity is limited. And given these empirically-ancertainable facts about the world, certain rules and principles help us to live together. And those rules articulated by libertarians, I think, are basically the operating system, if you think in terms of computer systems, of the modern world. We respect every human being is unique. There's never going to be another person just like you, some kind of duplicate. So if I dispose with you, nothing was lost, something precious is lost. The whole system of aims and purposes that you represent in the world. And there are principles governing how people should behave, respect for the bodily integrity of other people, and respect for those things that they legitimately acquire, through which they realize their purposes. In modern English, we call that their property. In older forms of English, such as that used by John Locke, property meant your life, your freedom, and your estate. That is to say, your stuff. And a system of rules governing that that's equally applicable to everyone and is also binding on the state as well. On the institutions of justice generates what we would broadly call a libertarian theory of human interaction and politics. Let me ask some kind of clarifying questions about terminology because a lot of what we've been talking about is bound up in different schools of moral philosophy. So let's set the kind of political issues aside and just look at those moral philosophical issues for a moment. So we talk about consequentialism, these consequentialist approaches to libertarianism or to whatever else. But oftentimes people use the term utilitarian. And so what's the, do those mean the same thing or how are those related? And is a consequentialist, say libertarian, different from a utilitarian libertarian? Those are two different words. They have two different meanings. Although sometimes people use them in a sloppy way and interchangeably. Consequentialism is the genus and utilitarianism is the species. That is to say, consequentialism is about looking to the consequences of either a set of rules or a particular behavior to judge the merit of that behavior or of those rules. Within that, there are different kinds of consequentialism. We could be concerned about the cultivation of human virtue as a kind of consequence that would emerge. We could think about whether the number of rights is maximized that are realized or respected. We could think of all kinds of different sorts of consequences. One species of that is to focus on utility. And this has different formulations. The talk of utility usually means usefulness. Is it conducive to the purposes that human beings have? And so there's that kind of loose sense of utilitarianism. And then the more narrowly construed form that we attribute to Jeremy Bentham, which is to say, trying to maximize the greatest benefit for the greatest number of persons. That formulation of utilitarianism typically presupposes that we can sum the utilities of persons. It is to say that I've got seven people. That might count for seven utilities. And if I'm going to help them out, I could negate the utility of an eighth person. Might be sacrificed in some way. That it's the total amount of utility that's to be maximized. But isn't that an unreasonable assumption, would you say? I think so for the following. Well, it's not a moral philosophy that I follow if we put it in that way. Because it suggests that that eighth person somehow doesn't matter, can be simply sacrificed to the benefits of the other seven. You can't sum the utilities of persons in that way. There's not this big lump of utility in Bentham's terms, the surfeit or surplus of pleasures over pains. But it seems like if you were with a group of people and you're all trying to figure out what movie to watch, the proper way of doing that is to figure out the one that the most people want to watch, which is some sort of, almost some of utility of the group of people. Well, in that particular case is structured by the fact that we presume it's a voluntarily assembled group of people and that they have, for some reason, decided they're all going to go to the same movie. And if I'm in the losing group, I'm like a classical movie and you want a science fiction movie. I say, yeah, sure, I'll go ahead. But that's not what we're talking about when we talk about justice, which usually has to do with those cases in which people have the opportunity to do harm to one another, to violate each other's rights. That's when justice normally comes in. What are rights and what constitutes a violation? Well, and even, I mean, more broadly than justice, that the consequentialist or the utilitarian is an approach to morality. And we could say that this decision to go to a movie, you know, it may, we may end up with a better result and we can evaluate the result as better if it maximizes the happiness of the people because six out of the seven want to see that movie and only one doesn't. But we wouldn't have fixed the label of that being a moral decision. It's certainly not a just one. We wouldn't say like, you know, that's morally right than to go to that movie and it would be morally wrong to decide the movie in some other way. Well, but Jeremy Bentham would in the sense of actually trying to maximize happiness and those things that you should be doing are the ones that maximize happiness. This is one of the reasons why I think Bentham is not perhaps the best guide, although he's a very intelligent person and had lots of interesting things to say because there's not a distinction within Bentham as such between a rule utilitarianism and an act utilitarianism. This is one of the areas that has been fleshed out by later thinkers in that tradition. If I think about the utility and I think about the utility of following the rule or the utility in each particular application or every act, certainly the latter act utilitarianism is epistemologically impossible. That is to say that the burden it would impose on us to go gather information, analyze it and weigh these things up would be overwhelming. We couldn't do anything at all. It's an impossible guide to life. Rule utilitarianism is a different matter, namely if we look at the utility of a rule, so we could take a very simple one, we could have a free market interaction or socialism. Well, that one turns out is not too hard after the experience of the 20th century to calculate. Socialism generates famine and disaster and all kinds of terrible consequences, certainly actual existing socialism, abolition of the price system and private property and the means of production generated, well, cannibalism. And most of us don't like that, would consider that a negative outcome whereas one another system of free market capitalism generates prosperity and social harmony. So at the rule level, utilitarianism is a more plausible species of consequentialism without any doubt. And that leads back to this question, at what point do we invoke these different theories? And I think that the principle of rights and rules is properly invoked at the level of my personal behavior, how should I act or how should the government act in some case, should be in accordance with certain rules. And we have general principles of what constitutes the rule of law to take an example that laws cannot name particular persons, they have to be general in their application soon or they don't qualify as laws at all. The Trevor Burrus and Aaron Powell law that just gave you a bunch of money from the taxpayers would be pretty great. Some people would like that. But it certainly wouldn't be a law because it cannot be formulated in those abstract terms applicable to everyone. But then the question is what justifies that? And there we have to go to something external and I think for that we have to look to our experience of history, our knowledge of economics and of just how the world works. And at that level we can justify a system of rights. But then we leave that justification behind and we follow the principles that flow from it. Now there may be some odd cases on the margins or emergency situations where we have to say, well those rules don't really apply to the normal principles or circumstances of justice are no longer obtaining. And that would be true of odd emergency situations, lighthouse situations and the like in which the normal rules don't generate the consequences that we want. Now even there there are normally law-like applications. There are laws of necessity for example, to take the old classic one, you're walking in the mountains and suddenly a snowstorm hits that you couldn't have anticipated, you're going to die of exposure so you break the window of a little mountain cabin, get inside and you're safe and snug. Okay, no one would punish you in some way for doing that. You did something perfectly reasonable. On the other hand, you do owe afterwards when you're able to pay it back to replace that window. There it doesn't lift all moral constraints on your behavior. In addition, you couldn't be in that situation entirely through your own deliberate act with full knowledge of the consequences. I burned down my house and then demand to go live in yours. This is certainly not acceptable or reasonable. And in addition, I couldn't put you into the circumstance I'm trying to escape and claim that there was any moral justification for it. I can't throw you out into the snow and take your place and say, well, it was the right thing to do. I would be punished or censored in some way for having done that. But nonetheless, there might even be extreme cases where we have to say that the possibility of coexistence of agents is no longer possible. These really bizarre science fiction cases that people like to dig up. But those aren't in fact the ones that characterize normal life. They're sort of fun for science fiction stories. They twist and stretch our moral intuitions in interesting and challenging ways. But I don't think they're helpful to figure out how to live. A lot of contemporary moral theory focuses exclusively on that. What if? I mean, I read one particularly bizarre book published by Oxford of all places in which the guy entertains a world in which we don't stand anywhere. We're floating in space and the only thing we produce is body hair. And one guy's furry and the other one isn't. Would the non-furry one be entitled to take the body here of the other person to weave a suit for himself? Well, gosh, I face that problem all the time. This is utterly pointless, in my opinion. And uninteresting and the only people who'd be interested in this are people who are paid to write pointless books. So let me then ask about that as kind of similarly the distinguishing terms from each other on the other side of this issue. We talk about rights-based approaches and then deontological approaches. Are these terms related in the same kind of genus species way as consequentialism and utilitarianism? Or are the relation different or are they not related at all? They're overlapping, very substantial degree. The ontological means that we look to the duty that is incumbent upon us in any particular case and that we're guided exclusively by duty. So Kant would be called a deontological theorist in this regard because he thinks that the human being in some ways exists as a part of the world, as a part of the natural order of cause and effect and in another way not as a part of that. He talks about the phenomenal person, the person of appearance, that's what phenomenon means, appearance in Greek and the numinal person that is to say the being of pure reason, the one that is known by the mind as such. And the latter is governed by free will. The former, the world of appearances is governed by cause and effect, normal causal principles in the world. But because human beings have free will, they're governed exclusively by a law of reason as such and that is incumbent upon us regardless of the consequences in the world of cause and effect. So his is purely deontological, never looked to the consequences when evaluating the morality and moral justification of some act. So does this mean just quickly that the categorical imperative that you mentioned earlier, if we could will it to be universally followed is not a, we don't mean that in a consequences based way. We don't mean that like that the consequences would be terrible if everyone did it so we shouldn't do it or the consequences would be fine but instead is this some sort of like a logical contradiction like it would simply be logically contradictory if everyone did it? More of the latter although teasing out the consequences is very difficult and there's a whole Kant industry if anyone wants to go down to the university library they'll find shelves and shelves and shelves on exactly these questions. But what he's looking at is more of a logical contradiction. So I gave the example of a thief. If everyone were a thief there wouldn't be any property and therefore anything to steal would be kind of a logical contradiction at the level of human behavior or action. Murder same thing. Murder, we can think of spin those out. And by and large I should add those track libertarian views about human behavior. So when he says that we should act in such a way also that every other moral agent is conceived as an end in and of himself or herself that's quite compatible with individuals libertarian formulations of human interaction. We see other people as unique and as people have their own lives to lead as the levelers put it. Now given that you could formulate it as saying everybody has a right. We all have rights not to be treated in certain ways. And indeed the silver rule is a nice invocation list. The golden rule act always in such a way as you would like other people to treat you. That's very strong view. I would like other people for instance to be nice to me all the time. So I should always be nice to people. The silver rule is a somewhat easier one. I think a better foundation for law don't treat other people as you would not want to be treated yourself. And that formulation kind of falls out of the Kantian formulation and it's a very good rule for how we should interact with other people. Certainly when it comes down to the level of rights. So you could give a rights formulation to a deontological view of the world but it is not inherently in all circumstances rights oriented but quite compatible with that. Now rights however could be grounded in other ways. For instance Kant has this categorical imperative that is to say it's absolutely true. It's a categorical statement always under all circumstances. His argument for that is that there is a grounding that is unconditioned that isn't something that is for the sake of something else and that is the individual human being each of whom exists for his or her own sake not for the sake of someone else or for some other purpose. But you could formulate these in terms of a hypothetical imperative and this is more compatible with what is called the modern natural law tradition that is to say if you want X then you should do Y. So a very simple obvious example. If you want to be physically fit then you should be careful about what you eat and you should exercise. That's a hypothetical imperative. Kant talks about that. He says, yep, there's categorical imperatives and hypothetical imperatives. And the categorical ones you couldn't formulate as an if then statement, right? No. Those are valid in all circumstances and he limits morality exclusively to that first category. Now you could also ground morality in the second category. Randy Barnett is a professor at Georgetown University, very important libertarian, moral and legal theorist, talks about this in his book, The Structure of Liberty which is a really, in my opinion, just fantastic book, very clear and logical, that if you want to live in certain circumstances, peace with your neighbors and not being liable to being assaulted or attacked, you'd like to live in a prosperous world, a world of scientific advance and open intellectual discourse and conversation and so on, then these are the principles that you need and they're rather like the principles of architecture or engineering for the construction of a house. If you want a house that will shelter you from the elements and won't collapse on you, there are certain principles you had best not ignore and he goes through those and they generate principles of property, market economy and so on and limited government and the rule of law. And some of these are based off of, just as architecture is based off of physics and the actual qualities of materials and the brittleness and all this stuff, there's elements of this that are based off of human beings and the world in the sense of that you have to take these as part of the clay, so to speak. Such that if humans were different than the way we are, the rules would be different. And you can't ignore that, of course. You know, you sometimes hear people say of a kind of an intellectual skeptical bento, say, ah, where did these rules come from? The answer is New Jersey. Well, it's a silly question, where do they come from? It's like saying, where do the principles of engineering or architecture come from? They don't come from any place. We notice them, we observe them as regularities in nature and we also observe them as regularities in human nature and human interaction. Price system has a function and it's very, very helpful for overcoming human limitations of knowledge. It lets us guide our behavior somehow incorporating the knowledge contributions of millions and even billions of people without having to know all of those things. I just see a number, the price of coffee or tin or lead goes up or down and this allows me to adjust my behavior accordingly. Principles of law help us in that way. Now, let me mention one other thing though in this regard, some people think that justice and law are always the same thing. Law is just the implementation of justice and furthermore that they're purely deductive systems. We start out with a certain set of axioms and we can deduce the outcome in all possible circumstances and I think this is not a very helpful way to understand either justice or law. Murray Rothbard, whom I respect in many, many ways, I think led us down a rather unhelpful path in formulating these as having a non-aggression axiom and then certain things just follow so that we can just do a deductive method and bingo, we know the answer in every circumstance that someone might post to us. The life of the human being's lead is actually much messier than that. It's more difficult. There are judgment calls and difficult problems and that's why we have systems of law to be able to help us to sort these things out. Well-meaning people who think they understand the facts and the law and the rules may actually disagree and we need legal institutions, judges and juries and so on, to be able to sort these things out and then provide guidance for future circumstances where we may encounter similar cases. It's not just a matter of sitting in a chair and deducing what would be the proper outcome in all cases. That's why law is important. I often say in that regard that if you can't have a principle, or you can't figure out the exact principle in this, you can choose a process and then that way law can provide judges and juries and other things that can give you an outcome when you can't deduce it from first principles. Normally these outcomes do generate some kind of principles that one can glean that would guide you in future situations that were not clear without that principle. Okay, so I know you have said that the consequentialist versus rights-based views are in a large sense both appropriate and which one we use depends on kind of what level we're talking about, but for now I'd like to try to still keep them distinct. And so let's start by saying, let's move back to libertarianism, back to political philosophy from strictly moral philosophy and say what at a very general level would a consequentialist argument for libertarianism look like? Well, first off I think one should not ignore actual history. This is why I think history is so very, very important. It's not just a matter of sitting down and thinking really hard about moral problems or even delving into our intuitions. Many people do that, but I think intuitions are not a very helpful guide because they're themselves historical products. The intuitions I have about what's right and wrong are very different from people living at other places and other times and other circumstances. I just recently read Stephen Pinker's book The Better Angels of Our Nature, which is a fabulous book, very libertarian of grounding in evolutionary psychology and history. And the horrible things people did for thousands of years to other people and they just thought they were okay. They were compatible with all of their moral intuitions. It's not fun. Have fun, enjoyable and just really shocking things going to public executions that are gruesome beyond belief. Bringing the kids. Yeah, bringing the kids, popcorn. These are great entertainments. And I won't go into in great length, but I highly recommend this book. It's a very, very fine scholarly resource and well-written as well. So moral intuitions are not helpful. Let's look at history and what we do find is limited government, rule of law, the presumption of liberty, which is one of the most important libertarian principles libertarians insist on, are the foundation for desirable and just social orders. So let's start with the presumption of liberty. It's very common for people to say, oh, you have rights. Show me why you have rights because the government should be able to do anything it wants. Well, they also seem kind of mystical and evanescent. Well, they also dodge the question of why assume that the state, whether it's the king or the emperor or the Congress or the parliament or the prime minister or the minister of justice has the power to do that. Where's the justification for that? Certainly if you're gonna insist that there'd be a justification for rights, you should be willing to show justification for power as well. The idea of the presumption of liberty rests on the same epistemic principles or principles about knowledge and how costly it is that undergird the principle of the presumption of innocence. Think about it. If you are charged with a crime, the prosecutor must prove you're guilty. You don't have to prove you're innocent. That's almost impossible. And indeed, you might prove you're innocent of some charge. You robbed the bank last Thursday by saying, well, last Thursday I was in Brazil. I couldn't have robbed that bank. Oh, well, then you probably robbed the bank on Monday. Prove you didn't do that. It's impossible to prove you're innocent of all the charges that could be brought against you. So the burden of proof is on the one who would maintain your guilt and therefore deprive you of your liberty or your stuff if you're gonna be fined. And similarly, the presumption of liberty. You do not have to justify why you should be able to act in accordance with your freedom and to exercise your powers. There should be a proof offered as to why it should be limited. And of course that can be done if you act in such a way that it's incompatible with other people and join their lives. If your behavior is harmful to other people, then you could be restricted. So take an example. Do I have to get permission to sing a song? I go to the Ministry of Music and I fill out all the forms to get permission to sing two country western songs on Wednesday night. That's bizarre and strange. I should have the freedom to sing whenever I want unless my singing is at four o'clock in the morning with huge loud speakers and it keeps all of my neighbors awake. Then there'd be a reason to restrict my singing but the burden of proof was on the one who would restrict, not the one who would exercise it. That principle is really in my opinion foundational for libertarian views. That we'd look to the harm that our behavior might cause to other people as the foundation for restricting them rather than requiring that people always justify everything they might want to do because the ends and purposes of human beings are virtually infinite. And because we're all, each one of us is unique, we have our own unique purposes. Not everyone likes the same kind of music that I like. People have different tastes, they have different goals and lifestyles and so on. They should be free to pursue those unless their pursuit could be shown to be harmful to others. In which case you could restrict it. Could that possibly be, I mean some people might say that that is a rooting the ethics of liberty in a system of libertarian presumption of liberty in an individualism that maybe is not warranted if we're looking more at community oriented values or maybe something like we're so would say about his view of the relationship between the individual and the collective that you need to justify the individualism of that argument. I don't think that's quite right. And one reason is that other approaches that posit a kind of collective entity are incoherent. What they normally do is rather than recognizing that there is such a thing as community, that there are human groups or societies, nations and so on. But they think that those groups are individuals like you and I are individuals. And that's a fundamental mistake in my opinion. It's a very, very common one and often committed by very intelligent people who just haven't thought very clearly about this. The consequences sometimes libertarians go the other direction. They say, oh, there are no groups, there are only individuals. That's all there are. And I think that's also silly. If we look at it more carefully, the ontology of groups, let us say what is it to be a group? Groups are not individuals like the members that make them up. They're made up of individuals and all of their complex relationships amongst themselves. So a church, a synagogue, a temple, a mosque, a chess club, any other kind of human associations made up of the numerically and materially individuated human persons who constitute it and their relationships. Some are priests and others are congregants and some are members of the choir and so on and so forth. And it's that combination of the individuals and their relationships that constitutes a group. But because there are in fact groups, we can speak of the reality of groups, the existence of groups. The collectivists go from that point to the next step, which I think is unwarranted, that those groups are individual agents like you and I are agents. And I think that's ridiculous. That's simply mysticism. It's completely unwarranted. And it leads to all kinds of pernicious consequences. People who think in those terms, and it's pretty common in let's say outside of the hard social sciences, including in moral philosophy for people to think of groups as agents. What happens is that they miss all of the interesting questions. So if they say, oh, well, the United States invaded Iraq or France invaded Tunisia, they act as if the United States or Iraq were some giant person who maybe was angry or upset or something like that could be understood as we understand the motivations of individuals. And that misses all of the interesting questions of social science and history. Like who made those decisions? Why were they made? What was the complex process by which these decisions were arrived at? And then when the soldiers were sent, why did they obey? But what was going on there? Real social scientists asked all those questions and these methodological collectivists can't. They have wounded themselves methodologically such that they can no longer ask the interesting questions of sociology, economics, and human interaction. So you bring up this word collectivist which is a word that is used a lot even outside of libertarian circles. You hear various people use the word. Do you mean just people who think of the group as a unit or is there more to the collectivist mindset? There's more core sort of beliefs in the collectivist mindset. But there's a kind of methodological collectivism which says that the collective acts as an agent, that it has a kind of moral unity to it that gives it moral agency. And this I think is again pseudo-scientific and mystical. But then there's a moral collectivism which assumes that the well-being of the collective is superior to that of the individual members of it. The needs of the many outweigh the needs of them. That might be one formulation but another classical one that you found in previous times was to treat the individual members as if they were like fingernails or little elements of a body. And you could trim the fingernails or cut the hair and the body can thrive as a consequence. Even if you look at Hobbes' book, he's not a methodological collectivist but he's a kind of moral collectivist. He presents Leviathan on the front of the book as a big person made up of all these little people. It's a big painting of this big creature and if you look closely, it's made up of lots and lots of little human beings. In that context, they posit some kind of moral value of the collective. Now it could be formulated in two ways. The one which is the needs of the many. It's a kind of utilitarian view. A million people benefit and three people will be sacrificed, A, three against a million. That also corresponds to the moral intuitions many of us would face. If I were in a situation where I would violate the rights of three people and save the lives of a million people, gosh, I think I'd do it. I wouldn't feel good about it. Certainly if it was leading to their deaths, I'd feel awful, but I think most of us would do that. There's another view that's even more common though and that is to view the collective as a kind of spiritual agent, the nation. Nationalists have this view. The American people. The society. Society, but actually the nationalist formulation, the German nation, the folk or the French nation or whatever it might be, that it is a cultural unit that transcends any of the individuals who make it up such that you could sacrifice those for the benefit of this ghostly presence, which is our language, our way of life together and so on and that the flesh and blood human beings are less significant than that. They are, if you will, merely the carriers of something greater than themselves, which is the nation. And this view comes out late 18th and 19th centuries. It took a particularly ugly and horrifying formulation in the middle of the 20th century such that other people were deemed enemy. They're enemies to our nation. It's incompatible, Jews, Gypsies and so on and they were exterminated as a consequence. Well, I do think we should look to the real consequences of endorsing these kinds of collectivist mystical notions and see how they play out in reality. We ran that simulation in real life. It wasn't a simulation and it didn't turn out well. And I think that those versions of moral collectivism should be discarded entirely. Okay, then the consequentialist argument for libertarianism put very simply then would be however we happen to define good consequences and the argument would then vary based on how we define them. Libertarian policies or political systems or respect for rights and free markets will produce those consequences better or in greater number than non-libertarian. Then so on the other side then a strictly rights-based argument and trying to set aside the form of rights that's really just rule consequentialism. So one that writes that aren't concerned with consequences I guess purely deontic. What would that form of libertarianism, like an argument within that tradition look like? Well, let's take an example of behavior that might be self-destructive. So excessive consumption of alcohol or narcotics or who knows what, other things that might be harmful to you. One could say, look, it's your body, it's your life, you have the right to do that and that's a pretty clear formulation of a rights-based view. It's also generally a good rule about living your life. I don't burst into my neighbor's house when I think that they're putting too much salt on their food or having an extra glass of wine too much. We respect each other as moral agents in the decisions that we make. We also look out at the consequences of the prohibition of alcohol and the prohibition of narcotics and I think any unbiased observer who takes the time to really look at the evidence should be horrified at these systems. They have generated so much criminality, violence, harm to innocent bystanders and people just happen to be in the wrong place at the wrong time, gun down by drug gangs who are in a turf war that the consequences of the narcotics rules are so horrifying it undergirds our support for the principle of individual autonomy. Now we can be tested on it in kind of individual cases. I think that people do have a right to make decisions about the end of their lives. Euthanasia, suicide, however we wanna formulate that. But if I saw a guy teetering on a bridge, he's had some terrible experience in life and he thinks he can't go on. Would I just stand there and watch him and say, hey, his life, that's what he's gonna do? No, I feel pretty sure I've never faced this exact circumstance. I'd grab him and pull him back and say, hey, think about it and you split up with your spouse and life is awful right now but there will be it tomorrow. I think I'd do that. I think most people would do that. I think that's consistent with being a good person and I don't think there's anything un-libertarian about that. On the other hand, a person who's made a very considered decision about the suffering and pain that they are experiencing, I do not think should be restricted when we've satisfied certain principles of the rule of law, namely publicity. We know it's not being, the person not being coerced. An inheritance. Yeah, the heirs forced the person's hand to resign the document and so on. The people should be able to make those decisions about their own lives. So when faced with particular extreme cases of the recognition or respect for the moral agency of other persons, I think we would all recognize that person somehow isn't in his or her right mind and we would act to withhold the person back. But a person who's made a considered decision and has publicized it, I don't think should be stopped from ending life. These are terrible things to consider but we do face them in reality. And so a simplistic, that's my term, to negative term, but a simplistic invocation of the principle of autonomy should not allow you to watch a teenager jump off a bridge to his or her death. People who would follow it in that way somehow are missing a screw, in my opinion. Something isn't bolted down in their moral awareness. They're invoking the principle of moral autonomy at the wrong level in the wrong circumstances. So you said simplistic in this sense, and we mentioned the non-aggression principle previously as possibly a very minimal justification for libertarians as opposed to a more complex one, but is a non-aggression principle a same thing as a rights type of principle, a strict adherence to rights without any idea of the consequences, as Aaron asked, would that be a rights-based theory of libertarianism? Let's sort this out a little bit. I think that a principle of not aggressing against other people is one of the core principles of a libertarian worldview, but it presupposes, we understand what it means not to be aggressed against. So there have to be some other principles along with that. It also presupposes people because it doesn't include some, maybe animals or trees or various things. I suppose, let's just say moral agents to deal with that problem. Trees are not moral agents, but as I live with two cats, I'm convinced cats are moral agents. They have convinced me of that, but we'll set that aside. We'll just talk about moral agents generally. In such a circumstance, the principle of not going around aggressing against them is a pretty good guide to human life, but is it aggression if I just move into your house and eat all your food, the golden lock sort of circumstance, sleep in your bed and eat your porridge and so on? Yes, it is aggression against what is yours, but it presupposes we have some understanding of what is yours. So there are principles about first appropriation. I think one of the people who has addressed this most systematically is Richard Epstein. He's a really marvelous writer. In his book, Simple Rules for a Complex World, I think lays out very neatly these fundamental principles. And we have a lecture he gave for Libertarianism.org, a video of it on this book, laying out the ideas in it. We'll link in the show notes. He is admirably clear on these questions. So now, given that we need a rule of first appropriation, we need a principle of non-aggression. We need a principle of contract that allows people to engage in mutually beneficial exchanges amongst themselves. What I would take exception to is those who argue this as a non-aggression axiom. Axiom means just something worthy of belief, a kind of starting point for everything. And that somehow Libertarianism would flow directly out of that without any other principles at all. I think that's really a mistake. And it suggests again, this model that Libertarian thing is just purely deductive. All I need to do is tell me the facts and I can always tell you the outcome that is demanded by a theory. The world doesn't work quite so neatly in that way. That said, the principle of not aggressing against other people, their persons, their bodies and those things that they legitimately acquired is a core principle of a free society. Okay, so then a rights-based approach to Libertarianism, one that is independent of the consequences, would effectively say something like, we have rights, A, B, and C, a right against being murdered, being assaulted, a right to property, whatever they happen to be. And the only state that doesn't violate those rights is a Libertarian state. Or a justified state. Or a justified, like it's, however we then define a Libertarian state and there could be arguments about what constitutes, how broad that can be and all that. But that would be the real core of, so we wouldn't say that state's necessarily going to lead to better results, most Libertarians would say, of course we think it will. But what really matters is whether the state defends and doesn't violate those rights. And the only state that's compatible with that requirement is this Libertarian thing. That'd be an accurate, simple nutshell version of. Not bad, but I would take a small exception idea that rights means irrespective of consequences. Legal systems do look to consequences and there may be cases in which a normal set of rights doesn't well apply in that circumstance. And again, that's why the law is so important. And Libertarianism is intimately connected with the concept of the rule of law and legal procedures to be able to sort out disputes even among well-meaning people. People with a good will who think that they're abiding by the law may in fact disagree. It's inevitable. And legal systems have to deal with those questions. There may be cases in which the application of a rule might lead to what knows it called, my memory's failing me, but moral catastrophes, there might be just terrible consequences. And in which case you have to say, ooh, let's go back and re-examine that and see whether that is a good rule in this case. So we were gonna, he rules out certain kinds of consequences. He leaves it kind of out for saying, well, unless it turns out that it just doesn't apply in this new set of circumstances. In that case, we would want to revisit it. And we also need the exercise of human judgment, Aristotle called phonesis, the wise knowledge of what is the outcome in such a circumstance because sometimes it's hard to know how to apply the rules. And again, that's why we want to have well-educated judges and jurists involved in a proper legal system. That said, the principle of the legal order is not to generate particular outcomes, but to generate justice. That's really important. If it becomes unmoored from that, and people say, no, the law is to make sure that party A is helped or party B is helped or the people I like- The social, due to social justice, yeah. Come with some particular outcome that I think that perverts the notion of the law. When the law becomes oriented towards some particular goal or outcome other than the realization of justice. Well, then how are you distinguishing justice from those outcomes? Could someone say like, I think the law should create some level of equality between people, however we happen to define equality. And that then is just synonymous with justice. Justice is a quality. Right, well, the first problem would be that you would still face the epistemic question of knowing how you're going to do that. The wonderful little book by Bertrand Jouvenel The Ethics of Redistribution, short by, I think addresses that very adequately. This is a much harder problem than anybody who proposes this leveling of incomes has ever really considered. It is much more difficult. And of course, the realization and practice of all of these extreme egalitarian programs that we are going to generate equal outcomes is in fact the opposite outcome because those people who are empowered with the unequal power to be able to determine the incomes of others will reward themselves with higher incomes. The way I like to put it, find me the biggest egalitarians and you'll find they live in the biggest palaces. That is the normal way the world works. George Orwell's book, Animal Farm, is a playing out of that fundamental principle. Some animals are more equal than others. Yes, all animals are equal, but some are more equal than others. That's the realization of this kind of extreme egalitarianism. So I think even attempting to say that the legal system should generate certain kinds of outcomes other than following the procedures and the rules and ensuring that they are fairly applied without regard to race, color, creed, height, eye color, et cetera, et cetera, et cetera is the function of the legal system. Now that said, the point is that human beings on the basis of such rules can generate more order, a more prosperous society than anyone utilizing the legal system as a tool could consciously aim at or even conceive. And that is the other part of libertarianism that's so important. We talk about rights, but we also have the social order of spontaneous order. When you attempt to institute an actual ordering of society by means of the law or by some institutions of force, the typical result is actually social disorder, harmful behavior, disharmony, conflict, and the general degradation of human social relations. In contrast, and this is where libertarians draw on economics and sociology and other disciplines, when the rules are clear, understandable to all, when you have rights that are well-defined, legally secure, and transferable under principles of contract, the social order will generate more harmonious interaction, more order than the rulers or guiders of the state could have imagined. So the function of the state or of the legal system, if you assume that that's a portion of the state, is to generate the framework within which people create social order, but not to generate that order itself. That's a really important distinction. The socialist mentality or status mentality generally is that the state will order society to produce the outcome that's preferable. But in fact, it usually doesn't work. They don't get that particular preferred outcome. You get all kinds of unintended consequences. People will attempt to evade these things. The classic example is the war on drugs. We have the war on drugs to make sure people don't take drugs, from which we conclude, since we have a war on drugs, no one out there is taking any drugs. But the reality is, if you ask people where are the two easiest places to score illegal narcotics in the United States. Prison and school. Yeah, prison and high school. The two places they're absolutely strictly forbidden from. This suggests that this attempt to generate behavior on the part of the population doesn't work. If in fact what you want is a society of sobriety, then have a society of freedom of choice. Some people will become drunks. Some people will ruin their lives, but the vast majority will learn how to behave in a sober and proper self-regarding manner. Well, maybe that just means though, this is the devil's advocate position, that there hasn't been enough socialization or control of people and how they should behave if they're behaving differently than, well. You could execute a lot more people, but even in societies with a death penalty for trafficking narcotics or dealing with narcotics, where they hang them or draw and quarter them or shoot them publicly, there are still people doing drugs and narcotics. And so if you go to countries with these extraordinarily draconian penalties, you go to some countries at the airport, you see the thing that says drugs equals death and there's got to hangman's noose and the least scary things, there's still drug traffickers in those countries. Just as we find in the United States, if you deal drugs and get caught, you go to prison and surprisingly enough, our prisons are crowded with people who are not deterred by the possibility of that punishment. We've unfortunately run out of time, but to sum up, is it actually the case then that these two schools, which at the beginning we talked about as being distinct and that many people think you're either a consequentialist or your rights-based thinker, are in fact not all that distinct at all? No, I think in fact they're really quite compatible. I don't know of anybody who really doesn't believe in rights at all if they believe that there should be rules to guide social interaction. That's a belief in rights. Some of them who say, oh, I don't believe in rights might have a mystical idea of what rights are like it's part of your pineal gland or some little portion of your body. If I open up your heart, I might find a little fish inside of it that constitutes what your rights are. Rights are rules that govern human behavior, what we should expect from other people and how we are permitted to behave ourselves. So the question is, if people believe in rights and the belief in rights is fundamental to a libertarian perspective, rights that impose duties and obligations on all of us, your rights are correlative to my duties not to aggress against you or to harm you, then the question is, well, why do we believe in those things? What's the reason? And you could then say, well, you could have this Kantian argument that it has to do with the requirement of reason as such and that we would follow those principles even unto the end of the world, regardless of any consequences. I don't find that very plausible. I don't think most people do. I'm not sure even Kant did. What we find is that's a very good formulation. Don't look to the consequences, but do the right thing that guides us every day. But to justify that as opposed to a system of collectivism or all the other political ideologies out there of collectivism, fascism, national socialism, socialism, Bolshevism and so on, we do so on the grounds that these are the rules that will produce a society of decency, a society of a good life and the pursuit of happiness. And that's a pretty good reason to justify a system of rights. Thank Tom for joining us today on Free Thoughts and thank you for listening. If you have any questions or comments about today's episode, you can find me on Twitter at arossp, that's A-R-O-S-S-P. And you can find me on Twitter at TC Burris, T-C-B-U-R-R-U-S. And if anyone would like to raise objections or share your thoughts, I'm always open-minded to hearing new arguments and you can find me at tomgpalmer at gmail.com or you could look me up Tom G. Palmer on Facebook. Free Thoughts is a project of Libertarianism.org in the Cato Institute and is produced by Evan Banks. To learn more about Libertarianism, visit us on the web at www.libertarianism.org.