Books / Digital Text
A. The Attack on Natural Liberty
Oliver begins by turning his guns on the natural-rights defense of laissez faire—on the system of natural liberty.32 He is worried because Americans still seem to cling to this doctrine in underlying theory, if not in actual practice. First, he sets forth various versions of the libertarian position, including the “extreme” version, “A man has a right to do what he will with his own,” as well as Spencer's Law of Equal Freedom and the “semi-utilitarian” position that “a man is free to do as he pleases as long as he does not harm someone.” The “semiutilitarian” position is easiest to attack, and Oliver has no difficulty in showing its vagueness. “Harm” can be interpreted to cover practically all actions, e.g., a hater of the color red can argue that someone else inflicts “aesthetic harm” upon him by wearing a red coat.
Characteristically, Oliver has least patience with the “extreme” version, which, he contends, is “not meant to be interpreted literally,” not a seriously reasoned statement, etc. This enables him to shift quickly to attacks on the modified and weaker versions of libertarianism. Yet it is a serious statement and must be coped with seriously, especially if “A” is replaced by “Every” in the sentence. To o often political debate has been short-circuited by someone's blithe comment that “you can't really be serious!” We have seen above that Spencer's Law of Equal Freedom is really a redundant version of the “extreme” statement and that the first part implies the proviso clause. The “extreme” statement permits a more clear-cut presentation, avoiding many of the interpretative pitfalls of the watered-down version.
Let us now turn to Oliver's general criticisms of the libertarian position. Conceding that it has “great superficial attractiveness,” Oliver levels a series of criticisms that are supposed to demonstrate its illogic:
(1) Any demarcation of property “restricts liberty,” i.e., the liberty of others to use these resources. This criticism misuses the term “liberty.” Obviously, any property right infringes on others’ “freedom to steal.” But we do not even need property rights to establish this “limitation”; the existence of another person, under a regime of liberty, restricts the “liberty” of others to assault him. Yet, by definition, liberty cannot be restricted thereby, because liberty is defined as freedom to control what one owns without molestation by others. “Freedom to steal or assault” would permit someone—the victim of stealth or assault—to be forcibly or fraudulently deprived of his person or property and would therefore violate the clause of total liberty: that every man be free to do what he wills with his own. Doing what one wills with someone else's own impairs the other person's liberty.
(2) A more important criticism in Oliver's eyes is that natural rights connote a concept of property as consisting in “things” and that such a concept eliminates property in intangible “rights.” Oliver holds that if property is defined as a bundle of things, then all property in rights, such as stocks and bonds, would have to be eliminated; whereas if property is defined as “rights,” insoluble problems arise of defining rights apart from current legal custom. Furthermore, property in “rights” divorced from “things” allows non-laissez-faire rights to crop up, such as “rights in jobs,” etc. This is Oliver's primary criticism.
This point is a completely fallacious one. Although property is certainly a bundle of physical things, there is no dichotomy between things and rights; in fact, “rights” are simply rights to things. A share in an oil company is not an intangible floating “right”; it is a certificate of aliquot ownership in the physical property of the oil company. Similarly, a bond is directly a claim to ownership of a certain amount of money and, in the final analysis, is an aliquot ownership in the company's physical property. “Rights” (except for grants of monopolistic privilege, which would be eliminated in the free society) are simply divisible reflections of physical property.
(3) Oliver tries to demonstrate that the libertarian position, however phrased, does not necessarily lead to laissez faire. As we have indicated, he does this by skipping quickly over the “extreme” position and concentrating his attack on the unquestionable weaknesses of some of the more qualified formulations. The “harm” clause of the semiutilitarians is justly criticized. Spencer's Law of Equal Freedom is attacked for its proviso clause and for the alleged vagueness of the phrase “infringes on the equal freedom of others.” Actually, as we have seen, this proviso is unnecessary and could well be eliminated. Even so, Oliver does considerably less than justice to the Spencerian position. He sets up alternative straw-man definitions of “infringement” and shows that none of these alternatives leads to strict laissez faire. A more thorough search would easily have yielded Oliver the proper definition. Of the five alternative definitions he offers, the first simply defines infringement as “violation of the customary legal code”—a question-begging definition that no rational libertarian would employ. Basing his argument necessarily on principle, the libertarian must fashion his standard by means of reason and cannot simply adopt existing legal custom.
Oliver's fourth and fifth definitions—”exercise of control in any form over another person's satisfaction or deeds”—are so vague and so question-begging in the use of the word “control” that no libertarian would ever use them. This leaves the second and third definitions of “infringement,” in which Oliver manages to skirt any reasonable solution to the problem. The former defines “infringement” as “direct physical interference with another man's control of his person and owned things”; and the latter, as “direct physical interference plus interference in the form of threat of injury.” But the former apparently excludes fraud, while the latter not only excludes fraud, but also includes threats to compete with someone else, etc. Since neither definition implies a laissez-faire system, Oliver quickly gives up the task and concludes that the term “infringement” is hopelessly vague and cannot be used to deduce the laissez-faire concept of freedom, and therefore that laissez faire needs a special, additional ethical assumption aside from the basic libertarian postulate.
Yet a proper definition of “infringement” can be found in order to arrive at a laissez-faire conclusion. The vague, question-begging term “injury” must not be used. Instead, infringement can be defined as “direct physical interference with another man's person or property, or the threat of such physical interference.” Contrary to Oliver's assumption, fraud is included in the category of “direct physical interference,” for such interference means not only the direct use of armed violence, but also such acts as trespass and burglary without use of a weapon. In both cases, “violence” has been done to someone else's property by physically molesting it. Fraud is implicit theft, because fraud entails the physical appropriation of someone else's property under false pretenses, i.e., in exchange for something that is never delivered. In both cases, someone's property is taken from him without his consent.
Where there's a will there's a way, and thus we see that it is quite easy to define the Spencerian formula clearly enough so that laissez faire and only laissez faire follows from it. The important point to remember is never to use such vague expressions as “injury,” “harm,” or “control,” but specific terms, such as “physical interference” or “threats of physical violence.”
- 32. Oliver, Critique of Socioeconomic Goals, pp. 1–12.