A Response to Radical Libertarianism
This essay was first published in 2003 under the title “The Condo Association Analogy.” The new title describes more clearly the intent of the article: to respond to the more radical among libertarians (many calling themselves “anarcho capitalists”) who twist normal libertarian thinking to such an extent that they think certain rights and voluntary associations — the ones they find distasteful — are invalid and ought to be disregarded.
Suppose, within the context of some sort of libertarian utopia (we’ll leave the details to your imagination), a person, or group of persons, acquires an area of land and proceeds to break it into plots and build condominiums. These founders also write up a charter for the neighborhood, describing the rules of conduct and fees that will be paid by the occupants, as well as the procedures by which the condo association may change the rules.
Suppose (as is probably typical) each new occupant (or family) gets one vote at association meetings when new rules are proposed, and the passage or failure of new proposals is determined by majority rule. It should be clear that in such a case the new owners are not purchasing full sovereign rights in their new plot of land, but only a subset of the rights, plus the right to vote when changes are proposed. If the charter spells out certain specific rights, such as residents having the right to determine interior paint colors, then these rights are purchased in full. The charter may also say something to the effect that rules must be uniformly applied to all residents.
Note that it is not necessary for each successive resident to sign a contract explicitly agreeing to the current rules. The previous resident did not own full, unrestricted rights in the property, so they are not his to sell. All he can sell is the rights and property he currently owns, including his voting right.
I will assume that the reader accepts the legitimacy of condo association rules; people cannot rightfully move into such a neighborhood, deny the legitimacy of the condo association and ignore the rules.
Is this a good analogy to a state? I fear most libertarians would instantly say no, because it adds some legitimacy to the state that they despise so much. Although I had the same initial reaction, I think the analogy is very strong.
I think the first response to this would be that nobody ever voluntarily signed up to be subject to the rules or procedures associated with a state. This may be true in some cases, but in many cases, most notably the case of (legal) immigrants, people do agree to be bound by the laws of the land. And in any case, to go back to the condo analogy, if I move into the neighborhood described above, I don’t have to agree explicitly to the terms; the terms go with the property. Or, as I put it above, the previous owner did not own full, unrestricted, rights in the property anyway, so they aren’t his to sell. If you inherit property in the neighborhood, the same reasoning applies.
What about people who are born in this hypothetical neighborhood? Can they rightly be subject to rules they never consented to? I think they can. Remember that all the land within the neighborhood is jointly owned and subject to the rules as determined by the association (following specified procedures). If the charter does not specifically grant a right to individuals alone, then it is jointly owned. The rules could, for example, forbid people with facial piercings from entering the neighborhood. This applies no less to children born within the borders of the neighborhood than to guests of residents or complete strangers.
Another possible objection to the analogy is that state land was obtained unjustly (perhaps by military conquest) and therefore claims of joint (government) ownership are invalid. Attacking the legitimacy of government on historical grounds, however, is a dead end. All claims to ownership have an uncertain past, and the road to current ownership will almost certainly contain injustice if we trace back far enough. Indeed, if we required ownership claims to have a perfect historical record all the way back to first appropriation from a state of nature, the entire idea of property ownership would have to be thrown out the window. I can think of no reason why personal claims of ownership should be held to a lesser standard than government claims.
Of course I am not saying that just ownership should boil down to mere possession. If property is stolen, the victim of that theft is due restitution by the thief (restitution may include the return of the stolen item, but there’s no reason that it has to). The dispute, however, is between the thief and the victim, and third parties should respect the property rights of thieves no less than the victims. What is the alternative? Should we take as our own anything with a shady past, and then claim that our ownership is just? You could call that the “two wrongs make a right” theory of property rights.
Going back to our analogy, we could certainly assume that in many cases neighborhoods, such as the one described above, are built on property with an uncertain history and/or with money acquired unjustly. In such a case, would anyone honestly believe that they have the right to ignore the rules of the association? If you steal a grape from the grocery store, does that give me the right to trespass on your property? Clearly not.
It is an undeniable fact that the current arrangement is such that government owns a substantial fraction of rights in property that is nominally privately owned. This is our current starting point. Generally speaking, libertarians would prefer that more rights be privately owned (in the strict sense), but we can’t simply discard a subset of the current distribution because we don’t like it. It would be blatantly hypocritical to deny the ownership claims of others and expect ours to be respected.
If this analogy holds water, where does it leave libertarians? We are so fond of taking everything to the extreme, claiming that our rights are being violated because we are forced to pay for public garbage collection. What we might have now is a world full of condo associations. Our only alternatives are to find one we like as is, or find the best one and work within the system to change it to our liking.
I think the reason it is easy to accept condo associations within our imaginary libertarian utopia is because we imagine them to be limited in scope, such that you only have to live in one if you want to. But are they any less legitimate if the whole world is covered by them?
I’m afraid that this argument does moderate the libertarian position somewhat. It’s not to say that the state doesn’t routinely violate rights; the state violates rights every time it takes actions in violation of its own procedures to the detriment of citizens. But claiming that the state is no more than a band of thugs preying on the population is a bit of a stretch.
Even if the state itself is not wholly illegitimate, we can and should be highly critical of government policies that are abusive and inefficient. The procedures of the U.S. government allow all kinds of legislation to be passed that is harmful to individuals and to society as a whole. Just because people are within their rights to pass such legislation does not mean doing so is morally correct. We can certainly condemn politicians who pass damaging legislation just the same as we can condemn someone who drives past an accident without dialing 911. An action isn’t right just because you have the right to do it.