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Are liberty and equality compatible? Max Dalton Entry for Lloyd Davies prize 2011

Are liberty and equality compatible?

It has become almost a received truth that liberty and equality can’t co-exist peaceably. In the 1980s neo-liberal governments on both sides of the Atlantic swept aside welfare states for economies guided by a new ‘laissez-faire’, reminiscent of the previous century. In Britain, a Conservative government warns us that a Labour government has infringed our liberties by too much intervention, this time in the banking sector. The Cold War, in ideological terms could be summarised as the USA vs. the USSR; liberty vs. equality

But perhaps the sides shouldn’t be so vehement and divided. Maybe liberty and equality can be reconciled, despite their long, bitter history of opposition. In this essay I will first consider possible definitions of the two concepts. The definitions will have a significant impact on the outcome of our enquiry. I will set out an argument which appears to show that liberty and equality are incompatible, and show that this tension focuses on property rights. I will then discuss ways that property rights can be proved, before considering the implications that this has for the title question, ‘Are liberty and equality compatible?’

There have been many different definitions of liberty over the years, so in order to make our task easier it is important that we define it a little more closely. Perhaps the most famous definition is found in Mill’s On Liberty: ‘By liberty was meant protection against the tyranny of the political rulers.’(Mill 1977 p.70) As he develops his theory he also acknowledges that individuals can infringe the liberty of other individuals. This leads to his now famous proclamation that ‘The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his body and mind, the individual is sovereign.’ (Mill 1977, p.78) This, to use Isaiah Berlin’s phrase, is a negative conception of liberty (Berlin 1969), based on the lack of physical restraints on an individual carrying out his or her wishes, within a certain ‘sphere’ of rights. The role of the state is merely to prevent any citizen infringing the ‘natural rights’ of another.

There have of course been other definitions of liberty. Positive liberty states that what is really required for liberty is that each individual has equal opportunity to act on their choices. This includes some measure of socio-economic equality, it is argued. After all, if you wish to buy a car, but are prevented because it is too expensive, you are no more at liberty to buy a car than if there was an injunction banning you from buying cars. In this way, liberty and equality are seen as consistent.

Equality can also have many different definitions. Socio-Economic equality is the idea that all people should be entitled to an equal income, and equal access to ways to spend it (sometimes this amount is calculated by need, rather than on a simple equality). It also implies some social continuity and cohesion. This is what most of us think of instinctively as the idea of equality. Formal equality is fair treatment by the law (including fair access to

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Are liberty and equality compatible? Max Dalton Entry for Lloyd Davies prize 2011

work). Equality of opportunity is the subtly different concept that each individual should be given the same chances of success in education, employment and society (this might involve positive discrimination or extra support for those disadvantaged by their background). This is the difference between saying that no citizen is legally barred from being president, and that any citizen really could be president.

A particularly interesting approach to reconciling the two concepts has been presented by Roderick T Long. He argues that libertarian political philosophy is ‘radically egalitarian’

because it demands that the power of the state over the citizen should be equal to the power

of an ordinary citizen. Long claims that ‘Libertarian equality

before those who administer the law, but equality with them.’(Long 2005) In this sense, libertarians are more egalitarian than socialists, who are happy to give the state a disproportionate amount of power. This seems to me to be an acceptable, though unusual definition of equality, because it argues for identical treatment of individuals in some areas of

life, but not in others, a feature shared with all definitions of equality. However I disagree that this is the aim of a libertarian state. Even in a minimalist state, the government must have

a monopoly on legitimate power, and be able to coerce its people, in order to protect the

rights of citizens. For instance, in order to preserve liberty for all, it must be able to imprison people, to deter crime, something that the ordinary citizen cannot do legitimately.

involves not merely equality

Long is not alone in trying to find egalitarian aspects to liberty, though normally these focus on formal equality. Similarly, it has been traditional for egalitarians to present liberty ‘positively’, arguing that this positive conception of liberty is not only consistent with, but necessitates, equality. In that way, they capture the term ‘liberty’ for their own ends.

For me neither of these approaches is particularly fruitful. Hijacking the term of your

opponents, twisting it, then presenting it as consistent with your own views does not bring us much further forward. I’m not denying that liberty can (perhaps even should) be conceived in

a positive way, or that formal equality is important. But I think that for this exercise to be

meaningful, it is important to show that liberty as libertarians understand it is compatible with equality as egalitarians conceive it. Otherwise the debate has not been resolved – it merely becomes an argument over possible definitions. We should base our philosophical definitions

on what people mean by such words in everyday speech. Most libertarians favour a negative view of liberty – that there is a sphere of rights which should be inviolable by the state. The majority of popular egalitarians are concerned primarily with socio-economic equality, imposed by the state, through ‘progressive’ taxes and welfare provision. This is the everyday notion of the two conceptions. Our task then, is to see whether negative liberty can be compatible with statist socio-economic equality.

Robert Nozick famously argued that they were not compatible. He asks us to imagine a society, in which money is distributed in an egalitarian way, according to need. A basketball player, Wilt Chamberlain, sets up a scheme where each time someone attends a game, they drop 25 cents in a box. At the end of the year he picks up $250,000. Clearly this has disrupted

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Are liberty and equality compatible? Max Dalton Entry for Lloyd Davies prize 2011

the original equality, as Wilt has more than he needs, and his supporters each have slightly less. It appears that the situation was reached because individuals decided to spend their money in a certain way, by attending basketball games. This is what makes equality hard to maintain – people have the right to spend their money as they wish, and they rarely do so in ways that promote equality. Nozick argues that if the original position was justified, and only free choices led to the new situation where Wilt is richer, the new decision must also be justified, because it is based on individuals using their liberty. By making free consumer choices they consentingly move from a situation of equality to one of inequality. The only way that the ‘pattern’ of equality can be maintained is by coercive means – banning transactions or levying taxes on high earners. Any means used to return to the original, equal position will be very harmful to individual liberty. It may seem that merely taking taxes from a person does not have a detrimental effect on their rights, but Nozick points out that collecting taxes is a government action that is ultimately backed up by the threat of force. If an individual doesn’t pay tax, the government may take the money forcibly, or imprison the individual in an attempt to extort the tax. This amounts to forced labour, as there is a proportion of your working life that is spent earning money which goes to the state. Thus, Nozick argues, any egalitarian state must be preserved by the infringement on liberties. Liberty and equality are incompatible. (Nozick 1977)

How can such an argument be refuted? I believe that it is hard to deny that, in maintaining an egalitarian state, property rights must be infringed. It might be possible that a society could maintain equality without a coercive force, but it is most unlikely, as it would require the involvement and co-ordination of every member of the society. Instead, most counter- arguments must deny that the ‘right’ to property is a basic liberty, allowing this right to be infringed by the more important goal of equality. By removing the field of property from contention under the heading of liberty, it could reconcile liberty and equality.

The owner of something has the right to exchange, destroy, bequeath, or use his object in any way, so long as he does not infringe another’s liberty. (I may do as I wish with the gun as long as I don’t infringe your rights to life, health, freedom from extortion, etc.) However, originally the object, or its natural constituents, was owned by no-one. Thus it moves from being owned by no-one, but accessible by all, to being owned by one person, and accessible only to that person. All other individuals then have an obligation to respect that property right. Hillel Steiner argues that liberals have not noticed how illiberal property rights are – ‘they have often paid insufficient attention to the fact that each and every property title imposes obligations on all persons who are not the holders of that title’. (Steiner 2008, p.567) How, then, do liberals justify the property right?

John Locke justified the right to property by considering the initial acquisition of the property. Originally, everything belonged to nature, with no human intervention. However this was of no use to humans. They needed to cut down trees to make shelters, to kill animals, and eventually, to clear land for farming. It seems then, that these natural resources passed from being owned by no-one to being owned by an individual. Locke argues that this came

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Are liberty and equality compatible? Max Dalton Entry for Lloyd Davies prize 2011

about when primitive man ‘mixed his Labour’(Locke 1988, Second Treatise, s.27, p.288) with the natural resource, by spending time clearing land etc. When he mixes his resource of energy with the natural resource, he acquires property rights over the whole of the natural resource. An integral part of the property right is that the owner has the right to pass the property, with its rights, to whoever he pleases. In this way, all further owners of the property are also justified. What would happen, though, if a property was stolen? If I own a house that was built 300 years ago with money made from a bank heist, does that mean that I no longer own the house, since the chain of consenting transfer of property is broken before it reaches the original owner? Many objects might be in such a state. If they are not properly owned, does this weaken the property rights that all can claim, since we are unsure which properties are truly owned? It seems to me that this is a flaw. Nozick adds another counter argument: ‘If I own a can of tomato juice and spill it in the sea so that its molecules (made radioactive, so that I can check this) mingle evenly throughout the sea, do I thereby come to own the sea, or have I foolishly dissipated my tomato juice?’ (Nozick 1977, p.175) In other words, how does mixing something I own (labour) with something unowned (land, say), give me rights over the land?

Another possible argument is that, by working on the land, I add value to it, for instance by making it produce more grain. I am then entitled to this added value. However this seems to fail – I might be entitled to the grain harvest (the added value), but this is not a reason for me to also become the owner of the land. What if I improved the soil on the land, making it more profitable for some years? Does that give me some rights over it? It might do for a time, but if the soil became barren again, my improvements seem to ‘wear off’, along with my claim to the land. This temporary right over the land is not pleasing if such a right is to establish ownership for all future generations.

Locke also argues that it is necessary to have private property to survive – we must be allowed to take from nature what we need. However again, this seems to allow us to take fruit, hunt game, but not to permanently take something that we don’t plan to consume (e.g. land). To use a Marxist turn of phrase, we can take the products of nature, but not the means of production. This is not necessary for our survival.

Nozick’s own attempt to justify property depends on a hypothetical contract. He argues that private property has led to developments which have improved the lives of everyone. This means that everyone is now better off because of private property, so even the poorest would consent to property, given a choice, because it benefits them. This seems unlikely. After all, there are many (particularly in less developed economies) who have seen very few if any of the benefits of private ownership, and might be jealous of the spoils of the rich. Also, Nozick assumes that people would accept the situation if it benefits them, regardless of other (e.g. moral) considerations. Perhaps the solution is to create a form of contract, whereby individuals consent to relinquish their original claim over property. It is not enough to suppose such a contract back in the mists of time, since this would allow our ancestors to make decisions which affect us. The contract must be continually renewed. In this way, property rights cease to be absolute, but can still be justified under certain conditions.

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Are liberty and equality compatible? Max Dalton Entry for Lloyd Davies prize 2011

Hillel Steiner presents one contractual view, which uses a veto system to explain how individuals could acquire the responsibility to respect property rights. By a series of examples he shows that even if an initial distribution of property is fair, it soon becomes unfair, as new generations appear in need of property. His solution is that each individual should at all times hold a veto over how the property is distributed. If this veto is used, the system is re- negotiated until everyone is happy. Steiner seems to think that, if the initial distribution is fairly equitable and designed to remain so, this veto will rarely be used. Since each individual has the right to a veto, they implicitly agree with the current property distribution, contractually justifying property rights. Steiner says ‘economic decision making and individual liberty are indissolubly linked through the institution of property rights. Each person’s possession of a veto on the initial allocation of property eliminates the possibility of his being exploited, by minimizing the number of non-contractual enforcible obligations to which he is subject.’ (Steiner 2008, p.569) This veto system justifies property, but it is not an absolute justification – it depends on the time and the place. It is interesting to note that from purely libertarian premises, we have reached a theory that embodies much egalitarianism – for the distribution to be accepted it is likely to have egalitarian elements.

However, Steiner fails to distinguish between rights over products and rights over modes of production. If modes of production are also to be distributed privately, as Steiner seems to indicate, I think it is unlikely that distributions can remain constant. If someone managed to produce more efficiently, and became richer through effort, it is likely that a veto would be used to attempt to get a slice of this wealth. This makes property inherently unstable, and acts as a disincentive to produce, which would ultimately disadvantage society. Another problem is that Steiner’s system seems to be designed for a society small enough for everyone to attend negotiations around one table. It also assumes that people can down tools to discuss property distribution at a moment’s notice. In my view, participatory democracy is a more efficient way of justifying property. When no-one has a veto, but each has a vote, it seems to me that we can create a system that is stable yet responsive. For instance, voting for left wing parties expresses dissatisfaction with the property distribution and a desire for a more egalitarian redistribution. Desires can be expressed through voting and translated into practice. I acknowledge that this is not a fully contractual arrangement, as minorities could be forced to put up with a property system they disagree with. But then liberals argue that the state is justified by a similar contract, which is similarly inexplicit. Sometimes one must sacrifice a theory for practicality. At any rate, participatory democracy is a step in the right direction.

Christopher John Nock argues that the solution is to make an option of withdrawal from the free market. ‘Despite participatory practices and the good will these might be expected to

foster in the attitudes of many participants, some potential dissidents might remain unmoved by arguments seeking to persuade them to accept the prevailing order. With no withdrawal option, such people would remain dissatisfied and might be coercively bound by

arrangements they did not wish to sanction. Nevertheless, liberal egalitarian proposals

do

seem to offer a better means of responding to the dilemmas posed by the equal liberty principle than Nozick’s laissez-faire proposals.’(Nock 1992, p.694) Participatory practices go

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Are liberty and equality compatible? Max Dalton Entry for Lloyd Davies prize 2011

some way to justifying property distribution. However Nock argues for a more radical approach – there should be an explicit ‘withdrawal option’. This could take the form of a welfare safety net which would allow people who disagree with the distribution of property an ‘equal and as good’ option. This would be equivalent to the access they might have had to natural resources before the advent of private property. Those who continued to work in the market would consciously accept the distribution of property, through benefitting from it. This would justify property rights. In order to ensure that a majority of people don’t leave the system, it is likely that redistributive measures would be introduced. So Nock’s theory is unlikely to justify absolute property rights, but it could justify private property limited by egalitarian taxes. Once again, following libertarianism to its logical conclusions has led us to a more egalitarian view.

Another possible (limited) justification for private property rights comes from utilitarian thinking. Overall, having private property has meant that people strive to earn more. They form enterprises and companies, work hard, and innovate. Over time, this has led to a standard of living much better than existed before private property. Property rights are thus justified because they produce the greatest happiness for the greatest number. But this right isn’t absolute. It makes sense to the utilitarian to have some redistribution. This is because £1 in the pocket of the poor produces more happiness, by feeding a child, than it would in the pocket of the rich, where it might go towards the next car. The poor get more happiness for their money, due to the law of decreasing marginal utility. Thus, although, in general, private property produces happiness, it also makes sense to introduce some egalitarian taxes, as this creates more happiness than a pure ‘laissez faire’ approach.

As yet, I remain unconvinced by all arguments that could make the right to property a basic liberty. The crushing blow is delivered when we compare property rights to Mill’s classic definition of a liberty. The individual should be unmolested in all that concerns only him. Other things may require state intervention to protect vulnerable parties. In this case, I believe that the right of an individual to property can instead by characterised as an unmerited infringement on other people’s ability to access that property. Thus an individual’s right to property, whilst it might seem self concerning, unfairly affects others. To this extent it seems that a property right is not a liberty, and indeed that redistributive state intervention is necessary to compensate parties not advantaged by private property.

But have I missed the point? What Nozick was really concerned with was the coercive nature of taxation. He was concerned not with the violation of property rights, but with the potential for violation of more serious political rights, such as the right to freedom from arrest. However Nozick himself acknowledges that state coercion is not always a bad thing. It is justified, indeed necessary to protect political liberties and enforce contracts. I would argue that property rights, as described, are comparable with, though less serious than, infringements on personal liberties. Thus to protect the vulnerable, who have been deprived of their original rights of access to property by private ownership, the state is justified in threatening coercive action. This argument is premised merely on liberty. If we argue that we also value equality, the case is strengthened further – state intervention, though an evil, is necessary to promote equality, as well as to reimburse those who no longer have access to

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Are liberty and equality compatible? Max Dalton Entry for Lloyd Davies prize 2011

‘enough and as good’. Thus, if I claim that property rights are not liberty, but the negation of liberty, liberty and equality become compatible, even closely linked.

I believe strongly that to meaningfully reconcile equality and liberty one must use the

definitions preferred by their proponents, not their opponents. When we use these common- sense definitions, the two ideas clash in the area of property rights. If we cannot prove property rights however, there seems to be a strong link between equality and liberty as twin policy goals, in a more meaningful way than is found by tinkering with definitions. Property would become one of the areas that can be infringed by government, to compensate those who naturally don’t own much property.

If we see that ‘property is theft’ (Proudhon 1840) and that originally all men had equal access

to goods, it appears justified for the state to introduce redistributive taxes on the rich who, after all, don’t have any justified claim to their property. However, I don’t think that this argument stretches far enough to justify a communist or socialist government. Instead the argument appears to be for a welfare ‘safety net’. This can be justified by three principles, examined earlier in the essay. Nock argues for a safety net as an ‘enough and as good’ opt- out of market capitalism, whilst retaining a largely capitalist state. Stein argues for a continual contract, backed up by a veto, which he supposes will choose to distribute property in a fair way, because each individual will use their veto to improve their own position. This can more practically be applied through participatory democracy. Finally, a utilitarian view would support some property rights in order to benefit from the gains in productivity and innovation of capitalism. But they would not support this libertarian view too far, because resources in the hands of the poor have a greater utility (due to the law of diminishing returns). All of these theories support capitalism tempered with re-distributive measures.

Liberty and Equality are compatible, I believe. What impact does this compatibility have for the real world? Politicians should not be so bitterly divided, between adherents of the two principles. When taken together, they support a capitalist state with some re-distributive measures. In other words, if we accept both liberty and equality as important goals we should continue much as we are, judging state intervention pragmatically. Unfortunately this doesn’t make for a particularly inspiring party conference speech.

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Are liberty and equality compatible? Max Dalton Entry for Lloyd Davies prize 2011

3,946 words excluding bibliography.

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Locke, J., 1988. Locke: Two Treatises of Government Student edition (Cambridge Texts in the History of Political Thought), Cambridge University Press.

Long, R.T., 2005. Liberty: The Other Equality. Freeman, (October), pp.pp.17-19. Available at: http://fee.org/pdf/the-freeman/0510Long.pdf.

Mill, J.S. edited by H.B.A., 1977. Utilitarianism; Liberty; Considerations on Representative Government; Selections from Auguste Comte and Positivism (Everyman"s Library), Dent.

Nock, C.J., 1992. Equal Freedom and Unequal Property: A Critique of Nozick’s Libertarian Case. Canadian Journal of Political Science, 25(4), pp.677-695. Available at:

http://www.jstor.org/stable/3229683.

Nozick, R., 1977. Anarchy, State and Utopia, Basic Books.

Proudhon, P.J., 1840. What is Property? by P.-J. Proudhon - Project Gutenberg. Available at:

http://www.gutenberg.org/ebooks/360 [Accessed September 1, 2011].

Steiner, H., 2008. Liberty and Equality A. Ripstein, ed. Political Studies, 29(4), pp.555-569. Available at: http://www.blackwell-synergy.com/doi/abs/10.1111/j.1467-

9248.1981.tb01324.x.

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