ABSTRACT Title of Dissertation: LIBERTY FOR INDIVIDUALITY Claire Louise Morgan, Doctor of Philosophy, 2004 Dissertation directed by: Professor Stephen L. Elkin, Government & Politics Over the last couple of decades libertarianism has gained a lot of attention and garnered much public support. The movement stands at a critical juncture with a great opportunity before it. It has the option of continuing as it is—as a marginal critique of other mainstream political ideas and institutions, or it can present an alternative, viable individual ideal, together with a positive political and social vision (a new constitutional order or a “good society.”) Assuming such a transformation is appealing to its members, how might a new vision look? This thesis offers one possible vision, and it does so by criticizes existing libertarian visions for their narrow focus on economics and law. David Boaz and Charles Murray have done much to broaden libertarian ideas, but they still fall short of the potential that exists at the heart of libertarianism. Instead, this thesis proposes a richer ideal, one of romantic libertarianism—or individuality--that includes a significant role for culture and self-cultivation. Drawing on the work of Humboldt, J.S. Mill, and the Emersonians, it argues for the self-cultivation of the individual in his most individual—unique—form. The ideal for the libertarian self is supported by a regime theory, sketching out a possible libertarian society that might help to foster such an ideal. This includes a political structure, a legal structure, and a vibrant civil society. For any proposal to be genuinely attractive to libertarians it must be practically possible. The conclusion considers the organization of the current libertarian movement and speculates on reasons why these kinds of ideas have been neglected thus far. Finally, it questions whether such ideas are likely to be adopted in future, given current institutional arrangements and political strategies. LIBERTY FOR INDIVIDUALITY By Claire Louise Morgan Dissertation submitted to the Faculty of the Graduate School of the University of Maryland, College Park, in partial fulfillment of the requirements for the degree of Doctor of Philosophy 2004 Advisory Committee: Professor Stephen L. Elkin, Chair Professor Herman Belz Professor William A. Galston Professor Mark A. Graber Professor Ronald J. Terchek © Copyright by Claire Louise Morgan 2004 ACKNOWLEDGEMENTS Many people have helped me with this project. I would like to thank my supervisor, Stephen L. Elkin, and the rest of my committee. In particular, I am extremely grateful for Ron Terchek’s help, both for his encouragement and extensive comments on the text. In addition, I should like to thank my boss at the Liberty Fund, Douglas den Uyl, for my gainful employment, for his patience, support and encouragement, and for his critical comments on the text. In addition, several other people have encouraged and badgered me over the years that it has taken to complete this project. These include my friends, Matt Thomas, Loren Lomasky, Will Ruger, Hans Eicholz, and Jennifer Thompson, and I am very grateful to them. Lynn Shiver at the Liberty Fund has helped me on numerous occasions with various word processing difficulties, and I would like to thank her. Finally, I am especially grateful to my parents for their patience and encouragement. ii TABLE OF CONTENTS Introduction 1 Chapter 1: Libertarian Political Theory and Varieties of Libertarianism 15 Chapter 2: The Libertarian Self 34 Chapter 3: Politics and Citizenship in a Libertarian Regime 92 Chapter 4: Libertarian Legal Theory and Institutions 134 Chapter 5: Libertarian Communities and Civil Society 167 Conclusion 193 Bibliography 211 iii INTRODUCTION "The future is unknowable but not unimaginable" Ludwig Lachmann1 Why Libertarianism? Fifteen years ago it would have been difficult to imagine a mainstream press publishing not one, but two books on the subject of libertarianism.2 Even after the publication of Nozick's Anarchy, State, and Utopia in 1974 libertarians were largely regarded as purveyors of a strange peripheral jeremiad.3 Yet over the past decade or so libertarianism has gained much ground. Indeed, while not (yet?) mainstream,4 it is now possible to discuss libertarianism seriously within both the academic and public policy 1Ludwig M. Lachmann, "From Mises to Shackle: An Essay on Austrian Economics and the Kaleidic Society." Journal of Economic Literature, (March 1976), 55. 2 David Boaz, Libertarianism, and David Boaz (Ed.), The Libertarian Reader, (New York: Free Press, 1997). 3 In a survey of think-tanks published in 1992, The Economist gave the Cato Institute a full five marks (out of a possible five) for "kookiness," with other scores of 4, 1, 3, and 2 respectively for how far they were considered to be clever, connected, canny, and cushy. "The Good Think-Tank Guide, The Joys of Detached Involvement" The Economist, December 21, 1991-January 3, 1992, 53. 4 Whether it is, in fact, possible or desirable for libertarianism (as an ideology and a political and social movement) to become mainstream is an interesting question in itself—for instance, in relation to the structural constraints of the American regime (including its political, legal and economic institutions of check and balances,) the vagaries of politics (which tend to favor compromise, particularly between the two major political parties that dominate the political landscape,) the psychological attitude of those who support libertarianism (who frequently like to characterize themselves as purists and "revolutionaries," and who would not, therefore, consider themselves as participants in any sort of formal governing structure,) and, as Robert Michels famously noted in Political Parties (Glencoe, IL: Free Press, 1949), the tendencies of democratic political organizations to become oligarchies—the so called “iron law of oligarchy,” thereby giving up it’s own commitment to democratic principles. More recently James Buchanan and other public choice economists have made similar arguments in connection with the potential for the individuals who fight on behalf of freedom outside the state to become self-interested rent seekers once they enter the realm of political power. In short, the question of the extent to which libertarianism may permit itself and its practitioners to go mainstream (or indeed, may be able to go mainstream)--and therefore become part of the system it was established to fight--is an extremely important one, and it will be addressed throughout this thesis. 1 worlds. At a minimum, libertarianism as it currently exists has come to be treated as a significant and useful critique. For instance, as mentioned above, within analytic political philosophy Nozick's response to Rawl's Theory of Justice has come to receive respect. Further, libertarianism and communitarianism are currently invoked as alternatives to, or at least important critiques of, the prevailing liberal-democratic consensus among those who discuss and implement public policy. In terms of recent visibility, there is evidence that libertarian proposals are receiving discussion and support in some policy areas, including tax policy (the flat tax), term limits, social security reform, and school vouchers. Moreover, some commentators believe that underlying political and economic trends indicate a tendency toward less government, suggesting an opportunity in the long term for libertarianism to gain increasing influence.5 Supporters of libertarianism have a chance to gain further power and influence if only they can appeal to a larger audience to gain additional support from the public at large. But this will require a different approach to the issues libertarians typically address from the one they have taken heretofore. Indeed, it may require tackling a different set of issues altogether. The question now is, is libertarianism capable of providing something more than a critique? In theory, is there such a thing as a libertarian vision of a good society, and if so, what is it, or what might it be? In practice, if we venture beyond the critique, to what extent 5 See, for instance, E.J. Dionne, Why Americans Hate Politics, (New York: Simon and Schuster, 1991), chapter 10, and, more recently, “Lexington: The Charge of the Think-tanks,” The Economist, (February 15, 2003), 33. David Boaz, “The Coming Libertarian Age,” Chapter 1, 1-26 in Libertarianism, A Primer (New York: Free Press, 1997). 2 are libertarianism's substantive policies likely to be adopted as viable public policy and social practice,6 and beyond that, as a personal ethical code for living? Indeed, one question that needs to be considered at the outset is does libertarianism require a sort of freedom that "goes all the way down," or only robust political freedom? How much may be said about individual lives beyond the state, and remain consistent with libertarianism? Many of its supporters claim that libertarianism is only a political theory and therefore has nothing to say about morality and other aspects of life in the voluntary sphere. According to this view there is no such thing as a libertarian good society.7 However, the same supporters are all too 6 I introduce the terms, "public policy," and "social practice" here since they connote different but related ideas. "Public policy," as I understand it, refers to a set of actions instituted and financed by the state (or, more properly, the taxpayer). Social practice is a vaguer term that is intended to refer to collective action that occurs within society, but does not involve the state. (Except in so far as the state has secured the political and legal conditions within which people act collectively.) I.e. it refers to collective actions carried out by civil associations rather than public (state) entities. Both concepts will be important to highlight the variations of theory and practice within the libertarian movement, which is itself a coalition of purists, pragmatists, economists, philosophers, and policy analysts, etc. Theoretically, libertarian public policy is to some degree incoherent, if the point of libertarianism is to minimize the role of the state.