So if anyone reads this (which is unlikely), and feels that I have misstated libertarian ideas, please keep in mind that I am only a lowly liberal who hasn't read Nozick or Hayek, so this is based mainly on blog posts and discussions.

Over the past few days I have been reading quite a few reviews of Stephen Metcalf's Slate article about Robert Nozick. Some, such as this post from Ordinary Gentlemen, have been insightful in their critiques, while others (I'm looking at you Matt Welch) have failed to even form a coherent argument. The upshot of this discussion is a better understanding of the first principles and initial assumptions of the varied people who blog from a  libertarian viewpoint. Which, I think, highlights the fact that despite the common ground we share on some issues their conflagration of personal property and individual liberty, and its elevation to a principle that cannot be violated takes them too policy extremes that I cannot support.

The main point that Metcalf puts forward in his article is that Nozick's 'Wilt Chamberlain argument' has various debilitating flaws that show the soft foundation of libertarian philosophy. As Metcalf says, 

The Wilt Chamberlain example is designed to corner us—quite cynically, in my view—into moralizing all of them as if they were recompense for a unique talent that gives pleasure; and to tax each of them, and regulate each of them, according to the same principle of radical noninterference suggested by a black ballplayer finally getting his due.

As Mark Thompson at League of Ordinary Gentlemen says (and which seems well argued to me), Metcalf misrepresents the argument that Nozick is making.  Mr Thompson points out that the Chamberlain argument is not claiming what Metcalf, and others, say it is; namely that because it would be unjust to take from someone what is given to them freely because of their own hard work and talent, that all classes of people be subject to this 'radical noninterference'. Rather, Nozick is arguing that not all inequality is unjust, and that even in a system 'designed' to promote justice, such as that envisioned by Rawls, the interference that the state would impose on the individual should be considered unjust in its own right.

The argument that this supports, and which is something of a tenet of libertarian thinking, is that the state, by interposing itself in the economic relationship between consenting adults, causes more harm than good. That is, they believe that there is unjust inequality (wealth derived from extracting rents from the government, or misinforming customers etc.), and that it wouldn't be unethical to fund government through taxes on such activity. But, they would argue, since it is basically impossible to untangle the just from the unjust transactions, the broad brush approach to solving social inequality causes more harm than good by decreasing the initiative of people to engage in mutually (and socially) beneficial transactions. Now Libertarians seems to make this argument at both a philosophical and empirical level. So to bring it back to the debate that got this started, it seems that Nozick is making a philosophical argument, in that 'patterned redistribution' is ethically questionable because it would constitute a 'continuous interference in peoples live' (and he's using an assumption that this interference in ethically unjust).

So the question becomes (for a future lawyer), where does this leave the law? What is the state legally justified in outlawing and/or mandating. From reading some of Nozick's Invariances it seems that he draws the line around what he calls the ethics of respect (and which corresponds to Fullers morality of duty). Which basically translated into non infringement with the lives and property of others, while leaving the higher ethics or morality up to personal discretion. He leaves the higher ethics alone in part because it would be impossible to come up with value judgments that would be applicable across the whole of society, that to say you can't mandate that everyone live according to the Aristotelian ideal. But I think this misses the mark. I would argue that as a society we can agree that there are certain necessary conditions that must be met in order for a person to 'Live the Good Life', such as a child growing up with a roof over their head, some food on the table, access to medical care, and a decent education. It seems to me that Nozick, and libertarians generally, would find a patterned system of redistribution that provided a minimum of support to people who lost the birth lottery by 'stealing' some of the property of those who are most fortunate to be unethical, this is because the state has no right to steal the labor of an individual. It seems to me that they are able to reach this conclusion because they have simultaneously made the liberty interests of the individual the highest value, while equating this liberty with the property of said individual. This leads to what would seem to me to be morally reprehensible positions in certain situations, such that it is unethical to tax the profits of the rich to pay for the healthcare of the poor. The holding of almost any other values, such as that society has an obligation to try to provide its children with a somewhat equal opportunity, changes the terms of the debate to such a degree that discussion of the policies in question cannot take place.

I have always seen individuals and society as having various, and at time competing, values that are used to shape both the individuals and the larger society. The argument that there is only one principle, individual liberty, leads to a society that is paralyzed by competing liberty claims. Almost all that we do has effects on those around us, and the proper functioning of a society is predicated on some sacrifice for the greater good.

So that was longer than I thought, which means I will write about the empirical claims and the problems I see with libertarians when it come to the law in another post.