The Right to Privacy is Tocquevillian, Not Lockean: Why it matters (Molinari Review 1:1)

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Primarily as a result of recent leaks about several large-scale NSA surveillance projects by intelligence contractor Edward Snowden, the debate over the right to privacyhas experienced a new life in American public discourse. Public figures in the pro-privacy movement, such as Glenn Greenwald, Edward Snowden, and Julian Assange,often appeal to Anglo-Saxon liberal rights theory, that is, to a political traditionoriginating with the Levellers in the British Civil War and continuing with John Locke and the American framers, that understands the function of government as that of defending—and refraining from violating—certain legally delineated rights. “Negative” rights like these, exemplified in the American Bill of Rights, are actively infringed through coercion—preventing the publication of controversial writing, prohibiting religious expression, imprisoning citizens or seizing their property without due process—and passively neglected through a failure on the part of the state to prevent coercion by foreign and domestic aggressors. Such rights are intended to protect liberty. Although theright to privacy is often framed by its contemporary defenders as analogous to the former rights, it is telling that the right to privacy receives little explicit mention in the tradition of thought to which they appeal.

A much better context and foundation for the right to privacy, one sometimes also alluded to by the same advocates, is in the French political tradition, particularly in the political philosophies of Alexis de Tocqueville and Michel Foucault. This latter worldview views freedom not primarily as something demarcated by legalistic rights and characterized by the absence of coercion, but rather as something defined by the absence  of the state in the details of life—that is, a lack of state observation and subtle state control. The right to privacy is not fundamentally concerned with the liberty to do what one wants, but with security against observation, possibly even while doing what one wants. I argue that the right to privacy should be understood as freedom from observation, but furthermore, as freedom from accusatory observation. 

Presenting a case for the right to privacy in terms of the intellectual tools provided by this French tradition is advantageous for four closely related reasons. In the first place, such a presentation is more intellectually precise, in that it captures the intuitive repulsion many people feel toward accusatory state observation, as a phenomenon overlapping with but not identical to state coercion. In fact, a political orientation against such state observation in some contexts clashes with a traditional rights-based worldview, because, at least in theory, the more closely the state observes its subjects with an eye to preventing coercion by non-state parties, the more precisely it can protect against rights violations by foreign and domestic aggressors. 

It is true both that the right to privacy can conflict fundamentally with the role ofthe state to precisely enforce just laws, and, as history of twentieth century totalitarianism plainly taught us, that a substantial sphere of privacy is essential to human flourishing. It is precisely this political paradox that gives a mood of unresolvability to the portraits of politics presented by Tocqueville and Foucault. This conflict is nowhere more evident than in the case of citizenship itself: the undocumented immigrant, in contrast to the registered citizen, lives an utterly under-the-radar existence, but cannot safely appeal to the state for protection or enforcement of contracts. To some extent this conflict is also exemplified in the case of government surveillance for anti-terrorism purposes.

Second, framing the argument in this way also illuminates connections between popular opposition to the mass surveillance apparatus and that toward over-policing of government housing projects inhabited by racial minorities, another current controversy which, although not typically spoken of in this way, largely concerns the right to privacy. In this case, I argue, there is not such a stark conflict between rights-enforcement and privacy, because the simple prevention of crimes against person and property would be a much less invasive approach than the currently prevailing law enforcement strategy in these neighborhoods.

Thirdly, such an intellectual packaging of the right to privacy captures an aspect of the experience of oppression by minority groups that is neglected by the traditional rights-based worldview–the experience of the oppressive gaze of the dominant majority and its institutions. Finally, such a presentation touches on a universal human need deserving of political respect which is highlighted in the minority experience: all people need spheres of their lives that are invisible to the state. The commonness and scope of such spaces determines where a society lies on a spectrum between, on the one hand, merely efficient and effective modern government, and on the other, totalitarianism.

This mischaracterization of the right to privacy—that it is a matter merely of the absence of coercion–is not just the mistake of a few recent public figures; it is also established in international law. The United Nations Special Rapporteur, a title given by the U.N. Human Rights Council to individuals mandated to conduct fact-finding missions concerning human rights abuses, conducted a global investigation last year of state mass surveillance systems [1]. The conclusion of the investigation was that such systems as currently operated violate the individual right to privacy, as codified, most importantly, in  the International Covenant on Civil and Political Rights [2]. This is a treaty that Security Council members and many other UN parties signed in 1966, which codifies various “negative” liberties. Both positive and negative liberties concern the ability to live one’s life as one wants, in the traditional liberal sense. But the modifier “negative” indicates that these are rights against coercion, as opposed to “positive” liberties, codified in a separate document called the International Covenant on Economic, Social, and Cultural Rights, which concern entitlements to material resources [3]. In reality, the right to privacy fits neatly into neither of these categories.

The Special Rapporteur’s decision was, for obvious reasons, lauded by American privacy advocates, including The Intercept’s Glenn Greenwald, the well-known civil libertarian journalist and lawyer who acted as Edward Snowden’s media contact for the NSA spying leaks [4]. Snowden, in a different context last year, depicted the right to privacy as a negative right in the same category as freedom of speech and other rights defined in terms of an absence of coercion [5].

But people feel an intuitive repulsion toward being observed in an incriminating way, as something theoretically distinct from being coerced. It is true that state observation often either follows on the coattails of coercion (prisons closely observing the behavior of citizens arrested for non-violent drug offenses), or leads to coercion (the state using information obtained through surveillance to imprison people providing indirect support to ideological enemies of the government). However, coercion and observation are still two different phenomena.

Not all cases of accusatory state observation are at the same time cases of coercion. If the police loiter in or near the lobby of a state-run apartment complex, causing residents to feel that their behavior is constantly being evaluated, this is not in itself coercion against residents, even if such observation may sometimes be accompanied by actual coercion. More generally speaking, not all cases of such objectionable observation, by the state or by non-state actors, are simultaneously coercive. A peeping Tom does not coerce his victims; nor do bigots who gawk at same-sex couples or at individuals of a different race or gender expression. In short, the human need for privacy deserves its own separate treatment in political thinking, because the oppression of observation is different from the oppression of force.

The concept of a right to privacy thus conceived, as distinct from coercion, received its first and most eloquent exposition in several works of the French philosopher and anthropologist of nineteenth century America, Alexis de Tocqueville. Tocqueville’s life straddled the line between the pre-and post-revolutionary worlds; he thus witnessed the transformation of a haphazardly and intermittently regulated feudal society into a modern bureaucratic society, in which efficient, comprehensive, and equally applied law began to become the ideal of politics. Such an ideal is integral to democracy, but as he observed, it also presents the danger of an omnipresent government arising to achieve a precise enforcement of the laws. Tocqueville was a democrat, but a hesitant one; he was aware both of the profound injustices of feudalism and the inevitability of its demise, but also wary of the new dangers presented by modernization, which included the possibility of totalistic observation and control.

In Tocqueville’s view, democratic society places men “shoulder to shoulder, unconnected by any common tie,” thus orienting subjects in a position of vulnerability and isolation before the power of the state [6]. This is in contrast to medieval society, where individuals found their place in socially embedded chains of authority and within a patchwork of substate communities. He argues that the Catholic Church and the aristocracy, in the course of defending their traditional privileges and immunities, prevented the uncontrolled expansion of government power and preserved a general spirit of independence and freedom from the state during the Ancient Regime [7]. He also speaks approvingly of the widespread medieval phenomenon of local self-rule, made possible by the inattentiveness of state authority, in which villagers “held property in common…elected their own officials and governed themselves on democratic lines” [8]. In Tocqueville’s assessment, freedom in medieval society was extralegal, existing in certain scattered contexts as a result of the medieval state’s limited power to enforce laws and the resulting intermittent and scattered presence of the state in society. This is in sharp contrast to what he views as the politically regimented, or what we would call now the totalitarian, nature of revolutionary France.

He foretells the twentieth century phenomenon of totalitarianism, in which the dependence of asocial subjects on the governing bureaucracy rather than on a diversity of substate communities and loyalties worsens until government “remove[s] from [its subjects’ concerns] entirely the bother of thinking and the troubles of their life” [9]. To Tocqueville, totalitarianism is an extreme to which a society with a modern bureaucratic democracy is prone, as opposed to its political opposite—an insight as prescient as it is counterintuitive to modern democrats.

Totalitarianism is an extreme of what Yale political scientist James C. Scott calls “legibility,” the state-imposed regularity and visibility of people and places that permit the efficient administration of bureaucratic tasks [10]. Phenomena like social security numbers, government identification cards, and numbered streets laid out in grids are all examples of commonplace and often non-harmful instruments of legibility in modern democracies. We might say that state surveillance like that recently exposed involves an excess of legibility. Of course, as the feudal age taught us, there is also such a thing as a deficit of legibility, as oppression and violence can emerge within the gaps in the state’s Visibility.

That the right to privacy tends to lie at the periphery of the state’s ability or willingness to efficiently administer law, perhaps explains why the attempt to delineate the right to privacy has such a confused history in U.S. jurisprudence: it is possible the law may simply be a poor tool for protecting a typically extralegal freedom. This might be better accomplished by trying to lessen the enforcement of existing laws, or by citizen initiative to attain anonymity, through, for instance, the online anonymous communication software, Tor.

But one more certain source of the problem is that there is no explicit guarantee of a right to privacy in the United States Constitution, which itself hints at the inadequacy of the Anglo-Saxon, liberty-oriented political tradition in this respect. In contemporary jurisprudence, the right to privacy is regarded in some contexts as a substantive due process right—a non-procedural liberty that is supposed to be constitutionally protected despite not being enumerated in the Constitution. The modern way of handling the right to privacy both implicitly concedes the absence of a generalized right to privacy in the thoughts of the framers and leaves the right to privacy essentially undefined. Historically, this right has only been artificially inserted through creative constitutional interpretation within the last century, and has been defined, when at all, with some, but not thorough exploration of the separateness of freedom from observation and freedom from coercion.

Pro-privacy American jurisprudence’s earliest attempts implausibly inferred a generalized right to privacy from tenuous analogies to other rights or from the practical requirements of other constitutional rights. Justice Brandeis, before authoring a famous dissenting opinion asserting a right to privacy in Olmstead v. United States in 1928, wrote a paper in which he reasoned that if such a right were to exist, it would have to be theorized as something distinct from a right against physical invasion of person or property, from a right to contract, and from a right to intellectual property [11]. Invasions of privacy, for example, in the case of the unpermitted publication of the contents of another’s diary, do not amount to physical invasions of any sort. Violations of the right to privacy do not necessarily amount to a breach of economic agreement, because a party who has not consented to a confidentiality agreement may in various circumstances nevertheless come into possession of the personal information of another. This point is even more relevant in the age of the Internet and of metadata, where networks of third-party engagements are common and complex. And the right to privacy is not an intellectual property right, because it prohibits not the unauthorized profiteering off of already publicized information, but its publication in the first place.

But the insightfulness of this analysis extends mostly to his explication of what the right to privacy is not. When it came to describing the right itself, he remarked only that it ought to fall in the same legal category as already existing legal rights against psychological and emotional damage, and that it philosophically amounts to what he vaguely but not objectionably terms a “right of an inviolate personality,” and a “right tobe left alone.” He reproduced these elements of this description in his dissenting opinion in Olmstead, a case concerning the constitutionality of unwarranted wiretapping of conversations on a private telephone [12].

Jurisprudential progress for the right to privacy achieved a major milestone later with Katz v. United States in 1967, which ruled that the Fourth Amendment protected an individual whose arrest was based upon incriminating evidence obtained through an unwarranted wiretap of a public telephone [13]. In Katz, U.S. jurisprudence made one significant and correct philosophical development concerning the right to privacy. It recognized that it does not necessarily have anything to do with the right to property: invasions of privacy can take place against a person directly. The majority ruled that the right to privacy, in the specific context of the Fourth Amendment, protects not just invasions of external property, as a narrow reading of the Fourth Amendment might suggest, but personal invasions as well, as in the case of the government listening to a phone conversation without a state agent entering the booth. However, the Supreme Court denied in this case the existence of any generalized constitutional right to privacy.

The 1965 ruling in Griswold v. Connecticut, a case concerning the right to purchase and use contraception, established nothing new philosophically about the right to privacy. It propounded the legal doctrine, largely abandoned since then by the courts, that because certain amendments to the Constitution require individual privacy as “peripheral” or “penumbral” rights that in various situations enable and support those specifically enumerated rights, these amendments generate “zones of privacy” that in the aggregate amount to an unwritten right to privacy in the Constitution, applying to cases outside of those particular penumbras [14]. What is much more philosophically interesting for our purposes is the legal scholar Robert Bork’s well-known criticism of that ruling at the time.

In the course of his criticism of the concept of “penumbral” privacy rights, Bork notes that because these proposed “penumbras” protect rights such as those guaranteed by the First Amendment, which concern both private and public behavior, a right to privacy does not adequately characterize the emanating buffer zone supposed to couch these rights. What would better characterize these buffer zones, he argued, is a general right “to be free of regulation by law.” It is impossible, he argues, that the Constitution would stipulate, through law, a right to be free of law [15].

His criticism of the particular legal argumentation in question in favor of a constitutional right to privacy, is partly correct. The penumbral right to privacy does not apply to speech, such as that of a politician, designed to publicize the speaker. But not all public behavior should be so disqualified from privacy considerations. What of protests on public property? The decision to broadcast one’s views to a citizen audience on a sidewalk or in a public park, does not amount to an invitation to police scrutiny, in person or remotely, of a demonstration as a whole or of individual participants. Constitutionality aside, there is an important philosophical difference between, on the one hand, invited observation by a citizen audience, whether that audience is in agreement or in opposition, and on the other hand, the accusatory supervision of police.

And, to stray a bit from Bork’s focus, disqualification of the non-penumbral application of right to privacy in opposition to the incriminating surveillance of minority neighborhoods by police, would surely exhibit a class bias. Many of the petty drug offenses committed in and around public housing projects are identical to behavior confined to the domestic sphere of wealthy citizens who can afford to conceal this behavior in a space traditionally regarded as private.

Bork’s accusation that advocacy of the right to privacy suggests a claim to the legitimacy of an unaccountable extra-legal sphere, is actually a perceptive characterization of the freedom in question, but should be complemented by specifying that this includes freedom from both state investigation and state coercion. A claim to the right to freedom from accusatory observation amounts to a claim to a right to some significant degree of unaccountability to public institutions. The pro-privacy argument in the case of NSA data collection is that the state should be less involved in sorting out the acceptable from the unacceptable in private online behavior. Surveillance should be specifically targeted rather than generalized, initiated solely in the context of particular, warranted investigations into violent crime as opposed to being characterized by the systematic scanning of bulk-collected data. This would make the behavior of the general population of internet users more opaque to accusatory observers.

The real problem with heavy-handed mass surveillance, a lesson that we learned mostly from the extreme example of twentieth century totalitarian societies, is that being observed by the state too much of the time is an intimidating and oppressive experience. This experience will be familiar to anybody who has ever felt uncomfortable as a result of the implicitly incriminating presence of police pacing in one’s neighborhood or at the periphery of peaceful public assembly. It is also familiar to all citizens who are aware that the government is constantly viewing easily accessible information about their online behavior. That various means of electronic communication in modern democracies are subject to secret and arbitrary review by state authorities with vaguely defined intelligence goals is a likely cause of some anxiety, fear, and paranoia directed toward the public and private institutions that cooperate in mass surveillance.

As a separate but also important matter, surveillance also stifles more traditional liberties by encouraging withdrawal from the expression and communication of controversial political ideas, out of wariness over the possibility of state investigation. The Washington Post, in reviewing the NSA data collections leaked to the paper by Edward Snowden, found that the NSA had collected private exchanges, irrelevant to anti-terrorism, that discussed “love and heartbreak, illicit sexual liaisons, mental-health crises, political and religious conversions, financial anxieties and disappointed hopes,” among non-targets whose communications happened to have been captured in the surveillance dragnet [16]. Plausibly, citizens who use private means of internet communication—e-mail, Skype, instant messaging—to speak to one another candidly about matters of personal, political, and metaphysical significance, feel comfortable doing so under the assumption that their communications are invisible to political authorities scanning for suspicious behavior. The likelihood of such a response to NSA spying on internet activity is supported by early research at MIT, suggesting that, since the Snowden leaks, internet users have become less likely to Google keywords that they believe are likely to get them into the trouble with the United States government [17]. A recent Pew Research poll shows that a large minority of American adults have changed their internet habits to protect their privacy from the NSA [18]. A 2014 Human Rights Watch report recounted that journalists at many prominent news outlets feel a reticence unprecedented in recent history about reporting on issues of national security, intelligence or law enforcement. Journalists covering these issues have commonly radically altered professional practices to avoid government observation and report that the specter of government prosecution of whistleblowers has made securing sources much more difficult in recent years [19].

The tendency of state surveillance to violate a different sort of freedom than that against coercion has been noted by Greenwald and alluded to in a different way by Assange. Although Greenwald’s public advocacy typically portrays the right to privacy as a constitutional right and groups it with negative rights secured in the Constitution, he does not always depict it in this way. To an audience at a book tour, Greenwald presented the case for Tocquevillean privacy, remarking, “We all need places where we can go to explore without the judgmental eyes of other people being cast upon us. Only in a realm where we’re not being watched can we really test the limits of who we want to be. It’s really in the private realm where dissent, creativity and personal exploration lie” [20]. In other words, to use Scott’s terminology, we need spheres of our lives that are “illegible” to the state. Citing Orwell, Assange also elaborates the unique status of the right to privacy:

It is not, as we are asked to believe, that privacy is inherently valuable. It is not. The real reason lies in the calculus of power: the destruction of privacy widens the existing power imbalance between the ruling factions and everyone else, leaving “the outlook for subject peoples and oppressed classes,” as Orwell wrote, “still more hopeless.” [21]

Public insights like these from the movement’s most prominent figures indicate that the pro-privacy movement could go two ways: it might retain a legalistic, anti-coercion based worldview, or it might focus more on the positive, creative side of a life more opaque to state observation.

 An ideological shift toward an anti-observation worldview would enable a connection in political advocacy between criticism of the unwieldy mass surveillance state and the over-policing of state housing projects. The latter is conducted in pursuit of a panoply of minor criminal infractions and has resulted in a police culture of frequent bad arrests and intrusive over-enforcement of trivial laws, largely pertaining to drug use. One cause of popular opposition to New York’s Stop-and-Frisk policy, and to policies like it in other American cities, is surely the large-scale coercion entailed. However, part of the controversy is also over the police omnipresence itself, and the oppressive effect of being made constantly aware of the watchful eyes of the suspicious state. The burden of such constant surveillance is exacerbated in some cities by the existence of “stop-and-identify” laws, which, in stipulating penalties for not displaying government identification to a police officer, combine the oppression of force with the oppression of surveillance [22].

The police need to be less present in certain minority urban neighborhoods. Police intervention should be focused on preventing serious crimes of violence against person and property. The same minority neighborhoods notorious for constant police surveillance are also well-known for low homicide-clearance rates. A Scripps study found that clearance rates in some cities with poor black enclaves are as low as 20, 30, or 40%, significantly lower than the clearance rate for cases with white victims [23]. This finding suggests that the accusatory gaze of the state upon these urban neighborhoods primarily serves to aid the punishment of petty, non-violent offenses, many related to drug use. And the distrust that this forced comprehensive lifestyle transparency breeds may in fact hinder investigations of more serious crimes by fostering a culture of non-cooperation with police. In this case, respect for privacy does not conflict significantly  with the enforcement of negative rights, because it is likely that a strictly rights-based law enforcement approach would be less intrusive and more effective.

Generally speaking, the incriminating gaze of the dominant majority is a perpetual issue for any marginalized minority group. The twentieth century French philosopher Michel Foucault saw that in the modern world, this accusatory watchfulness is the essence of minority groups’ experience of oppression. Foucault noticed that the dominant majority marginalizes certain groups through the subtle act of creating labels and classifications for people, imposing identities on the basis of behavior and characteristics that would otherwise be incidental [24]. Oppressed groups can find themselves trapped in these categories, appealing to them even in attempting to oppose their own marginalization—people who are attracted to others of the same sex advocate for “gay rights,” even though before the gaze of modern psychiatry, there was no such identity as “homosexual” that one was pressured to wear as an alienating badge. Such is the condition of other groups marginalized on the basis of, for instance, gender or race categories invented to serve the powerful.

Foucault believed that such manipulation through observation by dominant institutions is, more generally, the condition of the modern individual, and that the modern phenomenon of state observation is closely related to the state’s task of enforcing rights. He noticed, like Tocqueville, that the unregulated freedom that arose intermittently in the medieval world as a result of the gaps in the overlapping and uncoordinated enforcement of various localities was replaced in the modern world by a much more precise and detailed manner of state control demanded by the task of enforcing individual rights, particularly, he thought, the right to property. Ironically, he argued, our very conception of ourselves as autonomous individuals is a creature of modern law, which aspires to monitor and control the behavior of all individual subjects, as opposed to monitoring in a less comprehensive way the conduct of families, fiefdoms or localities as a whole [25]. Foucault also believed that surveillance was poorly captured by a legalistic model, and tended to persist in the form of a “discursive” power, maintained through complex networks of interaction that obscured the distinction between oppressed and oppressor [26]. Operating within the framework of Foucaultian sociology, the modern field of surveillance studies, and, most prominently, David Lyon, has done important work establishing implications of modern surveillance beyond the mere violation of privacy, concerning various intricate means of social control [27]. 

In demonstration of Tocqueville and Foucault’s analysis regarding the conflict between privacy and negative rights, defenders of NSA surveillance tend to frame its purpose as that of defending individual citizens’ rights against coercion by terrorists. In doing so, they invoke a calculus of security of rights, a conflict between the state’s responsibility to abstain from actively violating rights and to adhere to its duty to defend its subjects’ rights against domestic and foreign aggressors. This presents a conundrum that a privacy advocate with the traditional negative rights worldview can not easily resolve in a way that does justice to our intuitive repulsion toward constant and intrusive observation. Contemporary privacy advocates often try to resolve this dilemma by arguing that state surveillance, in fact, does not catch terrorists, and thus does not serve our rights against coercion. This is certainly an arguable position—as former senior intelligence official and NSA whistleblower William Binney has contended, too much intelligence can be a hindrance because it gives the state too much information to sort through [28]. The call for more targeted surveillance is also a compelling evasion of this conflict of values. And as we further noted, surveillance may stifle the traditional negative right of freedom of expression, suggesting that the right to privacy may be compatible with negative liberty in the manner of what the Supreme Court has called a “penumbral right.” But even if an intrusive surveillance measure happens also to yield some anti-terrorism gains, it can still be an instance of the oppression of observation. Justice in cases like these is not a matter of balancing state violations and protections of rights against coercion, but of balancing our freedom from observation and our right against coercion by non-state parties.

To avoid the pointless difficulty of balancing a vague calculus of negative rights, privacy advocates would do well to invoke Tocquevillean freedom. This particular intellectual contextualization of the right to privacy clarifies the true depth of this debate. The debate is not fundamentally about locating the correct proportion between the defense of people’s rights through protection from non-state coercion and through abstention from state coercion. Rather, this debate is one instance of a larger and less easily resolvable divergence at the heart of the clash between statist and libertarian worldviews—a disagreement over whether we should have lives of monitored, controlled predictability, or more loosely regulated lives of spontaneous and sometimes risky creativity.

In short, framing the right to privacy as a problem of incriminating supervision, rather than simply a problem of coercion, is not just more intellectually precise and compelling. Such an understanding also has the potential to illuminate our common cause, across race, gender, and other categories, in the struggle for freedom to think, create, and  interact in unwatched spaces, whether those spaces be city neighborhoods or online communications. Important connections can be drawn between those extreme cases of oppressive observation of minority groups and the general condition of the individual at the hands of the modern bureaucratic state, in both totalitarian and democratic forms. Framing the right to privacy in this way also broaches a deeper inquiry regarding the possibility of a philosophical framework for systematically ordering the value of negative rights and of privacy.

[1] “UN Report on Human Rights and Terrorism – The Intercept.” The Intercept. 15 Oct. 2014. Web. 11 May 2015. <https://firstlook.org/theintercept/document/2014/10/15/un-report-human-rights- terrorism/>.

[2] “International Covenant on Civil and Political Rights.” United Nations-Office of the High Commissioner for Human Rights. Web. 11 May 2015. <http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx>.

[3] “International Covenant on Economic, Social and Cultural Rights.” United Nations- Office of the High Commissioner for Human Rights. Web. 11 May 2015. <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx>.

[4] Greenwald, Glenn. “UN Report Finds Mass Surveillance Violates International Treaties and Privacy Rights – The Intercept.” The Intercept. 15 Oct. 2014. Web. 11 May 2015. <https://firstlook.org/theintercept/2014/10/15/un-investigator-report-condemns-mass- surveillance/>

[5] “‘Hostile to Privacy’: Snowden Urges Internet Users to Get Rid of Dropbox.” RT News. 12 Oct. 2014. Web. 11 May 2015. <http://rt.com/news/195244-snowden-rid- dropbox-privacy/>.

[6] De Tocqueville, Alexis. Democracy in America: And Two Essays on America. Trans. Gerald Bevan. (London: Penguin, 2003). Volume 2, Part 2, Chapter 4.

[7] De Tocqueville, Alexis. The Old Regime and the Revolution. Trans John Bonner. (Mineola: Courier Corporation, 2012). Book 1, Chapter 2.

[8] Ibid., Book 1, Chapter 3

[9] De Tocqueville, Alexis. Democracy in America: And Two Essays on America. Trans. Gerald Bevan. (London: Penguin, 2003). Volume 2, Part 4, Chapter 6.

[10] Scott, James C. Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed. (New Haven: Yale UP, 1998). 2.

[11] Warren, Samuel and Louis Brandeis. “The Right to Privacy.” Harvard Law Review 4.5 (1890): 193-220. JSTOR. The Harvard Law Review Association. Web. 20 July 2015. <http://www.jstor.org/stable/1321160>.

[12] Olmstead v. United States, 277 U. S. 438 (1928)

[13] Katz v. United States, 389 U. S. 347 (1967)

[14] Griswold v. Connecticut, 381 U. S. 479 (1965)

[15] Bork,  Robert.  The  Tempting  of  America:  The  Political  Seduction  of  the  Law.  (New   York:  Simon  and  Schuster,  1990).  95-­‐100.  

[16] Gellman, Barton, Julie Tate, and Ashkan Soltani. “In NSA-intercepted Data, Those Not Targeted Far Outnumber the Foreigners Who Are.” Washington Post. The Washington Post, 5 July 2014. Web. 11 May 2015. <http://www.washingtonpost.com/world/national-security/in-nsa-intercepted-data-those- not-targeted-far-outnumber-the-foreigners-who-are/2014/07/05/8139adf8-045a-11e4- 8572-4b1b969b6322_story.html>

[17] Marthews, Alex and Catherine Tucker. “Government Surveillance and Internet Search Behavior,” unpublished paper. March 24, 2014, <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2412564 (accessed July 9, 2014)>.

[18] Rainie, Lee and Mary Madden. “Americans’ Privacy Strategies Post-Snowden.” Pew Research Centers Internet American Life Project RSS. Pew Research Center, 16 Mar. 2015. Web. 18 May 2015. <http://www.pewinternet.org/2015/03/16/Americans-Privacy- Strategies-Post-Snowden/>.

[19] “With Liberty to Monitor All: How Large-Scale US Surveillance Is Harming Journalism, Law, and American Democracy.” Human Rights Watch. 28 July 2014. Web. 11 May 2015. <http://www.hrw.org/sites/default/files/reports/usnsa0714_ForUPload_0.pdf>.

[20] Miles, Kathleen. “Glenn Greenwald On Why Privacy Is Vital, Even If You ‘Have Nothing To Hide'” The Huffington Post. TheHuffingtonPost.com, 19 Dec. 2014. Web. 11 May 2015. <http://www.huffingtonpost.com/2014/06/20/glenn-greenwald- privacy_n_5509704.html>.

[21] Assange, Julian. “Who Should Own the Internet?” The New York Times. The New York Times, 3 Dec. 2014. Web. 11 May 2015. <http://www.nytimes.com/2014/12/04/opinion/julian-assange-on-living-in-a- surveillance-society.html?_r=0>.

[22] Riggs, Mike. “Yes, Police Can Arrest You for Failing to Identify Yourself.” City Lab -From The Atlantic. 25 Feb. 2014. Web. 11 May 2015. <http://www.citylab.com/crime/2014/02/yes-police-can-arrest-you-refusing-identify- yourself/8485/>.

[23] Hargrove, Thomas. “Murder Mysteries.” Scripps Howard News Service. 2010. Web. 20 July 2015. <http://projects.scrippsnews.com/magazine/murder-mysteries/>.

[24] Foucault, Michel. The History of Sexuality, Vol 1. Trans. Robert Hurley, (New York: Pantheon Books, 1978). p. 48.

[25] Foucault, Michel. Discipline and Punish. New York: Random House: 1977. pp 82- 87.

[26] Foucault, Michel. The History of Sexuality, Vol 1. Trans. Robert Hurley, (New York: Pantheon Books, 1978). p. 11, 48.  

[27] Lyon,  David.  The  Electronic  Eye:  The  Rise  of  Surveillance  Society.  (Minneapolis:  U   of  Minnesota,  1994).  179-­‐198.  

[28] Angwin, Julia. “NSA Struggles to Make Sense of Flood of Surveillance Data.” WSJ. Wall Street Journal, 25 Dec. 2013. Web. 11 May 2015.

  

 

The Levellers as Left Libertarians

Original here

The seemingly unbridgeable ideological gap in America between economic libertarians, on the one hand, and on the other, those who advocate various manners and degrees of redistribution of wealth can be rationally resolved through an understanding of the significance of the concepts of property rights and redistributive justice to those who advocated them in 1640’s England, in the course of their struggle against a dominant and economically parasitic aristocracy. Sometimes, in order to resolve a certain public moral disagreement in a way which satisfies the concerns of all contending parties it is necessary to recall the common history and historical struggles of the parties in disagreement; so that common and often inexplicit moral concerns can be identified on the basis of which common conclusions about political and economic policy can be deduced. Sometimes, in other words, people in dispute on moral and political matters may actually be fighting for the same thing without realizing it.

The left libertarian ideal of a voluntaristic society composed of small property holders is of common historical significance to, and captures and harmonizes the concerns of, contending parties in this particular modern moral debate. And such harmonization is in fact central to the purpose and spirit of left libertarianism, which seeks to establish that the value of economic liberty, which is conventionally considered a “conservative” or “right-wing” ideal, is not just reconcilable with but actually inseparable from egalitarian economic ideals typically associated with “leftism”.

Identifying the origins of ideas is never a precise task, but an origin for the moral concepts and values at play in the modern public disagreement between libertarians and statist redistributionists can plausibly be located in the English Civil War, in the dispute between the Levellers and the Diggers over the proper revolutionary response to domination by the feudal-monarchial ruling class. Mid-17th century England was a time in which many of the controversies that animate modern politics, and particularly those surrounding property rights and redistributive justice, first materialized and were first explored. Later western political philosophy concerning the question of property, such as Locke and Marx, can, despite the generally unrefined and imprecise nature of the writings of these English revolutionary public philosophers, be fairly characterized as an attempt to resolve the questions broached by the English Revolutionaries of the 1640’s.

It was a time when lingering feudal property relations clashed with the beginnings of capitalist property relations, in a manner which inspired comparisons between common and private property – which are less obvious in a modern era where common ownership is a rare and mostly forgotten experience. The transition of property relations also stimulated analyses of various problems related to poverty and redistribution, problems which motivated, on account of their radical novelty, an inventiveness in moral solutions to which later thought and political practice are indebted. We are especially indebted because our modern economic situation, in which smaller property-holders and the propertyless are trodden upon by a corporatist ruling class which has a foot in both the political and the economic realms and which relies for its wealth on state-granted privilege, is analogous to the situation of the English revolutionaries, who faced a propertied aristocratic ruling class with the same general characteristics. Thus, the ideas of the English Revolutionaries are, as a philosophical matter, especially relevant to our current experience of class warfare; they were also, as a matter of history, crucially and lastingly influential upon American political culture. In short, the Levellers argued for an egalitarian distribution of private property and the Diggers for the abolition of the institution of private property itself. Let us now recall the history of the English revolutionary movement, in order to draw lessons relevant to modern politics from each of these two groups’ teachings and from a close examination of their points of difference. But despite the fact that these revolutionary camps are arguably the ancestors of the bitterly antagonistic modern ideological camps of libertarianism and communism, respectively, these two English revolutionary groups were actually inspired by the experience of the same oppressions and faced a common enemy, in the above-mentioned ruling class of the time.

To historians, the English Civil War is remembered typically as a conflict which called into question both the proper relationship between the Crown and the Parliament and the proper constitution and political role of the Church in English society. But it was also, as is convincingly argued by the Marxist historian Christopher Hill in several of his historical writings, a revolt of the lower orders of society, represented in the military, against the clerical and landowning masters of a fading feudal era. Between Charles’ accession to the throne in 1625 and the start of the Civil War in 1642, Charles I angered the Parliament primarily by, on the one hand, having a Catholic wife and instituting church reforms that made the state church more Catholic in appearance, and on the other, alternatively dissolving the Parliament, ignoring its demands, and reluctantly summoning and partially cooperating with it when his foreign adventures grew too expensive to fund in any other way. Eventually, conflict erupted between Crown and Parliament, ending with Charles’ execution in 1649. Parliamentary victory was followed by a decade of what can fairly accurately be described as military dictatorship, under Oliver Cromwell and, for a brief time, his son Richard.

During the war, Oliver Cromwell had been second-in command, under Sir Thomas Fairfax, of the New Model Army. The latter was formed a few years into the conflict through a re-organization and centralization of existing forces, inspired by a series of military blunders thought to have been an outcome of the disorganization and incompetence of the existing Parliamentary forces. The new army differed not only in its organization and efficiency, but also in its composition and ethos. It was comprised primarily of common people, with rank and promotion based upon merit rather than property. It also became a home to many religious radicals, whom Cromwell actively recruited from Eastern England, and many of whom were volunteers who enlisted with idealistic intentions. The New Model Army turned out to be a remarkable forum for the free discussion of ideas, and these ideas, due to the class makeup of the army and to the radical political leanings of the religious rebels who filled its ranks, tended to be revolutionary in nature opposing the political, economic, and religious status quo.

Another interesting feature of this army was that, in contrast to modern society, which is largely indifferent to the moral debates taking place within an ivory tower academia, in the culture of the army, and in the radical movement generally, philosophy and social and political life were wedded. Radical philosophers were the patron thinkers of the New Model Army’s soldiers, and the ideas written by the leading Leveller philosophers, Richard Overton, William Walwyn, John Lilburne, and Thomas Prince, permeated army discussions. Those in the army who were inspired by Leveller writings came to these philosophers’ defense on numerous cases of the latter’s persecution by the authorities–by, for example, petitioning for their release when the latter were imprisoned for criticizing what they perceived as the authoritarian nature of the Council of State, formed as a replacement for the King’s executive authority after his execution [1]. These philosophers could not have been more directly involved in public life, or more practically engaged with the common people’s struggle with which the former were philosophically preoccupied.

Radicals on the issue of property all agreed in locating society’s oppressors in the ruling aristocracy, which parasitically lived idle and comfortable existences off of the labor, land-rent, and taxes of the public; but these radicals did not articulate all of the same criticisms of the aristocracy, nor propose identical remedies to the subjugation of the non-Aristocratic English. Both sought an end to the economic oppression mentioned, but while the former identified the primary economic injustice which they were faced in existing patterns of private property-holding and seemed to believe that the dissemination of the benefits of private property ownership among the poor was the proper means to mitigating poverty, the latter viewed private property itself as an inevitable source of widespread deprivation and servitude, and sought a solution in communism. The Levellers directly inspired both Locke and the Jeffersonian Republicans, and those who advocated the abolition of private property articulated beliefs that were later central to socialist thought, the latter of which gives central place, specifically in its account of primitive accumulation and of the alienation of labor, to an analysis of the historical expropriation of peasants at the emergence of capitalism, a phenomenon which, as we will discuss, is at the heart of the English Revolutionaries’ experience of changing property relations.

The Levellers represented individuals inhabiting something of a range of social position. In the first place, they spoke for the yeoman farmer, a phenomenon which emerged at the twilight of feudalism and the emergence of markets. As Hill recounts, the English civil war occurred against the backdrop of the beginning of the dissolution of feudal relations, in which all individuals had been bound by basically immutable economic hierarchies based upon land-ownership, and in which land, rather than movable wealth, was as such the basis of all economic activity. Various isolated local communities had for centuries produced largely for their own consumption rather than for the purpose of domestic or international trade, and exchanged goods for labor within localities; but between the Fifteenth and Seventeenth Centuries, farmers came to produce more and more for a national, and with the discovery of the New World, an international market, and money, typically made of silver from the Americas, came to supplant the old method of exchanging labor for necessities. Accompanying the introduction of money relations were the beginnings of a division of labor, as localities sought profitability in national and international exchange instead of self-sufficiency, as well as the emergence a market for land, of which the new yeoman farmer took advantage. The yeoman farmer was a sort of capitalist farmer, who had progressed in his economic practice beyond traditional feudal relations, and who was commonly either a former feudal lord who had adapted to new economic circumstances or an enterprising peasant who had acquired his own property [2].

But while some peasants found a somewhat more independent economic role in the new yeoman social stratum, others were made landless, forced to beg and placed at the mercy of the draconian Poor Laws of the era; the Levellers also found followers among and spoke in defense of this demographic. Landlessness was affected by a combination of trends and events. In the first place, rents charged by lords, which had remained stable for centuries, began to fluctuate, partially on account of changes in the supply of land accompanying the sale of formerly monastic land, pricing many peasants out of land they had held for generations. A further cause of increased landlessness was the encroachment of aristocratic landowners upon peasant “copyholds,” traditional feudal peasant landholdings of uncertain legal status in changing times, and whose legal protection was denied by the same legislation, the Act of 1660, which abolished various aristocratic obligations traditionally attached to landowning privileged in feudal times [3]. Many other peasant land possessions which were held in common, were “enclosed” for purposes of efficiency, with titles to particular pieces of land granted to particular landowners, who were not typically the current peasant occupants of common land, but rather tended to be acquisitive large landowners. In addition to all this, during the Reformation of sixteenth century, monastic lands were confiscated, a process which involved both evicting large numbers of peasant tenants and eliminating in monastic wealth the largest source of charitable support for the poor, leaving the landless not just without the benefits of ownership but also without material necessities, and furthermore victim to the cruelty typically visited upon vagrants by the state [2]. Moreover, the greater historical context of all this injustice is that the class of feudal landlords at the time were descendants of the Norman invaders, led by William the Conqueror, who had by force, half a millennium earlier, imposed feudal hierarchy on the current peasants’ ancestors and expropriated their labor. The descendants of the conquerors were now, besides enjoying privileges traceable to the historical injustice mentioned, using the state to seek their own advantage at the expense of England’s poor, during the course of disruptive economic changes that threatened the comfort of both peasants and landlords dependent on a land-based economy. In the context of the interaction between these various trends, questions pertaining to entitlement to land appropriated from the earth or acquired through exchange, as well as questions regarding the legitimacy and relative virtues of common and private property, demanded asking but were terribly complicated to answer on account of the novelty of these issues.

The Leveller movement can plausibly be said to have begun shortly after the life-long radical John Lilburne resigned from his position as Major in the army, in protest of institutional religious intolerance. His political activity immediately following his departure from the army, caused the House of Lords to imprison him, which motivated mass protests on his behalf. Around the same time, radical liberals Richard Overton and William Walwyn published “A Remonstrance of many thousand citizens“, a radical tract which called for, among other things, an end to the Merchant Adventurer’s Comapany’s monopoly on foreign trade [1]. The latter was one of a number of state-imposed monopolies, which were sold to a few merchants, and the sales of which primarily enriched a small group of court aristocrats. State-granted monopolies had the effect of frustrating the economic activity of producers of various sizes and of a diversity of commodities, and of degrading the standard of living of the poor by raising the prices of essential goods [2]. Understandably, these monopolies were thoroughly despised by everyone but the small number of individuals among the merchant and landowning classes who benefited from them; and they were criticized frequently by both Levellers and Diggers.

And it was primarily this that the Levellers and Diggers had in common in their views: they both criticized the parasitism of the state and the old aristocracy upon the poor as well as their arbitrary cruelty toward the latter. The Levellers targeted not only the monopolies but also state-employed aristocrats for maintaining high salaries at the expense of the poor, accusing them of “the highest oppression, theft, and murder in the world, thus to rob poor people…to maintain their pomp, superfluities, and debauchery” (Legall Fundementall Liberties) [4]. They also frequently protested the imprisonment of landless debtors and beggars, and the imposition of taxes and tithes upon the general public (Level Petition of 1648) [5]. They also at times, as we will discuss, demanded the distribution of wealth to the landless.

The Diggers, or “True Levellers,” also criticized the ruling aristocracy’s parasitism upon and cruelty toward the poor through governmental means, such as through the institution of monopolies and the domination of Stuart government and manipulation of legal procedure, by the aristocracy. But the Diggers offered further criticisms of a distinctly proto-socialist flavor, targeting the concentration of wealth in the hands of the few at the expense of the labor and material deprivation of the propertyless many. In fact, it seems accurate to say that, while the Landless found advocates in the original Leveller philosophers and a home in the Leveller movement, the Diggers were exclusively concerned with the plight of the landless, and not with that of the small property owner. But, as we will see, the Diggers’ neglect of the concerns of the small property holder was apparently not motivated by belief in the intrinsic evil of private property, but rather by a pessimism, which I will later argue against, regarding the practical results of the institution of private property.

Even before the Digger Movement officially emerged in 1649, with Gerrard Winstanley’s proclamation of his communist beliefs, and with he and his followers’ cultivation, in defiance of large landowners, of public lands and communistic distribution of their product, distinctly communistic ideas regarding property were voiced from within elements of the Leveller movement. One pamphlet in particular, an anonymous piece from 1648 titled “Light Shining in Buckinghamshire“, written before the official emergence of the Diggers [6], condemns the institution of private property, on the basis of the observation that vast inequality, between the excessively propertied few and the propertyless many, as well as the servitude of the latter to the former, tends to accompany the institution of private property. Like all political radicals of the time, the author expresses his grievances in Biblical terms:

The creature man was priveleged with being Lord over other inferior creatures, but not over his own kinde; for all men a like being priveleged by birth, so all men were to enjoy the creatures alike without propertie one more than the other, all men by the grant of God are a like free, and every man individuall, that is to say, no man was to Lord or command over his own kind: neither to enclose the creatures to his own use, to the impoverishing of his neighbors…but man folling his own sensualitie became a dvourer of the creatures, and an incloser, not content that another should enjoy the same privelege as himself, but incloseth all from his Brother, so that all the Land, Trees, Beasts, Fish Fowle, are enclosed into a few mercinary hands; and all the rest deprived and made their slaves…[7]

The author of this Leveller pamphlet calls for the abolition of private property, and, in its place, an egalitarian distribution of wealth–“a just portion for each man to live, so that none need to begge or steale for want, but everyone may live comfortably.” He also, as Marx, Oppenheimer, and many others later would, traces the rise of this inequality, not to the interplay between natural human differences and the dynamics of voluntary acquisition and exchange of private property, but rather to historical violence and theft, by the Norman invaders against traditional peasant occupants. Common to Leveller and Digger writings is, in a pre-Marxian application of Marx’s general historical theory of primitive accumulation to the case of England in particular, a condemnation of Norman domination and of the original violence and theft to which then current unequal property arrangements were traceable. Interestingly, this pre-Winstanley communist pamphlet also seems to articulate something similar to the socialist theory of surplus value. The author posits that inevitably resulting from the establishment of private property is, not just widespread propertylessness, but also an unjust form of servitude of the propertyless to the rich, whereby the latter live idly off of the fruit of the labor of the former: “ye rich men…God will visit you for all your oppressions; you live on other men’s labors, and give them their bran to eat, extorting extreme rents and taxes on your fellow creatures.”

Winstanley, in a pamphlet titled “The True Levellers Standard Advanced“, similarly claims that inequality, between the excessively propertied and the propertyless, as well as the servitude of the masses to the idle rich, are inevitable results of the establishment of private property. He posits a dichotomy between the “Earth [being] the peculier Interest of Lords and Landlords” and being a “Common Treasury of relief for all.” And he criticizes an agrarian version of wage-slavery: “He that works for another, either for Wages, or to pay [landowners] Rent, works unrighteously, and still lifts up the Curse”; the only alternative, he says, is for all men to “work and eat together, making the Earth a Common Treasury.” He comes close to stating that private property is intrinsically immoral as opposed to it being immoral by virtue of its tendency to engender poverty or economic servitude; but every remark resembling the former claim, such as those asserting that the Bible commands common ownership, seems to be immediately followed or preceded by a claim that there is an empirical connection between the existence of private property and the above-stated results of the institution [8]. That is, it is not clear in the letter of the text, as with the previous text, whether he believes that, if, hypothetically, private property could somehow be equitably instituted so as to avoid the typically resultant widespread propertylessness and economic servitude, that the institution would be morally good or permissible. Perhaps he does not address this theoretical possibility because he does not consider such a state of affairs to be a practical possibility, and thus worth addressing. But it is precisely the practical possibility of such universal private ownership which is envisioned in the Jeffersonian ideal of a republic of small property-holders, and in a more radical form, in left-libertarianism; we will shortly examine the practicability as well as the justice of such an arrangement of private ownership.

But even if Digger writings do not, as philosophical precision would require, clarify whether private property would be justifiable were it possible for it to be widely enjoyed, it is clear that their moral evaluation of private property is crucially influenced by their observation of gross material inequality in the England of their time. A reading of the Digger condemnation of private property which is informed, as is proper, by a knowledge of the socio-historical context of Digger writings, must acknowledge the fundamental importance of the above-stated theory of economic causation, to the Diggers’ negative moral evaluation of private property. This context is, to repeat, one in which private property is, primarily as the combined result of historical violence and theft, and of continuous coercion of the poor by the rich through the apparatus of government, the privilege of the view, and maintained by those few with the accompanying cost of the material deprivation and servitude of England’s denizens.

But despite the fact the Levellers write in the same context, share the same enemies, and are alike concerned about the plight of the landless, they, contrary to the Diggers, defend the institution of private property, and they do so in a manner which is philosophically supportive of the modern ideal of a republic of small property-holders, and furthermore, I argue, the ideal of left-libertarian market-based anarchism. Their arguments in favor of private property seem to be, in the first place, positive in nature–that is, they defend private property on the basis of the benefits it confers upon the individual owner or on society as a whole; this is in contrast to the Lockean/Nozickean defense of private property, according to which private property is to be respected because a certain set of holdings has come to exist through, and come to be inviolable on account of, a seamless historical progression from a legitimate original acquisition of unowned Earth through a series of voluntary exchanges. Secondly, the Leveller arguments seem to be made with egalitarian, while not communistic, intention–that is, with the implied aim of, not abolishing private property, but diffusing the benefits of private ownership among many hands, including, importantly, into the possession of the propertyless many at the time of Leveller activism. The crucial difference between the Levellers and the Diggers, I argue, does not concern the question of whether the institution of private property is in theory just or valuable, but rather the question of whether private property in practice is inevitably associated with inequality and with the propertylessness and deprivation of the many. The Levellers seem to believe that equality of economic result, and, most importantly, the equal distribution of the privilege of private ownership, is compatible with the institution of private property.

Largely because, as mentioned, communism was somewhat common among the devotees of Levellerism in the army, the intellectual leaders of the movement often found it necessary to address the accusation that they themselves were communists. They did so, most of the time, by vociferously denying their intention to abolish private property, and accordingly enumerating the virtues of the institution. Lilburne, for instance, defends private property on several grounds:

In my opinion and judgment, the deceit of levelling of property…is so ridiculous and foolish an opinion, as no man of brains, reason or ingenuity, can be imagined such a sot as to maintain such a principle, because it would, if practised, destroy not only any industry in the world, but raze the very foundation of generation, and of subsistence or being of one man by another. For as for industry and valour by which the societies of mankind are maintained and preserved, who will take pains for that which when he hath gotten is not his own, but must be equally shared in, by every lazy, simple, dronish sot? or who will fight for that, wherein he hath no interest, but such as must subject to the will and pleasure of another, yea of every coward and base low-spirited fellow, that in his sitting still must share in common with a valiant man in all his brave noble achievments? The ancient encouragement to men that were to defence their country was this: that they were to hazard their persons for that which was their own, to wit, their own wives, their own children, their own estates. [9]

He argues, first, that private property is justified by the economic benefits it bestows upon society: the expectation that one will be able to keep what one creates through labor motivates an individual to work. Furthermore, he says, private property gives an individual a sense of responsibility for and devotion to his country during wartime, rooted in a sense of personal proprietary responsibility.

That the latter argument refers to military service is significant. This seems to suggest, in the context in which it is written, Lilburne’s belief that the New Model Army’s membership, of which an important component is England’s propertyless, should be given private property, in order to reinforce their fighting spirit with tangible motivation. It is possible that Lilburne was blinded by his elitism to the obvious redistributionist implications of the latter theory pronounced in this passage–that he, in Hill’s words, “assumed the immutability of existing property relations,” [10] despite the fact that his defense of private property logically implies the redistribution of property to the propertyless, or at least enclosure of common property for the benefit of the landless; however, that he did have such an egalitarian intention is suggested not just by the fact that he was well aware that the war being waged against the crown was being fought largely by the propertyless, but by the fact that he was, or at least wished to be, a patron philosopher of precisely these propertyless soldiers.

Even more illuminating and relevant to a study of the roots, in 1640’s England, of the ideal of widespread private ownership, is the Leveller petition of 11 September 1648. This petition, written by the intellectual representatives of the movement, contains several statements interesting for our present purposes: the petition asserts the importance of private property, and particularly of protecting against its infringement by the more powerful members of society; denounces communism; and suggests either undoing recent enclosures or ensuring that these enclosures grant property titles to the poor. The petition commands that Parliament work to make “kings, queens, princes, dukes, earls, lords, and all persons alike liable to every law of the land, made or to be made; that so all persons, even the highest, might fear and stand in awe, and neither violate the public peace nor private right of person and estate.” This defense of private property is obviously not a reaction to beggars stealing from the well-fed, but to wealthy landlords and government officials stealing from the common people, through, for instance, taxes, tithes, and monopolies, all of which are explicitly condemned elsewhere in the petition.

But while the petition commands of the parliament that “you would have bound yourselves and all future parliaments from abolishing propriety, levelling men’s estates or making all things common,” the petition elsewhere criticizes the legal phenomenon of enclosure in practice. As discussed, enclosure tended primarily to benefit large landlords, and typically disenfranchised peasant occupants holding land in common. The petition proposes, alternatively, returning enclosed lands to common ownership by the previous peasant occupants, or enclosing them, but with private property titles granted to these occupants rather than to aristocratic expropriators. Motivating the proposition of these two alternatives as solutions to parasitism and theft by the aristocracy, might be the reasoning that, even if land is not all made private, as would be ideal, it is better that some land be common, to the benefit of the poor, than that all land be private, but to the benefit of a few aristocrats at the expense of the many. Perhaps, rather, the leading Leveller thinkers preferred that some, but not all things be held in common, in deference to particular, long-established local expressions of communal peasant tradition. Important to notice is that these writings are not perfected works of academic philosophy but pamphlets and petitions written by rebels with immediate political goals; these thinkers may have neither consciously and decisively chosen between these two hypothetical solutions in their own minds, let alone explicitly articulated a preference on paper for one or the other.

But the Leveller proposal here of enclosing for the benefit of the poor suggests a sort of private property egalitarianism, that is, advocacy of the dispersal of private property among many hands, an ideal hinted at also, as discussed, in Lilburne’s defense of private property as a motivation for enthusiastic military service. Private property egalitarianism is, in combination with Leveller praises of the institution of private property, further implied by the essentially egalitarian spirit of the writings of pro-private property radical thinkers of the era, according to which the largest landowners of the time were evil and to which, in the words of Richard Overton, “it must be the poor, the simple and mean things of this earth that must confound the mighty and strong.” At the very least, these philosophers demonstrate frequently that they are not interested in defending the private property of the wealthiest members of English society; they are concerned, in part, about the plight of the landless, and the propertied among their supporters were small, yeoman farmers, often former peasants, who worked their own land and earned through labor the produce they consumed or sold. In their role as champions of the small property-holder’s struggle against an economically parasitic state and aristocracy, they began, with novel, if clumsy and ambiguous reasoning and economic proposals, a tradition of idealizing the way of life of the small property holder as well as a vision of a society composed of individuals with small private holdings. Traditionally, this ideal finds expression as the vision of a republic of small property-holders, alluded to in modern American glorification of the “small business owner”; combined with a fuller awareness of the profound and inevitable influence of the state in fostering and exacerbating inequality, the ideal of a society of small property-holders supports market anarchism.

The modern small property holder faces a different kind of aristocracy, one comprised of political entrepreneurs with large corporate holdings, who seek protections and enrichments far beyond what a free market would afford them and who do so at the expense of smaller less politically influential property holders. The centralizing tendencies of modern market economies are due only in part to the forces of voluntary exchange and to natural economies of scale; economic centralization in a capitalist context tends to be crucially dependent upon state intervention, and intervention furthermore which is beyond the mere protection of property rights. As such, economic centralization can theoretically be combated in different cases, both by reforms that limit the centralizing tendencies of the market, and by reforms that restrict the involvement of the government in the economy when such involvement intentionally or unintentionally has centralizing affects upon the economy. The most obvious example of the former are laws preventing the consolidation of private monopolies, and perhaps also, in a way, campaign finance regulation to the limited and superficial extent to which such regulation is effective. But there are numerous, and typically less appreciated sources of economic consolidation which are political in origin and which therefore call for minimization through permission of greater freedom from the state in the ownership and exchange of property. In fact, the latter contributors to economic centralization are more prominent, and the realization of an egalitarian distribution of private property requires, at the very least, a greater estrangement between political and economic power; in fact, probably requires, in light of the stubbornly plutocratic character of the modern state, the abolition of government. Let us examine a few political sources of economic centralization, and consider both reformist and anarchistic libertarian changes which might rectify the specific centralizing trends at issue.

Crucial to the development of modern industry, in accordance with the statist method of development which historically happened to occur, was the creation of reliable transportation infrastructure. Even if such state support to economic development were necessary, it is certainly not necessary that such infrastructure be funded out of general revenue, without discriminating in the collection of revenue on the basis of the frequency with which different individuals use this infrastructure. Large national and international corporations, which rely much more heavily on such infrastructure than small local producers, in effect receive a massive subsidy from smaller capitalists, and in doing so, benefit from artificial, politically-induced economies of scale. Reforms might be instituted which internalize transportation costs, either through more extensive toll systems, or through some type of electronic monitoring system, eminently feasible given the modern state of technology, which monitors the weights and itineraries of vehicles frequenting terrestrial public routes and charges accordingly. In fact a regime of private road construction and maintenance, as advocated by Murray Rothbard, would more effectively accomplish the same result. Not only would costs be internalized in this case, but would also generally be smaller, on account of greater efficiency and diverse innovation of private over political economic production.

With the obvious exception of restrictions that prevent the consolidation of private monopolies, most economic regulations have the effect of, to some degree, encouraging larger-scale business models, because economic regulations typically increase either or both startup and operation costs of regulated businesses. Of particular, but certainly not exclusive, concern in this regard in the United States, are licensing regulations. Occupational licensure is a regulatory practice – the textbook justification for which is its necessity for the protection of consumers against dangerous or low quality services. Licensing boards, which are primarily a state-level regulatory phenomenon, are typically lobbied for and established by members of an unlicensed profession, with the undeniable intention of inflating incomes and restricting entry, and are, furthermore, usually staffed by those same people; these boards restrict entry into a profession by criminalizing unlicensed practice and by imposing various requirements upon however many are permitted to apply for licensing, including requisite schooling and fees of various kinds, requirements which are often burdensome or prohibitive. Licensed professions possess distinctly monopolistic characteristics; and the monopolistic restrictions which maintain these professions are responsible for significantly enlarging the costs associated with proprietorship. In the United States, despite the fact that occupational licensure affects roughly one-third of the workforce, it receives relatively little attention in economics textbooks, compared with other regulations affecting labor, such as and wage controls and laws concerning unionization; and the problem of licensure is entirely ignored in public political discussion.

This is despite the additional fact that a large number of such regulations reveal themselves to be so unreasonable and unnecessary as to be comical, such as licensing requirements imposed on floral arrangers and fortune-tellers. Many regulations, such those enforced upon hair stylists or interior designers, are unjustified on account of the fact that incompetent practitioners can do no serious damage, or by the fact that consumers are perfectly capable of determining on their own the quality of the product they receive, even if consumers are not skilled enough to perform the service for themselves. Some other licensing regulations, while neither obviously absurd nor unnecessary, nevertheless do not stand up to cost-benefit analysis from a consumer’s point of view. In any case, this is a thoroughly neglected feature of American regulatory culture, which needs to be subjected at least to reform, and, for best results, replaced by total voluntarism. Monopolistic collusion between organized private economic parties and the state, whereby regulatory barriers such as licensing and capitalization requirements are instituted with the effect and often the intention of artificially restricting competition, is to some degree unavoidable so long as a state exists which can be so manipulated by organized or powerful economic actors. In a market anarchist society, there would of course be no mandatory licensing, although there would probably be various private sources of certification of and rating for products.

Of further interest are regulations pertaining to street vending. Street vending—that is, the sale of goods on public property, often through a temporary or mobile structure, is a common and largely unregulated phenomenon in many less developed economic environments, such as Beijing and Mexico City. In the more precisely regulated economic environments of developed nations, street vending is widely prohibited and strictly and usually arbitrarily regulated where it is not prohibited. This is largely at the urging of immobile business owners who sell the same or substitutable goods and thus have an interest in eliminating competition, and at the pressure of various powerful economic actors seeking to maintain a bourgeois aesthetic in the urban environment surrounding their place of operation which is incompatible with the street vending ambiance. These latter interests have a stronger political influence on account of their greater wealth and greater tax contributions; vendors, by contrast, are always poorly organized, if at all, for purposes of defending themselves against unfair policing and regulatory practices, and against political maneuvers by wealthier and more educated economic competitors. In the United States, law firms of both libertarian and leftist inclination have in recent years taken an interest in this area of public interest law. Closer academic economic attention to the street economy, as well as the establishment of efficient, consistent, fair, and ideally permissive regulatory regimes for economic activity on public property, deserve to become more urgent priorities in industrialized nations. In an anarchist society, of course, there would be no “public” property to speak of, but there would plausibly be some common property, established by convention or habit; and there would be no state through the influence and manipulation of which immobile property holders could bully such public vendors. Also possible is that private ownership of land would be much more widespread, thus making mobile vending less common or necessary.

And further examples abound. Large corporations contribute significantly to national economic productivity and to government revenue, and corporate eminences tend to occupy the same social circles as regulators and politicians and to serve as crucial contacts for the latter’s career purposes. For all of these reasons, politics unsurprisingly is characterized by numerous particular favoritist gestures toward large corporations, aside from the general systemic phenomena noted above. And regulation generally has the effect of restricting productive capabilities to larger firms, which can afford the costs and manage the legal hoop-jumping that often comes with being regulated. Only through the abolition of the state can the Leveller dream, central to the American tradition and to contemporary American discourse, of an equitable distribution of the privilege of private ownership, be reliably and substantially realized.

Notes:

[1] Quoted in Hoile, David. The Levellers: Libertarian Radicalism and the English Civil War. http://clichesofpolitics.com/Levellers.htm

[2] Hill, Christopher. “English Revolution of 1640.” Marxists.org. http:// www.marxists.org/archive/hill-christopher/english-revolution/

[3] Hill, Christopher. The Century of Revolution. p 147. Taylor and Francis Group, 1980.

[4] Lilburne, John. “Legall Fundamentall Liberties.” Online Library of Liberty. http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2183&chapter=201117&layout=html&Itemid=27

[5] Leveller Petition of 1648. Online Library of Liberty. http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2183&chapter=201116&layout=html&Itemid=27

[6] Hill, Chrisopher. The World Turned Upside Down: Radical Ideas During the English Revolution. Penguin Books, 1995. Pg 117—Hill notes the initial indistinguishability of the Levellers and the Diggers, and the uncertain authorship of the “Light Shining in Buckinghamshire” pamphlet.

[7] “Light Shining in Buckinghamshire”. Marxists.org. http://www.marxists.org/history/england/english-revolution/light-shining.htm

[8] “The True Levellers Standard Advanced: Or, The State of Community Opened, and Presented to the Sons of Men.” Marxists.org. http://www.marxists.org/ reference/archive/winstanley/1649/levellers-standard.htm

[9] Quoted in Robertson, D.B. The Religious Foundations of Leveller Democracy (New York: Kings Crown Press, 1951), p.87.

[10] Hill, Christopher. The English Revolution 1640.

Happiness and Individuality in Mill (Pharmakon 3:3)

Pharmakon

John Stuart Mill intends to make a utilitarian case for individual freedom. Mill’s antipaternalism is a component of his argument for individual freedom, and is justified in large part by his arguments for individual freedom in general. But reviewing his anti-paternalism as well his paternalistic exception to the Harm Principle in the case of voluntary slavery, brings to light a tension between two competing types of utilitarianism in his political philosophy, hedonistic utilitarianism and objectivist utilitarianism, both of which can be used to justify the freedom granted by the Harm Principle. The objectivist utilitarian strand in his argument holds individuality to be Pharmakon Journal of Philosophy: 3rd Issue 4 intrinsically valuable, while his hedonism presents the subjective experience of pleasure as the ultimate value to which all other values are instrumental. The objectivist utilitarianism hidden in Mill’s argument for liberty serves as a better tool for justifying his voluntary slave exception as well as a more powerful argument for liberal freedom.

Mill states that the ultimate source of all “moral obligation,” and by derivation, all norms of justice, is the Greatest Happiness Principle (185). This principle holds that happiness, defined as pleasure and the avoidance of pain, is “the ultimate end, with reference to and for the sake of which all other things are desirable.” Nothing can be desired or valued for any reason other than its being in itself pleasurable, or a means to satisfaction of further pleasures. Moral principles cannot have any ultimate justification other than the promotion of happiness, because happiness (i.e. pleasure) is the only thing that is intrinsically good.

Principles of justice, Mill says, belong to a subcategory of moral principles: principles of justice stipulate those moral obligations for which there is a corresponding right in some particular person. “Right” is defined as a claim by an individual that society is required to defend, a claim whose legitimacy is derived from the fact that its universalization as a moral imperative is productive of general utility (220-221). Mill’s Harm Principle, if we assume he is consistently applying the happiness-as-ultimate-value rule, must derive its sole and ultimate justification in such a way, because the Harm Principle is a principle of justice. The principle states that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others (14)”, delineating both a moral obligation on the part of each individual member of society not to harm other individuals, and a corresponding right of each individual not to be harmed. This principle implies liberty, that is, the freedom to “pursue our own good in our own way” within the bounds of rights, rights understood as protections against interpersonal harm (17). As long as one’s actions do not harm others, they remain within the domain of liberty.

Mill’s anti-paternalism is a subset of his Harm Principle. Let paternalism be defined as “the assumption of sovereignty by society over the actions of an individual member, with the intended purpose of furthering the happiness of the subjected party.” The articulation of the Harm Principle previously mentioned is immediately followed by the statement that the individual’s “own good, either physical or moral, is not sufficient warrant” for the exercise of power by one individual over another, or by all of society against an individual (4). It is important to note though, that logically, the Harm Principle must prohibit not just the use of force when its end is the happiness of the coerced individual, but also in non-paternalistic cases where the end is the happiness of the coercer or of a third party.

Upon reaching this point, we should expect to find a fundamentally hedonistic utilitarian justification for the Harm Principle and its corollary, the anti-paternalism principle, both of these being principles of justice, both of which Mill believes necessarily have a utilitarian basis. And indeed much of his defense of liberty is a substantiation of his utilitarian claim that “mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest (18).“ An elaboration of this statement that plays a prominent role in his book is the argument that liberty is the necessary condition for diversity in ways of life, which in turn is necessary for a trial-and-error process that improves individuals and societies over time.

The individual, as well as society, is fallible in its moral judgment, and thus requires for the discovery of what is valuable (that is, conducive to happiness) the opportunity to compare various ways of life with each other in order to learn what is valuable and worthless in each life experiment, and emulating or converting the former into customs. Because all things, including ways of life and customs, are valued instrumentally for their tendency to generate happiness, Mill means in the above argument that individual freedom allows for a learning process that helps us improve our ability to achieve happiness on an individual and social level. Following this line of argument, paternalism can Pharmakon Journal of Philosophy: 3rd Issue 5 be shown to be wrong because the imposition of a mode of action upon a subject with the intention of improving his lot, prevents him from contributing his unique experiences (both failures and successes) to the wisdom of society regarding the achievement of utility. In other words, paternalism, as well as non-paternalistic violations of individual liberty, inhibit the progress of individuals and society toward greater happiness.

He also argues paternalism is wrong because a given individual tends to be better at securing his own happiness than any one else is at securing his happiness. This is true both because the individual has a greater motivation to secure his own happiness than anyone else, and because he is more knowledgeable about his individual situation and needs than anyone else; anyone else will inevitably rely on “general presumptions, which may be altogether wrong, and even if right, are as likely as not to misapplied to individual cases” (98). The truth of the latter claim is most evident when we consider that the primary initiator of paternalistic intervention is the centralized state, which intervenes by necessity on the basis of highly standardized information and thus ignores particularity to some degree. Putting this point together with the previous utilitarian argument, we can see that what Mill is saying is that freedom tends to produce utility for the individual who enjoys it, and in those cases when the individual, on account of his fallibility, fails to use his freedom to maximize his own happiness, his mistakes are a social good, increasing the wisdom and thus the happiness of society. The second part of that argument is expressed eloquently in negative form by Herbert Spencer when he says that “the ultimate effect of shielding men from the effects of folly is to fill the world with fools” (Spencer 354).

Considering his fundamental Happiness Principle as well as the two-part utilitarian antipaternalist argument just mentioned, we must conclude that his voluntary slavery exception to the Harm Principle is without foundation. He argues that an individual should not be permitted to voluntarily submit to a slave master:

His voluntary choice is evidence that what he so chooses is desirable, or at the least endurable, to him, and his good is on the whole best provided for by allowing him to take his own means of pursuing it. But by selling himself for a slave, he abdicates his liberty; he forgoes any future use of it beyond that single act. He therefore defeats, in his own case, the very purpose which is the justification of allowing him to dispose of himself. (133)

In other words, voluntary slavery is impermissible because the purpose of liberty is to permit the individual to pursue happiness; using one’s liberty to surrender one’s liberty, and thus the necessary means to happiness, defeats the essentially utilitarian purpose of liberty.

But in light of the claim previously made that liberty, even in failing to secure the happiness of the individual exercising liberty (which it is bound to occur on account of human fallibility), can contribute to the happiness of society, his justification for prohibiting voluntary slavery makes little sense. The voluntary slave sacrifices utility for himself, but in doing so contributes to the wisdom of society, impressing on or reminding his fellow men of the truth that sacrificing liberty is not a prudent means to achieving happiness. The voluntary slave produces utility for all members of society, and the widespread utility generated by his slavery probably far outweighs whatever utility he sacrificed in voluntarily signing away his future freedom.

In fact, an essential part of Mill’s utilitarianism, his belief that the value of happiness is neutral with respect to persons, strongly supports this utilitarian argument in favor of permitting the martyrdom of the voluntary slave for the benefit of society. Mill states:

The happiness which forms the utilitarian standard of what is right in conduct, is not the agent’s own happiness, but that of all concerned. As between his own happiness and that of others, utilitarianism requires him to be as strictly impartial as a disinterested and benevolent spectator. (174)

With this in mind, Mill justifies martyrdom in general with an argument very similar to the utilitarian justification for voluntary slave contracts just given: “all honor those who can abnegate to themselves the personal enjoyment of life, when by such renunciation they contribute worthily to increase the amount of happiness in the world” (172).

Showing that Mill’s grounds for defending individual liberty justify slavery is almost a reductio ad absurdum, and seems at the least to decrease the potency of his defense of liberty. So far though, we have only examined the case against voluntary slavery stated in hedonistic utilitarian terms, that is, solely in terms of pleasure and pain. But there is some ambiguity in Mill regarding his approach to utilitarianism, that may allow us to read him as objectivist rather than hedonistic, and to apply this element in Mill to the task of justifying more adequately the voluntary slavery exception. Ideally, we would want to do this without belying his distinct preference for anti-paternalism.

In chapter three of On Liberty, he seems also to make the case for a non-hedonistic utilitarianism. What he calls “individuality” is presented as something intrinsically as well as instrumentally valuable, rather than merely valuable as a means to pleasure. That this idea is present in Mill is suggested by the title of this chapter, according to which individuality is an “element of” and not a means to well-being.

His individuality has two intimately related components. First, possessing individuality means cultivating a unique and well-defined character. A person possessing individuality thus understood, attains “the highest and most harmonious development of his powers into a complete and consistent whole [Mill quoting Humboldt]”– he “makes his desires and impulses his own,” so that they are “the expression of his own nature” (77). Secondly, he defines individuality as the development of distinctly human faculties–“the qualities which are the distinctive endowment of a human being…the human faculties of perception, judgment, discriminative feeling, mental activity, and even moral preference” (75). These faculties are only put to use and thus trained and developed, in acting freely, as opposed to acting reflexively according to the dictates of culture or in complying with the coercion of the state. When one does the latter, one is no more than a “sheep,” in the sense that one is nonautonomous and indistinguishable from other individuals in conformist obedience (87).

Putting these two ideas together, we can say that individuality is the cultivation of one’s distinctly human faculties toward the end of perfecting a unique and autonomous self. Mill defends individuality thus defined, partly in instrumental terms. Individuality manifests itself in the aggregate as a diversity of ways of life, which is a utilitarian benefit for reasons already explained. Going into more detail on this point, Mill identifies the spirit of liberty with progress because conditions of individual freedom, especially from cultural pressures to conform, permit the proliferation of eccentric geniuses who make transformative contributions to culture:

There is always need of persons not only to discover new truths, and point out when what were once truths are true no longer, but also to commence new practices, and set the example of more enlightened conduct, and better taste and sense in human life. (82)

On the other hand, statements like this one seem to suggest that individuality is valuable independently of its utility: “it is not by wearing down into uniformity all that is individual in Pharmakon Journal of Philosophy: 3rd Issue 7 themselves, but by cultivating it and calling it forth, within the limits imposed by the rights and interests of others, that human beings become a noble and beautiful object of contemplation.” The “nobility” and “beauty” of man seem to refer to the inherent value of his individuality. Mill bemoans the fact that popular opinion does not recognize “individual spontaneity” as having any “intrinsic worth” (73). The Harm Principle, which is to say liberty, may be justifiable not just by reference to the Greatest Happiness Principle, but also by reference to what we might call the Greatest Individuality Principle, which would command the maximization of individuality in society.

What if we apply the Individuality Principle to the dilemma of voluntary slavery? The slave surrenders his individuality in that he relinquishes his ability to judge and act for himself, and thus subjects his individual development to the will of his master. But if individuality is the value is taken into account in the utilitarian calculus, the same problem does not arise as with a hedonistic calculus, in which the disutility to the individual caused by his losing his freedom is outweighed by the utility produced for others who learn from his error. The determination by society regarding whether slavery brings happiness to the voluntary slave requires the observation of actual slavery by society. By contrast, that slavery violates individuality (understood as the combination of autonomy and uniqueness) can be known a priori, because slavery by its very nature involves the exercise of complete sovereignty by one individual over the actions of another, and thus the violation of autonomy, and by association, individuality. Hence, social learning from the voluntary slave’s folly provides no utilitarian benefit in terms of individuality.

An objectivist utilitarianism that seeks to maximize individuality in society provides a stronger defense of liberal freedom than hedonistic utilitarianism. This is so because the former avoids the reductio ad absurdum of permitting slavery in the name of freedom. Ultimately, however, both versions of utilitarianism provide compelling arguments for liberal freedom, in terms of two distinct and intuitively valuable ends, happiness and individuality.

Mill, John Stuart. On Liberty and Utilitarianism. New York: Bantam Dell, 1993.

Spencer, Herbert. Essays: Scientific, Political, and Speculative, Volume 3. New York: D. Appleton and Company, 1904.