Plenty of smart folk have already rebutted (or celebrated) this post at Through the Looking Glass, but I’m gonna arrive late to the ball and jump on the dance floor anyway. Charles Dodgson notes a case in which some silly homeowners association forbade a man from putting a UN flag on his lawn, and then adds:
What’s interesting here is that if the homeowner’s association were a formally constituted government body — say, a zoning board — the homeowner would face pretty much the same set of choices that he does against a private body: fight in court, petition the board to change its policies, or run for a seat on the board and start to work from the inside. And the argument that “he know about the association when he chose to buy his house” applies just as well to a zoning board. The main difference is that, as our libertarian commentators are quick to point out, there are restraints on government, like the first amendment, which do not apply to private bodies and cannot be used to defend against them.
Which all might give some people the feeling that there’s something ever so slightly wrong with libertarianism. (At least if you think it’s supposed be about empowering people and not corporations; if the latter, there’s no problem at all).
A few comments. First, if you’re not a pure consequentialist (and even if you are… but hold that thought), it might well be the case that two actions or situations have precisely the same practical consequences but differ in moral status. The means can matter as much as the end. Let’s say I’m looking for gay sex in a small midwestern town. Maybe I’m unable to satisfy that desire because the local sheriff is keen on making sure no such hanky panky goes down in his town. Most folks, presumably Charles included, will say that’s wrong. On the other hand, maybe I’m unable to find any because there just aren’t any willing gay men in town. The consequence is the same. In terms of “positive freedom,” to use Berlin’s schema, I’m in precisely the same situation of “unfreedom” either way. What’s obvious in this case, though, is that my degree of positive “freedom” here isn’t the only possible way of assessing the two situations. One might at the very least make the case that in the latter instance, my (positive) freedom is being limited by those who are perfectly entitled to restrict it—my prospective partners—whereas in the second, it isn’t.
There would be tension here only if a teleological, maximizing concern for liberty were the only sort it were intelligible to have. Dodgson’s argument appears to cut because, if you accept the premise that being a libertarian means being a positive freedom maximizer, he can make it seem as though the different reaction to the two cases stems from some inexplicable love of corporate domination of the individual that’s contrary to the professed love of freedom. But the premise is wrong. Note also the sly decision to aggregate the individual members of the homeowner’s association to make it look as though it’s a question of preferring “corporations” to “individuals,” rather than the means by which one set of individuals settles a dispute with another.
Bearing that last remark in mind, we can note that even if we are positive freedom maximizers, what’s really bounding my freedom in the “rural town” example above is the correlative freedom of others. Now, a defender of zoning boards might argue that in both flag-banning cases, we’ve got a comparable conflict between a homeowner’s freedom to put up his preferred flag, and the viewshed “freedom” of his neighbors, or something of the sort. But this points to another difference betwen the zoning and homeowners’ association cases.
In the case of zoning, the tradeoff between homeowner autonomy and collective control is made in a blunt numerical way: whenever the board was first constituted, it extended its sway over all the property in a given area by some simple majority vote, probably. In the propertarian case, even if the current owner faces a take-it-or-leave-it choice, the cost to autonomy-loving neighbors at some point had to be borne by the neighbors with a preference for control, in terms of whatever was required to entice an original owner to join in. (If the property was initially owned by a single developer, that may mean the tradeoff between the higher amount control-lovers were willing to pay and the lesser price that could be fetched from autonomy-lovers.) In this method of preference aggregation, intensity of preference also counts.
If you look at a narrow case, many years down the line, it may well be that the choice faced by someone moving into a home bound by contract to an association is the same as that of someone moving into a zoned area. But this elides the very different processes by which the degree of collective control over property was arrived at. The private process should give us far greater confidence that the tradeoff is efficient than the majoritarian one, whether or not it yields the same outcome.
All that said, of course, I’ll concede that I’m basically a liberal first and a libertarian second. If it came to be that all of Australia were owned by Bob, who proceeded to act as monarch, I might well regard that as no better than a conventional government. But again, from a systemic rather than narrowly case-focused perspective, there are good reasons to be more concerned about that conventional state authority than state-mimicing private authority… reasons, in fact, that are intimately related to the core justification for having a state in the first place.
One of the key reasons we want a state to enforce rights and provide other sorts of public goods (well, if you’re a sellout moderate libertarian like I am, anyway) has to do with collective action problems. Transaction costs and the threat of holdouts make it extremely difficult to constrain pollution, fund national defense, or build highway systems on a private, contractual basis. In other words, we need the state precisely because as the size of the relevant community grows, private markets have so much difficulty subjecting all members to a uniform regime of regulation or contribution.
But if that argument is to go through—if, as I believe, we need a state in large part for those reasons—then the argument must cut in the opposite direction when it comes to concerns about the emergence of private tyrannies. In other words, the very feature that makes us prefer the state to the private sector as a provider of national defense is a reason to be far more wary of it in cases like these. We can generalize: when what’s desirable is a high degree of uniformity of behavior or contribution across a large community, seek state solutions. When what’s preferred is narrowly tailored coordination across relatively smaller groups, with a good deal of leeway for local (or individual) variation, prefer private solutions.
One final remark. As I’ve already suggested, part of the force of the argument Dodgson offers comes from a deliberately narrow focus on one case: isn’t it true that in this instance the upshot of the private and the public regime might be the same? Well, surely it might. But we don’t (fortunately) coordinate social behavior by means of ad-hoc, case-by-case judgments. Rather, we consider the total, systemic effects of different rules and institutions, and then place classes of cases under one regime or another. Even the best law, as Hume noted, may occasionally require that a fortune be returned to an undeserving miser. Nevertheless, we recognize that the value of stable, predictable rule sets over time is what’s relevant, not the specific outcomes they yield in each individual case. We prefer private to public rulemaking in most cases, not because it yields greater freedom and happiness in all instances, but because it tends to do so in general.
