Antiwar Libertarians and the Reification of the State:

I hesitated writing my WSJ op-ed, Libertarians and the War because I knew it would provoke a strong reaction from antiwar libertarians, many of whom have been my friends and colleagues for a very long time. That it did. Therefore, I am grateful for the many emails and blog posts thanking me for pointing out that some libertarians disagree with Ron Paul’s stance on the war. But I am even more grateful to the many antiwar libertarians who avoided personal attacks and leveled their critique at what they perceived to be my argument rather than against me personally. And I am pleased that very few read my op-ed as an “attack” on antiwar libertarians generally or Ron Paul in particular. To the contrary, one cannot claim as I did that reasonable libertarians can disagree about the Iraq war and, at the same time, dismiss all antiwar libertarians as unreasonable. And I went to some lengths to specify areas of agreement shared by both libertarian supporters and opponents of the Iraq war.

Where most antiwar critics of my op-ed have gone wrong, however, is in asserting that I was attempting to refute their antiwar stance or was offering a defense of the Iraq war on libertarian grounds. That would have been difficult enough to do in a 1400 word op-ed; but was impossible in the 215 words I devoted to why some libertarians disagree with Ron Paul. It should be no surprise, therefore, that they found these 215 words unpersuasive. My sole aim in my op-ed was to inform readers that they should not assume that Ron Paul speaks for all libertarians because it is an undeniable fact that he does not. I have the emails and blog posts to prove it empirically!

[WARNING TO READERS I: LIKE MY WALL STREET JOURNAL COLUMN, WHAT FOLLOWS IS ALSO NOT A DEFENSE OF THE IRAQ WAR! WHILE MY COLUMN WAS ABOUT "LIBERTARIANS AND THE WAR," THIS POST IS ABOUT "LIBERTARIANISM AND WAR." I am sincerely interested in hearing antiwar libertarians' reactions to the analysis below, about which I am genuinely puzzled and have an open mind.]

While a few emailers and bloggers merely asserted that no “true” libertarian could support the Iraq war, the substantive responses to my actual thesis about libertarians and the war were very few. These arguments came largely from radical (or anarchist) libertarians. I have some genuine questions about the coherence of the radical libertarian antiwar position as it is typically presented — questions that would not apply to the same degree, if at all, to a limited state libertarian or minarchist, the antiwar positions of whom this post does not address.

[WARNING TO READERS II: THE TERM "RADICAL LIBERTARIAN" IS NOT BEING USED IN ANY WAY PEJORATIVELY. I AM MERELY DISTINGUISHING THEM FROM LESS RADICAL LIBERTARIANS. AND THIS IS NOT AN "ATTACK." I AM MERELY RAISING SOME QUESTIONS ABOUT THE COGENCY OF THEIR STANCES ON WAR. AND IF YOU DO NOT HOLD THESE VIEWS, THEN I AM NOT WRITING ABOUT YOU.]

In addition to arguments about the costs and risks of wars in general and/or a particular war, the radical libertarian antiwar position typically includes a strong assertion of the following two propositions:

(1) War is Inherently Unjust. Some radical libertarians are antiwar because they say that war is an inherently unjust activity because it is engaged in by governments who are inherently unjust and illegitimate. Moreover government-waged war — that is, “war” as they define it — unavoidably kills innocent persons and violates their rights. Because the U.S. government is illegitimate (as all governments are), so is the war in Iraq (as all government-waged wars are). Whether or not this argument is correct, standing alone, it is entirely coherent.

(2) Foreign Governments are Sovereign. But judging from their emails and blog posts, many radical libertarians who hold position (1) at the same time adopt a hyper-legalistic view of what constitutes a “war of aggression” in which states are treated as though they were individual persons. In other words, they adopt the Westphalian view of nation states and sovereignty, which was devised to recognize and protect the autonomy of the government rulers “their” territory. When making this argument, these radical libertarians treat foreign governments as “sovereigns” to be respected (by the U.S. government) unless they commit or imminently threaten an act of aggression against the territory of another sovereign. Systematically violating the rights of their own subjects or citizens is a wholly internal domestic matter. In essence, these foreign governments are treated IN PRINCIPLE as the just owners of the territories they govern. And their conduct is to be judged by the same rules of self-defense as are individuals.

As with stance (1), whether or not this argument is correct, standing alone, it is entirely coherent. Indeed, it is the mainstream position of international law, or was the mainstream position before the rise of the concepts of collective governance by international organizations like the United Nations and by the doctrine of internationally recognized “human rights,” both of which significantly qualified and greatly complicated the Westphalian notion of sovereignty. So it is noteworthy that, when assessing the conduct of the United States government, radical libertarians are committed, not to the current views of international law (as qualified by collective governance and human rights), but to an unqualifiedly pure Westphalian theory.

One might say that, when dealing with issues of (American) foreign policy, these libertarians reify (foreign) states and treat them like individuals, with all the natural rights of individuals. Even if you try to rephrase stance (2) in terms of “the People” of the respective states, at its core, I do not see how this stance can be anything other than deeply, expressly and quite literally “nationalist” — which seems an odd stance for a radical libertarian. (More moderate libertarians do not have this problem; they have others, but this post is not about them.)

There may be many prudential reasons for treating states like people in the international arena, and I am not arguing one way or the other on the usefulness of this way of thinking. I am just noting that radical libertarians seem to hold a particularly ardent version of this commitment to nation states when they assess American foreign policy. And that seems to be in tension with their stance (1) in which all governments are illegitimate, and equally so.

In addition to these two tenets, antiwar radical libertarians also typically hold the following two positions:

(3) The illegitimacy of the United Nations. Many of these same antiwar radical libertarians, Ron Paul included, are ardently opposed to the United Nations as any sort of governing or ruling authority. This stance I believe to be not only coherent, but entirely correct. But as I will note below, this separates them from the currently prevailing view of international law and, as a result, they can make no recourse to lack of authorization by the United Nations or even violations of United Nations directives in offering criticisms of American foreign policy.

(4) The existence of fundamental human rights. I doubt that any radical libertarians would question the existence of fundamental “human rights.” (Indeed, that is part of their argument in (1) above that all war is unjust because it violates the rights of innocents.) Again, I think this stance is not only coherent, it is correct. But again, this means that their strong commitment to state sovereignty in stance (2) puts them at odds with today’s international law that recognizes the legitimacy of sometimes protecting human rights by militarily interfering with the sovereignty of a government who has not attacked or threatened to attack another nation state.

That many radical libertarians today simultaneously hold all four of these views is an artifact of the particular evolution of American libertarian thought over the past sixty years, coupled with an undeveloped and inadequate theory of legitimacy. I address the issue of legitimacy in Part I of Restoring the Lost Constitution (you can read a free version of the argument here), which some have mistaken as a repudiation, rather than a refinement, of radical libertarianism, a misunderstanding that stems from many radical libertarians’ failure to appreciate the inadequacy of their conception of legitimacy (but this is beyond the scope of this blog post).

THE PROBLEM(S): While each of these stances, standing alone, is coherent, I have trouble understanding how radical libertarians can coherently hold all four positions. In particular, as already noted, stance (1) seems to be in severe tension with stance (2). How can ALL governments be fundamentally and EQUALLY illegitimate (when assessing the propriety of the U.S. government) but all (foreign) governments–no matter what their form or conduct–must be treated AS A MATTER OF PRINCIPLE (as opposed to prudence) as sovereign owners of their territories whose jurisdictions over “their” people are absolutely inviolable unless they attack the territory controlled by another sovereign government?

There is also seems to be some tension between stance (2), according absolute sovereignty to government rulers of whatever stripe, and stance (4) affirming the fundamental human rights of all persons. This tension only increases when we consider these sovereign governments are wholly illegitimate according to stance (1), but they still cannot be stopped from violating fundamental rights (stance 4) within their sovereign territory by other equally illegitimate but also sovereign governments.

Are these foreign governments illegitimate for some purposes or in some contexts and legitimate in others? If so, what is the source of the latter legitimacy that seems inconsistent with stance (1)? And why then might not the U.S. government be legitimate in some respects while being illegitimate in others? To be clear, I am not asserting any answer to these questions. I am only noting that combining stances (1) and (2) seems to require a more nuanced or complicated view of legitimacy than either stances (1) or (2) standing alone. Any such distinction would greatly complicate many radical libertarians’ implicit theory of legitimacy according to which all governments are EQUALLY illegitimate.

Moreover, I don’t see how radical libertarians can accept stance (3) rejecting entirely the legitimacy of the U.N. and at the same time criticize the action of the U.S. government as “illegal” because it lacks U.N. authorization, or even that it affirmatively violates U.N. resolutions. While I doubt that this sort of criticism is often made by radical libertarians, it is worth noting that they cannot rely on a purely positivist conception of international law to assess the “legality” of U.S. foreign policy because international law today DOES recognize the U.N. and current international law also sometimes views as legitimate military interference with sovereign states to protect fundamental human rights against, for example, genocide. To the extent they want to make claims about the “illegality” of the conduct of the U.S. government, therefore, radical libertarians need to make a NORMATIVE argument on behalf of an PURE Westphalian theory of sovereignty that is no longer recognized by international law, if it ever was. And this is an odd stance for a radical libertarian.

Can a radical libertarian argue that the U.S. government exceeds its powers under the Constitution when it uses its military aggressively? I don’t see how without implicitly conceding some DEGREE of legitimacy to the Constitution. Not only would this violate stance (1) by which all government are equally illegitimate, but many radical libertarians are quite hostile to the Constitution, preferring the Articles of Confederation. But would not that mean legitimating the governments of the separate states in violation of stance (1) in which all government are equally illegitimate? How did state governments get to be legitimate governments according to a radical libertarian?

There is one obvious rejoinder a radical libertarian could make to reconcile logically all four of these positions. If ALL wars waged by states are inherently unjust because states are inherently illegitimate and the rights of innocents are always violated by state wars (stance 1) then, a fortiori, an aggressive war by one state against another must also be unjust (stance 2). In essence, stance 2 is simply collapsed into stance 1 as a special case. Because all wars by states are unjust, this includes aggressive wars against sovereign states.

But this rejoinder won’t work for most radical libertarians because it proves too much. Stance (1) would oppose ALL wars INCLUDING WARS OF SELF-DEFENSE which stance (2) and most radical libertarians purport to allow. Now I realize that some fraction of radical libertarians, whose opinion I respect, believe that there is no such thing as a just war, but most radical libertarians (including most critics of my WSJ op-ed) allow the legitimacy of a defensive war and oppose only wars of aggression. Some antiwar libertarians who oppose the Iraq war as aggression, for example, supported the war in Afghanistan on “self-defense” grounds. And those who didn’t say they would support a war that was truly in self-defense. They simply deny that the war in Iraq fits that description. Yet if they also accept stance (1), as they appear to, then ON THEIR ACCOUNT because a defensive war is waged by an illegitimate government and the rights of innocents were inevitably violated, it too must be opposed.

What if radical libertarians tried to salvage the legitimacy of a just defensive war (and the U.S. Constitution too?), by jettisoning or softening stance (1)? We would then be back to arguing whether a particular war is legitimately an act self-defense, even if it will harm the innocent and even if it is waged by a government. (More on this below.) And to salvage the Constitution the radical libertarian might have to acknowledge that, while all governments may be UNJUST to the extent that they confiscate their income by force and put their competitors out of business by force, some governments are nevertheless more LEGITIMATE than others, and a particular ACTION by a government could be JUST even if the government (qua government) that performs the just action is not. But all this is going to greatly complicate any blanket condemnation of wars waged by governments who may be legitimate to a greater or lesser degree, and some illegitimate altogether and deserving (in principle) of no respect whatsoever, even from other governments.

Perhaps most obviously, it is not clear how radical libertarians can be committed to stance (2) and continue to claim they are radical. Given the nature of government, radical libertarians should be wary of the reification of states as though they were individuals entailed by stance (2). Once stance (2) affirming the sovereignty of states is relaxed or jettisoned altogether, however, analysis of national “self defense” becomes far fuzzier than when we speak of individual self-defense, if for no other reason that persons residing in other “nations” have fundamental human rights that may be violated by those who govern the territory. These innocent persons may justly call upon others to assist them in protecting their rights, and welcome this assistance even at some risks to themselves, and even if it comes from a rival government.

Because of radical libertarians commitment to human rights (stance 4), and their skepticism of the legitimacy of any government (some version of stance 1), any such discussion of self defense should be cautious about relying too heavily on the fine points of a purified version Westphalian international law — or about assessing governments by the specific doctrines that have arisen in civil societies to assess personal defense of self and others. Perhaps these concepts transfer over perfectly, but that cannot be assumed. And they should also avoid any reference to the United Nations (see stance 3) and take into account the human rights (stance 4) of foreigners who are oppressed by “their” governments.

Any such discussion among principled libertarians would be pragmatic, based on an assessment of those policies that tend to advance liberty versus those that tend to retard it (and some antiwar blogger response to my op-ed take exactly this approach), and one’s opinion will vary greatly with one’s beliefs about the facts of a particular situation, as well as the respective natures of the governments involved. And it can also be principled.

But any such discussion will unavoidably be VERY complex. I cannot even begin it here. I can only raise a few simple questions about the coherence of radical libertarians’ antiwar stances. Indeed, this overly long blog post only begins to examine the complexity of libertarianism and war, a HIGHLY under-theorized topic, that merits the attention of radical and moderate libertarians alike.

But for those poor dedicated readers who have gotten this far, perhaps this post will make it easier to appreciate just WHY even radical libertarians can AND DO disagree about the war in Iraq. And maybe also that at least some antiwar libertarians have not completely reconciled their antiwar stances with their libertarianism. Speaking for myself, I know I do not have a fully developed theory of libertarianism and war.