Libertarian vs. Libertine
Posted by aogMonday, 28 July 2003 at 08:45 TrackBack Ping URL

In California, a home owner took down his American flag and replaced it with a UN flag. The local home owners association told him to take it down citing its rules. The home owner, in the same misguided state that makes him think the UN is a organization worth supporting, cited the U.S. Constitution against the association. Of course, the Constitution is about the federal government, not home owners associations, but this kind of confusion seems to be common.

This incident illustrates a key difference between libertarianism and libertinism. The former is about choices and the latter about avoiding consquences. The home owner in this case is a libertine, believing that he should be able to do what ever he wants without consquences. He knew about the association when he chose to buy his house, but now that it’s inconvenient he wants to ignore the consequences of that choice. Libertarians want people to be able to chose, but also believe that every choice has consquences, good and bad, that can’t be separated from the ability to make choices.

Comments — Formatting by Textile
pj Monday, 28 July 2003 at 20:12

I would make the same distinction but say that your “libertarians” are my “conservatives.” Or perhaps conservatives are libertarians with a practical streak, who are willing to compromise in order to form successful political coalitions. Either way, the steps from libertine to conservative are steps from fantasy to realism.

Anonymous Wednesday, 06 August 2003 at 08:24

there’s a response to this blog entry here

Take a look, I guess. Talk amongst yourselves.

[Edited to create link]

The Angel of Time Wednesday, 06 August 2003 at 16:48

Let’s see- your argument here seems to be that libertarianism works because people can still be made subject to the will of others on a whim; and this to you is acceptable because it’s being done by a PRIVATE agency. Just goes to show what I’ve been saying for years: Libertarians are either the powerless and blindly idealistic or the powerful and horribly cynical…

aog Wednesday, 06 August 2003 at 21:32


You’re arguing against a strawman that I didn’t support. There is no “whim” involved in this case. The fact that it’s private makes a large difference, because one can bound what a private association can do while there is no limit to government action.

Beyond that, your claim seems to be that no private contract can bind someone tighter than law. That would interesting to argue with your boss when you point out that having to stay in the same office all day is the equivalent of incaceration and that therefore he can’t hold you there. Good luck!

Charles Dodgson;

Your comment is much more interesting. I would dispute that I was “quite pleased” with the outcome. You point about local governments is one reason that I support a minimalist federal government with much more governance pushed down to state and local levels. This allows the maximum amount of choice of law for individuals.

The same argument about limiting private associations to the same limits as government as above applies. Such limitations would effectively replace private contracts with public law, which would hardly be empowering for individuals.

Further, every local government has all the powers of any local government. In contrast, a private home owner’s association can be bounded a very specific set of powers.

I would also point out that home owner associations don’t have the power of eminent domain, which is not a trivial difference.

Curtiss Leung Saturday, 09 August 2003 at 12:13
Regarding your points:
  • Prefering Local to Federal Government:
    Making Law—as an expression of the rights and responsibilities of an individual—a matter of locality is disturbing. Ought one be able to pick up and move to another town in order to beat one’s spouse and children? Also consider that the defense of lynching was couched in the language of states rights. What of that?
  • Private Contracts as Better Guarantees of Inidividual Rights than Public Law:
    The history of private contracts created by homeowners’ associations is similarly disturbing. If you read furher down in the article you cite, you will note cases where a homeowners’ association forced a man to sell his property because of his wife’s age, made a veteran take down the US flag on Flag Day, and brought suit against a woman for the weight of her dog. I imagine lynching might still be prohibited on such communities, but only the grounds that one cannot hang decorations from trees.
  • Limitation of Powers of a Homeowners’ Association relative to a Local Government:
    The examples of homeowners’ associations power mentioned above give the lie to that.

Finally, the argument the example you cite to show that contracts supervene law is specious; incarceration is not the equivalent of the requirement to be at the office during the working day. An employee can usually terminate the job at will, while a prisoner cannot terminate his sentence at whim.

A concern with freedom and responsibility is best served by attending to their substance, not any incidental formalism:

For Forms of Government let fools contest;
Whate’er is best administer’d is best

from Pope, Essay on Man

aog Sunday, 10 August 2003 at 08:37

Local vs. Federal - I think it demonstrates the weakness of your case that you have to reach for a straw man (wife-beating) right off the bat. In a world filled with zoning regulations, taxation, business licensing and primary education monopolies, you think of local law in terms of wife beating?

Continuing in the straw man area, I never claimed that private law guaranteed individual rights. My claim is precisely the other way - a government that guarantees individual rights leads to private law. The only way to prevent private law is to take away individual rights. Your resort to lynching is a double strawman, in that it’s an extreme case unrelated to the previous discussion, and further that the issue here is with private that that is more restrictive than public law. The entire discussion presumes that all public law still applies, so there is no need to prohibit lynching, it is and remains illegal regardless of any private law.

As for the employment analogy, yes one can quit a job at any time, and one can sell one’s house as well. Both involve non-trivial economic costs in order to escape private law.

pj Sunday, 10 August 2003 at 11:24

Curious that these people on the left would make it illegal to establish a self-enforcing commune/kibbutz, which is all these homeowners’ associations are; yet they don’t see the trouble with establishing an all-embracing self-enforcing national government. The homeowners’ association one can easily leave by selling one’s home; the nation is not so easy to leave. Allowing homeowners’ associations allows diverse communities to form; establishing a powerful national government forces all to live according to one norm. How can the lefty view possibly be as good?

Curtiss Leung Sunday, 10 August 2003 at 11:42

In a world filled with zoning regulations, taxation, business licensing and primary education monopolies, you think of local law of terms of wife beating?

This is an evasion, and an awkward one at that. It is a matter of fact that domestic violence—not just wife beating, but also violence against children, and violence against husbands, which may be underreported—is local law unless it involves interstate travel to stalk, commit violence, or violate an order of protection. So what of it? Should this be the case?

Your resort to lynching is a double strawman, in that itís an extreme case unrelated to the previous discussion

Another evasion, this one more awkward than the last. You asserted your preference for a minimal federal state with “much more governance pushed down to state and local levels” in your reply to Charles Dodgson; since lynching was defended in terms of rights reserved to the states, it goes to directly to your stated preference. Either such a defense of lynching was an abuse of the distribution of powers you support, or you have to accept it as consequence of other rights you want to preserve. Which is it?

Your assertion that private law (I think you must mean contracts rather than law) is more restrictive than public law does not square with your previous statement that the replacement of private contracts with public law “would hardly be empowering for individuals”—unless you mean that private law affords individuals the opportunity to circumvent public law, which makes nonsense of your claim that all public law applies in contracts. 

I’m realize that I’m discussing not only law but justice, and there’s a reason for that: without some notions or intuitions about what justice might be, law is arbitrary formalism. In turn, justice depends on specific and substantial moral thought. I’m not a moral relativist, and I find such relativism abhorrent. Disclaiming relativism is not the same as asserting one possesses a sure and complete moral calculus; on the contrary, I think it commits one to acknowledge that one’s moral knowledge is incomplete, and to be open to persuation. I’m not sure if we are arguing about justice vis à vis the law, or if you are a relativist.

aog Monday, 11 August 2003 at 19:37

Let me address the points in turn.

Apparently I wasn’t sufficiently clear. The purpose of having variegated local law is not to allow wife beating, stalking or domestic violence. Since that seems to be your only objection, I take it you agree with me on the other types of local laws mentioned. I do, however, completely fail to see what point you are trying to make.

Your original question on lynching was “consider that the defense of lynching was couched in the language of states rights. What of that?”. Well, what of it? The idea of peace was used to defend the mass murdering reign of the Ba’ath in Iraq. Does that mean anyone advocating peace is defending blood drenched dictators? If not, what’s your point?

If we take as a starting point that contracts cannot override public law, then of course any contract must create more restrictions than public law. Replacing such contracts with public law removes the right of individuals in two areas

  • The choice on whether to enter the contract at all
  • The choice of the terms of the contract

Public law is precisely that which everyone must obey. Contracts are those restrictions that an individual chooses to obey. To equate these, as you seem to, is to level the diversity of relationships that a self ordered society can have, to make everything an unvarying sameness. Because public law does not decide everything, individuals are empowered to make decisions. To replace contracts with public law is to disempower individuals by taking that ability to choose away. So, yes, despite the fact that contracts do not allow circumvention of public law, the replacement of contracts by public law would not be empowering for individuals.

Tracked from Alas, a blog: Fair and Balanced to the Bitter End: The problem with libertarianism on 13 August 2003 at 16:11

I can't resist quoting at length from this excellent Through the Looking Glass post... A homeowner puts a UN flag on his front lawn. Some local bureaucrats tell him to take it off; having that flag is against the rules. He's refused, and will probably ...

End of Discussion