Long story short: H.O.A.s are the best argument against libertarianism.
They are
• defective
• fraudulent
• oppressive
yet celebrated by libertarians as one of the most libertarian forms of governance ever †.
As a former small-"l" libertarian myself -- until, not coincidentally, my H.O.A. experience -- homeowner associations are where libertarian ideas are put into practice and fail miserably. ††
† Many who then go on to say that (1) → they themselves ← would never live under one, (2) only a fool would, and (3) H.O.A.-burdened homeowners deserve the abuse they are receiving.
†† I'm sure there are a lot of well run H.O.A.s out there. But there are also a lot that are not. And I think the trend is towards less freedom for homeowners.
Our entire legal structure has been degraded. In a just (by libertarian standards) legal system, HOAs would be fine. I’ve lived in 2 HOAs. Neither great. Neither as bad as I’ve heard others could be. One clear problem is people buy into the Associations without really knowing what they are buying into--and no one seems to care.
> One clear problem is people buy into the Associations without really knowing what they are buying into--and no one seems to care.
This highlights an important difference between "documents enforced as contracts" and "agreements". It's a problem that libertarianism tends to gloss over, and instead treats them as the same thing.
Which is another problem that libertarians gloss over in the real world.
§-----
As I go over all the bills and statements and announcements and changes to this or that plan or arrangement or contract that have flooded into my mailbox recently, it occurs to me that this is a form of concerted action. Corporate managers have collectively determined to overwhelm us with fine print. We can't possibly read all this crap, much less meditate like some 18th century aristocrat on the implications of the content. Yet we can't do so much as download an update to Adobe Acrobat without "signing" a contract. We are conclusively presumed to have read, understood, and agreed to every lawyer-drafted word, and yet everybody knows that none of us reads this. Not even Ron Paul -- so don't start with me. And the more of these contracts we get, the less likely it is that we will read any of them. So corporations have an incentive to send more of them and make them longer and more verbose. This is a collective decision on their part, and it is working, and they know it.
Nearly all of this stuff is enforceable, as many an HOA or condo unit owner has discovered, and it makes citizens relatively powerless. The private logic of contract law structures the relationship as individual consumer vs. big corporation with government as the enforcer of the contract, instead of citizens vs. powerful private organizations, with government as policy maker holding jurisdiction over the relationship.
The law calls these boilerplate documents "contracts of adhesion," but the days are long past when judges were willing to throw them out because they were drafted by one party and imposed on the other, there was gross inequality of bargaining power, and there was no real assent to the terms. Now they are deemed essential to the free flow of modern commerce.
My view has always been that policy makers should be willing to step in and reform these relationships if they become predatory or destructive. But there is little stomach for that presently.
- Evan McKenzie, attorney and law professor. "The Fine Print Society". December 22 2011.
I think your placement of negative liberty above the other views that you say it implies is misguided, and misreads the practical interpretation of negative liberty. The political developments within right-libertarianism of the last few years have strongly indicated that negative liberty is a contested if not entirely incoherent principle in the abstract: Real people in the world are doing real political violence for negative liberty ideas like being free from the influence of trans people, or being free from CRT ideas reaching their children, or being free from proximity to immigrants, or the freedom of the family from the encroachment of liberal values. These views are vicious and wrong, but they are inescapable freedom-from, negative-liberty views.
The only way that negative liberty can have enough coherence and meaning to usefully direct us is in the context of other views that explain what the legitimate range of negative liberty is -- notions of consent, anti-authoritarianism, and cosmopolitanism. Without those, negative liberty easily encompasses the most repressive views of the right, and is no guide at all to libertarianism.
If negative liberty is a coherent idea at all (and I'm not going to go full William Gillis and say it's just a cover for authoritarian enclaves), it has to be in the context of a limiting and framing principles like consent and individualism that can pre-emptively and with principle put out-of-bounds "freedom from people" and "freedom from unwelcome ideas" and "freedom from change" and "freedom from disobedience and escape" that it invites.
Thanks Grant! Certainly negative liberty is contested. Indeed, some have argued that the distinction between negative and positive liberty can’t be maintained. I have a view about all of that and a view about the way we should understand negative liberty--a view I think would rule out the sorts of problems you rightly worry both. I lay it out here in my 2018 book. Available at https://amzn.to/48ejZSU.
>Is my reasoning for thinking the order I’ve provided somehow misguided? Am I missing a reason to think one I put later is more fundamental than I treat it? Let me know.
How do any of the “six commitments” relate to an explicit, abstract, value-free philosophical theory of liberty-in-itself? Libertarianism without a theory of liberty-in-itself is like utilitarianism without a theory of utility-in-itself. Here is one such theory: https://jclester.substack.com/p/eleutheric-conjectural-libertarianism
Thank you for that response and reference. A couple of points are immediately prompted by the book description.
>Toleration matters to us all.
Toleration is a formal concept. It only becomes substantial when we decide what it is that needs to be tolerated (presumably not murder or theft, for instance). For libertarians qua libertarians what needs to be tolerated is whatever fits liberty: in practical terms, anything that people choose to do with themselves and their, libertarianly acquired, property.
> There are personal and social matters that would be improved by taking toleration to be a fundamental value.
Toleration of liberty, perhaps.
>Cohen defends a normative principle of toleration grounded in a new conception of freedom as freedom from harm.
It might be clearer to say that “freedom” (or liberty) is “the absence of harm” (or “freedom” is not being independently explained). The problem with “harm” is that it can be entirely libertarian. People can choose to be, or to risk being, harmed by other people. Boxers objectively biologically harm each other in the ring, for instance. If there is a libertarian sense of “harm”, then it is “an initiated imposition” (on some person or his property). But it is probably clearer to avoid the problematic concept of “harm” and simply say that liberty is “the absence of interpersonal initiated impositions”.
My own two main books explaining and defending a philosophical theory of libertarian liberty may be found here
Thanks! I've added the books to my reading list. I think we agree on quite alot. I separate out the concept toleration from the normative principle(s). Freedom from harm is a moralized form of negative freedom that I think is what we really want to protect. I *think* you'd like it, but I may be wrong.
Thank you. I advise reading the Substack introduction first (and perhaps commenting there). I hope, and suspect, that we disagree on quite a lot: intellectual agreement is intellectually barren. It seems to be crucial to separate the positive analysis of all conceptions before any subsequent normative analysis. Hence, I think that libertarians first need to explain a coherent conception of libertarian liberty-in-itself (or freedom-in-itself). Only then can this abstraction be applied to find liberty-in-practice. And only after that can we analyse it normatively (or morally). Harm looks to be a completely separate concept from liberty. And so it will only confuse matters to bring it into those analyses. What I like is precise analysis and philosophical depth.
In terms of libertarian practice, I suspect we substantially agree. But when it comes to libertarian philosophical theory, I should be surprised if we were not to radically disagree—as I have, in fact, already done to some degree.
Do you consider homeowner associations (H.O.A.) to be libertarian?
I think HOAs can be consistent with libertarianism. Why?
Long story short: H.O.A.s are the best argument against libertarianism.
They are
• defective
• fraudulent
• oppressive
yet celebrated by libertarians as one of the most libertarian forms of governance ever †.
As a former small-"l" libertarian myself -- until, not coincidentally, my H.O.A. experience -- homeowner associations are where libertarian ideas are put into practice and fail miserably. ††
† Many who then go on to say that (1) → they themselves ← would never live under one, (2) only a fool would, and (3) H.O.A.-burdened homeowners deserve the abuse they are receiving.
†† I'm sure there are a lot of well run H.O.A.s out there. But there are also a lot that are not. And I think the trend is towards less freedom for homeowners.
Our entire legal structure has been degraded. In a just (by libertarian standards) legal system, HOAs would be fine. I’ve lived in 2 HOAs. Neither great. Neither as bad as I’ve heard others could be. One clear problem is people buy into the Associations without really knowing what they are buying into--and no one seems to care.
> One clear problem is people buy into the Associations without really knowing what they are buying into--and no one seems to care.
This highlights an important difference between "documents enforced as contracts" and "agreements". It's a problem that libertarianism tends to gloss over, and instead treats them as the same thing.
Yep, that is a clear problem. Standard answer is to require informed consent.
> Standard answer is to require informed consent.
For certain values of "informed" and "consent".
Which is another problem that libertarians gloss over in the real world.
§-----
As I go over all the bills and statements and announcements and changes to this or that plan or arrangement or contract that have flooded into my mailbox recently, it occurs to me that this is a form of concerted action. Corporate managers have collectively determined to overwhelm us with fine print. We can't possibly read all this crap, much less meditate like some 18th century aristocrat on the implications of the content. Yet we can't do so much as download an update to Adobe Acrobat without "signing" a contract. We are conclusively presumed to have read, understood, and agreed to every lawyer-drafted word, and yet everybody knows that none of us reads this. Not even Ron Paul -- so don't start with me. And the more of these contracts we get, the less likely it is that we will read any of them. So corporations have an incentive to send more of them and make them longer and more verbose. This is a collective decision on their part, and it is working, and they know it.
Nearly all of this stuff is enforceable, as many an HOA or condo unit owner has discovered, and it makes citizens relatively powerless. The private logic of contract law structures the relationship as individual consumer vs. big corporation with government as the enforcer of the contract, instead of citizens vs. powerful private organizations, with government as policy maker holding jurisdiction over the relationship.
The law calls these boilerplate documents "contracts of adhesion," but the days are long past when judges were willing to throw them out because they were drafted by one party and imposed on the other, there was gross inequality of bargaining power, and there was no real assent to the terms. Now they are deemed essential to the free flow of modern commerce.
My view has always been that policy makers should be willing to step in and reform these relationships if they become predatory or destructive. But there is little stomach for that presently.
- Evan McKenzie, attorney and law professor. "The Fine Print Society". December 22 2011.
http://privatopia.blogspot.com/2011/12/fine-print-society.html
-----§
I think your placement of negative liberty above the other views that you say it implies is misguided, and misreads the practical interpretation of negative liberty. The political developments within right-libertarianism of the last few years have strongly indicated that negative liberty is a contested if not entirely incoherent principle in the abstract: Real people in the world are doing real political violence for negative liberty ideas like being free from the influence of trans people, or being free from CRT ideas reaching their children, or being free from proximity to immigrants, or the freedom of the family from the encroachment of liberal values. These views are vicious and wrong, but they are inescapable freedom-from, negative-liberty views.
The only way that negative liberty can have enough coherence and meaning to usefully direct us is in the context of other views that explain what the legitimate range of negative liberty is -- notions of consent, anti-authoritarianism, and cosmopolitanism. Without those, negative liberty easily encompasses the most repressive views of the right, and is no guide at all to libertarianism.
If negative liberty is a coherent idea at all (and I'm not going to go full William Gillis and say it's just a cover for authoritarian enclaves), it has to be in the context of a limiting and framing principles like consent and individualism that can pre-emptively and with principle put out-of-bounds "freedom from people" and "freedom from unwelcome ideas" and "freedom from change" and "freedom from disobedience and escape" that it invites.
Thanks Grant! Certainly negative liberty is contested. Indeed, some have argued that the distinction between negative and positive liberty can’t be maintained. I have a view about all of that and a view about the way we should understand negative liberty--a view I think would rule out the sorts of problems you rightly worry both. I lay it out here in my 2018 book. Available at https://amzn.to/48ejZSU.
>Is my reasoning for thinking the order I’ve provided somehow misguided? Am I missing a reason to think one I put later is more fundamental than I treat it? Let me know.
How do any of the “six commitments” relate to an explicit, abstract, value-free philosophical theory of liberty-in-itself? Libertarianism without a theory of liberty-in-itself is like utilitarianism without a theory of utility-in-itself. Here is one such theory: https://jclester.substack.com/p/eleutheric-conjectural-libertarianism
I think I agree! I lay out my full account of liberty in my 2018 book. See link above.
Thank you for that response and reference. A couple of points are immediately prompted by the book description.
>Toleration matters to us all.
Toleration is a formal concept. It only becomes substantial when we decide what it is that needs to be tolerated (presumably not murder or theft, for instance). For libertarians qua libertarians what needs to be tolerated is whatever fits liberty: in practical terms, anything that people choose to do with themselves and their, libertarianly acquired, property.
> There are personal and social matters that would be improved by taking toleration to be a fundamental value.
Toleration of liberty, perhaps.
>Cohen defends a normative principle of toleration grounded in a new conception of freedom as freedom from harm.
It might be clearer to say that “freedom” (or liberty) is “the absence of harm” (or “freedom” is not being independently explained). The problem with “harm” is that it can be entirely libertarian. People can choose to be, or to risk being, harmed by other people. Boxers objectively biologically harm each other in the ring, for instance. If there is a libertarian sense of “harm”, then it is “an initiated imposition” (on some person or his property). But it is probably clearer to avoid the problematic concept of “harm” and simply say that liberty is “the absence of interpersonal initiated impositions”.
My own two main books explaining and defending a philosophical theory of libertarian liberty may be found here
(https://www.amazon.com/Escape-Leviathan-Libertarianism-without-Justificationism/dp/1908684089/ref=sr_1_1?crid=3RRA8HGRJD2RU&keywords=escape+from+leviathan&qid=1694702584&sprefix=escape+form+leviathan%2Caps%2C213&sr=8-1)
and here
(https://www.amazon.com/Explaining-Libertarianism-Some-Philosophical-Arguments-ebook/dp/B07TTW5CZG/ref=sr_1_1?crid=1QZTFT4E85BCE&keywords=explaining+libertarianism&qid=1694702707&sprefix=explaining+libertarianism%2Caps%2C241&sr=8-1).
But this relatively recent brief essay remains the best introduction (https://jclester.substack.com/p/eleutheric-conjectural-libertarianism).
Thanks! I've added the books to my reading list. I think we agree on quite alot. I separate out the concept toleration from the normative principle(s). Freedom from harm is a moralized form of negative freedom that I think is what we really want to protect. I *think* you'd like it, but I may be wrong.
Thank you. I advise reading the Substack introduction first (and perhaps commenting there). I hope, and suspect, that we disagree on quite a lot: intellectual agreement is intellectually barren. It seems to be crucial to separate the positive analysis of all conceptions before any subsequent normative analysis. Hence, I think that libertarians first need to explain a coherent conception of libertarian liberty-in-itself (or freedom-in-itself). Only then can this abstraction be applied to find liberty-in-practice. And only after that can we analyse it normatively (or morally). Harm looks to be a completely separate concept from liberty. And so it will only confuse matters to bring it into those analyses. What I like is precise analysis and philosophical depth.
I suspect we’ll agree about a lot and disagree about some things that might seem like a lot.
In terms of libertarian practice, I suspect we substantially agree. But when it comes to libertarian philosophical theory, I should be surprised if we were not to radically disagree—as I have, in fact, already done to some degree.