1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar
Source link: http://archive.mises.org/17493/equality-under-the-laws/

Equality Under the Law(s)?

June 30, 2011 by

Two columns were published today with very different libertarian analyses of government laws and privileges. In one of them, Steve Horwitz argues that “equality under the law” is an important libertarian (classical liberal) principle, and therefore that it is a “no-brainer” for libertarians to support such measures as increasing the marriage definition to include gays (as was recently done in New York).

In the other, I argue that one needs to separate rights from privileges and that increasing the relative size of a privileged group does not constitute a step in any valuable direction (at least from a libertarian point of view). Indeed, there is – as Hayek argued in his Law, Legislation, and Liberty – a difference between the Law (as in natural or common) and (enacted) laws. Equality under the numerous government laws is not only impossible (since pretty much all of them constitute privilege), but may be directly counter-acting the cause of liberty.

In contrast, the principle of equality under the Law, as in market-based, voluntary law or natural rights, is something to which I think Murray Rothbard would subscribe. In either case, there should be plenty of examples and arguments to support both takes on this issue of . What do you think?


joe June 30, 2011 at 8:35 am

Unfortunately, under the common law (ignoring all the state-created social privileges such as Social Security), there are certain rights that are only afforded to married individuals. Since it’s unlikely that we’ll ever get rid of the common law tradition (being the entire nature of our legal system), it stands to reason that this tradition should be expanded to treat similarly-situated individuals in a similar manner. I understand and agree that the state needs to get out of the marriage business, but the simple reality is that we have a system of state-regulated marriage, bother under the common law and under statutory law.

Any law that expands freedom is fine by me. Marriage equality does that.

Per Bylund June 30, 2011 at 8:48 am

That’s just my point, Joe. There is no “expansion” of freedom involved. Read my column.

joe June 30, 2011 at 9:08 am

I have to admit I didn’t read it before I commented :) I suppose I’m in the “pragmatic” camp you speak of. I don’t think that making the good an enemy of the perfect is a winning strategy.

nate-m June 30, 2011 at 11:14 am

Making ‘gays’ legal to marry is just creating all sorts of new issues. Forcing recognition of gay marriage on people is just as bad as not having gay marriage legally recognized.

Just removing government from deciding what sort of personal relationships we should have would eliminate a whole host of issues. Many of them unforeseen.

If I remember correctly marriage licensing was originally designed to prevent racially mixed marriages.

Horst Muhlmann June 30, 2011 at 10:20 am

Unfortunately, under the common law (ignoring all the state-created social privileges such as Social Security), there are certain rights that are only afforded to married individuals.

I have to question the accuracy of that. Marriage had no state recognition in the US until 1853, when Virginia passed a law requiring county clerks to issue marriage licenses and keep marriage registers.

Carl June 30, 2011 at 9:19 am


So for you, the matter comes down to “Do we increase the privileged class, and submit that it is useless to try and change the scope of government enacted laws vs Do we pull out the big guns and try and get government out of law-creation that intrudes on societal matters”? And you support the latter argument, because you believe it is useless (even dangerous) to play the game in the government arena, instead of taking the game to the individual?

Per Bylund June 30, 2011 at 10:22 am

Carl, what I’m saying is that there is a cost side to all “benefits” handed out by government – and someone always gets stuck with the bill (and I assure you it is not the state). This is where and why “play[ing] the game in the government arena” tends to (always) go wrong. The only “win” is if everybody gets the particular privilege, but then it is a privilege no longer – so it is still not a “win.”

Update: To clarify the last few words above, it is not a “win” simply because there is always a cost side. Either all do not make use of this privilege (e.g., if we weren’t all to get married despite the state allowing us to) or the cost is simply levied on a group where there is no connection with the issue (marriage). In the latter case, if everybody would get married the whole privilege would be consumed since we would all get the tax break. But this doesn’t mean a decrease in government’s budget – it just means it pushes the cost to an arbitrary group defined using other characteristics. There is no winning without cost when dealing with the state; it is a zero-sum game.

(8?» June 30, 2011 at 1:34 pm

Another way to look at it is morally.

Two wrongs don’t make a right, but a fight.

como aumentar los senos October 11, 2011 at 1:32 pm

Equality is almost impossible to always obtain environmental some more privileged than others.

John James June 30, 2011 at 10:28 am

I tend to side with the “why is it even a government matter?” camp. Seriously, a license? To get married? Why are we even talking about this? If there is anywhere a total absence of the state would be a “no-brainer”, it’s matters like this.

James Dahlberg June 30, 2011 at 10:48 am

http://www.youtube.com/watch?v=vXpsT3e8UsM (NSFW language)

I prefer the Doug Stanhope argument.

John James July 1, 2011 at 7:41 am

Bingo. Basically what I was saying above.

I didn’t realize Stanhope was so on point not only with libertarian philosophy, but with the arguments that inform it. From the same set, his take on drugs.

Jeffrey Tucker June 30, 2011 at 10:56 am

I will read your article but my strong impression is that this issue is one of those issues that is dragged out and pushed solely for the purpose of dividing people culturally as a way of entrenching party and political divisions – thereby giving something for people to oppose/support as a way of creating the impression that there are serious issues at stake in the configuration of modern political life as versus the usual illusions that change is coming or possible. In this sense, it is like abortion. One’s position on this isn’t irrelevant but the way the debate is constructed serves another purpose that has little to nothing to do with fundamental human rights.

Franklin June 30, 2011 at 8:42 pm

Marvelous. Right at the heart of the matter, as usual. And cuts across many so-called “issues.”

By the way, in the recent President-wannabe debate all Republican candidates, save one, underscored and championed the government’s authority, in one way or another, for defining “marriage.”

Ron Paul’s response elicited a healthy level of applause, giving me a momentary sense of gratification. That transient euphoria was drowned by the reality of his support levels.

There’s just no hope of this nonsense ever ending.

Colin Phillips July 1, 2011 at 8:04 am

As usual, JT nails it.

Vanmind July 1, 2011 at 7:06 pm

Yep, just in time for election season.

“Don’t ask me about fiscal policy or foreign policy — I have an opinion about gay marriage!”

Per Bylund June 30, 2011 at 11:27 am

I will try to respond to comments expressed elsewhere here, since this is (so far) the only public space where both views have been represented without attempts at misinterpret them. So I urge those interested in continuing this discussion to do so here, as comments to this blog post. And please do post your objections – I am interested in your (argued-for) views. I am sufficiently open-minded to not dismiss your views off the bat; but I will gladly argue against your (substantiated) claims if I happen to disagree. (I provide counter-arguments against made arguments and claims, not against personas.)

Some have expressed concern that I argue against my own views in the article. I do not. I argue that there is a cost (coercion) to each benefit (privilege) offered by the state, and that there is no such thing as “everybody wins” through political means – win-win is possible only through the use of voluntary means (i.e., in the market). For instance, as I argue in the article, laws tend to put a wedge between, and thereby effectively separate loving couples – unless they are (for example) married. This was meant to show that even a government-granted “privilege” can be coercive in itself, which means we cannot legitimately assume that a certain privilege is a “good thing” just because we personally happen see it as such.

I also do not talk about the moral implications of using something that is supplied by the state; I am not saying anything about whether one should e.g. get married or not – I am talking about the principle of government privileges such as marriage licenses, which are exclusive in nature. One can of course choose to refrain from getting married or using e.g. public roads or listen to public radio if one wishes, and that would be just fine. But it has nothing to do with the nature of or support for privileges granted by the state.

Likewise, I do not say one should refrain from starving the beast if one has the chance and finds it valuable. My argument is one purely of principle; I do not necessarily oppose using privileges that exist (as I mention above, it may sometimes be necessary in order to avoid extreme consequences), but I definitely oppose privileges per se. My claim in the linked-to article is that the active support of laws or policies that include more people in the privileged group does not have any positive effect (at all) on freedom as such. In the example I use in the article, Peter and Paul are each taxed $10 and Patrick benefits $20; Saying Paul should have the same privilege (getting $20) does not increase liberty in any valid sense. It only pushes an extra burden onto Peter – or future generations (if the privilege-giver “borrows” or engages in deficit spending).

Despite what some people seem to think, I am not contradicting myself – those who see a contradiction here are simply confusing what is the underlying principle and what are the practical implications of some specific policy. The contradiction lies in supporting “expansion” of an existing privilege, since this necessarily first (accepts and) legitimizes the privilege. One cannot say “I strictly oppose A, but strictly support more people to have A” – that is a contradiction on the very principle level.

And this is actually the implicit point I am making: libertarians focusing on gradual change tend to get entangled in numerous practical concerns that lead them to adopt contradictory opinions and make statements that do not make sense. This is an obvious issue when one no longer can, for instance, distinguish between government-granted privileges and rights. In direct contrast to one view expressed in this discussion, the classical liberal tradition was not for equality in the sense of “equal access to privileges” – they were for equality in terms of human/individual rights. This equality is only possible if there are no privileges, not if privileges are reshuffled or somehow “expanded” to include more people. This last point is true because the state game is not a win-win game, and we have to realize this fundamental truth in order not to contradict ourselves.

J. Murray June 30, 2011 at 11:56 am

Ultimately, words like “legalize” create problems as it implies that rights are government granted entities. Currently, only the man-woman over a certain age marriage is non-criminalized with a few pockets decriminaizing the same-sex variety. This plays groups against one another by slowly meteing out “rights” to groups, publicizing it, and creating divisions.

The whole discussion would be moot if marriage wasn’t provided special beneifts and wasn’t folded into the state licensing agency. I doubt there would even be an outcry if government wasn’t involved in the first place.

Lysander June 30, 2011 at 12:22 pm

Part of the argument seems to be the same used against tax credits. Dr. Paul draws the distinction between tax credits (marriage) and tax redistribution ( robbing Peter to pay Paul) that the author does not. Rothbard, as is Dr. Paul, was very much in favor of tax “loopholes” since they allowed people to keep more of their money. Do I suffer because my unmarried neighbors get married and now pay less taxes? Yes, but should I not be happy for them?

That said, it is clear that the purpose of these laws is to force one group’s views and morals upon another group. In this case whether it is moral or proper that gays marry. As nate noted, in earlier case marriage licenses were used to prevent mixed marriages Tolerance to me means allowing someone to hold any beliefs they wish, I may disagree but persuasion not force is the answer. Clearly voluntary agreements can handle all the issues pertaining to marriage as they did for thousands of years previously.

I do agree with Mr. Tucker’s view that this is one of those hot button issues used to divide and rule.

Per Bylund June 30, 2011 at 1:00 pm

Do I suffer because my unmarried neighbors get married and now pay less taxes? Yes, but should I not be happy for them?

I believe I already responded to this. There is a difference between practice and principle, and celebrating that government allows for a bigger privileged group of people on a certain issue is certainly different from my using loopholes to avoid paying taxes. It is different also from being happy that my neighbors pay less taxes. The first is about principle: government has no business including or excluding anyone using coercive privileges. The other two are about practice, and whether you are better off given the coercive framework.

Note (again) that I’m not saying that no one should get married because it is a privilege, and I am also not saying gays should not be able to get married. I am saying that restricting marriage is a serious blow to liberty – completely regardless of whether how many are on the “inside” and how many are on the “outside.”

Stan Kwiatkowski June 30, 2011 at 12:28 pm


imagine a world, in which everybody is taxed at 60% of income. However, if you register yourself as priest of you’re own imaginary religion, you get a tax exempt and pay only 20%. So many people register as priest of The Free Market Church, and get the exempt.

But the states forbids women from registering.

And I as a libertarian would argue for extending the right to register for women – the cost side you mentioned is that the state will have less money.

Tell me how is that different – there are institutional issues I am unaware off, because I don’t know what are exactly the “privileges” for getting married in the US. I’m pretty sure that in Poland it’s clear: you pay less taxes. Almost everything else can by done by contracts (but it’s more difficult, and – to be frank – I don’t see what is the “cost side” of being able to decide about somebody in a coma)

And please note, that this is not a “equality under law”, nor “pragmatist” argument. This is more part of the debate whether a tax exempt is an unjust benefit or not. I’m in the camp that that believes that any Pareto efficient reduction of taxes is just (and efficient:) – which means that I’m happy whenever nobodies tax has risen, and at least one person pays less.

Per Bylund June 30, 2011 at 12:52 pm

Stan, I think I already elaborate on this in the long(est) comment to this post. It doesn’t really matter in this argument if there is a substantial (monetary or otherwise) benefit connected to the privilege, only that there is a privilege – which by definition has a coercive/cost side. Your example of the church would be correct if we also assume there is no borrowing and no deficits in the budget. But what if there are (as is usually the case in the real world)?

To elaborate on the point of the nature of government-granted privileges: licensing of medical doctors – is that a privilege or not? My point: it does not matter if you see it as a privilege for doctors or a “cost” (coercion) of non-licensed and/or non-doctors – because those are in essence as well as in practice the same thing. It also does not matter if you relax the licensing rules so that more people can be licensed medical professionals – it still divides people into privileged and underprivileged. This is the simple point I’m making: allowing more people to be doctors does not increase or decrease liberty per se, it only (at least initially) makes it seem (to us) like the licensing scheme is more legitimate (because our favored group is now included). It also allows more people to be doctors, but that has nothing to do with whether there is privilege (and coercion) or not – it is strictly a concern for the affected individuals. What we are talking about is not liberty for certain individuals, but liberty per se. Liberty has been replaced by coercion no matter how many people have licenses; it still grants government the power to exclude and coerce.

And just to make it worse, when principled libertarians celebrate such “expansion” of the licensed few, they make a philosophical error in that they must first (implicitly or not) take the licensing scheme as a given. To argue for “more license” means you must necessarily accept licensing in order to make that argument; you cannot both say “no licenses” and “more licenses.” That makes this highly problematic.

Stan Kwiatkowski June 30, 2011 at 1:42 pm

Ok, let’s talk econ for a moment, not ethics.

You believe, that not being robbed of 100$ (by state mandate) and getting a 100$ from the state via taxation is the same thing. Fair enough, prof. Coase.

But if that argument is to be relevant in the aggregate, we have to assume, that people paying less taxes doesn’t change a thing, because deficit spending will cover the difference. Or that there will be an increase in some other taxes. So only the channel of redistribution is different, because you assume, that a particular tax exempt is irrelevant for spending.

So you’re indirectly arguing, that tax exempts are bad, because their only effect is that somebody is able to shift the burden on somebody else.

Interesting, but very heavy assumptions there. Changing between financing through debt and financing through taxes isn’t costless. The more you use one of the sources, the more it becomes a problem – that’s why the state uses both. If you force the state to reduce one of those sources it’s almost guaranteed, that it will be more problematic to spend more – and as you noted, it’s spending that matters.

So now getting back to ethics:

Should all people have access to the same loopholes, regardless of ethinicity, belief or sexual identity? :)

Per Bylund June 30, 2011 at 2:30 pm

No, Stan. I am not saying one should not use (or welcome) tax cuts or exempts. I would certainly be better off if I had more such. What I am saying is that there is something very wrong with cheering the state for allowing more tax cuts. The state is not in it to give us benefits; it is only in the business of oppressing us (everybody).

One possible application of the argument: Putting lots of time and money and energy into party politics in order to expand a privileged group is completely misguided from a libertarian point of view. It doesn’t change anything in terms of state power; it only reshuffles a bit. The only change toward liberty is abolition of privilege and regulation.

In the case of gay marriage in New York: adding the “opportunity” for gays to get a marriage license in that particular state is no way forward, it does not lead to (or imply) liberty in any sense. All it does is include more people in the group of “privileged” so that the resistance toward the oppressive system (here: marriage licensing) diminishes. The group shut out is now even smaller (bigamists, polygamists, animal lovers, whoever) and stand an even smaller chance of real change. And what about those in the privileged group who do not wish to get married (for whatever reason)? They are as oppressed as they used to be, but nobody will listen to them now.

Celebrating this kind of change as a step toward increased liberty is utterly false. Of course homosexual men and women should be able to get married if they like, but giving them the right to apply for government licenses is not liberty.

Chris July 5, 2011 at 3:28 pm

“And I as a libertarian would argue for extending the right to register for women – the cost side you mentioned is that the state will have less money.”

I argue that the state will have more money, or at least more opportunity to get it because now more people are dependent on the priviledge. Also the state will certainly not reduce their budget and so will increase taxes or penalties to make up for it. Passing the new taxes becomes easier because they just gave away some priviledges to voters.

fundamentalist June 30, 2011 at 1:44 pm

Steve: “If government grants certain privileges to those who are married, it must grant them equally to all its citizens who wish to marry.”

That’s a subtle bait and switch argument. Of course the state should not discriminate against unmarried people. It should not pass any laws that favor married couples. The homosexual community took care of such discrimination with the civil union laws passed over the recent generation. A few issues remained, such as the one mentioned by Sheldon, but that could easily be taken care of in court.

However, none of the above justifies changing the definition of marriage. The homosexual community has little to gain from SSM laws because they got rid of most of the discrimination with civil union legislation.

If the state offered no benefits to married couples that non-married couples could not have then it would not be discriminating against anyone.

So why aren’t homosexuals content with civil unions? Why can’t they just sign contracts before witnesses and call the contract a homosexual civil union? Why must they force the change in the definition of a word that has retained its definition for over 8,000 years? They do so because they want to force opponents of homosexuality to assert that homosexuality is as moral as heterosexuality.

Micha Ghertner June 30, 2011 at 1:58 pm

‎”If, then, the libertarian must advocate the immediate attainment of liberty and abolition of statism, and if gradualism in theory is contradictory to this overriding end, what further strategic stance may a libertarian take in today’s world? Must he necessarily confine himself to advocating immediate abolition? Are “transitional demands,” steps toward liberty in practice, necessarily illegitimate? No, for this would fall into the other self-defeating strategic trap of “left-wing sectarianism.” For while libertarians have too often been opportunists who lose sight of or under-cut their ultimate goal, some have erred in the opposite direction: fearing and condemning any advances toward the idea as necessarily selling out the goal itself. The tragedy is that these sectarians, in condemning all advances that fall short of the goal, serve to render vain and futile the cherished goal itself. For much as all of us would be overjoyed to arrive at total liberty at a single bound, the realistic prospects for such a mighty leap are limited. If social change is not always tiny and gradual, neither does it usually occur in a single leap. In rejecting any transitional approaches to the goal, then, these sectarian libertarians make it impossible for the goal itself ever to be reached.


Similarly, in this age of permanent federal deficits, we are often faced with the practical problem: Should we agree to a tax cut, even though it may well result in an increased government deficit? Conservatives, who from their particular perspective prefer budget balancing to tax reduction, invariably oppose any tax cut which is not immediately and strictly accompanied by an equivalent or greater cut in government expenditures. But since taxation is an illegitimate act of aggression, any failure to welcome a tax cut—any tax cut—with alacrity undercuts and contradicts the libertarian goal. The time to oppose government expenditures is when the budget is being considered or voted upon; then the libertarian should call for drastic slashes in expenditures as well. In short, government activity must be reduced whenever it can: any opposition to a particular cut in taxes or expenditures is impermissible, for it contradicts libertarian principles and the libertarian goal.”

- Murray Rothbard, The Case for Radical Idealism http://mises.org/daily/1709

Micha Ghertner June 30, 2011 at 2:08 pm

Shorter Rothbard: a tax cut is not a “privilege”. A tax cut is a right, in the sense that all of us have a right not to be taxed. If a tax cut is not paired with an equal cut in spending, the problem lies with the spending, not the tax cut.

Per Bylund June 30, 2011 at 2:19 pm

Are “transitional demands,” steps toward liberty in practice, necessarily illegitimate? No. . .

Micha, it would be great if you would add a comment to this so that we know how you interpret this Rothbard quote and what you think it proves. (That is, if you have an opinion on the matter.) I can easily find a thousand quotes that seem to support my view.

In fact, my whole argument was that a reshuffling or “extending” of existing privilege is not a step toward liberty. So how does the Rothbard quote relate to this? It supports it. You must, if you disagree with the arguments expressed in my article, show us how this is not the case or where my argument fails. So far nobody has done that (partly because most have succumbed to repeating value-laden terms and referring to political correctness as if the lining up of buzzwords would somehow undo the argument).

My point is not that gradual change is bad, but that those who prefer gradual rather than radical change tend to contradict themselves – they support certain government policies that at a first glance seem to increase freedom but that really, on the whole, undermine the cause of liberty. Please identify what is the issue before pasting more quotes.

Micha Ghertner June 30, 2011 at 2:33 pm

Per, you wrote: “Tax breaks to married couples may not be a huge thing, but government does not cut in public spending because more people get married and therefore pay lower taxes. So letting more people enjoy the benefits of this privilege means those choosing not to accept their government’s blessing will (at least eventually) have to pay relatively more. And budget deficits are likely to increase.”

The Rothbard piece I excepted directly contradicts this. “But since taxation is an illegitimate act of aggression, any failure to welcome a tax cut—any tax cut—with alacrity undercuts and contradicts the libertarian goal.”

Opposing gay marriage because it extends tax cuts, and opposing tax cuts because they merely shift theft elsewhere if not paired with an equal cut in spending, is the same mistake immigration restrictionists make when they oppose the free migration of peaceful people because some of them may receive benefits from the welfare state. “The time to oppose government expenditures is when the budget is being considered or voted upon; then the libertarian should call for drastic slashes in expenditures as well.” The time to oppose government expenditures is not when gay marriage or immigration are being considered or voted upon.

“My point is not that gradual change is bad, but that those who prefer gradual rather than radical change tend to contradict themselves – they support certain government policies that at a first glance seem to increase freedom but that really, on the whole, undermine the cause of liberty.”

No, that is not your point. Pretty much every libertarian who supports same-sex marriage supports marriage privatization even more. Same-sex marriage is a second-best solution, preferable to the status quo but not ideal. You were not arguing against imaginary libertarians who prefer same-sex marriage over marriage privatization; you were arguing against same-sex marriage, period.

nate-m June 30, 2011 at 2:40 pm

Opposing gay marriage because it extends tax cuts,

Nobody is opposing gay marriage. We are just saying that it’s not something worth celebrating as a victory and it’s not a important increase in freedom. It is trading a injustice for a slightly lesser injustice.

you were arguing against same-sex marriage, period.

Your creating a false dichotomy and are missing the point completely.

Micha Ghertner June 30, 2011 at 2:48 pm

“Nobody is opposing gay marriage.”

Per Bylund is opposing gay marriage. He wrote “The issue is then whether it is a good or bad thing to expand this privilege to include more groups.” He clearly believes gay marriage is a privilege, expanding privileges is a bad thing, and bad things should be opposed.

Trading an injustice for a slightly lesser injustice is a victory and an important increase in justice, however small. “The tragedy is that these sectarians, in condemning all advances that fall short of the goal, serve to render vain and futile the cherished goal itself.”

Per Bylund June 30, 2011 at 3:00 pm

Jeez, this is turning into the common internet trolling convention. Perhaps we should pull the plug on this discussion?

I’m not opposing gay union or marriage or whatever, unless marriage by definition is a government privilege. In fact, I’m opposed to anyone being licensed by the state. Believe it or not, that includes gays. See my other responses for explanations. And do feel free to misinterpret or put my name together with derogatory terms, if that makes you feel better. (That’s an ironic statement, by the way. Please refrain from this.)

nate-m June 30, 2011 at 3:18 pm

that includes gays

I am sure that this does not just include gays, but also straights, communists, carpenters, AND bilinguals.

Micha Ghertner June 30, 2011 at 4:18 pm

Per, you are being disingenuous. You are clearly opposing gay marriage in the context of the contemporary debate. You even mention the recent legislation passed in New York. To now pretend that you don’t oppose gay marriage as long as gay marriage is understood as something other than a state licensed enterprise is to change the terms and content of the debate, and misrepresent your original claims. Those libertarians who disagree with you are also opposed to state licensed marriage, but argue that extending marriage to same-sex couples is a second-best solution, preferable to the status quo but not ideal. You know this. Please stop pretending otherwise.

Per Bylund June 30, 2011 at 2:56 pm

I think you are taking my argument slightly out of context (or perhaps I did not write it clearly enough). The point I tried to make about the cost being moved somewhere else if more people can get married and enjoy tax cuts, was not that one should oppose tax cuts. My point was that it is not a valid argument for extending existing privilege, since one cannot through policy starve the beast. It will just get the money somewhere else. I do not oppose gay couples getting tax cuts and I do not oppose gay marriage (which is how people for some inconceivable reason choose to read my article) – I oppose licensing and government control.

Furthermore, I oppose the view that increasing the number of possible licenses somehow is a step toward liberty. It was government-controlled licensing before, and it continues to be government-controlled licensing. This is not a libertarian victory. It may be a relief for those gay couples who wish to get married in the state-sanctioned way, but the fact is that they can enter whatever unions they like (and can think of) with or without the state. What they get with the license is but government approval for their union (and whatever privileges that follow). One cannot be libertarian and say that this is a “step forward.” Its only real result is that nobody considers the evils of licensing anymore.

My point has all along been that those libertarians cheering this extension of privilege are confusing the issues. Steve Horwitz started out by saying that (as part of his argument) classical liberals were for equality under the law. But this is only a true statement where law=[negative] rights – not where law=privilege. Steve somehow failed to see this distinction and chose to just continue forward not looking back when I pointed this out (and also not wishing to discuss it).

Another confusion that seems all too pervasive is that people seem to think that somehow extending the number of people in a privileged (yet still regulated and controlled) group is the same thing as decreased state power (or increased liberty). But it is nothing of the sort; state power remains the same, only with more people with a state-granted eligibility to be counted and licensed. More people on the “inside” of an oppressive system is not a victory for anyone but the state, whose support is propped up a little more a little further.

Micha Ghertner June 30, 2011 at 4:30 pm

Per, you seem stuck on equating things you don’t like with privilege, even when you take advantage of that “privilege” yourself: “Yet we had to surrender and finally got married anyhow, because without the formal marriage certificate, there are so many things you simply cannot do: all rights are exclusively for the unit, and unless one is married, the unit is the individual and therefore it is easy to find the law separating you from your loved one.”

Of course, for gay and lesbian couples, without the formal marriage certificate, there are so many things they simply cannot do. You obviously recognize this, but can’t seem to place yourself in some one else’s shoes.

Regarding privilege and state-granted licenses, I’m sure we both agree that taxi drivers shouldn’t need government permission to do their job. Yet such a system exists. Currently the supply of taxi medallions is artificially limited by the government, and they are extremely expensive, thereby excluding many potential taxi drivers from the market who can’t afford the license.

Do you believe that increasing the number of licenses to operate a taxi is a good thing or a bad thing? Is it closer or further away from the libertarian ideal to expand the number of people who can engage in taxi driving, or to restrict this group even further?

Per Bylund June 30, 2011 at 5:09 pm

Micha, you are certainly not in a position to accuse me of any inabilities. Most of your accusations have already been responded to – in my original article. And I have attempted to elaborate on the arguments you do not understand (judging from your comments) in order to make them clearer. You just respond with further misrepresentations. Please stop telling me what I think or not.

I do not have a problem with placing myself in another’s position. That statement cannot even be used together with what you say I already “recognize” (in the same sentence!). And I said in my original article that there are sometimes things you cannot do unless you make use of the privilege your group is eligible for, which was intended to show that the privilege itself can be coercive and oppressive even to those who the state deems “eligible.” This was the purpose of my mentioning getting married in the first place. How you can even think of using this against me is beyond my understanding (or, more likely, yours). It has absolutely no effect on the principled argument we are discussing here.

The only confusion here is the one you provide. Your last paragraph makes this all too clear:

Do you believe that increasing the number of licenses to operate a taxi is a good thing or a bad thing? Is it closer or further away from the libertarian ideal to expand the number of people who can engage in taxi driving, or to restrict this group even further?

These are two questions talking about very different things. The first one mentions how government changes the rules for who it deems eligible and not, which effectuates a (possible) increase in the number of people using the privilege. I have said nothing that rejects people who make use of a privilege they are granted; I have only talked about the existence of privilege. Those are different things, but one needs to engage in clear thinking to see this clearly. So do I believe that government’s offering an existing privilege to more people is good or bad? I really cannot tell (which I have elaborated on before), since a privilege necessarily has a cost side. Would I as a consumer of cab rides enjoy the increased supply of taxi cabs? Most certainly, but I would not thank government for this – they are the ones who restricted supply in the first place.

The second one is a question of very different nature. It seems to me that this is where libertarians who are primarily political activists simply do not get it: they see no difference between changing government policy (but keeping the privilege) and abolishing it. They claim both actions can be “in the right direction” and seem to count the number of people affected as if liberty was a numbers game. Well, let me tell you: there is no free speech if someone regulates what words you cannot say – and there is not “more” free speech if you are prohibited to say four words rather than six words.

Likewise, the number of people eligible to apply for a government marriage license (and I already showed that love and relationship are already out of the picture in my original article) does not have any effect on the fact that government decides who can get married. Are there more people in the groups who have the privilege of being eligible for government licensing? Yes. But we cannot from this conclude that there is more freedom there used to be. There is the same restriction, the same privilege; the change is that the Master has chosen to reshuffle who is and who isn’t eligible. Liberty in society is unaffected.

Does this mean that all people’s available choices remain the same? Of course not! But this is not the same thing as saying that society is freer than it was before. If liberty is a numbers game, then it is obvious that severe taxation of everybody implies more freedom than the Holocaust (since it affected only and comparatively fewer Jews). This is where you, if you make such comparison, necessarily inject your own personal preference into the equation. You prefer more cab licenses in New York, and thus a change in that privilege that implies more medallions means we’re better off. Well, that’s your preference – not anybody else’s.

Sure, you can argue that you don’t do it for yourself but for “everybody else” in some kind of altruistic pseudo-philosophizing. So you may claim that there are “many” who would like to drive cabs but who cannot afford medallions (as you mention in your comment), and therefore more medallions is preferable. But you cannot do that, unless you are some kind of divine creature who can say that overall everybody (the human aggregate) is better off with more cabs than fewer – and that cab drivers are too. You are not the divine central planner, and neither is the state.

The only thing we can say here is that with licensing there is not freedom – because government has taking that particular freedom of choice away from us. The specific, arbitrary quantity enforced by government for the moment is of no relevance. Unless, of course, you add your own personal preference as the guiding light here. But then we are not talking about the principle of liberty anymore. We are talking about your own views, and I don’t see why they are worth more or makes more of a difference than anybody else’s views (to me). Unless, of course, you are in or aim for political office and the power to decide for everybody else – then it makes a difference. But then you are the negation of liberty, anyhow.

I hope this straightens things out (finally). I’m not splitting hairs here, I’m only separating personal preferences from the freedom principle (call it the NAP/ZAP or whatever you like) and showing that there is no saying, from the point of view of this principle, whether state A is better than state B when both imply that government hands out privileges to a select few. We need to separate the two simply because they are of very different nature, and this is what I claimed from the very beginning: if one does not see the difference, then one may get fundamentally confused about the issues and end up working in direct conflict with one’s ideals. What seems to be a small step in the right direction can (but doesn’t necessarily have to ) be disastrous to liberty.

On another note, I think this does it for me. There have been way too many misunderstandings and misinterpretations throughout this discussion. And hardly no questions about what I’m trying to say, but only assumptions of errors I have made. Well, cannot see any errors and nobody has been able (so far) to point out any to me. Some of the misplaced, misunderstanding, or misrepresenting comments are most likely done on purpose to somehow make me look bad; most of them (I hope) are probably the result of an inability to distinguish between personal preference (political correctness?) and principle. Picking a topic that is this sensitive from a point of view of political correctness, I stand to blame. I should have expected it.

Micha Ghertner June 30, 2011 at 5:31 pm

“Would I as a consumer of cab rides enjoy the increased supply of taxi cabs? Most certainly, but I would not thank government for this – they are the ones who restricted supply in the first place.”

As usual, you are missing the point. I assume both of us agree that all of us have the natural right to start a taxi business, yes? The government currently violates many people’s rights by only letting a few people exercise this right. The question is this: Is it an improvement or a worsening of the situation if the government allows more people than it did previously to start taxi businesses? That is, is it an improvement or worsening if the government violates fewer people’s rights than it did before, by granting more licenses than it did before?

Everyone has a right to drive a taxi, which is to say that everyone is entitled to a license to drive a taxi – everyone is entitled to this privilege. By granting more licenses, the government, while still violating some rights, is now violating fewer rights than before. More people can now drive taxis. Fewer people are having their rights violated. That is unquestionably a good thing.

ABR June 30, 2011 at 2:56 pm

A tax cut or exemption, all else being equal, benefits the beneficiary. Thumbs up.

But if the total amount of tax remains the same, and group X gets an exemption, then ~X will pay more. Thumbs down?

Per Bylund June 30, 2011 at 3:42 pm

For the sake of clarity, let me post this brief response to all those people who seem to think that I am arguing that tax breaks are coercive privileges. I do not argue this, but it seems to be a common take-away from the article (and it is part of the argument, but only part of it – there are other parts). I wrote this elsewhere:

The privilege lies in the *bundling*. Government aims to control social relations and does so through licensing who can be a “legitimate” couple. It offers tax breaks specifically to the licensees *in order to* make them a privileged group *compared to others*, which serves its power-seeking purposes (the state always invents new groups with supposedly conflicting interests, doesn’t it?).

Paying lower taxes is not a privilege per se, but becomes part of one when bundled with the whole licensing scheme and the fact that government is in strict control of and regulates this particular kind of social tie (but not other ties, which are for some reason not considered in “need” of licensing). It is only in this kind of coercive bundling that the tax breaks for married couples are at all of interest for libertarian ethics (in my view). That’s why I started out stating in my article that government marriage licensing has nothing, absolutely nothing, to do with love or relationships. It is all about control and (through?) privilege.

I hope that this settles some of the misinterpretations, but I am sure some people will still insist on finding their own interpretations.

Micha Ghertner June 30, 2011 at 4:38 pm

It settles and clarifies nothing. You say that tax breaks are only part of your argument. Can you identify one other benefit of marriage apart from tax breaks (either mentioned in your article or not) that violates the rights of the non-married? Not that I concede that marriage tax breaks violate the rights of the non-married, but even this mistaken belief cannot be applied to any of the other benefits of state-licensed marriage.

Who are the victims who have suffered as a result of extending marriage to same sex couples? You could say that other tax payers who will have their tax raised as a result of an extension of marriage tax breaks in the absence of spending cuts are the victims (and you would be wrong, as Rothbard demonstrates), but who else? If there are other aspects of your argument apart from tax breaks that make gay marriage objectionable, what are they?

Wildberry July 1, 2011 at 3:09 pm


First, marriage is a tax penalty, not a break. Married couples pay taxes based on the bracket for their combined income. This is usually higher than either would have paid had they paid their taxes individually.

Second, although I am not sure, I believe domestic partner laws have pretty much equalized the financial benefits of couples and certainly civil rights, like hospital visitations as a relative, etc.

A tax break can be a privilege, if there is some criteria for selecting who gets it, and if it is applicable across the board.

I think I can agree with you that when a lower tax rate is provided in exchange for some other concession that increases government regulation power, it is a privilege in the way you mean it.

This is the insidious method of federal funding, that provides states and municipalities funds in exchange for some benefit to the federal govt. regulatory scheme.

Your statement that government licensing has nothing to do with love relationships may be true, but it does have something to do with what “we” (society) establishes as social convention and the words we use to describe that convention.

In California, voters indicated that the institution of marriage is between one man and one woman. That is a definition for the word “marriage” that the majority here appears to wish to uphold. However, at the same time, the functional difference between a “civil union” and “marriage” is trivial in practical terms.

Words are designed to make distinctions possible. That is their utility. When the distinct meaning of a word is debased to incorporate other things, it loses some of its utility.

We could pass a law which declares that from now on, chairs and tables will be named “tables”. They are both table, one is a table for human butts, and the other is a table for everything else.

If “marriage” is defined by law as “all civil unions”, what shall we call a civil union between one man and one woman?

I realize this is not the main thrust of your article, but the issue has been raised, and it has some relevance. History has other examples of where laws attempted to control the use and natural evolution of language, to no avail.

Likewise, government attempts to control the free association of people must ultimately fail, and in the process create unintended negative consequences. This may occur in ways we cannot see or easily detect, but when the practice is visible and obvious, it should be opposed.

Unless I misunderstood you, I believe that is your central point?

ABR June 30, 2011 at 4:37 pm

This debate has no end.

Suppose, for example, the State reduces income tax for non-smokers by 5 points. The State is then controlling its subjects; that is, encouraging them to quit smoking. Ergo, we should oppose the tax rate reduction.

Or, should we convince our masters to apply the 5 point reduction to smokers, too?

I don’t think the latter approach is at all realistic. It completely ignores the motives of the politicians who originally enacted the reduction. Thus, I tend to agree with Per”s take. The modification of ‘breaks’ is typically all about control.

But suppose the State exempts the film industry from corporate tax. And then the State exempts the automobile industry. And then the aero industry. And then the insurance industry. At some point, there might be a hue and cry: hey, let’s eliminate the corporate tax altogether! And maybe, politicians might actually listen, and act.

In such a scenario, we might look back upon the first break, positively.

nate-m June 30, 2011 at 5:38 pm

Or, should we convince our masters to apply the 5 point reduction to smokers, too?

We shouldn’t cheer the 5 point drop in taxes as a libertarian victory or consider it a win for liberty and freedom. We definitely should not consider it a win when that 5 points is going to come hand in hand with a new waves of restrictions and controls placed on other people.

We should never lose site of the reality of the situation:
The only reason homosexuals couldn’t legally marry was because there was any question of legality in the first place.

This is NOT a new liberty… this is a slight reduction in old tyranny.

We need to keep perspective and call a spade a spade.

Another way to see it:

If somebody was stabbing you in the face over and over again with a fork, but then they pause stabbing you for 2 minutes then continues stabbing…, then it’s incorrect to go around thanking the man for the 2 minute let up on the bloodshed, nor consider it a victory that he paused for 2 minutes.

Micha Ghertner June 30, 2011 at 6:02 pm

“We shouldn’t cheer the 5 point drop in taxes as a libertarian victory or consider it a win for liberty and freedom.”

Murray Rothbard disagrees with you. From the excerpt above: “But since taxation is an illegitimate act of aggression, any failure to welcome a tax cut—any tax cut—with alacrity undercuts and contradicts the libertarian goal. [...] In short, government activity must be reduced whenever it can: any opposition to a particular cut in taxes or expenditures is impermissible, for it contradicts libertarian principles and the libertarian goal.”

A slight reduction in old tyranny is a reason to celebrate. This isn’t about thanking the government for violating fewer rights than before. It is about celebrating the fact that fewer rights are being violated. It is a victory for those who were able to get the government to reduce its rights violations.

nate-m June 30, 2011 at 6:45 pm

Murray Rothbard disagrees with you. From the excerpt above:

Yes we should always seek to undermine government. That I agree with. Tax breaks do that in some small measure.

A slight reduction in old tyranny is a reason to celebrate. This isn’t about thanking the government for violating fewer rights than before. It is about celebrating the fact that fewer rights are being violated. It is a victory for those who were able to get the government to reduce its rights violations.

Except that is not exactly what is happening; They didn’t stop violating rights. Personal relationships are still regulated by the government. Homosexuals could always be ‘married’ in every single way that mattered, except for taxation purposes and a few other legal “privileges”… much of which (especially when it comes to things like visitation rights in hospitals or inheritances) required extra legal steps and documentation that would of been required of any couple if the state didn’t register marriages.

They enjoyed as much rights and recognition in society for their marriages that individuals in the general public cared to grant them. Which is just about everything you could hope to have in a truly free society. They could go around and wear wedding bands, celebrate their anniversaries, sign their Christmas cards ‘Mister and Mister Jones Smith’, have ceremonies by the clergy, and just about every other thing that straight married couples could do in society.

Getting married in itself, and having it registered and managed by the state, comes with it’s own special oppression and limitations imposed by the state. If you want to divorce it brings it’s own legal hell, for example. There are a lot of ‘married couples’ that never get married in a legal sense and happily live together for decades for these sort of specific legal reasons.

What business is of the state what your marriage status is?

In reality they are just trading one form of state oppression for a different one, albiet one that is slightly more palatable.

So what is worth being happy about really amounts to a reduction in taxation for some people in some circumstances. And possibly a tax hike in other situations. You convinced me that I can be happy about that (the tax breaks), at least.

Micha Ghertner June 30, 2011 at 10:54 pm

“Except that is not exactly what is happening; They didn’t stop violating rights.”

Sure they did. They stopped interfering with same sex couples’ right to get married, which includes all of the various rights that go with marriage: tax breaks, inheritance rights, hospital visitation rights, spousal privilege of confidential communications, immigration rights, and so on.

“Homosexuals could always be ‘married’ in every single way that mattered, except for taxation purposes and a few other legal “privileges”"

Who are you to discount the value of these rights to others? And if the change doesn’t matter, on what grounds are you objecting or complaining about it?

Costard June 30, 2011 at 8:05 pm

“I argue that one needs to separate rights from privileges and that increasing the relative size of a privileged group does not constitute a step in any valuable direction.”

And yet purchasing liberty at the cost of justice, and theoretical purity at the cost of common sense, is the sort of bargain best made quietly.

Bruce Koerber June 30, 2011 at 9:55 pm

Knowledge Of Law Precedes Equality Under The Law.

We must remind ourselves that laws are to be discovered, not created by those who are ego-driven. The challenge then is to discover the laws and the adjunct corollary to this challenge is to know how to discover the laws.

Once they are discovered then all of the laws originating from the flawed ego-driven sources are recognized as irrelevent and mostly detrimental to an ever-advancing civilization.

The classical liberalism stance once the laws are discovered is to abide by them, confident in their beneficent effect for an ever-advancing civilization in the long-run and for their remedying power in the short-run.

terrymac July 1, 2011 at 8:55 am

I’ve always put the “get government out of it” argument first. Marriage should be a private agreement between n consenting individuals.

That said, since government grants certain “privileges”, I see no reason not to argue that “we should all be lords instead of serfs.” To argue for the status quo is to argue that gays and lesbians should remain serfs.

What are these “privileges” of marriage? Unlike government schools, marriage does not require tax serfs to work to support others. ( BTW, childless people, including many gays and lesbians, are “serfs” with respect to government schools. ) If same-sex marriages were recognized, gay and lesbian survivors would pay a little less death tax; they might pay a little less income tax; they might be a little more free to immigrate. None of these are “positive rights”; none involve enslavement of others.

I am finding it hard to argue against marriage equality before the law.

In a common law environment – where law is decided case-by-case according to custom – same-sex marriage would probably already be here; in response to changing social mores, the law would become indifferent to sexual preferences. We’d say to the social conservatives “If you don’t like same-sex marriage, then don’t marry a person of the same sex. Get over it.”

With respect to schooling, I have long argued for separation of school and state. I suited action to principle, home-schooling my children; they now home-school theirs. Yet I could not argue for a continuation of “separate but equal” government schools, even though these do involve enslavement of both children and tax-serfs. In this case, I wonder what history would have been like; would blacks be more self-reliant? In India and Africa, where government schools in poor neighborhoods are very bad, parents choose to fund better alternatives. ( per The Beautiful Tree by James Tooley )

Matt Houseward July 1, 2011 at 4:33 pm

Lots of comments, and I didn’t read all, but I scanned for some relevant words and didn’t find them, so forgive me if I’m being redundant.

Regarding the original post: spot on. Conferring legal rights equally is a must, conferring legal privileges equally is an impossibility. So, ideally, the right to contract would be shared by all, and privileges would be conferred on none.

As far as privileges go, if we assume that they are here to stay, I think the least we can do is ensure they are democratically decided. We are talking about the people’s money, so it ought to be up to the people to determine how the money is spent.

When you look at things like public schooling, health clinics, Social Security, and Medicare, flawed as they are, they were created because the people thought the government could and should address a societal need. So, if you’re looking for a hand out, state your case. Why do you need the money? Don’t tell me it’s not fair that someone else gets it and you don’t. Why do YOU need the public’s money? If you can’t answer that question satisfactorily, you have no business sticking your nose in the public trough.

Sasha July 16, 2011 at 2:07 am

Traditionally in this country, marriage has been defined as a religious & legal commitment between a man and woman, as well as the ultimate expression of love. Homosexual relationships are increasingly gaining acceptance in this country; however, these couples have not been permitted to marry. Some states have considered a new form of commitment called a “civil union”, which essentially is marriage without using the word “marriage”. Many politicians have said they are against gay marriage but think it should be left up to the states to decide. However, the “full faith and credit” clause of the Constitution says that if one state makes a law, other states must recognize it. Thus, if one state allows a gay marriage and that couple moves to another state, the other state must recognize that marriage. This in effect allows one state to make same-sex marriage legal in the entire country. Many politicians are calling for amendments to their state constitution or the U.S. Constitution. Many areas of the country such as San Francisco have performed marriage ceremonies in defiance of the law. Lost in all the legal battles and political maneuvering is the basic question “Should we allow gay couples to legally marry?”

Ben September 19, 2011 at 8:44 pm

Lost in all the legal battles and political maneuvering is the basic question “Should we allow gay couples to legally marry?

Let’s go one step further. “Should we allow the government to be involved in the most private of affairs, ie the union of two people for the rest of their lives?”

WOW Items August 30, 2011 at 2:42 am

life is a road and you are its passengers so , be careful about the value of your
times , maybe you wont be in the road tomorrow.

Morgan Drexen September 1, 2011 at 2:15 pm

There is a definitely a difference between increasing rights and increasing privileges. But man will always constantly find ways to justify their actions. This is a good post.

como aumentar el busto September 1, 2011 at 5:01 pm
vietnam tours September 4, 2011 at 11:35 am

Thanks for your post! That’s greate! Thanks again!

katy english September 5, 2011 at 10:17 am

I dont think that it is an important issue, nowadays, when so many people are starving. And gays are a minority, no doubt. They may be an important minority, but i think that states of the world should take more care on poor and homeless, and less on that sector of population, which not even increases world’s labour force!
by soldador inverter

Ivon paginas web September 19, 2011 at 7:37 pm

equality an important issue we live in a free world with laws governing our freedom to a healthy and peaceful coexistence, equality for me is the lack of human discrimination.

Programa Comer Para Perder September 27, 2011 at 10:22 pm

my strong impression is that this theme is one of the themes is dragged and pushed only to divide people culturally as a way of strengthening the party and political divisions.

El Metodo Gabriel September 28, 2011 at 2:22 pm

Thanks for the info, your have an excellent blog.

katy english September 29, 2011 at 3:43 pm

Von Mises was a real emminence and this blog deserves his name.
It’s very useful and informative.
by soldador inverter

Miguel | Frase Para Enamorar October 2, 2011 at 5:30 am

I agree with you. There’s a distinction–in my opinion–between privilege and rights. Moreover, I as well don’t see the value with increased privilege. Really well-written, and valid points on both end. Great debate.


Matt Bansberg October 9, 2011 at 8:31 am

Equality should be implemented in fair perspectives. Sometimes equality will just be based in one sector only. In promoting equality, it should be just and humane to all sectors.

George October 19, 2011 at 11:04 pm

Many people in Africa are starving.People in the middle east are suffering from war.People from Asia are suffering from poor.I don’t think this is a big issue

toegangscontrole nick November 16, 2011 at 10:25 pm

Ideology aside such changes in law leave us asking, how this will affect my business. Although the full implications of such an act can never be realised initially the following have been highlighted as areas in which the law will cause change to employer’s routines in relation to the procurement and management of employees

Maya | Frases Para Enamorar November 22, 2011 at 6:12 am

I understand your point George… but this is still an issue for debate nonetheless. Yes great article and very valid points. Big distinction between privilege and rights. Great post.

plaster molds December 5, 2011 at 2:12 am

George is indeed right, there are still plenty of more important issues than this, like the things that he had stated, i guess, this should be focused less compared to much more relevant issues.

Comments on this entry are closed.

Previous post:

Next post: