By Carl Watner
with Excerpts from Craig Duncan

Craig Duncan is an associate professor of philosophy at Ithaca College (New York). He and Tibor Machan authored a book titled LIBERTARI­ANISM (2005): Tibor arguing for, and Craig against. I first became acquainted with the book in late September 2017, after Gerard Casey called my attention to Craig’s argument that “As the law stands, you do not have legal title to all the pre-tax money that others pay to you in the form of wages, salaries, sales, etc. You only have legal title to your after-tax earnings.” (p. 46) I emailed Craig pointing out that I did not think his statement was accurate. Here is what I wrote:

What is the basis for your statements? Is it to be found in the US Tax Code? Do you think that the Internal Revenue Service would agree with your statement? At most, I think you could say that the federal government has a potential lien on ALL of your property until you have paid the amount that the Internal Revenue Service decides you owe for any given year.
The title – at the time you earn your wages, salary, or engage in exchange of property – is yours, solely; and the federal government has to follow due process procedures in order to file a lien against your property.

Here is how Craig responded on September 28, 2017:

Dear Mr. Watner,

First of all, thank you for reading my and Tibor Machan’s book.

I don’t have my book to hand at the present moment and so I cannot check the page you cite, but I believe at that point I was arguing that taxation is not “legal theft.”  I don’t believe that this point should be controversial.  The real question is whether taxation is “moral theft” – that is, whether taxation violates a moral right you have to keep every penny of your pre-tax earnings. That question takes more work to answer.

My point in the passages you cite is just this:  if I owe $D in taxation to the IRS, then the IRS is legally entitled to those $D.  If they are legally entitled to those $D, then I am not legally entitled to those $D.  If I refuse to pay the IRS the $D, then I am breaking the law.  And if the IRS confiscates $D from me, then they are not guilty of the legal crime of stealing when they do so.  (They still behaved morally wrongly IF they violated a moral right of mine to keep all my earnings, including the $D.  Whether there is such a moral right is a separate question, as I stated in the previous paragraph.)

So when I said (in the passage you quote) that you do not have legal title to all your pre-tax earnings I simply meant that you are not legally entitled to all your pre-tax earnings.

The IRS uses tax levies and tax liens to collect money that it is legally owed. Perhaps you are making the point that you have legal title to the $D until the levy or lien is executed?  Perhaps so, but if so, that is more of a lawyerly game of “gotcha” than a charitable interpretation of what I wrote. Perhaps a tax lawyer would inform me that “not legally entitled” and “no legal title” are not equivalent in meaning (i.e., perhaps “legal title” has a special lawyerly definition I am unaware of).  If so, then I should simply have said “you are not legally entitled to all your pre-tax earnings.”  I am 100% confident that there is some interpretation of this claim that tax lawyers would agree is true.

The genuinely interesting question is about moral rights to property.

Sincerely,

Craig

Craig’s point is that taxation is not theft because there is a government law that entitles the IRS to part of your property. It does not matter whether you agree with the law or not. The government’s definition of property rights takes precedence over what you consider your property (because government agents possess access to overpowering force). Nevertheless, Craig also recognizes that there is a question as to the legitimacy and morality of such a law. When I asked him in subsequent emails to justify his position, he asserted that citizens living in modern industrial societies, such as the United States, in justice do not deserve all they earn because they “partake of technological know-how and physical infrastructure (roads, transportation systems, buildings, etc.) that they did not create … .” This led to a wide-ranging exchange in which I questioned Craig about the justice of taxation, and even of government, itself. In the email excerpts that follow he elaborated on his argument.

[M]uch of the benefits that a given individual enjoys in … a thriving social order is only in part due to his/her inputs (i.e. work, innovations, risk-taking, etc.).  A portion of the benefits that an individual enjoys are a windfall due to the good fortune of being born into a functioning social order. All those individuals who contribute to the maintenance of the social order (contributing to the economy, obeying the laws, giving care within a family, showing mutual respect to fellow citizens, etc.) deserve to share in the good fortune that their fellow contributors are enjoying, at least to the extent of having secure access to a life of dignity (secure access to the opportunity to meet their basic needs and enjoy a reasonable level of control over the shape of the lives).

What the best means are for ensuring that contributors have access to a life of dignity is a social scientific matter. The track record of public and robust social safety nets is better than societies with threadbare nets or wholly private nets (i.e. only charity). It is not hard to see why. In any society, there are a number of menial jobs that must be done, and those jobs will pay poorly. (Since so many people can do them, any particular employee is highly replaceable, thus giving employees very little bargaining power with which to demand good wages.) Those people will have lives blighted by economic insecurity, health insecurity, etc., absent a safety net. But people who (say) drive delivery vans, empty bedpans, clean hotel rooms, stock shelves, etc., are playing a necessary part in the social order which benefits you and me. Such workers do not deserve to live blighted lives. Justice (which I regard as tracking desert) requires that the good fortune that comes with being part of social order be shared with other contributors.

According to Craig a “just system of [govern­ment] property laws will” strive to balance “respect for autonomy” of the person with “an ideal of reciprocity.” Government legislation will attempt to balance autonomy and control over one’s external goods with sharing that property with others who contribute to your prosperity, but who have a lower standard of living than you. “It was the argument of [a] previous email that a laissez-faire economy with no tax-funded social safety net would leave many workers who contribute to your prosperity without secure access to a life of dignity. And that violates reciprocity. Thus it is compatible with justice for the law to define property rights so that you legally owe, as taxes, a portion of goods that you come to possess via economic exchanges.”

Such was Craig’s basic justification for taxation. When I asked him if he endorsed the use of coercion, and its threat, to collect taxes, Craig responded that “how” the money was spent (i.e., its use to support the social safety net) justified using government force, if necessary. He argued that the compulsion inherent in the collection of taxes was coercion done in the name of preventing injustice.  “Such coercion is done not with the main aim of improving those people who are coerced (in this case, those who are taxed), i.e., NOT done in order to say ‘You well-off earners should be more generous, so we are going to coerce you into being more generous!’ It’s done to prevent injustice to someone at the bottom, e.g., to prevent a low-wage worker from having his/her life blighted by financial and/or medical insecurity.”  Furthermore, “absolute moral property rights – moral rights to property so strong that all forms of taxation are regarded as illegitimate – predictably lead to many forms of injustice, namely, the injustices that arise in [an] anarcho-capitalist [system], such as (among other things) a lack of basic security for those at the bottom of society. So, justice doesn’t endorse absolute moral property rights. Not all taxation is thus an injustice, the moral equivalent of theft. Some forms of taxation promote justice rather than violate it.”

In his argument against libertarianism, Craig observed that government does not require the consent of all the people living under its jurisdiction. (See page 56 of LIBERTARIANISM.) Craig argued that:

If the actual consent of every single person were required for any government to be legitimate, then no government will be legiti­mate. That is an impossible standard to adopt in practice. Anarcho-capitalists gleefully agree, and draw the conclusion that no government is legitimate. But their view of the consequences of ancap is implausibly utopian. A more realistic assessment of life under ancap acknowledges that a great deal of misery, grave insecurity, and unfairness would abound. It is implausible to me to think that justice requires us to tolerate such bad consequences. So it is implausible that justice requires the actual consent of every single person for government to be legitimate.

The most that can truthfully be said is that a government is legitimate only if it deserves the consent of all those who live under it. When does a government deserve its citizens’ consent? When it shows adequate respect for citizens’ autonomy and when its laws respect citizens’ just deserts. The latter element requires a social safety net, for a society that lacks a social safety has forfeited any claim to deserve the consent of citizens at the bottom of society. [Those at the bottom of society say,] “The social institutions that we live under do not deserve our consent. We contribute to society – we drive its delivery vans, stock its shelves, empty its bedpans, clean its hotel rooms, pick its fruit, etc. – but we lead lives blighted by financial and medical insecurity. We are thus not living on a footing of reciprocity with others; we are not getting our just deserts. A society that is willing to tolerate this is a society does not deserve our alle­giance.”

Craig agrees with me that taxation is compulsory, but he sees nothing wrong with using violence, or its threat, to collect government revenues. To him it is simply a fact of life because it is required to insure that injustice is not done to those who require a social safety net. As Craig wrote:

To threaten force is not by that fact alone to imply that the audience is criminal or immoral. It is just to say: “Here are the rules of our society, designed to achieve justice. They are authoritative rules, not mere suggestions, and as such they will be enforced.” That’s not to infantilize citizens or treat them as corrupt or vicious or criminal. Compare: there are laws against parental neglect of children, and rightly so. But for our government to create such laws is not to label all parents as people who would refuse to fulfill their duties as parents in the absence of coercion. It’s just to say that these parental duties are important enough to make a basic, authoritative rule. Likewise, the laws that create taxation that is used to fund a social safety net do not label citizens as people who would refuse to fulfill their duties as citizens in the absence of coercion. It’s just to say that these citizenly duties are important enough to make a basic, authoritative rule. (And what citizenly duties are these? The duty to ensure that citizens who contribute to your prosperity do not have their lives ruined by financial and medical insecurity, that is, the duty to live on a footing of reciprocity with your fellow citizens, so that both you and they receive your/their just deserts.)

Here’s an analogy. (No doubt you will find it problematic!) Suppose you join a club. The club says, “Here are the rules. If you break the rules, we reserve the right to kick you out.” That is a threat of a kind, though not a threat of violence, of course. But it is a threat of some kind of penalty. Does the existence of the rule and the associated threat imply, “All you members are no good and have to be kept in line by threats”? No, there is no such implication; it’s just a statement of, “Here are the rules our club will operate by.”

Now, anarcho-capitalist will say: “Exactly, we want ALL societies to be voluntary societies which one is free to join or not!” That’s an inspiring credo – I really do understand the appeal it has for some – but anarcho-capitalists are insufficiently attentive to the problems that predictably would arise in such a way of life …, i.e., various affronts to dignity that many would experience under [a stateless society]. In light of these problems I say that the ideal of “voluntary societies only” comes at far too high a price in human dignity. The better course, in terms of respecting human dignity, is to create involun­tary institutions, but arrange them so that they at least deserve everyone’s voluntary allegiance. If this is done, then such a society will, all things considered, be more respectful of human dignity than an anarcho-capitalist society would.

At this point in our email exchange, I summarized Craig’s argument in the following way: the authority of some people or some group of people to coerce the behavior of others (i.e. collect taxes without their consent) originates in “legitimate governing institu­tions” which rest on the pillars of “respect for autonomy” and the “ideal of reciprocity.” So long as the government does a reasonable job (as determined by those who direct the governing institutions), then the individuals who don’t want to pay their taxes voluntarily must be threatened with coercion or experience government coercion upon their bodies and/or property. I wrote Craig that it appeared to me he was “simply saying that ‘might makes right’ and that the majority of consenting individuals have the right to coerce the behavior of other peaceful people.”

In response, Craig again asserted that government need not obtain the consent of every individual under its jurisdiction since he realized that would be an impossibility. Rather, “What the government needs to do is give each person good reasons to consent” even though some individuals won’t willingly consent, for whatever reason.

[I]magine Rugged Ronnie who owns 100 acres in Montana, say, and wants to take his chances outside the US and live as a “sovereign individual.” The case for the USA being just is not simply that it furnishes benefits to Ronnie. Maybe so, but the stronger reason is that if the USA were required by justice to let people like Ronnie opt out, then over time that would harm the USA’s ability to govern and the harms of anarchy would arise. So Ronnie’s lifestyle preference for total legal independence turns out to have a quite harmful side-effect; by threaten­ing the functioning of government it threatens the well-being of others … . One can think of government as a “rescue project” rescuing others from the harms of anarchy. If the rescue project required consent of all to be just then no rescue project [would be] possible and the unjust harms of anarchy would proliferate. Not a plausible view of justice.

So the answer to Ronnie is NOT “We are coercing you for your own good.” The answer instead is “Our rescue project – our project of instituting law and order – is rescuing many people from the grave injustices of anarchy and this rescue project is impossible if each person is allowed to opt out. So, Ronnie, we are coercing you not for your own good, but because each of us – you, me, and each other person – has a duty to do our fair share of the rescue work, rescuing others around us from grave injustices. We understand that you prefer a different, solitary lifestyle, but your lifestyle unfortunately – since it makes our rescue project unworkable – has side-effects that expose others to grave injustices, and justice does not permit you to be indifferent to the harmful side-effects of your lifestyle preference. So, we coerce you in the name of preventing injustice to others (emphasis added). At the same time, we are mindful of the costs to you of our coercion, and we strive to ensure the costs inherent in supporting the rescue project – i.e. government – are fairly distributed.” (“Fairly distributed” is gauged using reciprocity as a yardstick, as mentioned in previous emails.)

In other words, we need a government to rescue us from the injustices of anarchy.

This very nearly ended our emails.

When I asked Craig his thoughts on how far the rescue project and the social safety net should extend he admitted that he didn’t “have a fully fleshed out answer to offer. But my basic answer is that if a current government is succeeding in rescuing its citizens from the harms of anarchy … then we should count its boundaries as legitimate. The hard cases are where government has broken down. In those cases, the boundaries should be drawn in whichever way is most likely to work, i.e., most likely to yield effective and stable rescue projects … .”

At this point, Craig wrote that he had enjoyed our discussions but that due to time and work constraints he would not be able to co-author an article with me on the pros and cons of anarchy.

[Editor’s Addendum: As in most things involving the government, I am not necessarily opposed to the ends, but I am opposed to the adoption of coercive means. Thus, it is fine for Craig to agitate for a social safety net for those on the lower rungs of the economy, but let him contribute his own money and solicit donations from those who voluntarily support his ideas. I may or may not contribute for any number of different reasons. The fact that a government may balance reciprocity and autonomy has no bearing on whether the government may resort to violence or its threat. When Craig says “we must coerce you in the name of preventing injustice to others,” he is simply saying that the ends justify the means: in his mind, one injustice justifies another; but to voluntaryists two wrongs never make a right. (And that is not even addressing the point as to whether or not an injustice has been done to those that are less well-off.)

Craig sees no reason to obtain the voluntary consent of those in society so long as governing institutions actually deserve their support. But who is to decide whether the government institutions meet this standard? Why should we rely on Craig’s subjective preferences? Don’t those who choose not to support a government have the right to decide whether the government meets their standards? By what right are the non-consenters forced to partic­ipate? Furthermore, Craig has no logical or consistent answer to the question of how far the geographic jurisdiction of a government should extend. Why shouldn’t the less well-off in the United States help provide a safety net for those in Africa who subsist on far less than they do? If the less well-off here are entitled to a safety net, why not those in Africa?

Another topic that I did not discuss with Craig involves the question of “who and how” goods and services are produced. If the less well-off are entitled to a safety net to raise their standard of living, then what happens when the individuals who produce these goods and services decide “the juice is no longer worth the squeeze”? Perhaps the disincentives caused by taxation are such that they would rather join the less-well off than work their tails off. What will happen if they choose not to work as hard as they might, or if they choose to go on strike (as portrayed  in ATLAS SHRUGGED)? Will they be forced to work like slaves or will their decision to slack off be respected? And, if no one chooses to work, how will the safety fund be financed? What Craig seems to forget is that goods and services cannot be consumed until they are produced. Goods and services do not grow on trees. They are the result of capital accumulation and human energy.

As I see it, Craig’s rescue project should really be put in reverse gear. Instead of rescuing us from the harms of anarchy, we voluntaryists really need a rescue project to save us from the harms of government.

We will give Craig the last word. Here is his final Addendum: You write:  ‘When Craig says “we must coerce you in the name of preventing injustice to others,” he is simply saying that the ends justify the means.’   I’ll just add that libertarians are also willing to approve coercion in order to stop injustice from happening, i.e. to stop a rights violation (to stop a theft, an assault, etc.).  So I think the disagreement between you and me is better characterized as a disagreement over the content of justice, rather than over the appropriate means of enacting justice.  We agree that if a justice-based right is being violated, and if only coercion will stop the violation, then those coercive means are justified; e.g. I can tackle someone who is assaulting you.  (This is not to deny nuances exist; e.g. the coercion should be propor­tionate — I can’t shoot dead someone who is attacking you with only his fists, for instance.)  I’m claiming that a low-wage worker who lacks secure access to a life of dignity is a worker who is suffering a rights-violation: justice entails that as a contributor to others’ prosperity, he deserves to be able to live a life of dignity; I’d argue that this in turn entails he has a justice-based right to secure access to a life of dignity.  So the coercion of the social safety net is justified as a necessary means of stopping the violation of right of justice.] [For an interesting history of the social safety net see Watner,  “Voluntaryism and Extreme Necessity,” (Issue 160).]