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Wednesday, July 24, 2013

Anatomy of a Virtue: A Response to Professor Yankah

Two Law Students Respond to Professor’s Defense of the State

Editor’s Note: Two Cardozo School of Law students would like to respond to their professor’s Huffington Post essay, “Why Government Is Virtuous.” In the spirit of open inquiry, we decided to offer them a guest post here at The Freeman.

We are grateful that Cardozo Law's resident man-about-town, Professor Ekow Yankah, has recently joined various other luminaries who have lately wrestled with the growing phenomenon of libertarianism. But Prof. Yankah's case, “Why Government Is Virtuous,” could use a little more wrestling. Prof. Yankah's main argument is straightforward: Because libertarianism celebrates individualism, it is “totally at odds” with pretty much everything we know and love. 

“Our distinctly human virtues,” Prof. Yankah writes in The Huffington Post, “can only be developed when we act together to pursue a shared vision of a good life.” 

State action is inherently collectivist. And libertarians, with their individualist ethic, are suspicious of state action. But a completely individualistic ethic is impracticable, says Prof. Yankah, while the fruits of collective action (“museums, jazz clubs, chess tournaments and haute cuisine”) are abundant. Therefore, Prof. Yankah concludes, there is virtue in State institutions and libertarians are misguided.

But the State is not the community. Communities are entirely capable of “coming together to collectively choose what we view as the good life.” Yet, because communities—not States—are agents of cooperative behavior, the State's predominant role is to forcibly redirect freely chosen communal action. 

Prof. Yankah misses this critical distinction when interpreting libertarianism, which is more accurately defined by an opposition to the use of force, and a celebration of voluntary action—whether individual or collective. Libertarianism per se is not any more individualistic or communal than any State-centered ideology. In fact, one of the most powerful influences on today's liberty movement is Ludwig von Mises, who maintained “human cooperation” to be the “fundamental social phenomenon.” Today, standing on the shoulders of giants who have developed the concept of spontaneous social order and prosperity in popular videos and essays, many contemporary and young libertarians are consumed with the task of describing precisely how a complex society lives, breathes, fosters cooperation, and satisfies human desires without a command-and-control center.

Incidentally, libertarians also do not enjoy a monopoly on individualism. While some libertarian thinkers, like Ayn Rand, do hold the individual in great esteem, so do socialist thinkers like Oscar Wilde and Karl Marx. If libertarianism celebrates narrow individualism more so than does socialism, Prof. Yankah does no more than assert it.

Prof. Yankah is simply locked into thinking that conflates a “shared vision” with state control. However, to libertarians, the State is an agent of coercion because the State disrupts voluntary social behavior, and is therefore at best a necessary evil. As Prof. Yankah notes, “Government power then, in the libertarian ideal, is only justifiable to the extent absolutely needed to protect against unavoidable invasions of rights.”

Yet Prof. Yankah dissents. He writes, “The heights of our capacities can only be reached by supporting the good life through our law and politics.” Here, we reach the substance of Prof. Yankah's argument, where he shifts from his primary theme of a narrowly individualistic libertarianism, and instead holds that “so many of the best things we do depend on countless joint legal and political commitments.” In other words, it is not that a community’s collective actions are state actions; rather, they are built on state foundations. This new premise, however, is rife with problems of its own.

That the State provides the basis required for the existence of the “best things we do” is of course an empirical claim, and Prof. Yankah is not short on examples. Thanks to the State, he says, we have clean food and water, fire and police protection, zoning and licensing codes, parks, and schools. We have “everything from modern roads, hospitals and sewers to research and development.” We even have text messages!*

To listen to Professor Yankah, it would seem that all of these good things exist only because of state action. But do they? Just one counter-example in each of these areas would suffice to tear down his scaffolding and prove that good things do not necessarily require state coercion.

Indeed, a deeper look into each of the industries Prof. Yankah cites reveals a vast literature indicating that state involvement harms each industry more than it helps, and that voluntary alternatives may not just be possible, but preferred. Prof. Yankah's article does not acknowledge even one of these arguments. Is that because his case for the “virtuous” State depends on the nonexistence of these voluntarily undertaken alternatives?

Prof. Yankah also asserts it was politics that ended the suffering and plagues of the Middle Ages, without a word on the hundreds of kingdoms that for centuries dotted the European landscape before “politics” supposedly entered the scene. It is precisely the political and hierarchical nature of these political structures—with their monarchs, fiefdoms, patronage, and countless wars—that consigned the European continent to a thousand years of misery. Similar structures today keep vast swathes of the world in penury.

Finally, what of virtue? Even if Prof. Yankah were to prove that “the stuff through which we pursue a vision of good life” could not have resulted from human action free of State involvement, then—in good Aristotelian fashion—he must still balance that State virtue against the vice of State violence. Following Max Weber's famous definition, President Obama has said that “what essentially sets a nation-state apart” is its “monopoly on violence.” Is the use of force against peaceful people not worth exploring when determining what is and is not a “true display of virtue?” Prof. Yankah is silent on the matter in this article, even though monopoly violence is the essential characteristic of a nation-state.

The libertarian is not so sanguine about this fundamental issue of justice. Neither was legal theorist and abolitionist Lysander Spooner, who wrote

What, then, is legislation? It is an assumption by one man, or body of men, of absolute, irresponsible dominion over all other men whom they call subject to their power. … It is, in short, the assumption of a right to banish the principle of human rights, the principle of justice itself, from off the earth, and set up their own personal will, pleasure, and interest in its place.

If these are virtues to Prof. Yankah, one shudders to think what he considers a vice.

It is because libertarians see in taxation, fiat currency, and national debt the violence that defines State action that we view it as not virtuous at all, but inimical to the project of peace. To libertarians, the fruits of State action are the fruits not of an ephemeral “coming together to govern,” but of a citizen chain gang. The chain gang cannot be virtuous per se, but if it is ever to be justified, then its work must be proven absolutely necessary to human flourishing.

This is the burden of proof Prof. Yankah has yet to bear.

*For arguments and anecdotes indicating that state involvement may not be a net positive, see: clean foodclean waterfire protectionpoliceprotectionzoning codeslicensing codesparksschoolsmodern roadshospitalssewersresearch and developmenttext messages.


  • Michael Zigismund is an attorney based in New York City. He received his J.D. from the Benjamin N. Cardozo School of Law, and holds a B.A. from Tufts University in International Relations, Political Science, and Music.

  • Tavish Kelly is a student at the Benjamin N. Cardozo School of Law.