Liberty, Negative Rights, and Bleeding Hearts

Liberty rights are represented in the Founders’ trinity of “unalienable Rights“: “Life, Liberty, and the pursuit of Happiness.” These really constitute a unitary right, which I simply call liberty. The liberty right is unitary because liberty (as a separate right) is meaningless without life, and liberty implies the latitude to pursue happiness.

Libertarians, for the most part, think of liberty as the enjoyment of the negative right to be left alone in one’s peaceful pursuits, that is, the right not to be robbed, attacked, murdered, and so on. But in a society or polity that values and enables liberty, the right to be left alone is only half the story.

The right to be left alone is the negative sub-rule of the Golden Rule, a good formulation of which is “One should treat others as one would like others to treat oneself.” That formulation implies a positive sub-rule, which could be stated as “Be kind and charitable to others, and they (or most of them) will be kind and charitable to you.”

The positive sub-rule is prudential, not mandatory. But that does not lessen its importance, for liberty cannot prevail absent widespread observance of the positive sub-rule. Such observance creates the conditions of mutual trust and respect that foster mutual forbearance, that is, leaving others alone in their peaceful pursuits. (For more in this vein, see Richard Epstein’s refutation of the view that libertarianism is all about “me” in “No ‘Sachs Appeal’,” Defining Ideas (a Hoover Institution journal), January 24, 2012.)

Let me be clear about the applicability of the Golden Rule in an ideal libertarian society or polity: Both sub-rules — negative and positive — are to be observed voluntarily. But one of them — the negative sub-rule — may be defended by force. Observance of the positive sub-rule may not be coerced, however, because that would violate the negative sub-rule.

The negative sub-rule must be defended because negative rights will not always be respected, human nature being what it is. On the issue of how to defend negative rights, libertarians split into two camps: anarchists and minarchists. These two camps differ about the necessity of the state, which is an independent entity and not an agent of particular members (or groups of members) of a society or polity.

Anarchistic libertarians maintain that negative rights can and should be defended without the intervention of a state. In the anarchistic view, individuals and groups of individuals can contract with each other about rules of interpersonal behavior, and can empower agents to enforce the rules.

Minarchistic libertarians (or this one, at least) maintain that the existence of agents who are empowered by various members of a society or polity is nothing more than warlordism, wherein might makes right. To say that no one would use force to do more than defend one’s negative rights is to make a patently false claim about human nature. (Anarchists, after all, acknowledge the necessity of self-defense.) Minarchists therefore believe that a state should be created and empowered specifically, and exclusively, for the purpose of defending negative rights. Such a state must be generally accountable to the populace, and it must have no power other than to protect the populace from harm. (For more about anarchists, minarchists, and the inevitability of the state, go here.)

Minarchists, nevertheless, tend toward a superficial view of the state’s minimal role, namely, that the job of the state is to see that everyone is left alone, as long as his pursuits are peaceful. That is, the job of the state is to enforce the negative sub-rule of the Golden Rule. So far, so good. Even an anarchist might go along with the idea of such a state.

But here is the rub. What are peaceful pursuits, that is, pursuits which do not harm others? Who defines them? It cannot be everyone for himself; A’s peaceful pursuit may be a nuisance (or worse) to B.

In sum, harm cannot be defined willy-nilly by individuals, nor is it the abstraction that most libertarians make it out to be with their simplistic invocation of the “harm principle.” Rather, the definition of harm must reflect broad agreement about the rules of interpersonal behavior: social norms. Those norms are not mere abstractions; they are specific rules about permissible and impermissible acts. (Caution to readers: Do not mistake state-imposed rules for social norms, though some state-imposed rules may reflect social norms.)

Like it or not, evolved social norms constitute the foundation of a libertarian society based on mutual trust and respect. And if those evolved social norms specifically proscribe such “libertarian” causes as abortion and homosexual “marriage,” where does that leave the typical “libertarian”? It leaves him wanting to repudiate or overturn social norms, without regard for the effects of doing so on social comity. (See this and this, for example.)

But the ranks of “libertarians” also number a strange breed, often self-described as left-libertarian. These “libertarians” actively root for the violation of negative rights in the cause of “social justice.” What is “social justice”? The short answer is that it is whatever anyone wants it to be, but it is never restricted to the enforcement of negative rights. The term “social justice” may be taken confidently as code for the enforcement of positive rights by a coercive state.

Left-libertarians will jump through hoops, turn somersaults, and stand on their heads to deny that they favor the enforcement of positive rights by a coercive state. But they do. A post by Kevin Vallier (one of the Bleeding Heart Libertarians) exemplifies their acrobatics:

Libertarians Great and Small (LGS): At some point in the future a group of committed libertarians establish a libertarian free zone called Libertarian Paradise. In LP, all property is acquired and transferred in line with traditional self-ownership political theory. Deviations from these norms are quickly corrected by private and non-profit legal organizations (call them the Cops).

…Due to LP’s unbridled capitalism, its economy booms, making its inhabitants spectacularly wealthy, so much so that charity easily provides for its poorest citizens.

However, through no one person or group’s deliberate action, prosperity ebbs. Perhaps because of resource depletion, climate change or natural disaster, a class of individuals becomes systematically deprived of basic resources (call them the Small). But while they are regularly hungry, they do not starve. And while they cannot secure many basic health resources, they do not die from easily preventable diseases. However, their poverty substantially sets back their well-being.

But the trouble in LP strikes the best-off as well (call them the Great). They too grow poorer, though they remain very well-off, more than wealthy enough to maintain a high standard of living. Yet they no longer feel secure enough to donate to charity. While the Great continue to donate to charity, LP’s charitable institutions no longer have sufficient resources to adequately provide for the Small….

At first the Small petition the Cops to require the Great to pay higher service fees and to use the proceeds to provide a social safety net. But the Cops reject the Small’s petitions for fear of offending their Great clientele.

Eventually the Small grow tired of petitions and begin to occupy local banks, demanding that a small portion of the fortunes of the Great be used to provide the Small with enough food and medical care to be able to get on with their lives. The Small do so non-aggressively, organizing a poor people’s campaign to nonviolently resist LP’s property regime.

But the Great are frustrated. After all, they still give to charity and they too have grown poorer. So the Great demand that the Cops coercively remove the Small from their local banks on the grounds that the Small are violating the self-ownership principle. The Cops comply.

The Small resent the coercion and complain that it is unjustified because they are merely trying to secure basic resources for them and their children. The Cops, acting on behalf of the Great, violently prevent the Small from securing a minimally decent future for themselves and their offspring.

Vallier maintains that

Traditional libertarianism solidly endorses the coercive actions of the Cops. The Cops and their Great clients may be insufficiently benevolent but they act justly.…

But social justice libertarians (Strong BHLs) have a different reaction. On their view, the Small are not criminals. In fact, their demands are justified. First, the Small have only occupied local banks after petitioning the Cops to charge higher fees. Second, by occupying local banks, the Small are merely asking the Great to provide them with a very mild safety net that, if institutionalized, would in no way prevent the Great from leading excellent lives.

The social justice libertarian can go further and argue that the property claims of the Great are illegitimate. Their claims are illegitimate because the coercion required to maintain them cannot be justified to the Small given that their well-being is substantially set back by a lack of basic food and healthcare. On the social justice view, the Small’s complaints provide legitimate grounds to revise the property rights recognized in LP to permit (and perhaps require) the Cops to provide a safety net out of the proceeds of legal fees paid by the Great.

…In this case, I’m with the Small. How about you?

And, in an effort to seal his case, Vallier adds

Pre-emptive Remarks:

(1) Please don’t respond with “That will never happen.” The purpose of LGS is to draw out your intuitions about what makes coercion and property regimes morally legitimate. That is why it is a thought experiment.

(2) Please don’t respond with “You’re a statist.” Nothing in LGS assumes that a state controls LP or that the Small want a state. These disputes are possible in a market anarchist social order and can be remedied in the name of justice through polycentric legal organizations.

(3) Please don’t respond that the Small aren’t really being coerced. Many libertarians want to determine what counts as coercion entirely by whether property claims are made in line with the self-ownership principle. But that’s implausible. Even private police forces have to use coercion to protect legitimately held property. Just because a piece of property is rightfully yours doesn’t mean your security forces don’t use coercion to protect it.

(4) Please don’t respond with a slippery slope argument. I was extremely circumspect about the sort of justification the Small employ. They reject as unjustified the coercion used against them because it requires that they remain impoverished through no fault of their own when the Great can easily aid them without any significant risk to their life prospects. To side with the Small, you don’t have to adopt any strongly prioritarian or egalitarian distributive principle.

Remark (1) is unexceptionable; I take LGS as a thought experiment, though a failed one.

As for (2), Vallier should read what he has written. When the Small petition the Cops to force the Great to come across with more money for the Small, it is evident that the Small consider the Cops to have state-like power. That is, the Small want the Cops to act like agents of the state by taking up against their own “clients,” the Great. Further, it is clear that Vallier wants the Cops to assume state-like power when he says that “the Small’s complaints provide legitimate grounds to revise the property rights recognized in LP to permit (and perhaps require) the Cops to provide a safety net out of the proceeds of legal fees paid by the Great.”

Vallier resorts to doublespeak in (3) when he says that “the Cops coercively remove the Small from their local banks.” The Cops (as agents for the Great) are employing force in defense of property rights — rights that the Small had acknowledged by virtue of their membership in the Libertarian Paradise. If there is any coercion in the scenario painted by Vallier, it is committed by the Small, when they occupy the banks in an effort to compel the Great to cough up more money. Vallier’s use of “coercively” is gratuitous and does not belong in the phrase quoted above.

Remark (4) is slipperiness itself. Having misapplied “coercively” to the Cops defensive actions (as agents for the Great), Vallier recycles it in the statement that the Small “reject as unjustified the coercion used against them.” (As Lenin said, “A lie told often enough becomes truth.”) The Small may “reject as unjustified” their removal from private property, but that does not make their removal unjustified. (See my comments about (3).) Moreover, it is clear that Vallier adopts some kind of “distributive principle,” other than the libertarian principle upon which LP was founded, when he writes that the Small will “remain impoverished through no fault of their own.” The implied principle is that those who are better off owe something to those who are worse off. How much they owe, and under what circumstances is, of course, determined arbitrarily by “social justice” libertarians like Vallier and out-and-out statist redistributionists like Barack Obama. Their principles are the same, they just articulate them differently.

It is understandable the Vallier roots for the “little guy,” most people do; but the “little guy” is not necessarily the “good guy.” In any event, a libertarian society is impossible if the fundamental tenets of libertarianism can be overthrown simply because the “little guy” wants more than the “big guy” is willing to give. It is not as if the Greats have insisted on a narrow, “leave me alone,” kind of libertarianism; their embrace of the positive sub-rule of the Golden Rule is evident (and realistic). Vallier — like any statist — simply wants to enforce his preconceived notion of how the positive sub-rule should be applied. But the enforcement of any such notion, however well intended, is incompatible with liberty. Moreover, as I have shown, the end result of confiscation through taxation and regulation is general impoverishment; the “have nots” suffer, along with the “haves.”

Left-libertarianism is not libertarianism. And its unintended consequences are dire because slippery slopes are real. State power erodes the societal bonds upon which liberty depends, because — as subjects of the state — individual develop the habit of looking to the state for guidance about proper behavior, instead of consulting their consciences and their fellow men. One misuse of state power leads to another, eventually destroying the fragile bonds of mutual respect and forbearance that undergird liberty. (Regarding the reality of slippery slopes, consider how much the contemporary interpretation of the Constitution diverges from its real, original meaning because of accretion of wrongful interpretations; see especially “Our Perfect, Perfect Constitution,” by Michael Stokes Paulsen, University of St. Thomas School of Law.)

For proof of this, one need look no farther than America. America’s slide into statism began in earnest with with Teddy Roosevelt’s “Square Deal,” accelerated with Franklin Roosevelt’s “New Deal,” and has been compounded since through the steady accretion of power by the central government.

All in the name of “social justice.”

Politics and Prosperity

“Government is a disease masquerading as its own cure.”

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