Comments Elsewhere

Richard: “Yes, many libertarians take (e.g. property) rights as fundamental, rather than freedom. They’re not the kind of libertarian I was discussing in this post.”

I think this is a confusion. Libertarians do not, generally, regard liberty (in the sense that is relevant to a theory of political legitimacy) and individual rights as two concepts that you can spell out quite independently of each other and then ask about the boundary conditions or prerequisites that the one imposes on the other. Rather they generally take the two notions to be analytically connected to one another in such a way that you have to understand each in order to understand the other. (How do you know whether you are free? By looking at whether your property rights are being respected. How do you know what property rights you have? By looking at what sorts of actions would infringe on your liberty.) There are exceptions — the official position of Stinerite egoists, for example, requires a claim that freedom is more fundamental than individual rights, which are merely instrumentally valuable insofar, and only insofar, as the social truce they produce tends to maximize freedom for the agent. But there’s good reason to say that these exceptions, where they happen, tend to undermine the libertarianism of the person holding them to the degree that they are treated seriously (e.g. Benjamin Tucker’s egoist polemics involved him in assertions that it would be right to do unlibertarian things under certain specifiable conditions), so it’s unclear that this constitutes any avenue for attack on libertarianism; at most it just constitutes an avenue for criticising some libertarians as inconsistent.

Richard: ‘But as I suggest here, your ‘moralized’ conception of freedom has some absurd consequences. If you hold that a person is “free” so long as their rights are not being violated (or “aggressed” against), then you must hold that a justly imprisoned criminal is not thereby deprived of his liberty. Clearly this is mistaken — prison is the paradigm case of unfreedom!’

I don’t think this actually does the work you think it does. “Liberty” and “freedom” are words with many different senses; I think it is clearly false that there is a univocal notion of “unfreedom” that you can use to determine whether a justly imprisoned criminal is free or unfree. Certainly there is a sense of freedom in which any constraint on action whatsoever constitutes a constraint on freedom; i.e. in which “free” and “unfree” line up roughly with “voluntary” and “involuntary.” If that’s all you mean then a justly imprisoned criminal is indeed unfree; but then so what? That’s not the sense of freedom that libertarians consider relevant to their theory of political legitimacy. There’s another sense of the term “freedom” in which you are free if you are being treated according to a full set of human rights and unfree if you are not; here “free” and “unfree” line up only with “voluntary” and “involuntary” only when the actions are non-aggressive, and being prevented from rape, pillage, murder, et cetera is not to be considered a limitation on what you might call “political freedom,” since there is no human right to rape, pillage, or murder.

You might think that this still offends against common sense; that we ought to consider a prisoner, even a justly imprisoned one, a paradigm case of unfreedom in the political sense as well as in the volitional sense. I agree that people often are inclined to say (1) that prisoners aren’t free in a political sense, and (2) that this is justifiable if they are justly convicted criminals. But I’d suggest that people tend to believe both (1) and (2) together only because it’s very common to mistakenly believe (3) that we’re entitled to treat criminals according to less than a full set of human rights in punishment for their crimes. If (3) were true, it would follow that you can justifiably do things to criminals that would limit their freedom, and incarceration under such-and-such conditions might be among those things. But if (3) is false (as I think it is), then either (a) you can justifiably incarcerate someone for such-and-such a crime, as a defensive measure against imminent danger to others — in which case it is just as false to claim (1) as to claim that a would-be rapist’s political freedoms are being infringed when you push him away; or (b) incarcerating someone under such-and-such conditions for such-and-such a crime would be an infringement of political freedom, in which case you shouldn’t imprison people like that for such-and-such a crime, and that any justifiable action on the part of the criminal justice system would have to be limited to things like fines or ordering the payment of damages. (I think, incidentally, that (a) is clearly the case for certain crimes, but that (b) is clearly the case for many crimes for which people are typically imprisoned today.)

In other words, prison is the paradigm case of one kind of unfreedom. But that’s not the kind of unfreedom that libertarians primarily care about. (The paradigm case of the kind of unfreedom that they do primarily care about is not prison, but rather slavery.)

Richard: “Anyway, it still fails the well example, because the person stuck down the well is not being aggressed against. Rather, he is being ignored. Aggression is a subset of intervention, after all.”

Not so. My point above is precisely that one kind of inaction (specifically, negligent inaction) is a form of aggression, in the sense that libertarians use the word. If knowingly leaving someone to suffer and die in a well, or leaving someone to perish in a structure fire, when you could save them without further danger to yourself and when it’s likely that nobody else could or would, does not amount to an act of aggression, then what does it amount to? That seems aggressive to me, but if you don’t like using the word with that signification then feel free to suggest some different name for it — coercion? rights-violation? tort? injustice? — and I’ll use that name for the purposes of this discussion. My point will be served so long as there exists any ethical category Epsilon such that (1) Epsilon is plausibly connected with a conception of political freedom; and (2) Epsilon covers (i) all acts of non-defensive violence (including extortion by credible threat), (ii) all acts of fraud, and (iii) all cases of harm from negligence, but does not cover other kinds of wrongs or vices. Whatever it is you call Epsilon, libertarians think that that is the only ethical category such that you can rightly force people not to engage in the acts that come under it; and non-libertarians think that there are some further kinds of actions that people can be rightly forced not to do. The important thing to note is that it’s quite possible to be a libertarian, and to admit (iii) to membership in Epsilon (aggression/rights-violation/tort/whatever) without also being compelled to admit the sorts of things that you think your well example ought to force people to admit (e.g. not giving enough money to some specific program designed to alleviate systemic poverty or provide disaster relief, etc.).

Richard: “As an aside, trying to ground morality on inviolable ‘rights’ is rather silly and fetishistic”

Maybe so, but I’m not at all clear on what you mean by the phrase “trying to ground morality”. Certainly libertarians do not need to claim (and most do not claim) that all legitimate moral claims are reducible to claims about inviolable rights. (Libertarians may very well think that intemperance, miserliness, cowardice, bigotry, foolishness, et cetera are wrong and should be condemned; to remain libertarians they need only hold that they should not be stopped by violence.) If you mean to suggest that any inclusion of inviolable rights in a moral theory makes it silly (which is what you suggest in the post you link to) then the response is twofold/ First, that libertarians who emphasize rights don’t need to hold that it is never justifiable to violate those rights in order to defend a libertarian political programme; they just need to hold that it is not justifiable to violate those rights systematically (if it is justifiable to murder one person in order to save many under extraordinary circumstances, it does not necessarily follow from that that it’s justifiable to establish a political order that routinely violates rights in order to achieve this or that putative benefit). Second, that there are just as many and as serious objections against theories that suggest that you can legitimately violate rights in order to maximize some good that does not include considerations of justice in it (e.g., scapegoat cases, Williams’ objections against impersonal calculation, etc.), and it seems to me that if you think the choice is obvious or that one of the alternatives is just silly, you probably need to think about the problem harder. (Certainly your post on side-constraints doesn’t fully make the case; among other things it requires that we share your intuition that you can give any kind of account of what the good for human beings is that doesn’t refer to things like justice and respect as constitutive parts of it. I think that this is a fallacy, exposed and probably decisively refuted by Socrates. In any case, there is quite a bit of debate over it, and it is for precisely this reason that side constraints are supposed to constrain the way that they do, so dismissing the idea as silly seems to me at best overly hasty.)

Richard: “Finally, the traffic example doesn’t depend upon physical risks. Suppose that without traffic laws, people would just drive very very slowly and carefully, and so it would be no more dangerous than our current system.”

Where this is true I don’t see what possible justification there is for government-imposed traffic laws. I can see good reasons to legally punish people who endanger others on the road. Whatever laws are adopted to that end could justifiably be enforced on anybody who uses any road.

I can also see good reasons for the owners of road to establish utilitarian rules of the road, which aim at making the use of the road as smooth and convenient for travellers as possible. But I have no idea why rules adopted under this second justification should have the force of law or why they should have to be the same on all comparable roads. Why not let the owner of each road decide what the rules for their road will be, and letting travelers decide which road they prefer to take? (Of course, someone who refused to obey the rules of the road could be evicted from the road by the owner, and if they refused to go voluntarily they could be arrested for trespassing. But that’s different from legally enforcing uniform traffic laws on all roads.)

At this point you might say, “Ah, but wait. Who owns the roads? The government, of course, so that’s why the government should be making and enforcing the rules of the road even when they don’t have an immediate safety justification.” But why should the government own roads?