Philosophical Notes 86, Some Critical Comments on Roderick T. Long’s “Why Libertarians Believe There Is Only One Right” (2013), by J.C. Lester

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Some Critical Comments on Roderick T. Long’s “Why Libertarians Believe There Is Only One Right”
J. C. Lester

Philosophical Notes No. 86

ISBN: 9781856376570
ISSN 0267-7091 (print)
ISSN 2042-2768 (online)

An occasional publication of the Libertarian Alliance,
Suite 35, 2 Lansdowne Row, Mayfair, London W1J 6HL

© 2013: Libertarian Alliance; J.C. Lester

J. C. Lester is a Senior Fellow with the Libertarian Alliance.
He is a libertarian philosopher and author of Arguments for Liberty: a Libertarian Miscellany (University of Buckingham Press, 2011)
and Escape from Leviathan: Libertarianism Without Justificationism, paperback (University of Buckingham Press, 2012).
His magnum opus is A Dictionary of Anti-Politics: Liberty Expounded and Defended (forthcoming).

FOR LIFE, LIBERTY AND PROPERTY

 

Abstract

This article explains various imprecisions and clear errors concerning libertarianism in Roderick T. Long’s essay.1  Contra Long, I argue as follows.  Non-aggression is not the fundamental libertarian right—liberty is.  There are non-libertarian rights, but they don’t override liberty.  Assumptions are inevitable because justifications are impossible.  Rights should not be “defined” but, rather, morally and metaphysically theorized.  Moral and legal permissibility need to be clearly distinguished.  Long has unwittingly adopted libertarian, normative conceptions of “aggression” and “force”.  It is possible to accept the right to liberty on no grounds whatsoever, and also conjecture that liberty/deontologism and welfare/consequentialism are systematically compatible for conceptual and causal reasons.  Long’s rejection of positive rights is privileging and not conceptual.  Property needs to be derived from an explicit, non-normative, theory of libertarian liberty.  Long’s overall account is “mysterious” and “one-sided.”

Introduction

I first ought to say that I agree with what I take to be the spirit of Professor Long’s fundamental thesis—apart from the various qualifications that follow.  But, as agreement is intellectually barren, I have only elaborated on our differences.  These are primarily differences that I have with almost all other libertarian theorists.  However, I have yet to succeed in making many of them even notice the existence of these three main ideas:2

  1. An objective, pre-propertarian theory of interpersonal liberty as ‘the absence of imposed costs.’
  2. Critical-rationalist libertarianism.
  3. Causal and conceptual compatibilism concerning liberty/deontologism and welfare/consequentialism.

I have tried to avoid repeating myself and so usually do not tackle similar points in Long’s text when they later arise.  I indent the relevant parts of his text and then respond immediately below them.

Comments

Libertarians believe that there is, fundamentally, only one right:  the right not to be aggressed against.

Surely something more like the ‘right to liberty’ ought to be the fundamental libertarian right (but how is it best theorized?  I say, the—pre-propertarian—‘absence of initiated imposed costs’ or ‘absence of proactive impositions’).  Therefore, non-aggression/invasion/trespass (or, if that is not possible, the minimization of aggression) is a conceptual consequence of the right to liberty, albeit intimately and even inextricably related.

The libertarian position comprises two distinct claims:  first, we have a right not to be aggressed against (call this the Positive Thesis); second, we have no otherrights (call this the Negative Thesis).

We only have an enforceable right to interpersonal liberty (but such liberty needs some theoretical explanation).  The right to non-aggression is another way of expressing this right (but this relationship also needs to be explained).  There are no other rights that override the right to liberty (but there are various other kinds of rights).

A crucial feature of libertarian political theorizing is the insistence that not just the precise nature, but the very existence,of political authority requires justification and cannot simply be assumed.

Not if one is a critical-rationalist libertarian.  If critical rationalism is the true epistemology, then justification is impossible and assumptions are inevitable—but criticisms and defences are possible and desirable.

Very briefly, critical rationalism can be explained as follows.  All observations are theory-laden assumptions (we cannot perceive reality directly).  All arguments rest on, and thereby amount to, assumptions (and all valid arguments are tautologies).  Logically, we can never support or ‘justify’ assumptions because of an infinite regress (or circularity, or arbitrary stopping point).  Therefore, the only logical epistemological position is testing and criticism to try to detect false assumptions.  To ask a critical rationalist to ‘justify’ his assertions is analogous with asking an atheist to name the ‘true religion.’  A critical rationalist can sometimes usefully explain his assertions (their implications, logical and empirical), but that explanation will itself make assumptions, and be incomplete.

If we start from the basic natural rights that human beings would have in any social context, including a state of nature,…

I conjecture that the right to interpersonal liberty is desirable.  The attempt to base that right on nature, looks like a combination of the justificationist and the genetic fallacies.

How, then, are rights to be defined,…

Should philosophers be attempting to define things?  This suggests that, 1) we are concerned about mere words (but words don’t matter: “Words are wise men’s counters, they do but reckon by them; but they are the money of fools”), 2) we are searching for some common usage (but that is unlikely to solve a real philosophical problem), or 3) we are producing a stipulative definition (but that means that it cannot be refuted).  Hence, I had rather say that we are theorizing about what rights there really are (metaphysics) or ought to be (morals).

(Note that the permissibility of enforcinga right does not entail the permissibility of exercising that right.  I have the right to publish and distribute Nazi propaganda; it would not be permissible for me to exercise that right, but it would nevertheless be permissible for me, or my agent, to fend off by force anyone who proposed to suppress that right.)

I find this use of “permissible” confusing.  If you have a right to do something, then exercising that right must be legally permissible (assuming the law does not flout that right) even if it is not morally permissible (according to some people, at least).

For aggression and force are conceptually linked; aggression is initiatory force – or conversely, force is that mode of conduct which, if initiated unilaterally, counts as aggression.

An act of theft is an aggression/invasion/trespass against the legitimate owner.  It need not involve “force” (except, perhaps, in the broad sense that physics uses the term).  Also, a policeman might defensively initiate force against a thief who had himself used no force (by online fraud, for instance).  Lacking an explicit and coherent theory of liberty, many libertarians (unwittingly) use “force” and “coercion” in technical senses that tacitly presuppose, and thereby cannot explicitly explain, libertarian rights.

It should be noted that “aggression,” as used here, is a descriptive concept, not a normative one; hence the libertarian prohibition on aggression is not a truism.  (Admittedly, the term “aggression” has pejorative connotations – and deservedly so!  But so do terms like “torture” and “genocide”; that doesn’t make them normative concepts.  In such cases, the pejorative connotation is not part of the stipulated meaning of the term, but derives from the recognition that what the term describesis in factevil.)

But “what the term describes is in fact evil” suggests that evil, or immorality, is factual or positive.

If we take “aggression is initiatory force” literally, then it is descriptive but inaccurate.  If we take “aggression is initiatory force” to mean what some libertarians mean by “initiatory force”, then it is tacitly normative by presupposing that only violating libertarian property rights (whatever they are) counts as “initiatory force.”

Some libertarians accept this thesis on primarily deontological grounds, pointing, e.g., to the Kantian injunction not to treat persons as mere means to the ends of others, or the Lockean principle that we are not “made for one another’s uses.”  Other libertarians accept the thesis on primarily consequentialist grounds, pointing to the beneficial results of voluntary relationships and the harmful results of coercive ones.

And critical-rationalist libertarians accept this thesis of a right to liberty on no grounds whatsoever, simply holding it as an assumption or conjecture for criticism.  However, they often also hold the conjecture that human liberty and human welfare do not systematically clash because they are systematically complementary in a variety of conceptual and causal ways.

…the ban on positive rights derives from conceptual constraints inherent in our negative obligations, not from any privileging of negative obligations over positive ones.

It looks like privileging to me.  We make observing liberty an enforceable obligation.  But we could, instead, make it a weak obligation and make promoting universal healthcare (or whatever) an enforceable obligation.

Hence it follows that we are committed to recognizing, as instances of initiatory force, someforms of interference with one’s control over external resources, even if no bodily assault on one’s person is involved.  But if such forms of interference constitute initiatory force, then it must be permissible to interfere with them;hence it follows that we must also recognize some forms of interference that do notconstitute initiatory force.  In short, we are committed to a system of property rights – that is, a set of principles determining when one may, and when one may not, interfere with a person’s control over some external resource.

As “initiatory force” (and ‘coercion’) cannot do the job, I derive external property with “imposed costs” (having first derived self-ownership) in a completely non-normative way:

  1. Interpersonal liberty exists to the extent that people do not impose costs on each other.
  2. I make object X without imposing a cost on you.2
  3. If I deny you the use of X, I merely deny you a benefit.
  4. If you use X against my wishes, you impose a cost on me.
  5. If liberty exists (how, or whether it ought to, is immaterial), then you do not use X against my wishes.
  6. What you do not use against my wishes I have control over.
  7. What I have control over I own in a de facto sense.
  8. If liberty exists then I own X.4

Libertarian property rights are, famously, governed by principles of justice in initial appropriation (mixing one’s labour with previously unowned resources), justice in transfer (mutual consent), and justice in rectification (say, restitution plus damages).

However, as I have just explained, it is possible to derive what libertarian property objectively is, or would be, under assumed circumstances completely non-morally (without mentioning rights or justice).

 

The truth or falsity of libertarianism, however, is not my present concern.  I claim to have shown only the following:

1. Whether or not the Positive Thesis, that we have a right not to be aggressed against, is true, there is certainly nothing mysterious or one-sided about finding such a thesis plausible and attractive.

What is mysterious is the account of ‘aggression’ as “initiatory force”.  Libertarians usually have a good tacit understanding of liberty/non-aggression but a poor explicit theory, which critics often use as a rod to beat us with.

2. Given the Positive Thesis, together with some highly plausible auxiliary premises, the Negative Thesis, that we have no rights otherth[a]n the right not to be aggressed against, necessarily follows, and so there is nothing mysterious or one-sided in embracing it.

Rather, we have no rights that override the right to liberty.  This is somewhat mysterious (see previous point) and also one-sided (see next point).

3. Giventhe Positive and Negative Theses, the libertarian view of property rights is more defensible than the welfare-statist view, and so there is nothing mysterious or one-sided about preferring the former to the latter.

If the libertarian view of property rights were to lead to general deprivation and misery while the welfare-statist view were to lead to general flourishing and happiness, then it would be mysterious and one-sided to prefer the former to the latter.  And that is what welfare-statists do assume; hence they do find it mysterious.

Notes

(1) Described as “draft” but, in effect, long-published online.

(2) As found, for instance, in Escape from Leviathan (2012 [2000]), but in published form dating back at least as far as my PhD dissertation in 1991.

(3) Strictly speaking, insofar as you would have used the same particular raw materials in any way, my use of them would impose on you a very slightly higher search cost for similar raw materials.  But, to look ahead, it would clearly impose an immensely greater cost on all to disallow such use and security of possession.  The fruits of everyone’s labours would be liable to seizure.  Efficient economy would not be possible.  It clearly minimizes imposed costs to avoid this.

(4) Escape from Leviathan, p. 78.

 

Bibliography

J. C. Lester, Escape from Leviathan: Libertarianism without Justificationism, University of Buckingham Press, 2012 (2000).

Roberick T. Long, “Why Libertarians Believe There Is Only One Right”, draft manuscript, retrieved 8th March 2013, praxeology.net/onerightREVdraft.doc.