A Weakness In Minarchism

I agree with much of what my co-blogger Jonathan already wrote about the Volokh/Bainbridge debate over positive vs. negative rights, but there are a few things Jonathan left unsaid.

Jonathan is right to highlight the importance of distinguishing between ethics and politics. As he notes, the Founding Fathers believed that (negative) rights exist prior to the formation of government, and government is established to secure these ethical obligations. When Professor Volokh writes that "private property and freedom of contract (as generally understood) themselves involve positive rights," he is wrong from the standpoint of ethics but right from the standpoint of politics.

But this is merely tangential to Professor Volokh's main point: So long as minarchist libertarians and small-government conservatives support the public provision of law, police, and national defense, they cannot at the same time condemn all positive rights. As Professor Volokh puts it, "[P]eople who hold this view must, I think, admit that the question isn't whether positive rights (in the sense of entitlements to government benefits) are good, but which ones are good."

In other words, once you concede that the government is ethically entitled to tax some people to pay for the protection of other people's negative rights, the distinction between this position and the full-blown welfare statist position of positive rights to education, health care, and living wages is no longer a difference in kind but a difference in degree.

Professor Bainbridge tries to get out of this mess by claiming that law enforcement, public roads, and national defense are public goods and therefore justified, while the government services Professor Bainbridge doesn't like--entitlements to things like education, health care, and living wages--merely represent "a positive right to government provision of private goods" and are therefore unjustified.

But advocates of positive rights are quick to point out that things like education, health care, and living wages can be viewed as public goods as well. And even if we could use Bainbridge's public goods argument to sharply distinguish between the two groups--publicly funded law enforcement, public roads, and national defense on one hand; publicly funded education, health care, and living wages on the other--this still would not be a sufficient response to Professor Volokh's main point: that all of these require public funding, all of these are positive rights, and all of these violate negative rights.

Aside from the public goods argument, Professor Bainbridge touches on another common minarchist justification for a publicly funded legal system, constabulary, and military when he writes: "To the extent negative rights have positive aspects, those positive aspects relate principally (if not solely) to the former function of government." In other words, positive rights to publicly funded police protection, legal services, and military defense are justifiable because these in turn help protect negative rights, whereas other positive rights like publicly funded education, health care, and living wages do not.

But why is it justifiable to violate negative rights in order to help protect negative rights, yet it is not justifiable to violate negative rights in order to accomplish other desirable things that make life worth living, like a good education, a decent job, and adequate health care? What good is a publicly funded entitlement to legal or police protection if you don't have the means to feed yourself?

This, of course, is an argument frequently used by leftists in support of positive rights, and it is a good one. It seems altogether odd to say that it is okay to steal from Jones to pay for Smith's police protection, but it isn't okay to steal from Jones to pay for Smith's much-needed life-saving medical treatment. If Smith's negative right to life entitles us to steal from Jones in order to pay the police to protect Smith, shouldn't it also be the case that Smith's negative right to life entitles us to steal from Jones to pay the doctors to heal Smith? In either case, Jones will die if we don't steal from Smith.

Once you go down this slippery slope and allow positive rights in some cases but not others, the strong distinction between positive and negative rights disappears.

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I think one of Volokh's

I think one of Volokh's initial premises is just plain wrong. Namely, it is *not true* that in order to support government provision of service X to everyone, you have to believe that everyone has a positive right to receive service X. If your defense of government is consequential rather than ethical, you may believe that everyone is better off with government providing X even though, in principle, no one can justly *demand* to be provided with X.

In fact, some of his examples seem to fall under this rubric in the real world. Can people really sue police departments for not giving them adequate police protection, for example? I seem to recall that gun rights activists have been fond of citing court decisions denying that people have any right to any particular level of policing. The judges who issued those decisions no doubt thought that in general police departments were good things to have; they just didn't think people could claim a positive right to police services.

So what Volokh fails to realize here is that not all minarchists are the same. A "positive good minarchist" believes that government is really good and justified when it acts within a certain small sphere, and then has problems defending the boundaries of that sphere on positive/negative liberty grounds. But a "reluctant minarchist" or "anarchist at heart" might well conclude that:

1. there are certain services which are vitally necessary to most people, but which it is not practical to provide privately for free-rider or other similar reasons;

2. government provision of those services must therefore be viewed as a necessary evil for want of a viable alternative;

3. *if* gov't is going to provide those services it should provide them to everyone without distinction, since

(a) if the service is not privately providable due to free-rider problems then by its nature you pretty much have to provide it to everyone anyway;

(b) it is dangerous to negative liberty for an agency with a monopoly on force to be allowed to discriminate in the dispensing of its services.

National defense is the clearest example here, but a case along these lines could be made for police depts, fire depts, courts, some infrastructure, and some public health measures. I'm not saying I agree with that case: just that you can make it, and no reference, express or implied, to anybody's positive rights is required.

Nicholas, You are absolutely

Nicholas,

You are absolutely correct: libertarians who subscribe to some form of consequentialism as opposed to deontology are not effected by Volokh's argument. Of course, libertarian consequentialists don't bother making rigid distinctions between positive rights and negative rights in the first place, since their libertarianism is not fundamentally based upon rights but on consequences.

The only deontological

The only deontological argument for minarchism that I can come up with would be that the protection of "negative rights" is +ethical, but the protection of "positive rights" is neutral.
So the sum of the -ethical act of using force on Smith is balanced somewhat by the +ethical act of protecting Jones' property. Whereas the provision of free healthcare to Jones would have no such counter-balance.
This may fall apart under further scrutiny, but it seemed worth considering.

Either way, I'm an anarchist, so the deontological argument poses no problem for me.

As an Anarchist I am unable

As an Anarchist I am unable to consider government as anything but evil. As a Minarchist, however, I think of it as a necessary evil.

But I feel that setting up an utterly socialized portion of the Agriculture sector is not only worthwhile, but more fundamentally required than any healthcare bureaucracy or fire department.

I hate government more than most, yet I am repeatedly forced to argue the case for "big government" programs. Alas.

Why not deny the existence

Why not deny the existence of positive rights, but suggest that people would voluntarily provide such things as police/fire/emergency medical service to those who can't afford it for pragmatic and ethical reasons?

Does minarchism require tax funding?

Gil, How is what you have

Gil,
How is what you have described minarchism?

A minimal state, providing

A minimal state, providing defense/police protection (contract enforcement) to all, funded voluntarily.

There would be a state with a monopoly on providing this service, but they would be funded voluntarily, rather than coercively. So, nobody's negative rights would be violated.

I threw in fire/medical protection above not as essential minarchist services, but examples of something we can see can/should be provided by others because they agree that it's practical/good rather than because they have an obligation (coercively enforced) to provide it.

Gil, There would be a state

Gil,

There would be a state with a monopoly on providing this service, but they would be funded voluntarily, rather than coercively. So, nobody?s negative rights would be violated.

My negative rights would be violated if I tried to seek out alternative providers of the same service outside the monopoly.

Jonathan, My negative rights

Jonathan,

My negative rights would be violated if I tried to seek out alternative providers of the same service outside the monopoly.

Yes, I agree, but that's a separate issue from the one that Volokh raised about having to provide police protection to others.

To agree to minarchism means to accept denying the right to provide some sorts of competing police protection, but doesn't necessarily mean to deny other rights; that's all I was trying to say.

I guess I'm agreeing with Nicholas Weininger above by saying that the provision of free police protection doesn't mean we acknowledge a positive right to it, and that this isn't necessarily a problem with minarchism, as Micha suggests.

There are other problems with minarchism, of course, but there are problems with anarchism, too.

Gil, Yes, I agree, but

Gil,

Yes, I agree, but that?s a separate issue from the one that Volokh raised about having to provide police protection to others.

To agree to minarchism means to accept denying the right to provide some sorts of competing police protection, but doesn?t necessarily mean to deny other rights; that?s all I was trying to say.

Ahh, I agree. If voluntary donations, lotteries, etc can fund a monopoly, it can be said to provide these services without relying on a positive rights justification.

But advocates of positive

But advocates of positive rights are quick to point out that things like education, health care, and living wages can be viewed as public goods as well.

Sure they can, and I can be quick to claim the moon is made out of cheese. Merely being quick to claim something does not make the claim correct.

But why is it justifiable to violate negative rights in order to help protect negative rights, yet it is not justifiable to violate negative rights in order to accomplish other desirable things that make life worth living, like a good education, a decent job, and adequate health care? What good is a publicly funded entitlement to legal or police protection if you don?t have the means to feed yourself?

Problem: You see a gunman draw his weapon and you state he is about to go on a killing rampage. He shoots one innocent bystander. You are standing next to a table with a gun. The table and gun are on the property of another person who has a no trespassing sign. You are unarmed. Do you let the slaughter ensue, or do you violate the landowner's negative rights and take the gun and shoot the maniac? Oh, and you are unarmed at the time and so is everybody within reasonable distance to prevent the slaughter.

Steve, I'm familiar with

Steve,

I'm familiar with the crazed gunman example, ever since I read Chap. 41 in David Friedman's Machinery of Freedom. Of course I would trespass and take the gun; I am not a deontological libertarian. But this act is certainly not justifiable according to a negative rights perspective. I would also steal to feed myself and my family if I had to, but I wouldn't ever claim that this is justifiable according to a negative rights perspective.

I don't think your example satisfactorily answered my question: Why is it justifiable to violate negative rights in order to help protect negative rights, but it is not justifiable to violate negative rights in order to help protect positive rights?

Micha, I think the problem

Micha,

I think the problem here is that the question has been phrased incorrectly. I think the issue is somewhat analogous to a constrained optimization problem vs. and unconstrained optimization problem.

When you have people interacting there is bound to be conflicts, thus the question isn't can we devise a system of rights where there are no such conflicts, but what system of rights will, in a constrained sense, maximize people's liberty.

I think many of the critics of the negative/positive rights distinction have taken the unconstrained view and of course, that is just patently silly.