5. “Libertarianism and the Possibility of the Legitimate State”
by Nicolás Maloberti
Abstract: The classical formulation of libertarianism seems to be incompatible with the requirements of political legitimacy. Some libertarians have endorsed this result, denying that the state is legitimate. This paper argues, however, that the particular nature of that incompatibility represents a problem for the classical formulation of libertarianism. It is argued that acknowledging the existence of a particular minimal form of positive rights might overcome the problem in question. It is further argued that acknowledgment of such positive rights would seem to provide a more adequate normative ground for making sense of some central libertarian insights and concerns.
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Maloberti advances the idea of the existence of a “Samaritan” right, the right to coercive others into aiding you when in need. But he seems to take for granted that the acceptance of a positive right legitimizes the state. On how the Samaritan right relates to the state the only comment he offers is:
“Thus, a samaritan approach to political legitimacy will conceive the legitimate state as a mere enforcer of such rights.”
Whether or not a Samaritan right exists, Maloberti never explains how the existence of this right legitimizes the state. How does the Samaritan right that began as a personal right become the sole property of the State? Even if a person were to hire the State voluntarily to enforce his Samaritan rights that would not excuse the state preventing other people from seeking out an alternate enforcement service or enforcing their Samaritan rights themselves. Monopoly enforcement is no more self-evidently justified for a positive right than it is for a negative right.
But the Samaritan right fails to stand up on its own. Among the conditions for a Samaritan right to exist that maloberti offers is:
“Finally, there is the condition limiting the costs of the aid that is
required from others. Certainly, one has no right to put someone else in a
perilous circumstance even if that is necessary to avoid one’s own perilous
circumstances.”
This condition conflicts with the concept of a coercive right. If I do not have the “right to put someone else in a perilous circumstances” then I do not have the right to coercive them. If we were to apply this condition then unleashing the State’s gunmen on a neighbor to “avoid one’s own perilous
circumstances” would be universally prohibited.
Coercion is not the issue; aggression is. Because I have the right to defend myself, I have the right to “coerce” someone who aggresses (initiates the use of force or the threat thereof) against me. But I do not have the right to aggress against anyone for any reason, including whatever need I might have.
Put another way, the Samaritan, properly speaking, acts on his own initiative, not that of the person in need, and to argue otherwise is to render the whole notion of the GOOD Samaritan null and void, for he then becomes a SLAVE TO the needy rather than the freely acting FRIEND OF the needy.
Logically, then, the state has no such right, either, since it is but a collection of individuals who, like me, have no right to aggress against others.
Moreover, since the state cannot exist but through the confiscation of private property (i.e., through taxation), it cannot act on behalf of the needy without first aggressing against society as a whole. Thus, it has more legitimacy, morally speaking, than the needy have to force others to help them.
All of which is to say that Judaism* had it right from the beginning: “What is hateful to you, do not to your fellow men. That is the entire Law; all the rest is commentary.” — Talmud, Shabbat 31
* I am not Jewish.
That people cannot be compelled to render aid is fundamental to Common Law. Political Libertarianism can be viewed as making that consistent in public services. The author seems unaware of this elementary point.
Two things about this paper:
1- there is a non-sequitur from Samaritan rights to the State.
Assuming there be such things as well-definable Samaritan rights,
how does a monopoly state follows?
Why would a monopoly be either sufficient, necessary,
or useful at all rather than harmful in fulfilling those rights?
2- Who defines the limits of those alleged rights?
Is there an obligation of means or of result?
Just how much of the other people’s resources
does the endangered person have?
And how should these resources be spent?
Who decides? Shall we posit the existence of a State
to make these decisions as a petition of principle?
Then using this as justification for the State is a circular reasoning.