Cite articles as: Author, “Title,” Libertarian Papers [volume #], [article number] (year). Example: Jan Narveson, “Present Payments, Past Wrongs: Correcting Loose Talk about Nozick and Rectification,” Libertarian Papers 1, 1 (2009).
7. “Libertarianism and Positive Rights: Comments on Katz’s Reply”
by Nicolás Maloberti
Abstract: In “Why Libertarians Should Reject Positive Rights,” Joshua Katz offers a critical response to the argument developed by Nicolás Maloberti in “Libertarianism and the Possibility of the Legitimate State.” In this rejoinder, Maloberti argues that Katz’s response fails on two accounts. First, it fails to grasp the nature of the problem his article was ultimately concerned with. Second, it fails to present a solid case for the rejection of the type of positive right that it was argued libertarians should endorse as a solution to that problem.
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Mr. Maloberti,
Although I too may be missing the true nature of what your original article sought to address, I find, like Mr. Katz (with all apologies to both of you), that if the foundation is flawed then the structure can not stand.
I liken your “samaritan” rights to the “right” to affordable health care, in so far as it imposes a cost on B (in your scenario, a good samaritan, in mine, a health care provider), enforced by C (some state entity), and based on or from the perspective of A’s abilities, or inabilities to provide for him / her self.
IAW libertarian principles ownership of oneself is the foundation upon which all rights are derived. If we do not own our own bodies, then we are not and can not be truly free. Under either of our scenarios, some outside (from B’s perspective) entity (either A or C, or A and C, or maybe even an as yet unformed D) would have to interpret what an acceptable cost to B is. If not, then A has no basis for claim against B (taking for granted in either scenario, that A survives); or maybe more accurately, A has no basis for a claim of restitution and / or C/D has no basis upon which to pass judgment on or punish B. Again without these allowances, what would be the point of designating such “rights?”
To tie that back to self ownership, it is B and B alone that possesses the true right to assess and make decisions based on what B thinks are acceptable costs. Only B can “make the call” as to whether saving the baby is worth to B what it might cost B; or whether stitching up an accident victim is worth to B what universal health care would provide in compensation vice what B would otherwise receive for such a service on even our version of a “free” market.
The imposition (which certainly implies enforcement) of even a perceived duty on a free being, outside of an agreed upon contract, indentures them to that which they may not otherwise agree.
This is why I, as a budding libertarian, can not accept your basis for the possibility of a legitimate state.
Very Respectfully,
Tom
Libertarianism is a body of thought with a very strong philosophic core, perhaps best summed up in its famous Non-Aggression Axiom: The initiation of force is wrong.
Maloberti says “libertarianism is usually formulated as establishing the illegitimacy of all compulsory transfers of justly acquired holdings and the permissibility of all voluntary transfers of such holdings.”
If I may bluntly frame Maloberti’s proposal, as I understand it, it goes like so:
We should reformulate libertarianism, such that some compulsory transfers of just property are legitimate vis-a-vis the new formulation.
I’m not sure Maloberti fully takes in account what a hard sell this is. His argument, and I again take the liberty of bluntness, is so weak that it’s almost hard to take seriously.
In part I of his first article, he describes his assessment of the weakness of classical libertarianism. In part II, he describes certain positive rights that he believes would mitigate said weakness. In part III, he makes the attempt of synthesizing these positive rights with classical libertarianism, and asserts this will bring other benefits to the movement.
I, unlike Katz in his response, will attempt to argue against all three parts. After that, I will comment on the elaborations Maloberti provides in this article. May the reader judge my success.
———————————-
His argument in part I is essentially an argument from effect- that is: this idea, if true, may have such-and-such negative consequences; therefore the idea is false.
My first observation: This is an out-and-out logical fallacy. The conclusion simply does not follow from the premises.
Maloberti couches his argument in terms that make this argument a little hard to discern. He seems to view the possible establishment of a state through some type of cost/benefit analysis. In his words:
“[W]e tend to think that a plausible political philosophy would justify at least a minimally costly state if the inconveniences of the stateless society are considered particularly severe, and that if such a state would be able to overcome them.”
I would go so far as to deny the existence of said inconviences (and the ability of a state to overcome them), but he goes on, in the very next sentence, to say:
“We must note that the problem is not avoided by merely denying the existence or the severity of the many alleged inconveniences that will ensue in the absence of the state.”
Thus rendering himself invulnerable to the objection that his proposal is impossible in practice.
I believe I first learned from Rothbard that a theory that is impossible in practice cannot be possible in principle– if it’s impossible, it’s a bad theory. Period.
It’s a simple matter to flesh out the objection to Maloberti’s argument. The empirical observations and theoretical arguments against the state’s efficacy– that is, the possibility that the state can overcome serious inconveniences– are very well enshrined in libertarian literature. Let me go to Ludwig von Mises, who, like Maloberti in this line of argument, grounded his theory on its effect in practice:
“Economic interventionism is a self-defeating policy. The individual measures that it applies do not achieve the results sought. They bring about a state of affairs, which–from the viewpoint of its advocates themselves–is much more undesirable than the previous state they intended to alter.” –Bureaucracy, p. 119
While we haven’t yet brought up the nature of Maloberti’s proposed changes, let me assert for now that such changes are out-and-out economic intervention– the transfer of goods or services by coercion– and fully subject to Mises’ observation.
What Maloberti, in my final analysis, is trying to put across in part I amounts to the exhortation that libertarians say, “If a stateless society results in such-and-such negative consequences, we will accept a limited state to remedy them, because those negative consequences are most effectively remedied by a state.”
Yet, the great thing about libertarianism, as it already stands, is the synergy between the moral and material aspects. Libertarianism is a system where upholding the moral code generates the best empirical conditions realizable, under any circumstances. In short, in addition to freedom being right, freedom works. The free market produces so much, and mitigates so many negatives in life, it’s absurd to the classical libertarian that a stateless society would result in circumstances that call for a state.
Moving along to part II, Maloberti describes a system of positive rights which he calls “samaritan rights”. If I may begin by phrasing it in my words, samaritan rights are the rights to coerce assistance to remedy a problem. He places a manner of verbal limits on these rights (which we will see later are not so effective as limits), but, as Katz observed in his reply, Maloberti’s justification seems to be little more than an appeal to intuition, or if I may say, common sentiment. The drowning baby example is well-designed to draw sentimental feeling in on the side of samaritan rights.
Maloberti takes the moral intuition, “One should save a drowning baby” to the ethical judgement, “One should be forced to save a drowning baby.”
I’ll throw out, as an aside, the obvious objection that anyone in a position to coerce the samaritan would be in a good position to save the baby themselves and spare the samaritan the jackbooting.
Maloberti presumes an important step, in his own words: “Presumably, only few will deny that there are positive obligations when it comes to emergency situations.” What I’m feeling positively obliged to do is remind Maloberti that he’s dealing with libertarians, here. Katz, too, called him out on this. I, for my part, will assert that helping people is a good thing, but the problem comes next.
He then admits the possibility of denial, where he says, “Perhaps more plausibly, it is sometimes claimed that while it is undeniable [when "few would deny" a moment ago- Brian] that we might have some positive obligations, such obligations could not be rightly enforced.” Classical libertarianism would, of course, assert precisely this against Maloberti. “Help other people in need” is among a great host of good advice- e.g., “Don’t drink to excess,” “Save for a rainy day,” “Trust, but verify”- that cannot be enforced. In fact, although it would be good if everyone did it (uncoerced), forcing people to do it would ruin the intended effect.
Katz has speared Maloberti’s argument regarding heroism and Maloberti acknowledged that, were his argument solely resting thereon, it would fall on that weakness, so I will not go into depth on it- but I will spare one observation: The hero in the Bible’s Good Samaritan parable is the Samaritan. Not the victim, for foregoing coercion of passersby, but the Samaritan, for giving aid for no benefit of his own.
Even at this point, I consider the proposition of samaritan rights to be fully refuted. But, let’s look further at Maloberti’s four criteria for the emergence of samaritan rights, which he posits more succinctly in this article:
“1) [T]he situation must truly be dire, 2) the perilous circumstances the samaritan right bearer faces must not be due to his own fault, 3) the aid that may be coercively secured must be strictly necessary to overcome the peril, and 4) the aid that may be coercively secured must not impose more than a reasonably low cost on others.”
Maloberti describes this in this article as “a particular minimal form of positive rights”. Yet, this “particular minimal form of positive rights” doesn’t actually describe something very much minimal- in fact, they are altogether unlimited. I can’t imagine any welfare system whatsoever that doesn’t qualify.
One, the situation must be dire: Maloberti doesn’t even limit these crises to life-and-death issues. He mish-mashes in the first article that the notion includes “a danger that compromises the minimal satisfaction of certain basic preferences that people might have relating to living.” The libertarian economist will easily observe, direness is a subjective judgement- a personal assessment of a situation. Who makes this assessment has a very great effect on what situations qualify.
Two, the victim of circumstances must not be at fault: the classical libertarian will answer that the victim of circumstances is nonetheless responsible for his own plight, where he was not coerced into something; the hiker who gets lost is much the same as the businessman who is losing his shirt: both failed to predict the outcome of events, and are paying the price. On the other hand, if you peruse the literature surrounding various “Victim Group” movements, you can learn that entire ethnic, racial, and religious groups aren’t responsible for anything that’s happened to them for hundreds or thousands of years- it’s all the fault of another group, which victimized the first. Who makes this assessment has a very great effect on what situations qualify.
Three, the coercively attained assistance must be necessary to overcome the peril: here we have two questions– What is “necessary”, and when is a peril “overcome”? These are greatly mucked up by problems with uncertainty, probability, and time preference. “Necessary” must be determined ex ante, when the outcome is yet unknown- the future is always uncertain, and predictions thereof are frequently wrong. Even when probabilities can be assigned, your moral intuition will give different answers when “probability of perilous death” is 99% versus 1%. Regarding “overcoming” perils, Terry Schiavo comes to mind. Every day, the “peril” of dying that day was staved off, for months and months, at taxpayer expense. On another tack, if some procedure could double a man’s remaining lifespan (10 to 20, or 40 to 80, say), is getting that procedure “overcoming a peril”? Who makes these assessments has a very great effect on what situations qualify.
Four, the cost to the samaritan must be small. Now we observe Katz hit this one on the nose. Assessment of cost is another personal judgement. Who makes this assessment has a very great effect on what situations qualify.
Now that I’ve asked four times, who, then? The obvious answer- your samaritan State, of course. The state always arrogates to itself this kind of assessment. I imagine you’d like to fiddle with the wording of these criteria before putting them into practice, but there’s still a problem. No matter the words you pick, once the Black-Robes are done with them, they’re going to mean about the same thing as such greats as “Promote the General Welfare”, “Necessary and Proper”, and “Shall Not Be Infringed”.
Now, finally, in part III, Maloberti attempts to synthesize his samaritan rights with libertarianism. He asserts that, where circumstances may merit a legitimate government, those circumstances therefore get “full moral significance”. We can make cost/benefit analyses of a state versus a stateless society. Thus, we can argue with statists without having the conversation abruptly terminate when we tell them that all states are illegitimate. We could also end the conflict between minarchist libertarians and anarchist libertarians.
That is, our morality now being dependent on the situation at hand, we get all the benefits of moral relativism. We can argue against the state sometimes, and for the state other times, and change our minds about the nature of right and wrong, based on the “full moral significance” of empirical circumstance.
Forgive the sarcasm, please.
Nevertheless, I assess this as introducing moral relativism. Let me remind everyone that moral relativism is what let a great many statist psychoses run virulent courses through the world over the last couple centuries. Marxism relied on it. Fascism relied on it. Much of today’s statism relies on it.
Giving “full moral significance to [...] empirical facts” is not a benefit to libertarianism, I’m afraid. The schism between minarchist and anarchist will remain The Most Crucial Gap in Politics.
As well it ought to.
But wait! Where’s the synthesis of libertarianism and samaritan rights? Actually, I must apologize. I said above that it was in part III, but now reviewing it, I realize that Maloberti never actually did it. In fact, he even ends a very good description of deontology as a strong feature of libertarianism with what appears to be a direct contradiction thereof:
“For deontology, moral constraints are genuine constraints. They cannot be violated for the sake of what is taken to be a better state of affairs. The endorsement of deontology is a central feature of libertarian moral theory. This is what distinguishes the libertarian case from other defenses of the free-market. Acknowledging the existence of samaritan rights is compatible with this type of moral stance.”
So, we cannot violate our moral constraints merely to improve the situation. Yet, this was precisely the justification for samaritan rights in the first place– if bad things happen, let’s acknowledge these positive rights and form a state!
Even though Maloberti acknowledges at the beginning that libertarianism classically disallows the illegitimate transfer of justly held property and admits his proposal allows the same, I can detect no apparent effort, outside of the argument to effect, to “make space” in libertarian theory into which we could slide samaritan rights.
I would speculate that there’s no way it would work anyway. But that’s another matter.
Finally, let’s turn our attention to what new information Maloberti presents after Katz’s reply. Maloberti did respond to Katz’s attack on the “heroism” line of compelling assistance by asserting, “The argument for the enforceability of samaritan duties was intended to be the more general idea that there are certain actions that, due to their demandingness, no plausible moral theory could request from us.” I’ll launch a frontal attack by a rather crude rephrasing: “Our moral theory is too demanding, let’s ditch it.”
Though crudely put, I feel this was, and remains, the central point.
Later, regarding Katz’s observation that interpersonal comparisons of utility make samaritan rights unworkable, Maloberti simply asserts, “I do not believe, however, that the subjective nature of cost imposes any serious challenge to my argument.”
The subjective nature of cost means you cannot determine, under any circumstances, that any intervention for the support of samaritan rights cost less than the benefit rendered.
Cost/benefit analysis of samaritan rights enforcement is absolutely impossible.
There’s no way, no possibility, no means whatsoever, to compare what the samaritan loses with what the hapless schmuck gains.
If this is no serious challenge to his argument, then I wonder what would be.
Maloberti then concludes. I shall do likewise.
As with many positive rights theories, this one seems very arbitrary. Why do so many scholars defend compulsion? “Bad ideas never die.” – Rothbard
I think Maloberti does not adequately address the problem of the case of multiple savers. This creates very strange ‘rights’ indeed. In every case, one person’s right is another person’s obligation. Thus, for a right to be definite, the nature of the obligation and the person(s) bearing the obligation must also be definite. For example, in the case of universal rights (e.g., the right to be free from aggression), the obligation falls on everyone. In the case of particular rights, such as the right to be repaid a debt, the obligation falls on a definite, particular debtor.
But who bears the obligation of Maloberti’s “Samaritan rights” in the case of multiple possible savers? By symmetry there is no reason why one of those savers would bear the obligation and not others. But on the other side, we cannot say that all the potential savers bear the obligation, because Maloberti would consider the obligation (or ‘right’) fulfilled (or not infringed) if just one potential saver is forced to save. But again, by symmetry, we would then fail to have equality before the law. One potential saver was chosen and coerced arbitrarily while the other potential savers were spared. Objective rights cannot be based on a foundation of arbitrariness.
Thus this supposed ‘right’ is not well defined because the person(s) bearing the obligation is not defined. But this is often the case with claims of positive rights. The definiteness of the obligation is not considered. Ayn Rand called this the “blank out”.