Libertarians Are Insane

Well, not really. Not all of them. Not all the time.

I refer to recent flare-up of a discussion about the positive/negative rights distinction. This was started by the esteemed Professor Volokh (who, unlike some of his co-bloggers, is far too sophisticated and non-dogmatic to be considered a libertarian, at least in the pejorative sense in which I use the term) who observes, correctly, that the strong distinction between positive and negative rights cannot be sustained once the context for enforcement of rights is considered. In other words, negative rights such as freedom of contract and property rights require active interventions into society by a well-armed state, with our seized property (taxes) funding these interventions if they are to be meaningful. It’s an obvious point, but it’s not often applied to positive/negative rights distinctions, and it should be. As Henry Ferrell notes, this is the argument that lies at the center of Cass Sunstein and Stephen Holmes’s recent book, The Costs of Rights: Why Liberty Depends on Taxes. Since I didn’t get any recommendations on our links below, let me officially recommend this book. It’s point is rather obvious, but also missing from conversations in political and legal theory and political discourse more generally. For a quick and helpful review look here.

Anyway, this is a rather difficult issue for libertarians of the dogmatic variety. Their responses are downright weird. Prof. Bainbridge, whose TCS Reagan piece was the occasion of Volokh’s piece, makes the following observation here:

The first and highest purpose of a right to private property rights thus is a right against government takings of that property. The first and highest function of freedom of contract is preventing the government from interfering with bargains struck through private ordering.

This theme crops up in some of the other libertarian responses as well. It makes less than no sense–when you are robbed, do you say to yourself “this sucks, but it’s sure as hell better than paying taxes?” Of course you don’t. Indeed, most laws that protect negative rights are primarily designed to protect them from your fellow citizens as well as your government, but there is generally a limited exception for governments under certain circumstances (I can never legally kill you, imprison you, or seize your property, but the government can under a particular set of circumstances). And indeed, these government incursions are often central to the protection of our (ostensibly) negative rights–we imprison criminals, presumably, to protect us from them.

Extra-legal government killings and rights violations, especially when systematic and widespread, may well be regarded as worse than the same acts being committed by a desparate criminal. But to not make the distinction between legal and extra-legal acts by governments makes no sense.

The greatest lesson of the critique of the negative/positive rights distinction from Volokh/Holmes and Sunstein is not to demonstrate the folly of dogmatic libertarian thinking, though. It’s to demonstrate that even if we choose a minimal conception of what rights entail, they’ll still come into conflict with each other. This is unavoidable, and leads to tough political choices about which rights ought to trump which other ones in specific circumstances, how those who lose out should be compensated, etc. This is the dirty work of politics and law, and those who attempt to avoid having to entertain this sort of problem through untenable assumptions designed to maintain ideological purity simply aren’t interested in politics in any sort of meaningful way.

UPDATE: Crooked Timber is the place to go for your positive/negative rights needs. Kieran Healy weighs in. Libertarianism is certainly more interesting from a sociological standpoint than a philosophical one. And John Holbo with an important point about the distinction between +/- rights and +/- liberty.