Foundations of Liberty: Contract Law Vs. Government Coercion
By Jan Narveson
To many people of the libertarian persuasion, the question, “Well, why should we accept this view?” tends not to be raised, or the answer treated as self-evident. They think, I guess, that one needs no answer, or that the answer is too obvious to bother with. Unfortunately, I cannot agree with that. Or rather, fortunately! For the trouble with saying that something is self-evident is that this automatically makes you at a loss for words with anyone who disagrees. And it seems pretty obvious that many people today do disagree – indeed, practically all of them do, oddly enough. Can we say anything to these people to bring them around? Or at least make them feel slightly foolish? That is the question that this talk proposes to answer in the affirmative. There are things we can say, and they are, I think, compelling.
Libertarianism is above all a claim about rights. It is, in fact, the claim that we all have, really, just one fundamental right, which we can describe as the right to liberty – hence the name ‘libertarianism.’ In order to give a decent defense of the view that we have a supreme general right of liberty, we must first say what the view is, and that, as a matter of fact, is not so easy.
2. The notion of a Right
Starting at the very beginning, let’s first say a few words about what a right is. I don’t mean what rights we have – that’s what the libertarian theory tries to explain. I mean, rather, what it means to say that someone has a right, any right. Again, this is often thought obvious, but obviousness is out of place here, for this is a matter of explaining what we mean, and it’s always reasonable to ask for that. So what is meant by claims about rights?
There are elaborate answers to this, but there is one fairly simple one that is, I think, clearly right. To say that someone, say Mabel, has a right, is, in the first place, to bring up the subject of who this is a right in relation to: who, out there, is affected by this right? There will have to be an answer to that: somebody out there is such that Mabel’s having a right entails that this person, or these persons, have a duty, a requirement on their behavior, in relation to Mabel, which requirement holds by virtue of her having the property that gives her this right. In the case of grand general rights such as we are fishing for here, the persons against whom Mabel’s right is a right are everybody else. In the case of other, specific rights, we can specify which particular people she has this right against, which people owe her something by virtue of her having that right against them. Whichever, these people are said to have “correlative” duties in relation to Mabel.
So what do they owe to Mabel? There is a short answer to that, and a longer one. The short one goes like this: They have to keep off! But that really needs some explicating, in a longer answer. The longer one starts with the observation that rights are desirable things from the point of view of their possessors – things that they prefer to their alternatives. What the correlated duty-holders have regarding Mabel is a duty to act in a way that is fundamentally advantageous from her point of view.
3. Two kinds of rights: negative and positive
That said, we must, at this point, make a very important distinction. One thing, and the basic thing, that a right entails is the duty that the correlative agents must refrain from actions that would make it impossible for Mabel to do what her right is a right to do. (In a slightly variant form, the duty is to refrain from damaging the thing that she has a right to; we’ll say more about the distinction between rights to actions and rights to things shortly. They are not fundamentally different, as we will see.) This right to noninterference, to non-doings on the part of the correlative agents, is called a negative right. The distinctive thing about negative rights is that the duties they entail can, in general, be discharged by doing nothing. All you have to do is, don’t! For example, the right to life, in this basic, “negative” form, is the right that others not kill you – not take your life. It’s wonderfully easy to live up to that. In our sleep, we refrain from killing any of the six billion people in the world, and we don’t even notice the fact!
Another sort of right, however, may be defined. Mabel might have a right not only to noninterference, but to more. Suppose she has bought a custom-made cake from someone, and he is to deliver it on Tuesday. Then she has a right against the seller of the cake that he have it ready for her on Tuesday. This he cannot do by doing nothing – he’ll have to bake it and deliver it. It imposes a positive obligation, a duty to do, not just to refrain.
4. The Problem for Libertarians
It is a very important question what our basic rights are – indeed, whether we even have any. Some people think that people have fundamental, positive rights. Libertarians deny this, for reasons we will come upon shortly. Notice that liberty might (and does) give us the right to bind ourselves to positive duties. I can give you a right over me, by making a commitment of some kind. The question is whether I can have any positive rights without any action or commitments undertaken on my part. That is what libertarians fundamentally deny.
To see why it is not so easy to explain just how a basic, general right to liberty works, let’s start with what I hope you will agree is a crazy view: the view that just one person in the whole world actually has this right of liberty. That person has the right to do absolutely anything; nobody else may interfere. Suppose that Mabel decides she’d like to have your head on a platter, like Salome and John the Baptist; then nobody would be allowed to stop her from chopping it off and having it. Needless to say, however, it would not be possible for Mabel and John both to have this unlimited right. If there is anything Mabel may not do, then she does not have an unlimited right to liberty; and the same goes for John. And that means that as soon as more than one person gets into the picture, we must somehow limit the rights of at least one of the two, if we are to have a theory of rights that makes any sense. We libertarians want a general right of liberty, a right that everybody is to have – the same right for us all. Fine: but how can we have this?
Indeed, the problem confronts us right away as soon as we realize that what a right is is a limitation on someone else’s liberty. For A to have a right against B is for it to be the case that there are certain things B cannot do; and vice versa. So a universal, unlimited, general right to liberty is complete nonsense. (The philosopher Thomas Hobbes, who is one of my heroes in this enterprise, did claim that there was a “right of nature” which consisted in the liberty to do anything. So “every man had right to every thing, even one another’s bodies.” Taken at face value, his claim is complete nonsense.)
5. Liberty, What
What, then, do we do? We have been talking of rights to liberty, but what is that? The answer is, liberty is when others don’t stop you from doing whatever it is that you have the right to do. The right to liberty is the right that others not keep you from acting, and acting as you please. I interfere with your actions when I hobble you, stop you, put obstacles in your way. If all of us are to enjoy a right of this sort, then we must somehow organize things so that what A has a right to do doesn’t collide with B’s rightful exercise of his liberty, and vice versa. How is this to be done, coherently? Clearly – I suggest – what we need is somehow to assign a “region” of liberty to each, with nonoverlapping boundaries, such that within that region, the individual in question can act as he pleases, but when he crosses the boundary into someone else’s region, he may not do as he pleases, but must instead do whatever the occupant of that region is willing to have him do.
In essentials, as you will have noted, this is a sort of private-property view of liberty. Just as a person’s home is said to be his castle, so this view has it that a person’s region of liberty is his little kingdom, or empire. Liberty is every person being his or her own emperor or empress.
What’s in this kingdom and how do we identify it? The first thing on the list, clearly, is the person’s own body. We must be careful here: when we say that this is John’s body, we are saying one or the other or both of two distinguishable things: (a) that this body is a part of, or naturally attached to, John. That is, the statement that this body is John’s is, in that sense, a factual claim. If you see a foot protruding beneath a fence, it may not be obvious whose foot it is, but this can be settled by a suitable investigation: you find out by locating the rest of that body, the limbs and trunk that this foot is the extremity of. But we use possessives in another sense too, what we call a “normative” sense. In sense (b), the claim that something belongs to someone says that it is rightly that person’s, that nobody else may just go ahead and do what he pleases with it. Others must clear their desired use of it with the owner.
To see that these are different, just recall the institution of slavery. In principle, the slave didn’t belong to himself, but to his owner. The slave’s foot in sense (1) was the owner’s property in sense (2). We, of course, want to deny that anyone is anyone else’s slave; but what we are denying is not a contradiction, but an alternative, and evil, moral or legal view about the people in question.
Starting with the body gets us somewhere, but not necessarily very far. The reason not is simple: a right is enforceable. If A has the right to x, then Bis not allowed to use x as B pleases, but B must instead get permission form A to use it. If B goes ahead and tries to take it or use it anyway, A or her friends get to prevent that. Rights legitimize force and coercion, when they are violated. Now suppose that we grant A a right to her body, but every space in the whole world outside her body belongs to someone else, so she can’t move without violating their rights. That would be bad news indeed for A; it would not be surprising if A took the view that her vaunted right to liberty was, in that case, no right at all, or was totally worthless. Is it just luck that it is not? I don’t think so, but the question is a tricky one.
6. How a General Right to Liberty Works
Well, let’s now get out into the world with this one right, of bodily integrity, and see where we go with it. The answer, of course, is, more or less all over the place. For starters, everyone is born somewhere, and where he is born is, usually, an area over which his parents have some rights; this space is allowed to the newborn by those parents. He’s got a start, that way. (Do parents as such have a duty to allow their children freedom of movement? You must listen carefully to Sarah Lawrence’s paper, tomorrow, to hear a very interesting, positive answer to that question.) But we have enough problems with grownups, so let’s return to them. Out there in the world people do things, and move about. They start using things, in various ways. By and by, established patterns of use will be confirmed with recognitions of rights. If I’m doing something with something, and was the first person to do so, and intend to keep on doing it, then other people who propose to use it would be interfering with me if they didn’t clear it with me. The general right to do what we wish enables us to claim items in the world as our property: property rights are nothing but non-interference rights over identifiable, establishable patterns of action. Often, of course, we will cross paths with others, and in the course of interaction we will come to make some agreements about who gets to do what, and with what. These agreements emerge from a background of freedom plus path-crossing. To enable each of us to have a rightful area of freedom, we swap our powers of action in such a way that this person is recognized as having this, that person as having that, and so on. Also we may find it helpful to establish common areas, such as parklands and sidewalks, which may be used by any peaceable person.
So the general right of liberty is really a general right of self-ownership, property in our selves, plus whatever extensions of that initial area we make by our plans and actions in relation to others. The general principle of property acquisition is that you get what you are the first to use, when you intend to, and so, keep on using it through time. Once you have such things, of course, then liberty rights are easy to identify, for now you simply do whatever you wish with your property, so long as you do not use it to violate the rights of others over their properties. This implies – as you may not have noticed! – that you may also turn over the rights to these things to other people. You will do that either because you like them so much that you just want to give them the thing, or more likely, that the other person has something you want even more than the original item, so you work out a deal and trade it. In general, our lives, socially speaking, will mainly be a series of voluntary exchanges among people who might otherwise keep bumping into each other. The basic right of liberty, then, is actually nothing more nor less than the right to peace, the absence of aggression by others.
7. Positive Rights Curtail Negative
Some theorists – indeed, almost all theorists in contemporary philosophy and political theory – think we have lots more than this initial right of liberty. But there is a problem in so thinking. For all rights limit liberty, as we have seen; but positive rights limit it more than negative rights. It is impossible to have a general, maximal right to liberty and to have any positive rights at all. For those positive rights require that somebody else do things which he may not want to do, and then what? If we insist on them, then his liberty is, in that regard, curtailed. The libertarian principle give us the minimal curtailment of liberty. It is the only principle that can make that claim.
Watch out for people who insist that there are not only “negative” rights, saying that they are “not enough” and that in addition, or even instead, we should have “positive” rights too. Positive rights cuts into negative rights, as we have seen. But these theorists claim that positive liberty is something we desperately need and ought to have, and so ought to claim a right to. These people, as I shall argue shortly, have a problem: the problem of justifying the extra curtailment of liberty on the part of potential suppliers of the items that the positive right would be a right to. To say this is, of course, is to assume that there is a prior, and stronger, case for negative liberty. Let’s now turn to that question – Why? Why, that is, should we think we have any rights at all, and why the libertarian program of rights in particular?
8. The Why of Rights
I believe there is a good answer to this. What we are arguing for is general principles of action for regulating our mutual behavior. We would like to have the best such principles. Those who claim that certain rights principles are “natural” – who have what is usually called a “natural rights position” – maintain something which a lot of us find unintelligible, namely that somehow inert Nature can tell us what to do. If we deny that, as surely we should, then we need a better answer. What is the criterion of assessment for such things, then?
There can only be one general sort of answer. In general, each of us will use as criteria whatever we value. Different people have different values – very different, indeed. You might think that this makes our problem insoluble, because we’ll get a different answer from each person. But those who say that haven’t thought clearly enough about the matter. If they think that we don’t need any principles in this area, my response to that is that if the folks around them find that out, life is going to be pretty tough for the would-be unprincipled person: tough and, likely, short. People who say this don’t usually mean it; they usually, indeed, don’t know what they’re talking about.
We interact with lots and lots of people, most of them total strangers. Which principles, limiting our own and everyone else’s conduct, would the rational person go for? Well, this question surely segues into another: what is it reasonable to expect of them, and what is it reasonable for them to expect of us? Obviously we need a principle that people with different values would all find it rational to accept. Precisely because they are so different, if they were to act exclusively on the variable values they have, we’d soon get into trouble.
The brief answer to this, inform, is obvious: I will go for the principle that does best for me, you for the one that does best for you, and so on. However, don’t forget that it has to be the same principle for all. That is because it will be useless if it isn’t. A proposed principle won’t be much use if it is just my personal principle, and indeed might get me into a huge amount of trouble, at the hands of people with very different ones. What we had better ask for, then, is the principle that is best for me provided that it is also best for you, and her, and that person over there – indeed, for everyone.
Well, what principle is that going to be? The liberty principle gives us all a general, basic right to do as we want, limited by the similar right of all others. If that principle is observed by all, then we won’t have to worry about being killed, or injured, or stolen from. We will have to worry about how to get that woman whom I love to say Yes, and how to afford the new cottage we want, and so on. But those are worries that anybody will have anyway. There is no way to get those by just claiming rights to them, because there is simply no reason why anybody else, except maybe our spouses (maybe!), should care enough about us to provide us with them, and absolutely no reason why they should submit to a regime in which somebody comes around and forces them to provide them. We can always do better than that: namely, we can buy into a regime of rights which says that people can only get things from you by getting your agreement to do them, and the same for me in relation to them. On the other hand, a principle that says, you have to do x for others, whether you care about them, or like to do that sort of thing, or not, looks like a bad idea from anybody’s point of view. It doesn’t help if the theorist says, “But, look – you get the benefits of others being required to do that for you, too!” It doesn’t help because our tastes, or our needs, or our circumstances, may differ. (Indeed, we may be perfectly certain that they will differ in many respects. No two of us are even as alike as peas in a pod, let alone as alike as two billiard balls.) It is a bit crazy to try to justify an involuntary exchange with the argument that it is such a keen deal that we would take it even if we had our choice. For if that were true, then it of course would not need to be involuntary, now, would it? For then we’d do it anyway! Freedom is all we need to get the benefits of freely made deals. And it is very much what we need to avoid the downsides of unfreely made ones.
To be sure, many theorists nowadays want to say that the down-and-out in this world, or the pareplegic, etc., are in the position of being subject to “unfreely made deals”, since their paraplegia, or whatever, makes it impossible for them to do otherwise. This sort of argument is tiresomely familar among my fellow academics, and also among many ordinary people. It’s an odd argument, because the people who advance it evidently care so much about these people that they are willing to make big sacrifices for them. Obviously a paraplegic, etc., is in no position to help himself; others are going to have to do it. These others will do it either voluntarily or involuntarily. If so few people want to help them that there wouldn’t be nearly a political majority to get the involuntary help on the way, then those people won’t, of course, get helped by the political route. But if so many people feel the way these proponents feel, why wouldn’t they get enough help anyway, without putting a gun to the heads of the few holdouts who don’t want to? I have yet to hear even a half-decent reply to that problem, and I take that to be some evidence that there isn’t one.
I believe that this argument is utterly decisive if we are serious about having general principles of conduct to apply to all, that would be accepted by rationally acting people. Other principles always put something over on us, one way or other; this is the only one that does not.
So we see why the basic right is that of peace. It is so because the alternative is war, and war is a mess – a condition that can always be improved to the advantage of both parties to it.
I haven’t said a thing as yet about enforcement of this principle, and that’s important. So before closing, I will. The question of enforcement is: who is to do it, and why? The common answer is that some nebulous, apparently pristine entity known as “the government” will do this. Says who? So far as I can see, a powerful group of people given to understand that they have the power to protect everyone and nobody gets to say Nay to them is a group that is likely to misuse that power. Why wouldn’t they, after all? What’s to stop them? There have to be better ways to secure our rights than that. At any rate, if we are going to have such a thing as a government trying to fulfil this important function, there will have to be in force some kind of very powerful hobbles keeping it from going wild. So far as I know, these hobbles have always failed, in greater (usually) or less (occasionally) measure.
But we can’t go into that much here. I will just remind the reader that liberty is basically negative, and that means that nobody owes anybody else police services either, along with all the other things they don’t owe anybody. So you aren’t entitled to conjure up a benign, efficient government out of thin air. You and your friends, neighbors, and associates will have to come up with something that works. Good luck!
It is quite true that the liberty principle doesn’t give you absolute guarantees of that cottage you’d like, or of medical services, or even of enough to eat. It gives you something better: namely the right to do what it takes to have all those things, provided only that you allow all others the same right. And of course it gives people the right to be generous and helpful; not surprisingly, when people have this right they tend to exercise it rather helpfully and quite generously – a lesson not absorbed much by my fellow Canadians, I am sorry to say (especially by the academic among them), nor even by many Americans. Sad. But at any rate, it is not surprising that in history, the people who have got the best results in the way of living the lives they want to live have also been the freest people. We are quite a way from having the sort of freedom we libertarians think all of us ought to have, and we are all suffering, in greater or less degree, for being that far from it. But we’ve got a fair bit, and enough to see that more would be still better. Let’s hope!