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Source link: http://archive.mises.org/4935/new-working-paper-on-positive-rights/

New Working Paper on Positive Rights

April 20, 2006 by

Why Libertarians Should Reject Positive Rights
by Joshua Katz (Texas A&M)

In “Why Libertarians Should Believe in Positive Rights” (presented at the Austrian Scholars Conference 2006) Nico Maloberti offers a reformulation of libertarianism that does not preclude the possibility, in principle, of a legitimate state. This is done through the introduction of “Samaritan rights,” the right to be saved from a dire situation when
someone is able to do so at a minimal cost to himself. The purpose of the present paper is argue that Samaritan rights should, at the very least, not be accepted as enforceable rights, and therefore do not justify the existence of a state. It will then follow, of course, that Maloberti has not shown that a state is, in fact, justified in principle. With this in mind, I will focus my attention on part 2 of Maloberti’s paper, in which he develops Samaritan rights.

FULL PAPER

{ 67 comments }

Paul Edwards April 25, 2006 at 10:36 am

Roger,

The fact that anarchy is practicable and optimal has nothing to do with changing people into angels. It is precisely the opposite. It acknowledges that we are highly fallible and that furthermore, the worst and most corruptible of us tend to gravitate to positions of political power.

As for what the founders did and did not realize, perhaps they did not recognize, despite most of them being educated lawyers, that the constitution was not a contract and that “We the People” was a ridiculous designation of the very few who wrote it and agreed to it (without signing a single thing mind you). Nor were they ever authorized to get together to make such a claim on behalf of “we the people”. Nor could they have made such a claim on behalf of the millions of “we the people”. Nor did “we the people” ever give express consent to it. One might suspect that they, as lawyers, would realize that the document had no legal power.

You and i could get together tomorrow and make such a document up and it would have the very same legal standing as the constitution does. The only difference would be that we would not have George Washington’s endorsement of it (who many would have gladly made king). And that is the real difference.

Regarding the arrogance of anarchists, I understand and regret that is how it appears. I think there are sometimes gentler ways that i myself could put my thoughts, but in the end they would be the same thoughts, and i hold them adamantly. I believe i am personally open to correction, on the other hand, if i remain convinced my position is correct, i will not hide this fact.

At root, I believe it is not arrogance, but rather that the anarchist’s logic demands consistency that is so irritating. We demand it of ourselves and implicitly of those who dispute our position. One might think it should be the same between the minarchist who disputes the logic of the socialist.

Unfortunately, although the socialist is dead wrong in his position, at least he can be said to be consistent. The minarchist, to my dismay, does not have consistency on his side. And this is a devastating flaw. And no one likes to be shown that their position is inconsistent, unless they are open to changing their views to become consistent. This, in my view, is what the convicted minarchist finds grating about the staunch anarchist. Each time we argue, the same point must come to light: the minarchist’s position is a contradiction.

Roger M April 25, 2006 at 11:30 am

My point about the constitution is that the system is not at fault, the people who administer it are. Property rights were protected to a much greater degree before the 1930′s than afterwards. The system didn’t change but the people did. For anarchism to work, as Hoppe and others have written, people must agree to respect property. What happens if they don’t? What happens if the majority turn socialist on you, as they have in the US? No system or set of laws will protect you when the majority opinion has changed.

As for the consistency of the anarchist position, it is consistent, but its foundations are too weak to support it, as we’ve discussed before. The anarachist definition of morality is weak, doesn’t agree with human nature or how most thinking people in general define morality. And the foundation of private property is too weak for the most important institution in all civilization. Natural law in general (and Christianity in particular) provides a much more secure foundation. From those foundations, natural law is just as consistent as anarchists, and it avoids the morally repugnant traps that anarchists fall into, such as defining all government as evil and allowing people to die to protect property rights.

tz April 25, 2006 at 12:46 pm

Neither the Constitution nor Rothbard’s ethics nor any other document can bind people (or their collective known as government) from evil (tyranny). The 10 Commandments were written in stone, but tend to fade from the hearts and minds of men when not maintained.

To confuse the rule-book with the referee is a very bad error. Yet if you admit both books and referees are needed, the latter is a defacto government. The little men on ice or on the field that are not athletes. They don’t make up rules, but they judge whether they are being followed and enforce them.

The fact that anarchy is practicable and optimal has nothing to do with changing people into angels.

It is either practicable and optimal in a population with 99% socialists and 1% libertarians or it is not. I have found no reason to think it is. Even if the 1% of libertarians had a nuclear warhead, they would still want to trade with the socialists because it would be more efficient (just like the USA trades with China). How long until the libertarians to get trade advantages adopt socialism just to get along? Maybe something will go the other way too, but it won’t end up being an anarchy.

It is precisely the opposite. It acknowledges that we are highly fallible and that furthermore, the worst and most corruptible of us tend to gravitate to positions of political power.

And if these exact same people gravitate to positions as warlords or toward economic power, everything would be just peachy?

In this, it shows that the problem with democracy is precisely because it IS representative. People are evil and corrupt, and vote for those who will promise fruits of corruption.

Yet the market itself also provides lock-picks, bypass devices, and other means of cheating. If there is a demand for property rights violations and even violence, why do you expect the market to not provide it. It does today. There will be a black market under anarchy too.

BTW, I am NOT an anarchist, yet I define all government as evil. However I make the distinction that the evil is unintentional but necessary (coming under double-effect like a theraputic abortion – no mother ever has one because she wants to, the whole point is that both mother and baby will die without the surgery, but if the surgery is performed the baby will unavoidably and unintentionally die).

I do not think we can coexist peacefully, every individual with every other individual – the individual wolf will eat the individual sheep. Even if the sheep’s estate would have a claim, who would they present it to if there is no universal authority. If they can present a claim (as opposed to a counterstrike – I’ve noted sovereigns make war as there is no higher authority between them by definition), whomever they present it to is a defacto government. It need not be solid or continuous (and is probably better in an intermittent and amorphous form). But it must exist. Otherwise the Rothbardian sheep has no where to press for defense or retribution against a pack of Marxian wolves.

In Anarchyland, the fantasies talk about nice and really, really, polite security agents carefully getting (accused) thieves, and never hiring the same evil corrupt thugs that would be working for government today to get back your stuff and break his fingers. Yet the latter is more efficient.

Many have pointed to Somalia, but I don’t hear any plans to move there. The internet is global, so mises.org and such should be able to operate from there. It is the model anarchy. Why aren’t the anarchists flocking there, but staying here and complaining. You are saying either that it works or you can make it work. But like the monk that when asked how many teeth a horse has was criticized for suggesting that they find a horse instead of staying inside and reasoning, the anarchists here would rather stay on the imaginary axis instead of the real one of complex problems.

If Anarchy is practiable and optimal, then go there and practice and optimize what you preach.

Otherwise your words in this computer are worth no more than the ink on the parchment of 1789, or any earlier or later document.

Paul Edwards April 25, 2006 at 1:03 pm

“My point about the constitution is that the system is not at fault, the people who administer it are.”

The people who administer it are imperfect, non-angelic human beings who happen to be answerable to nobody because they are members of a coercive monopoly of legislation, protection and courts. They are the ultimate decision makers and we allow this by pretending that the constitution is valid.

“Property rights were protected to a much greater degree before the 1930′s than afterwards.”

A study of Lincoln in and around the civil war will suggest otherwise. In fact, it has always only been at the discretion of the administrators of the constitution, that property rights are arbitrarily conceded and also arbitrarily withdrawn. The nature of the constitution did not change, merely its lack of authority was revealed further as time and audacity proceeded on.

“The system didn’t change but the people did.”

Neither the basis of the system, nor the basic nature of people changed over that time. The constitution never had the ability to constrain the people forming the government, only popular opinion did to some modest extent. As time went on, people merely added to the government’s reach where their predecessors left off.

“For anarchism to work, as Hoppe and others have written, people must agree to respect property.”

Individual people, for the most part do respect property. Only mobs, criminals and politicians do not respect property. This is the point. Criminals can be contained by a private legal system. People acting as a mob, or especially a mob represented by a tyrant are much harder to contain by any method. The basis of a government is necessarily coercion. It is not reasonable to expect a coercive aggressive entity that takes property that it is not voluntarily given it will protect your life and property.

“What happens if they don’t? What happens if the majority turn socialist on you, as they have in the US? No system or set of laws will protect you when the majority opinion has changed.”

From my point of view this question makes assumptions that stand reality on its head. Individual people, for the most part are essentially law abiding and respectful of property. It is when people are offered political power to designate an agent on their behalf to take property from another and benefit themselves that they become corrupt and socialistic. Governments provide this corrupting opportunity. It is precisely the government with its inherent lack of respect for property that is most likely to NOT protect individual rights in any given scenario.

“As for the consistency of the anarchist position, it is consistent, but its foundations are too weak to support it, as we’ve discussed before. The anarachist definition of morality is weak, doesn’t agree with human nature or how most thinking people in general define morality. And the foundation of private property is too weak for the most important institution in all civilization.”

The anarchist position is very simple and very sound. Do not aggress. It doesn’t get simpler than that or any more correct. Any modification to that is less moral than the anarchist’s position. Any position that says: do not aggress, unless you are an agent of the government is less moral than the anarchist’s position.

“Natural law in general (and Christianity in particular) provides a much more secure foundation. From those foundations, natural law is just as consistent as anarchists, and it avoids the morally repugnant traps that anarchists fall into, such as defining all government as evil and allowing people to die to protect property rights.”

When I hear of Christian ministers coercively confiscating money “donations” in the form of taxes from their reluctant members in order to do more good in the world, then I will be convinced that Christianity advocates coercion for people’s own good. Until then I will submit that the state is NOTHING similar to the church, and that furthermore, the state’s goals are in constant conflict with Christian premises of morality and proper ethics.

Roger M April 25, 2006 at 2:06 pm

Paul,
“The people who administer it are … answerable to nobody…” They answer to the voters.

“A study of Lincoln in and around the civil war will suggest otherwise.” Oh come on! You don’t think Roosevelt destroyed property right during the Depression? Lincoln wasn’t perfect, but he was no FDR.

“Individual people, for the most part are essentially law abiding and respectful of property.” You’re living in a dream world! 2/3 of this country would vote for confiscation of all corporate property in a heart beat if given the chance. Look at the uproar over gasoline prices.

You seem to have this idea that only politicians are evil; the people are good and have been duped. I disagree completely. People get the government they deserve, because politicians merely reflect the attitudes and values of the people. I understand now why anarchists think their system would usher in the golden age; they have an unrealistic view of the public and human nature. In fact, it’s the same view that Marxists have.

“…the state’s goals are in constant conflict with Christian premises of morality and proper ethics.” Christian premises are similar to those of natural law and therefore not in conflict with the state. All major Christian theologians have upheld the state as a God-ordained institution. The idea of a state conflicts only with the narrow, misguided definitions of morality and property invented by anarchists.

Paul Edwards April 25, 2006 at 2:51 pm

Roger,

Me: “The people who administer it are … answerable to nobody…”

You: “They answer to the voters.”

Response: I take it you from this that you voted and that you are very happy with the performance of your government. If this is the case, I cannot argue with success.

Me: “A study of Lincoln in and around the civil war will suggest otherwise.”

You: Oh come on! You don’t think Roosevelt destroyed property right during the Depression? Lincoln wasn’t perfect, but he was no FDR.

Response: Lincoln suspended habeas corpus, jailed people who were outspoken against him, shutdown newspapers and restricted mail access to his opponents. He also executed a very deadly war against people who did not want to be ruled by his regime. And this is government of, by and for the people? LOL. BTW, I’m not suggesting FDR war not a pathetic little dictator who caused great harm to the people. He just wasn’t the first or the only one. And he also won’t be the last.

Me: “Individual people, for the most part are essentially law abiding and respectful of property.”

You: You’re living in a dream world! 2/3 of this country would vote for confiscation of all corporate property in a heart beat if given the chance. Look at the uproar over gasoline prices.

Response: LOL. This is my point, Roger. Give people access to political power and they will be corrupted. They are used to the game by now. Government is the problem to which you allude; it is certainly not the solution.

You: You seem to have this idea that only politicians are evil; the people are good and have been duped. I disagree completely. People get the government they deserve, because politicians merely reflect the attitudes and values of the people.

Response: Roger: the idea I have is this: political power corrupts. Period. Those who are drawn to it may already be corrupt, but there is no question that those who exercise it have been corrupted. It’s human nature. Do you feel you have the government you deserve? I don’t feel I do. Perhaps only anarchists can claim with validity that they did not get the government they deserved.

You: I understand now why anarchists think their system would usher in the golden age; they have an unrealistic view of the public and human nature. In fact, it’s the same view that Marxists have.

Response: I presume most people have similar values to you and me. Perhaps they are not religious, but they wouldn’t put a knife in you for a buck either. You presume people are mostly criminals, but for a minority such as yourself who will somehow manage to vote in a moral government through a democratic process. Can you explain how that’s going to happen even theoretically?

Me: “…the state’s goals are in constant conflict with Christian premises of morality and proper ethics.”

You: Christian premises are similar to those of natural law and therefore not in conflict with the state. All major Christian theologians have upheld the state as a God-ordained institution. The idea of a state conflicts only with the narrow, misguided definitions of morality and property invented by anarchists.”

Response: OK I’m convinced. You did get the government you deserved. If the state is God-ordained, then what comes from the state must also be God-ordained. I don’t suppose you’d concede at least the right of secession to us anarchists would you?

Roger M April 25, 2006 at 3:38 pm

I’m not saying that people are criminals. I’m saying they hold Marxist values. The most common belief in the world is that wealth is limited; for one person, or country to gain, he must do so by taking from another. That believe, which I call pokernomics, goes back to the Greeks and is the heart of Marxism. The vast majority of Americans believe it. That’s why they’re so eager to take the property of the wealthy and corporations via the government; they believe that the wealthy somehow took it from them. Since they’re the majority, the country gets the government the majority deserves. Those of us in the minority can only try to persuade others or leave.

I don’t agree that politics corrupts. In fact, my reading of history has seen politicians restraining the people from the evil they would do in a lot of circumstances, mostly to do with race. Do I agree with everything the government does? Not at all. But it’s not because I think all politicians are evil or that government is evil, but that the voters are misguided and generally corrupt. No, most people won’t steal, but if they believe that the successful have taken their money, they will use the government to get back some of it.

Before you can start an anarchist regime in any area, you’ll have to persuade people to give up their attachment to pokernomics. But then, if we could do that in the US, we wouldn’t need anarchism, since I don’t believe politics corrupts, but reflects the will of a corrupted citizenry.

BillG (not Gates) April 25, 2006 at 4:10 pm

Roger wrote:

“I’m saying they hold Marxist values. The most common belief in the world is that wealth is limited; for one person, or country to gain, he must do so by taking from another. That believe, which I call pokernomics, goes back to the Greeks and is the heart of Marxism. The vast majority of Americans believe it. That’s why they’re so eager to take the property of the wealthy and corporations via the government; they believe that the wealthy somehow took it from them.”

BillG responds:

individual wealth can only be realized by applying labor with capital (stored labor) on land…

the commonwealth (all that pre-exists human labor) is privatized for a few entitled without labor inputs and the shifted costs on the many (via force) violate their absolute right to their wealth via their labor.

the left’s attempts at social justice are justified but arbitrary…

Paul Edwards April 25, 2006 at 4:29 pm

tz,

My hat is off to you for your tenacity. Very little trumps tenacity in life in my books.

I don’t think your position with respect to, or your understanding in regard to the anarchist position has changed since i first started reading your posts. Yours is an inspiring display of mind over matter.

Roger M April 25, 2006 at 4:34 pm

BillG,
Are you arguing Marx’s thought that labor creates all value and that capitalists appropriate the excess value that labor creates, thereby keeping labor poor?

Or are you saying that land is necessary to gain wealth?

BillG (not Gates) April 25, 2006 at 5:09 pm

Roger wrote:

“re you arguing Marx’s thought that labor creates all value and that capitalists appropriate the excess value that labor creates, thereby keeping labor poor?
Or are you saying that land is necessary to gain wealth?”

BillG responds:

no, I am saying only labor confers absolute ownership (not the subjective value theory) and you can’t have wealth without labor ineracting with capital on land so the return on land (economic rent) is not individual wealth as there are no labor inputs from the owner but rather a social surplus (commonwealth) that if privatized actually violates the absolute rights of those being excluded to their labor products.

Roger M April 26, 2006 at 8:49 am

BillG,
Interesting. I haven’t heard that before. I have read a few libertarian writers who argue that labor and use convey property rights to the laborer, but I think they misunderstand theory of the origin of property. The idea that use/labor of a thing, say land, leads to ownership is an explanation of how the ball got rolling toward private property in the “golden age” of prehistory when land was not scarce. From that primitive start, private property rights began to develop, but the use/labor description does not justify private property; it just explains why people began thinking about the issue.

You can think of the ownership of land and capital as the result of previous labor, either mine or my parents. Now say that because of age or infirmity, I can’t labor on my land any more, but allow someone else to work on it. Do I loose the fruit of that previous labor because I can no longer work my land and someone else can? Is that just? Maybe I worked very hard and saved most of my money in order to buy land so that I could rent it out and provide an income for my old age. If only those who labor on the land are entitled to its ownership, I could never do that.

BillG (not Gates) April 26, 2006 at 9:36 am

Roger M wrote:

“You can think of the ownership of land and capital as the result of previous labor, either mine or my parents.”

BillG responds:

there are no labor inputs to the production of land because the land itself pre-exists labor.

there are no labor inputs from the owner for economic rent as it is unimproved land value.

Roger M wrote:

“Now say that because of age or infirmity, I can’t labor on my land any more, but allow someone else to work on it. Do I loose the fruit of that previous labor because I can no longer work my land and someone else can? Is that just? Maybe I worked very hard and saved most of my money in order to buy land so that I could rent it out and provide an income for my old age. If only those who labor on the land are entitled to its ownership, I could never do that.”

BillG responds:

all labor on the land by you or anyone you hire is strictly private property as it contributes to improved land value.

in the system that I advocate there would actually be no purchase price to land just the requirement for exclusive use/possession of a specific location that you share the full economic rent (unimproved land value) with your neighbors (directly and equally) as they are required to do with you.

this will not violate your labor-based property rights to your efforts (or who you hire) because:

a. your labor efforts or hired do not produce the land itself as land pre-exists human labor.

b. your labor effort or hired do not create the unimproved land values (economic rent) – the community of your neighbors do via their presence and labor efforts.

Roger M April 26, 2006 at 12:38 pm

I’ve seen that advocated before. It’s interesting. I just haven’t thought about it enough to have an opinion. The Choctaw Nation of Oklahoma did that before statehood. The tribe owned all of the land and the council would give the right to use the land to certain people for a period of time. Land tenure in ancient Israel during the time of the Judges in the OT was similar, too. However, with the Israelis, the land was divided by tribe and family upon the first settlement, so it was privately owned. But every 50 years, land that had been sold reverted to the original owner. In effect, you couldn’t sell land, just least it for 49 years.

That could work. I don’t see any conflict with natural law. But I don’t think it would make a huge difference in the distribution of wealth, since productivity and entrepreneurship matter today more than land in determining wealth.

BillG (not Gates) April 26, 2006 at 12:57 pm

Roger M wrote:

“I don’t think it would make a huge difference in the distribution of wealth, since productivity and entrepreneurship matter today more than land in determining wealth.”

BillG responds:

that is maybe because you are under the false impression that economic rent is “individual wealth” it is not because there are no labor inputs from the landowners…it is commonwealth as it is the result of the increased demand on specific locations extrinsic to the labor inputs on the location in question.

where exactly do you think this “productibity and entreprenuership” can take place – hovering above the ground?

what percentage of McDonald’s on the books “wealth” do you think comes from revenue vs. land value?

Björn Lundahl October 12, 2006 at 3:26 pm

Justice, Liberty and the Free Market.

A pure free market is based upon the axiomatic principle “that no man or group of men may aggress against the person or property of anyone else”.
This is the very principle which the courts and the legal system should follow.

I hereby quote some old writing written by Elisha Williams (1744);

“As reason tells us, all are born thus naturally equal, i.e. with an equal right to their persons, so also with an equal right to their preservation…and every man having a property in his own person, the labour of his body and the works of his hands are properly his own, to which no one has right but himself; it will therefore follow that when he removes anything out of the state that nature has provided and left it in, he has mixed his labour with it, and joined something to it that is his own, and thereby makes it his property…Thus every man having a natural right to (or being a proprietor of) his own person and his own actions and labour, which we call property, it certainly follows, that no man can have a right to the person or property of another. And if every man has a right to his person and property; he has also a right to defend them…and so has a right of punishing all insults upon his person and property.”

Corporations are owned by individuals.

Aggressions against corporations are, of course, aggressions against their individual owners and should be considered crimes.

In Man, Economy and State, page 1144, for instance, Murray Rothbard wrote and I quote;

“It should be clear from previous discussion, however, that corporations are not at all monopolistic privileges; they are free associations of individuals pooling their capital. On the purely free market, such men would simply announce to their creditors that their liability is limited to the capital specifically invested in the corporation, and that beyond this their personal funds are not liable for debts, as they would be under a partnership arrangement. It then rests with the sellers and lenders to this corporation to decide whether or not they will transact business with it. If they do, then they proceed at their own risk. Thus, the government does not grant corporations a privilege of limited liability; anything announced and freely contracted for in advance is a right of a free individual, not a special privilege. It is not necessary that governments grant charters to corporations”.
Go to; http://mises.org/rothbard/mes/chap15d.asp#3R._Policy_Toward_Monopoly

Property rights and the theory of contracts.
I hereby quote from the book “The Ethics of Liberty” (page 133), written by Murray Rothbard;

“the right to contract is strictly derivable from the right of private property, and therefore that the only enforceable contracts (i.e., those backed by the sanction of legal coercion) should be those where the failure of one party to abide by the contract implies the theft of property from the other party. In short, a contract should only be enforceable when the failure to fulfill it is an implicit theft of property. But this can only be true if we hold that validly enforceable contracts only exist where title to property has already been transferred, and therefore where the failure to abide by the contract means that the other party’s property is retained by the delinquent party, without the consent of the former (implicit theft). Hence, this proper libertarian theory of enforceable contracts has been termed the “title-transfer” theory of contracts”.

Go to;
http://mises.org/rothbard/ethics/nineteen.asp

Violation of copyright is a violation of contract and theft of property.

And this regardless of state laws. If someone sells his property to a person under the condition that the buyer has no right to copy it, the buyer has all rights to the property except the right to copy it. That is, as long as the property is a physical object and is alienable. To find out more on this position go to; http://mises.org/rothbard/ethics/sixteen.asp

Björn Lundahl
Göteborg Sweden

greg October 12, 2006 at 7:44 pm

RE: The ladder taking and states of nature.

The rights of property are societal rules of conduct. (If no society, then no societal rules of conduct.) The presumption is that “society” and its benefits exist to be leveraged by individual actors, if societal rules are to be applied. I think a modern libertarian position on what society is, and what its benefits are, has to do something with choices available to individual actors. A lack of the benefits and choice normally available from society, may provide some level and time of suspension of the societal rules of conduct. This would seem to include some suspension of property rights rules of conduct.

In a dire situation where life is at stake, and a delay of action implied by satisfying the societal rules of conduct, would lead to (perhaps) death, it could be said that society has vanished and the actors are in a state of nature, no longer in society. (The benefits of societal choice are not available in a time frame that would be needed to circumvent transient disaster.) Therefore the societal rules of conduct may be considered diminished, at least. The actors in a state of nature — those whose lives are in a critical transient state — do not have the benefits of society, by the problem definition. So it is debatable how much societal rules should even apply to them for the transient situation.

To be sure, we might well expect the state of nature actions to be adjudicated later in a societal court. But I think many reasonable persons and judges will certainly conclude that the situation would at least mitigate the “guilt” of the ladder takers, and perhaps would acquit them altogether. The ladder taking may not be a violation of anyone’s rights. Those rights are based on the presense and benefits of society, not on a state of nature.

This reminds me of THE CASE OF THE SPELUNCEAN EXPLORERS. (http://www.nullapoena.de/stud/explorers.html)
It is only partially applicable.

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