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Jun 6, 2017

The Robustness of Natural Rights Libertarianism: A Reply to Lindsey

Natural rights are an essential part of the liberal tradition.

Introduction

In “The Poverty of Natural Rights Libertarianism,” Brink Lindsey argues that radical libertarianism rests on an “intellectual muddle” which libertarians should “abandon…altogether.” That “intellectual muddle” is the natural rights tradition. Lindsey thinks that radical natural rights libertarians have vastly exaggerated the strength of their moral case for an anarchist or minarchist society, and that the appropriate response is for libertarians to reorient their politics closer to the pragmatist center and to justify their positions morally by appealing to “liberal values” instead of rights.

Lindsey’s essay is mistaken both in its general approach and its particular claims. Moreover, the errors are interwoven in a way that makes addressing the problems with the argument difficult—a narrow reply can quickly spin out of control as more and more related problems are implicated, and a general reply that encompasses Lindsley’s whole argument will probably not apply universally.

Throughout the piece, Lindsey tries to insulate himself from accusations that his arguments are unlibertarian—this is understandable, given that his argument is addressed to libertarians, attempting to convince them to abandon a certain type of libertarianism. There can be no question that vigorous internal debate must be an indispensable part of a healthy libertarian movement—it is what keeps libertarianism from ceasing to be an active intellectual tradition, keeps it from ossifying into a mere dogma. That said, there are risks that come with turning one’s pen on one’s friends.

Lindsey seems aware of at least some of these risks, and perhaps because of that awareness he takes pains to establish the “libertarian-ness” of his position. One way he does this is by reminding us of the institutional affiliations of the scholars whose work he cites, hoping we will accept this as evidence of their expertise, their respectability, and their libertarian bona fides. This approach might have succeeded if Lindsey’s quarrel were not about about what should count as libertarian orthodoxy; plenty of libertarians, after all, have very unorthodox opinions, and their holding them does not by itself make those opinions libertarian ones. There can be no avoiding a debate on the substance, then, and as I shall demonstrate, Lindsey’s substantive argument fails. As an unfortunate result, the piece ends up reading like an ill-conceived attack on Lindsey’s libertarian allies and a plea for libertarians to give up being libertarian in the name of some vague promise of “winning.”

I say “ill-conceived” because writing radical, natural rights libertarians out of the libertarian movement will not get Lindsey what he wants. Lindsey believes that libertarianism is being held back from having the respectability it deserves because it is clinging to natural rights thinking and to radicalism: jettison these, and the path lies open. But Lindsey is wrong, on two counts. First, he conflates an admirable kind of respectability, of which a libertarian could be proud—honesty, innovativeness, scholarly rigor, persuasiveness—with something altogether different: legitimacy and influence in a conversation among policy experts and politicians where opposition to the state is considered in itself uncouth and embarrassing. Second, Lindsey’s causal analysis misses the mark. Radicalism and natural rights thinking are not the primary obstacles to the sort of respectability Lindsey has conflated with the admirable kind—being libertarian is.

To the extent that Lindsey gets his wish of a libertarian movement free of radicals and natural rights thinkers, I fear he will regret helping to bring it about. He will have lost friends more valuable than he acknowledges in pursuit of a hollow respectability he and the others who remain will never attain, so long as they remain libertarian in anything other than name, and to which they ought not aspire.

Lindsey’s nominal thesis—that natural rights ethics is a dead end for libertarian inquiry—conceals several distinct theses lurking slightly below the surface. Some of these are implicit theses—not explicitly mentioned so as to avoid having to explicitly defend them. These I will make explicit and refute. Others are theses that Lindsey has conflated and which I must attempt to separate and clarify before refuting. I will show Lindsey’s argument for his thesis fails on multiple levels. His premises are mistaken and his conclusion does not follow from them. To conclude my analysis of Lindsey’s essay, I will return to the ideas of “respectability” and “seriousness” that are central to his thinking on radicalism and natural rights, and explain why no supporter of what he calls the “liberal ideal of the good society” should accept his dismissal of natural rights and radical libertarianism.

Lindsey’s Concessions to Natural Rights Libertarianism Ring Hollow

Lindsey begins his essay by telling us that it’s limited in scope:

Here I don’t mean to disparage the concept of natural rights, which is an important part of the liberal intellectual tradition. Of course there are sources of moral authority outside the state and by which state actions can be judged – this is the essence of the claim that there is a “higher law” to which we owe our ultimate allegiance. This idea is the patrimony of all liberals, not just classical liberals and libertarians: consider, as just one case in point, Martin Luther King, Jr.’s“Letter from Birmingham Jail.” More specifically, the idea of a system of compossible natural rights – according to which individuals have the moral right to make their own choices in life so long as they don’t interfere with others’ right to do the same – provides liberals of all kinds with an ideal model of human interaction. Individuals flourishing in lives of their own choosing through voluntary, positive-sum cooperation with others – that is the liberal ideal of the good society, and a system of natural rights provides its underlying moral structure.

The problem lies not with the concept of natural rights, but with that concept’s overextension.

Yet, nothing in the rest of Lindsey’s argument suggests he believes the problem is only with the overextension of natural rights thinking. His problem is with natural rights per se and one cannot, given the arguments he makes and the conclusions he draws, escape the conclusion that natural rights per se are his intended target. If one were to take Lindsey’s concessions in the quoted text at face value, most of the rest of his essay would seem like much ado about nothing. All I would have to do is point out what the “sources of moral authority” outside the state are, demonstrate that the continued existence of the state is incompatible with any plausible construal of them, and then Lindsey and I could have a congenial debate about the particular contours we might want or expect a libertarian anarchist society to have. In the context of that discussion, some of Lindsey’s criticism of particular anarchist and minarchist positions might hit home. But that is not the conversation Lindsay is engaged in; it is not the essay he wrote.

We can start to get a picture of Lindsey’s actual project when we look at a paragraph near the end wherein Lindsey describes the narrow and gerrymandered scope he envisions for natural rights thinking:

The idea of individual natural rights has fairly clear implications regarding freedom of speech, conscience, and assembly, and freedom of person and property from arbitrary seizure. But in the realms of social policy and economic regulation, the power of natural rights to shed light on resolving details of policy and positive law is limited. More widely shared considerations – such as effectiveness, efficiency, and consistency with economic and political constraints – have more power in defining limits to government power that libertarians find congenial, if not completely satisfying.

Questions abound. If natural rights are so indeterminate with respect to economic regulation and the welfare state, as Lindsey argues, what is different about their application to freedom of speech? Why the sudden clarity and decisiveness in natural rights thinking when we move from the exchange of coin to the exchange of words? I fear that Lindsey has put his finger on the scales. He wants, or at least will not spurn, the power of natural rights arguments, and the moral authority they bring, but only when they don’t interfere with policies he supports.

Lest anyone doubt that he is arguing against natural rights per se, and not the overextension of natural rights thinking, Lindsey spells it out plainly in his concluding paragraph: “I believe the best path forward for libertarians is to abandon radical libertarianism’s intellectual muddle [i.e. natural rights] altogether.”

Lindsey’s Other Target: Radicalism

In addition to natural rights, the other major target of Lindsey’s ire in “The Poverty of Natural Rights Libertarianism” is radicalism. Lindsey sees libertarian radicalism as linked fundamentally to the natural rights tradition. He may be right that the two are connected, but the concepts are logically distinct and our thinking will be clearer if we consider each concept separately.

Lindsey’s case against radicalism fails, mostly because he asks the wrong questions. When he does ask the right questions, he unfairly holds radical libertarianism to a higher argumentative standard than moderate libertarianism.

Lindsey paints radicalism as a naive, intellectually shallow, and politically counterproductive position for libertarians to take. One gets the sense that he sees radicals as engaging in radicalism for radicalism’s sake—this is evident, Lindsey says, in the glee libertarian radicals display when they bite the bullet in response to a proffered reductio of a radical libertarian position. Lindsey also accuses radicals of engaging in motivated reasoning, preferring natural rights thinking because they believe natural rights thinking leads to radical results. When Lindsey says “The concept of natural rights is simply too open-ended, too indeterminate, to bear the burden that radical libertarians expect it to carry,” this is what he’s getting at.

Perhaps because he doesn’t think too highly of the arguments presented by radical libertarians, Lindsey puts the cart before the horse and criticizes radicalism rather than radical arguments. That’s not a justifiable approach, though: The question is not whether radicalism is good or bad per se; the question is whether it is warranted. If it is warranted, then we should be radicals, and cope with whatever practical limitations our radicalism imposes on us. Similarly, if radicalism is not warranted, we should be moderates, and cope with the practical limitations our moderation imposes on us.

Lindsey never engages with the core claim of libertarian radicals that most or all of the state is illegitimate. Instead, he cherrypicks different positions—mostly, but not exclusively, positions within the anarchist tradition—he thinks are wrong, criticizes those as confused or impracticable, and offers this as evidence that radicalism as a whole is ill-conceived. More concretely: he dodges the question of the legitimacy of the state entirely, and spills gallons of ink discussing why Murray Rothbard was mistaken about some very specific legal questions. I don’t mean to say that Lindsey’s criticisms of Rothbard, who he oddly never names, are without merit, only that they are beside the point. Nothing in Rothbard’s argument against the state hinges on his being right about the correct libertarian position on this or that specific issue in law. For purposes of deciding whether radicalism is warranted, it’s completely a red herring.

In the course of his criticism of radicalism, Lindsey engages in special pleading for the more moderate position he favors. For example, at the beginning of the section titled “The Outside World,” Lindsey writes:

The defensive case for redistribution resolves a problem that radical champions of Libertopia tend to assume away: how do you best protect natural rights when not everybody (or, more realistically, almost nobody) is a libertarian?

Natural rights radicals don’t get their way, Lindsey says, because most people are not libertarians, much less radical natural rights libertarians. For this, Lindsey says, natural rights radicals must answer. Fine, but by the same token, Lindsey-ite “liberaltarians” don’t get their way, either, because most people are not libertarians, much less Lindsey-ite liberaltarians. If anything, Lindsey’s position is less popular, has more enemies, than the position of the natural rights radicals. Natural rights radicals have to answer for this too, says Lindsey; they are an obstacle to the respectability necessary for persuading people to Lindsey’s position. This kind of rhetoric pervades Lindsey’s piece—Lindsey demands radicals offer foolproof solutions; moderate libertarians face no such demand, and their failures are excused away.

Lindsey’s General Strategy

Lindsey sets out to demonstrate that “the conclusions radical libertarians reach about the proper use of authorized force do not follow logically from their natural rights premises.” Much of Lindsey’s argument takes the following form:

  1. Conceive of a dystopian society that (allegedly) takes rights seriously.
  2. Compare that society to a society committed to “liberal values” instead of rights.
  3. Conclude from the comparison that the society imagined in (1) is illiberal.
  4. Conclude, further, that taking rights seriously should be at most an incidental part of the libertarian intellectual project going forward.

There are two major problems here.

First, are the dystopian societies actually rights-respecting, as is alleged? Has Lindsey successfully demonstrated that a society that takes rights seriously can nevertheless be deeply illiberal? Set aside this concern for now. Later on, I will comment briefly on the problems with the details of Lindsey’s examples.

Second, steps two and three implicitly assume something Lindsey must prove: that taking rights seriously is just one potential moral justification for, and one potential means of attaining, a liberal society, rather than being an integral part of what it means for a society to be liberal. Even if Lindsey’s argument succeeds in demonstrating that taking rights seriously is not sufficient for having a liberal society, he has merely assumed that it is not necessary.

In the following few sections, I will demonstrate that Lindsey’s measuring stick—a society based on “liberal values”—is deeply inadequate as presented, and further that it cannot become adequate without incorporating natural rights thinking. After that, I will return, as promised, to the details of Lindsey’s argument, with special focus on whether the dystopias he constructs are plausible.

Lindsey’s Amorphous “Liberal Values”

Lindsey’s argument leans heavily on the idea of a society based on “liberal values,” which is set up as a point of comparison by which Lindsey hopes to demonstrate that rights-driven societies are inadequate. “The Poverty of Natural Rights,” however, is mostly silent on what “liberal values” are and what the “liberal ideal of the good society” is, saying only that it entails “Individuals flourishing in lives of their own choosing through voluntary, positive-sum cooperation with others.” This description is of little help, especially given Lindsey’s endorsement of of policies and institutions that contradict a plain reading of it. For example, Lindsey endorses welfare, but transfer payments are not voluntary or positive-sum. In fact, nothing or almost nothing the state does can be plausibly construed as voluntary, if by “voluntary” we mean something like “consensual.”

In his piece on the non-aggression principle, Lindsey offers a slightly fuller sketch, but still only a sketch, of what he means by “liberal values”:

Rather than searching vainly for some value-free intellectual foundation, I begin with an explicit commitment to liberal values: a belief in the moral worth of the individual, and a vision of social progress in which more and more people are flourishing in lives of their own choosing. And rather than grounding my political views in speculations about some hypothetical (and, to my mind, chimerical) utopia, I look to history and the social sciences for guidance as to how best to advance those liberal values in the specific circumstances that confront us today. In my view, the case for a libertarian approach to politics rests on its combination of moral seriousness and empirical soundness: its principled commitment to individual autonomy, as well as its insightful recognition of both the pitfalls of centralized control and the immense fertility of decentralized experimentation, competition, and coordination.

Lindsey does not tell us what he means by “flourishing” or “individual autonomy.” For all Lindsey’s talk about hypothetical speculations and chimeras, I had expected his description of his own values to be more concrete.

Lindsey’s “liberal ideal of the good society” embodying “liberal values” is ultimately an empty vessel into which Lindsey can put whatever suits his purposes. He’s just told us, in essence, “imagine a society that looks libertarian to you,” so he can ask us to compare it to a society he’s purposefully constructed for the purpose of seeming illiberal and just generally bad.

His description of how he thinks libertarians should effect socio-political change is similarly vague: “I look to history and the social sciences for guidance as to how best to advance those liberal values in the specific circumstances that confront us today.” That is what everyone does, up to and including those radical libertarians who endorse a purely educational praxis—they take their knowledge of history and social science and apply it to the context facing them. Incredibly, Lindsey wants to carve it out as the exclusive domain of moderates. He just baldly asserts that it is moderates, not radicals, who engage in “the humbler but more constructive task of making the world we actually inhabit a better place,” and radicals, not moderates, who are hopelessly pining after the impossible while gains toward the liberal society slip through libertarians’ grasp.

Put less artfully, Lindsey claims that the practical path is libertarians doing what he wants them to do anyway, unencumbered by his embarrassing radical allies.

A Brief Detour: Is Natural-Rights Radicalism an Attempt to Evade Politics?

I want to return for a moment to the paragraph, quoted above, from Lindsey’s piece on the non-aggression principle:

Rather than searching vainly for some value-free intellectual foundation, I begin with an explicit commitment to liberal values: a belief in the moral worth of the individual, and a vision of social progress in which more and more people are flourishing in lives of their own choosing. And rather than grounding my political views in speculations about some hypothetical (and, to my mind, chimerical) utopia, I look to history and the social sciences for guidance as to how best to advance those liberal values in the specific circumstances that confront us today. In my view, the case for a libertarian approach to politics rests on its combination of moral seriousness and empirical soundness: its principled commitment to individual autonomy, as well as its insightful recognition of both the pitfalls of centralized control and the immense fertility of decentralized experimentation, competition, and coordination.

I discussed Lindsey’s presentation of “liberal values” in this paragraph in the previous section, but there’s a lot more than that going on here. Note Lindsey’s bizarre characterization of the non-aggression principle as a “value-free intellectual foundation” for libertarianism. It is worth discussing this characterization here in some detail, since the same claim, only broadened, recurs in “The Poverty of Natural Rights Libertarianism”:

The tradeoff between security of rights and freedom of action can also be seen as a conflict of rights…Resolving the conflicts requires value judgments about the relative importance of these two elements of the bundle.

And later:

In making these sweeping changes, judges weren’t merely “finding” the law according to some value-free rule of reason. On the contrary, they were actively making law.

The implicit thesis here is that appealing to rights is not making a value judgement, as though value judgements must be made entirely apart from moral reasoning, or at least apart from moral reasoning in the natural rights tradition. Lindsey seems to think, in fact, that value judgements can only be based on something like a gut feeling. I don’t know what to say to that except to say that it’s fundamentally confused. However, it’s not just an odd mistake; Lindsey’s confusion on the matter ends up serving a rhetorical purpose. Lindsey seems to be trying to declaw the arguments of natural rights thinkers not by refuting them, but by placing certain types of political decision making outside the reach of rationalist moral critique by mere fiat.

For example, in his essay on the non-aggression principle, he writes:

The idea of the NAP as a fundamental axiom amounts to a dream of life without politics: there exists one neutral, value-free basic principle that can generate an entire neutral, value-free system of rights and obligations….Value-laden disputes over rival conceptions of the good are irrelevant and out of bounds.

It’s a dream of understandable appeal, given the inevitability of moral squalor and distinct possibility of outright horror that come with politics. But it is a delusion all the same, for the truth is that politics is unavoidable.

This won’t hold water. It does not follow from “politics is unavoidable” that we can’t form correct moral judgements about answers to political questions. Indeed, the opposite is obviously true. Some political questions—like whether to allow slavery—have clear-cut moral answers. Political disagreements are very often extensively intertwined with moral ones, and moral disagreement does not entail moral parity.

Lindsey’s characterization of radical libertarians’ forming moral judgements about politics as an attempt at avoiding politics strikes me as a category error. What does Lindsey imagine a natural rights radical will do after being convinced, for example, that taxation is illegitimate? She will take political action. She might try to decrease the statutory tax rate by lobbying lawmakers. She might try to decrease the real tax burden also, perhaps by dealing in cash or developing and promoting technologies that make the extraction of taxes more difficult. She might become a nonviolent tax protestor. She might, if she is especially foolhardy or especially principled, decide this is the hill she wants to die on and resist taxation forcibly. She might try to persuade others of the justice of her cause so that they will consider taking actions of their own. These are all political acts. No one imagines that their merely concluding taxation is illegitimate will abolish the practice, that the world will just change automatically to suit their convictions.

We conclude that “liberal values” libertarianism cannot be judged superior to natural rights libertarianism on the grounds that the latter is assuming away politics or attempting to avoid making value judgements.

The Heart of Liberalism: Natural Rights and the Moral Equality of All Persons

One way of looking at the conflict between myself and Lindsey is as a battle over the legacy of the Enlightenment. Lindsey thinks we can keep the Enlightenment’s commitment to individual autonomy and the equal moral standing of all humans without appealing to rights. I think we can’t.

A full exploration of the Enlightenment natural rights tradition and its relation to Lindsey’s “liberal ideal of the good society” would fill a book. However, after criticizing Lindsey for not filling in the details of his “liberal values,” I would be remiss not to explain, at least in broad strokes, why I think a liberal society must necessarily be a rights-respecting one.

Consider this passage from Locke’s Second Treatise as representative of the Enlightenment liberals’ commitment to individualism and equality:

To understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.

A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection, unless the lord and master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty. (Ch. 2. §4)

Locke gives us a powerful expression of the political consequences of a belief in the moral equality of persons: by default, people have only reciprocal authority over one another. No one may do to another what could not be done by another to himself.

This idea, that there are certain things you can’t do to another person without thereby wronging them, that these restrictions apply to all persons—equal members in a moral community—without special exceptions, is the idea of natural rights. Rights thinking is baked into the very core of “liberal values.” A society that doesn’t take rights seriously is a society that doesn’t take individual autonomy seriously, and such a society cannot be liberal. Treating people as equal moral agents just is governing ourselves so as not to violate their rights.

Some libertarians seize on a kind of democratic proceduralism as the key innovation of the Enlightenment, but really, things like representative democracy, written constitutions, equality before the law, and so on—these are epiphenomena. They are consequences of the Enlightenment’s revolution in thinking about the individual’s moral standing in relation to his or her fellows and to the state. As modern libertarians carry on the Enlightenment tradition, exploring the full consequences of that revolution, they should, when democratic proceduralism conflicts with natural rights, come down on the side of natural rights.

Problems with the Details of Lindsey’s Examples

I shall now offer some more “in the weeds” comments on Lindsey’s various anti-natural-rights “gotchas.” My responses trace through the sections of Lindsey’s paper in order, with my responses identified by the same headings as appear in the corresponding parts of Lindsey’s essay.

Security of Rights versus Freedom of Action

In this section, Lindsey attempts to demonstrate that a draconian enforcement regime, even one like the “pre-crime” dystopia depicted in Minority Report, would be compatible with natural rights. The attempt fails because it relies on a series of category errors and misunderstandings about how rights-based moral systems work.

Rights are side constraints. They place limits on what I may do without wronging another. Rights are also trumps—that is, a rights claim is not the sort of thing that can be counterbalanced by another moral claim (even another rights claim). Taking rights seriously means being serious about my duty to others not to violate their rights, who have correlative duties of their own which they also ought to take seriously.

A rights framework does not operate on an optimization basis like a utilitarian framework, or like the moral system set out by Hayek in The Constitution of Liberty, under which we prefer the rules and institutions that minimize coercion (as Hayek somewhat implausibly defines “coercion”). Under a rights framework, it doesn’t matter that I think I could prevent two murders by committing one, or prevent the theft of $100 by stealing $1. My moral responsibility is to refrain from violating people’s rights even in those cases; the predicted moral irresponsibility of others does not absolve me of responsibility for my own behavior.

The same applies to institutional design. It is not legitimate to design a system that systematically commits rights violations on the grounds that some number of rights violations may thereby be prevented. Lindsey doesn’t seem to understand this. A particularly concise example of his making this type of mistake comes in the later section “Necessity and Redistribution”:

Radical libertarians typically regard any such redistribution by government as a violation of taxpayers’ rights. It is, however, entirely plausible to understand redistribution as rights protection: under circumstances in which people at the bottom do not see the system of property rights as working for them, some kind of welfare state may be an indispensable part of keeping property rights as secure as possible.

This is precisely the kind of minimizing/maximizing calculation that rights thinking precludes.

Returning to the case under consideration here, Lindsey thinks taking rights seriously entails, or at least could entail, not only socialist redistribution, but enacting a draconian enforcement regime. If the number of rights violations is suppressed by extreme penalties not only against rights violations but also against behavior that risks violating someone’s rights, the likelihood of my rights being violated (at least by non-state actors) will be relatively low. Likewise for a welfare state—adding some rights violations by the state might make me less likely on net to be criminally victimized.

This is a mistake. My feeling secure in my person and property might be a side effect of a well-functioning legal system that takes rights seriously, but producing that feeling, even if my perception is accurate, is not the aim of such a legal system.

Rights to property tell me that I have been wronged when another person violates those rights. What my rights do not do is permit unprovoked aggression against parties who might violate them at some point in the future. Anyone might choose to do anything at any time. My right is to my property itself, not to living in a society with the minimum number of rights violations, or to the mental state “feeling secure in my property.”

This distinction between my rights and my being secure in my rights is one reason Rothbard and other natural rights libertarians are highly skeptical of crimes of mere recklessness (like drunk driving) where no actual rights violation is realized. Even if Rothbard oversells the extent to which we can derive legal principles from natural rights premises, I think he’s on relatively much more solid ground in this case than in many others.

To be clear, I do think Rothbard is wrong about the extent to which we can derive specific legal conclusions from natural rights, though determinations like that need to be made case-by-case.  This is the closest Lindsey comes to talking about the “overextension” of rights thinking, rather than just rights per se.

However, Lindsey seems to think—contrary to his “overextension” claim—that since Rothbard is wrong in some of his conclusions about what sorts of legal systems are compatible with natural rights, that therefore almost anything goes, and that natural rights won’t preclude even very clear-cut examples of tyranny or socialism. This is another mistake. Natural rights do preclude quite a lot of possibilities, despite the fact that they don’t rule out all of them.

In any case, there is no general, insurmountable problem here that makes the natural rights tradition not worth continuing. The fact that natural rights don’t uniquely determine a single morally acceptable legal regime is very well understood by natural rights thinkers. Randy Barnett, to pick a scholar inspired by Rothbard, engages with the issue extensively in The Structure of Liberty. Though Barnett’s account is ultimately consequentialist—he thinks respecting rights is instrumentally valuable for creating certain type of society—his analysis of the relationship between rights and the law applies just as well to deontologically-justified “true” natural rights.

And yet, Lindsey tries to have it both ways. Natural rights arguments that reach too far down into the details of the law are dismissed as unworkable or mistaken, but natural rights arguments that appeal to processes rather than top-down reasoning to arrive at specific legal results—processes like polycentric common law—are dismissed as superficial hand-waving that, in any case, cannot rule out illiberal outcomes. Lindsey writes:

More sophisticated presentations of radical libertarianism do take note of some of these complexities. However, they present these open questions as minor blank spaces in an otherwise determinate legal structure, to be filled in by custom or common-law jurisprudence. But the questions to be answered in translating natural rights into positive law are anything but minor. Depending on how they are answered, radically different social orders can result.

The advocate of an anarchist legal order is, Lindsey thinks, thereby precluded from answering his challenge at all. But is it really so implausible that an anarchist legal order would stand a better chance than a statist one of generating liberal outcomes?

Indeed, Barnett has argued that an evolutionary process of some kind is indispensable if one wants a polycentric legal system compatible with natural rights, and that natural rights nevertheless do important work in shaping such a legal system:

Even if the size of the field never reduces to one uniquely correct answer, the articulated rules have played a significant role in eliminating the enormous number of answers that might otherwise have been acceptable. This presumptive exclusion thus gives us, in most instances, a more manageable range of choices with which to deal. (Frederick Schauer, “Easy Cases,” p. 428, quoted in The Structure of Liberty, p. 109)

John Hasnas—not a natural rights libertarian, though definitely a radical one—has aptly characterized the rhetorical problem facing libertarian anarchists on the question of the law as follows:

It is easy to see how the free market can adequately supply the public with shoes. But how can it possibly provide the order-generating and maintaining processes necessary for the peaceful coexistence of human beings in society? What would a free market in legal services be like?

I am always tempted to give the honest and accurate response to this challenge, which is that to ask the question is to miss the point….It is possible to describe what a free market in shoes would be like because we have one. But such a description is merely an observation of the current state of a functioning market, not a projection of how human beings would organize themselves to supply a currently non-marketed good….Free markets supply human wants better than state monopolies precisely because they allow an unlimited number of suppliers to attempt to do so….If it were possible to specify in advance what the outcome of this process of selection would be, there would be no need for the process itself.

Although I am tempted to give this response, I never do. This is because, although true, it never persuades. Instead, it is usually interpreted as an appeal for blind faith in the free market, and the failure to provide a specific explanation as to how such a market would provide legal services is interpreted as proof that it cannot.(The Myth of the Rule of Law, §XIII)

Lindsey seems to be making precisely this mistake when he says appeals to custom or common law are inadequate.

A polycentric legal order would be no guarantee that any particular conception of the good would be enshrined in law, much less the specific proscriptions of Murray Rothbard regarding, ex., the exact amount of damages to be awarded in tort cases (exactly twice the payment that would be sufficient for full restitution, says Rothbard, if memory serves). It would be unreasonable to demand that radical libertarians in the natural rights tradition come up with institutions that guarantee the attainment of their conception of the good society. The proper response to overreaching by Rothbard is not to demand other natural rights libertarians attempt the same fool’s errand.

The legal systems envisioned by thinkers like Barnett and Hasnas offer no guarantees, it’s true. But neither is the law immune to the influence of rationalist criticisms, and legal polycentrism would remove a key institutional obstacle to a more libertarian body of law: the state’s bias toward ruling in favor of its own power—a structural obstacle less radical libertarian visions do nothing whatsoever to address.

So why should this way be closed to the natural rights radical?

Finally, suppose you buy Lindsey’s argument that natural rights could justify a regime that violates individual rights in the name of protecting them. Even in this case, no problem is created uniquely for natural rights. You could construct a similar thought experiment where a dystopian “pre-crime” law enforcement agency illiberally pursues whatever moral end—consequentialist, virtue ethics, whatever. I see know reason why Lindsey’s “liberal values” would not be subject to an objection of the same kind.

Rationalism versus Pluralism

In this section, which draws heavily on Levy’s book Rationalism, Pluralism, and Freedom, Lindsey again falls prey to the idea that radical natural rights libertarians are or ought to be engaged in a project of picking the institutional arrangement that minimizes the likelihood of rights violations occurring. For the reasons already given, that’s barking up the wrong tree. I would leave it at that, but Lindsey’s argument within this section—that radical natural rights libertarians, faced with the risk of rights violations by local and centralized institutions are caught between Scylla and Charybdis—fails in a way worth discussing.

Lindsey’s reading of Levy, setting aside the question of whether that reading is correct, involves a false dichotomy—that the only institutional conflicts are between centralized, rationalist institutions and decentralized, pluralist ones, with rights-bearing individuals caught in the middle of the tug of war. Either side of the fight, says Lindsey, becomes a threat to individual rights in proportion to the extent to which it is ascendent in the two-side conflict.

This false dichotomy, if not noticed by the reader, creates two huge lacunae in a way that redounds to Lindsey’s benefit. First, it erases the biggest institutional problem commonly shared by night-watchman minarchism and Lindsey’s welfare-state liberaltarianism—the centralized state monopoly that is the source of so much tyranny and abuse is simply taken as an immutable fact of life, rather than a contingent historical outcome with identifiable causes. Second, and more importantly, the false dichotomy also writes out of existence conflicts among decentralized institutions, and thereby erases the possibility of lateral inter-institutional checks and balances among decentralized institutions. That has the consequence of rendering a functioning anarchocapitalist society literally unimaginable. It can’t even be conceived of in the framework established by the false dichotomy.

Righting Past Wrongs

This section repeats some of the errors made in “Security of Rights versus Freedom of Action” about the importance of the fact that natural rights underdetermine the law, and also piles on some new ones.

Lindsey tells us that “[a]ccording to radical libertarian theory, a just social order is one in which all legal entitlements derive from homesteading and peaceful transfer.” This is at least approximately true of some radical libertarian theories. Lindsey then remarks, quite correctly, that “Alas, in our fallen world no such social order can be found anywhere.” Then the problems start. Lindsey writes:

Yet radical libertarians today generally hold that governments should affirm and protect the current pattern of property holdings and that any redistribution of property by government is illegitimate. What gives?

Well, first of all, it’s not “any redistribution of property” to which radicals object, if like Lindsey we are using “redistribution” to include returning property to the person with the best claim to it based on the chain of title. In fact, it is typically moderate libertarians who want to set the evidentiary bar for such redistribution quite high, on the grounds that it would be disruptive, and radical libertarians who are willing to set it lower, on the grounds that justice requires we assign property to the owner with the best claim to it, disruptiveness be damned.

After this odd claim, Lindsey presents an argument made by Loren Lomasky that Nozickian libertarians ought to favor redistribution not on the basis of reassigning property titles from less deserving to more deserving owners, but instead abolishing the entire set of existing property claims and assigning everyone a quotal share of stuff. It’s not a particularly good argument:

“In so convoluted a moral realm,” Lomasky continues, channeling Twin Nozick, “there is nothing for the entitlement theorist to do other than throw up her hands and admit that Humpty Dumpty is not to be put back together again.” Accordingly, the best that can be done is for Libertopia to be instituted only after a complete redistribution of property so that all begin the new order with equal holdings. As Lomasky puts it, “First the time of Tribulations, and only then the Millennium.”

This amounts to saying that because we can’t with absolute confidence trace any particular title back to the property being homesteaded, every title claim is equally worthless. That simply doesn’t follow. Nor does it subsequently follow that therefore everyone currently living should be assigned an equal share of all the property in the world (if that’s even a coherent proposal).

Look: any theory of distributive justice is going to be subject to problems of uncertainty, at least to the extent that the theory depends on human knowledge of empirical facts. The point of a legal system, in fact, is largely to help us mitigate the risk of making moral errors faced with such uncertainty.

Necessity and Redistribution

Once again, Lindsey is arguing that it’s okay on natural rights grounds to for someone to violate my rights if doing so will induce others to violate rights less. Once again, that’s a fundamental misunderstanding of what rights are and how they work.

On top of that, Lindsey conjures up out of thin air a principle that comporting oneself with the requirements of justice must always be inexpensive. Discussing the common law “doctrine of necessity,” Lindsey asks, “faced with death or serious loss, what reason could anybody have for respecting others’ ownership rights?” All this demonstrates is that people have ends other than behaving morally and that we can imagine situations where they will prioritize those ends over behaving morally. When I commandeer another’s property for my own ends I am wronging that person, and at the very least must offer them restitution.

I have not read the papers by Avner Greif or Acemoglu and Robinson, and even if I had, I wouldn’t be in a position to respond to them authoritatively as I am not sufficiently well-versed in the background literature.

I do, however, feel comfortable drawing on some expert opinion for my own side of the issue. Readers are encouraged to see Bryan Caplan’s “Libertarianism Against the Welfare State: A Refresher” and “Why Libertarians Should Oppose the Universal Basic Income.”

The Outside World

Lindsey argues that the threat of military invasion, and, I was shocked to read, immigration, might necessitate violating people’s natural rights.

On the national defense question, Lindsey’s framing obscures where Rothbard’s illuminates. Lindsey warns:

Eschew as unlibertarian the protections afforded by a standing army, alliances, or forward placement of troops in buffer states, and Libertopia may cease to exist because of a foreign invader.

There are two mistakes here. First, Lindsey implicitly mischaracterizes what goes on in war as we know it. Rothbard explains:

It is particularly ironic that war always enables the State to rally the energies of its citizens under the slogan of helping it to defend the country against some bestial outside menace. For the root myth that enables the State to wax fat off war is the canard that war is a defense by the State of its subjects. The facts, however, are precisely the reverse. For if war is the health of the State, it is also its greatest danger. A State can only “die” by defeat in war or by revolution. In war, therefore, the State frantically mobilizes its subjects to fight for it against another State, under the pretext that it is fighting to defend them. (For a New Liberty, Ch. 14, p. 348)

Okay, fine—be that as it may, Lindsey could still have a point. Surely, domination by a tyrannical neighbor would be a disaster for a libertarian society? Indeed, it would be bad. But probably not as bleak a fate as Lindsey seems to think. Rothbard explains:

But let us assume the worst. Let us assume that the Soviet Union at last invades and conquers the territory of America. What then? We have to realize that the Soviet Union’s difficulties will have only just begun. The main reason a conquering country can rule a defeated country is that the latter has an existing State apparatus to transmit and enforce the victor’s orders onto a subject population….But in those cases in history where the conquered had no government, the conquerors found rule over the conquered extremely difficult. (For a New Liberty, Ch. 12, p. 298)

Compare this to the much more hopeless scenario we find ourselves in today: instead of a widely distrusted foreign occupier, with limited local knowledge, we find ourselves conquered by a criminal gang with deep roots that has secured extremely broad popular support among its subjects. Lindsey’s hypothetical assumes that anarchists have somehow successfully solved this problem, destroying or rendering impotent the criminal gang. He then expects the anarchists to be afraid of a similar opponent lacking many of the original enemy’s most important advantages.

We have reason to think “national defense,” in the sense of resisting tyrannical conquest, without the use of a statist war machine is possible. Consider, for example, Gene Sharp’s work on “civilian-based defense,” including Making Europe Unconquerable and Civilian-Based Defense: A Post-Military Weapons System. It’s an option with a real-world track record. Civilian-based defense has been used with mixed success as an improvised tactic and has now even become a component of the national defense policy of Lithuania. We must be careful here to compare like to like: A military is no absolute guarantee against invasion and conquest, so asking non-military options to provide such a guarantee would be unfair. Military options are far less likely to succeed when hastily improvised, in the way many real-world examples of civilian-based defense have been—again, we must compare like to like.

As for the immigration question, it seems like Lindsey is really stretching. I don’t know whether there’s a “neutral” answer to the question of whether it’s okay to restrict someone’s freedom of movement solely on the basis of their political opinions, but I am pretty sure there is a correct answer: no. I suspect the people who usually make this argument—conservative nativists—are engaged in motivated reasoning, and I was disappointed to see Lindsey crediting the argument as plausible.

Respectable to Whom?

I’ve demonstrated that Lindsey’s argument fails, both in its general strategy and its particulars. We can confidently conclude that the natural rights tradition is not a dead end for libertarianism, and that “liberal values” libertarianism is not a superior replacement for it.

But really, that natural rights libertarianism is no dead end should have been obvious to us from the outset: one need only examine the tradition of libertarian natural rights thinking from Locke to Nozick and up to the present day. So why does Lindsey attack natural rights thinking as fundamentally immature? I believe it’s because Lindsey perceives natural rights thinking as an obstacle to something he wants. Specifically, Lindsey wants natural rights libertarianism (and for that matter radical libertarianism) out of the way because he believes it stands between him and a peculiar type of respectability.

Let’s consider two different kinds of respectability, which Lindsey conflates.

Robert Nozick made libertarian philosophy respectable in the academy on natural rights grounds. He accomplished this by laying out a principled libertarianism, radical by Lindsey’s standards, that he thought was warranted by evidence and argument, which is all any libertarian, “radical” or no, “natural rights” or no, could want in the way of respectability. It is just an empirical fact, then, that neither radicalism nor natural rights thinking are barriers to the kind of respectability Nozick attained through his scholarship. Not only can you associate with natural rights radicals and be respectable in Nozick’s way, you can be a natural rights radical and be respectable in Nozick’s way. So Lindsey, we conclude, must be concerned with a different kind of respectability than the kind accorded to careful, rigorous scholarship.

It’s not a praiseworthy kind of respectability.

One is seriously listened to by those in power, respected by them, when one offers a means of advancing this or that politician’s interests. What these people want is sometimes coincidentally the liberal society, but that’s hardly the rule. This type of “respectability”—being afforded a place of respect and influence by the political class—has nothing to do with the intellectual rigor or moral worth of the arguments being advanced, and everything to do with one’s usefulness to the state as an institution and to the specific individuals occupying office.

This is perhaps most clear in foreign policy, where dropping bombs is always “serious” and advocating for peace is the purview, by definition, of naive dilettantes. But it is true in every corner of Washington. It should be obvious that one cannot be “respectable” in this way and remain a libertarian.

Natural Rights Thinking Attract Bigots?

This isn’t quite the last word on the respectability discussion, however.

Lindsey extended his argument that natural rights thinking prevents libertarianism from attaining respectability in some additional remarks he made on Twitter. In a series of tweets, he wrote the following (punctuation added and abbreviations spelled out for clarity):

Overreliance on natural rights thinking is one reason for the dark illiberal underside of the libertarian movement. Supposedly value-free non-aggression principle welcomes all comers—including racists, sexists, xenophobes, homophobes, conspiracy theorists, Russia apologists. All can claim to be pure libertarians because they support minarchy/anarchy. A libertarianism based expressly on liberal values, not value-free rights, wouldn’t have this vulnerability.

There is a narrow sense in which the first part of this analysis is correct. If you say people shouldn’t be thrown in jail for smoking pot or for saying racist things, you’re going to attract a lot of support and attention from people who want to smoke pot and/or say racist things. The question then becomes, knowing you’re faced with this tendency: whom do you invite under the big tent and whom do you kick out? You might make that determination on the following basis: Wanting to smoke pot is just harmless fun at least under many circumstances, whereas wanting to say racist things reflects a poor character and a lack of commitment to the libertarian principle of the equal moral worth of all humans. Therefore, we’ll let in the pot smokers and kick out the racists because outsiders will judge us by the company we keep and because they’ll have a corrosive influence on our own moral fiber. That would be a reasonable choice made for reasonable reasons.

But after correctly identifying a real risk, Lindsey doesn’t discuss how to mitigate the problem in a reasonable, charitable way. Instead, his analysis quickly goes off the rails, exhibiting some telling blind spots along the way.

When Lindsey writes that “[a] libertarianism based expressly on liberal values, not value-free rights, wouldn’t have this vulnerability,” two questions should immediately spring to mind.

First: What illiberal types might be attracted to a libertarianism “based expressly on liberal values, not…rights?” In pointing out the risks involved in one way of defining who is and is not a libertarian, Lindsey makes no attempt to look at the parallel risks involved in setting the boundaries where he suggests. Rights draw lines in the (moral) sand, so we would expect abandoning natural rights to attract people who want to cross those lines, often in the pursuit of power. Lindsey’s approach risks making libertarian socio-political thought into a haven for both unprincipled technocrats, concerned with “what works” first and human liberty second or never, and for dime-a-dozen influence-peddlers, who see rights as obstacles in their attempts to curry favor with political officeholders—including officeholders deserving of libertarians’ moral condemnation. Lindsey’s approach risks a libertarianism that “wins” its way into a meek irrelevancy. This risk is exacerbated by his wanting to kick out the radicals in favor of the moderates—which position is “moderate,” after all, is determined primarily by proximity to the highly illiberal status quo.

Second: what will become of the genuinely liberal natural rights radicals if Lindsey’s corner of libertarianism writes them out of the movement—especially the young ones still forming their political identities and not yet settled in their loyalties? They are driven into the waiting arms of the “racists, sexists, xenophobes, homophobes, conspiracy theorists” Lindsey rightfully disdains. To the extent that Lindsey succeeds in writing the natural rights radicals out of the “respectable” movement, he risks losing the whole natural rights tradition, from Locke to Nozick and beyond, to the likes of Hans Hermann-Hoppe. This would be catastrophe. Respectable libertarians, in the good sense of “respectable,” should not want to concede this ground; we should want to fight for it.

Conclusion

Suppose there are far too many unreflective radical natural rights libertarians possessed of, at best, a sophomoric understanding of their own tradition. Suppose further that I’m entirely wrong about the nature and scope of Lindsey’s argument in “The Poverty of Natural Rights Libertarianism” and all his argument is saying is that there’s a group of natural rights radicals out there that make all sorts of logical mistakes attempting to justify minarchism or anarchism. That this should be the case would come as no big surprise; most people’s understanding of important issues in ethical theory and public policy, to the extent they even have a coherent position, is oversimple and lacking nuance. We have no reason to expect natural rights libertarians will be any better.

Our job as thoughtful, respectable libertarians is to educate those people, as well as we can, to be the best kind of libertarian natural rights thinkers that they can be. At least we ought not to instead use them as a cudgel against natural rights radicalism as a research program. Not only would this be deeply unfair to the natural rights tradition, the same argument could be turned against a moderate libertarian consequentialist. Very few professed consequentialist libertarians, after all, can explain what a pareto improvement is or run a regression—yet we don’t construe that as a knock against moderate consequentialism.

If a productive radical-moderate libertarian alliance is to endure, and for libertarianism to survive I think it must, moderate libertarians must stop treating their radical allies as unserious embarrassments, obstacles to progress, etc. Being scapegoated frustrates radicals, who would much rather be worrying about the state than dodging flak from their more moderate allies.

When I was first feeling my way toward anarchism, I worried a lot about the critique of radicalism found in Burke and, in watered-down form, in Hayek. Change too many things too quickly, the worry goes, and society disintegrates. I don’t worry about that very much any more. The risk posed to the social fabric by adding one more libertarian radical to the world is just so small: people on the whole are very resistant to any kind of political change, so radicals of any stripe are going to find themselves vastly outnumbered by those opposed to rapid change and reactionaries who oppose change, period. We can count on most of the body politic to adequately look after Burke’s concern. On the other hand, if radical libertarians aren’t defending the most thoroughgoing vision of libertarianism we think is supportable, no one else will.