Libertarianism and Positive Rights: Comments on Katz's Reply

By Maloberti, Nicolas | Libertarian Papers, January 2009 | Go to article overview

Libertarianism and Positive Rights: Comments on Katz's Reply


Maloberti, Nicolas, Libertarian Papers


IN "WHY LIBERTARIANS SHOULD REJECT Positive Rights," (1) Joshua Katz offers a critical response to the argument I develop in "Libertarianism and the Possibility of the Legitimate State." Although Katz raises some interesting points regarding the limits of a particular line of argumentation that can be found in that article, I think his response fails on two accounts. First, it fails to grasp the nature of the problem my article is ultimately concerned with. Second, it fails to present a solid case for the rejection of the type of positive right that I argue libertarians should endorse as a solution to that problem.

Contrary to what Katz seems to suggest, the purpose of my article is not to provide a justification for the state. At the beginning of the article, I draw a distinction between the question about the possibility in principle of the legitimate state and the question about the possibility in practice of the legitimate state. The former question concerns whether there is a set of conceivable conditions under which the performance of the state's characteristic actions (taxing its subjects and monopolizing the provision of justice) is morally permissible. The latter question concerns whether such conceivable conditions do actually obtain. The article only deals with the first question. It argues that we should acknowledge the existence of certain conceivable conditions under which it would be morally permissibly for the state to do what it typically does. The article does not claim that those conditions are actually satisfied. I use this distinction in an attempt to draw our attention to a theoretical problem that the classical formulation of libertarianism seems to face.

Katz claims that the fact that classical libertarianism implies anarchism does not show that classical libertarianism is absurd. (2) But it should be clear that this is not quite the argument I am offering in my article. The argument is, rather, that the classical formulation of libertarianism implies the impossibility in principle of the legitimate state, and that this is implausible. In addition to full self-ownership, libertarianism is usually formulated as establishing the illegitimacy of all compulsory transfers of justly acquired holdings and the permissibility of all voluntary transfers of such holdings. But the state requires its subjects both to pay for the protection of their own rights and to refrain from enforcing those rights by their own private means. The state, therefore, must be illegitimate. Contrary to what Katz claims, this is not what worries me. As I see it, the problem is that the classical libertarian case against the morality of the state is a case completely disconnected of all empirical considerations. According to the classical formulation of libertarianism, the state would be illegitimate regardless of the nature of the stateless society.

Katz does not seem to acknowledge the existence of any problem with the classical formulation of libertarianism. Perhaps this is due to a misunderstanding of my arguments. Could we really believe that a plausible political philosophy would establish the moral impermissibility of the state regardless of how horrible the stateless condition were to be? My point is that no plausible political philosophy could establish such a thing if a state could remedy a terrible situation imposing only minimal costs on its citizens. My point is neither that a plausible political philosophy must establish the moral permissibility of the state nor that the stateless condition would be a horrible condition.

The purpose of Section II of my article is to argue that we might have reasons to acknowledge a particular minimal form of positive rights, what I call "samaritan" rights, and that such an acknowledgment might overcome the problem presented in Section I. The holders of samaritan rights would be the individuals who face certain perils, and they would hold these rights against those who have the capacity to place them out of peril at a reasonable cost when there is no other solution available. …

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