Libertarianism and the Possibility of the Legitimate State
Maloberti, Nicolas, Libertarian Papers
WE MIGHT BELIEVE THAT there are no conceivable conditions under which the state is legitimate. Alternatively, we might believe that there are such conditions, but deny that they actually obtain. The difference between these two forms of anarchism is important. The classical formulation of libertarianism would seem to entail the first form. Section I of this article argues that this fact alone would constitute a serious objection against its plausibility. In Section II, it is argued that acknowledging a minimal form of positive right might overcome such an objection. Section III shows that, contrary to what we might think, the acknowledgment of this particular type of positive right would seem to provide an adequate normative ground for making sense of some central libertarian insights and concerns.
Traditionally, it has been claimed that the morally problematic nature of the state arises from the mere use of coercion. Yet if the negation of the morality of coercion were what the anarchist challenge must amount to, the challenge would be remarkably weak. For it is hard to believe that people have no right to use coercion to defend themselves against those who might want to do certain things to them, such as violating their rights. If that is hard to believe, it is equally hard to believe that the state could not use coercion to exercise such a right on behalf of its subjects.
A challenge to the legitimacy of the state, however, need not arise from a challenge to the permissibility of the mere use of coercion. It might also arise from a challenge about the justice of what the state coercively requires. In other words, in justifying the state, what might call for an explanation is not the morality of the use of force as such, but rather the morality of some particular uses of it that are characteristic of the state. The state collects taxes, and thus forces its members to pay for the protection of their own rights. The state also monopolizes the provision of justice. The state may recognize a right to use force in self-defense, but it does not recognize a right to punish those who have violated one's rights. The state will punish those subjects who attempt to provide justice for themselves, and it will do so even if they follow the same procedures and impose the same rectification that the state would follow and impose. Furthermore, the state performs all those actions regardless of the existence of any explicit agreement to do so by its subjects. For the state to be legitimate, it must be morally permissible to act in such a way.
Thus, the very possibility of a legitimate state would seem to depend upon the validity of a moral principle establishing a set of conceivable conditions under which the performance of the state's characteristic actions are morally permissible. We may say that the problem of the existence of such a principle is the problem of the possibility in principle of the legitimate state. But clearly, the existence of some conceivable conditions under which the performance of the state's characteristic actions is morally permissible is not sufficient for establishing the legitimacy of the state. There is still the empirical question of whether those conceivable conditions do actually obtain in the real world. This would be the question of the possibility in practice of the legitimate state.
In its classical formulation, libertarianism establishes, in addition to full self-ownership, the illegitimacy of all compulsory transfers of justly acquired holdings and the permissibility of all voluntary transfers of such holdings. The state, however, requires its subjects both to pay for the protection of their own rights and to refrain from defending their rights by their own means, such as, for example, by contracting protection from other private parties. And the state does so regardless of the existence of any explicit agreement on the part of those who are coerced. …