There’s a little conversation going on over at Devil’s Kitchen about genital mutilation, and it has (perhaps inevitably) wandered into the question of what, in a libertarian society, groups can and cannot be prevented from imposing on their members, such as religious groups.
Commenter Andrew asks,
“Don’t you, as a libertarian and LPUK member like myself, accept the right of religious private associations to govern themselves?”
and DK gives a perfectly good answer, however at one point stating,
Now, free association means that any individual can voluntarily sign away their rights but, as we know, certain religions, etc. are not too keen on voluntary or, indeed, rights and freedoms.
I think this is an unfortunate formulation- the idea that in a libertarian society one can “sign away one’s rights” and is worth a little discussion.
I have mentioned previously here (and in my blog comment wanderings) that I think a good description of a libertarian society is that such a society is one which upholds individual consent. This is basically the non-aggression principle, defined by its negative space rather than its positive space. In this view, your “rights” all boil down to your self-ownership, and thus your absolute right to enforce your consent in interactions with others; nobody may do to somebody anything to which they do not consent.
Now the point about consent is that it is always provisional, and people often overlook this. One clear example is that of sex; that a woman has consented at some point to have sex with a man does not obligate her to continue with it if she changes her mind half way through. Consent is always ongoing and may be withdrawn at any time. Now of course there are some acts to which one may consent which are irreversible; once you’ve consented to, say, having a tattoo, and it has been done, it is too late to change your mind. That’s just how reality is. But, for instance, if you agree to somebody tattooing you tomorrow, and change your mind this evening, you cannot be forced to go through with it.
You cannot be forced to go through with something even if you have signed a contract.
This is why such breach of contract is a matter of civil law, rather than of criminal law. Now it may be that your withdrawal from a contract leads to some loss to the other party; in which case they may sue you for compensation. Nonetheless, you have the absolute right to walk away at any time. We might use an example here of somebody who agrees to appear in a porn movie. Half way through the scene, they are finding it painful and unpleasant. The fact that they agreed to appear in the movie does not in any way reduce their right to say “stop”, and does not in any way reduce the obligation of the bloke poking them to stop and let them walk off the set. It may then be that the porn company sue the actress, but that is a civil matter. Regardless of the contract she signed, she cannot have her right to withdraw consent taken away. Her rights always exist and cannot be diminished.
Once we understand this, it is clear that in a libertarian society slavery is impossible. One person can agree to work for another, and may sign a contract to do so. But they cannot be held on a plantation and physically restrained from leaving. If they do leave, maybe they will be sued by the plantation owner for breach of contract, but that is all. The risk of being sued should lead people to be cautious as to what contracts they sign; but their rights to their self ownership never lapse and thus cannot be “voluntarily signed away”.
It’s thus clear that while in a libertarian society various groups, e.g. religious groups, may have their own internal rules, they cannot have a “private criminal law” with private coercion by force. A person may decide to join a religious community with certain obligations, but they always have the right to walk away. If the community has a rule that says “anyone who does not obey our rules may be killed” they cannot actually enforce it under libertarianism. Neither may they run a private prison, since the inmates can simply withdraw their consent to the private “law” under which they were imprisoned and they then have to be released. And by the bye, if we consider somebody who agrees to be tied up or locked in a “dungeon” for BDSM sexual kicks, their mistress still has to let them out if they change their mind.
So it naturally follows from this that a libertarian society cannot have polycentric criminal law. It will not be a place where some naive unfortunate joins a commune, consents to the leader being their dictator, and then cannot leave and is physically prevented from doing so by the other communites. For them to restrain the acolyte from leaving, they would have to aggress against her- and since non-aggression is the basis of libertarian rights and law, clearly this is incompatible with the libertarian state.
There is only one legal code possible under libertarianism; one in which laws are deontologically derived from the principle of non-aggression, or consent. As DK himself has often said, there is in fact under liberty only a single law- that you may not aggress against others (which I would formulate as, you may not do anything which denies another party’s consent). Your rights cannot be “signed away”. The citizen may consent to anything, but their consent can always be withdrawn during the process.
So, a libertarian society will not have little police states popping up all over on private land. It just can’t happen, because every citizen inviolably retains the right to just walk off that land whenever they want to, regardless of what they may have agreed to earlier.
Well here`s the pisser.
There never can be.
Ian, am I free to own a rocket launcher in libertarian England?
How about a nuclear missile?
Ian, am I free to own a rocket launcher in libertarian England?
Yep,
A fully tooled up and ready to go F-111 as well if that’s your bag.
As far as a nuke is concerned; if you can afford the centrifuges to enrich the go bang stuff, knock yourself out. A nuclear explosive would make a really cool engineering tool.
Uh… then there is no fucking way that I (or any other sane person) will be voting for your “libertarian” state. It`ll be de facto anarchy waiting to explode.
As opposed to today? Where the nutters in Iran are tearing up treaties and ignoring their international obligations while they build a nuke themselves? With North Korea, Pakistan and India in the club and Saudi, Egypt and Syria knocking on the door looking for entry just as soon as Iran gets theirs?
I guess all this makes you feel real secure right now.
Besides, do you think you could afford those centrifuges yourself?
I’m with Locke here. The right to bear arms must have certain limits. I call it the “Bond Villain Amendment”. It would also ban the ownership of jump-suits, clip-boards, underground monorail systems, extinct volcanoes and Mao suits and Persian cats.
An F-111 would be fine in principle but they are hangar queens and the RAAF are the only folks flying them. Spares would be an issue. Personally, I’d go for an F-15E/I/K/SG or an Su-34 if you’re in the market for a strike fighter.
Obviously Ian. I should have added that. My mother worked with a former monk. He told the Abbott he wanted a bit of time to think, went to France, fell in love and…
The right to bear arms must have certain limits.
So you are willing to concede to the state the right to be better armed than yourself? Is that wise?
I am uneasy about the prospect of Gates and Jobs having a nuclear war.
Seriously though. If the State exists mainly to provide defence against external threats then the real heavy metal thunder is their (our) business.
You are beginning to sound anarcho-capitalist.
So, in my view, the best we can do is accept that states exist, and seek to make them as libertarian as possible by asserting- yes, by force- the non-aggression principle. Abolish the state, and the strongest tribal gang/army will become a new one, which tends to be far more brutal than what we already have. Sorry, but that’s all there is on the table.
Minarchy? Rule by a philosopher king, right? I believe that’s been tried too.
Really, we have to vote with our feet; beneficial change will be imposed on nation-states from without, not within. Get states competing against each other to keep their best people, not competing to invade each other. In this situation it’s a “polyarchy” that will arise, which will mimic the best features of anarchy without the instability. By the way, there will be no point in nuclear weapons, rocket launchers etc if there are no states, or rather no states that have much power to speak of. If power is dispersed all over the place, what are you going to attack?
On the other hand, as the threat of “petty” violence will continue to be everywhere, in this polyarchy pretty much everyone will be armed in some form or another.
“By the way, there will be no point in nuclear weapons, rocket launchers etc if there are no states, or rather no states that have much power to speak of. If power is dispersed all over the place, what are you going to attack?”
I dunno… you?
There are plenty of nice countries with low crime rates where you don`t have to carry a gun/ hand grenade at all times.
I want Britain to be one of those if possible.
I dunno… you?
I am impervious to direct nuclear attack.
Personally I’d be a lot happier with a nuclear armed Microsoft that I would be with a nuclear armed Iran. MS cannot use such weapoins against, say, Linux users in some operating system Jihad without frying it’s own customers.
IanB,
thanks again for another thought provoking post.
“Your rights cannot be “signed away”. The citizen may consent to anything, but their consent can always be withdrawn during the process.”
sounds like a reasonable expression of the idea. However, in the real world can you not in fact see some necessary exceptions at the state level?
As an example, on a practical level any organised country needs some kind of armed military service.
Usually there are minimum periods of service signed up to by servicemen. Theoretically, these minimums could possibly be bought out of under some kind of contract law.
Now imagine a war situation.
Would it actually be good governance to allow for this opt out in time of war? What if somebody says “bugger this for a game of soldiers” and just doesn’t turn up. The solution is to set a fine. If he can’t pay up, there’s jail.
Perhaps this doesn’t matter in a conflict not too different to Iraq and Afghanistan today.
What if we are living in a libertarian Estonia in 1938 and Stalinist Russians looking over one shoulder despising our perceived capitalist freedom of association, and over the other there are the National Socialist Germans who despise our perceived moral degeneracy.
For me, this is where the ideology of libertarianism starts to break down. In Estonia in 1938 we would need to get organised towards a National Defence. Given the numbers and the general situation we would likely need to organise conscription of a sort. (Hell, if everyone else is doing so, then we would probably have to.)
If this case of a suspension of “rights under liberty” as a tradeoff with the “responsibilities of liberty” can be applied, surely it is inevitable that we could always set up a treat beyond our borders and come up with multiple exceptions to the rule in the name of emergency?
“we would need to get organised towards a National Defence. Given the numbers and the general situation we would likely need to organise conscription of a sort” (Hell, if everyone else is doing so, then we would probably have to”
In your view.
Frankly I cant see why I should fight for a country that needs slave soldiers.
Paddy,
No general can stop his army deserting from under him if they want to. The history of war is full of it. Most armies in history have been kept on the field by a combination of loyalty, belief in what they are fighting for, pay, pillaging rights and so on. But if the army say, “bugger this for a game of toy solidiers” and decide to desert, they will.
As to Locke’s “rocket launcher” question, I think the answer to that is, one man with a rocket launcher, if he uses it to harm others, is a police matter. 10,000 blokes with rocket launchers is a civil war, and is beyond the realm of questions of law. Your society is at war.
I think another way to put that would be the simple observation that terrorists aren’t generally much interested in bans on guns, rocket launchers, explosives and so on. That is, they don’t sit around saying “Well shit, nail bombs are against the law. Guess we’ll have to give up then.”
Fair enough Ian.
A year or so back there was a candle-lit vigil for the victims of gun crime etc in Manchester. There was a mother asking for more gun-control because her son had been shot. He’d been shot on his first contract-killing assignment because the other guy was tooled-up as well. Well, who hasn’t had a case of a bit of nerves on their first day in a new job?
I guess no one involved in that charming tableau vivant had exactly bought their pieces in Selfridges or Debenhams had they?
And I want a rocket launcher.
Why?
For blowing shit up, obviously.
Starting with that crappy Hotpoint washer in the kitchen.
Criminals being, well, criminal.
I am uneasy about the prospect of Gates and Jobs having a nuclear war.
Well yes, but don’t forget, killing off your customer base is not good business practice.
You are beginning to sound anarcho-capitalist.
A year and a half and you still hadn’t sussed that?
Sigh.
And I thought you were perceptive.
Yeah, but I thought you meant doing that in space!
With Dale Amon.
I am just a liberal*, alas.
As to the customer base. I have never met an Apple user who wouldn’t rather perform seppuku than install Windows Fistula.
Not that I blame them.
*Proper meaning of the word. Oh Bummer! is just a Marxist arsehole. And Ted Kennedy was just a fat arsehole who drove off a bridge.
Hey, don’t forget, someone’s gotta build your holiday home on Titan.
“Uh… then there is no fucking way that I (or any other sane person) will be voting for your “libertarian” state. It`ll be de facto anarchy waiting to explode.”
Locke, they say the same about the right to carry concealed weapons in the US. “There’d be shootouts every night in every pub.” Reality: murder rates in places where everyone is potentially armed are lower. Gates and Jobs are not stupid enough to trade nukes, no matter what people tell you. “Anarchy” has this weird propensity to evolve into stable equilibria - I do not shoot at you, because I do not know what your brother will lob at my family compound.
If insufficient volunteers are available to defend a nation when it is threatened then it is probably not worth fighting for anyway.
I cannot remember who said that originally but isn’t that one of the reasons why those colonists in America managed to win their independence from the United Kingdom?
Technical question, Westerlyman: was it the “United Kingdon” in 1776, or just the British Empire?
Back to CC’s original point, I think your argument on the illigitimacy of slavery needs more explication. You argue that no one has the right to perpetually alienate certain inherent rights, that “rights to their self ownership never lapse and thus cannot be ‘voluntarily signed away’.” So your argument is that the right to self-ownership is not absolute? If it were truly absolute it could be sold, given away or abandoned voluntarily. By what basis do you limit that right?
Er, it was me that wrote it not Counting Cats. There’s four of us here
The simple answer to your point is that rights cannot be given away, or signed away. They are absolute. That’s what makes them rights.
The point I was trying to make in this post was to counter the criticism sometimes levelled against libertarianism that it would allow all manner of horrors, like people selling themselves into slavery. In fact Richard Murphy’s just said that very thing.
So my answer is; that because rights are absolute and involiable, such a horror is impossible. You can choose not to exercise a right (you can not exercise your American right of free speech by not speaking) but you cannot sign it away. The situation I was trying to illustrate is that under liberty things would be much the same as they are now; for instance, you Laird may sign a contract with me promising work for me next monday. But if you don’t turn up for work, I cannot kidnap you, imprison you in my factory and force you to do the work. The best I can do is sue you in court, if it has caused me some significant loss.
Your right to self ownership means you have the right to rent your body to me if you so desire; but you can never be bound to do so. Contracts do not override rights; rights have a deeper existence.
If you don’t believe in rights, fair enough, then the argument doesn’t work. It just takes rights as axiomatic, since there is no way to prove their existence. You either want a society that believes in and maintains them, or you don’t. You’re free to want a lesser interpretation of rights in which the right to self-ownership is partial and people can seel themselves into slavery etc, but I won’t vote for it.
You use a strange definition of “absolute”. If I cannot do anything I choose with such a “right”, if I cannot sell or give it away, then it doesn’t seem to be “absolute”. I’m not saying that you are necessarily wrong about this, merely that I don’t think you’ve given the ramifications of your argument sufficient thought. For what it’s worth, Prof. Randy Barnett (in “Restoring the Lost Constitution”) takes the same position, and he is a careful, logical thinker, but his argument is, too, a sort of “throwaway” (not much discussion of what is, I think, more an emotional position than a reasoned one). Robert Nozick (in “Anarchy, State and Utopia”) reaches the opposite conclusion.
Basically, you’re arguing that I cannot sell you my body, merely rent it to you. I’m not sure there is a principled distinction there, but let’s let that go. If I “rent” you my body, and then default on the contract, you assert a right to make a claim for monetary damages. But since the source of the money to pay you those damages is (fundamentally) my prior labor, you are still asserting a claim to my body, just on its prior rather than future labor. Again, I’m not seeing a principled distinction there.
Or let’s take a harder case. If you find that my selling you an irrevocable (it’s the “irrevocability” feature you and Barnett find objectionable) right to my future labors (which is what slavery is) to be improper, then a fortiori selling you my entire life would be even more so. In other words, would you hold unenforceable (immoral?) a contract to commit suicide? By what right do you reach that conclusion? If someone agrees to pay my survivors a sufficient sum that I am satisfied that for the remainder of their lives my family will be adequately provided for, and I (being destitute and without hope of any better outcome) agree that the compensation is fair, who are you to deny me that right? Once I carry through with the agreement it certainly becomes irrevocable. Slavery is worse merely because I am still living?
I don’t understand how you can say that I have an “absolute” right to my life, liberty and property, and then deny me the right to do with them as I choose. These aren’t “absolute” rights, they are “qualified” ones.
Laird- I have written and discarded several verbose answers, none of which seemed to be doing anything other than restating the contents of the article. In an attempt at brevity, let us take one thing at a time.
Under a property rights system, you can voluntarily give away particular property. You cannot give away your right to own property. Do you agree with that?
No, I don’t think I do agree with that. If it’s something I truly possess why cannot I alienate* it? Rights are like a tar baby?
I think you’re going to have to go up at least one more level here. I suspect that what you’re searching for is some species of uber-right, something which inheres to and is inseparable from human beings in the way gravity is inseparable from a physical particle. But I don’t know what that right might be, or its derivation.
* I think the only form of “alienation” which makes sense in this context is abandonment. Selling or giving away my right to own property seems meaningless, as the “recipient” would already have that right on his own; possessing “double” rights to own property doesn’t make any sense. Of course, mathematicians talk about numerous infinities, which doesn’t make a lot of sense to me either, so I am prepared to accept the idea that some philosopher could assert that one could meaningfully own multiple sets of the same right. Not that this matters much here!
No Laird, I’m specifically not searching for an “uber-right”. I am simply stating that what makes something a right in this kind of context is that it is universal. Rights in a state apply to everybody, and cannot be abrogated. That is what makes them “rights”.
I am not trying to prove that rights are anything more than a human construct. Most human societies have had no rights, or very few. They are an entirely social construct agreed by the members of a society- as in the US constitution. American rights only exist because Americans believe they should exist. But if we agree as a society that there are certain rights- such as a right to self ownership, then those rights are only rights if they are universal.
I think you’re falling into the trap all philosophical and political theorists tend to fall into, of trying to “prove” their philosophy in some objective purist manner. E.g. trying to prove that property rights derive from something else, e.g. stuff like “mixing ones labour with the property”. There is no way to do this. Property rights exist when some polity decrees that they do.
So as I have stated multiple times in this, I am seeking a state in which there are certain rights, such as the right to self ownership. If I can get my fellow humans to agree to that right existing, then the conclusions in the article naturally flow from the existence of that right. But I can’t prove the right itself does or should exist. It’s an arbitrary construct. Take it or leave it.
You don’t “possess” rights in the sense that the right itself can be given away. Rights in your polity exist, and you are stuck with them whether you like it or not. The right itself is (within that polity’s bounds) a universal. You own your property, but not your right to own property, because a right is not an ownable thing. You are not forced to own any property at all, but in a society with property rights, you are indeed stuck with the right to own property if you choose, and of that you cannot divest yourself.
I’m not searching for anything. I think you’re searching for some kind of meta-derivation of rights which doesn’t exist. They’re an arbitrary, collectivist, construct. Take them or leave them.