Abstract
The relationship between libertarianism and state is a contested one. Despite pressing full and strict ownership of one’s person and any justly acquired goods, many libertarians have suggested ways in which a state, albeit limited, can be regarded as just. Peter Vallentyne has proposed that all plausible versions of libertarianism are compatible with what he calls ‘private-law states’. His proposal is underpinned by a particular conception of rights, which brings Interest Theory of rights and Will Theory of rights together. If convincing, Vallentyne’s theory of rights enables libertarians to accommodate a limited but nevertheless coercive state that can act without the full consent of the affected citizen. In this paper, it is argued that Vallentyne’s hybrid theory of rights is implausible from a libertarian perspective as well as fails to align itself with common and deeply held moral intuitions. Hence the conflict between mainstream libertarianism and the state is not solved by Vallentyne’s proposal.
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Notes
For some interesting attempts to make room for the state in libertarian theory, other than the attempt to be discussed below, see Sunstein and Thaler (2003); Machan (1982); Nozick (1974); Maloberti (2009); Mack (2006). For some traditional right-libertarian accounts that deny any legitimacy of the state, see Rothbard (2009 [1974]); (2006 [1973]); Hoppe (2001); Long (2004). In contrast, left-libertarians have been remarkably more sympathetic to a state, although not necessarily advocating one. For instance, see Otsuka (2003); Vallentyne (2009a, b); Vallentyne et al. (2005).
Vallentyne intends the notions involved in the definition of state to be empirical or legal to their nature; not moral (this was clarified to me in private conversation). Hence its claim to monopoly is dependent on its ability to credibly threatening to enforce its proclaimed rules; whatever authority is involved in such monopoly and prohibitions is not moral to its nature.
Vallentyne relies on what he calls a ‘[…] threshold conception of justice according to which a state is just if and only if it violates rights as rarely as can be reasonably expected of humans in general.’ (2007, p. 188) Hence a libertarian can accept a state that occasionally – but not systematically - violates individual rights. Here, I will accept Vallentyne’s view, since it reflects a realistic conception suitable to actual and non-ideal circumstances; a rationale also suggested by Vallentyne.
For examples of versions placing themselves slightly outside both Interest Theory and Will Theory, or within both, see Leif Wenar’s ‘Several Functions Theory’ (Wenar 2005) and his ‘Kind-Desire Theory’ (Wenar 2013); Gopal Sreenivasan’s ‘Complex Hybrid model’ (Sreenivasan 2005); Rowan Cruft’s ‘Interest-Theory-with-Exceptions’ (Cruft 2004); Joel Feinberg’s ‘Demand Theory’ (Feinberg 1980), elaborated in Darwall (2006) and Skorupski (2010); and George Rainbolt’s ‘Justified Constraint Theory’ (Rainbolt 2006). See also the responses to Wenar and Sreenivasan given in Kramer and Steiner (2007) and Kramer (2013). These are all interesting theories of rights, and deserve in-depth discussion; that said, such discussions are outside the scope of this paper.
Although Vallentyne does not explain ‘valid dissent’, it seems reasonable to interpret it as uncoerced and expressed opposition.
Vallentyne also points out that the relevant baseline is ‘nonenforcement by this particular person’, meaning that someone might not be allowed to enforce my rights if someone else is better positioned to do so.
Being modest in his ambitions, Vallentyne repeatedly states that he will not ‘defend’ his theory of rights (or any of his proposals), but merely attempt to show its ‘possibility’ (2007, pp. 188, 193, 205). Be that as it may (his proposals do not come without arguments), my ambition above is to show that his proposals regarding the legitimacy of private-law states are not plausible from a libertarian point of view.
Could assessment of preferences not be a matter of judgment or approximation? Surely, some estimates of preferences are better and more reasonable than others. For instance, in the Theft it seems very reasonable to assume that the victim has a strong preference for the bystander enforcing his or her right. I will return to this particular question below.
Would not VHT allow us to construct a libertarian theory that is, while perhaps not mainstream, at least stronger than any competitors? A conclusive answer to such question requires precise criteria for what an ideal theory would look like, and I do not pretend to be able to present such criteria here. While admitting that I believe that VHT does not allow us to construct a stronger version of libertarianism, I leave this question to be settled elsewhere.
This point was brought to my attention in a helpful discussion with Göran Duus-Otterström and Henrik Friberg-Fernros.
Note also that the intervention by C is not a matter of enforcing the thief’s rights (by the same reasoning, he has lost the relevant rights), but instead a matter of enforcing the victim’s rights.
Will Theory (WT) is often framed as involving an actual ability on behalf of the right-holder to exercise choice, rather than a latent or potential capacity to do so; something that explains why children and the insane are commonly not attributed with (full) self-ownership under WT. It can then be argued that the Greedy State case then becomes irrelevant, since Cassandra is in a coma, and therefore has no ability to exercise choice. But as common as that version of WT may be, it is certainly not a version of WT a libertarian dedicated to self-ownership can accept. Indeed, no plausible conception of ownership would have a strict idea of actual ability at its center; a fact that would provide indirect support for VHT. Ownership over a particular x can be qualified by conditions requiring ability to exercise choice, but such conditions are not tied to ownership as such. For instance, if Cassandra’s property rights would be premised on the ability to exercise choice, rather than merely qualified, she would be an object subject to original acquisition, or, possible, become property of her relatives. That said, in the above case Cassandra might wake up at some later point, meaning that her capacity for choice is only temporarily diminished, or alternatively permanently diminished to a certain probability.
His explicit statements point in the other, general, direction, however. For instance, in the first and technical definition of his hybrid theory of rights, no reference is made specifically to enforcement rights (Vallentyne 2007, p. 193).
What if the ownership rights in the Cabin Case are interpreted as liability rules; i.e., allowing the destruction of the furniture, but at the same time generating compensation? If so, the case seems not to be a worry for libertarians. But it is highly uncertain that libertarian ownership rights can be recast as liability rules without draining libertarian ownership rights of much of their libertarian flavors. Moreover, while it might appear that a left-libertarian such as Vallentyne might escape the problem by not assuming property rights over external objects to be as stringent as right-libertarians typically do, it seems that equivalent cases (where liability rules rather than property rights seem like the appropriate interpretation) in which self-ownership is violated can be constructed (e.g., see Sobel 2012).
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Agnafors, M. Mixing Interest and Control? Assessing Peter Vallentyne’s Hybrid Theory of Rights. Philosophia 43, 933–949 (2015). https://doi.org/10.1007/s11406-015-9652-0
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DOI: https://doi.org/10.1007/s11406-015-9652-0