There are many reasons to object to Mr. Anger’s view that rights are conferred by “political institutions.” One of the primary objections is the circularity of this notion. If rights originate in “a social contract between agents, their laws, and their government,” or from “bargaining” through the “political institution[s]” that the people create “for the purpose of defining…[their] rights,” then what justifies them in doing so? On what grounds do they presume to engage in such bargains, or create the institutions where such bargaining can take place? Pursuing this “bargaining” analogy, consider a stock market. It is legitimately created by people who own assets which they wish to trade. But if rights are not pre-political, on what grounds do the people create the “market” through which they bargain for the creation of rights? Anger, who calls himself a Hobbesian, would probably answer, mere physical force—which reveals the fact that for the Hobbesian, might makes right, and there is simply no getting around that. If Anger acknowledges that he believes that might makes right, that’s fair enough, but then he must accept all the problems that inescapably attend that belief: that is, that in a society where might makes right, Josef Stalin cannot be blamed for failing to provide a marketplace where people might bargain for the “creation” of their rights, because they do not have a right to such a marketplace in the first instance.
Anger insists that believing that rights are created by political institutions is not the same thing as believing that rights are created by sovereigns. (By the way, Don Boudreaux has a great post here pointing out the similarities between that view and creationism.) But while it is true that the former view is more sophisticated, it commits the same wrong: it assumes that morality is whatever the authority says it is: that there is no moral limit on political behavior. And if there is no moral limit on political behavior, and since political behavior is not distinguishable on principle from individual behavior, then there is nothing the state cannot rightfully do. And this is the conclusion that Anger would call libertarian?
In 1858, Abraham Lincoln and Stephen Douglas were debating the issue of the expansion of slavery into the Western territories. Douglas defended a proposition he called “popular sovereignty,” which meant that the white citizens in these territories (Kansas and Nebraska) should be allowed to decide by vote whether to have slavery or not. Lincoln vigorously objected to this, insisting that no majority ever had the right to enslave people. In Lincoln’s view, there were moral limits on what sort of political bargaining the people could engage in—he attacked what he called Douglas’ “‘gur-reat pur-rinciple’ that ‘if one man would enslave another, no third man should object,’ fantastically called ‘Popular Sovereignty.’” In Douglas’ view, such limits were irrelevant, because “the people” did not include blacks. As Lincoln noted,
Judge Douglas frequently, with bitter irony and sarcasm, paraphrases our argument by saying “The white people of Nebraska are good enough to govern themselves, but they are not good enough to govern a few miserable negroes!!”
Well I doubt not that the people of Nebraska are, and will continue to be as good as the average of people elsewhere. I do not say the contrary. What I do say is, that no man is good enough to govern another man, without that other’s consent. I say this is the leading principle—the sheet anchor of American republicanism. Our Declaration of Independence says:
“We hold these truths to be self evident: that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, DERIVING THEIR JUST POWERS FROM THE CONSENT OF THE GOVERNED.”
Now, Anger says that the American Constitution assigns us obligations in addition to “granting” us rights: among these obligations are paying taxes, obeying the military draft, and refrain from rebellion. On what grounds does the Constitution assign these obligations? What moral right does it have to impose these upon us? The mere fact that it exists, apparently—that is, he denies that it is based on pre-political notions, such as equality or consent: he has denied the sheet anchor of American Republicanism. So how is Anger to object when the “political institutions” which create our rights are drawn in such a way as to exclude blacks, or other politically unpopular minorities from the “bargaining” process? Anger has (I hope, unknowingly) adopted the view of Stephen Douglas, which is as far from libertarianism as one can go. True libertarianism reveres the freedom of the individual. Anger, however, has adopted a principle that reveres the freedom of states. It is not neo-libertarian; it is paleo-conservative.
Comments policy