Mr. Anger says I mischaracterize his positivism, because in his original post he said that humans have a “primordial yearning” for rights. I don’t see how this changes things at all. The question is whether rights pre-exist the state or not. The existence of a “yearning” may confuse, but cannot answer, that question. Is their “yearning” based on the fact that, as human beings, there are certain things that may be done and not done to them, consistent with morality? Does the existence of that yearning mean that “truth and keeping of faith belongs to men, as men, and not as members of society”? If so, then rights preexist the state, and we have nothing to disagree about. On the other hand, the fact that it’s a mere “yearning” may be taken as meaning nothing—it’s just a wish, like a child’s wish for ice cream, and it represents nothing about the connection of political philosophy to human nature. This latter view seems to be what Anger would endorse, since he says that “rights…are not ‘real’ unless they are secured…[by government].” (The same thing, of course, has been said by Cass Sunstein, and I adopt by reference Tom G. Palmer’s fine refutation of it.)
My insistence that rights are real even when they are not being enforced is not mysticism, as Anger claims; it simply means that rights are rights, and not something else. If a woman is raped in a forest and nobody hears, are her rights being violated? Anger would seem to say no—since her rights are not being “secured,” (since the cops don’t know it’s going on, and don’t do anything to stop the attack) she simply has no right not to be raped. I’m confident that Mr. Anger would not explicitly endorse this proposition, but I think it accurately demonstrates the flaws in assuming that rights exist only on the basis of the political will and ability to enforce them. There is nothing mystical in saying that rights exist before the state enforces them—nothing more mystical than saying that the concept of “four” exists before I add two plus two; nothing more mystical than saying that “motherhood” exists before a woman gives birth; nothing more mystical than saying that “survival” exists before I eat a meal. A right is a moral claim based on the nature of human beings; if someone murders me, my rights are being violated, even if the government declines to prosecute that act.
On the other hand, if rights depend on the government’s will to enforce them, whence comes that will? And does anything make that will rightful? Anger does not address this circularity. If the government’s acts create our rights, then may the government choose not to create rights for some people as opposed to others? And if so, then what is the purpose of government? To enable the strong to more efficiently oppress the weak? That would seem to be the result, and in any society based on such positivistic notions (for example, the Confederate States of America) that has been the actual result. I imagine a slaveowner saying to his slave in 1850, “no, no, you don’t have a right to be free from me enslaving you—your rights are not real until they are secured by government. You may have a yearning for freedom, but that doesn’t count for anything—after all, I have a yearning to enslave you. And if you believe that your right to be free exists even though the state of Georgia refuses to enforce it, why then you simply believe in a different kind of god….” In fact, that sounds awfully similar to what the slavery-defenders did say. But, again, Anger fails to address this problem.
Anger then goes on to say that libertarianism can only be accomplished through political bargaining. Fine—I agree. That was not my point. My point was that something must give or deny legitimacy to the existence of political bargaining. If rights preexist the state, then legitimacy is conferred by the concept of ownership—just like the legitimacy of a market is conferred by the fact that people own what they exchange. But only if you first hold that people have a right to life, liberty, and property, can political bargaining be legitimate. Democracy derives from liberty—not the other way around. Anger claims that “[t]he end of slavery and the recognition of equal rights for blacks couldn’t have been attained without political bargaining.” But that is not true. There were centuries of political bargaining that went on before slavery ended. It was the recognition that blacks are human beings, entitled to liberty before the existence of the state—that no man may govern another without that other’s consent—that brought an end to slavery. And that recognition was accomplished as the result of war, principled statesmanship, the exclusion of southern congressmen, and political bargaining (which then ended up deflating much of the Reconstruction plan).
As for Anger’s libertarianism, I take that word as referring to a political philosophy based on the concept of self-ownership, and which denies that Society is an entity with more rights than the rights of those who make up that Society. Anger, however, seems to deny self-ownership as a fundamental principle. He says it derives from political bargaining—the legitimacy of which appears to hang in the sky, without depending on any deeper principles. And he seems to deny that Society has only those rights that the people making up society give to it—since he says that Society may confer rights and obligations on us through a “bargaining” process which, again, hangs from a skyhook. This is why I say he is closer to a paleo-conservative than to a libertarian. He believes that the State may do whatever it wishes, and that individuals have no rights valid against the state—only permissions for which they have “bargained.”
I look forward to a more thorough explanation of his political views.
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