Kitabının 114. sayfasındakı alıntıya dönelim:

Profesör Lawrence Cremin erkeklerde okur yazarlık oranının 70 ila 100 arasında değişmekte olduğunu tahmin etti. Diğer araştırmalar gösteriyor ki 1650’den 1795’e kadar, erkek okur yazarlığı yüzde 60’tan yüzde 90’a yükseldi ve kadın okur yazarlığı yüzde 30’tan yüzde 45’e yükseldi. 1800’den 1840’a kadar, Kuzeyde okuma yazma % 75’ten % 91-97 arasında yükseliş yaptı. Aynı zaman diliminde, Güney’de % 50-60’dan % 81’e çıktı. Yazar ve eğitimci, John Taylor Gatto, Amerika’da okur yazarlığa önem verilen yerlerde oranın % 93 ve % 100 arasında olduğunu belirtti. 1850’de, Massachusetts zorunlu eğitimi kurmadan önce, eyalette okur yazarlık oranı % 98 idi.

Yüksek okur yazar nufus, devletin eğitimde müdahalesi olmadan açıkca mümkün. Bu görüş radikal eğitimci John Holt’a ait olup özgür düşüncenin ahlâki ilkesine kanıttır. Bu görüş, genç insanların kendi eğitimlerini kontrolde ozgür olmalarını talep eder. İzin verilince, bir çocuk okuma öğrenmeye kendi alanlarında uyum sağlayabilir. Kendine yönelik buluş işlemi çocuğun öğrenim isteğini güçlendirir.

Okumanın sevinci agresif baskı olmazsa daha iyidir. Biz özgürlükçüler baskısız eğitimi teşvik eden nadir bir pozisyondayız. Devletin zorlayıcı eğitimine karşi yenilikci alternatifler var. Bunlar Sudbury okul sistemi, Montessori okul sistemi, ve okulsuzluk sistemi. Bunların arasında en sevdiğim okul olmadan yapılan eğitim. Bu, devletin eğitim modellerine en radikal alternatif sağlar. Kendine özgülüğe, seçime ve özgürlüğe saygı verdiğinden, özgürlük prensiplerine en uygunudur.

Kültürel değişim eğitimde paralel değişiklik gerektirir. Eğer daha özgür topluma erişmek istiyorsak, çocuklarımızı farklı yetiştirmeliyiz. Kendi ilgi ve hayallerini takip etmeleri için daha çok özgürlük vermeliyiz. Yukarıda bahsedilen eğitim alternatifleri bunun gerçek olmasına yardım eder. Başlayalım!

Batu Caliskan Bu çeviri sorumludur.

There’s something endearingly toughminded, if that’s not an oxymoron, about libertarianism. At the same time, for the same reason, there’s something unbelievably monotonous about it. Whatever the issue, libertarians can be relied on to complain that people’s rights, especially their property rights, are being violated. Violations of rights, apparently, are everywhere: in laws prohibiting the sale and possession of crack, in zoning regulations, in antitrust statutes, in any and all sorts of economic redistribution, even in the public ownership of roads and taxation itself. [1]

The unspoken subtext is: why on earth would anyone believe this? To the nonlibertarian, libertarianism seems simply weird in its insistence that people have, on the one hand, no welfare rights at all – and on the other hand, property rights so robust that nearly every law on the books stands in violation of them. Libertarianism, in its apparent stark and fanatical focus on negative rights above all else, irresistibly reminds non-libertarians of the contending schools of Presocratic philosophy, intemperately insisting that everything was water, or fire, or motion, or rest. Libertarian policy prescriptions can easily seem to express a kind of fundamentalist mind-set comparable in strangeness and extremism (though of course not in content) to that of the Taliban.

This appearance, I shall argue, is illusory. Regardless of whether libertarians are right or wrong, their viewpoint, I contend, derives not from an alien set of values, but rather from a quite ordinary set of values coupled with a recognition of the logical implications of those values. In Section One I shall explain why libertarians favour negative rights over positive ones; in Section Two I shall turn to the application of this position to property rights.

I. One Right to Rule Them All

Libertarians believe [2] that there is, fundamentally, only one right: the right not to be aggressed against. All further rights are simply applications of, rather than supplements to, this basic right. Hence the vast panoply of other rights – positive rights, welfare rights – recognized by existing political regimes is dismissed as illegitimate.

This view seems mysterious to non-libertarians. More specifically, the libertarian position strikes many critics as puzzlingly one-sided. Freedom from aggression is a good thing, certainly; but so are freedom from hunger, freedom from disease, and freedom from poverty. Why not recognize rights in all these cases? What sort of lopsided view would one have to have of human life, in order to think that aggression is, but hunger, disease, and poverty are not, serious enough evils to take into account in devising a system of rights?

In what follows I offer an explanation of the libertarian position. Although I myself accept that position, I shall not be arguing for its truth; but I do hope to show that the position is not especially puzzling or mysterious, and that it does not depend on an implausible assessment (or indeed any assessment) of the relative badness of aggression compared to other evils.

The libertarian position comprises two distinct claims: first, we have a right not to be aggressed against (call this the Positive Thesis); second, we have no other rights (call this the Negative Thesis). While neither of these theses is uncontroversial, the Negative Thesis is likely to meet with far more dissent than the Positive Thesis. But for the libertarian, any such differential response must express a confusion, because the Positive Thesis turns out to entail the Negative Thesis (at least with the help of some truistic auxiliary premises).

For libertarians, the concept of rights belongs in the first instance to the realm of interpersonal ethics, and applies to the political realm only secondarily. That is because, for libertarians – as for the liberal tradition generally – rights are not the product of a political regime, but are prior to such regimes and constitute a constraint on them. Hence rights cannot without circularity be defined in terms of the purposes of a political regime. If political regimes are constrained by certain pre-existing rights, and indeed have as one of their purposes the protection of these rights, then it must be possible to describe what these rights require without presupposing the existence of a political regime. A crucial feature of libertarian political theorizing is the insistence that not just the precise nature, but the very existence, of political authority requires justification and cannot simply be assumed. If we start from the basic natural rights that human beings would have in any social context, including a state of nature, then the specification of a particular political regime cannot subtract from that array of rights; but then it cannot add to it either, for, as we shall see, the addition of one right always involves the subtraction of another.

How, then, are rights to be defined, if all reference to political institutions is to be omitted? To have a right is to have a moral claim against another person or persons; but not every such moral claim is a right. My having a right to be treated in a certain manner involves, at least, other people having an obligation so to treat me; but it must involve more than this, for not every such obligation has a right as its correlate. I have an obligation to be polite to my associates and grateful to my benefactors, but they have no right (except metaphorically) to my politeness or my gratitude.

It might be suggested that the correlate of a right is not just any obligation, but a legal obligation. Certainly this answer is on the right track, and is in line with the term’s historical associations, but as it stands it is inadequate. For, once again, we cannot without circularity define rights in terms of legal concepts and institutions if we wish to use rights as an independent standard for and constraint on legal institutions. But the reference to legal obligations does point to a crucial fact: the obligations that are correlated with rights differ from other obligations in being legitimately enforceable. If you wish to get me to honour a moral claim against me, you are free to lecture me, cajole me, or pay me, but only if the moral claim is a right may you use force as a means of securing my compliance. Hence X’s having a right against Y comprises both an obligation component and a permissibility component: the obligation on Y’s part to treat X in a certain manner, and the permissibility, on the part of X or of someone acting on X’s behalf, of forcibly compelling Y to treat X in that manner. (Note that the permissibility of enforcing a right does not entail the permissibility of exercising that right. I have the right to publish and distribute Nazi propaganda; it would not be permissible for me to exercise that right, but it would nevertheless be permissible for me, or my agent, to fend off by force anyone who proposed to suppress that right.)

But if rights are defined in terms of force, then there are conceptual constraints on what we can say about the relation between rights and aggression. For aggression and force are conceptually linked; aggression is initiatory force – or conversely, force is that mode of conduct which, if initiated unilaterally, counts as aggression. (To be sure, the precise contours of these two concepts stand in need of specification; but the vagueness of one is the vagueness of the other. Any doubts as to whether a particular course of action counts as force will be mirrored by doubts as to whether the initiation of that sort of conduct counts as aggression.) [3]

Now libertarians, as we have seen, accept the Positive Thesis that we have a right not to be aggressed against. Some libertarians accept this thesis on primarily deontological grounds, pointing, e.g., to the Kantian injunction not to treat persons as mere means to the ends of others, or the Lockean principle that we are not “made for one another’s uses.” Other libertarians accept the thesis on primarily consequentialist grounds, pointing to the beneficial results of voluntary relationships and the harmful results of coercive ones. [4]

But whatever the grounds, even those who reject the Positive Thesis will agree that it is attractive and that there is nothing mysterious about embracing it; it is the Negative Thesis that seems so outrageous. But what the libertarian is claiming is that the possibility of accepting the Positive Thesis while rejecting the Negative Thesis is precluded by the logical structure of the concepts involved. If people have a right not to be aggressed against, then people have a right not to be subjected to any initiatory use of force.

Consider the implications. What would have to be true if there were, in addition, some right other than the right not to be aggressed against? This would have to be a right to be treated in manner X, where failing to act in manner X does not constitute aggression, or initiatory force. (For if failing to act in manner X did constitute initiatory force, then the right to be treated in manner X would be a mere application of, rather than a supplement to, the right not to be aggressed against.) But if failing to act in manner X does not involve initiatory force, then either it involves non-initiatory force, or it does not involve force at all.

Suppose that failing to act in manner X does not involve force at all; in that case, compelling someone to act in manner X would constitute initiatory force, i.e., aggression, since it would be a use of force in response to something other than force. Once we grant the Positive Thesis and recognize a right not to be aggressed against, there can then be no right whose enforcement would involve compelling conduct whose non-performance would not involve the use of force.

Suppose instead that failing to act in manner X does involve force, but not initiatory force. Then what sort of force is it? It must presumably be a forcible restraint of another’s aggression; for otherwise it would be initiatory. But the forcible restraint of another’s aggression is permissible; for once we have granted the existence of a right not to be aggressed against, then we have granted the permissibility of forcibly restraining others’ aggression – since, as we’ve seen, the right not to be aggressed against comprises both the obligation not to aggress and the permissibility of using force to secure such non-aggression. Since forcible restraint of others’ aggression is permissible, there cannot be a right to forbid such forcible restraint.

If an activity involves no use of force, then there can be no right to suppress it by force, since such a use of force would be aggression, and so would violate the obligation component of the right not to be aggressed against. And if an activity involves a non-initiatory use of force, then once again there can be no right to suppress it by force, since such a use of force would violate the permissibility component of the right not to be aggressed against. Hence the only activity whose forcible suppression is consistent with the right not to be aggressed against, is aggression itself. But there can be a right to be treated in manner X, only if forcibly compelling people to act in manner X is permissible, which in turn is possible only if failing to act in manner X is an activity whose forcible suppression is permissible. Thus if aggression is the only activity whose forcible suppression is permissible, then refraining from aggression is the only activity whose performance may legitimately be compelled. It follows that by recognizing a right not to be aggressed against, we have thereby ipso facto ruled out the existence of any other right.

Let me state this argument somewhat more formally:

1. Every person has the right not to be aggressed against by any other person. [The Positive Thesis.] (Premise.)
2. Aggression = initiatory force. (Premise.)
3. X has a right against Y to be treated in manner Z just in case a) Y is obligated to treat X in manner Z, and b) it is permissible for X, or X’s agent, to use force to compel Y to treat X in manner Z. (Premise.)
4. Every activity constitutes either initiatory force, non-initiatory force, or non-force. (Premise.)
5. An activity constitutes non-initiatory force just in case it is a use of force to restrain others from initiating force against one. (Premise.)
6. Whatever it is permissible to do, it is impermissible to suppress by force. (Premise.)
7. Doing something is obligatory just in case not doing it is not permissible. (Premise.)
8. If an activity constitutes non-force, then forcibly suppressing it constitutes initiatory force. (Premise.)
9. If X has a right against Y to be treated in manner Z, then it is permissible for X, or X’s agent, to use force to compel Y to treat X in manner Z. (3)
10. Every person has the right not to have force initiated against her by any other person. (1, 2)
11. Every person is obligated not to initiate force against any other person, and it is permissible for any person, or the agent of any person, to use force to restrain others from initiating force against that person. (3, 10)
12. Every person is obligated not to initiate force against any other person. (11)
13. It is permissible for any person, or the agent of any person, to use force to restrain others from initiating force against that person. (11)
14. If X has any right against Y other than the right not to be aggressed against by Y, then there is a way of acting, Z, such that Z does not constitute aggression, and yet it is permissible for X, or X’s agent, to use force to compel Y to treat X in manner Z. (9)
15. If X has any right against Y other than the right not to be aggressed against by Y, then there is a way of acting, Z, such that failing to act in manner Z does not constitute initiatory force, and yet it is permissible for X, or X’s agent, to use force to compel Y to treat X in manner Z. (2, 14)
16. If X has any right against Y other than the right not to be aggressed against by Y, then there is a way of acting, Z, such that failing to act in manner Z constitutes either non-initiatory force or non-force, and yet it is permissible for X, or X’s agent, to use force to compel Y to treat X in manner Z. (4, 15)
17. It is permissible for any person to engage in non-initiatory force. (5, 13)
18. It is impermissible for any person forcibly to prevent any other person from engaging in non-initiatory force. (6, 17)
19. It is impermissible for any person to initiate force against any other person. (7, 12)
20. It is impermissible for any person forcibly to prevent any other person from engaging in an activity that constitutes non-force. (8, 19)
21. It is impermissible for any person forcibly to prevent any other person from engaging either in non-initiatory force or in non-force. (18, 20)
22. There is no way of acting, Z, such that failing to act in manner Z constitutes either non-initiatory force or non-force, and yet it is permissible for X, or X’s agent, to use force to compel Y to treat X in manner Z. (21)
23. There are no rights other than the right not to be aggressed against. [The Negative Thesis.] (16, 22)

The frequent charge that libertarians recognize too few rights – that they should recognize positive rights in addition to negative ones – is thus an empty one. Since every right carries with it a permissibility of enforcement, to introduce a new right is always to introduce a new permissible use of force to restrict people’s activities, and thus to close off forcibly certain choices that were previously open to them. If I gain a right to be treated in manner M, you must correspondingly lose the right not to treat me in manner M. Hence every time we add a right here, we ipso facto subtract a right there; the total quantity of rights can thus be rearranged, but not increased. Perhaps libertarians recognize the wrong rights; but it makes no sense to complain that they recognize too few.

Because libertarians acknowledge only negative and not positive rights, critics often assume that libertarians must also, bizarrely, acknowledge only negative and not positive obligations. But of course libertarians acknowledge both kinds of obligations. [5] It’s just that libertarians understand negative obligations to rule out the enforceability of positive obligations; the ban on positive rights derives from conceptual constraints inherent in our negative obligations, not from any privileging of negative obligations over positive ones. (The libertarian is not, for example, committed to regarding freedom from aggression as more important than any other value.)

The Positive Thesis initially seemed more plausible than the Negative Thesis; but once we grant premises 2 through 8, then we can see that the Positive and Negative Theses stand or fall together. Of course premises 2 through 8 are not immune from challenge; but they do have, I submit, a certain luminous obviousness about them. The most likely target for the non-libertarian, then, is premise 1, the Positive Thesis, which for many will lose much of its initial plausibility once it is seen to commit us to the Negative Thesis. But the non-libertarian will then need to face and overcome the deontological and consequentialist arguments for the Positive Thesis. I think those arguments are weighty ones, but defending them is not my present concern; I am simply attempting to delineate the logical structure of libertarianism, to show how its claims hang together.

II. The Logic of Property

A fuller understanding of the libertarian conception of non-aggression requires some attention to the issue of property rights. Libertarians, notoriously, condemn as unrightful any interference with private property. But how is this connected with the libertarian position on aggression? After all, someone could acknowledge a right to be free from initiatory force, but deny that seizing someone’s external possessions counts as initiatory force, or indeed as force at all.

Let us first observe that insofar as a property right is the right to exercise control over some external [6] resource, the defender of welfare programs, economic regulation, and redistributive taxation is as much a proponent of property rights as the libertarian. Someone who claims that the less affluent have a right to the excess wealth of the more affluent (or, for that matter, vice versa) [7] is asserting a right, on the part of one group, to exercise control over certain resources that have heretofore been under the control of another group. Hence the libertarian and the welfare-statist disagree, not about the existence of property rights, but about the transfer conditions of those rights. [8] For the libertarian, a property right can pass from X to Y only if both parties consent to the transfer; [9] for the welfare-statist, such a transfer of property rights can be triggered not only by mutual consent, but also by, e.g., Y’s need, regardless of X’s consent. Hence the libertarian rejection of positive rights does not ipso facto rule out the existence of welfare rights or a welfare state, at least not without further argument; for the welfare state could be seen as securing the negative right of the needy not to be prevented from helping themselves to resources to which they are entitled. [10]

What, then, explains the libertarian’s dissent from the welfare-statist position?

Since libertarians accept the Positive Thesis, they can acknowledge a right to control external resources only insofar as interference with such control would constitute initiatory force. This brings us back to the question of specifying what counts as force. Imagine a world in which people freely expropriate other people’s possessions; nobody initiates force directly against another person’s body, but subject to that constraint, people regularly grab any external resource they can get their hands on, regardless of who has made or been using the resource. Any conception of aggression according to which the world so described is free of aggression is not a plausible one. [11]

Hence it follows that we are committed to recognizing, as instances of initiatory force, some forms of interference with one’s control over external resources, even if no bodily assault on one’s person is involved. But if such forms of interference constitute initiatory force, then it must be permissible to interfere with them; hence it follows that we must also recognize some forms of interference that do not constitute initiatory force. In short, we are committed to a system of property rights – that is, a set of principles determining when one may, and when one may not, interfere with a person’s control over some external resource.

The question, then, is: what system of property rights has the best claim to be an instantiation of the right not to be aggressed against? I shall not argue that the libertarian system is decisively superior to the welfare-statist system on this count; I shall merely attempt to show that there are certain difficulties in regarding the welfare-statist system as an instantiation of the right of non-aggression, and that the libertarian system is not subject to these particular difficulties.

Libertarian property rights are, famously, governed by principles of justice in initial appropriation (mixing one’s labour with previously unowned resources), justice in transfer (mutual consent), and justice in rectification (say, restitution plus damages). [12]

It is easy to see how the right not to be aggressed against will be interpreted here: I count as initiating force against a person if I seize an external resource that she is entitled to by the application of those three principles. If she is not entitled to the resource under these principles, but is in possession of the resource anyway, then my seizing the resource counts as force, but not as initiatory force, so long as I am acting on behalf of whichever person is entitled to the resource; otherwise I am initiating force against that person. [13]

Whether or not this is the most defensible instantiation of the right not to be aggressed against, it is at least a possible and coherently intelligible way of instantiating that right. [14]

It is not clear that the same can be said for the welfare-statist alternative. The welfare-statist may of course claim that it is aggression to cling to one’s resources when there are others who need them more; but what could this mean in practice? Suppose that the disparity of wealth between Scrooge and Cratchit is great enough to trigger an entitlement on Cratchit’s part to some portion of Scrooge’s resources. Several difficulties immediately arise.

First, if Cratchit was initially as wealthy as Scrooge, and through some misfortune has become poor overnight, then Scrooge, through no action of his own, has unwittingly passed from rightful possession to wrongful possession of the resources in question. If seizing resources is to count as force, as it must if property rights are to be based on the right not to be aggressed against, then from Cratchit’s suddenly acquiring title to (and thus a right to seize) these resources in Scrooge’s possession, it follows that Scrooge’s possession of them must suddenly have come to count as aggression (since otherwise Cratchit’s seizure of the resources would be initiatory force). But any conception of aggression according to which one can become an aggressor merely by undergoing a Cambridge change seems inadequate. [15]

Moreover, how great must the disparity of wealth between Scrooge and Cratchit be before the transfer of property rights is triggered? To what percentage of Scrooge’s resources does Cratchit become entitled? If there are many Scrooges and many Cratchits, by what means are we determine how much which Cratchits may take from which Scrooges? The Rawlsian Difference Principle and other such guidelines would be of little help here, for they specify no determinate outcome; one cannot say, e.g., that any given Cratchit has a right to keep seizing resources from any given Scrooge until the disparity in their respective socioeconomic conditions is reduced to a point that is favorable to the worst-off person, for that yields no concrete guidance. The Difference Principle is not meant to be a policy dictating specific transfers; rather, it is a standard against which policies dictating specific transfers may be tested.

More precisely, the Difference Principle and other such guidelines are not principles of interpersonal ethics; rather, they are meant to guide the laws and policies of a political regime. What the welfare-statist is really advocating is not Cratchit’s right to seize some portion of Scrooge’s resources, but Cratchit’s right to have the government allocate resources in accordance with rules that pass the test of the Difference Principle or some analogous principle. But now it is the government’s right to control Scrooge’s resources that stands in need of justification. [16]

Since governments, on any liberal view, are not mystical bodies of social union but are simply collections of individuals, on an equal moral footing with the individuals they govern, a government can have no rights in excess of the sum of the rights of the individuals composing it. [17]

Recall, too, that if rights are to serve as an external standard for the evaluation of political institutions, they cannot without circularity be defined in terms of such institutions; on the contrary, to paraphrase Jefferson, governments are instituted among men to secure rights independently defined. Hence there cannot be a basic right to be treated in a certain way by government; any such right must be reducible to rights holding in ordinary interpersonal relations. The libertarian system of property rights is specifiable in such terms; the welfare-statist one, it seems, is not.

Of course, just as it is open to the welfare-statist to reject the Positive Thesis that people have a right not to be aggressed against, it is also open to the welfare-statist to reject the claim that rights are an external constraint on political institutions. I submit, however, that the result will not only no longer be libertarian; it will also no longer even be liberal. [18]

The truth or falsity of libertarianism, however, is not my present concern. I claim to have shown only the following:

1. Whether or not the Positive Thesis, that we have a right not to be aggressed against, is true, there is certainly nothing mysterious or one-sided about finding such a thesis plausible and attractive.
2. Given the Positive Thesis, together with some highly plausible auxiliary premises, the Negative Thesis, that we have no rights other then the right not to be aggressed against, necessarily follows, and so there is nothing mysterious or one-sided in embracing it.
3. Given the Positive and Negative Theses, the libertarian view of property rights is more defensible than the welfare-statist view, and so there is nothing mysterious or one-sided about preferring the former to the latter.

To the extent that I have succeeded in my purpose, the libertarian’s ethical and political commitments should now be, if not compelling, then at least comprehensible. [19]

Notes:

1. Don Herzog, “Gimme That Old-Time Religion,” Critical Review 4, nos. 1-2 (1990), pp. 74-85.

2. In light of the diversity of the libertarian movement, there is probably no true sentence beginning with “Libertarians believe,” if that is read as “All libertarians believe”; but the view described here is certainly the dominant one. Hence the term “libertarians,” here and throughout, means no more than “the libertarian mainstream.” A typical statement of the kind of position I describe, though differing in presentation from my account, is Murray N. Rothbard, The Ethics of Liberty (New York: New York University Press, 1998).

3. It should be noted that “aggression,” as used here, is a descriptive concept, not a normative one; hence the libertarian prohibition on aggression is not a truism. (Admittedly, the term “aggression” has pejorative connotations – and deservedly so! But so do terms like “torture” and “genocide”; that doesn’t make them normative concepts. In such cases, the pejorative connotation is not part of the stipulated meaning of the term, but derives from the recognition that what the term describes is in fact evil.)

4. My own position is that deontological considerations ground a strong presumption in favour of the Positive Thesis; that this presumption could in principle be overridden by sufficiently weighty consequentialist considerations; and that, nonetheless, consequentialist considerations in fact reinforce the Positive Thesis rather than overriding it.

5. This is true even of that minority of libertarians that bases libertarian rights on an egoistic foundation. Ethical egoism is a theory not of the scope of our obligations, but of their ground.

6. For the libertarian, of course, one’s property includes not just external resources but one’s own person as well; but for present purposes I shall ignore this complication and restrict the use of the term “property” to external resources.

7. It’s worth noting that most libertarians regard the actual operation of the regulatory welfare state as, on balance, upwardly rather than downwardly redistributive – a claim supported by appeal to economic and historical considerations, and often invoked in consequentialist arguments for the Positive Thesis; see, e.g., Roderick T. Long, “Rothbard’s ‘Left and Right’: Forty Years Later,” Mises Daily Article, 8 April 2006, <http://mises.org/story/2099>; “They Saw It Coming: The 19th -Century Libertarian Critique of Fascism,” 2 November 2005, <http://lewrockwell.com/long/long15.html>; and “Who’s the Scrooge? Libertarians and Compassion,” Formulations 1, no. 2 (Winter 1993-94), <http://tinyurl.com/7pqhr>.

8. See Roderick T. Long, “Abortion, Abandonment, and Positive Rights: The Limits of Compulsory Altruism,” Social Philosophy and Policy 10, no. 1 (1993), pp. 166-91.

9. Or as compensation to the victim of a rights-violation; for an account of this right as an application of, rather than a supplement to, the right not to be aggressed against, see Roderick T. Long, “The Irrelevance of Responsibility,” Social Philosophy and Policy 16, no. 2 (1999), pp. 118-145.

10. cf. James P. Sterba, “From Liberty to Welfare,” Social Theory and Practice 11, no. 3 (1985), pp. 285-305.

11. Recall that aggression is still being treated as a descriptive concept, not a normative one. Hence the question is not whether the grab-what-you-can world is free of injustice, but whether it is free of initiatory force. If I starve to death because someone raids my food stores every time I turn my back, it does not seem implausible to describe the situation as one in which I am forced into starvation.

12. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974).

13. To say that nobody is entitled to the resource is self-defeating, since that would mean that nobody has a right to decide what happens to it, which in turn would mean that nobody has a right to interfere with anybody else’s use of it – which comes perilously close to conceding title to whichever person is using it at the moment.

14. I am sympathetic to a broadly Lockean account in which a person’s right to exclusive control over her possessions is seen as closely analogous to her right to exclusive control over the molecules currently composing her body. In effect, the physical boundaries of the self are not one’s body but one’s ongoing projects; indeed, a person’s body just is one of her ongoing projects, so the right to bodily integrity is just one more property right. (cf. Samuel C. Wheeler III, “Natural Property Rights As Body Rights,” Noûs 16 (1980), pp. 171-193.) However, I do not take my present argument to depend on the correctness of this account, since at the moment my thesis is not that the libertarian view of property is true, but rather that it is, while the welfare-statist view is not, intelligible as an application of the Positive Thesis.

15. Ann Levey suggests that a welfare-statist could evade my Cambridge-change objection by claiming that no one has a right to any property above a basic minimum; in that case, the surplus property rights of the wealthy, rather than having Cambridge changes as their transfer conditions, would never exist in the first place. This would of course be a rather odd welfare state; once everyone had received the basic minimum, the government could freely grab the surplus of the wealthy, and the wealthy could freely grab it back. But such a system, even if workable, is still vulnerable to a Cambridge-change objection. There cannot be a rights-violation without a rights-violator; so if I have a right to a basic minimum, that means that when I fall below that minimum, someone must be violating my right. But if everyone were to fall below the basic minimum, then no one could count as the rights-violator. Hence the right to a basic minimum makes sense only if the level of the basic minimum is not fixed, but varies with the general affluence of society. But in that case, we still get the Cambridge-change problem: whether I count as an aggressor or not will depend on changes elsewhere in the economy.

16. James Sterba argues that welfare rights are negative property rights, and infers that libertarian considerations therefore mandate a welfare state: “Only a welfare state would be able to effectively solve the large-scale coordination problem necessitated by the provision of welfare. Consequently, once a system of welfare rights can be seen to have a libertarian justification, the argument for a welfare state hardly seems to need stating.” (Sterba, op. cit., p. 305.) But even if we leave aside the consequentialist arguments offered by libertarians against the thesis that the welfare state is the most effective means of securing welfare rights, there is still a problem: if, as Sterba seems to see, it is only in the context of a welfare state that it can be settled which obligations are entailed by welfare rights, then pre-existing welfare rights cannot, contra Sterba, be given any specificity, and so cannot be used to justify the establishment of a welfare state in the first place. (But for a possibly contrary view see Jeremy Shearmur, “The Right to Subsistence in a ‘Lockean’ State of Nature,” Southern Journal of Philosophy 27, no. 4 (1989), pp. 561-­68.)

17. For the basically egalitarian impulse behind libertarian doctrine, see Roderick T. Long, “Equality: The Unknown Ideal,” <http://www.mises.org/story/804>.

18. cf. Roderick T. Long, “Immanent Liberalism: The Politics of Mutual Consent,” Social Philosophy and Policy 12, no. 2 (1995), pp. 1-31.

19. This paper has benefited from helpful comments by Ann Levey – though I suspect she will find this version as deranged as the last one.

“An expansive definition of coercion allows libertarians to achieve a greater depth of understanding about the various ways in which people can be coerced. If we wish to comprehensively eradicate initiatory coercion; we will have to understand the many ways in which it can manifest itself. Apart from the obvious use of physical force; there is the use of economic reward and punishment and social ostracism. Both of which can be used to control people.”

Let us turn to a select quotation from the book on page 114:

Professor Lawrence Cremin has estimated that male literacy ranged from 70 to 100 percent. Other research shows that from 1650 to 1795, male literacy rose from 60 percent to 90 percent, and female literacy rose from 30 percent to 45 percent. From 1800 to 1840, literacy in the North rose from 75 percent to somewhere between 91 and 97 percent. In the South during that same time period, it went from 50 to 60 percent to 81 percent. Writer and educator, John Taylor Gatto notes that “by 1840 the incidence of complex literacy in the United States was between 93 and 100 percent wherever such a thing mattered.” In 1850, just before Massachusetts imposed compulsory schooling, literacy in that state was at 98 percent.

A highly literate population is clearly possible without state intervention in education. This goes along well with the moral principle of freedom of thought for children idenitfied by the late radical educator, John Holt. This principle demands that young people be free to control their own learning. When allowed to do so, a child is able to fit learning how to read into his or her own desires/interests. A self-directed process of discovery that can strengthen a child’s drive to learn more.

The joy of reading is preferable when not tainted by the evil of aggressive coercion. We left-libertarians are uniquely positioned to encourage literacy without coercion. There are revolutionary alternatives to an statist regime of compelled learning. They include unschooling, Sudbury schools, and Montessori schools. Among these choices, unschooling is my favorite. It provides the most radical alternative to statist models of education. In its respect for individuality, choice, and freedom, it’s the most compatible with libertarian principle.

Cultural change requires a corresponding educational transformation. If we wish to move society towards greater freedom, we will have to raise our children differently. They are to be allowed a great deal of freedom to pursue their own dreams and interests. The educational alternatives mentioned above can help make this a reality. Let’s get started on it!

Translations for this article:

• Turkish, Zorunlu Öğretim, Okuryazarlık, Ve Eğitim Alternatifleri.

the invasive use of physical violence or the threat thereof against someone else’s person or (just) property

Rothbard provides several quotations of Hayekian definitions of coercion. The first one goes:

control of the environment or circumstances of a person by another (so) that in order to avoid greater evil, he is forced to act not according to a coherent plan of his own but to serve the ends of another

He also quotes Hayek thusly:

Coercion occurs when one man’s actions are made to serve another man’s will, not for his own but for the other’s purpose.

The third relevant Hayek statement quoted goes:

the threat of force or violence is the most important form of coercion. But they are not synonymous with coercion, for the threat of physical force is not the only way coercion can be exercised.

Hayek clearly embraces a more expansive definition of coercion than Rothbard does. This brings us to the central question of what kind of response to non-physical violence coercion should be sanctioned on libertarian principle. One guide to answering this question can be found in the principle of proportionality. If I aggressively verbally abuse or ostracize you; shooting me would be disproportionate to the offense. On a similar note, the refusal of service doesn’t justify a violent response either. That doesn’t make it any less odious.

An expansive definition of coercion allows libertarians to achieve a greater depth of understanding about the various ways in which people can be coerced. If we wish to comprehensively eradicate initiatory coercion; we will have to understand the many ways in which it can manifest itself. Apart from the obvious use of physical force; there is the use of economic reward and punishment and social ostracism. Both of which can be used to control people.

The solution to dealing with these kinds of controls is to make use of non-state non-violent protest. If people are unjustly marginalized through social ostracism, we libertarians should come to their aid through social pressure. When people are controlled through economic reward and punishment, there should be a concerted effort to help them achieve greater economic independence. These solutions are necessary to achieve an integrated approach to dealing with coercion.

Cooperation Versus Coercion

Cooperative exchanges are those in which all parties have consented to the exchange. In coercive exchanges, at least one party has not consented. Most interactions are easy to distinguish. If I ask you to trade me $5 for a hot dog, you agree and we exchange, then the exchange is cooperative. If I tell you to give me a hot dog or I will shoot you, the exchange is coercive.

If libertarianism does nothing else, it demands cooperative interactions and condemns coercive ones. While that sounds simple, the results are powerful. Cooperative exchange ensures that all parties in the exchange at least believe they’re benefiting by it. If the goal is the most good for the most people, it would seem preferable that everyone would walk away from all exchanges at least somewhat happier than they arrived.

Beyond this though, the less coercion that’s tolerated, the most everyone must pursue their highest good while benefiting others in the process. Insisting on cooperation means I can’t just find a gun and hold people up for hot dogs. I have to make or invent things the hot dog holders want to get my hot dogs. Because people will act in their self-interest, insisting on cooperative exchanges works with, and not against, how humans operate to get them to benefit each other in the process.

And by making people exchange cooperatively with each other we create wealth, as it creates the conditions necessary to incentivize making new and better things to trade.

While sex-positivity certainly encompasses many thoughts and ideas, consent versus rape is perhaps one of the most fundamental. This can very easily be analogized to cooperation versus coercion. Basically, sex-positivity holds that all interactions of a sexual nature can be lumped into one of two categories, sex and rape. The difference between the two is enthusiastic consent. Enthusiastic consent in sex-positivity is really just a more-specific application of the idea of cooperative exchanges. In libertarianism, all non-cooperative exchanges are coercive. In sex-positivity, all sex not enthusiastically consented to is rape. In both, all parties in the exchange at least believe they’re benefiting by it.

The Social Contract

You can see how a focus on cooperation undergirds libertarianism in several related ideas. First is the idea that the so-called “Social Contract” is insufficiently cooperative, as valid contracts require more than passive consent. In fact the concept of contracts in general is essentially cooperation. You can also see the focus on cooperation and consent in the non-aggression principle.

Shades Of Gray

Unfortunately, cooperative versus coercive isn’t always a black-and-white distinction. Some people draw a bright line between physical coercion and other kinds of threats. But even that is not sufficient, as most people see the threat of blackmail as coercive. Similarly, most people see slander as coercive as well. The world we live in contains interactions that cannot be neatly lumped into one or the other category.

The same is true of sex and rape. Enthusiastic, as opposed to passive, consent is aimed at helping to differentiate between a person unable to resist and a person who is consenting. Still, drugs, alcohol, fear and communication problems do make some people seem to be enthusiastically consenting who are not.

The Benefits

Even if the lines aren’t as clear as we’d like them to be, trying to achieve a world in which more exchanges are cooperative and fewer are coercive is worth the effort. When people do things because they want to, and not because they fear harm, they live in a freer, more innovative and prosperous world.

Similarly, it’s a worthy goal for all sexual interactions to be enthusiastically consented to.

What Libertarianism Can Learn

Libertarianism is generally steadfast in holding that individuals should not coerce each other physically. Physical violence and threats of violence are pretty universally condemned. But where non-physical threats come into play, we often shy away from steadfastly upholding a person’s ability to exchange without them. In short, we’re generally okay with trying to control each other’s behavior through non-physically violent threats. These generally including mocking and shaming. Some would even go as far as to defend a person’s right to slander or blackmail.

Sex-positivity, on the other hand, seeks to do away with all attempts to control another’s enthusiastically consensual sexual behavior. Sex-positivity admits that no one knows what’s best for another person, in bed or outside of it. So all attempts to control, whether physical or not, are inappropriate and are not worth the drawbacks. In essence, sex-positivity acknowledges and incorporates the appropriate solution to Hayek’s knowledge problem better and more thoroughly than libertarianism currently does.

Sex-positivity seeks to destroy the judgment and shame which keep people from being able to fully enjoy sex, or a lack of sex, or anything in between. It seeks to allow the greatest amount of peaceful, voluntary sexual exchange.

Libertarianism should seek to destroy the judgment and shame which keep people from being able to fully enjoy any kind of peaceful, voluntary exchange. In this way, it will fully engage in creating a world which allows the greatest amount of peaceful, voluntary exchange possible.

The economic contribution of his essay is that it represents the thesis advanced by German economist Georg Friedrich Knapp in The State Theory of Money (1924), an expose advocating the Chartalist approach to monetary theory claiming that money must have no intrinsic value and strictly be used as tokens issued by the government, or fiat money. Today, modern-day chartalists are from the school of thought known as Modern Monetary Theory (MMT).

Without getting into the intrinsic value debate, this is where I strongly depart from Denninger, because if we accept the thesis that all money is a universal mass illusion, then a market-based illusion can be just as valid or more valid than a State-controlled illusion. What Denninger and Greenbackers and MMT supporters reject is the notion that monetary illusions themselves are a competitive marketplace, falsely believing that only the State is in a ‘special’ position to confer legitimacy in monetary matters.

Regarding this issue of State-sanctioned legitimacy, bitcoin as a cryptographic unit seeks and gains legitimacy through the free and open marketplace. It is not a governmental instrument of legal tender that requires regulatory legitimacy and coercion by law in order to gain acceptance.

Therefore, the path to widespread adoption of bitcoin hinges on three primary market-based developments: (a) robust and liquid global exchanges similar to national currencies that can offer risk management via futures and options, (b) more user-friendly applications that mask the complexities of cryptography from users and merchants, and (c) a paradigm shift towards “closing the loop” such as receiving source payments and wages in bitcoin to eliminate the need for conversion from or to national fiat.

Even after graciously accepting Denninger’s definition of what the ideal currency would be (which I don’t) and searching for any economic nuggets of value, his arguments can be distilled into four main criticisms of bitcoin as a monetary instrument. First, bitcoin does not provide cash-like anonymity. Second, bitcoin transactions take too long for confirmations to be useful in everyday transactions. Third, bitcoin exhibits irreversible entropy.  Fourth, the decoupling of the stateless bitcoin from the obligation of monetary sovereigns is considered a fatal weakness.

Now that we identified the objections, let’s take these in order.

On the first point surrounding bitcoin anonymity, Denninger only embarrasses himself with this criticism. By default, bitcoin may not offer anonymity and untraceability like our paper cash today, but it is better described as user-defined anonymity because the decision to reveal identity and usage patterns resides solely with the bitcoin user. This is far superior to a situation where users of a currency are relegated to seeking permission for their financial privacy which is typically denied by the monetary and financial overlords. Also, his capital gains tax issue is a non-starter because it’s a byproduct of a monopoly over money.

His second criticism of a lack of utility in the ‘goods and service preference’ due to timing of sufficient block chain confirmations has some merit. However, advances have been made in the use of green addressing techniques that solve the confirmation delay problem by utilizing special-purpose bitcoin addresses from parties trusted not to double spend.

Denniger’s third criticism that bitcoin exhibits irreversible entropy is confusing. Typically, entropy refers to a measure of the unavailable energy in a closed thermodynamic system that is also usually considered to be a measure of the system’s disorder. In the case of bitcoin, I suspect Denninger is taking it to mean the degradation of the matter in the universe because of his explicit comparison to gold. While it is true that bitcoins lost or forgotten are ultimately irretrievable, I view that as a feature not a bug because it is the prevailing trait of a digital bearer instrument. Two bitcoin digital attributes that make it superior to physical gold are its ability to create backups and its difficulty of confiscation. Furthermore, the number of spaces to the right of the decimal point (currently eight) is immaterial to bitcoin’s suitability as a monetary unit.

Now for the big and final one. Denninger asserts that monetary sovereign issuers possess not only the privilege, but the obligation, of seigniorage, which Denninger refers to as bi-directional since sovereigns have the responsibility of maintaining a stable price level during times of both economic expansion and economic contraction. As a product of Hayekian free choice in currency, market-based bitcoin is decentralized by nature and poses a false comparison to the century-old practice of central bank monetary manipulation. Fear not deflation.

Governments have appropriated the monetary unit for their own benefit by declaring it the only preferred monetary unit for payment of taxes to the State. Believing that governments have sincere and good intentions in administering the monetary system is akin to believing in fairy tales. Control of the monetary system serves one and only one interest — the unlimited expansion of the sovereign’s spending activity to the detriment of the unfortunate users of that monetary unit. Decentralized Bitcoin obliterates this sad state of affairs.

Denninger’s biased and establishment preference for a monetary sovereign serves only to harm his analysis because it undeniably closes him off from alternative, and usually superior, free-market monetary arrangements. More damaging, however, is the fact that it places him outside of the mainstream in free banking circles and squanders his remaining quasi-libertarian credibility as a champion of markets.

In their remarks on Crispin Sartwell’s Against the State, both Christopher Morris and Jan Narveson object to Sartwell’s conclusion that existing states are conceptually incompatible with the very possibility of consent (40, emphasis added). Specifically, they object to the strength or the sweep of the incompatibility claim: Morris thinks that this is an exaggeration and an unnecessary one, and Narveson insists that such a strong claim of incompatibility cannot be taken literally. Each attempts to refute the incompatibility claim, at least as originally stated, by means of counterexamples. Presumably, if you can point to at least one case where individual consent to be ruled is actually secured by an existing state, then clearly (modal logic and all that) it must not be logically impossible for existing states to secure it. And each argues that Sartwell could have done just as well, for the purpose of undermining consensualist accounts of legitimacy, with a much weaker claim. Narveson goes so far as to attribute this weaker claim to Sartwell, insisting that Sartwell really must have meant to say, not that existing states operate in a way that logically precludes any of their subjects from consenting to their rule, but rather that they operate so as to preclude the unanimous consent of all their subjects — that is, that there must always be at least one dissenter in any given state, not that there never can be any non-dissenters.

What then are the counterexamples to be considered? Narveson mentions those who voted in a government election for the party currently in power. Morris, for his part, says that at least some people seem voluntarily to perform acts that seem to constitute consent, and they seem to do so with the requisite understandings. I’d be interested to know whether the performances Morris has in mind are performative utterances like the Pledge of Allegiance or citizenship oaths, where the utterer explicitly declares her support for a particular government, or whether he also means to include other kinds of acts, which have some other purpose but from which consent can reasonably be inferred. But whatever sorts of spontaneous or ritualized performances Morris or Narveson may have in mind, what puzzles me is that, while they indicate these cases as counterexamples to Sartwell’s strong claim — as presented on page 40 of Against the State — neither Morris nor Narveson seems to engage with the direct argument for which the strong claim is the conclusion — as presented on page 50 — in which Sartwell explicitly considers and rejects the claim that these sorts of individual performances could count as consenting to the State’s rule. Thus:

… consent is always compromised by force; the mere existence of effective force dedicated to some end constitutes coercion toward that end, whatever you may think or want. If I consent to abide by the law when that law is enforced by a huge body of men with guns and clubs, it is never clear, to say the least, whether my consent is genuine or not. … It will always be prudent for me, under such circumstances, to simulate consent, and there are no clear signs by which a simulation could be distinguished from a genuine consent in such a case. That I am enthusiastic in my acquiescence to your overwhelming capacity for violence—that I pledge my allegiance according to formula, sing patriotic songs and so on—does not entail that I am not merely acquiescing. … [T]he mere existence of an overwhelming force by which the laws will be enforced compromises conceptually the possibility of voluntarily acceding to them. Or put it this way: the power of government, constituted by hypothesis under contract, by which it preserves the liberties and properties of its citizens, is itself conceptually incompatible with the very possibility of their consent. (50-51)

That is, the standing threat of overwhelming force ensures that any individual performance is made under duress, ruling out the preconditions for any genuine consent. I’d be interested to hear what Narveson and Morris make of this argument for rejecting their purported counterexamples to the strong claim. Unless there is some response to it, then it seems like the attempt to use individual performances as evidence for the actual existence of (at least some) individual consent to the State, which is to say, as evidence against Sartwell’s strong incompatibility claim, is simply question-begging.

Now, I think it would be perfectly fair for Narveson and Morris to object that Sartwell’s argument, as stated, does need some tightening, and may also need some elaborating. But I think that once the tightening and the elaborating have been done, the argument does in fact provide a basis for a very strong version of Crispin’s strong incompatibility claim — and the strong version of that strong claim will be of general interest for anyone who intends to connect their notion of political right to respect for individual liberty, and their notion of liberty to respect for individual consent in the use of person or property.

Now, if someone goes through the motions of consenting while under a background threat of force against dissenters, for Narveson or Morris to be able to insist that it is possible for that to express genuine consent only if they deny at least one of the following principles:

1. Any seeming expression of consent to a condition C, if given under a standing threat of force against refusers, is given under duress.
2. Any seeming expression of consent to a condition C, if given under duress, cannot be treated as a genuine expression of consent to C.
3. If you cannot do anything that could be treated as a genuine expression of consent to a condition C, then you do not count as having consented to C.

All three seem initially plausible, to me at least, but if Narveson or Morris accepts all three, then it quickly follows that he cannot count as having consented to any condition C when there is a background threat of force against those who refuse to consent to C. Since that’s how existing states roll, nobody could do anything that would count as having consented to the state — and that would remain the case even for those who say that they consent with all their heart out of an earnest feeling of duty and with a great deal of pride. If all three principles are accepted, then even if you want to give your consent to the State’s rule over you, you can’t do it, because the state’s unilateral imposition of the terms preempts your efforts to consent to the terms.

So, if Narveson or Morris wants to avoid that conclusion, he’ll have to pick one of the principles to reject, and the question is which one to pick.

Principle (1) looks like it’s not very far off of a definition of acting under duress (or performing the specific action of seemingly-expressing-consent under duress). I doubt that much of anyone will be inclined to reject that — or, if they are so inclined, it will probably be because they first rejected a principle very similar to principle (2) — basically, (2) modified so that under a standing threat of force against refusers substitutes for under duress — but are inclined to think that any case of genuine consent should (therefore) not be considered a case of action under duress. In which case you have a counterexample to (1) rather than to (2), as I’ve stated the principles. But if so, then the motivations for rejecting (1) will be similar enough to the motivations for rejecting (2) that my comments below should apply equally to either.

Principle (2) may look much more promising to someone who wants to defend the claim that people may be voluntarily consenting to state authority — even though they would have been forced to acquiesce even if they had tried to refuse. The idea would be something like this: Look, you’ve given us a perfectly good reason to think that there are at least some people who would seem to be consenting but aren’t actually consenting. Fine, but why think their situation affects those who sincerely dowant to agree to the terms the State sets down? At most this seems like an epistemological problem — that we may have trouble finding out whether somebody consented or not just on the basis of their outward actions. It doesn’t make it logically impossible for them to have done so.

Some of the ways in which Sartwell tries to state his case might indeed incline you towards a worry like this — as when he argues that It will always be prudent for me, under such circumstances, to simulate consent, and there are no clear signs by which a simulation could be distinguished from a genuine consent in such a case. The mere fact that a second or third party couldn’t distinguish a simulation from genuine consent wouldn’t (just by itself) warrant the conclusion that there can be no such thing as genuine consent. But I think that there are two possible responses to this worry. First, if the worry is purely epistemic, it still poses a serious problem for any consensualist justification of the state — if it is the case, as I think it is, that it is illegitimate not only to use someone’s person or property without her consent, but also to use someone’s person or property when there is no possible way for you to find out whether she has consented or not. (Consider this an argument to the effect that the State cannot be legitimate because it has no reliable procedure for determining whether its rule over any given subject is in fact legitimate or illegitimate. Take that, Robert Nozick.) But, secondly, and more to the point, I think that there is a stronger interpretation of Sartwell’s argument, on which the worry is logical rather than epistemological, because the lack of clear signs of a distinction is not just a lack of diagnostic symptoms, but rather a lack of necessary criteria.

Think of it this way. The claim that a seeming expression of consent does not count, when given under duress, is usually justified by something like the following principle:

Principle of the Alternative: If Norton wants to place Twain’s person or property under a condition C, then Twain’s performing an action A expresses consent to C only if there is some alternative action B, which Twain could have performed, which would have counted as refusing consent to C.

I take this principle to be a necessary condition for a performance to meet the concept of expressing consent. An expression of consent is necessarily a choice among alternatives; if there is nothing that would even count as a refusal, then what we have is just not a matter of consent. Whatever Twain’s personal feelings about A or C may be, what he’s doing when he does A may be an expression of deference, or of obligation, or of some other similar sort of commitment. But whatever it is, it’s just not an expression of consent.

More strongly, and more importantly for the purposes of our argument, it is not enough that there just be something that would count as refusing consent. Consent is a property of transactions between two or more parties, and for you to have it, there must not only be something that would count as a refusal; your partner must also be willing to count that performance, whatever it is, as a refusal which she is bound to respect. An alternative must not only be available; there must be some reasonable expectation that the alternative would be practically effective.

Opt-Out Principle: If Norton wants to place Twain’s person or property under a condition C, then Twain’s performing an action A expresses consent to C only if there is some alternative action B, which Twain could have performed, which would have counted as refusing consent to C, and which Twain can reasonably expect Norton to accept as a decisive reason not to place Twain’s person or property under C.

Again, I take this principle to be a necessary condition for a performance to count as expressing consent; just as the lack of a possible refusal makes the issue one of obligation rather than consent, if Twain performs an expressive act without any expectation that there is some expression of refusal that Norton would consider himself bound to respect, then the issue is no longer one of consent, but rather of unilateral command. And again, it hardly matters what Twain’s personal feelings about the command may be. Maybe he’s into that kind of thing. But whatever he is doing, he is not succeeding at doing anything that would count as expressing consent. You can’t consent if you’re never asked, and if there really is nothing that Norton would count as a binding refusal, then Twain has never even been asked, in any meaningful way.

I think the Principle of the Alternative and the Opt-Out Principle, or something a lot like them, are central to Sartwell’s worry about the difficulty of telling a genuine willingness to accept the state’s terms apart from a willingness simulated only under duress. I also think that these principles, or something a lot like them, provide the only reasonable explanation for why, as a general thing, we should disregard a seeming expression of consent that was only given under duress, and would not have been given but for the threat. (It might seem important that such seeming expressions are not sincere reflections of the utterer’s inner state. But that by itself is not enough. I might freely give an insincere expression of consent — say I consent to let you use my car, but I secretly intend to call the cops on you and report it stolen. But then the expression, even though insincere, is still genuine consent; given my expression of consent to you, it would be false for me to claim that you had stolen my car from me, no matter what I may have whispered to myself in the dark recesses of my soul.) But if both principles, or something a lot like them, express necessary conditions for a performance to genuinely express consent, then it looks like Principle (2) follows without much delay. And it follows in its full logical force — the worry here, remember, has nothing to do with whether or not Norton knows that Twain is genuinely expressing consent; it has to do with whether or not necessary criteria have been met for Twain’s expressions to count as expressions of consent. If the state rigs the situation in such a way that there is nothing it would count as opting out, then it has also rigged the situation in such a way that there is nothing it could really count as opting in; opting just isn’t part of this game. Neither expressing consent nor expressing dissent are even options that are on the table; if the state gives non-negotiable, unilateral commands, merely being cheerfully responsive to those commands is not enough to count as consent in any meaningful sense. And if this is the case, then it ought to be clear that it immediately defeats any claim that, for example, voting, or paying taxes, or reciting the Pledge of Allegiance, or anything of the sort, could count as giving your consent to be ruled by the government that you vote for, or pay taxes to, or pledge your allegiance to. If not voting, not paying your taxes, not reciting the Pledge, or whatever, would exempt you from the terms that the United States imposes on you, then those who chose to do so anyway might well be counted as consenting to be ruled by the United States. But anarchist activism would also be an awful lot easier than it is, and the United States would not, in fact, even amount to a State — at least, not in any sense of the word that anarchists use when they proclaim all States to be illegitimate (because nonconsensual). In the real world, where government taxes and government prohibitions fall on the heads of the voters and the non-voters alike, there is, as Lysander Spooner argues, no way that an performance under such conditions can count as consent to government.

In truth, in the case of individuals, their actual voting is not to be taken as proof of consent, even for the time being. On the contrary, it is to be considered that, without his consent having ever been asked, a man finds himself environed by a government that he cannot resist; a government that forces him to pay money, render service, and forego the exercise of many of his natural rights, under peril of weighty punishments. He sees, too, that other men practise this tyranny over him by the use of the ballot. He sees further that, if he will but use the ballot himself, he has some chance of relieving himself from this tyranny of others, by subjecting them to his own. In short, be finds himself, without his consent, so situated that, if he use the ballot, he may become a master; if he does not use it, he must become a slave. And he has no other alternative than these two. In self-defence, he attempts the former. His case is analogous to that of a man who has been forced into battle, where he must either kill others, or be killed himself. Because, to save his own life in battle, a man attempts to take the lives of his opponents, it is not to be inferred that the battle is one of his own choosing. Neither in contests with the ballot – which is a mere substitute for a bullet – because, as his only chance of self-preservation, a man uses a ballot, is it to be inferred that the contest is one into which he voluntarily entered; that he voluntarily set up all his own natural rights, as a stake against those of others, to be lost or won by the mere power of numbers. On the contrary, it is to be considered that, in an exigency, into which he had been forced by others, and in which no other means of self-defence offered, he, as a matter of necessity, used the only one that was left to him.

Doubtless the most miserable of men, under the most oppressive government in the world, if allowed the ballot, would use it, if they could see any chance of thereby ameliorating their condition. But it would not therefore be a legitimate inference that the government itself, that crushes them, was one which they had voluntarily set up, or ever consented to.

Therefore a man’s voting under the Constitution of the United States, is not to be taken as evidence that he ever freely assented to the Constitution, even for the time being. Consequently we have no proof that any very large portion, even of the actual voters of the United States, ever really and voluntarily consented to the Constitution, even for the time being. Nor can we ever have such proof, until every man is left perfectly free to consent, or not, without thereby subjecting himself or his property to injury or trespass from others. — Lysander Spooner (1867), No Treason no. 2, § II ¶¶ 12–14

Spooner, for his own reasons, couches his argument in epistemological terms — or, more specifically, in terms of legally cognizable proof. But, once again, the argument that he frames epistemically can be reframed in terms of the conceptual criteria for a public expression of consent by means of the Principle of the Alternative and the Opt-Out Principle.

I suspect, then, that someone who wants to defend the claim that it is possible to consent to the state’s authority — in spite of the background threat of coercion against anyone who attempts to refuse — will ultimately have to fall back on rejecting Principle (3). That is, in order to defend the claim the claim they are trying to defend, they will need to make some kind of distinction between the property of consenting as such, and the property of expressing consent. In fact I think it’s likely that this is the real core of Morris’s and Narveson’s intuitive sense that of course there must be some people who are consenting to existing states. It may seem like we just know that it’s possible to consent to the state, because we think we see it in people all around us, in their everyday practices and beliefs — whatever attitude the state may have towards them, their personal attitudes involve an acceptance of the state. We might have the same feelings ourselves, or even if we do not, we might imagine that we have them. We might even express this attitude of acceptance with a form of words like I want the State to rule me, or even I consent to the authority of the state. But if the discussion is about consent, and not merely about acceptance or desire, and if consent is supposed to have any kind of weight in ethical deliberation about the transactions between two or more agents, then I doubt that such a notion of private attitudes of consent — attitudes which might not only be unexpressed at the moment, but might not even be expressible in principle, under the prevailing circumstances — is likely to be coherent. That is, I doubt that private acceptance of the state can be understood as consent, at least in any sense that would preserve the connection between consent and political legitimacy, which is after all what inspired us to introduce the question of consent into the discussion of political theory in the first place.

If there is no effective possibility of refusal, then there is no possibility of publicly expressing consent, and if there is no possibility of publicly expressing consent, then there is no possibility of consenting. If existing states make a standing threat to force people to submit to their terms, even if they do not agree to those terms, then governments cut off any effective possibility of refusal, and thus nobody can do anything that would count as consenting to be ruled by an existing state — even if she wants to do so, and even if she sincerely says that she agrees to the terms. Since all existing states do make that standard threat, no existing state rules by consent over any individual subject. And if governments derive their just powers from the consent of the governed, then no government has any just powers at all. Even the most patriotic pledger or the most dutiful voter has not consented to be bound by the terms the state imposes, even if she tried to get herself bound by them; she is not bound in conscience to pay taxes, or to obey government prohibitions, or to obey the government’s requirements in any other way, for even one second longer than she wants to. And no existing state has either the duty or the right to enforce those terms on her.

How should criminals be treated in a libertarian polity? Is it permissible to punish them? Why or why not? In what follows I’d like to outline the answers I personally have reached to these questions, stressing that I speak only for myself, and would be happy to receive comments and criticism.

Let’s define coercion as the forcible subjection, actual or threatened, of the person or property of another to one’s own uses, without that other’s consent. In light of this definition, it is possible to distinguish three kinds of coercion:

a. Defensive coercion: I use coercion against you, but only to the extent necessary to end your aggression against me (or someone I legitimately represent).

b. Retaliatory coercion: I use coercion against you, but while you are aggressing against me (or someone I legitimately represent), my coercion exceeds the extent necessary to end such aggression on your part.

c. Initiatory coercion (or aggression): I use coercion against you, although you are not using coercion against me (or anyone I legitimately represent).

The Justification of Coercion

Given these definitions, there are four possible positions one might take on the justification of coercion:

1. Coercion is never justified.

2. Defensive coercion is justified, but retaliatory and initiatory coercion are not.

3. Defensive and retaliatory coercion are justified, but initiatory coercion is not.

4. Defensive, retaliatory, and initiatory coercion are all justified.

The libertarian principle of non-aggression clearly rules out option (4): the initiation of coercion is not permissible. But each of the remaining three options appears to be compatible with libertarianism’s ban on aggression; and in fact each option has some libertarian defenders.

But while options (1) through (3) may all be compatible with the letter of libertarianism, it does not follow that they are also all equally compatible with its spirit. Indeed, I wish to argue that (2), and only (2), expresses the spirit of libertarianism, and consequently that libertarian principles, properly understood, permit self-defense against the criminal, but prohibit his or her punishment (at least in any ordinary sense of punishment).

Why Not Pacifism?

Option (1) might initially seem the most attractive. If coercion is evil, why not forswear it altogether? Doesn’t the use of violence, even in self-defense, reduce the victim to the moral level of the aggressor  For many people, radical pacifism resonates with such deep religious and cultural values as Christ’s advice to turn the other cheek, the doctrine of ahimsa (non-violence) in many Indian religions, and even the familiar maxim that “two wrongs don’t make a right.” Further, we admire such preachers and practitioners of non-violence as William Penn, Tolstoy, Thoreau, Garrison, Gandhi, and Martin Luther King. Within the libertarian movement itself, many have been inspired by the writings and personal example of anarcho-pacifist Robert LeFevre.

Yet from a libertarian point of view, there seem to be drawbacks to the radical pacifist position. Libertarians see themselves as defenders of rights; but the difference between rights and other sorts of moral claims lies in the fact that rights are legitimately enforceable. Suppose I gratuitously insult one of my neighbors, and steal the car of another. Each of my neighbors thereby acquires a moral claim against me: the first neighbor has a claim to an apology, the second a claim to his car. But only the second claim can properly be described as a right. My second neighbour has a right to have his car returned, and may legitimately use coercion to enforce his claim. But my first neighbor has no right to an apology; I ought to apologize, but no one may legitimately force me to do so. Not all sins are crimes.

But if coercion is never justified, even against aggressors, then the distinction between the two sorts of moral claim vanishes: neither of my unfortunate neighbors may legitimately use coercion to enforce his claim against me. But what makes a moral claim a right rather than something else is precisely the fact that coercion may be used to enforce it. Whoever endorses radical pacifism, then, is committed to denying that anyone has any rights — a rather odd position for a libertarian to be in!

Spheres of Authority

Libertarians generally see rights as setting boundaries around people. Each person has a sphere of authority within which they may do as they please, without external interference; but they may not cross beyond their own boundary and engage in actions within someone else’s sphere of authority (except with that person’s permission). The classic expression of this idea is: “Your right to swing your fist ends where my nose begins.”

The libertarian pacifist, however, can no longer consistently endorse this picture. Suppose I grab onto your nose, thus invading your sphere of authority. Before I did so, you were free to scratch your nose whenever you liked. But now that I have a firm grip on your nose, you cannot scratch your nose without first knocking my hand away. Yet if the radical pacifists are right, it would be immoral for you to knock my hand away. It follows that, under those circumstances, it is no longer morally permissible for you to scratch your nose. Through no fault of your own, because of my immoral action, your own nose is now no longer within your sphere of authority.

But this seems unfair. Why should my aggression be allowed to constrict your domain of legitimate activity? Why should my grabbing your nose make you lose your rights over it? It seems more in accordance with the libertarian conception of justice to say that by grabbing your nose I have put myself into your sphere of authority, rather than taking your nose out of it; and as a result, you can now coerce me without exceeding your just authority. What’s wrong with initiatory coercion is that it exceeds the bounds of the coercer’s sphere of authority, but defensive coercion does not exceed those bounds, and so is legitimate.

(In the case of third-party intervention, defensive coercion is justified to the extent that the intervener is acting as the victim’s agent [Presumably, this involves acting with the victim’s actual authorization, when the victim is able to give or withhold consent, or else acting as the victim would authorize (so far as can be determined), when the victim is for one reason or another unable to give or withhold consent-perhaps because of unconsciousness, infancy, mental illness, or simply pressure of time.) For example, suppose I attack you, and Martina, acting as your agent, intervenes to defend you. By invading your boundary, I have put myself under your authority. You may exercise this authority directly; but you are equally within your rights in exercising it vicariously, through your agent Martina.).

But the argument that justifies defensive coercion does not justify retaliatory coercion. If I use more coercion against you than is necessary to end your aggression against me, then in effect I am going beyond merely exercising my legitimate authority within my own sphere. If each person’s freedom may be justly limited only by the equal freedom of others, what could justify me in limiting your freedom by more than is necessary to restore my own?

What Counts as Defense?

I have argued that the principle most consistent with the spirit of libertarianism endorses defensive coercion, but prohibits not only initiatory but also retaliatory coercion. But how much latitude does this restriction allow us? What does this principle allow us to do to criminals, beyond fighting them off at the moment of the aggression?

First of all, remember that we defined coercion as the forcible subjection, actual or threatened. of the person or property of another without that other’s consent. If I come runnng. toward you brandishing a sword, you need not wait until I actually cut you before taking defensive measures. By manifesting a murderous intent toward you, I have already placed myself under your authority. Hence it is permissible to imprison or exile criminals, to the extent that they pose a continuing danger to the innocent.

Requiring the criminal to pay compensation to the victim can also be justified on the defensive grounds. Consider the following three cases.

Case 1: I break into your house.

Here I am clearly trespassing on your property, and you have the right to use coercion to get me to leave, since your home fallls within your sphere of authority.

Case 2: I break into your house, and slip your radia into my knapsack.

In this case, you may do more against me than simply kicking me out of your house, because I, by retaining an item of your property on my person, have failed to cacate your sphere of authority. Hence you may use coercion to get the radio back. I remain under your authority until you recover your property.

Case 3: I break into your house, and smash your radio with a hammer.

The fact that your radio no longer exists does not alter the fact that I remain under your authority until the radio (or its equivalent in value) is restored to you. Thus I may legitimately be coerced into compensating you for your loss.

Note that this justification of defensive coercion has nothing to do with the aggressor’s responsibility for his or her actions. If I have been hypnotized into attacking you, you still have the right to fight me off. If a wind bleew me onto your property against my will, you still have the right to remove me. And likewise, if I accidentally destry your property, I still owe you compensation. What matters is that I have entered your sphere of authority and so may be coerced into leaving it; whether I got into your sphere voluntarily or involuntarily is irrelevant. Thus it seems to me that a libertarian concept of rights favors a strict-liability approach: that is, people are liable for the damage they cause, regardless of whether they caused that damage deliberately or accidentally.

Revenge or Restitution?

Critics of the position I’m defending often ask the following question: “What if someone you loved were murdered? Would you be content with seeing that the murderer paid you back and was lockd up, or would you want to see the murderer dead?” In my case, at least, the answer is: yes, I’d want to kill the murderer. And I might be justified in doing so if the government released the murderer while he still posed a danger to others – for then my action might count as defensive rather than retaliatory (whatever my motivations might be). But suppose I know the government isn’t going to release the murderer. Even then, the desire to take revenge by slaying the slayer is a perfectly natural and forgivable reaction. But should the vengeful emotions of victims and their loved ones replace rational analysis as the foundation of jurisprudence? Important questions of rights and justice should not be decided in the heat of anger.

I should point out, incidentally, that under a restitution-based system, victims who did take revenge would not be treated harshly. After all, retaliatory coercion is not permissible against them either. If you kill me because I killed your loved one, then you would be required to pay compensation to my next of kin (though as Randy Barnett, another critic of retaliatory coercion, has pointed Out, you could discharge this obligation by handing back to my next of kin, as compensation for my death, the very same money I originally gave you as compensation for your loved one’s death); but you would probably not be locked up, because you do not appear to pose a threat to others. Hence the danger of revenge by the next of kin would pose a serious deterrent to murder. As Louis XV of France said to one of his courtiers who had committed a murder: “I grant you pardon – but I also pardon whoever will kill you.” (1n the case of murder victims without a next of kin, the right to compensation might be granted to whoever “homesteaded” it by pursuing the matter in court.)

Might such a system encourage a cycle of revenge, with each side in a dispute claiming a life in return for the life taken previously by the other side, as the two sides pass the same compensation money back and forth? Such does not seem to be the lesson of history. In the stateless societies of pre-Christian Northern Europe, the bloodfeud was originally a pervasive feature of social life; but this began to change with the institution of a restitutive system. Wergeld (mangold; that is, monetary compensation for a human life taken) gave feuding parties a powerful financial incentive to accept compensation and end the cycle of revenge,.rather than taking another life. If such economic motives could tame the bloodfeud in a society that glorified revenge as a matter of honor, a restitutive system should be even more successful in a society like ours, which at least pays lip service to the condemnation of revenge.

The Limits of Defense

Are there limits to what one may do to an aggressor in order to enforce one’s rights? For example, if you swallow something belonging to me, does that give me the right to cut you open in order to retrieve my property?

As I have written elsewhere: “The dilemma here is analogous to that in Shakespeare’s The Merchant of Venice. Antonio owes Shylock a pound of his flesh, but he does not owe Shylock any blood; yet of course Shylock cannot claim his pound of Antonio’s flesh without taking some of Antonio’s blood as well. Portia reasons that since Antonio does not owe Shylock any blood, Shylock has no right to take Antonio’s blood, and so has no right to take the pound of flesh either (since, although he has a right to the pound of flesh, he cannot exercise that right without doing something he has no right to do — namely, take Antonio’s blood). Shylock, on the other hand, reasons that since Antonio does owe Shylock the flesh, Shylock has the right to take it, and so has the right to take the blood too (since that follows from something Shylock has a right to).” (Roderick T. Long, “Abortion, Abandonment, and Positive Rights: The Limits of Compulsory Altruism,” Social Philosophy & Policy, vol. 10, no. 1 (1993), p. 174.)

By analogy, we can distinguish two possible principles to govern defensive coercion:

Shylock’s Principle: If I aggress against you, you have the right to coerce me in whatever way is necessary to remove me from your sphere of authority.

Portia’s Principle: You have no right to coerce me, even if doing so is necessary to remove me from your sphere of authority.

Portia’s Principle is simply pacifism again, and I’ve already argued that pacifism is at odds with the spirit of libertarianism; so we can reject Portia’s Principle. But what about Shylock’s Principle? Although strictly speaking it licenses only defensive coercion, not retaliatory coercion, Shylock’s principle nevertheless strikes me as defective in much the same way as retaliatory coercion. If Shylock’s Principle is correct, then I would be justified in shooting a toddler if that were the only way to prevent the toddler from treading on my toe. But such a response would surely be disproportionate to the seriousness of the aggression.

To my mind, then, the most libertarian approach to the legitimation of defensive coercion is the following one:

Principle of Proportion: If I aggress against you, you have the right to coerce me in whatever way is necessary to remove me from your sphere of authority, so long as your coercion is not disproportionate to the seriousness of my aggression.

Thus not even all defensive coercion is automatically justified. Coercion, to be legitimate, must pass three tests: first, it must be a response to aggression on the part of someone else; second, it must be necessary in order to end or prevent that aggression; and third, it must be proportionate to the seriousness of the aggression.

Let me guard against a possible misinterpretation of this principle. It might seem that if the defensive response must be proportionate to the threat, then we can never be justified in using greater force than our aggressor (e.g., killing someone to prevent them from inflicting serious but not fatal harm on us). I think that would be a mistaken inference. An aggressive killing is worse than a defensive killing. Hence aggression need not be fatal in order for deadly force to be a proportionate defensive response to it.

Crime Without Punishment

I’ve argued, in effect, that we may legitimately impose fines or prison sentences on criminals. So haven’t I justified punishment? I don’t think so. The point of punishment is to impose some sort of suffering on the criminal — either for retributive reasons (the criminal deserves to suffer) or for reasons of deterrence (other criminals will be discouraged when they see how we make criminals suffer). On the defensive model, while fines and incarceration may in fact cause suffering to the criminal, that is not their aim; rather, the aim is to restore the victim’s rights. After all, we do not think that those who violate others’ rights accidentally should be made to suffer; but the only difference between a willing aggressor and an accidental aggressor lies in the contents of their thoughts — a matter over which the law has no legitimate jurisdiction.

Hence, I conclude, we may not legitimately treat willing criminals any differently from accidental criminals (except to the extent that they differ in likelihood of posing a continuing threat). Mandatory restitution to the victim is justified on libertarian grounds as an expression of defensive coercion; but punishment, I believe, constitutes not defensive but retaliatory coercion, and so is not permissible.