Last Updated on October 17, 2021
NOTE: as of October 2021, I no longer endorse the argument of this post.
Libertarianism is strongly committed to self-ownership. Vallentyne, Steiner, and Otsuka (2005, page 204) note that private ownership over an object involves “a bundle of particular rights” with respect to that object. They note (page 203) that full private ownership of an object consists of the following rights:
(1) control rights over the use of the object; (2) rights to compensation if someone uses the object without one’s permission; (3) enforcement rights (to prevent the violation of these rights or to extract compensation owed for past violation); (4) rights to transfer these rights to others (by sale, rental, gift, or loan); and (5) immunity to the nonconsensual loss of any of the rights of ownership.
Libertarianism is attractive for its endorsement of policies that empower individuals to lead their own lives, free from the control of others. For example, libertarians often endorse private property, drug legalization, freedom of speech, etc. which enables individuals to lead their own lives without interference from others. But libertarianism is notorious for its rejection of regulations by the state that many see as morally permissible. For example, libertarians often reject forms of wealth redistribution, welfare states, social safety nets, etc. because (they believe) the state violates our ownership rights (either over our bodies or our extrapersonal property) insofar as we are forced to fund these services against our will. Many libertarians (anarchists) go further and claim that all mandatory taxation is unjust. If this claim is correct, then it seems that libertarianism is committed to the rejection of the state, as most conceptions of the state involve mandatory taxation of its citizens. This post will argue that this conclusion is incorrect. I will argue that an adequate justification of the mandatory taxation by the state can be provided on broadly libertarian grounds.
I start by considering a principle for delineating ownership rights that all libertarians (including anarchists) should accept. This principle has been described by Eric Mack as the “anti-paralysis” postulate. Then I argue that this postulate can be used to support a new class of rights to complement the five classes of rights mentioned above: exception rights. Exception rights permit disadvantaged individuals to intrude upon others in special circumstances that would ordinarily be rights violations. Because third-parties have the right to enforce the rights of others, I argue that the state is permitted to intrude upon others (via mandatory taxation) to enforce the exception rights of disadvantaged individuals.
Delineating ownership rights
Libertarians are in agreement in their endorsement of ownership rights, both over one’s person and over private property. However, even if we grant that individuals have certain ownership rights, there is still an open question regarding how to delineate ownership rights, i.e. how to determine the particular rights that are granted by ownership. In this section, I will argue for what Eric Mack calls the “anti-paralysis” postulate, which is a principle that constrains how to delineate ownership rights. I will begin by considering some rights that almost all libertarians accept. Then I argue that the unifying rationale for these rights is to grant each individual a sovereign space within which they can lead their own lives without being subject to the mercy of others. This implies that one should obey the “anti-paralysis” postulate when delineating ownership rights. Note that this section is a summary of some points that I made in another post.
Rights that (almost) all libertarians accept
Consider the following features of rights that almost all libertarians accept:
- Claim-rights. No theory of ownership rights would be complete if it only granted liberty-rights, i.e. moral permissions to use or acquire certain resources. Any adequate theory of ownership rights must also grant claim-rights, i.e. moral prohibitions against others using or acquiring certain resources. For example, an adequate theory of self-ownership must grant a person liberty-rights that permit him to use his body as he pleases (within limits) as well as claim-rights that prohibit others from making use of his body (within limits).
- Unilateral property acquisition. According to universal joint-ownership conceptions of property rights, every individual owns an equal portion of every external resource. Maloberti (p. 157) describes it as a system whereby “each individual would be assigned a claim right against every other, against the use and possessions of those resources. No individual would thus have the liberty to use or possess such resources without the approval of everybody else”. Almost all libertarians reject this. Instead, almost all libertarians “accept that individuals can acquire unowned goods unilaterally, without having to ask the consent of approval of other people, some governing body, or anything else” (section 3 of the SEP on Libertarianism).
- Lockean Proviso. Most libertarians accept that permissible property acquisition, while unilateral, must be subject to the Lockean Proviso. This means that the acquisition must leave “enough, and as good” for others. As Eric Mack (p. 214) notes, the Lockean Proviso “requires that the acquisition and disposition of property rights not on net make the extra-personal world less susceptible to any individual’s efforts to exercise his powers in ways that serve his ends.” While libertarians disagree on how to interpret the Lockean Privoso, only the most extreme right-leaning conceptions of property rights reject all forms of the Lockean Proviso.
- Enforcement rights. Enforcement rights involve rights to retaliatory threats and self-defense to prevent future rights violations, and potentially the right to seek restitution and perhaps punishment for past rights violations. Every non-pacifist libertarian accepts some form of enforcement right.
- Minor Intrusions. Most libertarians do not consider extremely minor intrusions of someone’s property to be a rights violation. For example, whenever I burn leaves in my backyard, I cause smoke particles to fall in your yard. Whenever I use a telephone or a radio, I cause electromagnetic waves to be sent through your body and your property. Whenever I produce sound, I send sound waves through your home which impacts your eardrums. Whenever I breathe, I emit carbon dioxide which pollutes your airspace, and hence your property and your lungs. However, while these acts might intrude upon your property, they do not constitute rights violations.
The unifying rationale for these rights is a concern to grant each individual a sovereign space within which they can lead their own lives without being subject to the mercy of others. Consider the following.
- Claim-rights are necessary because the alternative is “moral anarchy”. Everyone would be morally permitted to achieve whatever goal they might have without concern for the rights of others. This ironically results in everyone being unable to lead their own lives; anyone’s pursuit of a goal could be interrupted by someone else exercising their liberty-right.
- Unilateral property acquisition is necessary because the alternative (universal joint-ownership conceptions of property rights) permits circumstances where individuals have effectively no liberty to acquire the resources necessary to lead their own lives. We would be at the mercy of the approval of everyone else whenever we wanted to acquire or use any external resources.
- The Lockean Proviso is necessary because the alternative (unrestricted property acquisition) permits circumstances where a privileged group of individuals owns all valuable resources, which would result in everyone else being unable to lead their lives; everyone else would be at the mercy of the privileged property owners to acquire or use any external resources.
- Enforcement rights are necessary because the alternative permits circumstances where innocents are not permitted to protect themselves from unjust attacks by others. The result is that individuals are ultimately unable to lead their lives; individuals would be completely at the mercy of those who would damage them or their property.
- The permission of minor intrusions is necessary because the alternative creates circumstances where individuals don’t have the moral permissions to do anything (since all actions cause some minor intrusion on the property of others). This ultimately results in individuals being unable to effectively lead their own lives; we would be at the mercy of everyone else who we might impose minor intrusions on.
The multiple dimensions of rights
These considerations provide some insight into the nature of ownership. It might be assumed that self-ownership is a single concept with a precise, determinate content. For example, Vallentyne, Steiner, and Otsuka (2005, p. 204) define “full self-ownership” as “a bundle of rights that is (roughly) equal to the logically strongest set of ownership rights that people can have over themselves compatible with others having equal such rights over themselves”. However, there is no single “logically strongest” set of rights. Indeed, the authors later note that “full self-ownership involves some undeniable indeterminacy” because “there is no unique maximally strong set of ownership rights” (p. 205). For example, if you have two bundles of rights X and Y, then X might be stronger than Y along one dimension (e.g. in terms of liberty-rights), but Y might be stronger than X along another dimension (e.g. in terms of claim-rights). Jason Brennan and Bas van der Vossen (2017, p. 209) articulated the multifaceted nature of self-ownership:
More precisely, we can think of self-ownership as being made up of two variables. On the one hand, self-ownership offers protection (in the form of Hohfeldian claim-rights) against unwanted incursions on one’s person. On the other hand, self-ownership offers the freedom (in the form of Hohfeldian liberties) to use one’s person. Since liberties logically entail the absence of duties (including duties correlating to claim-rights), it follows that the two variables (internal to the idea of self-ownership) can be traded off against each other.
The real question, then, is what mix of the two variables internal to the idea of self-ownership (the claim to exclude and the freedom to use) is morally most desirable. This should be obvious, of course. Bas is a self-owner with the freedom to use his person, but this does not license him to punch Jason in the face. Self-ownership is not best understood by completely maximizing the freedom variable to the complete denial of the exclusion variable. And, again pace Sobel, self-ownership is also not best understood by maximizing on the exclusion variable to the complete denial of the freedom variable.
I do not know what is the best mix of moral protections (claim-rights) and moral freedoms (liberty-rights). In fact, I am not even sure if there could be a satisfactory answer. However, I am confident that the proper mix does not involve the exclusion of either variable. Maximizing liberty-rights at the exclusion of claim-rights leads to “moral anarchy”, as everyone would be morally permitted to do whatever they please. Maximizing claim-rights at the exclusion of liberty-rights leads to “moral paralysis”, as everyone would be prohibited from imposing even minor intrusions on others. Both are unacceptable as they leave us without the ability to lead our own lives without being subject to the mercy of others. This insight suggests adopting the “anti-paralysis” postulate.
The anti-paralysis postulate
The anti-paralysis postulate by Eric Mack (he now refers to it as the “Elbow Room postulate” but I prefer the older naming) is a principle that constrains the strength of the claim-rights that are granted to people. Mack (p. 197) details the postulate as follows:
According to this postulate, a reasonable delineation of basic moral rights must be such that the claim-rights that are ascribed to individuals do not systematically preclude people from exercising the liberty-rights that the claim-rights are supposed to protect…the elbow room postulate tells us that, since the impermissibility of minor intrusions would be hog-tying, a reasonable delineation of rights does not construe minor intrusions as boundary-crossings.
The idea here is to not grant excessive claim-rights at the expense of liberty-rights as doing so would result in “moral paralysis” (or what he calls “hog-tying”). The very purpose of ascribing claim-rights was to protect the effective exercise of liberty-rights (to avoid “moral anarchy”). Therefore, it makes sense that we do not ascribe claim-rights so strongly that our liberty-rights are effectively nullified.
Some have interpreted Mack’s postulate as treating claim-rights as a type of force that a moral theory must protect individuals from, just as moral theories must protect individuals from coercion from other individuals. David Sobel (2018) gave the following interpretation of the postulate:
Mack seems to be saying that the point of rights is to provide protection not only from other people forcibly preventing me from living my life by my lights, but also from a system of rights that would morally prohibit me from doing so…Mack can therefore be interpreted as saying that the point of rights is to enhance our ability to live our own lives by our own lights, unprevented by others or by the moral force of other people’s rights.
In other words, just as we should not grant individuals excessive liberty-rights since that would make the rights of others meaningless (i.e. “moral anarchy”), we also should not grant individuals excessive claim-rights since that would also make the rights of others meaningless (i.e. “moral paralysis”). The anti-paralysis postulate can ground many of the specifications of rights mentioned earlier. For example, universal joint-ownership of property rights should be rejected because this results in “moral paralysis” since we wouldn’t be able to make use of resources without the approval of the collective. Also, without the Lockean Proviso, one individual could come to own all external resources, resulting in “moral paralysis” for everyone else. And if minor intrusions were to count as rights violations, then that would result in “moral paralysis” for everyone, since every minor action would be a rights violation. In all cases, the motivation is to avoid granting individuals excessive claim-rights at the expense of liberty-rights. The anti-paralysis postulate is the organizing principle operating behind the rights that almost all libertarians accept.
Justifying the state
The anti-paralysis postulate tells us that rights should not be delineated such that the claim-rights systemically preclude individuals from exercising the liberty-rights that they were meant to protect. Specifically, we say that rights should be delineated such that the following acts do not count as rights violations: the unilateral acquisition of property subject to the Lockean Proviso, the enforcement of one’s rights, and the imposition of minor intrusions on others. However, this does not go far enough. Even when these specific acts are permitted, there will still be some disadvantaged individuals who are “morally paralyzed” – individuals who, through no fault of their own, do not have the opportunity to acquire the resources necessary to make use of their liberty-rights without violating anyone else’s rights. For example, consider children without adequate caretakers, or adults who never developed the skills necessary to provide for themselves (either because of lack of opportunity or lack of ability). These individuals may be unable to acquire the resources necessary to fund the protection of the rights that all libertarians agree they have. For example, they wouldn’t be able to legitimately hire defense agencies to protect themselves from assault, to protect their property from theft, to enforce contracts with others, etc. In other words, they would be unable to effectively lead their lives independent of the will of others. Just as people would be morally paralyzed under a joint-ownership theory of property rights or under a system of rights where minor intrusions are prohibited, these disadvantaged individuals would be likewise morally paralyzed.
According to the anti-paralysis postulate, rights must be delineated so that this does not occur. Rights should be delineated such that sufficiently disadvantaged individuals are permitted to make minor intrusions on the possessions of others if doing so is necessary to escape peril. This is where exception rights come in. Exception rights attenuate our claim-rights. They allow for there to be special circumstances where disadvantaged individuals are morally permitted to control someone else’s resources in a way that would ordinarily be impermissible. Nicolás Maloberti (p. 161) outlines exception rights as follows:
Thus, while individuals’ basic rights are necessary for the protection of individuals’ capacity to lead their own lives, in certain situations, those rights themselves might restrict that very same capacity in other individuals without providing a significant benefit to anybody else. Exception rights block this possibility. Exception rights might then be understood as imposing constraints on the exercise of the most basic libertarian rights. With our own axe, we might do as we wish, as long as the use of our axe is not necessary for someone to save a stranger from a burning car, and as long we do not have to use it for something relatively important at the time. By implying this form of restriction, exception rights provide their potential holders a form of moral insurance against the faultless loss of the fundamental value that the most basic rights provide: a sphere of sovereignty that obviates the need to secure the approval of others to pursue our own ends and projects.
The motivation for exception rights is exactly the same as the motivation to adopt the anti-paralysis postulate: we should not grant to individuals excessive claim-rights that would make the liberty-rights of others meaningless (i.e. avoid “moral paralysis”). If the anti-paralysis postulate should be adopted, then so should exception rights.
For a more specific example of when exception rights apply, consider the following scenario. Imagine that you find a child drowning in a swimming pool in your neighbor’s backyard. The child is drowning in the swimming pool through no fault of the neighbor (imagine that the child jumped on a trampoline from another neighbor’s yard and a gust of wind with unprecedented power blew him into the pool). You need to reach the child to save him but the only option to reach the child requires slightly damaging the neighbor’s fence. You know that the owner of the yard does not consent to you damaging his property to save the child; in fact, he has a sign on the fence that reads “do not slightly damage this fence in order to save drowning children.” Also, imagine further that you know you will be unable to compensate the owner for damaging his fence. Are you morally permitted to damage the fence to save the child? The clear answer is that you are. More importantly, is the owner of the property morally permitted to stop you from damaging his fence to save the child? Again, the clear answer here is that the owner is not permitted to stop you. But he clearly owns his fence and his yard, so how can it be that he is not permitted to stop you from damaging his property without compensation? The answer, of course, is that the child has an exception right which you are permitted to enforce.
Now, allow me to detail the particular circumstances when I think exception rights apply.
Conditions when exception rights apply
Following Nicolás Maloberti (p. 162), there are four key conditions to take into account when determining whether X has an exception-right to intrude upon Y in a way that would ordinarily be a violation of Y’s rights.
- The gravity of the peril faced by X. Exception rights apply only to situations where the peril faced by X is of a significant enough gravity. This includes, for example, circumstances where one’s basic ownership rights are violated by a criminal – e.g. assault, property damage, theft, fraud, contract breach, etc.
- The fact that such a perilous situation is not the fault of the X. Exception rights apply only in situations where the peril faced by X was not the result of X having neglected a reasonable opportunity to avoid such peril. If X had a reasonable opportunity in the past to avoid peril but failed to exercise this opportunity, then X does not have an exception right to intrude upon others to escape such peril.
- The necessary character of the corresponding infringement to overcome the peril. The intrusion on Y must be necessary (or close to necessary) in order for the exception right to apply. E.g. if X can be lifted out of dire circumstances by, say, working hard, then X does not have an exception right to intrude upon Y. X must lack an alternative method to escape dire conditions in order to permit intruding upon Y. This condition also tells us that X’s exception right only permits him to impose the minimum amount of intrusion necessary to bring himself out of perilous circumstances.
- The cost of the intrusion imposed on Y. The burden imposed on Y by the intrusion cannot be too great. For example, X cannot amputate Y’s limb in order to save his life. The cost imposed on Y must be reasonable. To determine whether or not a burden is “reasonable”, I believe we can consider our intuitions regarding enforcement rights. For example, if X needs to break Y’s fence in order to save a child from drowning, I think most would agree that Y is not permitted to stop X from breaking the fence. On the other hand, if X needs to steal one of Y’s kidneys to survive, I think most would agree that Y is permitted to stop X (even if Y does not need both kidneys to be healthy). The difference between these two scenarios is that breaking a fence is a reasonable cost whereas stealing a kidney is not. So the distinction between reasonable and unreasonable intrusions is already relevant when determining whether a right is enforceable. This same distinction can also be used to determine whether a disadvantaged person has an exception right to intrude upon someone.
Notice that the conditions imply that compensation is not strictly necessary in all cases. If the conditions above are met, then one is permitted to intrude upon others even if they cannot compensate the intruded person. However, compensation is relevant in at least two respects: (1) even if X is permitted to intrude on Y, X will be morally obligated to compensate Y to the extent that this is possible without X falling back into perilous circumstances (in order to minimize the amount of intrusion placed on Y, from condition 3), and (2) compensation might be necessary to permit intrusions if it is necessary to reduce the cost imposed on Y to a reasonable level. For example, it might not be morally permissible to steal $1000 from someone because the $1000 cost is too large, but it might be permissible to steal $1000 and compensate them $900 because the $100 cost is reasonable.
So far, I have argued that the anti-paralysis postulate grants disadvantaged individuals exception rights to intrude upon others in special perilous circumstances. To justify the state, I need only make the plausible assumption that third-parties are morally permitted to enforce the rights of others on their behalf (e.g. I am morally permitted to defend a woman being assaulted by attacking her assailant). If that is true, then the state can act as a third-party to enforce the exception rights of disadvantaged individuals. Since exception rights permit one to intrude upon others in ways that would ordinarily be rights violations, states are morally permitted to intrude upon others (e.g. via mandatory taxation) in ways that would ordinarily be rights violations.
The only remaining question is whether mandatory taxation by the state can satisfy the conditions required for exception rights. Note that the question is not whether any actual states operate in a manner that meets these conditions. The question is whether a state that imposes mandatory taxation can be morally permissible, i.e. the question is whether mandatory taxation is in principle impermissible. Now, it seems to me that mandatory taxation can be justified by the state because the conditions required for exception rights are adequately met (against some anarchist libertarians who think the state is in principle impermissible):
- There are disadvantaged individuals who would face a sufficiently large gravity of peril if there were no mandatory taxation by the state. This includes individuals who would lack the reasonable opportunity to protect their rights (e.g. rights to property and self-ownership) without mandatory taxation by the state. This includes individuals who would be unable to afford to protect themselves from assault, to protect their property from theft, or to enforce contracts with others.
- There are disadvantaged individuals who would find themselves in these perilous circumstances through no fault of their own. Some people find themselves born into disadvantaged environments where they lack the reasonable opportunity to avoid such perils. Others are placed into such disadvantaged environments in their lifetime due to unforeseeable accidents or crimes by others.
- There are disadvantaged individuals who are unable to bring themselves out of these perilous circumstances without intruding upon others (either because of lack of opportunity or lack of ability).
- The state can impose reasonable intrusions on others to alleviate these perilous circumstances by imposing a reasonable mandatory tax rate on others. A progressive tax rate probably makes the most sense, since a certain tax rate can be reasonable for a rich person but that same tax rate might be unreasonable for a poor person.
These conditions imply that the state should be fairly limited (at least if it is to be justified on the basis of exception rights). Taxation should not be too high and the state’s activities should be restricted to ensuring that people have a reasonable opportunity to protect their rights because the state cannot impose unreasonable burdens on taxpayers. This suggests that the state is at least permitted to perform all of the services performed by what Robert Nozick calls the “minimal state”: police protection, contract enforcement, courts, and military. The state may also be permitted to perform some activities beyond that of the minimal state because:
- “Perilous circumstances” may encompass more than just lacking the reasonable opportunity to protect one’s rights; it may also encompass lacking the reasonable opportunity to make use of one’s rights. If so, “perilous circumstances” would include lacking the capacity to make use of one’s rights, which permits the state to subsidize access to additional goods/services (e.g. food, education, etc.) which are necessary for one to develop this capacity.
- If it can be shown that the state sufficiently compensates taxpayers, then this may be sufficient to justify more extensive taxation to fund additional services. It is conceivable that the state compensates taxpayers by providing police protection of private property, enforcement of contracts, development of the economy, etc. To the extent that additional state activities sufficiently compensates taxpayers, it may be morally permissible for states to fund those activities via mandatory taxation, since the cost placed on taxpayers would be sufficiently low.
This were just some cursory ideas. Whether the state is permitted to perform these additional activities of course depends on more argumentation.
I’d like to conclude my argument with a few qualifications. Firstly, the conditions that I mentioned above should not be taken as necessary conditions for any coercive state activity. Rather, they are necessary conditions to justify state activity based on exception rights. My argument is agnostic with respect to whether there are other libertarian-compatible justifications of other forms of coercive state activity. Secondly, my argument is agnostic with respect to whether the state must or should have a monopoly on force, something that is often assumed to be a key feature of states. The argument says nothing about whether there can be multiple states within a given region. In principle, multiple states overlapping within a given region can be justified via exception rights so long as they adhere to the conditions that I mentioned above. In practice, however, the problems entailed from multiple overlapping states are likely serious enough that states must (or at least should) have a monopoly on force within a given region.
The primary papers that have influenced my position:
- Peter Railton, “Locke, Stock, and Peril: Natural Property Rights, Pollution, and Risk” (1985) – Argues that, contrary to popular belief, libertarianism places stringent limits on what we are able to with our property. The argument is based on the minor damages and risk associated with minor pollution forbids us from actions that we ordinarily think we have the right to do. [archive]
- Christopher Wellman, “Toward a Liberal Theory of Political Obligation (2001) – Provides a libertarian/liberal justification of the state that is similar to the justification given here. The state is justified on the basis of “samaritanism” duties that we owe to those in need – our duties to assist those who are in serious peril when the assistance comes at little cost. This was one of the inspirations of my current position.
- David Sobel, “Backing Away from Libertarian Self-Ownership” (2012) – The first of a pair of papers that objects to the libertarian idea of self-ownership. This paper focuses on the implausible alleged implication of self-ownership that unnoticeably minor intrusions constitute rights violations.
- David Sobel, “Self-Ownership and the Conflation Problem” (2012) – The second paper from Sobel criticizing self-ownership. In this paper, he argues that libertarianism based on self-ownership is incapable of distinguishing the moral wrongness of minor intrusions and major intrusions when intuitively such a difference makes a huge difference morally.
- Eric Mack, “Elbow Room for Rights” (2015) in Oxford Studies in Political Philosophy, Volume 1 – Defends libertarianism from the objections put forth by Sobel and Railton. In it, Mack argues for what he calls the “elbow room postulate” (which I referred to as the “anti-paralysis postulate in this post) in order to permit the minor intrusions mentioned by Sobel and Railton. He also argues that other attempted solutions to the problem of minor intrusions fail to address the problem as well as the “elbow room postulate”. [archive] [selected papers by Eric Mack]
- Brennan and Van der Vossen, “The myths of the self-ownership Thesis” (2017) – Argues against many of the assumptions people have about self-ownership and libertarianism in general. They spend some time responding to Sobel’s objection based on minor intrusions. They also make the interesting claim that all liberals (not just libertarians) hold some form of the self-ownership thesis – the only live debate is over which conception of self-ownership to adopt. Published in The Routledge Handbook of Libertarianism. The Google Books preview of the book contains this paper in its entirety.
- Nicolás Maloberti, “Libertarianism and Exception Rights” (2017) – This is the primary inspiration for my current position. Maloberti uses principles for delineating rights put forth by Mack and other libertarians in order to argue for exception rights. He uses exception rights to provide a justification for the state. Published in The Routledge Handbook of Libertarianism. The Google Books preview of the book contains this paper in its entirety.
- David Sobel, “The point of Self-ownership” (2018) – Consists largely of objecting to the response by Mack in his 2015 paper “Elbow Room for Rights”. He argues that Mack’s “elbow room postulate” cannot adequately handle the problem of minor intrusions without allowing for other conclusions that libertarians tend to reject. Published in The Oxford Handbook of Freedom.