The Republican Argument Against Libertarianism

April 5, 2013 § 1 Comment

In this post at Bleeding Heart Libertarians, Kevin Vallier responds to an article at Open Democracy in which Philip Pettit makes a republican case against libertarianism. According to Vallier, Pettit’s argument relies on the faulty assumption that all libertarians think of rights as natural rights. This misreads Pettit’s argument, which does not at all depend on such an assumption.

Vallier’s reading of Pettit’s argument goes something like this. Libertarians think of property rights as natural rights. Property rights are conventional. They are made by people. They therefore do not deserve the special priority that libertarians accord to them. If we made them, we can change them to suit our purposes. Vallier then lists a number of libertarians who think of property rights as conventional rather than natural.

Whatever the merits of such an argument, it is not Pettit’s argument. Pettit argues instead as follows. Freedom is nondomination. That is freedom is independence from the power or control of others. To be free, it is not enough that no one interferes with you as an actual fact, you need to be protected against the possibility of interference. This means that rights (whether they are natural or conventional) do not make you free unless they are publicly enforced. Republicans therefore see the private sphere of freedom as constituted by the state’s enforcement of the law with force. The private sphere does not come into existence until there is public enforcement protecting that sphere. Libertarians by contrast see freedom as noninterference. As a consequence, they can see the private sphere as existing before there is state protection. Public enforcement does not constitute the private sphere. Because these differences of views, libertarians will always take a hostile stance towards public regulation because they will see it as an infringement of an already existing private sphere. Republicans will take a friendlier view on public regulation because they will see it as the means of making a private sphere.

Pettit’s argument does not rely on the assumption that libertarians think of property rights as natural. Pettit does seem to assume this, but nothing in his argument relies on it. Pettit’s argument on relies on libertarians thinking of property rights as autonomous from public enforcement. If libertarians think of the private sphere of freedom as autonomous from and not constituted by public enforcement, then they will take the somewhat hostile stance towards public regulation that Pettit describes. It is clear from Vallier’s own description of how libertarians think about property rights as conventional that they do think of them as autonomous:

Let’s distinguish, as Hayek did, between law and legislation. Of course we need law to make property rights determinate, but who says that property law must be the product of an extensive nation-state?

Western property law evolved long before the contemporary nation-state and functions rather reliably in many contexts where political authority was extremely limited or non-existent.

The libertarians I know freely grant that property rights require some social construction but deny the Pettitian implication that social construction must be deliberate, stateconstruction.

The picture that Vallier is painting here of conventional property rights is as follows. There is some common law or customary property rights that exist prior to states, legislation, and state enforcement of rights. Libertarians assign special priority to these rights, so states cannot infringe them just because the majority wants to. The mistake Pettit makes is in thinking of all law as legislation, ignoring pre-state common law rules. If you think of all law as legislation and property rights as conventional, then you will naturally make the mistake of thinking of property rights as constituted by the state.

Again this is a misreading of Pettit’s argument. Nowhere does Pettit assume that all law is legislation. In fact, one of the examples of public rules that he gives are the rules of contract, which are common law rules. Moreover, he explicitly talks about the common law rules of tort, specifically the Learned Hand Rule. These are not legislative rules. Pettit can fully agree that conventional property rights exist prior to the emergence of states as the result of the common law or custom and still say that the private sphere is constituted by public enforcement. Even if before the rise of the state property rights were more or less obeyed so that there was a relatively low level of interference with people and their things, this still would not constitute a private sphere of freedom because there is nothing stopping anyone from interfering with you if they wanted to. You would have no freedom because you would have no security with the state backing up your rights with force. It’s in this sense that the state constitutes the private sphere of freedom, not in the sense of creating the rules that determine what belongs to whom.

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