Wednesday, July 21, 2010

The Trouble with Rights, and Tolstoy's Solution

I used to think in terms of rights and justice. For a libertarian, this means trying to express laws to answer the central question: when is the use of force against others justified? While anyone can debate this question, most libertarians seek to resolve it through application of property rights. That is, you are always justified in using your own property as you wish, so long as you do not aggress upon the equal rights of others to enjoy their property. Moreover, if someone infringes upon your property rights, an initiation of force has occurred and you are justified in defending your property. The libertarian view is that rights determine what actions are justified, and as Rothbard might have said, all rights are property rights.

If only it could be left at that. Now not only do we need to determine where all of those imaginary property lines exist, but also when one person’s actions “cross the line” onto someone else’s lot. There may be entire web forums filled with nothing beyond debates over these questions. What may one do on public property like roads and greens? What constitutes unjustified pollution? Is intellectual property real property? Does a mother have full rights over an unborn fetus?

The real trouble comes when we realize that no two individuals will draw the exact same lines. The universe is not so neatly divided into separate, independent objects, and the result is that even libertarians scarcely agree with each other over where all the lines should be. This would be fine, except that libertarians also advocate the right of property defense; if one person aggresses against another by crossing a property line, the victim is justified in using force to defend the property. (How much force? Again, another line to draw.) Furthermore, the victim’s neighbor would also be justified in coming to the defense of the victim.

The potential here is that every libertarian’s philosophy is in violent conflict with every other libertarian’s. As long as you believe that strict property rights exist and that those rights are defendable with force, then you can justify some government apparatus that performs that enforcement. The most obvious example is with respect to abortion, where different libertarians may make different judgments regarding whether it is justified as a mother’s property right to her own body, or unjustified murder of a person. Those who take the latter position would also hold that a neighbor (or “just” government) may properly restrain the mother from committing such murder. Those taking the former would subsequently advocate that a neighbor (or their idea of a “just” government) could properly defend the mother from those seeking to aggress against her rights. The theoretical outcome is an escalation of force on both sides, and the question is not settled by persuasion but over who can physically subdue the other.

Is there an alternative to this potential conflict? There is, and it was pointed out to me in Leo Tolstoy’s work The Kingdom of God is Within You. I remember reading this passage on page 37 and realizing the error in trying to find the correct laws that may be justifiably enforced.

Meanwhile one would have thought it was necessary to point out at least some kind of solution of the following question, since it is at the root of almost everything that interests us.

The question amounts to this: In what way are we to decide men's disputes, when some men consider evil what others consider good, and vice versa?  And to reply that that is evil which I think evil, in spite of the fact that my opponent thinks it good, is not a solution of the difficulty.  There can only be two solutions: either to find a real unquestionable criterion of what is evil or not to resist evil by force.

The first course has been tried ever since the beginning of historical times, and, as we all know, it has not hitherto led to any successful results.

The second solution - not forcibly to resist what we consider evil until we have found a universal criterion - that is the solution given by Christ.

Tolstoy here speaks to the root question of when force may be justified.  Instead of drawing lines to separate good and evil actions, or justified and unjustified force, he rejects those lines altogether.

Some pro-life libertarians actually take a sort of Tolstoyan position with respect to abortion.  That is, they believe it is wrong but understand that others disagree and as a result do not advocate government force to outlaw abortion.  Why not extend such a position to all issues?