Some Replies to Conor

Theory and Practice: I have a great deal of respect for Randy Barnett, though ultimately I don’t share his vision of a polycentric government. I agree with Conor that polycentricity works well for some things, but not for others.

We have polycentric government in some ways right now, but it is not clear that we need to extend it. I am happy that states exist within our federal system. I might even give them more authority in some areas than they now have. The Anglo-American legal system was formerly much more polycentric than it is today, and in some ways that polycentricity allowed it to discover defensible solutions to very difficult problems. We might do well to restore some of that character to our laws over time.

But I don’t think we should infer from the success of federalism or the common law that the executive power can so easily be subdivided. Some things admit of easy division, and some do not. The judicial power is better off divided, allowing it to review and correct its own mistakes. But to divide the executive power, and not to provide some method of peacefully settling disputes between executives, seems very unwise.

Theory can remake the whole world all at once, and possibly it should. But practice shouldn’t work that way. The reason for the distinction is simple. Allowing a theory to die is relatively painless, and even a dead theory may be of use. Practice, however, is for keeps. People with theories, whether mainstream or radical — and libertarians definitely included — need to recognize that they may somewhere be disastrously wrong.

This remains the case even if we libertarians are overwhelmingly right: There might still be some small, possibly even discardable aspect of our program that has huge and very bad unintended consequences. We of all people should admit the point; we gleefully and very justly note the unintended consequences of other theories. It would be depressing to find ourselves someday (yes, improbably) in power, but also wearing those shoes.

Instead we should admit that we are prone to error, just like everyone else. The case for gradualism makes itself. It’s not a weakness in one’s commitment to theory. It’s just fidelity to one of the principles underlying the theory — the law of unintended consequences.

Rights and the State: Now for where I disagree. Conor writes:

And this is the last (and coolest?) thing about Hobbes’ argument that’s relevant to the considerations above. Whereas John Locke argues that humans already possess certain rights, and by extension, claims to justice in the State of Nature, Hobbes recognizes that rights are meaningless and non-existent without support from public institutions. 1% Lockeans holed up in their mountain lodge can assert their universal property rights until they’re hoarse, but their supposed naturalness won’t save them from the torch-waving mob coming up the hill. Hobbes laughs off flagrant philosophical optimism: you have a right to property if it’s underwritten by some basic legal structures and public institutions that make it possible. Rights claims (property or otherwise) without legitimate power to back them up are flimsy dross in the face of human viciousness.

This is simply the legal positivism that afflicts the modern world, under which you have no rights unless the state invents them and gifts them to you.

This view is deeply mistaken. Rights claims are generalized moral claims about how humans should treat one another, whether in this society or any other. They are discovered, not created. A true rights claim is a right.

Conor terms such claims “meaningless” and “non-existent” whenever a government doesn’t abide by them. This approach has some disturbing consequences.

On this view, slaves in the Old South did not suffer any rights violations; the law declared what their rights were, and the law was obeyed. Your kvetching about it is “meaningless.”

On this view, before women were magnanimously gifted with the right to vote, they had no moral right to it either. And if suffrage were repealed, there would be no grounds for complaint.

Oh — and did the victim have a right to life? Apparently not; the murderer got him, and no more needs to be said. Following Conor, that argument would be “meaningless.”

That an argument cannot raise the dead is unfortunate. But it’s not invalidating. And might still doesn’t make right, no matter how cleverly it dresses up.

Nor do I subscribe to the attenuated view, which Conor also and somewhat inconsistently voices: “Rights claims (property or otherwise) without legitimate power to back them up are flimsy dross in the face of human viciousness.” Those who value truth for its own sake do not consider the truth to be “flimsy dross,” and, at any rate, it’s not nothing. Moreover, plenty of people have gone into the world armed only with a moral authority, and they have often succeeded. In my view these tend to be the greatest people of all. Even when they are full of all the other human weaknesses, and even in defeat, they are heroes.