Natural Rights Libertarianism
Probably the most well-known and influential version of libertarianism, at least among academic philosophers, is that based upon a theory of natural rights. Natural rights theories vary, but are united by a common belief that individuals have certain moral rights simply by virtue of their status as human beings, that these rights exist prior to and logically independent of the existence of government, and that these rights constrain the ways in which it is morally permissible for both other individuals and governments to treat individuals.
Historical Roots - Locke:
Although one can find some earlier traces of this doctrine among, for instance, the English Levellers or the Spanish School of Salamanca, John Locke's political thought is generally recognized as the most important historical influence on contemporary natural rights versions of libertarianism. The most important elements of Locke's theory in this respect, set out in his Second Treatise, are his beliefs about the law of nature, and his doctrine of property rights in external goods.
Locke's idea of the law of nature draws on a distinction between law and government that has been profoundly influential on the development of libertarian thought. According to Locke, even if no government existed over men, the state of nature would nevertheless not be a state of "license." In other words, men would still be governed by law, albeit one that does not originate from any political source (c.f. Hayek 1973, ch. 4).
This law, which Locke calls the "law of nature" holds that "being all equal and independent, no one ought to harm another in his life, liberty, or possessions" (Locke 1952, para. 6). This law of nature serves as a normative standard to govern human conduct, rather than as a description of behavioral regularities in the world (as are other laws of nature like, for instance, the law of gravity). Nevertheless, it is a normative standard that Locke believes is discoverable by human reason, and that binds us all equally as rational agents.
Locke's belief in a prohibition on harming others stems from his more basic belief that each individual "has a property in his own person" (Locke 1952, para. 27). In other words, individuals are self-owners. Throughout this essay we will refer to this principle, which has been enormously influential on later libertarians, as the "self-ownership principle." Though controversial, it has generally been taken to mean that each individual possesses over her own body all those rights of exclusive use that we normally associate with property in external goods. But if this were all that individuals owned, their liberties and ability to sustain themselves would obviously be extremely limited. For almost anything we want to do—eating, walking, even breathing, or speaking in order to ask another's permission—involves the use of external goods such as land, trees, or air.
From this, Locke concludes, we must have some way of acquiring property in those external goods, else they will be of no use to anyone. But since we own ourselves, Locke argues, we therefore also own our labor. And by "mixing" our labor with external goods, we can come to own those external goods too. This allows individuals to make private use of the world that God has given to them in common. There is a limit, however, to this ability to appropriate external goods for private use, which Locke captures in his famous "proviso" that holds that a legitimate act of appropriation must leave "enough, and as good... in common for others" (Locke 1952, para. 27). Still, even with this limit, the combination of time, inheritance, and differential abilities, motivation, and luck will lead to possibly substantial inequalities in wealth between persons, and Locke acknowledges this as an acceptable consequence of his doctrine (Locke 1952, para. 50).
Contemporary Natural Rights - Nozick:
By far the single most important influence on the perception of libertarianism among contemporary academic philosophers was Robert Nozick in his book, Anarchy, State, and Utopia (1974). This book is an explanation and exploration of libertarian rights that attempts to show how a minimal, and no more than a minimal, state can arise via an "invisible hand" process out of a state of nature without violating the rights of individuals; to challenge the highly influential claims of John Rawls that purport to show that a more-than-minimal state was justified and required to achieve distributive justice; and to show that a regime of libertarian rights could establish a "framework for utopia" wherein different individuals would be free to seek out and create mediating institutions to help them achieve their own distinctive visions of the good life.
The details of Nozick's arguments can be found at Robert Nozick. Here, we will just briefly point out a few elements of particular importance in understanding Nozick's place in contemporary libertarian thought—his focus on the "negative" aspects of liberty and rights, his Kantian defense of rights, his historical theory of entitlement, and his acceptance of a modified Lockean proviso on property acquisition. A discussion of his argument for the minimal state can be found in the section on anarcho-capitalism below.
First, Nozick, like almost all natural rights libertarians, stresses negative liberties and rights above positive liberties and rights. The distinction between positive and negative liberty, made famous by Isaiah Berlin (Berlin 1990), is often thought of as a distinction between "freedom to" and "freedom from." One has positive liberty when one has the opportunity and ability to do what one wishes (or, perhaps, what one "rationally" wishes or "ought" to wish). One has negative liberty, on the other hand, when there is an absence of external interferences to one's doing what one wishes—specifically, when there is an absence of external interferences by other people.
A person who is too sick to gather food has his negative liberty intact—no one is stopping him from gathering food—but not his positive liberty as he is unable to gather food even though he wants to do so. Nozick and most libertarians see the proper role of the state as protecting negative liberty, not as promoting positive liberty, and so toward this end Nozick focuses on negative rights as opposed to positive rights. Negative rights are claims against others to refrain from certain kinds of actions against you.
Positive rights are claims against others to perform some sort of positive action. Rights against assault, for instance, are negative rights, since they simply require others not to assault you. Welfare rights, on the other hand, are positive rights insofar as they require others to provide you with money or services. By enforcing negative rights, the state protects our negative liberty. It is an empirical question whether enforcing merely negative rights or, as more left-liberal philosophers would promote, enforcing a mix of both negative and positive rights would better promote positive liberty.
Second, while Nozick agrees with the broadly Lockean picture of the content and government-independence of natural law and natural rights, his remarks in defense of those rights draw their inspiration more from Immanuel Kant than from Locke. Nozick does not provide a full-blown argument to justify libertarian rights against other non-libertarian rights theories—a point for which he has been widely criticized, most famously by Thomas Nagel (Nagel 1975).
But what he does say in their defense suggests that he sees libertarian rights as an entailment of the other-regarding element in Kant's second formulation of the categorical imperative—that we treat the humanity in ourselves and others as an end in itself, and never merely as a means. According to Nozick, both utilitarianism and theories that uphold positive rights sanction the involuntary sacrifice of one individual's interests for the sake of others. Only libertarian rights, which for Nozick take the form of absolute side-constraints against force and fraud, show proper respect for the separateness of persons by barring such sacrifice altogether, and allowing each individual the liberty to pursue his or her own goals without interference.
Third, it is important to note that Nozick's libertarianism evaluates the justice of states of affairs, such as distributions of property, in terms of the history or process by which that state of affairs arose, and not by the extent to which it satisfies what he calls a patterned or end-state principle of justice. Distributions of property are just, according to Nozick, if they arose from previously just distributions by just procedures.
Discerning the justice of current distributions thus requires that we establish a theory of justice in transfer—to tell us which procedures constitute legitimate means of transferring ownership between persons—and a theory of justice in acquisition—to tell us how individuals might come to own external goods that were previously owned by no one. And while Nozick does not fully develop either of these theories, his skeletal position is nevertheless significant, for it implies that it is only the proper historical pedigree that makes a distribution just, and it is only deviations from the proper pedigree that renders a distribution unjust.
An implication of this position is that one cannot discern from time-slice statistical data alone—such as the claim that the top fifth of the income distribution in the United States controls more than 80 percent of the nation's wealth—that a distribution is unjust. Rather, the justice of a distribution depends on how it came about—by force or by trade? By differing degrees of hard work and luck? Or by fraud and theft?
Libertarianism's historical focus thus sets the doctrine against both outcome-egalitarian views that hold that only equal distributions are just, utilitarian views that hold that distributions are just to the extent they maximize utility, and prioritarian views that hold that distributions are just to the extent they benefit the worse-off. Justice in distribution is a matter of respecting people's rights, not of achieving a certain outcome.
The final distinctive element of Nozick's view is his acceptance of a modified version of the Lockean proviso as part of his theory of justice in acquisition. Nozick reads Locke's claim that legitimate acts of appropriation must leave enough and as good for others as a claim that such appropriations must not worsen the situation of others (Nozick 1974, 175, 178). On the face of it, this seems like a small change from Locke's original statement, but Nozick believes it allows for much greater freedom for free exchange and capitalism (Nozick 1974, 182). Nozick reaches this conclusion on the basis of certain empirical beliefs about the beneficial effects of private property:
- it increases the social product by putting means of production in the hands of those who can use them most efficiently (profitably); experimentation is encouraged, because with separate persons controlling resources, there is no one person or small group whom someone with a new idea must convince to try it out; private property enables people to decide on the pattern and type of risks they wish to bear, leading to specialized types of risk bearing; private property protects future persons by leading some to hold back resources from current consumption for future markets; it provides alternative sources of employment for unpopular persons who don't have to convince any one person or small group to hire them, and so on. (Nozick 1974, 177)
If these assumptions are correct, then persons might not be made worse off by acts of original appropriation even if those acts fail to leave enough and as good for others to appropriate. Private property and the capitalist markets to which it gives rise generate an abundance of wealth, and latecomers to the appropriation game (like people today) are in a much better position as a result. As David Schmidtz puts the point:
Original appropriation diminishes the stock of what can be originally appropriated, at least in the case of land, but that is not the same thing as diminishing the stock of what can be owned. On the contrary, in taking control of resources and thereby removing those particular resources from the stock of goods that can be acquired by original appropriation, people typically generate massive increases in the stock of goods that can be acquired by trade. The lesson is that appropriation is typically not a zero-sum game. It normally is a positive-sum game. (Schmidtz and Goodin 1998, 30)
Relative to their level of well-being in a world where nothing is privately held, then, individuals are generally not made worse off by acts of private appropriation. Thus, Nozick concludes, the Lockean proviso will "not provide a significant opportunity for future state action" in the form of redistribution or regulation of private property (Nozick 1974, 182).
Zwolinski, Z. (n.d.). Internet Encyclopedia of Philosophy. Retrieved July 6, 2015 from http://www.iep.utm.edu/libertar/#H1