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Thursday, October 14, 2004
Consensus And Constitutional Order, Part II
Everything should be as simple as possible, but no simpler.—Albert Einstein
As I mentioned in the previous essay on this topic, I, who was once a doctrinaire natural-rights libertarian, can no longer consider myself one. A natural-rights libertarian must live by certain strictures:
- That every man possesses certain clearly defined rights as an innate consequence of his humanity;
- That those rights are his personal property, and that anyone else’s infringement of those rights is a compensable (or punishable) wrong against him;
- That collective action (e.g., the action of the State) does not free the actors from the obligation to respect individual rights at all times.
It’s a beautiful doctrine. It possesses the sort of grandeur that all dramatic generalizations have: the sense of having covered much ground in a definitive, unambiguous fashion. And it is largely correct. But the natural-rights thesis does not speak to certain matters that all theories of any kind must address: the indeterminacy of its critical terms and the bounds on its domain of applicability.
Nearly everyone, no matter how freedom-minded, has some reservations about individual rights. One of the clearest and most common cases is in the area of risk. An example: at a party held in a public place, attended entirely by Second Amendment absolutists, one of the guests pulls his sidearm and starts waving it around flamboyantly, to punctuate some argument he’s making. No one is perfectly sure that the safety is on. The man’s finger occasionally slips inside the trigger guard. Now and then the muzzle points at one of the other guests. What evaluation can we give to this scenario?
From a natural-rights perspective, no infringement of anyone’s rights is taking place. The man waving the gun hasn’t shot anyone, nor has he threatened to do so in an overt way. None of the others has suffered a harm to his life, his liberty, or his property. Could forcible action to restrain the gun-waver’s actions be justified here?
A doctrinaire natural-rights libertarian would say no. Almost anyone else would say yes, specifically because of the risks involved.
Another case of comparable character involves children’s rights. A child is a human being, and under the most common reading of natural-rights theory, possesses the same rights as any other individual. Yet parents routinely restrict their children’s rights, circumscribing their freedom of movement, their use of their bodies, and what they can acquire as personal property, specifically to reduce the risks those children will face. Is this a violation?
A doctrinaire natural-rights libertarian would say yes. Almost everyone else would say no: the child’s well-being and probability of living to maturity would be too greatly at risk from the full extension of his rights.
Cases like this are many. The theory dictates a particular result, but the great mass of Man rejects the result as too risky to contemplate.
Once again: the theory of natural-rights liberty is largely correct. But it has a border around it, and a gray zone near that border where insistence on natural-rights absolutes puts one at odds with 99% of humanity.
The border is the demarcation line at which individual options end and a requirement for collective action begins:
- When individuals don’t have a way to settle their differences as individuals, but must perforce act as collectivities;
- When individuals do not possess the competence to act as the guardians of their own rights and well-being;
- When individuals’ rights clash in an absolute and irreconcilable way.
(I’ve discussed this border before, in an essay which I find I have not yet ported to Eternity Road. Apologies. It will be here presently, at which point this parenthetical will be replaced by a link to it.) The gray zone is mostly about risk.
Because of the consensus about risk—that is, the overwhelming assent that some risks are tolerable and others are not—we are forced into a procedure-oriented constitutional order. We are compelled to posit that some sorts of risk would “justify” coercive action, with all that implies. We are also compelled to construct a procedure by which we will decide which risks will evoke that coercive response.
This has some very unfortunate consequences. Most of us don’t feel threatened by certain things that others feel quite keenly. Because of the dynamic of Public Choice, those who organize to get their way about a single, concentrated issue will normally prevail over others who don’t feel strongly about it, despite a gross numerical imbalance against the activists. The result is a tendency for “Liberty to yield and Tyranny to gain ground.” An adequate counter-dynamic has yet to emerge.
Yet it is truly forced upon us. There is simply no way to define the natural, individual rights all men possess strictly enough to command a stable consensus. We can get broad agreement on some things—murder and kidnapping are wrong; rape and assault are wrong; theft and fraud are wrong—and write those violations of men’s rights into our law. But we cannot eliminate the topics where individual rights provide no guide to action, and we cannot eliminate the gray zone near that border.
Fortunately, most people are reasonable, and “will only put up with so much crap.” So there are forces, though they’re not nearly strong enough at this time, which oppose the special-interest dynamic, the desire of the State to extend its area of authority and intensify its grip thereupon, and the censoriousness that lives in every human chest, which moved Dr. Thomas Szasz to define freedom as “That which you demand for yourself, but would deny to others.”
More anon.
Comments
Your hypothetical libertarian firearms absolutist would, if they were thinking, not be brandishing their weapon in such fashion as it is:
a. irresponsible
b. violative of others personal space, not to mention the golden rule.
c. violative of the basic rules of firearms safetyPosted by on 10/14/2004 at 07:01 PM
