The philosopher Thomas Nagel can always be relied on for thought-provoking arguments, and in what follows, I’m going to discuss several that are relevant to libertarianism. These arguments are to be found in Nagel’s book Equality and Partiality (Oxford, 1991).
Nagel takes for granted the existence of the state, but his arguments can be adapted to an anarcho-capitalist society as well, though that is not a task I’ll pursue here. In any decent society, people have rights that the state must not violate and must also protect. If, for example, you have a right not to be murdered, the state must not murder you and must also protect you against those who attempt to murder you. So far, this is not controversial, but Nagel’s argument now takes an interesting turn. The two requirements can come into conflict. Suppose we ask, “What does protecting people against being murdered involve? Does it mean reducing the number of murders to the least possible?”
If it does, this might lead to killing innocent people. For example, the police could kill someone in order to appease an angry mob intent on killing a great many people. Of course, the right of the innocent person not to be murdered has been violated, but on this view protecting people against being murdered allows this.
There is an alternative view of the situation, and this is the one Nagel takes. This is that the state cannot kill an innocent person, even if the failure to do so leads to more murders than otherwise. This is the way most libertarians see the issue also, and Nagel’s account fits in with Robert Nozick’s discussion of “rights maximizing” in Anarchy, State, and Utopia. Here is how Nagel explains the point:
That the state is obliged to prevent its citizens from violating one another’s rights is not controversial—but its positive responsibility not to violate them itself is even stronger and in some cases, this may override the claims of negative responsibility to rule out policies which, if adopted, would diminish the overall quantity of rights violations.
Nagel makes another argument that puts one’s rights in an even stronger position. Suppose the state accepts the argument just discussed about the limits of what it can do to enforce rights. It agrees that it is prohibited from killing innocent people to minimize the total number of murders. Does this totally protect an innocent person from being killed by the state?
This depends on how you take “prohibited.” One way is that the state would say that it was a very great evil if the state murdered someone. This gives the individual more protection than in the minimizing view we discussed before, because in that view, if the state had to kill an innocent person, doing this would not be viewed as evil but rather as an unfortunate necessity. It does not however totally get rid of the possibility that an innocent person will be killed, because the state might say it was willing to commit a great evil in order to avert an even greater evil. It wouldn’t have to say this—it might hold that it can’t commit a great evil—but the position itself doesn’t exclude it.
Nagel adopts a more stringent view, which is that the state is absolutely banned from killing innocent people. He argues that innocent people can never be murdered, and this is also the Rothbardian view. In this connection, Nagel suggests an interesting thought experiment:
If I were given a choice between a significant increase in the likelihood of being murdered and the abolition of my moral or legal right not to be murdered, I would choose the former, Somehow that status, abstract as it is, is vitally important, and its recognition by a society is an enormous good in itself, apart from its consequences.
Libertarians would argue that this status also extends to property rights—your property rights cannot be taken away from you. Nagel rejects this. He holds that property rights are not natural. Although a decent society must allow people the right to own property, these rights are not absolute, contrary to the libertarian standpoint.
Why does Nagel think this? One reason is that he envisions people in a society getting together and asking themselves. “What rules about property would have to be accepted by everybody?” If an individual could reasonably reject a property rule, the society can’t institute it. Nagel thinks that poor people could reasonably reject the libertarian system, because they might fare better under a property rule that gave them substantial welfare rights. But couldn’t rich people reasonably reject this? Nagel doesn’t think so, but I won’t go into his reasons for this.
Nagel imagines a situation in which the poor are offered only a guaranteed minimum amount of welfare payments, but what he says would apply all the more to a libertarian system that offered them no welfare benefits at all:
If they were to accept it, [they would be] forgoing benefits above the minimum for themselves, merely in order to avoid depriving the better off of the benefits they can enjoy under only under the guaranteed minimum, and which they would not enjoy under a more equal system. . . They can refuse to accept the sacrifice of benefits above the guaranteed minimum merely in order to provide the better off with such benefits, The objection illegitimately privileges the guaranteed minimum [or perhaps laissez-faire] as the ‘normal’ condition relative to which sacrifice is to be identified, whereas in fact each of the two systems being compared provides one of the parties with benefits above the minimum at the expense of the other.
In Rothbard’s system, your property rights are natural in just the sense that Nagel rejects. Unlike Nagel, Rothbard does not argue on the basis of a hypothetical contract: your property rights aren’t dependent on the consent of the poor or anyone else.
