Barnett on Libertarianism, the War and Ron Paul

Today's online FOX Wall Street OpinionJournal includes a column by Georgetown Law professor Randy E. Barnett entitled Libertarians and the War. He is especially keen to make the point that Ron Paul's opposition to the Iraq War is not the 'official' libertarian position and that one can be, as many libertarians were and some still are, supportive of the war without grave violation to what they hold to be the essence of libertarianism.

This is certainly true, though not entirely for the reasons Mr. Barnett articulates, and the key word is "entirely." There simply is no single set of libertarian principles shared by all who define their political views as such, so Barnett's unqualified claim that "libertarians believe in robust rights of private property, freedom of contract, and restitution to victims of crime ... that ... define true 'liberty'" is not, strictly speaking, true. Some do, some don't, and that is a point at least worth making as his point that Dr. Paul does not speak for all libertarians.

There is something structurally odd about that quoted assertion (the literal text of which I have edited but the sense of which remains intact) and it is his unqualified assertion of certain rights as definitional of (the oddly scare-quoted) liberty. The strong implication here is that libertarianism rests on some sort of natural rights theory, which indeed it does for many but does not for others, and that such view is the only (possible?) theoretical foundation of libertarianism. That is certainly wrong, and for several important reasons.

First, it is always important to distinguish moral claims of rights from legal rights. Legal rights exist, if at all, by operation of government including a legal system established to enforce such rights. I may or may not have a moral right to hold you to your promise to pay me for painting your house, but it is my legal right under the law of contracts that makes commerce possible. (Whether the mechanisms of legal rights enforcement must be governmental or can be privatized is a matter of dispute among libertarians but is irrelevant here.) So, too, whatever Lockean or other natural rights in property one might argue in philosophical debate, it is the law of property, essentially a creature of the state, that gives the contemporary concept of property most of its useful substance.

Natural rights theories have been out of fashion among academic philosophers for some time now. It is true that academic philosophers have a long and notorious history of changing their minds but being wrong both before and after, but that is not to deny that they have analyzed natural rights theories down to the subatomic level and found them wanting for good and serious reasons. My own view is that any theory of natural rights weak enough to be conceptually defensible is unlikely to be sufficiently robust to get most libertarianism where they want to go. That said, I also think that if any natural rights do "exist" (I trust my use of scare-quotes makes sense here), they include the moral right under most circumstances to be left the hell alone. (That is, I take individual autonomy to be presumptively legitimate and the moral burden on those who would violate it, but that does not quite equate to a theory of natural rights.)

In any case, while one can attempt to defend libertarianism in terms of rights and duties (to use the philosophical jargon, on deontological grounds), many prefer a purely consequentialist, usually utilitarian, approach. They argue, in effect, that libertarianism, by maximizing individual liberty, results in or at least affords the greatest good for the greatest number or at least the greatest opportunity for the greatest good or some such. Barnett inches toward that justification in the same paragraph, claiming that his rights defined concept of liberty:

... provide[s] the boundaries within which individuals may pursue happiness by making their own free choices while living in close proximity to each other. Within these boundaries, individuals can actualize their potential while minimizing their interference with the pursuit of happiness by others.

This formulation, interestingly enough, is a "virtue ethics" approach; that is, an ethical justification that goes to the goal of individual self-actualization or flourishing in the Aristotelian sense rather than the objective of collective good that tends to be the focus of most political theory.

It isn't so much that I disagree with what I think is Barnett's rather muddled one paragraph justification of libertarianism (it is, after all, only one paragraph and in an opinion column at that), as that it needs to be said that libertarianism as a living political movement is more about its generally shared conclusions than its specific theoretical justifications. That said, it is certainly true that Ron Paul's current fifteen minutes of fame could well misrepresent libertarianism in general and Barnett is correct to point that out. I might add that Paul's position on abortion, which I largely share, is even less widely held by libertarians.

Finally, I suspect Barnett is mistaken in his implied belief that most of the Americans who have taken note of Paul identify him as a libertarian. Whether they do or not, the presence of an elected official and major party presidential candidate voicing libertarian themes and receiving even modestly positive reactions among the public at large is surely of greater value than the loss of any prospective converts to libertarianism because of Paul's anti-war position. On that point he happens to be in the majority at the moment, a fact that augurs well for the prospects of liberty in post-Bush America.