Is Libertarian Legal Activism Worthwhile?

Firearms, Statism
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These quotes from 1976 and 2010 (via “Snowflakes in Hell“) suggest an answer:

Then:

“Our ultimate goal — total control of handguns in the United States — is going to take time. My estimate is seven to ten years. The first problem is to slow down the increasing number of handguns being produced and sold in this country. The second problem is to get handguns registered. And the final problem is to make the possession of all handguns and all handgun ammunition — except for the military, policemen, licensed security guards, licensed sporting clubs, and licensed gun collectors-totally illegal.”

–Pete Shields, July 1976, President of National Coalition to Control Handguns (which later became Handgun Control Inc. and then the Brady Campaign)

Now:

“It is settled law. If I were taking a law school exam today, I would say, yes, you have got an individual right to have a gun in your home for self-defense.”

— Paul Helmke, President of the Brady Campaign, June 28, 2010

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Robert Bork poised to do something uninteresting

Legal System, Vulgar Politics
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Have you ever wondered what happened to Robert Bork? Neither have I. Today, the big media outlets breathlessly reported that Robert Bork opposes the Supreme Court nomination of Elena Kagan.

This wouldn’t be reported at all if Bork were simply some other aging federal judge. Bork isn’t a famous person anymore, and he’s not particularly influential in the Conservative movement from where he occasionally mutters something about something.

The fact that his opposition to Kagan is being reported simply provides us with an excellent illustration of how the media reduces everything to a matter of melodrama and personality conflict.

Why do we care that Bork opposes Kagan? Oh, because he was rejected for a Supreme Court seat by the Senate about a hundred years ago. So, this is being played up as some kind of parting shot from a defeated loser from long ago. It’s tit for tat! It’s Bork’s Revenge! Or something.

Kagan is a shill’s shill when it comes to shilling for the establishment, and she therefore deserves to be rejected by the Senate with extreme prejudice. But, I can virtually guarantee you, dear reader, that Bork’s reason for opposing her will have nothing to do with any consistent or principled opposition to a massive overweening government. So, you can safely get back to ignoring Bork immediately.

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Mythbuster: Libertarianism and Unchosen Obligations

Libertarian Theory, Statism, The Basics
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It is a common mistake, made even by some libertarians and former libertarians, that libertarians reject the idea of unchosen obligations. Gene Callahan, apparently a former libertarian turned communitarian, is the latest to make this mistake. He says:

Obligation . . . is the crucial idea denied by libertarian political theory.1

Well, this is just patently absurd. Libertarians, of course, do not deny that individuals can have obligations to others, including non-humans.

Fortunately, Callahan goes on to clarify what he means:

We can have obligations that we did not agree to take upon ourselves.

But this is something that not all libertarians deny, as a wide and deep enough perusal of libertarian literature will demonstrate.

At the very least, libertarians recognize the unchosen obligation not to threaten or use initiatory physical force against other rational beings (i.e., to refrain from what we call aggression).

Libertarians generally make two important sets of distinctions regarding obligation: that between negative and positive obligations and that between enforceable and unenforceable obligations. One can go further and recognize that obligations can have different weightings relative to one another such that one obligation can override or delimit the legitimate means of fulfilling another.

Rights, at least as I define the term, are legitimately enforceable2 moral claims against another’s prior obligation not to threaten or use initiatory physical force. The Non-Aggression Principle (NAP)3 and corresponding rights4 are unchosen, enforceable negative obligations.

Can we have unchosen positive obligations? Libertarians need not deny this, and not all do. It should be easily recognized that unchosen, unenforceable positive obligations are strictly compatible with the NAP/rights.

What about unchosen, enforceable positive obligations? Provided they are compatible with the NAP/rights, if there are any that meet this description, then libertarians need not deny unchosen, enforceable positive obligations outright. I’ll leave it up to the reader’s imagination to come up with possible examples of unchosen, enforceable positive obligations that are compatible with the NAP/rights. If you take the challenge, bear in mind what I wrote about how one obligation can override or delimit the legitimate means of fulfilling another.

Suffice to say that it is a myth that libertarians (need to) deny unchosen, even positive, obligations. Callahan is attacking a straw man.

To criticize libertarians in general for denying unchosen, enforceable positive obligations, or just certain of them, would be more accurate. But to do so would be to take the position that the threat or use of initiatory physical force (i.e., aggression) is at least sometimes justified — that, for example, what is usually thought of commonsensically as theft or trespass or murder in everyday life, is not theft or trespass or murder in the “political” sphere, i.e., when the state or the “community” does it.5


  1. It doesn’t help interpretation that Callahan started this sentence in the title of his post. 

  2. The presence of the term ‘legitimately’ here but not elsewhere in the post should not be taken to imply I am making a different claim here. I add it here in a definition for greater clarity. 

  3. It’s not an axiom. 

  4. Most fundamentally, the life, liberty, and property triad. Of the three, I think liberty is the most fundamental (at least at the individual level of analysis, from the perspective of moral theory; at the structural level of analysis, that of political and legal theory, the right to property may be the most fundamental; rights cannot be fully understood exclusively from either perspective, but rather must be conceived from a dialectical perspective that encompasses both as well as the cultural level (see Chris Sciabarra’s Total Freedom: Toward a Dialectical Libertarianism for more on these three levels of dialectical analysis, which I adapted to conceptualizing rights in chapter 3 of my dissertation) ) but it cannot be exercised or properly understood without the right to private property. 

  5. In chapters 6 and 7 of my dissertation, I deny that this is truly the political sphere. I conceive of genuine, immanent politics as discourse and deliberation between equals in joint pursuit of eudaimonia (flourishing, well-being). By ‘equals’ I mean ‘equality in authority’ as in Locke’s state of nature, though I do not conceive of ‘nature’ in Lockean, social-contract theory terms but rather in Aristotelian terms, i.e., of teleological completeness or perfection. In short, politics presupposes liberty. Hence, the term ‘vulgar politics’ (or vicarious politics) used as a category on this site as a synonym for statist “politics.” 

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Congressman Assaults Student on Washington Sidewalk

Police Statism, The Left, The Right, Vulgar Politics
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Apropos Jacob Huebert’s excellent post a few days ago on the time Before We Worshipped Presidents, our lesser rulers are getting increasingly used to their special, above-the-law status as well. Watch how Democratic Congressman Bob Etheridge responds to being peacefully asked a simple question by a well-dressed student on a public street:

Congressman Etheridge thinks he can interrogate and assault someone simply for having the temerity to ask him a question in public, apparently without fear of retaliation or legal consequences, despite being recorded. He has a right to know who the student is? I don’t think so. He’s not police. I don’t think even a police officer would have cause under positive law to demand identification and assault the student simply for video recording and asking a question in public. In any case, their authority is illegitimate and what we have here clearly is assault even under current positive law.

What’s more disturbing is that this incident is indicative of just how much our petty tyrants view themselves as being above us and the law — though I suppose assaulting one person on the street is an improvement over assaulting millions through his legislative acts; if only he and his fellow control-freaks would cease the latter, the world would be a much better place and their private crime manageable.

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