Transcript

Aaron Powell: Welcome to Free Thoughts. I’m Aaron Powell.

Trevor Burrus: And I’m Trevor Burrus.

Aaron Powell: Joining us today is Grant Babcock. He’s the Associate Editor of Lib​er​tar​i​an​ism​.org.

Grant Babcock: Hello.

Aaron Powell: So we’re going to talk about natural rights, and then specifically how they relate to radical libertarianism. What are natural rights?

Grant Babcock: Well, so two parts, right? There’s the rights part and the [00:00:30] natural part, so let’s start with the rights part. A right, basically, is there are certain things which other people can’t do to you, and you can’t do to other people by virtue of your possessing moral agency and personhood. So if we think that it’s wrong for me to reach across the table and stab Trevor in the chest with my pen, and that the reason that’s wrong is because it’s [00:01:00] disrespectful to Trevor’s dignity as a moral agent, right, because there are things that I could reach across and stab with my pen, like a stuffed animal or maybe a fish, depending.

Trevor Burrus: But then there’s an exception to fish.

Aaron Powell: That would be pretty creepy to do though.

Grant Babcock: Right, yeah.

Trevor Burrus: Or if a fish was at the table, that’d be … Or if you just stabbed a stuffed animal, that would be pretty strange, but continue.

Grant Babcock: Right, and we think that, that would be wrong, again by virtue of something about Trevor that he’s [00:01:30] a moral agent. That he’s a person, and I use person in the ethical sense of the word person. So, what makes a right a natural right? Well, that would be, probably the easiest way to describe it would be to contrast it with something like a civil right. So, the civil right would be something like the right to vote. It only makes sense to talk about the right to vote in the context of democracy where we have [00:02:00] privileges that are contingent on that particular political system.

Trevor Burrus: And then setting up balloting places, and …

Grant Babcock: Right. Or …

Trevor Burrus: … There’s a lot of things that are required for voting.

Grant Babcock: Or a right to trial by jury, for example. And a natural right, in contrast, is a pre‐​political type of right. It’s the sort of thing where, even if there were no polling places, even if the [00:02:30] halls of congress were empty, it would still be wrong for me to steal Trevor’s coffee mug …

Trevor Burrus: But the voting would be irrelevant.

Grant Babcock: Right.

Aaron Powell: So it’s pre‐​political, but it’s also, just to clarify, post‐​political, in the sense that these rights exist before government and would exist without government, but the argument is that they also continue to exist even if there is a government.

Grant Babcock: Correct. The one wrinkle with that is that [00:03:00] sometimes social contract theorists will talk about us bargaining away certain natural rights in the social contract. So, I might have a right to be a vigilante, right? So if I think I’ve been injured by Trevor, I have the right to avenge myself upon him, or to, if he stole my coffee mug, I could go and take it back myself, whereas [00:03:30] some social contracts theorists would say when you enter into political society, you give up that natural right and, in exchange, you get the political right to be part of the justice system.

Trevor Burrus: Either one of those, we could talk, and we have talked on Free Thoughts before about whether social contract theory is legitimate, or all those things.

Grant Babcock: Yeah.

Trevor Burrus: But if you’re in a social contract system, as America theoretically is, or in a [00:04:00] state of anarchy that respects rights all the time and have not been bargained away. But in both of those we’re still talking about a rights‐​based theory of either government legitimacy, or maybe non‐​legitimacy, both based in rights, correct?

Grant Babcock: Correct.

Trevor Burrus: And that, of course, is our tradition. And it also seems to me that there aren’t many people — and you know the literature better than I do — Who just don’t think rights exist.

Grant Babcock: There’s plenty of people like that, right? Anyone who is a utilitarian, [00:04:30] right?

Trevor Burrus: Yeah, if you’re a strict utilitarian, but those are pretty rare. Maybe not in the academy …

Grant Babcock: Right. That’s the thing, I’m definitely thinking in terms of the academy. If we’re talking about the moral sense that your average human being on the street has, that’s really, it’s not systematized or formalized in any way. It wouldn’t really make sense to say this guy believes in rights consistently and this guy doesn’t, right? It’s going to be a hodgepodge.

Aaron Powell: [00:05:00] Did these rights — The ones that you described are, you can’t do certain things to Trevor. And I wonder just how many times … And this is going to be episode 202 … There’s been hypothetical violence directed at Trevor. [crosstalk 00:05:15]

Grant Babcock: He’s just more punch‐​able.

Trevor Burrus: I’ve got the Ted Cruz punch‐​able face.

Aaron Powell: These rights are, Trevor has rights, by nature of his humanity, [00:05:30] that are then act as prohibitions limit somewhat you’re allowed to do. So [inaudible 00:05:35] they’re side constraints.

Grant Babcock: Let’s go on side constraints for a minute. The idea is that I have a sphere of independent action wherein I get to make decisions about how things go. Where’s the border to that? Well, the border to that is there are things outside my legitimate realm [00:06:00] of control.

Trevor Burrus: Is that your rights? Is that what you’re saying?

Grant Babcock: Right.

Trevor Burrus: My right to swing my fist ends at your face.

Grant Babcock: That’s almost a little question‐​beggy. Let’s go back to me stabbing you.

Trevor Burrus: Yes, please do.

Aaron Powell: It can’t come up enough.

Grant Babcock: Let’s say I have a kitchen knife. There are lots of things I get to do with that kitchen knife. I get to prepare a steak with it, I can sharpen [00:06:30] it, I can destroy it, melt it down, all these things. I get to decide what happens about it. The reason that I can’t decide that what happens to the knife is that it goes into your chest is that now I’m not making decisions just about the knife anymore. I’m also making decisions about your chest and its structural cohesion.

Aaron Powell: Does this, then, mean that natural rights are always and only negative rights, as [00:07:00] it’s called? They’re prohibitions on what you can do to other people or other people … You know, it’s my rights are the things that people may not do to me, as opposed to positive rights which are more like, I have an expectation that I will receive certain things or things will be done for me.

Grant Babcock: Like there has to be some economic production, which is then … It sort of depends on what part of the natural rights tradition you’re talking about, [00:07:30] right? It also depends on if you’re talking about whether it’s an enforceable thing or not. You could argue, and libertarians have argued, that children have a right to food and shelter from their parents or guardians. That would be an example of a right that they have by virtue of being what they are. That is pre‐​political, but it’s probably a positive, right? [00:08:00] The main line of the liberal tradition, going back into the enlightenment and continuing down to us three sitting around the table right now, tends to think that at least when it comes to adults, we’re talking about negative rights as being the ones relevant to political questions of enforceability.

Trevor Burrus: And libertarians are often associated with rights theory. I think if anyone has a popular conception of libertarianism, it has to do with these [00:08:30] very strong assertions of rights. Is that the right conception of libertarianism in your view?

Grant Babcock: In my view, yes. I think that the rights conception is the right one, but it’s not the only way that libertarians think about ethics.

Aaron Powell: Here’s where we can plug. Grant and I are the co‐​editors of Arguments For Liberty at Lib​er​tar​i​an​ism​.org, which presents nine different arguments, only one of which is [00:09:00] grounded in a strict natural rights conception.

Grant Babcock: Maybe two, depending on how you count.

Trevor Burrus: Count can’t? Is that what you just said?

Grant Babcock: I tried to.

Trevor Burrus: So what sort of questions, in this sense, in getting into the heart of your essay, if you have a robust respect for rights, it gets you to a proper liberal order, in your conception. And they’re fairly absolutist. Would that be [00:09:30] correct, the way you view it?

Grant Babcock: I think that this idea of absolutism is sort of baked into the idea of a right. It’s a bright line, it’s a line in the sand. It’s a, “This far, no further” kind of way of thinking about morality. So that gets directly to the question of, does that imply radicalism?

Aaron Powell: What do you mean by radicalisms?

Trevor Burrus: Yeah.

Aaron Powell: What is radical libertarianism?

Grant Babcock: Right. I wish someone would tell me, in some sense. [00:10:00] But we can try. The word “radical” is thrown around a lot of different ways. In some uses, it’s just a pejorative. It means unserious, and sort of immature, and concerned with extremism for its own sake. I think that’s nibbling around the edges of something that’s almost correct, which is that radicalism is a relative thing. It’s relative to some kind of [00:10:30] center, which, in this context it would be like the status quo. How different are my views about how the political order should be compared to how it is. And the bigger that gap is, the more radical I am.

Trevor Burrus: That’s why you’re okay being called a radical in this regard.

Grant Babcock: Right, because I’m an anarchist. You both know. And I guess the audience now does, if they didn’t before.

Aaron Powell: Is radicalism then synonymous with anarchism, or radical libertarianism, [00:11:00] or can you be a natural rights libertarian without taking that all the way to the abolition of the state?

Grant Babcock: So I think there’s a distinction to be made here, and I’m going to draw on an essay by Murray Rothbard called “Do You Hate The State?” He says radical, he means radical in the sense of being in total root and branch opposition to the existing political system and to the state itself, radical in the sense of having integrated [00:11:30] intellectual opposition to the state with a gut hatred of its pervasive and organized system of crime and injustice. Radical in the sense of a deep commitment to the spirit of liberty and anti statism that integrates reason and emotion, heart and soul.

And then he goes on and he gives examples of anarchists who he thinks are not radical, and minimal state‐​type libertarians who he thinks are radical. His paradigm case for an anarchist libertarian who he doesn’t think [00:12:00] is radical is David Friedman, who wrote The Machinery Of Freedom around the same time as his book, For A New Liberty came out. And David Friedman’s book is all about the utilitarian case for libertarian anarchism. The idea that life will be better and more enjoyable, and we’ll all be wealthier and happier if we get rid of the state.

In that book, Friedman takes care to say, “Look, I’m not dismissing rights out‐​of‐​hand, but I think that, if rhetorically [00:12:30] speaking, we’re trying to convince somebody, that it makes sense to make consequentialist, utilitarian‐​type arguments.”

Rothbard doesn’t necessarily think he’s super serious about that, but that might be a fault of Rothbard rather than Friedman.

Trevor Burrus: So who would be a radical minarchist, or minimal statism?

Grant Babcock: He gives a great list, actually. He says, “Our classical liberal forebears who are genuinely radical, who hated statism in the states of their day, with a beautifully integrated passion. The Levelers, Patrick Henry, Tom Payne, Joseph [00:13:00] Priestly, the Jacksonians, Richard Cobden,” and on and on.

He says, “Tom Payne’s radical hatred of the state and statism was and is more important to the cause of liberty than the fact that he never crossed the divide between laissez faire and anarchism.”

Trevor Burrus: I’m trying to parse this out in my head. You’re talking about absolutism and rights and you said they’re inherently absolutist. And one of the things you wrote this essay in response to an essay by our former colleague, Brink Lindsey, [00:13:30] who was criticizing natural rights theory. The main source of his criticism is the absolutism of these rights claiming to either, A) going too far because of their perception of that, or they’re just going too far, and B) because absolutism of the rights doesn’t solve many questions. If we’re going to say these rights are absolute, we have these questions that always come up, and we’ve talked about, I think 190 episodes ago with Matt Zwolinski, [00:14:00] we talked about shining laser pointers on your house, and pollution, and minor little touching you for a second –

Aaron Powell: Or going back to the knife in Trevor example, because again …

Trevor Burrus: Or that too.

Aaron Powell: … If he’s unconscious and he’s choking and you need to cut a hole in his throat to …

Grant Babcock: Right.

Trevor Burrus: On one level, libertarians will say what many people will think are “crazy” things by just saying, yes, if you shine a laser pointer on my door, you are violating my rights, rights are absolute

Grant Babcock: [00:14:30] Yeah.

Trevor Burrus: So how do you respond to those kind of characterizations?

Grant Babcock: This is sort of hard to talk about, generally, so I’ll try to get more concrete with the laser pointer. Yeah, if you’re shining a laser pointer in my house and I want you to stop doing that, I should be able to ask you to stop doing that, and you should comply.

Trevor Burrus: I guess, going to that, does it limit your ability to retaliate, [00:15:00] or do you have … Do rights theory, itself, tell you how you can react to someone’s violations of your rights, or do you need something else?

Grant Babcock: Right. Okay, I see where you’re going with this now. Basically, all rights tell you is where the line is. It doesn’t necessarily tell you what an appropriate response is. You could say, “I believe absolutely in natural rights,” but then also have some kind of theory of proportionality.

Rothbard, famously, [00:15:30] is not very big on this. Actually, I think Locke isn’t either. He says if someone is trespassing then that means that, if they’re willing to do that, as far as you know, they’re willing to kill you, so you can kill them right back.

Aaron Powell: To put this another way, there’s the argument that, if we took these — If rights are absolute, and to take your laser pointer example, someone shining it on your house, it’s at best, [00:16:00] or at most, a vanishingly small harm to your property. But you can tell them not to, and they should comply.

That gets us into … Was it Zwolinski who wrote the essay on pollution?

Trevor Burrus: Pollution, yeah. That it could shut down an industry.

Aaron Powell: Yeah, if we took that seriously, and took it to its natural conclusions, we wouldn’t be allowed to have industry.

Trevor Burrus: Which [crosstalk 00:16:22]

Aaron Powell: We wouldn’t be allowed to drive cars, we wouldn’t be allowed to do anything because the pollution, or the noise, or whatever else, would be infringing on people’s rights, [00:16:30] which would seem to cast us into pretty impoverished lives. So is that, is getting out of that … Do you bite the bullet on that and say, yes, well if we’re going to just respect everyone’s rights, we would have to live as hermits. Or do you say, well, those aren’t really rights violations, the rights are more flexible than that. Or do you say, those are such de minimis harms that we just … It’s [00:17:00] unreasonable not to put up with that. Yes, I’m violating your rights, but it’s so small that if you get mad and try to stop me you’re overreacting.

Grant Babcock: Few things. Rothbard famously says no, smoke stacks are aggression. Polluting rivers with your industrial runoff is aggression, that the people who are then harmed by breathing bad air and drinking bad water have cause of action against you. He thinks [00:17:30] there’s some path dependency here, where we live in a world where the state has issued all these permits saying you’re allowed to emit this much toxic stuff, and you’re allowed to emit this much toxic stuff, and other people can’t. And we’ve built up this industrial society on that basis. He’s imagining a different path where the law took a different tack on that and said, pretty strongly, no.

So many [00:18:00] of these questions of practicality boiled down to, “I can’t imagine a business model that successfully does ‘X’, therefore ‘X’ is impossible, therefore your demand for radical libertarianism is kaput.” I’m uncompelled by that sort of thing, and part of it is I very seldom see a good faith attempt to even [00:18:30] try to think of how it might work. A great example of this is when Ludwig Von Mises is writing, I think it’s one of the later editions of Human Actions that came out after Rothbard had started talking about anarchism. Mises is talking about how capitalism and freedom and all these things are contingent upon a society [00:19:00] that has a rule of law, and all these things, so therefore to talk about the market producing legal services, like courts and police and that sort of thing, is a category error, and the whole anarchist project just doesn’t get off the ground.

I think that’s fairly obviously just a failure of imagination. And a very excessively narrow view of what markets are, and [00:19:30] the applicability of even Mises’ own thinking about human action.

Trevor Burrus: Getting into some of the criticisms that Brinks had made about the natural rights theory, one of them is that you need more than rights. And you kind of touched on it, so maybe I already know your answer, but maybe we can get back into it. We need more than rights to answer some questions that the legal system answers without rights, and if libertarians are going to say, No no, rights sort of solve [00:20:00] the problems of the world, when he sort of says we don’t need politics, then we’re ignoring all these basic facts. Yes, you have a right to property, and you can homestead it, but how high above your property do you own, and how do you abandon your property, how long do you have to let it go until you abandon it. Or like, sort of in an adverse possession. All these questions are not answered by rights, so therefore, it seems that rights don’t get us too far, or there’s a lot of playing the joints. It could be a rights‐​respecting world, generally, [00:20:30] but also not very libertarian.

Grant Babcock: I think that’s sort of confused on several levels. The first is, it’s mis‐​characterizing what the work that rights are doing, when you’re thinking about a libertarian, or even a non‐​libertarian political order. These are side constraints. It doesn’t tell us anything about what we do inside the edges of the canvas. There will be multiple possibilities [00:21:00] which will be compatible with rights thinking. One of my favorite things, Trevor, that we’ve talked about in the past is sort of the rituals and signifiers that different societies have used to determine what counts as a transfer of property. Way back in medieval England, if I wanted to buy Aaron’s acre of land, we actually both had to go out there. Aaron had to pick up some dirt off the ground and put it in my hand. [00:21:30] Only then was the deal sealed.

This is one of the few concepts were I think Hans Hoppe’s characterization is helpful, where he talks about the intersubjectively determinable boundaries, which are sort of necessarily going to be socially contingent. There’s nothing eternal about going to a land and handing dirt to each other. [00:22:00] There could be other sufficient ways of cacheing out what a property system and land looks like.

And then there are questions that don’t really have anything to do with rights at all, like, which side of the road should everyone drive on. [inaudible 00:22:18] talks about this sort of thing a lot when he talks about the law. There needs to be a uniformed convention, but it doesn’t really matter much one way or the other what it’s about. [00:22:30] In that case, rights aren’t going to drill down, nor are they trying to.

Trevor Burrus: So does that mean that we’re okay with these legal … So, talk about, again, let’s say adverse possession, or regulations that infringe upon your property so you can’t build buildings super high to obstruct airplanes, or you don’t own all the way to the sky, or you would own airplanes as they flew over your house. These all seem [00:23:00] absurd but if you took rights theory to the extreme maybe that’s the case and if we’re going to give a concession to all social ordering helps, and matters in this situation, so therefore, we can concede that we’re going to work in politics, to some degree? Insofar as we’re negotiating the terms of what the limits of what these rights are as long as we’re still keeping honest about protecting the rights themselves? [crosstalk 00:23:26]

Grant Babcock: This politics thing seems to [00:23:30] me, it’s trying to aim at characterizing anyone who says that rights are a serious thing we need to consider, it’s trying to say that, thereby they’re dodging the hard work of caching out all these details, which are important to have a functioning society. That strikes me as sort of silly, there’s nothing to do with rights or radicalism that is a‐​political. The fact that I think that there is a right or a wrong answer [00:24:00] to a question, or even multiple right and multiple wrong answers to a certain question? Nothing about that lets me escape politics. I still have to do the work of persuasion and the work of bargaining, if you like.

Aaron Powell: I think there’s also, in that critique, there’s an equivocation on the definition of politics.

Grant Babcock: Yeah.

Aaron Powell: Those questions that need to be answered, that [00:24:30] rights can’t answer, that we have to do the rough and tumble of persuasion and compromise and all of that, those would be present even in an anarchist society. Because it’s a society, and when you’re a society you have to interact with your fellow human beings. You have to figure out how to live together, and how to live in beneficial ways. If politics simply is … It seems like, when the critique is, this natural rights thing is an unjustified rejection [00:25:00] of politics. You think you can escape it? Well no, if that’s what we mean by politics, which is simply social persuasion and social interaction and living together in a society, then that politics is very much a part of a strict natural rights and even anarchist society.

Grant Babcock: Right.

Aaron Powell: But the equivocation comes in sliding over to politics necessarily means politics of the state. It means solving, not just the act of trying to figure those questions out, but the act of figuring those questions [00:25:30] out via the mechanisms of government as an enforcement tool, as a system of institutions. There’s almost a false dilemma, I think, that’s being articulated. Which is, look, if you say you’re rejecting politics, then really, what you’re doing is you’re rejecting the whole thing. So if I say, no I’m realistic and think we need to have politics, [00:26:00] that means necessarily that we need the institutions of a liberal order, the state, the coercive force of law, and all of that.

Trevor Burrus: Right.

Aaron Powell: So to say, look, it would be unreasonable to reject politics. Therefore, if you reject government politics, you’re being unreasonable, whereas you can simply instead say, no, what I’m doing is rejecting the necessity of these particular institutions as an enforcement mechanism for the political, and instead am going to embrace the political [00:26:30] as a different, nongovernmental system.

Trevor Burrus: It reminds me of the cattle farmers of Shasta County, California, as one is usually reminded in times like these. This is a book by Robert Ellickson called Order Without Law, where he analyzes the way cattle farming is done in this relatively rural part of California where essentially they’ve come up with a bunch of rules that are trying to deal with the practical, so to speak, questions we’re talking about, about cattle, [00:27:00] when they go out, they let them into the field in the mountains during the winter and then they bring them back in. And sometimes they trample on other people’s property, and sometimes they die, or there’s a conflict of different sorts.

And they’ve developed a bunch of rules that you could call political. They’ve done it through long‐​term social interaction, and eventually, they were ignoring the laws of California, and California told them, no, these are actually the laws about who owns the lots and who’s actually going to have to pay in these situations … [00:27:30] They just ignored them, and used their own rules. And that situation goes to what Aaron was saying. They figured out these inherently difficult questions. They figured out solutions, at least workable for right now. Solutions to these questions through methods that are not just endorsing the political in the way that you described it.

Grant Babcock: Right. The other book I’d want to point out here is Elinor Ostrom’s work about, Governing The Commons is the title, and it’s about governing the commons. How do [00:28:00] communities solve the tragedy of the common style problems, without recourse to a monopoly‐​like, punishing state.

Trevor Burrus: If we’re getting into what a lot of the criticisms here, that I think Brink was putting on natural rights libertarianism, and of course Brink has been on the show before, and he’s always welcome back. But the criticisms, a lot of them are about strategy, which is something we talk about on the show a lot anyway. [00:28:30] Whether or not it’s best to proceed from a radical standpoint, or work in the halls of government. It’s something that libertarians talk about all the time. One of the things that Brink argues is that, from a standpoint of the way that politics is in this country, that we’re broadly liberal, and that if we’re not participating in that discussion, and then we’re saying that we have all these solutions that we don’t even need to get involved in those politics, then it’s not going to be strategically good for libertarians to [00:29:00] stay out of those and to say the things that people really like, and really care about, possibly, such as the welfare state, regulations on safety and health and things like this, that they’re just not acceptable, and we won’t come and talk to you or your political people or try to persuade you until you just get rid of that entire thing, the welfare state or whatever, then that’s just absolutely unreasonable and a good way to guarantee that libertarians won’t ever positively affect anything.

Grant Babcock: [00:29:30] So there’s two things going on there. One is that I think that Brink thinks that the welfare state is probably a good idea, at least within certain limits, or cached out in a certain way.

The second question is, well suppose then that the libertarian position is that the welfare state’s bad. Which, I think the welfare state’s bad and that we shouldn’t have one. We shouldn’t have the rest of the state either, but that’s a discussion for later.

[00:30:00] It strikes me as odd to say that, while we can make progress on this thing if we just pretend that we agree with him on all this other stuff. Talking about the welfare state being bad is preventing us from whatever the laundry list of things it is, like criminal justice reform, or the tax code, or any of these other issues. [00:30:30] I don’t think politics really works that way. I guess someone could have a view that’s so repugnant, like they’re a white supremacist or something, that they become sort of radioactive and you can’t work with them on anything. My feeling is that if you want to be respected in serious conversations about politics, you just say, this is what I believe, and this is the strongest good faith argument I can make for that. [00:31:00] And that doesn’t mean you can’t then make comparative statements. I could say, look, I don’t think the government should be involved in education at all, but a voucher system might be better than universal public schooling.

Murray Rothbard famously thought the opposite. He thought that vouchers were a step away from the libertarian ideal because you had this functioning private system that was doing things [00:31:30] outside the state without very much state oversight or intervention, and that, by letting the vouchers in, you’re letting in state money and therefore state control. You’re basically co‐​opting the private schools into the public ones.

Trevor Burrus: That’s a strategy discussion, then.

Grant Babcock: Right, right. And it’s also, it goes to show that even if you’re both radicals, you might disagree about incremental steps. Or [00:32:00] whether a step is in the right direction, or whether it’s good or bad, whether it’s a small step or a big step.

Aaron Powell: I think there’s also another false dilemma happening here, and another interesting thing happening in this argument that, because moderation is maybe more effective in getting policy stuff done in Washington, whether it’s easier to get your foot in the door if you’re [00:32:30] behaving in a moderate fashion, or –

Trevor Burrus: Moderate relatively.

Aaron Powell: Moderate relatively.

Grant Babcock: And I take issue even with that premise, actually.

Aaron Powell: Let’s just accept for the sake of argument that if you are espousing really radical, absolute positions, you’re not going to be listened to, let’s just say.

Grant Babcock: That’s getting the causation backwards, right?

Aaron Powell: No, let me just — We’ll bracket that issue. Because I think that there’s something else going on here, which is … So, the move though, that seems to [00:33:00] be going on, is to say because … So we could say, look, you can be … Natural rights radicalism might be right, correct, the truth, in terms of the way we should look morally at our interaction with other people about the government. But to always rhetorically go to it might be a failure, and so therefore we should moderate our tone and moderate what we’re saying in order to advance [00:33:30] in that direction. That’s an argument.

Trevor Burrus: Which is essentially what I believe.

Aaron Powell: There’s another version of the argument that then takes it retroactively to say, and because of that, natural rights itself must be wrong. That because moderation is tactically better, the underlying motive of natural rights is ontologically incorrect.

Grant Babcock: And that doesn’t follow, from –

Aaron Powell: Right. And I think that where that gets us is you can run into a serious [00:34:00] problem where, so to analogize this to say the abolition debate. You might make an argument, you could say that slavery is absolutely wrong, it’s about as repugnant and immoral an act as any one can engage in. There’s a bright line, there’s no nuance here, end of story. But if we are going to end widespread slavery, simply taking up arms and [00:34:30] killing slave owners might not do it as quickly and effectively as, say, operating at the legislative level and trying to persuade the slave owner.

Grant Babcock: Slave owning — Not to conflate radicalism with advocating violence.

Aaron Powell: Sure. So you might say that’s a more effective way to get it done faster and safer. Therefore you should temper your rhetoric, slightly, when trying to advance this cause –

Grant Babcock: Aaron put scare quotes around [00:35:00] that because by “temper his rhetoric” he means “hide the ball.”

Aaron Powell: But the problem, I think, is when you then — I think what’s going on here, on this natural rights argument, is saying then, something along the lines of, not only what that actually means is that being an absolutist on the issue of slavery itself is wrong. That you should take a moderate position on slavery, and on the rightness and wrongness of slavery, in order to have your rhetoric match your principles. But that seems [00:35:30] to me — there’s no reason to betray your principles simply because you think a different style of rhetoric is going to be more effective.

Grant Babcock: Let’s think about it this way for a minute. Suppose that every libertarian that is more radical than Gary Johnson stops saying anything or advocating anything more radical than Gary Johnson. What is the effect of this? The effect of this is that Gary Johnson is now the most radical libertarian.

Trevor Burrus: That would be bad for libertarianism?

Grant Babcock: I mean, I think so. And I think it would be tactically [00:36:00] bad, because as much as I get upset when more moderate libertarians point to the radical libertarians and say, look, you know –

Aaron Powell: I’m not that guy!

Grant Babcock: I’m not that guy. I may be a little nuts, but I’m not Grant Babcock.

Trevor Burrus: I may have done that before.

Grant Babcock: This idea that we need to … The radicals to just be quiet, and then everything … [00:36:30] All of a sudden, the gates of power will open up to Gary Johnson, and he’ll be able to legalize weed and whatever other incremental gain is. I think that’s sort of wrong‐​headed. It’s not that the radicals being there is preventing that.

It’s true, though, the US political system is set up where decisions are made by moderates [00:37:00] at the margin. That doesn’t mean that becoming more moderate and closer to the margin makes you more influential. If we want to move where the median voter is, you don’t do that by moving yourself closer to the existing median, because then the median is changed.

Aaron Powell: It also seems somewhat implausible to say the reason [00:37:30] that Gary Johnson’s policies are not accepted by the American public or by lawmakers is because there are people more radical than Gary Johnson. I mean, that seems like an odd argument. When in fact, the reason Gary Johnson’s policies are not more popular among American voters and lawmakers is because American voters and lawmakers are not fans of Gary Johnson’s policies.

Grant Babcock: Right. No one says, for example, that [00:38:00] Hilary Clinton is unelectable because the Socialist Workers Party exists.

Trevor Burrus: And that’s an interesting point because the radicalism that libertarians get accused of is something that often irks me, because we’re the kind of people, if we go on a TV show, and you’re advocating a principle, and we talked about this — I think it’s in the Jamie White episode, the politics in New Zealand episode, although it might’ve been conversations outside of that episode. I apologize if you went to look — But we discussed this, he [00:38:30] was talking about consensual, sexual relationships, advocating consensual, sexual relationships among adults in New Zealand. He goes on TV and the first thing the person asks him is incest: defend it.

Grant Babcock: I’d prefer not to!

Trevor Burrus: It’s an interesting way of flipping it to us, and making us defend — And maybe it’s the result of defending a rights perspective, is that people want to take you to the extreme and make you defend it. But it’s weird! You would never [00:39:00] do this, again, he was like, wait. You believe in banning some consensual sexual relationships. And then the person comes on TV and you say, banning making out in a car on Lover’s Lane. Defend that. Making them defend something extreme, although that might’ve been actually illegal at some point, but nevertheless.

Aaron Powell: This goes to — there’s an interesting unidirectionality to radicalism. Grant has affectively defined radicalism as, [00:39:30] the more … There’s a baseline, there’s a status quo, and the further you are from it, the more radical you are. The way that radical gets used here, and the way that radical gets used in Washington, it’s only really something [inaudible 00:39:44] if you move in one direction away from the status quo. So if you are advocating the state not doing things it is currently doing, doing fewer things, ultimately, if you’re an anarchist, doing nothing, then that’s the spectrum that you’re radical. [00:40:00] But if you’re on the other side of it, the banning making out in cars, if you are just as far from the status quo but you’re instead advocating the state do a whole lot more … You might say, well no, you’ve got the economics wrong, or you have this cause you haven’t figured out, but we don’t say, well that’s just kind of silly radicalism to think that we should have single payer healthcare.

Grant Babcock: You’re an insane monster if you think that!

Aaron Powell: It’s just as far from the status quo as saying we should [00:40:30] have markets in healthcare. Only one gives … And I think that’s because there’s this … It still is, just in the Washington culture, and I think this is true even in the broader culture, that there’s something — It’s just to be opposed to the state doing things is simply uncouth.

It’s the same as the really silly thing you see from journalists all the time, [00:41:00] where they’ll say this was the least productive congress in 10 years because they didn’t pass very many laws. The way that we measure the productivity of government is simply by the number of laws it puts on the books. Not the quality of the laws –

Trevor Burrus: And the way we measure the greatness of presidents is by how many people they kill and how many wars they’ve fought.

On the radical point, too, I think it’s important to point out that when you do use [inaudible 00:41:24] conception of natural rights, going back to this question about radicalism, [00:41:30] you can be ahead of the curve, and I always put this out: especially gay marriage, and especially marijuana legalization and drug legalization, that stuff was crazy. For those libertarians that believe that we have to concede to the popular opinion of the middle, and not advocate anything too extreme, if that’s the actual position, although I’m not sure that’s the actual position. I think the actual position is that they think some things are more important rights [00:42:00] than other things. If it’s all about rhetoric, say, in 1985, we shouldn’t have been talking about legalizing marijuana because we’ll look like the crazy people on the block who are advocating something that was totally insane and therefore people aren’t going to listen to us. And now of course it’s a pretty popular position.

Same with gay marriage. One of the big virtues of that is when you’re advocating a natural rights conception of something like consensual sexual relationships, is that we never needed to have the discovery of a gay gene [00:42:30] or the proof that homosexuality doesn’t cause social harm. These kinds of things where people say, we want to legalize homosexuality because we have a study that says it’s not harmful to raise children for gay couples, or we want to legalize because we found a gay gene. We didn’t need a gay gene to say, no, it’s not definitionally a crime because of the theory of natural rights. If you have to find a gay gene to protect consensual sexual activity then there better be a BDSM gene for them to protect their activities. No, that’s not how you think about it. [00:43:00] It’s consensual activity, and is that radical? Absolutely, in 1973, which is when the American Psychological Association took homosexuality off of being a mental illness.

Grant Babcock: Right. We’ve been ragging on this idea that radicalism is bad, and I want to be clear that there is a sense in which that’s true. There’s a kernel of truth, which is that being abrasive and extreme for its [00:43:30] own sake is probably a bad thing. There’s a 1978 essay by Michael Cloud called “The Late Great Libertarian Macho Flash,” and it’s a memoir –

Trevor Burrus: Is this on Lib​er​tar​i​an​ism​.org?

Grant Babcock: It is not, but maybe it should be. It’s a memoir of his experiences tabling, which is a thing that you used to do –

Trevor Burrus: Do you still do that?

Grant Babcock: I did it in undergrad, but it’s [00:44:00] less prevalent now than maybe hanging out on Facebook all the time.

Basically, he would observe, and he included himself in this, people delighting in offending the sensibilities of people less radical than them. Where someone would come up to them, and ask a policy question, and it wouldn’t even be something unfair, like, you think toddlers should have tanks? Which, sure, why not. [00:44:30] Recreational nukes for all.

It would be something like, oh, you think we shouldn’t have social security?

Aaron Powell: Tanks, by the way, are probably far safer in the hands of toddlers than adults.

Grant Babcock: Yeah.

Aaron Powell: Because the toddler’s not going to be able to do much with it, whereas the adult has the ability and malice.

Trevor Burrus: Speaking of toddlers with tanks, Donald Trump does have tanks currently, so.

Grant Babcock: Yeah. And nukes!

Trevor Burrus: And nukes.

Grant Babcock: Whether or not they’re recreational is up in the air.

[00:45:00] They would ask these reasonable questions, like, what about social security, and then they would come out, guns blazing, like, “You want to enslave me by taking my hours of labor through the income tax!”

Trevor Burrus: It’s the extreme posturing.

Grant Babcock: Right. And that sort of thing is entirely self‐​serving. There’s no attempt there, being made at persuasion. There’s no attempt to say, “Here is the best case I can come up with [00:45:30] for why it’s true,” in a level‐​headed, temperate way, that we shouldn’t have social security. It’s done because it makes you feel good, it makes you feel like, I’m this cool outsider who’s better than everyone.

Aaron Powell: I think the core idea here that we keep coming back to, then, is … And it’s, it applies to this natural rights discussion but it’s much broader than that, is [00:46:00] that there’s a difference between — That principle and rhetoric are not the same thing, and that changing rhetoric or saying that the rhetorical style you’re using is not effective, is not good, is caustic, is whatever else, is driving people away, is not itself a critique of your underlying moral principles.

Grant Babcock: Right. And I think that it’s also saying … It’s not just about rhetoric, right? It’s saying that, look, this principle is not conducive to winning, [00:46:30] therefore we should abandon it, as though winning is the goal, and not the principle.

This is one of the things that drives me insane about the whole Trump thing. Where people are saying, look, the Libertarian Party’s never going to win, Rand Paul is never going to win, take whatever, what libertarians should do is find someone who is going to win and support that person. That’s insane to me.

Aaron Powell: Which is exactly the — I mean, [00:47:00] if there’s an ideology to the Trump voters, it’s that. It’s that the only thing that matters is winning in this weirdly defined — You know, I think that, for a lot of Trump voters, that’s the core base. It’s that winning is simply making the people we disagree with mad. That’s it. As long as we’re making them mad, whatever it is, it’s winning divorced from principle, entirely.

Grant Babcock: Right. The whole [00:47:30] reason you want to win is because you have this principle that you think is important.

Aaron Powell: Because you want to enact the principle or move it in the right direction.

Grant Babcock: Right. So if we’re then talking about, oh, libertarians who genuinely think that the welfare state is unconscionable should stop thinking that because it won’t win.

I don’t care.

Trevor Burrus: But that’s not the point, so much. I think that the really interesting thing we’ve hit on in this conversation, which I think it’s sort of implicit in a lot of the writings that [00:48:00] are … Really, it’s been a debate in libertarianism for a long time before it was recently debated on the website. That there are some people who think that some rights are more important than other rights, or they should be moderated in certain ways. So the question about … And I might be one of these people … Free speech rights, consensual sexual activity, … I’m trying to think of what else is listed in your essay here … Different types of freedom of [00:48:30] association, political involvement, things like this … I’m pretty absolutist on those things. But then when it comes to something like, we’re going to take 10% of your income to help the people out who are poor, just like, yes, and that’s okay, or that’s less offensive to me, because I think that these economic rights, these rights of property, are less absolute than I would argue that free speech rights are, for example.

The hard part would be justifying [00:49:00] that because a lot of things that are criticized about absolute rights, as you pointed out in your essay, you say, the absolute rights don’t solve all these questions, what about when you have certain dangers, or things that don’t come up. Free speech has all these problems too. You say we have freedom, we have security, you say, what about trading secrets, or what about giving aid and cover to the enemy, what about passing out draft‐​dodging literature on WWI. We still have to make these decisions, or we can be absolutists and say yes, and you can also yell “fire” in a crowded theater.

Grant Babcock: [00:49:30] Right. There’s a few things going on here, some of which are sort of technical, and I may just spout out some citations, and then leave it at that.

Rights thinking is [inaudible 00:49:48] The idea is, if I have a rights claim, and you have something that is not a rights claim, my claim wins. If I own this styrofoam cup which I am brandishing [00:50:00] in the air, and you do not own it, but you want it for some reason, like maybe, I need that styrofoam cup to live, or something. I don’t know what your story is. If I have a right of ownership over the cup, that trumps your claim.

There’s this question of, can rights conflict? That’s a subject of some debate in the literature on‐​rights. There’s a few ways you [00:50:30] can go. If you have a situation where there’s multiple types of right, then you’re running into these balancing issues. On the other hand, if there’s one overarching thing, then everything else sort of follows from that, or is an instance of. Then, from the beginning, you’re set up not to have these conflicts. If I describe my right to free speech as an ownership right, an ownership [00:51:00] of my body, an ownership over this paper and this pen, an ownership over a printing press, an ownership over a movie theater. Now there’s no longer a question of can my right to speech conflict with your right to some other thing, because it’s all, we’re talking in the same terms.

That’s sort of the path Rothbard takes. The stuff to read on this, about the compossibility is the word that is used, in the literature, the compossibility of [00:51:30] rights. Can two rights exist at the same time without conflicting. Are they possible together; compossible.

Trevor Burrus: Hillel Steiner’s Essay On Rights. Is that what you were going to say?

Grant Babcock: I was going to start there.

Trevor Burrus: That book is very expensive and almost impossible to find. I believe we can put a link up to Tom Palmer, he’s got a summation of it.

Grant Babcock: I was thinking specifically there’s an essay in that book, I think, called “The Structure of [00:52:00] a Set Of Compossible Rights”?

Trevor Burrus: It could be. I’ve been looking for that book recently, and it’s like $600. [crosstalk 00:52:08]

Grant Babcock: If you’re a college student with access to J store, you can get it through there, which is how I got my copy of the essay. The other one is Allen Gewirth, The Basis and Content of Human Rights. And then, Cato’s own Roger Pilon, Ordering Rights Consistently. Roger’s project [00:52:30] in that work is he was studying under Gewirth, and he took Gewrith’s framework, and said, you’re almost there, but the answer you’re looking for is libertarian conception of rights and how they work. And I think he argues it fairly compellingly.

Aaron Powell: I wanted to just make a quick point about radicalism. This could be rights radicalism, it could be libertarian radicalism. It needn’t be libertarian anarchist radicalism, [00:53:00] but anything where you’re pushing, you’re sufficiently far enough from the status quo to be considered radical. I think that the rejection, one of the problems with the rejection of that on its face, which is saying you shouldn’t be a radical. Which underlies a lot of the critiques of the kind of natural rights radicalism that, Grant, that you write about, is that it’s, to some extent, it’s a‐​historical. You go back and you look at the history of [00:53:30] political progress. The changes that made the world a significantly better, freer, happier place. They’re not coming from people who wanted to tinker around the middle. They may have been enacted in some cases by that, but they’re driven by radicals. By people who were thinking way ahead of their time, by people who were making forceful arguments.

You read these texts and they’re the texts that, today, resonate [00:54:00] with us. You read them and you can say, this person, maybe they’re not ultimately as radical as I am, but these people were really onto something, had incredibly important stuff to say, and their ideas changed the world.

You never say, I wish they had just tamped it down a bit. I wish that they hadn’t advocated so much radical stuff. I wish that they had stuck more to tinkering around the margins. You say, instead, no, if anything I wish that they had been louder, and that more [00:54:30] people had listened to them, and that their radicalism had spread faster and further than it had.

So I think that if we see radicalism now as the art of the impossible, you know like why bother with it, we’re only going to tinker around the edges. That’s a‐​historical in the sense that there’s absolutely no reason to believe, none to believe now, that we have reached the pinnacle of government [00:55:00] institutions, that we’ve reached the pinnacle of human achievement, that we’ve reached the pinnacle of human freedom, that the world, as it is now, is the best that we can get. That would be as absurd as thinking that science today has figured everything out and that there will be no more progress.

If we reject the very idea of radicalism, and we reject the people who are making these large claims, we will never … We will halt progress. So maybe the radicals are wrong. Maybe some of them are wrong, or maybe some of them are right. [00:55:30] In retrospect, future generations will look back on us, if we embrace that path, and say, boy, I wish those people had been a little more radical.

Grant Babcock: On that point, Aaron, there’s this tendency that we see sometimes with libertarians, to think that the liberal tradition, the classic liberal tradition, starts with John Locke and ends with Thomas Jefferson and James Madison. That ever since then we’ve just sort of been coasting. That we reached [00:56:00] the full implications of the enlightenment revolution and thinking about man’s place in the political order.

But there are thinkers in the liberal tradition, like Murray Rothbard, like Lysander Spooner, who have sort of carried the torch forward. And I think it’s important that people engage with those thinkers and be challenged by them and argue with them and sort of look towards the horizon rather than back towards the past.

Trevor Burrus: Thanks for listening. [00:56:30] This episode of Free Thoughts was produced by Tess Terrible and Evan Banks. To learn more, visit us at www​.lib​er​tar​i​an​ism​.org.