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In fairness, it’s not hard to understand why anti-statists reject government. They see it committing acts of coercion against its citizens – collecting taxes and imposing on their freedom in other ways without their consent – and they don’t like what they see, so they oppose it. People’s rights and freedom shouldn’t be violated; what could be more straightforward than that? In their ideal world, no one’s rights or freedom would ever be violated, for any reason at all.

Unfortunately though, as appealing as the idea might be in the abstract, it’s not actually possible in practice. I’ve talked about this before in other posts, but I’ll just repeat it here: We often act as if freedom is some purely binary thing that you either have or don’t have; you’re either totally free, or your rights are being infringed (and therefore you’re being oppressed). But in truth, it isn’t possible to have absolute freedom at all times, for the simple reason that people’s freedoms often conflict with each other; it’s often the case that the only way to have a particular right or freedom is by violating some other right or freedom. As we discussed earlier with negative externalities, one person’s right to use their property as they see fit (say, by building a factory) might conflict with another person’s right to life and health (if the pollution from the factory would damage their lungs). Or to take another example, a newspaper’s right to freely publish news stories might conflict with their subjects’ right to privacy (if the newspaper published details of those people’s personal lives). In order to protect people’s rights in such situations, other people’s rights sometimes have to be impinged upon. And sure, this is conceptually unsatisfying; it feels a lot less compelling to say that everything is a tradeoff and that we always have to weigh various interests against each other than to simply have a hard-and-fast rule like “no coercion” that can be followed at all times without exception. But reality is rarely so simple and clear-cut; so if we want to navigate it successfully, we have to deal with it as it actually is. As commenter NoIAmNumber4 writes:

We have been trained to seek out flawless, mathematically complete solutions that are all upside and no downside. The plethora of police shows is an example of this, but so is politics – vote for me and all your problems will be magically solved.

The problem is that there is very rarely any such thing as a perfect solution, only tradeoffs of moral priorities.

[…]

The best we can do is decide what values we think are more paramount than others and accept the ethical tradeoff we are making. “Sometimes in the defense of liberty and freedom, people die in terrorist attacks” is a good example.

But this kind of nuanced thinking is difficult, painful and doesn’t fit into a 5 second sound bite – and requires considered thought to accept or defend. Since we are never taught that, especially in school, it is not common.

Our world is getting more and more complex. Decades ago we could have gotten away with avoiding the responsibility. The more complex the world gets, the less true that becomes.

And Alexander elaborates:

[Q]: Freedom is incredibly important to human happiness, a precondition for human virtue, and a value almost everyone holds dear. People who have it die to protect it, and people who don’t have it cross oceans or lead revolutions in order to gain it. But government policies all infringe upon freedom. How can you possibly support this?

Freedom is one good among many, albeit an especially important one.

In addition to freedom, we value things like happiness, health, prosperity, friends, family, love, knowledge, art, and justice. Sometimes we have to trade off one of these goods against another. For example, a witness who has seen her brother commit a crime may have to decide between family and justice when deciding whether to testify. A student who likes both music and biology may have to decide between art and knowledge when choosing a career. A food-lover who becomes overweight may have to decide between happiness and health when deciding whether to start a diet.

People sometimes act as if there is some hierarchy to these goods, such that Good A always trumps Good B. But in practice people don’t act this way. For example, someone might say “Friendship is worth more than any amount of money to me.” But she might continue working a job to gain money, instead of quitting in order to spend more time with her friends. And if you offered her $10 million to miss a friend’s birthday party, it’s a rare person indeed who would say no.

In reality, people value these goods the same way they value every good in a market economy: in comparison with other goods. If you get the option to spend more time with your friends at the cost of some amount of money, you’ll either take it or leave it. We can then work backward from your choice to determine how much you really value friendship relative to money. Just as we can learn how much you value steel by learning how many tons of steel we can trade for how many barrels of oil, how many heads of cabbages, or (most commonly) how many dollars, so we can learn how much you value friendship by seeing when you prefer it to opportunities to make money, or see great works of art, or stay healthy, or become famous.

Freedom is a good much like these other goods. Because it is so important to human happiness and virtue, we can expect people to value it very highly.

But they do not value it infinitely highly. Anyone who valued freedom from government regulation infinitely highly would move to whichever state has the most lax regulations (Montana? New Hampshire?), or go live on a platform in the middle of the ocean where there is no government, or donate literally all their money to libertarian charities or candidates on the tiny chance that it would effect a change.

Most people do not do so, and we understand why. People do not move to Montana because they value aspects of their life in non-Montana places – like their friends and families and nice high paying jobs and not getting eaten by bears – more than they value the small amount of extra freedom they could gain in Montana. Most people do not live on a platform in the middle of the ocean because they value aspects of living on land – like being around other people and being safe – more than they value the rather large amount of extra freedom the platform would give them. And most people do not donate literally all their money to libertarian charities because they like having money for other things.

So we value freedom a finite amount. There are trade-offs of a certain amount of freedom for a certain amount of other goods that we already accept. It may be that there are other such trade-offs we would also accept, if we were offered them.

For example, suppose the government is considering a regulation to ban dumping mercury into the local river. This is a trade-off: I lose a certain amount of freedom in exchange for a certain amount of health. In particular, I lose the freedom to dump mercury into the river in exchange for the health benefits of not drinking poisoned water.

But I don’t really care that much about the freedom to dump mercury into the river, and I care a lot about the health benefits of not drinking poisoned water. So this seems like a pretty good trade-off.

And this generalizes to an answer to the original question. I completely agree freedom is an extremely important good, maybe the most important. I don’t agree it’s an infinitely important good, so I’m willing to consider trade-offs that sacrifice a small amount of freedom for a large amount of something else I consider valuable. Even the simplest laws, like laws against stealing, are of this nature (I trade my “freedom” to steal, which I don’t care much about, in exchange for all the advantages of an economic system based on private property).

The arguments above are all attempts to show that some of the trade-offs proposed in modern politics are worthwhile: they give us enough other goods to justify losing a relatively insignificant “freedom” like the freedom to dump mercury into the river.

[Q]: But didn’t Benjamin Franklin say that those who would trade freedom for security deserve neither?

No, he said that those who would trade essential liberty for temporary security deserved neither. Dumping mercury into the river hardly seems like essential liberty. And when Franklin was at the Constitutional Convention he agreed to replace the minimal government of the Articles of Confederation with a much stronger centralized government just like everyone else.

The fact that our rights and freedoms aren’t absolute, and have to be balanced against each other when they come into conflict, means that we can’t just rely on simplistic rules like the Non-Aggression Principle to help us weigh all the relevant tradeoffs – because such categorical rules fail to acknowledge that such tradeoffs can even exist at all. By their logic, the only factor that ever needs to be accounted for is whether the government is violating someone’s consent, end of story. But of course, this isn’t always the only factor; other factors come into play all the time, and sometimes they conflict with each other. When they do, then, we can’t expect to be able to automatically resolve every difficulty by simply saying “Don’t infringe people’s rights” and not going any further than that – because as Alexander explains, this response alone doesn’t cut it:

When push comes to shove the Non-Aggression Principle just isn’t strong enough to solve hard problems. It usually results in a bunch of people claiming conflicting rights and judges just having to go with whatever seems intuitively best to them.

For example, a person has the right to live where he or she wants, because he or she has “a right to personal self-determination”. Unless that person is a child, in which case the child has to live where his or her parents say, because…um…the parents have “a right to their child” that trumps the child’s “right to personal self-determination”. But what if the parents are evil and abusive and lock the child in a fetid closet with no food for two weeks? Then maybe the authorities can take the child away because…um…the child’s “right to decent conditions” trumps the parents’ “right to their child” even though the latter trumps the child’s “right to personal self-determination”? Or maybe they can’t, because there shouldn’t even be authorities of that sort? Hard to tell.

Another example. I can build an ugly shed on my property, because I have a “right to control my property”, even though the sight of the shed leaves my property and irritates my neighbor; my neighbor has no “right not to be irritated”. Maybe I can build a ten million decibel noise-making machine on my property, but maybe not, because the noise will leave my property and disturbs neighbor; my “right to control my property” might or might not trump my neighbor’s “right not to be disturbed”, even though disturbed and irritated are synonyms. I definitely can’t detonate a nuclear warhead on my property, because the blast wave will leave my property and incinerates my neighbor, and my neighbor apparently does have a “right not to be incinerated”.

If you’ve ever seen people working within our current moral system trying to solve issues like these, you quickly realize that not only are they making it up as they go along based on a series of ad hoc rules, but they’re so used to doing so that they no longer realize that this is undesirable or a shoddy way to handle ethics.

Nor are these kinds of situations particularly rare or unusual. As Holmes and Sunstein illustrate, pretty much anything involving property rights can give rise to these kinds of dilemmas involving conflicting interests that have to be weighed against each other:

Does the accidental finder of goods have a legal right to judicial protection? Does a purchaser acquire an ownership right to property bought for value and in good faith from a thief? What rights against a present occupant belong to the owner of a future interest in real property? How many years of wrongful possession destroy the title of the original owner? Can an illegitimate child inherit from its natural parents by intestate succession? What happens if one joint owner sells his portion of jointly owned property? Can I, without notice, cut off branches from my neighbor’s tree if they overhang my land? Do I have a right to pile a mountain of garbage in my front yard? Can I build an electrical fence around my land with voltage high enough to kill trespassers? Can I erect a building that cuts off my neighbor’s vista? Can I advertise the free viewing of pornographic videos in my front window? Can I stick posters on my neighbor’s fence? Under what conditions is copyright assignable? How much do which creditors collect in case of bankruptcy? What rights do pawnbrokers have over goods left to them upon pledge?

Milton Friedman sums up, bringing back one more example from earlier for good measure:

The notion of property, as it has developed over centuries and as it is embodied in our legal codes, has become so much a part of us that we tend to take it for granted, and fail to recognize the extent to which just what constitutes property and what rights the ownership of property confers are complex social creations rather than self-evident propositions. Does my having title to land, for example, and my freedom to use my property as I wish, permit me to deny to someone else the right to fly over my land in his airplane? Or does his right to use his airplane take precedence? Or does this depend on how high he flies? Or how much noise he makes? Does voluntary exchange require that he pay me for the privilege of flying over my land? Or that I must pay him to refrain from flying over it? The mere mention of royalties, copyrights, patents; shares of stock in corporations; riparian rights, and the like, may perhaps emphasize the role of generally accepted social rules in the very definition of property. It may suggest also that, in many cases, the existence of a well specified and generally accepted definition of property is far more important than just what the definition is.

Again, in these kinds of situations, simply saying “Don’t violate anyone’s rights” is unhelpful, because it’s unclear what that would even entail, and where each party’s rights should begin and end in the first place. Anti-statists might insist that it’s not actually that complicated at all, and that as long as we just get government out of the picture, the rest will sort itself out; but if we actually care about preserving people’s rights, that just doesn’t seem like a sufficient answer, as Paul Kienitz notes:

When absolutist beliefs move from the speech and the pamphlet to the legislatures and the courts, and try to cope with real life, they will inevitably run sooner or later into paradoxes, where the overly simplified principles end up working against their own supposed purposes. When this happens, the choice comes down to either waffling on principle for the sake of having things work out reasonably in practice (which undermines the presumption of moral necessity behind the new system and invites any amount of further twiddling), or sticking by the rules regardless of the consequences, even though somebody gets fucked over. The really dedicated man of principle will, of course, choose the latter. But not with my support.

For one example of how a paradox can arise from Libertarian principles as they have been explained to me so far, consider whether a citizen has a right to travel. I think most people would agree that to be held prisoner in one place is a violation probably second only to that of a physical attack on the body, more fundamental than a theft of property is. (Our penal system reserves imprisonment for more drastic crimes than the ones it punishes by seizing property.) I think this means that most of us would agree that the right to get up and go somewhere else is fundamental. Now, Libertarians are all for repealing laws that restrict travel, such as immigration quotas. But they also generally favor the privatization of all public roads, so that instead of being paid for by taxes, they would be paid by fees or subscriptions of those who use them. For roads to work on a private basis without taxes, it is of course necessary that the property rights of road owners should not be watered down; any requirement that a road owner has to allow travel by everyone greatly undermines both the financial attractiveness of road maintenance and the true elimination of centralized government coercion. So the person who owns the road outside your front door has every right to refuse to allow you to step onto it, if you don’t have the toll fee or if he just doesn’t like your kind of person. And it isn’t just outside your front door, but wherever you go; you can hardly take a step in any direction unless you first ensure that you have an invitation or permission of the person controlling the land under your feet. We already have laws enough that make it a crime for a destitute person to lie down and sleep. Now the proposal is to make it a crime also for them to stand up and walk around, putting a hike along the shoulder of the road on the same footing with a hike through your back yard.

Libertarianism and other schemes involving maximum privatization are a completely untried experiment in seeing how human beings could get along with no public space. There has never been a society, to the best of my knowledge, that has found any way to live as a community without some kind of common public space. I would predict that the need for it is so great that eventually something must give way: either we would have some landowners throwing up their hands and ceding their holdings to free public use just because somebody’s got to do it, or people will get so uncomfortable with restrictions that there would be civil disobedience of private property laws in areas that people had the strongest public-land feeling about. I don’t think people can really manage without some amount of public space, especially not if they take the right of travel seriously.

It might well be that some public-minded landowners would contribute their land to be free public space, but then the cost of this falls on just one person. There’s a tremendous incentive to hold back and wait for someone else to blink first. How many other amenities that we take for granted would be hard to find if each one required that some individual chooses to sacrifice the profit he could make?

[…]

Another paradox arises when you take the right to bear arms to an absolutist extreme. According to Libertarian thought, citizens are not truly free from the threat of tyranny until they are privately armed at a level that can match the government. These days, that doesn’t just mean machine guns and grenades, it means fighter jets and nuclear missiles. With any lesser armament, a tyranny can always end the fight in its favor, so if you truly don’t compromise, you can’t stop short of this. When nobody has the right to blow your entire city to Hell but everybody has the right to be ready to do so (if they can afford it), and your only recourse if somebody decides to let fly is to either hire a private anti-missile battalion and pray, or just sue the attacker after you’re dead… what you’ve got isn’t freedom, it’s a reign of terror. A cold war on every block? Once is enough, include me out. At least when weapons of mass destruction are handled through a democratic government, you can hold them accountable, limit their construction, and put rules on their use before people get slaughtered. Though a government monopoly on hydrogen bombs is hardly to the liking of those uncomfortable with the power it gives to the evil State, it’s probably the reason we’re still alive. There is no man less free than a dead guy.

There is one way around these kinds of paradoxes: people have to be willing to compromise on hard-and-fast rules of dogma, and cease treating them as moral absolutes. In the case of guns, for instance, we must recognize that somewhere there is a cutoff level beyond which it is suicide to have most of society decide one way, and a minority decide the other way. We made it through the cold war alive because we had the capacity to make one decision about whether to launch or not to launch, without fearing (much) that some faction would decide otherwise and take matters into its own hands. We can argue later about how bad a weapon should be before we either ban it or restrict it to collective use instead of individual use, but first we had better acknowledge that some division point must exist. Until the Libertarian movement recognizes the need to permit and practice such compromises, and qualifies their morally righteous stance with some admission that the rules they propose will need to be made less pure and exacting in practice, I cannot support them.

To be sure, nobody likes it when they’re the ones who have to make the compromise. Nobody wants to be ones who have to forego their freedom of action or give up their property by paying taxes, especially if those taxes are then used to fund laws and regulations that (however necessary they might be on the broader scale) feel like further impositions still. As Wheelan puts it:

To protect the neighborhood [via e.g. a fire department], we may have to invest public resources in saving the house of the guy who was smoking in bed—who may or may not learn his lesson. Or we may have to impose regulations on homeowners before there is a fire (e.g., sprinklers and smoke detectors) to protect the neighborhood. Both are unpopular. No one likes regulations before a crisis, when they seem intrusive and expensive. And no one likes bailing out bad actors once a crisis unfolds.

But as annoying as it can sometimes feel to have to pay taxes and comply with laws and regulations, the fact that we make such concessions is what allows us to have a functional society with things like rights and property in the first place. It may be a cliché to say that “freedom isn’t free” – but it also happens to be true, in the most literal sense. As Holmes and Sunstein point out:

Rights cost money. Rights cannot be protected or enforced without public funding and support.

[…]

Individuals enjoy rights, in a legal as opposed to a moral sense, only if the wrongs they suffer are fairly and predictably redressed by their government. This simple point goes a long way toward disclosing the inadequacy of the negative rights/positive rights distinction [i.e. the distinction between the right to be left alone by others on the one hand, and the right to some positive claim over a particular resource or service (like education or healthcare or legal protection) on the other]. What it shows is that all legally enforced rights are necessarily positive rights.

Rights are costly because remedies are costly. Enforcement is expensive, especially uniform and fair enforcement; and legal rights are hollow to the extent that they remain unenforced. Formulated differently, almost every right implies a correlative duty, and duties are taken seriously only when dereliction is punished by the public power drawing on the public purse. There are no legally enforceable rights in the absence of legally enforceable duties, which is why law can be permissive only by being simultaneously obligatory. That is to say, personal liberty cannot be secured merely by limiting government interference with freedom of action and association. No right is simply a right to be left alone by public officials. All rights are claims to an affirmative governmental response. All rights, descriptively speaking, amount to entitlements defined and safeguarded by law. A cease-and-desist order handed down by a judge whose injunctions are regularly obeyed is a good example of government “intrusion” for the sake of individual liberty. But government is involved at an even more fundamental level when legislatures and courts define the rights that such judges protect. Every thou-shalt-not, to whomever it is addressed, implies both an affirmative grant of right by the state and a legitimate request for assistance addressed to an agent of the state.

If rights were merely immunities from public interference, the highest virtue of government (so far as the exercise of rights was concerned) would be paralysis or disability. But a disabled state cannot protect personal liberties, even those that seem wholly “negative,” such as the right against being tortured by police officers and prison guards. A state that cannot arrange prompt visits to jails and prisons by taxpayer-salaried doctors, prepared to submit credible evidence at trial, cannot effectively protect the incarcerated against tortures and beatings. All rights are costly because all rights presuppose taxpayer funding of effective supervisory machinery for monitoring and enforcement.

The most familiar government monitors of wrongs and enforcers of rights are the courts themselves. Indeed, the notion that rights are basically “walls against the state” often rests upon the confused belief that the judiciary is not a branch of government at all, that judges (who exercise jurisdiction over police officers, executive agencies, legislatures, and other judges) are not civil servants living off government salaries. But American courts are “ordained and established” by government; they are part and parcel of the state. Judicial accessibility and openness to appeal are crowning achievements of liberal state-building. And their operating expenses are paid by tax revenues funneled successfully to the court and its officers; the judiciary on its own is helpless to extract those revenues. Federal judges in the United States have lifetime tenure, and they are quite free from the supervisory authority of the public prosecutor. But no well-functioning judiciary is financially independent. No court system can operate in a budgetary vacuum. No court can function without receiving regular injections of taxpayers’ dollars to finance its efforts to discipline public or private violators of rights, and when those dollars are not forthcoming, rights cannot be vindicated. To the extent that rights enforcement depends upon judicial vigilance, rights cost, at a minimum, whatever it costs to recruit, train, supply, pay, and (in turn) monitor the judicial custodians of our basic rights.

Fortunately, as we’ve been highlighting throughout this discussion, the upside of all this is that having a government capable of protecting and assuring citizens’ rights is what allows those citizens to become prosperous enough to have the money to pay taxes in the first place – so in that sense, government-protected rights largely pay for themselves. Holmes and Sustein continue:

Some rights, although costly up front, increase taxable social wealth to such an extent that they can reasonably be considered self-financing. The right to private property is an obvious example. The right to education is another. Even protecting women from domestic violence may be viewed in this way, if it helps bring once-battered wives back into the productive workforce. Public investment in the protection of such rights helps swell the tax base upon which active rights protection, in other areas as well, depends.

But irrespective of how much wealth our rights and freedoms might produce, the point here is just that in order for them to exist in the first place, government enforcement mechanisms must also exist, and in order for government enforcement mechanisms to exist, they must receive funding from the public, in the form of taxes. Holmes and Sunstein conclude:

American law protects the property rights of owners not by leaving them alone but by coercively excluding nonowners (say, the homeless) who might otherwise be sorely tempted to trespass. Every creditor has a right to demand that the debtor repay his debt; in practice, this means that the creditor can instigate a two-party judicial procedure against a defaulting debtor in which a delict is ascertained and a sanction imposed. And he can also count on the sheriff to “levy upon” the personal property of the debtor, to sell it, and then to pay the delinquent’s debts from the proceeds. The property rights of creditors, like the property rights of landowners, would be empty words without such positive actions by publicly salaried officials.

The financing of basic rights through tax revenues helps us see clearly that rights are public goods: taxpayer-funded and government-managed social services designed to improve collective and individual well-being. All rights are positive rights.

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