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Individual Sovereignty and Political Legitimacy

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Individual Sovereignty and Political Legitimacy INDIVIDUAL SOVEREIGNTY AND POLITICAL LEGITIMACY Nicolás Maloberti A Dissertation Submitted to the Graduate College of Bowling Green State University in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY August 2007 Committee: Fred Miller Jr., Advisor Albert W. Dzur Graduate Faculty Representative David Sobel Steven Wall © 2007 Nicolás Maloberti All Rights Reserved iii ABSTRACT Fred Miller Jr., Advisor Natural rights liberalism configures individuals’ areas of moral freedom in terms of both ownership and enforcement rights. These rights are taken to entail not only liberties or permissions to act in particular ways, but also obligations on the part of others not to interfere with such liberties. The state, however, threatens its subjects with the infliction of harm should they decide to exercise the full range of their enforcement rights. The state also taxes its subjects in order to fund the costs involved in the collective provision of enforcement services. Thus, within natural rights liberalism, the problem of political legitimacy amounts to the problem of explaining why the state’s characteristic infringements upon individuals’ rights could be morally permissible. The theoretical challenge lies in the fact that, according to natural rights liberalism, the areas of moral freedom defined by individuals’ natural rights are taken to have especially stringent borders. Those borders are immune, in particular, to consequentialist and paternalistic rationales of infringement. This dissertation argues that this challenge is best met by an appeal to individuals’ “samaritan” rights. The holders of these particular rights are individuals who, by no fault of their own, face a perilous situation, and they hold their rights against those who have the capacity to place them out of peril at a reasonable cost. Christopher Wellman has already noted the implications of individuals’ samaritan rights for the problem of political legitimacy. The purpose of this dissertation is to further develop Wellman’s insights, and argue that the resulting moral framework is a promising iv approach for dealing with the problem of political legitimacy, particularly within the tradition of natural rights liberalism. v ACKNOWLEDGMENTS I would like to thank the members of my committee for their guidance and encouragement. My advisor, Fred Miller, Jr., deserves my deepest thanks. I would like to thank the Earhart Foundation for supporting two years of my graduate studies. I am also grateful to all the participants in Professor Miller’s dissertation group for their valuable comments during the last couple of years. Finally, I would like to thank my wife, Katherine, for her immense generosity in reading and commenting on several drafts, and for the many other ways in which she has helped me in getting through this process. vi TABLE OF CONTENTS Page INTRODUCTION......... ............................................................................................................. 1 CHAPTER 1. INDIVIDUAL RIGHTS: GUARANTORS OF SOVEREIGNTY............................. 13 1.1 Escape from Moral Anarchy................................................................................... 14 1.2 Ownership Rights................................................................................................... 25 1.3 Enforcement Rights ............................................................................................... 35 1.4 Conclusion ............................................................................................................. 47 CHAPTER 2. THE PROBLEM OF POLITICAL LEGITIMACY.................................................. 49 2.1 Political Legitimacy and Political Obligation ........................................................... 50 2.2 The State: Infringer of Rights ................................................................................ 58 2.3 Conceptual Matters................................................................................................ 67 2.4 Conclusion ............................................................................................................. 78 CHAPTER 3. THE LIMITS OF POLITICAL PREFERENTIALISM............................................ 80 3.1 Implicit Consent and the Moral Consequences of Choice...................................... 81 3.2 In Search of the “Agreeable” State......................................................................... 91 3.3 The Unfairness of Free Riding ............................................................................... 103 3.4 Conclusion ............................................................................................................. 112 CHAPTER 4. SAMARITAN RIGHTS........................................................................................ 114 4.1 From Samaritan Duties to Samaritan Rights.......................................................... 116 4.2 Circumstances of Samaritanism ........................................................................... 122 4.3 The Formal Adequacy of Samaritan Rights ........................................................... 128 4.4 Could We Have Samaritan Rights against Sovereign Persons?............................ 135 4.5 Conclusion ............................................................................................................. 144 CHAPTER 5. BEYOND PREFERENTIALISM: THE SAMARITAN APPROACH...................... 146 5.1 Samaritan Rights as Basis of Political Legitimacy.................................................. 146 5.2 Responsiveness without Consequentialism .......................................................... 158 vii 5.3 Two Sorts of Objections......................................................................................... 164 5.4 Conclusion ............................................................................................................. 171 CHAPTER 6. THE MARKET FOR GOVERNANCE ................................................................. 173 6.1 Anarchy: Failure of Deterrence? ............................................................................ 174 6.2 The Hobbesian Worry ............................................................................................ 183 6.3 The Lockean Worry................................................................................................ 196 6.4 Conclusion ............................................................................................................. 209 CHAPTER 7. THE PROBLEM OF MONOPOLY...................................................................... 212 7.1 Protection and Monopoly ....................................................................................... 213 7.2 Checks and Balances ............................................................................................ 221 7.3 The State: Agent or Principal? ............................................................................... 228 7.4 Conclusion ............................................................................................................. 233 CONCLUSION ............ ............................................................................................................. 236 BIBLIOGRAPHY ......... ............................................................................................................. 241 1 INTRODUCTION The defining feature of liberalism is the idea of limited government, that is, the idea that there is a well-defined area of private concern within which the government should not interfere. But there are two clearly distinctive strands of liberalism. One establishes the limits of the state on the greater aggregation of individual benefits that is supposed to follow from such a limitation. The other one establishes those limits on the moral respect that individual persons allegedly deserve. It is for this latter strand of liberalism, and in particular, for an understanding of it grounded on the notion of individuals’ natural rights, that the very possibility of a legitimate state would seem to pose an explanatory challenge. If individuals have natural rights to their persons and property, rights which are taken to constrain the legitimate activities of government, should they not be free to decide whether their rights are protected, if at all, by somebody else rather than by the state? How could it be morally permissible to threaten an individual with the infliction of harm should he decide not to have his own rights secured by the state? This dissertation argues that the challenge the legitimate state poses for natural rights liberalism is best met by an appeal to individuals’ “samaritan” rights. The holders of these particular rights are individuals who, by no fault of their own, face a perilous situation, and they hold their rights against those who have the capacity to place them out of peril at a reasonable cost. We tend to recognize the existence of samaritan rights under certain circumstances of an extraordinary type. Only recently, Christopher Wellman has noted the implications of individuals’ samaritan rights for the problem of political legitimacy.1 The 1 See Christopher Heath Wellman, “Liberalism, Political Legitimacy, and Samaritanism,” Philosophy & Public Affairs 25 (1996): 211-237; “Toward a Liberal Theory of Political Obligation,” Ethics 111 (2001): 2 purpose of this dissertation is to further develop Wellman’s insights, and argue that the resulting moral framework is a promising approach for dealing
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