The classical formulation of libertarianism seems to be incompatible with the requirements of political legitimacy. Some libertarians have endorsed this result, denying that the state is legitimate. This paper argues, however, that the particular nature of that incompatibility represents a problem for the classical formulation of libertarianism. It is argued that acknowledging the existence of a particular minimal form of positive rights might overcome the problem in question. It is further argued that acknowledgment of such positive rights would seem to (...) provide a more adequate normative ground for making sense of some central libertarian insights and concerns. (shrink)

Standard rationales for the illegality of markets in votes are based on concerns over the undue influence of wealth and the erosion of civic responsibility that would result from the commodification of votes. I present an alternative rationale based on how the mere alienability of votes alters the strategic setting faced by political actors. The inalienability of votes ensure the strict secrecy of voting, that is, the inability of voters to communicate credibly to others the content of their votes. In (...) doing so, it diminishes the credibility of all political actors’ clientelistic promises to reciprocate. By drastically reducing the transaction costs of vote exchanges, the legality of markets in votes would thus exacerbate the detrimental effects of political clientelism on the quality of democratic governments. (shrink)

This article formulates a deterrence theory of punishment based on Lockean premises. Following authors such as Warren Quinn and Daniel Farrell, it is claimed that a justification for the right to punish must be built upon the recognition of the importance of a right to issue retaliatory threats. Contrary to those authors, however, the articulation of such recognition is made within a Lockean theory of individual rights. This allows us to appreciate the specific role deterrence has in a plausible conception (...) of punishment, and thus address certain objections that have been formulated recently, especially by David Boonin. (shrink)

Could we plausibly believe in the fundamental tenets of classical liberalism and, at the same time, support the state’s raising of immigration barriers? The thesis of this paper is that if we accept the main tenets of classical liberalism as essentially correct, we should regard immigration barriers as essentially illegitimate. Considered under ideal conditions, immigration barriers constitute an unjustified infringement on individuals’ ownership rights, since it is difficult to identify a purpose that such an infringement could have that would outweigh (...) the disadvantages created by eliminating important competitive pressures on governments. Considered under nonideal conditions, the problem is, roughly, that immigration barriers cannot be seen as the choice of a lesser evil in the face of either an expected extension of the redistributive state or an expected threat on liberal institutions. On the contrary, since they relax the constraints faced by governments, immigration barriers should be seen as a major contributor in creating the conditions for the perpetuation of the sort of political arrangements that classical liberals resist. If individual sovereignty is to be protected, the sovereignty of the state over a particular territory should not include a prerogative to determine who is to inhabit it. (shrink)

In “Why Libertarians Should Reject Positive Rights,” Joshua Katz offers a critical response to the argument developed by Nicolás Maloberti in “Libertarianism and the Possibility of the Legitimate State.” In this rejoinder, Maloberti argues that Katz’s response fails on two accounts. First, it fails to grasp the nature of the problem his article was ultimately concerned with. Second, it fails to present a solid case for the rejection of the type of positive right that it was argued libertarians should endorse (...) as a solution to that problem. (shrink)

This article focuses on the following three novel and original philosophical approaches to classical liberalism: Den Uyl and Rasmussen’s perfectionist argument from meta-norms, Gaus’s justificatory model, and Kukathas’s conscience-based theory of authority. None of these three approaches are utilitarian or consequentialist in character. Neither do they appeal to the notion of a rational bargain as it is typical within contractarianism. Furthermore, each of these theory rejects the idea that classical liberalism should be grounded on considerations of interpersonal justice such as (...) those that are central to the Lockean tradition. It is argued that these three theories, despite their many attractive features, fail to articulate in a convincing manner some central classical liberal concerns. (shrink)

I argue that Tomasi’s most fundamental “bleeding heart libertarian” insights are not adequately served by Rawls’s lexical framework and his idealized theory of institutional choice. Perhaps paradoxically, using Rawls’s lexical framework to articulate Tomasi’s declared concerns for both economic liberty and “social justice” gives the latter concern very little weight. For that reason, Tomasi’s own objections against classical liberalism would ultimately apply to his own positive contribution as well: the satisfaction of a distributional adequacy condition is secured on purely contingent (...) grounds. Furthermore, Tomasi’s endorsement of Rawls’ conception of the first tasks of political philosophy might render his case for laissez-faire forms of capitalism immaterial. This is because Rawls fails to appreciate the very narrow theoretical relevance of identifying institutional arrangements purely as a matter of “ideal theory”. Feasibility concerns have always been an important element in the classical liberal critique of interventionist and redistributive politics. Yet they have invariably failed to be featured, in any theoretically prominent way, within the most philosophically oriented defenses of the classical liberal order. A formulation of bleeding heart libertarianism along Rawlsian lines would be equally wanting in this regard. (shrink)

One way in which liberal theories have argued for the legitimacy of the state is by means of a principle of implicit consent. Since Hume, critics have argued that the price of dissent would be too high for such a strategy to be successful. Some theorists have replied that the high price involved in not agreeing to do something does not need to be a defeating condition of consenting. Other theorists have proposed institutional reforms which will diminish the costs of (...) dissenting. In this paper, it is argued that the failure of an implicit consent approach is more fundamental than what this debate seems to suggest. (shrink)

Robert Nozick famously argued that acknowledging that individuals have certain fundamental natural or prepolitical rights to their lives and property does not preclude the legitimacy of the state, as the individualist anarchist would claim. The reason is that “a state would arise from anarchy. . . even though no one intended this or tried to bring it about, by a process which need not violate anyone’s rights”. Many doubts have been raised about some of the claims that Nozick needs to (...) make to reach this conclusion. Doubts have also been raised about the normative relevance of that conclusion for the moral evaluation of states that did not arise in such a way. But even if all these doubts were unfounded, Nozick’s argument falls short of justifying what, according to the anarchist challenge, is in need of justification. This shortcoming is significant because it reminds us about the true nature of the problem that the state poses for any philosophical outlook grounded on a theory of natural, libertarian rights. (shrink)