Part II: Do We Even Need Government?

(see here for Part I)

Radical libertarians, so-called anarcho-capitalists, argue that government, defined as an agency or institution with a coercive monopoly on deciding when force is legitimate in a given territorial area, is not necessary to protect human rights. As a subset of libertarians, an-caps consider human rights to include life, liberty, and the right to acquire and transfer property.

Most libertarian anarchists favor the establishment of private competing rights-protection agencies (hereinafter RPAs) to replace the current coercive government monopoly on such services. No RPA would have a coercive monopoly in a given geographic area, thus distinguishing it from a government. The idea is that individuals would subscribe to their preferred RPA, with market mechanisms providing checks and balances on concentrations of power.

Thus envisioned, an anarcho-capitalist society would be a contractarian one. By this I mean that, since rights protection services are to be provided by private competing agencies, you will only get as much rights protection as you contract for. There would be no government to ensure that every person gets a certain amount of rights protection.

In fact, this seems to show that the much-touted (by libertarians) distinction between so-called negative and positive rights is not as clear-cut as it first appears. This is because if we think of “rights-protection” as an economic good (which it surely is), there are costs to providing protection of “negative” rights, just as much as “positive” ones. Someone has to provide the protection of these rights. The protection of a “negative” right to liberty has a cost just as much as the enforcement of a “positive” right to education. In other words, asserting a right doesn’t mean much if you can’t protect that right, either by defending it yourself, or contracting with someone else to protect it.

But if this is the case, then we face an urgent question. How, in an anarcho-capitalist world, are the rights of those who are unable to enter into contractual relationships to be protected? I have in mind here not only children, but also other “marginal cases” such as the severely retarded, the mentally ill, the comatose and others who are utterly dependent on others for their care (I won’t even mention even more controversial marginal cases such as animals or the unborn, except to say that the same principle would apply to them as well). In short, the weak, the helpless, and the infirm would lack moral standing.

The problem, it seems to me, is that with no agency to assert unilateral rights-protecting authority (i.e. a State) over anyone unable to contract for such a service themselves, there is no way of ensuring that their purported rights will be protected in an anarcho-capitalist social order. While the State is, at least officially, committed to protecting basic rights, what incentive would a private RPA have for intervening to protect the rights of someone with whom it had no contractual relationship?

If this is right, then for all our talk of rights, we are left with the situation of the weak and helpless essentially unchanged. Since they can’t contract for rights-protection on their own behalf, they would remain, for all intents and purposes, under the control, and at the mercy of, other people. They would be, in essence, “owned” by those who were able to exercise power over them.

I see no way to avoid the conclusion that crucial rights will go unprotected – as a matter of policy – in an anarcho-capitalist social order. Because individuals who can’t contract for rights-protection would not be guaranteed to receive rights-protection in an anarchist society (by definition). So, a monopoly agency that provides a minimum amount of rights-protection to everyone in the moral community, even if they cannot contract for such rights-protection themselves, would be necessary. That is, we should be, at the very least, libertarian minarchists (i.e. proponents of a minimal state committed to the protection of basic rights of life, liberty and property).