Libertarians on Citizens and Self-Defense: More with Dennis Prager

Richard Epstein

I am grateful to Dennis Prager for answering my last post on his views of gay marriage. 

On the religious front, I think that it is dangerous to draw much inference from the credo, “In God we trust." It appears on American coinage and attracts much support from many people, but it runs this risk: There are many Americans who care much about what happens in this country who are not Theists, or even Deists. That choice should not be sufficient to silence their voices on matters of public debate or concern. The vision of a United States has to be inclusive and that can only happen if all citizens of the United States have equal rights under law—a proposition that both Prager and I endorse.

It is useful to remember the libertarian origins of that idea. The traditional law of persons was quite different and tolerated the emergence of a system of slavery. It also allowed for the inferior political and social status of women on issues from the vote (remember the suffragettes) to the ability of women to make contracts, own property, or testify in court without the approval of their husbands. That understanding was captured in the earlier, and now quaint phrase, “women’s libertarian,” which has been replaced by the more aggressive but less accurate term of "feminism," which is just as easily read to defend legally mandated preferences for women as equal rights under law. There is no fatal libertarian weakness on this issue.

In his reply, Prager introduces yet another element of what he sees as libertarian thought; namely, the appeal to isolationism from the problems of the world. There is no doubt that some libertarians, of whom Senator Rand Paul may be the most conspicuous, take just this position. But it will be a sad day when Senator Paul is treated as the arbiter of libertarian thought. The proper libertarian principles dealing with assistance to other people in times of need is not easy to tease out.  But the reason is that the problem is a difficulty no matter what political theory is invoked.

To see how the issue evolves, start with this simple question in the law of self-defense. In accordance with good libertarian principles, each person may use force to defend himself against aggression by others. The exact contours of that right are hard to define, because of the constant risk that the use of excessive force against imaginary threats creates risks of its own.  Libertarianism is much better at defining rights than it is in seeing how these rights play out in an uncertain world. But that is a defect that it shares with all normative theories, so the objection just points out how hard legal theory is, not that it should be abandoned altogether.

The next variation on this theme is whether a person is allowed or required to come to the assistance of a third person. The former here is always permissible. It is for the individual to decide whether, and, if so, by how much to assist another person. We know that this often happens when persons are attacked by others. And we also know that the philosophical problem of the good Samaritan—those individuals who can effectuate an easy rescue but choose not to do so—is not a serious social problem.  People do rescue—often when they should not, so that more people are killed in foolish rescues than die for neglect.  But there are no external principles that indicate when rescue should be undertaken, and we leave it to the good moral sense of individuals when to try and when not.

Those principles should inform national behavior in world contexts. But here the problems are far more difficult. Nations can enter or stay out of a war only collectively. Their internal deliberative processes require that these decisions be made by majority vote, often under conditions of great uncertainty. But there is nothing about the normative framework of libertarian thought that requires an automatic 'no' vote just because the vital interests of the United States are not in issue.

In fact, I fall on the interventionist side of many of these debates and think that it is appalling that the United States should stand aside on all too many occasions when mass murder occurs on the ground, as happens in places like Rwanda and South Sudan. I am not one of those who think that the war to take down Saddam Hussein was a huge mistake.  It did accomplish much good, but it was badly mishandled when the military phase of the action was over. But that is just the point. 

The strongest argument for the isolationist view is the incompetence of the United States in effectuating its good intentions. But the cure for that weakness is the devotion of more resources to understanding on how to act when we intervene overseas, which can only happen if the nation backs off its endless non-necessary interventions. But don’t blame the conscientious libertarian, whose philosophical positions do not entail any form of political isolationism.

So my plea to Dennis Prager is this: Be sure you understand what a libertarian theory entails before denouncing it.