But some people are not satisfied with the distribution of wealth in a market system. They advocate for government to enforce a wide array of positive rights to promote social justice. It is claimed that we all have a right to a job, a right to health care, a right to welfare, a right to education, a right to food and water, and so on. And it is the responsibility of government to ensure that these rights are respected.

I want to argue against this “rights profligacy”. We should be much more frugal in deciding what counts as a right, because rights legitimate violence and violence is usually justified only in defense. Making an error about what is or is not a right entails using violence against innocent people. By unpacking precisely what it means to have a right to a job or a right to health care, I will show that this conception of rights—we have a right to anything that is valuable—clashes forcefully with our commonsense morality.

First I will make some remarks about the nature of rights. Having a right to X implies that (1) it is morally obligatory for other people to provide you with X; and (2) it is morally permissible for you to force other people to provide you with X. Hence having a right not to be aggressed against implies both that other people are obligated not to aggress you and that it is permissible to force other people not to aggress against you.

It is important to note that a right is a legitimately enforceable claim; since it is permissible to use coercion to enforce one’s rights, a right is the strongest type of moral claim. There are also weaker moral claims which are not enforceable. For example, I might have a duty to be grateful to my benefactors, but they do not have a right, an enforceable claim, to my gratitude. Also note that the importance of a moral claim does not necessarily correlate with its enforceability. Just because a right is enforceable does not mean it is morally more weighty than an unenforceable claim.

Two of the most common positive rights asserted in the name of social justice are the right to a job and the right to health care. By unpacking these rights using the definition above, I will show that what seems intuitively appealing on the surface in fact leads to repugnant and outrageous conclusions.

Consider the claim that people have a right to a job. More formally, this means that other people have an obligation to provide you with a job, and that it is permissible for you to force other people to give you a job. In other words, it is permissible to use or threaten violence to force other people to employ you.

In practice, this means forcing an employer at gunpoint to hire you, or using violence to prevent other workers from competing with you in a job interview, or even forcing a worker to hand over her job to you—”your job or your life.”

Clearly almost everybody would agree that forcing an employer to hire you at gunpoint is very wrong. It is a serious violation of the employer’s freedom of association. Employment should be consensual: both the employer and employee must consent for the contract to be legitimate. Anything less than full consent seems morally equivalent to slavery.

Once we unbundle what is means to have a right to a job, we see that what on the surface seems benign and progressive actually turns out to be monstrous and barbaric. Since rights legitimize violence, careless proposals for rights can lead to horrific outcomes.

Now let us unpack the claim that people have a right to health care. Formally, such a right means that other people have an obligation to provide you with health care, and that it is permissible to force others to provide you with health care. In practice a right to health care means forcing a physician at gunpoint to provide medical treatment, or forcing a pharmacist at gunpoint to to provide you with medicine.

Again, almost everybody would agree that obtaining health care at gunpoint violates the liberty of the physician and the pharmacist. Just as the patient should be able to choose her physician, the physician should be able to choose his patient. Otherwise, we face “the absurdity of physicians being at the personal beck and call of individual patients, becoming literally their medical slaves”. (Szasz) (In emergencies, it might be permissible to force a physician to provide treatment. But here I am abstracting from such cases and focusing on ordinary medical treatment.)

Just as with a right to a job, once we unbundle what it means to have a right to health care, what seems on the surface to be goodhearted and caring in fact has awful and outrageous implications.

It may be the case that people still have a moral claim to a job or health care. But obviously such a moral claim cannot have the strength of a right. Rather, it must be weaker than a right, which means it cannot be enforceable through violence. We might think a claim to a job is morally important, but making it enforceable has morally unacceptable implications.

Randy Barnett writes that the “rights that define justice serve also to legitimate the use of force or violence to secure compliance. The more rights we recognize the more violence we legitimate.” (The Structure of Liberty, 200; emphasis in original) Hence we have to be very careful in deciding what counts as a right, since making a mistake is very costly: initiating violence against innocent people. There are two types of errors: recognizing too many or too few rights. These errors correspond respectively with rights profligacy and rights frugality.

It occurred to me that the prisoners’ dilemma (PD) justification of the state has a similar logic. The traditional story says that life in the state of nature is a PD, where everyone has the incentive to cheat rather than cooperate. But since everyone would be better off cooperating, they have an incentive to form a government that forces them to cooperate. Or, the underpants gnomes theory of the state:

1. People in the state of nature would benefit from establishing a government.
2. ???
3. Therefore, government.

What this justification skips over is an explanation of how people could establish a government. Government is treated as a deus ex machina, an “external” institution that is simply “given.” The traditional story throws rational choice out the window: instead of resulting from individual actions, government just magically pops into existence when its total social benefits outweigh total social costs.

(The absence of an explanation of the emergence of government from a PD game is quite puzzling when you think about it, since it’s not obvious how players in a PD could cooperatively set up a government when defecting is the dominant strategy.)

Jason Briggeman, in his paper “Governance as a Strategy in State-of-Nature Games,” (ungated) sets out to remedy this situation by providing the beginning of a rational choice model of the establishment of government. He creates a modified PD game, what he calls the “Prisoners’ Dilemma with Coercion,” where players have the option to adopt a coercive strategy and impose a strategy choice on another player.

As he writes: “To model this Hobbesian situation with the tools of game theory, it would seem to be required that society’s governor be an internal player who chooses strategies, not an external model-builder who sets payoffs.” It strikes me as odd that, given the widespread belief in the necessity of the state, something as important as a rational choice explanation for the emergence of government could have been ignored for so long.

Most people deny that philosophical anarchism is true. The most common reason is that citizens have freely consented to be governed by their states. Either expressly or tacitly, we have consented to the laws established by our government. Hence government is based on the “consent of the governed.”

The biggest problem with express consent is that it is plainly historically inaccurate. Apart from naturalized citizens, hardly anyone has ever explicitly consented to be governed. Given the absence of express consent, most arguments for the consent of the governed rely instead on tacit consent, through voting or residence.

Consider voting. The idea is that by voting for a political representative, we consent to the laws they establish. By participating in the electoral game, we agree to abide by the outcome.

The problem with this argument is that voting is a coerced choice. First of all, only choices that are free of coercion can generate obligations; if a choice is coerced in any way, it loses its moral ability to create an obligation. While there are cases where tacit consent can generate obligations, voting is not one of them, because the voter is never given the most important choice of whether or not there will be a government. Unless a voter is given the option to secede and avoid being governed at all, the act of voting cannot be taken as consenting to government.

Consider: a murderer breaks into your house and gives you the choice of being stabbed or shot. Your choosing to be shot does not mean you consent to it. The reason is that the murderer forces you to make a coerced choice: either be stabbed or shot. You do not have the option of not being coerced at all.

This example is importantly analogous to voting, because both the victim and the voter are subject to coercion, and neither have the choice of whether or not they will be coerced. Just as the victim will be killed no matter how she responds (and even if she does not answer the question), the voter will be subjected to coercive laws no matter how she votes (and even if she doesn’t vote). So voting, as a coerced choice, is not able to establish the consent of the governed.

The second argument given for tacit consent is residence: by choosing to live in a country, we agree to obey the laws of its government. Just as when you come into my house, you have to obey my rules, so too when you live in a certain country, you have to obey the rules of the government—love it or leave it.

Notice that this argument implies that just as I am the owner of my house, the government is the owner of the country. That is, the government is in a position of moral sovereignty over its territory and can demand that its citizens either obey or leave.

The problem with this argument is that it is circular. The consent theory of political obligation claims that government authority is based on the consent of the governed. Residing in a territory can indicate tacit consent only if the owner already has authority to demand you obey or leave (as when you come into my house).

But if government authority is based on consent, then that authority cannot exist prior to the consent of its citizens. This is, however, precisely what is required by the residence argument: government must have authority over its citizens before they can give consent, which is what needs to proved. Hence the residence argument fails. Unless government already has authority over us independently of our consent, then residing in a country cannot imply consent to that government.

At this point most people will appeal to an argument from fair play: since we receive benefits from government, we are thereby obligated to obey it. But this also fails to justify a duty to obey, since on this argument an investment company would be justified in seizing my life savings without my permission on the grounds that I would benefit from its money management. The problem here is that the benefits of a legal system are such that we cannot refuse them; and unless you can refuse a benefit, it is not clear how you are obligated to pay for it.

So the most popular arguments for a duty to obey the state fail. If the state is morally illegitimate, then we should embrace philosophical anarchism. Furthermore, we have good reason to investigate political anarchism, to see if it is possible or desirable to do away with the state entirely.

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In forming a government which is to be administered by men over men, the great difficulty lies in this: you must first enable government to control the governed; and in the next place oblige it to control itself. — James Madison, The Federalist No. 51

Quis custodiet ipsos custodes? — Juvenal,  Satires

Economic prosperity requires a legal system that protects property rights and enforces contracts. Establishing a legal system in turn requires an agency with a monopoly of violence—a government. Herein lies the paradox of government: an agency with a monopoly of violence has the ability to protect property rights, but it also has the ability to violate them. As Weingast writes: “The fundamental political dilemma of an economic system is this: A government strong enough to protect property rights and enforce contracts is also strong enough to confiscate the wealth of its citizens.”

The problem, then, is empowering government to subdue predators without letting it become an instrument of predation itself. This means giving government the power to protect property rights while at the same time preventing it from using this power to destroy property rights. How is it possible to simultaneously empower and constrain government?

The rarity of economic prosperity throughout history tells us that solving the paradox of government is no easy feat. But the existence of economic prosperity in the first world tells us that first-world governments have been able to find at least a somewhat good solution to the paradox.

So how can the paradox be solved? Given that government has the ability to do good (enforce property rights) and bad (destroy property rights), how do we give government agents the incentive to do good and avoid bad?

The traditional solution given by constitutional political economists has been: constitutional constraints. The point of federalism, separation of powers, and the rule of law is to structure government power in such a way as to limit how that power can be used.

And it seems like these constitutional constraints have worked. In the first world at least, government violation of property rights is fairly limited. There is little arbitrary seizure of property. Most restrictions on property rights come in the form of taxation and regulation, and these are institutionalized in the democratic process. Hence they are more regular than arbitrary, which is a good thing.

As I have argued elsewhere, market anarchism can be seen as the logical conclusion of constitutionalism and the best solution to the paradox of government. The checks and balances inherent in market competition are a stronger constraint on power than any governmental mechanism like federalism or separation of powers. Hence the principles of constitutionally limited government are most effectively realized in the system of market anarchism.

The case for market anarchism depends crucially on rejecting the premise that a well-functioning legal system requires a monopoly of violence. But it’s not clear that such a legal system can exist without a state. I plan to address this question in my future research.

While it is commonly recognized that there is anarchy between governments, it is less well known, but equally true, that there is anarchy within governments. That is, just as the agents of different governments are in a state of anarchy vis-à-vis each other, so too the agents of the same government are in a condition of anarchy in their relationships with each other.

For example, under international anarchy, an agent of the Canadian government and an agent of the U.S. government interact without a world government governing their relationship.

Now consider two agents of the U.S. government. In their interactions with each other, they cooperate without some higher government ruling over them. Call this intranational anarchy: the agents of a single government are in a state of anarchy vis-à-vis each other. (See Cuzán’s paper “Do We Ever Really Get Out of Anarchy?“.)

On the classic Hobbesian account, cooperation and social order are not possible under anarchy. Without some ultimate third party authority to force people to respect property rights and fulfill contracts, cooperation is impossible and society breaks down into chaos.

When we observe governments and intranational anarchy around the world, the extreme Hobbesian prediction is clearly wrong. The internal relations of most governments, though anarchic, are fairly peaceful, and politicians do not battle each other in a war of all against all. So the question is: given that the internal relationships of a government are anarchic, how can cooperation and social order within a government be secured?

I claim that this view is misguided. Specifically, I think there should be a presumption of market provision of public goods. Rather than automatically assuming that “publicness” justifies government provision, we should start from the position of market provision of public goods, and place the burden of proof on the advocate of government intervention.

The market is a self-correcting system: inefficiencies on the market create incentives for entrepreneurs to solve them. Of course, the whole point of public goods is that while entrepreneurs have the incentives to find a solution, they are unable to do so: free riders cannot be excluded, and hence it is unprofitable to produce the optimal amount.

This analysis, however, assumes that the ability to exclude nonpayers is a technological given. But in reality this is not true; technology is not fixed, but constantly changing. If it is not presently feasible to exclude free riders, then entrepreneurs will be looking for new exclusion technologies that allow them to capture the gains from trade. Excludability depends on technology; but since technology changes, new exclusion mechanisms can arise, meaning that the publicness of a good is not a fixed factor.

As a result, government provision of public goods will produce a crowding out effect. When government monopolizes the production of a good, entrepreneurs no longer have an incentive to engage in the creative discovery process of developing new exclusion technologies. Government intervention stifles innovation, and goods that could have become private will remain public. Hence the publicness of many goods provided by government is actually the result of their public provision, and not the cause of it. Government intervention becomes a self-fulfilling prophecy: markets cannot solve collective action problems because government crowds out market solutions.

But the most important reason for the presumption of markets is the fallacy of appeal to personal incredulity. This occurs when one reasons from “I cannot imagine how markets could provide this good” to “markets cannot provide this good.” But in fact an economist’s ability to diagnose public goods problems depends on their entrepreneurial ability.

Suppose an economist is also a creative and imaginative entrepreneur. When faced with a potential public goods problem, they will be able to imagine how markets could solve the problem through property or contract mechanisms, and so will reject government intervention as inefficient. But if, on the other hand, the economist is an incompetent entrepreneur, they will call for central planning simply because they personally cannot imagine any property or contractual solutions to the particular problem.

A very good example is James Meade, who argued that the positive externalities associated with honey bees would result in inefficient production of crops and honey. Because of the public goods problem, Meade argued, government intervention was necessary. In the real world, however, contracts between beekeepers and farmers solving this problem were commonplace. Meade’s failure of imagination led him to advocate unnecessary and inefficient government intervention.

Since creativity and imagination are scarce, economists are likely to be biased, as Meade was, in favor of government intervention. They will tend to underestimate the ability of property and contract mechanisms to solve supposed market failures. I submit that, to correct for this statist bias, there should be a presumption of markets. (In similar fashion, Bryan Caplan argues for a presumption of elasticity.) If we take into account the changeable nature of exclusion technology, the crowding out effect of government intervention, and the fallacy of appeal to personal incredulity, we find that the presumption should be in favor of markets, and that proponents of government intervention should bear the burden of proof.

Of course, this presumption is defeasible. Government provision of public goods can be efficient. The point of the presumption is to take into account and correct for interventionist bias. How can the presumption of markets be overcome? At the very least, proponents of government intervention have to do more than merely show that a public good exists. That was Meade’s error. I suggest that economists should: first, look at the real world to see if the problem really exists; and second, actually investigate possible market solutions before proclaiming “market failure!” This is an imperfect solution, but at least it’s a step in the right direction.