Chapter 11

Within the philosophical literature, libertarianism is typically understood as a theory of justice based on the allocation of two sets of robust individual rights. Ownership rights, both over the self and external resources, constitute the first and most basic set of libertarian rights. Enforcement rights constitute the second set. Their aim is to prevent and rectify violations to individuals’ ownership rights. These two basic sets of rights, and the difficulties involved in their specification, have been widely discussed by proponents and critics of libertarianism alike. The purpose of this article is to explore a third set of rights that is not typically understood to constitute an essential element of the libertarian theory of justice: exception rights.¹

As is the case with individuals’ ownership and enforcement rights, exception rights are enforceable moral prerogatives. Exception rights, however, are only supposed to arise under certain types of extraordinary circumstance. Under normal circumstances, the particular ways in which exception rights allow their holders to act are simply blocked by the basic rights of others. Thus, essentially, exception rights are permissions to infringe upon the basic rights of others. Exception rights allow their holders to infringe on others’ basic rights only when the circumstances are such that the infringements in question are both necessary for the alleged exception-right holders to overcome a perilous situation for which they are not responsible and not unreasonably costly to others. In this manner, exception rights qualify the robustness of individuals’ most basic rights.²

It is argued that the recognition of exception rights is necessary for avoiding what are usually perceived as the two main weakness of libertarianism: its distribution insensitivity and its consequence insensitivity. Critically, it is also argued that the recognition of exception rights is grounded on the same commitment to individual sovereignty that is behind the libertarian recognition of both ownership and enforcement rights. The corresponding exceptions to the usual guarantees provided by such basic rights should thus not be understood as an ad hoc moderation on the fundamental libertarian commitment to individual sovereignty. Rather, those exceptions should be understood as a different nomological articulation of that same commitment, an articulation that is required due to the special nature of certain types of extraordinary circumstance.

Eric Mack (2015) has provided a similar line of argument in regards to the permissibility of what we would take as trivial rights violations. If libertarian rights were to be regarded as blocking minor intrusions that involve virtually non-existent costs to the holders of those rights and significant benefits for everybody else, libertarian rights would fail to secure the benefits that they are meant to promote. Here, it is argued that the same reasoning applies to certain extraordinary circumstances that are not properly characterized as involving trivial rights violations. Mack argues, however, that the permissibility of trivial intrusions is explained on the basis of a refinement in the location of the boundaries of individual’s libertarian rights rather than on an attenuation of them, as it is claimed here in regards to certain kind of non-trivial intrusions.

The merits of Mack’s alternative conceptualization of the qualification on the robustness of libertarian rights, as well as whether it is substantively important or not, will be left unexplored in this essay. Initially, however, it would seem that these two different forms of qualifying the robustness of libertarian basic rights are both appropriate to the respective cases to which they are supposed to apply. Exception rights only arise under special circumstances, and the costs that they imposed on others, although small, might not be trivial. Thus it seems natural to refer to the actions they allow as infringing, justifiably, on the rights of others. In contrast, when the alleged infringements involve only trivial intrusions, and since such intrusions are extremely common and virtually unavoidable, it is more natural to hold that no real infringement takes place, as Mack’s proposed refinement in the location of the boundaries of individuals’ basic rights suggests.

1FROM MORAL ANARCHY TO LIBERTARIAN RIGHTS

In order to understand the central features of libertarianism, we might think about a situation of “moral anarchy,” that is, a situation where individuals do not observe any sort of moral constraint on their self-interested behavior. In moral anarchy, individuals are free to treat others as mere resources for the satisfaction of their own personal goals.3 Moral anarchy could result in a state of affairs in which a great number of individuals are powerless to arrange their lives in the way they want. Having different goals and preferences regarding how best to achieve those goals, and having a natural tendency to care more strongly about the satisfaction of their own goals than the goals of others, individuals under moral anarchy might constantly interfere with one another in their corresponding pursuits.

It is not unusual to treat moral theories as specifying the conditions under which individuals must constrain their self-interested pursuit of goals. Thus, a natural way of characterizing moral theories is to consider them as providing alternative blueprints to escape from the potential consequences of moral anarchy. Basically, these blueprints state what each person should do and why it makes sense for everybody taken collectively, and perhaps even for each person taken individually, to follow those instructions. To be sure, the state of mutual frustration in which moral anarchy might result would tend to generate its own corrective mechanisms through the assistance either of individual prudence or evolutionary pressures. For this reason, the blueprints provided by moral theories might not be actually necessary, in the sense that individuals may be able to escape from moral anarchy even if there were no moral theories that tell them how. The blueprints provided by moral theories are thus best understood as standards of evaluation against which social conventions can be assessed and rectifications proposed.

The blueprint provided by classical forms of utilitarianism would state that, facing moral anarchy, it makes more sense for everybody to adopt the same overall goal: the maximization of total happiness. Alternatively, it might be held that individuals should adopt whatever goal has the maximization of total happiness as a consequence. For it might be the case that by directly aiming at that goal, individuals would fail to achieve it. In any event, if individuals would follow the classical utilitarian blueprint, the conflict that we fear to be ubiquitous in moral anarchy would just dissolve. Yet we might wonder whether classical utilitarianism would fail to address an aspect of the conflict of moral anarchy that is particularly worrisome.

The problem is that the all-consuming conflict we might expect in moral anarchy is replaced by the all-consuming demands of the greatest happiness. While in the former, individuals might be used as resources for the satisfaction of the desires of those who are stronger, in the latter, individuals might be used as resources for the satisfaction of the desires of whoever are those who happen to bring more happiness into the world. Either way, factors that would seem to be ultimately beyond individuals’ control would determine whether they would be able to lead their own lives. It is in response to this intuitive failure of classical utilitarianism that rights theories in general, and libertarianism in particular, is best understood.

In contrast to classical versions of utilitarianism, rights theories do not propose to escape from moral anarchy by means of providing a unique goal that all must serve either directly or indirectly. Instead, they propose to protect individuals’ pursuits of their own personal goals regardless of their optimality in the maximization of aggregative value. In order to accomplish this, rights theories allocate control to each individual over a specific set or range of actions. These allocations of control allow the individual to perform or refrain from performing the corresponding actions, and they impose on others the obligations not to interfere.4 Those ranges of actions might then be understood as configuring areas of freedom. Within those areas, the individual is taken to be fully sovereign in terms of what may be done.

Within libertarian theory, individuals’ most basic areas of moral freedom are generally specified in terms of ownership rights, that is, in terms of the material objects that those individuals are entitled to control.

That the use and control of our own body is a necessary condition for our agency would seem to be indisputable. If there is a clear case in which we are not able to lead our own lives, it is when we are deprived of control over the bodies in which we are actually embodied. This is the fundamental and uncontroversial sense in which libertarianism sees individuals as self-owners. The precise scope of individuals’ self-ownership rights, however, is a more controversial matter.⁵

That individuals’ capacity to lead their own lives requires some form of control over objects beyond individuals’ own bodies would seem as clear as that it requires significant control over those bodies. For example, under a robust scheme of joint ownership of external resources, each individual would be assigned a claim right against every other, against the use and possessions of those resources. No individual would thus have the liberty to use or possess such resources without the approval of everybody else. As is the case with classical utilitarianism when dealing with moral anarchy, we might then wonder whether joint ownership addresses the conflict that will be generated by a situation of open access to external resources without addressing an aspect of that conflict that is especially worrisome. If the rules of joint ownership were respected, no actual conflict would ever arise. Yet, since everyone has a power to veto another’s use of external resources, everyone would have the power to preclude the agency of every other individual. Again, whether individuals are capable of leading their own lives will depend on factors that are ultimately beyond their control. Under a robust scheme of joint ownership of external resources, self-ownership becomes purely formal (Cohen 1995).

Following Locke, libertarian theorists tend to argue that appropriations of natural resources are illegitimate if they do not leave “enough and as good” for others (1967: section 27). The proper understanding of such a proviso is the subject of much disagreement. Its importance, however, would seem to be well-grounded. The reason why individual ownership rights are favored over joint ownership is the idea that an individual’s capacity to control external resources should not depend on the approval of others. Some form of guarantee must then exist against the possibility that the appropriating activities of others would put an individual into a similar situation, that is, a situation in which the very possibility of interacting with the external world would be contingent on the approval of others.

Individual sovereignty certainly requires an extensive right to control the uses of our bodies, and for such control to be more than merely formal, it is also necessary that we have unilateral access and control over external resources. “Real,” rather than formal, self-ownership, however, only requires exclusive access and control over enough external resources. This is why the commitment to individual sovereignty might not be determinate enough to adjudicate disputes regarding the limits of individuals’ ownership rights over external resources. Other types of considerations might have to enter into the discussion as a way of justifying any particular allocation of those limits.

If there are reasons why individuals should be assigned certain areas of moral freedom that others should not interfere with, areas that libertarianism holds are best understood in terms of robust ownership rights, there would certainly be reasons why the corresponding interfering actions should not be given immunity against obstruction. In particular, it would seem that if the assignment of those areas of moral freedom is as important as libertarianism takes it to be, the immunity the infringing actions must lack is the immunity against the use of coercion. Anything short of that will fail to provide the holders of basic rights with a sphere of moral freedom that is not contingent on others’ willingness to respect it.

Thus, libertarianism holds that in addition to being assigned robust ownership rights, individuals should be assigned enforcement rights, that is, rights of control over a range of actions, the purpose of which is to deter the infringing actions of others and over which the individual is as sovereign as he is over the area defined by his ownership rights. Those actions included in an individual’s enforcement rights can be performed without the individual having to secure the approval of anybody else and with everybody else having a duty not to interfere with their performance so long as they violate nobody else’s rights.

The first sort of enforcement right is the right to issue retaliatory threats. Retaliatory threats are threats of harm that are made conditional on the violation of individuals’ ownership rights. Thus, the exercise of this enforcement right is supposed to precede the commission of the offense. The second basic enforcement right, the exercise of which is taken to accompany the commission of the offense, is the right to self-defense. The third basic enforcement right is the right to seek restitution, the exercise of which is supposed to follow the commission of the offense. The right to seek restitution involves the right to be compensated for all the damages committed by the offense. Finally, and the most controversial of all, is the right to punish.

2TWO INSENSITIVITIES OF LIBERTARIANISM

The most fundamental criticisms of libertarianism are related to two forms of insensitivity: distribution insensitivity and consequence insensitivity. Both forms of insensitivity arise from libertarianism’s emphasis on voluntary agreement as the exclusive normative mechanism to alter the set of enforceable obligations that arise from the original allocation of basic rights.

In order to appreciate the force of the insensitivity objections, it is useful to draw an analogy with the fundamental line of objection against classical forms of utilitarianism. Classical utilitarianism holds that an act is morally right if, and only if, that act maximizes aggregate welfare. Under certain conditions, however, slavery could bring about a state of affairs in which aggregate welfare is maximized. The important point to note is that whether or not this is a genuine possibility is not really what matters. For our assessment of the correctness of the standard of evaluation itself, what matters is that we can conceive of such a possibility, and that we tend to think that there are things that cannot be done to people no matter how good the consequences are from the point of view of those who would benefit or, for that matter, from an impersonal point of view.

Similarly, we could conceive that the respect of a system of libertarian rights could, under the specification of certain contingent facts, lead to a situation of dreadful misery for a great proportion of individuals. This was Marx’s understanding of capitalism. At one pole, capital accumulation produces wealth for the shrinking class of owners of the means of production. At the opposite pole, it produces “accumulation of misery, agony of toil, slavery, ignorance, brutality, mental degradation” (2011: 79). Marx was clearly mistaken in his descriptive analysis of capitalism. His analysis, however, provides the sort of thought experiment that any theory of justice must face. If all exchanges are demanded to be consensual, libertarian ownership rights would block the possibility of altering the institutional environment as a way of mitigating any of the undesirable distributive consequences of Marx’s imagined scenario.

This line of criticism against libertarianism has been recently highlighted by John Tomasi (2012). Tomasi believes that when classical liberal and libertarian authors predict that their preferred institutions will produce distribution patterns that benefit the poor, they implicitly accept an important normative idea: “that a system of social and economic institutions is rightly applauded only if that system works to the benefit of the least well-off members of society. A system that does not work to the benefit of the working poor is defective from a moral point of view” (2012: 125). Tomasi calls this “the distributional adequacy condition”: “a defense of any version of liberalism is adequate only if it includes the claim that the institutions being endorsed are deemed likely to bring about some desired distribution of material and social goods” (2012: 126).

What matters, it must be noted, is not that libertarian authors implicitly accept Tomasi’s distributional adequacy condition. What matters is that a theory of justice would lack plausibility if it did not recognize such a condition. The fact that libertarian authors make sure to address the concern, on empirical grounds, regarding the potential distributive conditions of their preferred institutions might show us that they implicitly accept the normative force of the objection.

If Marx’s imagined scenario provides a useful description to highlight the distribution insensitivity of libertarianism, the more plausible public-good problem provides a useful theoretical model to highlight libertarianism’s consequence-insensitivity. The most basic of all public-good problems is the provision of justice and security, a problem for which the very existence of the state is typically understood as the solution.

Typically, however, the state coerces its subjects by threatening them with the infliction of harm should they perform certain actions. From a libertarian perspective, this is a legitimate way of treating individuals when the actions to which the expectation of harm is attached are actions that would interfere with individuals’ assigned spaces of moral freedom. Typically, however, the state will coerce individuals to stay away from performing actions that would seem to be included in the areas of freedoms protected by individuals’ ownership and enforcement rights, such as inflicting justified punishments to offenders, and allocating any chosen portion, if any, of their own resources for those protective purposes. Precisely for this reason, some libertarian authors conclude that the state is illegitimate.6

The problem with this assessment of the illegitimacy of the state is its disconnection from any consideration regarding the state of affairs that we would expect to be materialized in a stateless society. Under this view, the state could never be a morally acceptable remedy for any of the alleged problematic features of such a society. It would matter neither how serious such problematic features are, nor how easily the state would be able to rectify them.

Libertarian authors who endorse this implication of libertarianism tend to predict that a market for protection could successfully provide for all the same sorts of benefits provided by the state. Yet this criticism is not avoided by merely denying the existence or the severity of the many alleged challenges that will ensue in the absence of the state. The point is, precisely, that the illegitimacy of the state is established by means that are completely independent of those types of considerations. In other words, the inquiry into the nature of a stateless condition does not have any moral significance when it comes to the moral evaluation of the state. However, it is difficult to accept that the findings of such an inquiry, whatever those are, should be irrelevant in this matter. The fact that libertarian anarchists address these types of concern might show us, as it is the case with the distribution-insensitivity objection, that they also implicitly accept the normative force of the concerns behind the consequence-insensitivity objection.

The problem of the justification of the state is merely an example of the sort of consequence insensitivity presented by libertarianism. The possibilities of grave financial crises due to unregulated consensual businesses practices and some forms of environmental degradation that do not necessarily imply any direct violation of property rights could provide alternative illustrations of the same problem. The issue of mass immigration, and of its potential consequences on institutional settings, could also be thought of as belonging to this category of problem.

Both insensitivity objections to libertarianism raise a significant challenge. A plausible political philosophy would seem to demand the recognition of the potential legitimacy of coercive government action oriented to remedying either serious distributional issues or addressing more general serious consequentialist concerns. The challenge is to offer an account of the potential legitimacy of such coercive actions that is compatible with the rationale for those individuals’ basic libertarian rights that are infringed upon by those very same actions.

It must be noted, however, that the challenge that arises from the insensitivity objections is located at the level of principles. The objection is, roughly, that a plausible political philosophy must recognize the existence of certain conceivable conditions under which coercive government action of a particular sort is regarded as legitimate. As a matter of practice, however, libertarians could still be perfectly entitled to deny the legitimacy of the corresponding coercive actions based on empirical considerations. In other words, they could deny that such a set of conceivable conditions are descriptively accurate of the situation at hand. Thus, the mere fact that libertarians might reject the legitimacy of a safety net, most financial and environmental regulation, immigration restrictions, or the very existence of the state are not the grounds upon which the insensitivity objections are based. Such policy conclusions could still be properly grounded on considerations that recognize and accept the concerns behind the sensitivity objections.

3THE CASE FOR EXCEPTION RIGHTS

Within libertarian theory, a basic reason why a system of individual ownership rights is preferred over a system of joint ownership of external resources is that such an alternative arrangement leaves individuals at the mercy of others’ wills. As it was noted, the need for some sort of Lockean proviso, that is, for a constraint on the unilateral appropriation of natural resources, might be thought of as arising from this type of concern. Lacking any proviso in that regard, individuals might face a situation that is morally equivalent to the situation that they would face under a system of joint ownership.

Now we must note that by no fault of their own, individuals might face situations in which, despite having exclusive control over their own body and over a certain portion of external resources, they would need the approval of others regarding the performance of certain actions that would be necessary for securing the benefit that such rights typically provide. If individuals would indeed have to secure other individuals’ approval under those circumstances, individuals’ ownership rights, both over their own bodies and over external resources, could lose their worth under those circumstances in the same way in which a right of self-ownership loses its worth under circumstances of joint ownership of external resources.

Thus, while individuals’ basic rights are necessary for the protection of individuals’ capacity to lead their own lives, in certain situations, those rights themselves might restrict that very same capacity in other individuals without providing a significant benefit to anybody else. Exception rights block this possibility. Exception rights might then be understood as imposing constraints on the exercise of the most basic libertarian rights. With our own axe, we might do as we wish, as long as the use of our axe is not necessary for someone to save a stranger from a burning car, and as long we do not have to use it for something relatively important at the time. By implying this form of restriction, exception rights provide their potential holders a form of moral insurance against the faultless loss of the fundamental value that the most basic rights provide: a sphere of sovereignty that obviates the need to secure the approval of others to pursue our own ends and projects.

Rights always entail restrictions on others’ behavior. The question about the plausibility of any given right is the question of the worth of the restriction, or set of restrictions, it entails. A system of rights that has no room for exception rights imposes restrictions that, if we are committed to individual sovereignty, might not be worth having. The final assessment of this worth, however, must not be grounded on a static comparison between the interpersonal benefits and costs of each particular situation wherein exception rights are supposed to arise. This is because it is conceivable that the worth of the overall system of moral restrictions implied by the set of basic libertarian rights could only ensue when no exceptions are allowed, regardless of how negative our assessment could be of the distribution of benefits and costs in any particular situation.

It is precisely for this reason that a careful specification of the conditions under which individuals’ exception rights arise is in order. The conditions in question must guarantee that the effort to rectify moral imbalances in particular situations do not have a negative impact on the overall worth of the system of libertarian rights. In other words, they must guarantee that the gross moral insurance premiums entailed by the granting of exception rights, that is, the net premium entailed by the infringements that individuals could be forced to bear for the sake of others plus all the additional costs entailed by the mere recognition of exception rights, are not greater than the expected value of their own unexpected losses.

In light of those general considerations, the conditions under which individuals acquire exception rights would seem to have to include: (1) the gravity of the peril faced by the alleged exception-right holder, (2) the fact that such a perilous situation is not the fault of the alleged right bearer (in the sense of not being due to a neglected reasonable opportunity for avoiding the situation), (3) the necessary character of the corresponding infringement to overcome the peril, and (4) the reasonable cost of compliance imposed on others.

The notion of peril included in the first condition denotes serious unfortunate circumstances or dire straits that would place the individual under a utility or well-being threshold. What exactly that threshold is, of course, cannot be established with any degree of accuracy. Difficult questions will surely arise when dealing with borderline cases. Acknowledging this, however, would not seem to entail that we should ignore the clear normative significance between different classes of adversity that people might encounter. The risks of some of those adversities can typically be borne by those who suffer them, while the risks of other adversities are simply too great. The notion of peril that informs an exception-rights approach must include only the latter so as to limit the scope of our moral, non-voluntary interconnectedness.

The notion of responsibility alluded to in the second condition is best understood as referring to the existence of a neglected, reasonable opportunity that the agent might have taken to avoid the peril in question. It is not difficult to see the types of considerations that could be advanced as a rationale for this condition: from basic claims of desert to insights regarding the social advantages of internalizing the costs of personal decisions. This condition is especially important in dealing with what Buchanan (1975) refers to as the “Samaritan’s Dilemma,” that is, the alteration of incentives on the part of the aid recipients due to the very expectations of aid. Buchanan’s “Samaritan Dilemma” is simply a special case of the moral hazard problem that all insurance schemes must face.

The third condition implies, first of all, that the peril in question must be of a remediable nature. It also implies that exception rights emerge only when voluntary solutions are unavailable. The sense in which the rights infringement must be necessary is then the sense in which it could be understood as a necessary condition for the instantiation of a particular state of affairs, in which the alleged exception-right holder enjoys a utility level that is higher than the threshold of peril.

This third condition also implies a limitation on the costs of compliance that it is permissible to impose on others, since those costs must not be greater than what it is necessary. However, as implied by the fourth condition, one has no right to secure coercively aid from others just because it is the case that the costs of such aid are smaller than the costs the peril imposes on others. The aid that may be coercively secured must not impose more than a reasonable cost on others, where this cost is the difference in utility between the state of affairs resulting from the performance of the infringing action and the state of affairs resulting from the non-performance of such an action.

Compensation by the holder of the exception right might be due to the individual whose basic ownership rights have been infringed upon. However, the compensation requirement might be best understood as a mere corollary of the requirement to limit to a minimum the costs that could be permissibly imposed onto others. In other words, an incapacity to pay what otherwise would be due in compensation might not invalidate the permissibility of acting as the principle of exception allows if the costs imposed fall below the appropriate level.7

How should the notion of utility be understood in the interpretation of the previous conditions? One possibility is to consider some sort of psychological measure along hedonistic lines. Under this understanding, what matters is whether an individual faces a circumstance under which some psychic magnitude is lower or greater than certain parameters. Such an understanding, however, would seem to be biased against individuals of collected characters. An alternative is to adopt a conception of utility in terms of the degree in which individuals’ preferences are satisfied, regardless of what psychological state is taken to accompany that degree of satisfaction. A better option, in order to mitigate knowledge problems, might rely on the degree of satisfaction of the individual’s preferences that would withstand some form of epistemic idealization. What would matter are the preferences an individual would have if he had all the relevant information about the available alternatives. Those preferences themselves, however, must not be morally objectionable.

Despite what the specifications of the previous conditions suggest, our actions are rarely performed under conditions of certainty. When it comes to taking into account the role of uncertainty, the problem becomes that of analyzing the choice between two alternative prospects: the infringement prospect and the non-infringement prospect.

Each of those prospects is constituted by a set of possible outcomes. Each outcome has a certain probability of being the one that is instantiated. For the right infringement to be justified, that is, for the potential holder of an exception right to effectively obtain such a right, we must first have reasons to believe that the expected utility of the non-infringement prospect for such an alleged right holder is lower than the appropriate threshold of peril. We reach this judgement by estimating the individual’s utility for each of the possible outcomes of the prospect, weighted by the probability of their instantiation conditional on the non-performance of the infringing actions. Secondly, we must have reasons to believe that the expected utility of the infringement prospect for that same individual is higher that such threshold. Finally, the difference in expected utility between both prospects for the basic-right holder that would suffer the infringement must be regarded as lower than the cost limit.

4EXCEPTION RIGHTS AND THE INSENSITIVITY OBJECTIONS

The fundamental virtue of the proposed moderation of libertarianism is its responsiveness to the normative significance of certain empirical issues that, intuitively, we tend to think are quite central to discussions about the legitimacy of state action. These are issues dealing with the properties of those states of affairs that would obtain should the state not act in specific manners and how such properties compare to those corresponding to the states of affairs resulting from the state’s actions.

As a matter of principle, the recognition of exception rights allows for the establishment of a safety net, or perhaps of even more extensive redistributive programs in order to deal with distributive concerns of the most serious type. Although it might not be necessary to infringe upon the rights of everybody to provide such benefits, there might be reasons of fairness to do so (Wellman 2001: 734). A concern for minimizing the cost that each individual must face would also seem to support the universal nature of such redistributive programs. However, exception rights authorize us to secure aid effectively for some without imposing more than certain costs on others. If the consequence of saving an individual is to put many more in peril, the circumstances demanded by the granting of exception rights do not obtain.

An important feature of so-called “lifeboat” situations, mainly due to its extraordinary nature, is the unlikelihood that whatever action is taken under such conditions will have a significant effect in terms of altering people’s future behavior. The state’s actions, however, are usually institutionalized in terms of laws and regulations. Individuals can easily form expectations about how the state will act in the future and change their own future behavior because of those expectations. In this regard, as libertarians typically argue, it might be the case that even minimal welfare programs create the wrong type of incentives, and that the political pressures that tend to accompany their institutionalization might end up recreating the conditions that they are supposed to remedy.

Also, it might not be true that the recipients of such programs would be unable to overcome their perilous conditions in a non-coercive form. Acknowledging the existence of exception rights, when they are qualified as we have done it, will entail that to the extent that charitable contributions are forthcoming, coercive redistribution is not permissible (Lomasky 2000: 113).

Thus, the endorsement of exception rights need not amount to an endorsement of the legitimacy of any redistributive program, including a minimal safety net. Such an endorsement will be contingent on the validity of certain empirical claims. Again, it is a clear virtue of an exception-rights approach that moves such empirical claims to the center of the discussion.

It is also instructive to consider the example of the legitimacy or the justification of the state in this context. The question of political legitimacy is, basically, the question of the conditions, if any, under which the state could act as it typically does. Under what conditions could a group of individuals prohibit others from exercising their enforcement rights, and coerce them to allocate a portion of their resources to finance the collective provision of enforcement services? A group of individuals could infringe upon others’ rights in such a way when their actions can be understood as enforcing the exception rights of themselves, or of other individuals. For such to be the case two conditions must be satisfied:

1.There must be at least some individuals for whom it is true that, through no fault of their own, EU(~I) < P < EU(I), where EU(~I) is the expected utility of the non-infringement prospect, EU(I) is the expected utility of the infringement prospect, and P is the threshold of peril.

2.For those individuals whose basic rights are infringed upon it is true that EU(I) – EU(~I) < C, where C is the limit on the cost that is permissible to impose on others.

An exception rights approach to political legitimacy would then conceive the legitimate state as a mere enforcer of individuals’ exception rights. The mythical story of the social contract needs to be modified only slightly. Rather than assuming that everyone consents to the existence of the state, we must assume, more realistically, that only some do. These consenters may infringe the rights of the dissenters if that is necessary to overcome the consenters’ expected perils and the dissenters’ losses are not significant.

Thus, for an exception rights approach, it matters greatly whether or not the state actually produces some important social benefits that are otherwise unavailable. The state’s actions would be morally permissible only if whatever the benefits that the state provides cannot be secured by voluntary cooperation, that is, by not infringing upon individuals’ basic ownership and enforcement rights. Endorsing an exception rights approach would entail, therefore, that the inquiry into the properties of a private market for protection and security acquires full moral significance. If it is indeed the case that there is a decentralized solution to the problem of social order, the state would not be morally allowed to perform its characteristic actions.

Acknowledging the existence of exception rights provides a moral ground upon which comparative judgments between the minimal state and the welfare state, and between the state and the stateless condition, can be significantly made. According to an exception-rights approach, the coercion the state engages in must be a genuine expected remedy for any of the alleged perils of the stateless condition or of the minimal state. Anarchists might rightly remind us that in assessing the stateless society’s capacities, we must not assess them against only one of the multiple outcomes involved in the prospect of establishing a state, that is, a well-functioning state that is respectful of individual’s rights. We must assess them against the entire set of outcomes of such prospect, which include less desirable ones. The same point applies to discussion regarding the scope of the state, as public-choice theory stresses. The existence of market failures is not a sufficient condition to establish the legitimacy of government programs oriented to resolve them, since government failures could be equally pernicious. Recognizing the importance of exception rights allows us to fully capture the normative relevance of this sort of insight.

The case for exception rights is mainly motivated by the recognition of the force of the insensitivity objections. Exception rights allow, as a matter of principle, infringements upon individuals’ basic rights when certain circumstances ensue. Those circumstances coincide with the most significant subset of circumstances that could be conceived under a specification of either one of the two insensitivity objections. Not all distributive concerns give rise to the recognition of exception rights. Similarly, not all consequentialist concerns give rise to that recognition. Such recognition is grounded on the perilous circumstances that some individuals would otherwise face. Several distributive and consequentialist concerns will fall short of such qualification. This is not, however, a failing on the part of the exception-rights approach. It represents, rather, the deontological commitments of libertarianism.

Exception rights do not sanction the permissibility of any infringement of basic rights that yields a greater gain in impersonal value. Exception rights only sanction the permissibility of a limited subset of potential infringements. The magnitude of those infringements is also strictly limited. Acknowledging the existence of exception rights does not commit us to acknowledging the sort of general aggregative moral perspective that underlies consequentialist theories.

5CONCLUSION

The central purpose of a libertarian assignment of ownership and enforcement rights is to provide individuals with a space of moral freedom to lead their own lives. Such moral freedom implies that the permissibility of their actions is not contingent on the approval of others. This essay has suggested that, while libertarian basic rights are necessary for the protection of individuals’ capacity to lead their own lives, in certain situations those rights themselves might restrict that very same capacity in other individuals without providing a significant benefit to their holders or anybody else. Exception rights provide an ultimate guarantee that individuals would not need to secure the approval of anybody to lead their own lives in circumstances in which, by no fault of their own, they would otherwise require that approval.

Although the recognition of exception rights and the sort of interpersonal comparisons they entail would seem to constitute a radical departure from libertarianism, this is not so. The robustness of the basic libertarian rights remains unchanged within the set of normal circumstances. Equally important, exception rights allow libertarianism to offer principled answers to the insensitivity objections without retracting its deontological nature.

Recognizing the existence of exception rights as an integral part of libertarianism does not only address the concerns behind some recurrent criticisms of libertarianism. Feasibility concerns have always been an important element in the libertarian and classical liberal critique of extensive institutional arrangements characteristic of the modern welfare state. Such feasibility concerns, however, do not seem to find a coherent foundation within the most philosophically oriented defenses of libertarianism due to their strict voluntarist nature. Exception rights weaken the voluntarist elements of libertarianism, and by doing so they allow libertarianism to better capture the moral significance of their own feasibility concerns as well. As a matter of practice, the institutional recommendations that traditional forms of libertarianism imply might also remain unchanged if we assume the correctness of the empirical considerations that are typically advanced in their support.

The recognition of exception rights would thus not seem to entail a radical departure from traditional forms of libertarianism but rather a more accurate representation of what libertarians ultimately care about.