There Are No Procedural Moral Rights
Mayor:thief :: juror:vigilante
In other words, Richard argues, instutional actions are sometimes justified, even though these same actions--if commited by an individual citizen--would be unjustified, because there are procedural safeguards (rule of law, trial by jury) present when an institution acts that are not present when an individual acts.
This misunderstands the purpose of the parable in two ways. Parables like Hanover are primariy used by libertarians in response to love-it-or-leave-it arguments. When a libertarian objects to, say, social contract theory justifications for the state on the grounds that she never signed any social contract, the love-it-or-leave-it response is that her continuing presence in the territory to which the state claims jurisdiction over itself constitutes consent to the social contract, and therefore justifies the state's jurisdiction. If she doesn't like the rules, she is free to leave (or change them through electoral participation).
But the love-it-or-leave-it response is entirely circular. It assumes the very thing it is attempting to prove - the legitimacy of the state's jurisdiction over a given territory. Unless we first assume that the state is the legitimate owner of the territory in question and can therefore set the rules (and if we assume that, we have already assumed our conclusion), the freedom to leave the territory is no freedom at all. Your neighbor can't come over to your house and tell you to wear a funny hat or feel free to leave, because it's not his house to begin with.
The second misunderstanding is that procedural safeguards are not moral rights. Procedural safeguards are justified on practical, epistemic grounds, not on ontological, moral rights grounds. There is nothing inherently rights-violating about vigilantism, so long as the vigilante happens to be right about who commited the crime. We may think the vigilante reckless, but not that he has violated any moral right of the person he punishes, if the person he punishes happens to have commited the crime.
Robert Nozick failed to recognize this distinction, and thought that he could justify the state on the grounds of procedural rights. Randy Barnett demonstrated Nozick's error:
Though only the innocent party may rightfully use self-defense, it is often unclear to neutral observers and the parties involved just who is innocent. As a result there exists the practical problem of determining the facts of the case and then the respective rights of the disputants. But I must stress here that this is a practical question of epistemology not a moral question. The rights of the parties are governed by the objective fact situation. The problem is to discern what the objective facts are, or, in other words, to make our subjective understanding of the facts conform to the objective facts themselves.
The crucial issue is that since rights are ontologically grounded, that is grounded in the objective situation, any subjective mistake we make and enforce is a violation of the individual's rights whether or not a reliable procedure was employed. The actual rights of the parties, then, are unaffected by the type of procedure, whether reliable or unreliable. They're only affected by the outcome of the procedure in that enforcement of an incorrect udgment violates the actual rights of the parties however reliable the procedure might be. ...
Nozick's epistemic considerations are relevant to whether one who indiscriminately takes restitution from people he's not sure are aggressors (but happens by chance to be right) is a good man. This is a question of morality, not rights. Epistemic considerations are also relevant when we realize that we are likely to aggress against innocent people and be responsible to them if we aren't careful about who we "punish." This is a practical question, not one of rights. ...
We may take as our moral goal or end a certain state of affairs. Anything which enhances this state of affairs we may do provided we don't violate certain moral side constraints on our actions. Nozick correctly argues that the protection of rights is not a moral goal since this would allow us to violate the rights of a few in order to generally enhance the rights of the many. For example, one may not torture the innocent person to gain information which will prevent the explosion of a bomb even though this would generally enhance the goal of protecting peoples rights (in this case the rights of the potential victims). Rights of individuals are moral side-constraints. We may strive to achieve our goals in any way which does not violate an individual's rights.
I would adapt this view to our discussion here. For practical and moral reasons, procedural fairness and knowledge by enforcers of the guilt of their suspects are moral goals to be striven for. Our efforts to achieve them, however, cannot violate the rights of any individual. To punish a victim for taking restitution from his actual aggressor just because he wasn't sure it really was his aggressor is a violation of that victim's right of self-defense and, therefore, a violation of our moral side-constraint. The right of self-defense, then, dictates that procedural fairness and epistemic certainty are goals, not constraints.
- Randy Barnett, "Wither Anarchy? Has Robert Nozick Justified The State?" Journal of Libertarian Studies, Vol. 1, No. 1. pp 15-21 Pergamon Press, 1977
The lesson of Hanover still stands: taxation is theft.
(Incidentally, I notice that Richard rejects the deontological notion of side-constraints in favor of some version of utilitarianism. As it happens, so do I. So Richard is free to reject this second argument, but I think the first is still valid.)