Responding to Sandy Levinson

Levinson asks:

PBS reports that the cost of rescuing the 33 trapped Chilean miners was $10-20 million. A third apparently came from private donations, with the rest from a mix of the state-owned copper company in charge of the effort and the government of Chile itself. Every American law student is told that there is, in the United States, no "duty to rescue." It is, of course, just such a notion of "good Samaritanism" that is the foundation of the welfare state, in which haves see their funds redistributed to have-nots lest the latter end up starving or freezing on the streets or watching their houses burn down because they can't afford to pay the user fee to the local fire department....

I've done a quick check of recent entries to the Volokh Conspiracy, which I take it is the leading collection of libertarians in the legal academy, and I notice that none of them saw the rescue as worthy of comment. Might it be too threatening for, say, David Bernstein, who announced his forthcoming talk to the Federalist Society (with a comment to follow by Jack Balkin) on his new book that attempts to rehabilitate Lochner, to admit that at least sometimes there is a role for the "rescuing state," which, almost by definition, must take from those who have in order to provide for those who don't? Or is there an ostensible "public purpose" in rescuing miners that doesn't cover, say, supplying medical care to children or food or shelter, among other things, to hungry infants or persons at the other end of the life cycle who, say, saw their savings wiped out by an economic collapse?

I answer:

I propose to treat the state as a morally contingent form of social organization that is nonetheless pervasive in the world we inhabit and in any world we can reasonably imagine in the medium-term future.

If we do so, one consequence is that we should view state officials as wielding a great deal of power in our social world that is probably not justified all the way down. States did not come about by individualist contractualist consent; they are not the institutional form of morally foundational nations; religious, hereditary, and customary forms of legitimation may remain sociologically credible in some places but are surely not morally well-grounded accounts of the justifications for the organized use of violence. Yet states are such well-entrenched features of the political landscape that, if can constrains ought at all, we are probably not morally obligated to abolish the state form in favor of some other form of political organization or in favor of anarchy of any description. We must morally make the best of them, making do with what we have.

In a world filled with states, officeholders and officials should view themselves as having political responsibility as analyzed by Weber, which is much like [David] Miller’s remedial responsibility. They wield power that is not morally legitimated by its origins; the power exists because of morally neutral historical and social accidents. What remains is moral responsibility for what is done with the power.

State officials then confront a world in which their authority gives them unusual power over outcomes. In a world full of drowning children, they are unusually likely to have access to life preservers. As Miller stresses, it is important not to view the world as always only made up of drowning children; we must also be able to see ourselves as partly responsible for the creation of our circumstances, our social worlds, and our outcomes. But even with that caveat in mind, there are drowning children enough to go around. Miller draws on Virginia Held’s (1970) famous argument that a random collection of individuals can be held morally responsible, to suggest that if they can, surely more substantial collectives like nations can be. But Held’s “random collection” shouldn’t be passed by so quickly; it is a serviceable shorthand for the reality of fellow-citizenship in a modern state, who make up a random collection of individuals who happen to be socially organized in a particular, contingent but powerful, way.

The state’s first duty, the prevention of interpersonal violence, follows more or less straightforwardly from the kind of social organization that the state is: the agency that is able to claim and enforce a local monopoly on the legitimate initiation of force. Not all forms of political organization have been like that, and the responsibilities of officeholders under them differed accordingly. But the ability to prevent private violence is constitutive of the modern state, which just for that reason acquires a responsibility to do so in accordance with the background moral rights of persons to be free from violence. Similarly, it acquires a responsibility to protect against theft and against aggression from outside its boundaries. It has displaced all other possible protectors; it has both the greatest ability and (due to its own actions) the only ability to defend against force; and so it bears the responsibility to do so.

Orthodox libertarianism would hold that this first responsibility (understood to include the prevention of private theft, not only personal violence) also more or less exhausts the state’s responsibilities. But the creation of the social technology that can protect against internal and external violence—for example, the creation of a professional body of armed men trained for coordinated action and a financial apparatus that can support that body—means that there is a significant concentration of physical and fiscal power on hand. And there may well be an overprovision of that power, since an underprovision is irresponsible and generates political pressure for state actors to fulfill their duties, and “just right” provision at the level that would keep police and armed forces working at precisely their whole capacity would be an astronomically unlikely coincidence. Then, unavoidably, the slack in the system provides the state and state actors with situations in which they have a unique capacity to prevent or mitigate harms and suffering. The police force created to prevent crimes also has the ability to respond to car crashes. The public fisc created to fund an army also has the ability to feed the starving. I am sure that there is no morally decent way to insist that the police officer refuse in principle to aid people in danger even if the danger wasn’t caused by crime, even though that means that the taxpayers will be involuntarily funding some use of the officer’s time that is not connected to rights-protection, even if the resulting situation is a violation of the best understanding of taxpayers’ property rights. Nor will it just be a matter of the personal benevolence of the police officer who wants to be free to prevent non-criminal harms while on the clock. If capacity and proximity can generate outcome-responsibility, then it can be the officer’s responsibility to act—and, accordingly, the responsibility of the state of which the officer is an agent.
Once the public fisc can prevent non-criminal harms indirectly, by paying its personnel to do so, it is a difficult distinction to maintain that it may not prevent them directly, by, e.g., feeding the hungry. Indeed, the distinction is probably an impossible one, and so all non-autocracies will end by being in the business of distribution (Dahl 1993). Once states are distributing benefits—and even physical protection is a benefit about which distributive decisions are made, as is perfectly evident when looking at the geographic unevenness of police protection in all countries—they face moral constraints about how and to whom they should be distributed. That is, there are problems of political redistributive justice, even if redistribution is not in itself demanded by justice.

I do not suppose that these brief remarks will persuade my fellow libertarians that they ought to abandon their views on redistributive spending. But perhaps they will agree that the police officer on duty has a responsibility (and not just the responsibility borne by any natural person) to aid the drowning child, even though doing so is a drain on taxpayer resources that is not for the sake of the prevention of interpersonal rights-violations, even though doing so provides a kind of subsidized in-kind insurance against misfortunes that are not injustices. The subsidy is not itself a demand of libertarian justice but of public responsibility conditional on the fact of public power; but once the subsidy exists, it is constrained by concerns about justice. A state could not justifiably intentionally deploy police differentially according to the race of the children likely to be at risk of drowning.

(From Levy, "National and Statist Responsibility," Critical Review of International Social and Political Philosophy, Volume 11, Issue 4 December 2008 , pages 485 - 499.)