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I'm perfectly willing to talk about a
hypothetical social contract as the basis of
rights. I know of two writers who have argued
for libertarianism on a contractarian basis --
Jan Narveson and Loren Lomasky. They begin with
self-interest and then, on that basis, argue for
moral rules. Here's Narveson's description of
how a contract fits into that argument:
Morals are rules or requirements,
presuming authority over us all: they are
rules that all are supposed to obey. To
show that a proposed morality is
reasonable, then, we need to show that
everyone – those being the people who are
asked to comply with them – has a reason
to comply. And that reason must already
exist. Making reasons out of thin air
doesn’t cut it. The contractarian view
enters the picture by proposing that the
right set of principles to play this role
is the set such that everyone, looking at
those proposed principles from his or her
point of view ex ante, can see that he or
she will do better if everyone, including
himself or herself complies with those
principles than if there are none or some
other set. [See Narveson's FAQ on The
Contractarian Theory of Morals.]
Now let me bring in another libertarian --
Loren Lomasky. I strongly recommend that you
take a look at his book Persons, Rights,
and the Moral Community. His arguments
may make more sense to you. I'm going to try to
summarize his view, but obviously his argument
is more complicated than what I can lay out
here.
Lomasky argues first for basic individual
rights. To begin with, he thinks of people as
what he calls "project pursuers." Projects can
vary greatly. Your project might be raising
children, becoming an athlete, or writing a
book. In any case, projects have the function of
giving direction, purpose, and coherence to our
lives.
Because projects are very
important to us, we value the means necessary
to carry them out, and we value our ability to
pursue them. This implies that each project
pursuer must value having "moral space" to
carry out his or her projects. Our rights
define that moral space. If we value our
projects, we must value living in a world
where we have such rights.
Because we each want rights
for ourselves, we have a reason to follow a
strategy that would bring about a world in
which we have such rights. Taking a leaf from
modern game theory, Lomasky concludes that a
cooperative strategy is best for each of us
and is possible because we are not by nature
entirely egoistic. It is therefore possible to
gradually develop a stable system of rights
for all project pursuers. This situation can
develop without explicit bargaining and
eventually be ratified by explicit agreements.
In other words, eventually a contract would
emerge, and it would be a libertarian
contract.
Lomasky's argument also
leads to a libertarian system of rights. A
libertarian system is best because it will be
the most stable system. It is most stable
because it requires the least compromise or
deference from all those involved. Systems
that require more deference will encourage
more individuals to withdraw from or overthrow
the system. In short, in Lomasky's view, a
combination of prudence and the requirements
of stability lead to the establishment of a
libertarian system of individual rights.
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