Human rights

Paper Rights

The trouble with international human rights law

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The Twilight of Human Rights Law, by Eric Posner, Oxford University Press, 200 pages, $21.95

Legally speaking, human rights have proliferated over the last 40 years. Only 20 human rights were listed by treaty in 1975. Today there are around 300, including the right to privacy, the right to freedom of movement, the right to join a trade union, and the right to an interpreter in official proceedings. With so many human rights recognized by so many countries, we clearly are moving toward a more just and humane world.

Or perhaps not. In his new, short, drily pessimistic book The Twilight of Human Rights Law, University of Chicago law professor Eric A. Posner meticulously, and with a touch of glee, pours cold water on the hopes of the international human rights regime.

There is little evidence, Posner argues, that the proliferation of human rights treaties has done anything to push countries toward a greater reverence for human rights. In fact, he suggests, the growth in the number of legally enshrined human rights is both a symptom of and a contribution to the general incoherence of human rights law. With so many different rights on the books, from a right to free speech to a right to employment, countries can pick and choose which they want to pursue.

You might think that the solution here is to reduce the number of rights to a bare minimum—say, the rights to free speech, free elections, and fair trial. But such a reduction would never receive international assent, in part because it might actually be enforceable. With tons of human rights laws available, the United States can say that it needs to spy on its citizens, despite the right to privacy, because otherwise it will violate the right to security. China can say it needs to limit the right to free expression in order to ensure the right to development. One right is at least potentially legally meaningful. Hundreds aren't.

Nations sign human rights treaties because signing is costless. Western countries have already established human rights in law (at least to some degree), so the treaties require no substantial change. Authoritarian countries sign the treaties, Posner says, because "they do not want to offend Western countries, but also do not expect to incur any costs from doing so." Saudi Arabia on paper says it will grant rights to women, but it has no intention of doing so; Brazil has signed treaties outlawing torture, but its police routinely torture anyway. There has been some improvement in human rights worldwide since the '70s, but that's mostly because of the collapse of Communism. No country pays attention to its human rights treaties. The only reason the treaties have been widely ratified is because everyone knows that the obligations will never be enforced.

Posner carries the argument further, claiming that even enforcing the treaties would not necessarily be beneficial. Governments, and especially poor governments, have serious limitations on their resources. Protecting rights can be costly and difficult. How would you go about enforcing a right to health care in a country with strictly limited resources? Even political rights, Posner argues, can have unexpected downsides. In fractious nations like Iraq, Sadaam's repressive regime, awful as it was, prevented an outbreak of civil war which, by the death toll at least, has been significantly worse. Balancing the right to free elections versus the right to security, or the right to health care versus the right to food, is a job best done by individual country's political institutions, Posner argues, not by international bodies imposing inflexible rights.

This argument can at times tip over into a blanket conservatism and an odd idealization of entrenched governments. Posner argues, for example, that preventing torture requires the investment of resources to monitor security forces, investigate charges, and bring perpetrators to justice. He concludes that "the key question for a state is how much of its resources it must devote to countering torture at the expense of building health clinics and public schools."

The vision of concerned governments carefully weighing how much torture they can afford to restrain neatly elides the fact that torture itself is very often expensive—in Chicago, police torture resulted in numerous wrongful convictions, which meant the state paid for a wasteful investigation, useless trials, and years of incaraceration for no reason. On a broader scale, North Korean prison camps are not a sorrowful trade-off for North Korean prosperity. Officials in power are often thuggish, not out of rational economic calculus, but because some people enjoy being thugs and will pay for the privilege. That seems obvious enough that it's hard to believe that Posner is entirely in good faith when he worries that NGOs like Human Rights Watch may induce governments to "transfer resources from poverty prevention to torture prevention." Is this really a serious concern? Or has Posner's investment in his own counterintuitive argument simply run away with him?

If Posner lets his delight in trolling NGOs outweigh his concern for the well-being of folks in distant nations, that actually (if inadvertently) bolsters his larger point. International rights law is, he argues, always going to be flawed and unenforceable in part because people don't care that much about individuals living on the other side of the earth. They do care a little—there is grudging support for some foreign aid, and more for providing relief during big showy disasters such as an earthquake in Haiti or a tsunami in Asia. But the interest is always limited and transitory.

That limited, transitory interest is both inevitable and, Posner suggests, insufficient. It's part of why, in Posner's view, "There is very little that the West can do for poor countries. It turns out that foreign countries really are foreign. It is hard for us to understand their peoples, customs, institutions, and pathologies. It is often hard to tell whether efforts to help those countries improve the well-being of people or just create new problems." That's why development aid has moved away from massive one-size-fits-all projects toward smaller scale, targeted efforts to improve conditions, which are reevaluated and reworked on a country by country basis. Human rights efforts, Posner suggests, need to follow that model as well.

At the very least, Posner's argument raises serious questions about the rationale for humanitarian military interventions. Human rights treaties do little positive harm. But dropping bombs on people for humanitarian reasons is another matter. Posner discusses military intervention as a sidelight to his main thesis, but following through on his logic I think leads to a very forceful criticism of intervention as a "humanitarian" policy.

Posner points out that human rights are rarely the sole rationale for an intervention, precisely because nations are not invested enough in distant human rights issues to risk resources and lives. This is true even in the case of the most egregious atrocities, such as the Rwandan genocide, in which most Western nations sat on their hands. (Posner does not mention this, but France was an exception. It did have national interests involved—and its interference was not especially constructive.) But human rights do often provide an extra argument, or excuse, for intervention. As Posner says, the wars in Afghanistan and Iraq were "defended on humanitarian grounds," as were the intervention in Libya in 2011 and the recent attack on ISIS. The argument in each case is there are governments or groups who will perpetrate hideous human rights violations if left to themselves, and that American military power can defeat the bad guys and protect innocent lives.

If even development aid and peaceful human rights provisions are difficult to implement in a beneficial way, though, how much harder must it be to improve human rights outcomes by tossing a bunch of firepower at them? Given the low level of interest in the well-being of foreigners and the manifest inefficacy of blunt, universal human rights instruments, there seems little reason to believe that war will improve humanitarian outcomes even in the best of cases. Posner makes a strong case that human rights law needs to be approached with more care, more humility, and less hubris. That's surely even more true of human rights interventions, where the stakes, and the potential death tolls, are much higher.

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  1. the key question for a state is how much of its resources it must devote to countering torture at the expense of building health clinics and public schools

    My head hurts. It’s probably because I’m hung over, but this isn’t helping.

  2. “…in Chicago, police torture resulted in numerous wrongful convictions, which meant the state paid for a wasteful investigation, useless trials, and years of incarceration for no reason.”

    Oh, there’s a reason, alright… to keep judges, DAs, council members, and other lawmakers reelected. Fuck justice and due process, we can’t be seen by the voters as “soft on crime”!

    1. What are you talking about? The police don’t arrest innocent people. Guilty people sometimes get good lawyers, but the system never goes after innocents. Ever. Everyone knows this.

      1. Yeah, and even for the innocent, prison can be a good learning experience.

        1. everyone is guilty of *something*

  3. we clearly are moving toward a more just and humane world. Or perhaps not.

    Obviously the solution is to list by treaty the human right to a just and humane world.

  4. Isn’t Berlatsky the dude who was whining about portrayals of prostitutes in video games and how the SJW anti-gamer douchebags have a point who then got wrecked in the comments?

    Funny that guy being a free speech guy…

    1. You can not like certain speech without being against free speech, you know.

      1. Exactly – he wasn’t talking about banning those precious prostitute-killing scenes, was he?

        1. Even though it’s ok to kill everyone else. SJW reasoning: it’s not reducing violence that’s important, it’s making sure that violence is uniformly distributed among the various populations, that’s what we should focus on.

  5. Protecting rights can be costly and difficult.

    Not really. Any “right” that imposes a cost on others is not a right. It is an injustice.

    1. Not to Berlatsky. The right to employment and the right to health care weren’t included by accident.

    2. “Any “right” that imposes a cost on others is not a right. It is an injustice.”

      What about ‘you have the right to an attorney, if you cannot afford one one will be appointed for you?’

      1. That’s really an entitlement to an attorney. Someone correct me if I’m wrong, but that was not added to “rights” until the 20th century as a result of people getting railroaded because they couldn’t afford representation.

        1. You are correct. Miranda v Arizona, 1966

      2. What about ‘you have the right to an attorney, if you cannot afford one one will be appointed for you?’

        No one has a natural right to the labor of others, though you may have a contracted right, like when you hire employees at your factory or hire a plumber to unclog your shitter. So the “right” to an attorney isn’t really a natural right. Ostensibly it is a contracted one, but within the context of a judicial monopoly interpreting the law of a legislative monopoly, that distinction is blurred into appearing as though it were a real “right”.

        Advocating any sort of right that obligates others to act, produce or transfer their property is necessarily an endorsement of slavery.

        1. Don’t forget the right of the defendant to have *compulsory process* for getting defense witnesses.

          1. Really, sometimes you just gotta balance individualism against the public interest.

            /heresy

            1. The supremacy of individualist principles is precisely the public interest.

      3. I think that the right to an attorney is a bit of an exception. All the negative rights don’t really need to be written out unless you are under the control of government. If the government ceased to exist tomorrow then free, speech, the right to bear arms etc. would be the default because nobody would have the authority to stop you.

        The right to an attorney would also cease to exist, and become unnecessary. If the government is going to spend the money to prosecute you and put you in jail, then they need to spend the money to defend you if needed. So it’s a privlege, but a necessary one under a just government.

        1. Well put.

        2. So it’s a privlege, but a necessary one under a just government.

          Is a just government one that can expropriate property with impunity?

          1. If they can take your money to pay a lawyer to prove your guilty, then they must use it to pay for a defense attorney. If the “right” to an attorney doesn’t exist then the state can still take your money.

            1. If they can take your money to pay a lawyer to prove your guilty, then they must use it to pay for a defense attorney.

              Supposing this occurred in a private law system, if you were prosecuting someone for breaking into your home and stealing your tv, would it be just to force you to pay for the burglar’s defense? Does the burglar gain a right to have you bankroll his defense because you would dare charge him with the crime? Having the plaintiff paying for that defense after acquittal is one thing, having them pay for it from the onset is unjust.

              More to the point, do the accused have a right to rob someone outside the courthouse to pay for their defense? Because if they don’t, then they certainly don’t have a right to use a 3rd party robbery (taxation) to finance their defense.

              If the “right” to an attorney doesn’t exist then the state can still take your money.

              can =/= ought. Justice is a matter of ought.

              1. If someone can’t afford representation then they are basically screwed. Don’t matter if it’s a public or private justice system. People say innocent until proven guilty, but in the real world you are guilty until you prove your innocence.

                Whether or not force should be used to pay for representation is another matter.

                Saying that the poor would not have representation if the government didn’t force people to pay for it is like saying there would be no charity if government ended all redistributive programs.

                Should people have an attorney when accused of a crime, even if they cannot afford one? Yes. I think so.
                Does that warrant government force? I’m not so sure. With the proliferation of criminal law out there today, then I’d almost say two wrongs make something that’s less than bad. In an ideal world where criminal law was limited to crimes with victims, then I do believe charity could fill in the void.

                1. Would represent’n be necessary if the law were simple? In your house, when the kids have a dispute, do they need mouthpieces? No, because you keep it simple. I believe the law can be simple.

                  1. I believe the law can be simple.

                    Not when it is written by self-interested lawyers.

                  2. Would represent’n be necessary if the law were simple? In your house, when the kids have a dispute, do they need mouthpieces? No, because you keep it simple. I believe the law can be simple.

                    Well to be fair, systems of law exist precisely for conflicts that are not otherwise simple problems. I don’t necessarily disagree that the ideal legal system would place high value on simplicity as principle used to decide valid law. But the ideal legal system would be necessarily complex relative to the average layman’s level of knowledge.

                    1. Then why do we allow juries to have any fx at all?

                2. If someone can’t afford representation then they are basically screwed.

                  It would be fair to provide them with a defense, but that doesn’t make it a right. No one has a right to the labor of others that hasn’t been contracted.

                  Don’t matter if it’s a public or private justice system.

                  Indeed it doesn’t. Separating the libertarian theory of justice, from the actual in-existence judicial system allows for clear and concise analysis of theory.

                  People say innocent until proven guilty, but in the real world you are guilty until you prove your innocence.

                  Which is exactly why I want to discuss valid theories of justice without wearing the blinders of the existent judicial system.

                  But if you want to take the long road, we can frame our discussion of theory within the context of the current legal system, however now we’ll have to accept several statist theories of justice at face value (i.e. social contract theory et cetera) which just makes for a much more verbose discussion than either of us would care to get into, I suspect.

                  Whether or not force should be used to pay for representation is another matter.

                  It’s the very same matter. Taxation pays these “public defenders”, no?

                  1. Saying that the poor would not have representation if the government didn’t force people to pay for it is like saying there would be no charity if government ended all redistributive programs.Should people have an attorney when accused of a crime, even if they cannot afford one? Yes. I think so.
                    Does that warrant government force? I’m not so sure. With the proliferation of criminal law out there today, then I’d almost say two wrongs make something that’s less than bad. In an ideal world where criminal law was limited to crimes with victims, then I do believe charity could fill in the void.

                    I completely agree. I’ll add that the existence of “victimless crimes” is another reason to separate our theories of justice from the US legal system.

    3. All rights impose costs on others. Your right to not be tortured costs enjoyment to thrill-torturers.

      1. “Costs” that are stolen from another person…

        Basically, NAP.

      2. True. The economic notion of cost does not distinguish between, say, damaging someone’s property and inhibiting their ability to obtain more property.

        So if someone otherwise might steal my car, my right not to have my car stolen imposes a cost on the person who wanted to take my car, a cost equal to the value of my car. Economically speaking, it’s all ‘disutility.’

  6. How would you go about enforcing a right to health care in a country with strictly limited resources?

    Easy. Get the IRS to collect a penaltax.

  7. It seems like the larger problem here, is the assertion that somehow government allocates rights to its people. People have rights because they are people, not because some socially-constructed government entity awards them rights. If anything government does more to infringe on rights than advance them.

    1. People create rights, true, so people are necessary for their creation. However, it’s not as if their creation of rights didn’t take effort. So people are necessary but not sufficient for rights to come about. “Government” and “rights” are just other words for “law”.

      Unfortunately law/gov’t/rights have vastly overgrown their usefulness, and need to be cut back & simplified.

      1. People create rights, true, so people are necessary for their creation.

        People create the abstract conception of ‘rights’, but ‘right’ is just shorthand for ‘acceptable norms within human interactions’. Those norms are predicated on man’s ability to engage socially and to reason, a.ka. ‘his nature’. As such, rights are to be discovered, the abstract values placed on those rights are what we create.

        1. There’s a difference between invention & discovery. If rights could be discovered rather than invented, that’d mean there’s only 1 exact possible system of all rights.

      2. “Government” and “rights” are just other words for “law”.

        Fighting the urge to facepalm myself to death…

    2. Ask an SJW social constructionist type person if those principles apply to female circumcision, and they’ll they turn into a deontologist so fast their heads will spin. It’s fun to watch, really brings out the hypocrite in them.

  8. If you garbage the meaning of the word “human right” to include “positive” rights to force others to do things, then I don’t know that a failed “international human rights regime” is a bad thing at all.

    In fact, I can’t think of any reason to hope that any “international regime” succeeds.

    1. Not only positive ones, but vague ones (both positive & negative).

      1. I can’t think of a vague negative right. I can think of a negative right described vaguely though…

        Negative rights and positive rights are mutually exclusive. You can only have one side or the other. If you insist that others have to work/pay for someone else, then there are no negative rights*.

        *Proof, I don’t pay, you send a collector. I still refuse to pay, you send men with guns. I defend myself from them, you send more men with guns… ad nauseam.

  9. Philosophical question: Where do our rights actually come from? I heard my whole childhood about my God given rights. That I had certain rights that were above the law of man. I no longer have faith in a higher power, but I still believe in Natural Rights. To be honest, it causes a bit of cognitive dissonance considering the vast majority of humankind through history experienced no such thing. Rights have always seemed to be arbitrary to a certain extent. Outside of the frame of constitutionality, how can I rationally argue my viewpoint?

    1. From your nature as a civilized human being.

      The alternative to natural rights is ‘might makes right’ which is barbarism.

      Your need for freedom of conscience is as natural as your need for protein.

    2. If you lived alone in nature, truly alone, i.e. no other sentient being lived, then what would you be able to do?

      Well, practically anything that the physical laws of the universe allow, up to your ability to exploit them. Since there would be no other people, none could deprive you of your health, your life, your possessions, or your conscience. All the world would be your dominion, provided you were able to keep it. There would be no limit to the expression of your will apart from physical impossibility.

      Now add in a second person. He too has this same breadth of freedom. But now you can be deprived of yours by him, or vice versa. Now there must be rules apart from the immutable set imposed by nature. What is the least restrictive set of rules that preserves to the greatest extent the natural freedom of the individual?

      The answer to this question is the boundary of natural rights. Locke identified these rights as life, liberty, and property; more properly, they are prohibitions on the actions of people that would abridge the freedom of others.

      This still leaves begged the question of sentience and the incumbent notions of moral agency and responsibility.

      1. That argument makes sense. I just have a hard time with the law of the three C’s. Competition, Creativity, and Civilization will always be in conflict with themselves while simultaneously being essential to the existence of each other.

      2. What is the least restrictive set of rules that preserves to the greatest extent the natural freedom of the individual?

        That is terribly close to the “least restrictive means” test used by the court to infringe on all our rights. What you ought to base this on is “what is all that I can do that won’t aggress against the other person. That isn’t a slippery slope like your POV is.

        That being said, yours isn’t that bad, I just think it’s slightly off.

    3. Philosophical question: Where do our rights actually come from?

      Where does the matter and energy that comprises the universe come from? Must there be a beginning and and ending? Was it created by a supreme being that always existed, or could it have just always existed?

      Why must rights come from something? Why can’t they simply exist?

      1. Simple: Rights come from people living together and working out how to get along.

        1. See, that’s subjective. If natural rights have different values in different cultures then they aren’t rights at all. They are nothing more than permissions granted by the given state.

          1. They are nothing more than permissions granted by the given state.

            Wrong. For example I have a right to defend myself and my family, regardless of what the state says. The state may choose not to recognize that right, but that doesn’t negate it.

            1. True, to an extent. But I think of that as an expression/byproduct of evolution. You do what you must to protect the ones who matter most, and fuck the consequences. I get that. But I’m not sure that is a right. At least, it depends on who’s doing the assault. Especially if it happens to be state sanctioned. Maybe I’m just a little puzzled at the moment on what a right truly is. Without some sort of pillar to stand on as unalienable, what is a right?

              1. Here:
                http://en.wikipedia.org/wiki/N…..ive_rights
                Yeah, yeah, Wikipedia I know.
                As a libertarian I support negative rights, and abhor positive rights. Because for positive rights to exist, they must negate negative rights. Thus they are not rights at all.

                1. Oh, I agree. A right that imposes force on another is no right at all. That’s why I hold the unpopular opinion that people and businesses should be allowed to discriminate based on what they see fit. I also believe in public shaming to point out the backward beliefs of said businesses. Information should always be the first course of action, legislation the last.

                  Aside from that, rights in and of themselves are a result of our nature. But, they seem to be suppressed more often than not. Yet here we are. The majority of human history has been lacking in individual rights but still continued to expand. While I agree that the libertarian ethos produces the best possible outcome, I don’t believe that it’s necessary to the continuation of our species. Would it be better, yes. Absolutely necessary, no.

              2. Rights exist within the context of human relationships and are derived from man’s nature, his unique ability to reason and engage socially with others. Rights are to be discovered, not created.

                Do you believe that you own yourself?

                1. Of course I believe that I own myself. I owe nothing and nobody a thing outside of paying my taxes(despite how I feel about what they are being spent on)and not harming another’s person or property. I find the idea of a percentage of my body belonging to someone else insulting.

                  As far as rights always existing, I get what you’re saying, but it doesn’t seem to be the normal way that humanity interacts with each other. Yet, we still proliferate, we still grow.

          2. See, your problem is assuming rights pre-exist in “nature”. If rights were “natural” in that sense, there’d be no discussion about them, you’d always have them. Law is an invention, not a discovery.

      2. Why can’t they simply exist?

        Because I can’t bring myself to believe the argument holds water. From a purely evolutionary standpoint, rights aren’t necessary for the continuation of a species. The vast majority of mammals operate under the might makes right system. Breeding, food, any and all social benefits are usually reserved for the alpha male.

        While I understand that human beings are infinitely more complex than say, a family of orangutans, there is still no natural reason for individual expression outside of the social good.

        I know I’m sounding like a progressive right now, but that’s kind of the point. I’m a strong advocate of individualism and believe that the empirical evidence supports the idea that laissez faire rule of law and free trade is greatest method of improving the human existence. However, I still struggle with the idea of it being natural.

        It justs bugs me.

        1. Natural rights are a product of logic based upon a few premises, like the NAP (Non-Aggression Principle, which by the way does not forbid self defense in reaction to aggression, it forbids aggression) for example.
          Like Robert said, it has to do with people getting along. Banning aggression, voluntary cooperation instead of might-makes-right, is a good foundation for civilized society.

        2. From a purely evolutionary standpoint, rights aren’t necessary for the continuation of a species.

          Quite to the contrary. Humans are highly social animals. Our success as a species is determined by our ability to cooperate, without objective rights we wouldn’t have cities, societies, division of labor nor indeed our survival to this day.

    4. God is a simple answer. That would explain why we discover them instead of rely on history or majority.

      To defend God’s involvement, I simply combine “Do unto others” and “Eye for an eye”. Do unto others may be the moral way to live but avoiding harming others is all that’s necessary to respect their rights. “Eye for an eye” is justice defined. Note that God’s inspired system of “governance” is a Judge who (as far as I can tell) simply judges between an accuser and a defendant. If there is no victim then there is no “government” agent to try to prevent the act. (Of course, the majority demanded a big govt to “make them moral” and “so they could be like the other nations”.)

      how can I rationally argue my viewpoint?

      I’m always tempted to slap them in the face until they come to the conclusion that it is wrong to harm another. Don’t actually do it, but give them the thought experiment. Once again, it is hard to understand where rights come from if you ignore what true justice is, basically a version of double entry accounting. You took from me so I take it back from you.

      http://mises.org/library/punis…..ionality-0

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  13. “The only reason the treaties have been widely ratified is because everyone knows that the obligations will never be enforced.”

    But enough about Kyoto…

    Seems to be some “confusing a feature for a bug” stuff here.

    The things that are so frustrating about ‘Human Rights’ laws are equally the same with a large chunk of ‘international law’ overall. Ultimately the issue is less to do with ‘human rights’ as a nice-sounding-idea and far more to do with popular delusions about International Relations as a whole, and the nature and limits of their ‘enforcement’ (wrong word – i think ‘coercion/coercive’ is better) mechanisms.

    An element missing from the piece is the role of Trade. International law is mostly a feelgood charade; threatening to use military power to enforce ‘human rights’ profoundly misunderstands the nature of both things; but trade – offering and/or imposing penalties to it – is probably the best tool the West has in spreading some more-universal respect for ‘individual rights’; although it will never be universal or cross-culturally applied the same. Sadly, due to prevailing biases, the tendency is to use the ‘stick’- depriving trade – rather than allow the ‘carrot’ to gradually do its work.

    As frequently pointed out: the problem with global application of Western Principles of civilization is the absence of Western-Style Institutions or a culture that respects any idea of innate ‘equality of man’ to begin with. The planet is still mostly tribal.

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  17. This might be the most satisfying article I’ve seen on Reason, ever.

    Human rights laws, in practice, never amount to anything that helps anyone. They are a low-friction political football kicked around because 1) the promises sound nice and 2) there are always a million ways of plausibly denying why the countries involved don’t end up guaranteeing these “rights.” Like a lot of progressive policies “designed to help,” they fail consistently, but they’re so well-intentioned! “What are we supposed to do, NOT try to help?”

    And do we really want to live in a world where the powers that be are powerful enough to guarantee all these rights to everyone? Because that is unlikely to turn out well for anybody.

    1. Positive rights are bullshit for obvious reasons, but even negative rights are unworkable nonsense on a global scale. I can claim someone on the other side of the planet in Totalitaria has a certain right, but if it’s not guaranteed to them, and if there are no real world consequences when Totalitaria continues to ignore the right, what the hell is the “right” good for? Rhetorical power, to be leveraged presently or in the future when a politician in power wants to hold Totalitaria’s feet to the fickle fire of public outrage for some other purpose. That’s all.

      I don’t at all buy into the concept of natural rights either, though my views in that area do end up running almost perfectly parallel to standard libertarianism anyway. Not worth arguing about. Especially not on the internet.

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