Jacob Levy responds by saying -- these are my terms, not his -- that there's a difference between legitimacy and justification. The Chilean state, like all states, has way more power than is legitimate. This is, in large part, because actual states are never the outcome of social contracts:
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.Nonetheless, states exist, and have a mass of de facto power. The question is, how should this power be used? Jacob thinks -- rightly, I say -- that the illegitimacy of state power has no immediate bearing on the question of how that power might be justifiably used now that it exists. The libertarian is committed to saying that the Chilean state has amassed illegitimate power -- power that cannot be "morally well-grounded" -- but that, nonetheless, it is justified in using that power to rescue the miners, since "capacity and proximity can generate outcome-responsibility." It might be wrong for the Chilean state to have the power to rescue the miners, but it might still be right for the Chilean state to use its power to rescue the miners.
So far, so good. I am myself fond of drawing this same distinction between legitimacy and justification, and I think it does get Jacob's special version of libertarianism out of the dilemma Levinson is pushing.
Where I think there might be a problem is here:
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.Notice that word, "legitimate"? Now, I know Jacob is using that in a purely Weberian way -- the local monopoly on legitimate initiation of force is the local monopoly on de facto accepted initiation of force. But this points, nonetheless, to the ideological underpinnings of state power. The state is only the state if it seems to people to be a legitimate power. I would hazard that a state that goes about rescuing miners is, other things being equal, more likely to seem legitimate to the people it governs than is a state that does not undertake such insurance and welfare tasks.
If this supposition is true, at least in the normal run of things, then Jacobite libertarians (as opposed to the Jacobin libertarians caught in Levinson's dilemma) seem caught in another dilemma, more psychological than logical. Since the state that uses its illegitimate power in justifiable ways thereby secures that power -- after all, people are not in a habit of differentiating between legitimacy and justification -- there is some tension between a) the hope that what power there is will be well-used, regardless of its source, and b) the desire that justice will be done by stripping illegitimate power from its holders. If the usurpers use their ill-gotten power well, and placate the people with bread and circuses, what hope is there that we will ever be rid of usurpers? There is some psychological difficulty in saying: "I hope that thief uses what s/he has stolen in such a way that it's harder to convince people s/he should give what s/he has stolen back to its legitimate owners."
This psychological dilemma between stringent moralism ("Let justice be done, tho' the heavens fall!") and soft-hearted meliorism ("What's done is done, so let's make the best of things") is not restricted to libertarians, of course. It is analogous (but only analogous) to the tensions in Marxism that give rise to "accelerating the contradictions" as a tactic -- trying to ensure that the usurpers aren't able to or won't do anything with their power that might incline people to forget that they are usurpers. Now, it's not surprising to me that Jacob tends to the soft-hearted meliorism side of things, but I don't think anyone can go very far in that direction without jeopardizing their commitment to the notion that the usurpers have what they have illegitimately. If strict determinations of right are to have any purchase at all, they have to have that purchase against the good outcomes that might come about at the expense of strict determinations of right.