Libertarian Law and Legal Systems Part One – Foundations of Libertarian Law

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One of the more fascinating but less discussed areas of libertarian theory is how law and legal systems will operate in a libertarian society. To complete such a survey in its entirety would take a lifetime of study and authorship of one or several treatise-length works. We shall, therefore, be placing a very necessary limit to the scope of this survey by concentrating on where, why and how legal liability would arise in a libertarian society – in other words, our primary question will be “what are the causative events that trigger liability?” We will not be exploring in detail the further questions of legal responses to this liability such as punishment, retribution, restitution and so on, nor will we be exploring in too much details the question of how competing police and civil or criminal court systems might operate (except, as we shall see below, to contrast them to state-based legislative law-making systems). Even so the treatment of this topic of liability alone will still contain many omissions and areas requiring expansion with more detail. Nevertheless we hope to lay the foundations of how libertarian law might operate.

This, first part of a five-part series will examine what law is from a libertarian perspective, how different areas of the law can be categorised and how legal principles will arise in a libertarian society. Part two will investigate how libertarian legal systems will recognise self-ownership and the original appropriation of ownerless goods. Parts three and four will explore the laws of consent and of torts respectively while part five will deal with some miscellaneous but nevertheless significant considerations.

What is a Law?

The question “what is law?” has caused a fierce and unsettled debate in the history of jurisprudence. The main bone of contention has been between a school of thought known as legal positivism on the one hand and those such as natural law on the other. As a very crude summary, positivism states that the existence and validity of a law is dependent upon its formal characteristics while analysis of its substance or content is a separate consideration. For example, for the positivist a law mandating that all ginger-haired people be shot could still be a law depending upon its source; whether that law is a just law and whether there is an obligation to obey it is a further consideration not contingent upon the classification of the norm as a law. Other schools of thought, however, find it difficult to divorce the consideration of what a law is from its merits, ultimately stating that an unjust law is not a law, or is at least, in some way, legally deficient. A third line of thought, that of Ronald Dworkin, appears to approach the question from an epistemological route, arguing that questions of law cannot be resolved without resort to moral standards and considerations.

The restricted scope of this essay notwithstanding it would be futile to attempt to settle this long-standing debate here. Our preoccupation, in determining where legal liability arises in a libertarian society, is with what the law should be and we are not particularly concerned with whether, in some other society, a certain posited norm is or is not law depending on the equity of its content. We will, therefore, reserve some modest observations on this question for a postscript that appears at the end of this essay. Nevertheless we do need to analyse precisely which aspects of law separate a legal obligation from some other obligation such as a convention, a custom, manners, or a tradition, an analysis that should be general enough to be lacking in contention in regards to the unresolved philosophical problem that we just cited. There are two aspects of law that we will explore that serve to distinguish it from other obligations.

Law and Enforceability

The first of these aspects concerns law’s enforceability. All norms are, of course, “enforceable” in one way or another. If you believe that I am behaving in breach of a moral obligation in some way then you can withdraw your association with and funding of me, a situation that may cause me to assess my behaviour. However, such enforcement does not compel obedience and, indeed, should I accept your withdrawal I may decide that I wish to carry on with my behaviour regardless. The difference with a law, however, is that it is a violently enforceable rule – that is, adherence to it may be compelled by the use of force1. Governments, of course, do this in our society today. If you break a criminal law then they will lock you up in prison, and in a worst case scenario, kill you, especially if you try to defend yourself. If you break a civil law then they may confiscate some of your property. With a mere manner or custom, however, this is not the case. If I break wind at the dinner table a gang of heavies does not break down the door and drag me away. The host may choose to exclude me from his house, of course, and then I might be dragged away, but that is because the withdrawal of his invitation to stay means that I am now invading his private property and not because I displayed bad manners per se. The character of law being a violently enforced social rule we will carry forward into our libertarian world, even though we do not necessarily know who would be the enforcer. It could be oneself where self-defence is required; or a private security agency or arbitrator; or, for minarchists, it may still be the state itself. All we need to know is that the incurrence of legal liability would result in someone being exposed to violence in order to enforce that law.

What, therefore, are the causative events that will trigger this liability, this subjection to violent enforcement, in a libertarian world? To answer this, we need to recall the fundamentals of libertarian ethics of self-ownership and private property. We have elsewhere detailed the justification of these concepts so here we will simply restate these principles and assume that they are true. The question of what is ethical behaviour arises from the physical scarcity of goods in the world. The products of answering this question – social rules – are designed to avoid or otherwise resolve interpersonal conflicts arising from the fact of scarcity2. The libertarian answer to this question is that every individual human being has the exclusive right to possess his own body free from physical molestation by other human beings. Similarly, everyone has the right to control, exclusively, the goods of which he is the first user, i.e. those goods with which he has “mixed his labour”. These two types of right are ownership rights – self-ownership and ownership over external things (“private property”) respectively. Full ownership is not the only type of right over property that one may possess. A category of rights falling short of it is easements. Easement rights often fall over additional goods as a result of the acquisition of and use of the primary, owned good (provided that the additional goods are also ownerless). For example, I may homestead a plot of land on which I build a fire. The smoke from the fire blows onto neighbouring, ownerless land; I thus obtain an easement to keep blowing smoke onto this latter piece of land that I have not homesteaded. A latecomer to the other land is bound by these rights and may not claim to supersede them by attempting to stop me from emitting smoke from my fire. Similarly, if he wanders onto my plot of land uninvited, he is violating my right of ownership. Critically, however, as we justified in our earlier essay on morality, these rights are violently enforceable – that one may not only pronounce his rights to his body and property, but that also he may use violence to enforce them. In a libertarian world the only the time when violence may be used legitimately is when someone physically aggresses against the property over which you have these ownership and easement rights. As laws are, as we have said, violently enforceable social norms, it follows that all libertarian laws will be concerned with enforcing these rights to oneself and one’s property. Norms that that do not protect private property and enforce the non-aggression principle should either be categorised as some other, non-violently enforced moral obligation (for example, “one should look after one’s family), or, if the norm itself breaches the non-aggression principle (for example, A should take a portion of B’s income), then it should be classified as being a breach of the law, or as an anti-law.

Is it possible for us to further categorise these norms? The late Peter Birks, an especially keen advocate of mapping and categorisation of concepts in English Law, suggested that causative events of legal liability could be divided into four classes – wrongs; consent; unjust enrichment; and miscellaneous events3. “Wrongs”, the category that most immediately springs to mind whenever a lay person is asked to name a law, are instances where a person initiates some proscribed behaviour against another, without them necessarily having any prior relationship. Crimes, such as murder and assault, and torts, such as causing death or injury through an accident, are all wrongs, the wrongful behaviour itself being sufficient to trigger legal liability, usually coupled with an examination of whether the defendant deliberately intended the harmful outcome or whether it was just accidental. Events categorised as “consent” are those where a person has given his prior authority to be legally bound if he performs (or fails to perform) an action. The largest of such events are, of course, breaches of contract – behaviour that, ordinarily, would attract no attention of the law but for the fact that a person consents to be bound4. For example, I may contract to sell you a car for an agreed price and then fail to deliver the car. The act of retaining my car and not delivering it to you is not, ordinarily, something that would attract legal liability, but because I consented to be legally bound by the terms of the contract then my failure triggers legal liability. Another area of the law that would fall under the heading of consent is most of trusts law, where property is held “on trust” by one person for the benefit of another (although trusts themselves may be more correctly classified as legal responses to causative events as courts impose trusts under a variety of circumstances). “Unjust enrichment”, the third major category of causative event, comprises all situations that are akin to the mistaken payment of a non-existent debt. If, for example, I owe you £10 – a legitimate debt – and accidentally pay you £20 in settlement, then, excluding the possibility that I am making you a gift, it would be said that you have been “unjustly enriched” as you were not owed the additional £10, and may be liable to make restitution of the overpaid sum.

While this categorisation suggested by Birks provides a degree of conceptual clarity, we have to admit as libertarians that it is not sufficient. All laws in a libertarian society are proscriptions against aggression and violence against a person’s body and private property and hence, all causative events of legal liability might be described as “wrongs”, against property. Aggression against property, i.e. the breach of the non-aggression principle, is the golden thread running through the fabric of legal liability in a libertarian society. As we shall see, even when a contract is breached the resulting legal liability arises as the breach is an affront to the private property of the other contracting party. Our investigation will therefore concern in which circumstances the non-aggression principle is breached and how the law may respond to such breaches. Nevertheless, in carrying out this investigation, the distinctions in Birks’ framework certainly have their use in understanding the different types of situation in which the non-aggression principle is breached and we shall proceed to follow it in our analysis.

Legal Systems

The second aspect of law that we need to explore is that, in contrast to other social rules, legal norms and principles cohere into a definable and discernible legal system. When we speak of “the law” we mean that there is a body of laws and we are expected to know what they are, or at least have the ability to find them out. Even in so-called hard cases where the law is not necessarily clear we can expect the subsequent judicial “discoveries” to form part of the law.

Why do we need this system of law? Other norms may, of course, be explained, codified, or tacitly understood as belonging to a body of rules to which we should adhere. But why is there this exalted and enhanced status for law? Why does the law exist as a body of meta-norms that require this systemic determination?

The reason lies in the uniquely physical aspect of law’s enforcement. As we know from “Austrian” economics the valuations of individual humans are expressed through their physical actions. A person always devotes his action to achieving his most highly valued end first. With all norms such as customs, traditions or manners that have no physical enforcement it is possible for all parties to achieve their most highly valued ends in the face of non-physical enforcement as each party is still free to act so as to arrange his affairs as he pleases. There is no a priori reason to determine that one party has lost while another has gained. With laws, however, this is not the case. Their uniquely violent enforcement results in the enforced party being physically restrained from carrying out his intentions to the benefit of the enforcing party. The latter, therefore, in being able to continue to act, achieves his highest valued end whereas the former, the party restrained, cannot do so as he is prevented from acting. There is, therefore, a transfer of wealth that takes please with the enforcement of a law. Coupled with this is the strong degree of power that law’s enforcement confers upon the enforcing party and the potentially devastating effects it can have upon the enforced party. It is very easy, for example, for us to physically intervene in someone else’s person or property to achieve what we want, arguably much easier than persuasion or offers of trade. Similarly, the effects upon the victim are much more profound than anything non-physical, possibly including even death if the violated norm is deemed so to permit. It is, therefore, extremely tempting for people to masquerade norms as just laws when all they really do is redistribute wealth from one party to another. Indeed, most libertarians will be (at the very least) sympathetic to the idea that this is what most modern positive laws, enacted by democratic governments, attempt to achieve.

Because these aspects do not apply to other norms it matters far less if they are only spoken, tacit, incoherent or based upon subjective appreciation. However the powerful effect of laws causes us to demand a more objective and coherent method of their determination. Indeed, one interesting question in the “what is law?” debate we mentioned earlier is whether it is possible to suggest that any system of law, which implies that there is at least some semblance of the rule of law, is not morally neutral and that certain prescriptions and procedures for determining, disseminating and enforcing the law may themselves have moral value. In short, having a system is a good thing in and of itself. However, let us now turn to examining the requirement of objectivity in more detail.

Law and Objectivity

As we have stated laws are social rules, that is, that they arise in order to govern interpersonal behaviour. We know from “Austrian” economics that all valuation is subjective and all action in relation to property ultimately concerns ends that are held by an individual human that reside only in that particular human’s mind. All conflicts between these ends, therefore, are also products of people’s minds and they sit wholly within the mind. There is no value to any good unless a person thinks that there is and there is no conflict over that good unless one person’s valuation interferes with someone’s else’s. However, the purpose of self-ownership, private property, and any legal system that is based upon those institutions is to publically broadcast these subjective intentions and valuations so that other people know how to behave and avoid any physical contest. Avoiding conflicts would be futile if I do not know what is yours and you do not know what is mine. Here, then, we have a problem for the content of a person’s mind, where all valuations and conflicts exist, cannot be demonstrated in such a public way. I cannot know, for instance, if you think that you have ownership over a car or a piece of land and any speculation on my part would be fruitless. From the point of view of purely theoretical ethics, if A wants to sell a widget to B in exchange for money, it may be sufficient for them only to think in their minds that they have so consented to this transfer of property. Theoretical ethics may conclude that the money now belongs to A and the widget may belong to B. But such a situation is woefully inadequate to create objectively identifiable legal liability. For how are other people, in the absence of telepathy, supposed to know that these relations have been created? How do either A or B expect to hold the other liable in the event that the other party breaches? Rather, what matters in any situation is not what is thought subjectively but, that which is objectively interpretable. Fortunately, as we said above, we know that a person’s valuations are always demonstrated by his actions, and actions are publically viewable. A person carries out a certain action because that action is devoted to means that will bring about valuable ends. From this it is possible for other humans to interpret the action and hypothesise upon the subjective valuation. Therefore, any event giving rise to legal liability needs to consist of concrete action that can be evidenced and then interpreted according to publically acknowledged standards in order to determine where the legal rights and obligations lie. In other words, how your objectively viewable actions demonstrate your intentions is within the realm of legal interpretation and regulation, not those intentions themselves.

Some problems that our libertarian legal system is likely to face, then, are as follows. First of all is the concept of self-ownership itself, the heart of libertarian ethics – when does this ownership begin? Is it at birth, at conception or somewhere in between such as at the point of foetal viability? Or do sperm and egg cells have the right to self-ownership too? What do these entities need to do or possess in order to demonstrate that they have self-ownership? With external goods, which acts of mine are necessary in order to determine when a good becomes legally owned by me? Is touching it enough or do I need to do something more concrete? If I subsequently abandon my owned good, which acts of mine are sufficient to bring about abandonment and return the good to the realm of the ownerless? Obviously just walking off my property to go to the shop would be a ridiculously low threshold but where should this threshold be set? Perhaps after a year or so? Five years? And, if any of these, why? Furthermore when we consider aggression, when does aggression actually take place? We are used to answering this question as any uninvited physical interjection of one piece of property by another, but many physical interjections are simply innocuous. If I was to light up my house like Piccadilly Circus the resulting light pollution would surely give the neighbours grounds for complaint. Yet if I just live normally the lamp from my living room may also beam light waves from my property on to theirs. Both are the same kind of act, just to different degrees. Where is the cut-off point of light beam intensity where peaceful behaviour stops and aggression warranting legal liability begins?

Some of these problems we can attempt to tackle theoretically. We can, for example, theorise that sperm cells, devoid of any rational consciousness, will not be accorded the right to self-ownership. But for many more of these questions it will not be possible to derive their answer by deduction. Rather, legal systems will be tasked with interpreting behaviour from the point of view of custom, behavioural conventions, traditions and, indeed, economic expedience. For example, if A wishes to sell a widget to B, how should they conclude this transfer so that it is subject to legal enforcement? Do they have to say something? Do they have to make some bodily signal (such as putting one’s hand up at an auction) that is customarily taken as an intention to make a transfer? Can B just give the money to A and then A the widget to B with no conversation whatsoever? Or do they have to draw up a telephone-directory length contract spelling out clearly all of the rights and obligations that each of the parties holds? Compounding this difficulty is the fact that different cultures will have different customs and conventions that call for different legal interpretations of an action – the same action meaning something entirely different in one country from what it does in another. But so too will different situations within the same culture have different requirements. The sale or lease of a large property, for instance, may require weeks of negotiations and drawing up a specific contract, whereas such a necessity would clearly be wasteful if you just want to buy a chocolate bar. Indeed we are used to some of these customs and conventions generating legal liability in our own experience. If I go to a petrol station and fill my car with fuel it is assumed that I have the obligation to pay for it and that the garage owner is not making a gift of the fuel to me, even though we have not exchanged any words. Similarly if I sit down at a restaurant and order from the menu it is assumed that I will pay for the food after I finished my meal. If, on the other hand, the proprietor says “on the house” then this social custom would be sufficient to indicate that a gift is being made to the guest and it would be unjust for the proprietor to attempt to charge me upon leaving. However we can quite easily imagine in another culture that the situation would be entirely different. Ruritanian tradition might state that if you sit down as a guest in an establishment and food and drink is served at your table with no mention of payment then the host is considering you as his guest rather than his customer and so you are not burdening yourself with any legal obligation to make payment. The same actions in different cultures and traditions are, therefore sufficient to generate different legal outcomes5.

In all cases, therefore, what will matter from a legal point of view is not what you subjectively intend from or think about any situation in which you find yourself; rather it is how your behaviour demonstrates your intentions, or how you held yourself out as intending and how that behaviour can be interpreted and this interpretation will not only be based upon the action itself but in its customary, traditional and conventional context6. In some cases, people may find themselves liable for outcomes they did not intend, but by their behaviour they demonstrated a contrary intention. And in other cases they may not be able to enforce that which they did intend because their evidenced action gave no indication of that intention. This may be very unfortunate for the individual concerned but legal demarcation of rights and obligations has to be publically evidenced and interpretable and this, ultimately, is all that matters. Putting up your hand at an auction would not unbind you from making a bid simply because you were trying to wave at someone.

This fact – that we do not know precisely which behaviour will give rise to legal liability – may frustrate “Austrian” economists and libertarians who so are accustomed to reaching conclusions a priori. Suddenly, here, we find ourselves in the position of having to hold our hands up and say “I don’t know!” what the legal outcome may be to a particular situation. It is, however, something we have to accept, just as we do not know who will build the roads in a libertarian society or how the sick will be cared for. “I don’t know” is a viable answer to a question when that question is not strictly theoretical. However we do not necessarily have to worry that legal systems will outlandishly interpret behaviour that is manifestly one thing as being something else. The task of defining and interpreting action falls to either competing jurisdictions in a minarchist society or to competing private courts and adjudicators in an anarchist society. Those jurisdictions that become the most successful will be those that adopt legal principles whose interpretations of the parties’ physical behaviour most closely match their subjective intentions. To give an exaggerated example, no legal system can survive very long if a person acts so as to buy a sandwich yet he ends up being legally liable for a house. People would flee the jurisdiction or seek out alternative private courts and arbitrators.

One shrewd objection to the proposition of competing courts and jurisdictions is that they suggest that the justification for libertarian ethics must be circular, for example:

Q:      “Who determines when private property is violated?”

A:       “Competing law courts”

Q:      “Why are these courts allowed to compete?”

A:       “Because to outlaw them with violence them would be an invasion of private property”

Q:      “Who determines when private property is violated”?

Such reasoning, however, misunderstands the purpose of competing courts and jurisdictions, which is not to determine the ethical validity of self-ownership, private property and the non-aggression principle but is, rather, to determine precisely which actions will give rise to fulfil these principles. It is perfectly consistent to state that aggression against private property is theoretically unethical while leaving competing courts and jurisdictions to flesh out these concepts by determining the precise actions of individuals that cause them to arise in governing interpersonal behaviour7.

Legislation or Judge Made Law?

In today’s society we are used to the generation of the system of law through the enactment, administration and enforcement of laws by state entities, in particular legislatures. In addition to our willingness today to acquiesce to the normative validity of positive law (indeed, simply stating that a rule is “the law” seems to be enough to require subservient obedience), we have come to view legislation as being synonymous with law at the expense of law and legal principles discovered through adjudicated cases. As libertarians, however, we must view the primacy of legislation – laws enacted by the very entity that is a threat to freedom, the state – with suspicion. Stephan Kinsella has written a compelling case for why legislation is incompatible with freedom and that only a system of decentralised law determination can adhere to libertarian principles8. To the very valuable points that Kinsella makes we will add one more here. Law, being a subset of social rules, arises, as we said above, in response to conflicts born out of the situation of scarcity. These conflicts, however, are a product of the human mind and do not exist otherwise. Only when two people recognise a conflict is there any need for a social rule to determine who has the right to the scarce good. If there is no conflict then social rules are simply superfluous. With judge-made or decentralised law-making that is born out of real cases the resulting law is a product of just that – real conflicts between real people. Legislation, however, is not a product of these conflicts between individuals but a product of conflicts between individuals and the state. The state decides unilaterally that there is a conflict and then possesses the means – legislation – to resolve the conflict in its favour. Whereas in front of a court or arbitrator individuals have to prove the substance of their rights, the state can simply enact them at will. Hence, in a decentralised law-making system the volume of law will remain relatively restricted and, while determined by heterogeneous bodies, will be united by the threads of common and recurring principles. This will be compounded by the discipline imposed on private courts and arbitrators to keep costs low and certainty of outcomes in like cases high, the ignorance of which will simply cause them to lose custom to those providers who do not. Legislation, however, grows with the metastasising state, a state unbound by the discipline of cost and competition, overwhelming the citizenry not only by its size but its lack of coherence and its technicality, a lack of coherence resulting from its basis on the whim of the governing parties rather than any sound body of principle. Indeed, we are now in the position where it is possible for each person to technically breach a law each and every day. Not only this, but laws can change from enforcing one end to enforcing the precise opposite with the result that nobody knows precisely where their rights and obligations lie9. Only the modest blessing that government mechanisms tend to be slow and unwieldy in enacting and enforcing its desires offers any comforting respite. As Kinsella also recognises, the aura of uncertainty that is created by such a situation has profound economic effects, reducing the rate of time of preference, lowering the rate of saving and investment and retarding economic growth.

The most that we could possibly say for the role of legislation in a free society is that it would be enacted to remove from decentralised law some inconsistency, lack of clarity, or heinous and obvious injustice but one even has to question this. Most of the occasions on which this has arisen in the English common law result from the monopoly privilege enjoyed by that system and the consequent artificial restrictions and rules it was able to impose upon itself. For example the doctrine of binding precedent, or stare decisis, the idea that later courts are bound by the previous decisions of at least a higher court, has served to preserve bad principles in the common law for decades simply because they formed part of the ratio decidendi of some earlier case. Even though the House of Lords, then England’s highest court, removed this restriction from themselves in 196610, the further belief, on the part of the judiciary, that they are subordinate to the legislature and should not attempt to “legislate from the bench” only invites the necessity of legislation to overrule well entrenched but bad doctrine. One example was the rule, part of the doctrine of privity, that only parties to a contract could enforce the terms of that contract whereas third party beneficiaries of the same contract could not. So if A contracts with B to pay C, B can enforce the contract whereas C, as a third party, cannot. The effect of this was to render C unable to enforce his title to property that he had gained, a fact that was not lost on even the un-libertarian minds of the English judiciary and academia. But so well entrenched was this doctrine that judges in successive cases refused to overrule it and the manifest injustice was only finally removed when parliament reformed the doctrine of privity in the Contracts (Rights of Third Parties) Act in 199911. Clearly these restrictions would not exist in a decentralised system of law-making. No court is absolutely bound by what another has ruled and none would shy away from overruling the bad decisions of other courts because of some illusion of having to defer to legislative supremacy. In any case, in a decentralised system, the ultimate judges of the good law will be the “consumers” of law themselves – those who have conflicts to resolve. Those courts and jurisdictions that practise false and outlandish law will simply lose custom to those that rule justly, prudently and with a high degree of certainty and adherence to well-established principles.

Conclusion

Having therefore laid the foundation for law and legal systems in a libertarian society, in the remaining parts of this series we shall proceed to examine the precise causative events that would give rise to legal liability.

POSTSCRIPT – Observations on the Question “What is Law?”

Concerning the primary issue of legal philosophy – whether the validity of a law depends upon its sources or its merits – the question is an unusual one in that it effectively defines the scope or place of its own field. If the validity of a law depends upon its merits then it would seem that legal philosophy is simply an extension of political philosophy (itself a subset of ethics). Law would be merely the real and concrete embodiment of norms that we derive from our political values. If, on the other hand, the validity of a law depends not upon its merits but upon certain descriptive qualities then it seems that legal philosophy is more of a branch of sociology, looking to patterns of human behaviour – the creation of legislatures, judiciaries, and people’s recognition of the legitimacy of the resulting norms – in order to determine whether there is law.

There are several modest comments and speculations we can make concerning this important question of legal philosophy. The first is the ambiguity – or rather, the strength – of the term “law” in the English language. In the natural sciences the term is understood to mean a fixed and (barring the possibility of falsification) immutable fact of the universe that is unalterable by human will. The application of this same term to social rules and positive law confers upon these rules the same impression of rigidity and immovability and – in all likeliness – the requirement of compulsion and obedience. Just as people understand that they are not free to violate the law of gravity so too, as a consequence, do they feel that they may not contravene a social rule simply because it is called a “law”. In other words, the use of the term “law” itself may be the cause of the descriptive qualities of law that positivists require for its existence. Were it the case that some other term was used to denote positive law then these qualities might be absent in all cases except where there are just social rules – in other words, laws validated by their merits. It is perhaps not coincidental that many of the significant post-war scholars in jurisprudence – such as H L A Hart, Ronald Dworkin, John Finnis and Joseph Raz – who were or are either significant promoters or critics of legal positivism, made their arguments in the English language. It would certainly be interesting to investigate the possibility in order to draw a more firm conclusion upon this point.

Secondly, and in light of what we have just said, even though there is doubtless a great deal of knowledge and understanding to be gained from these descriptive aspects of law and where or how they appear in different societies, we have to, as libertarians, recognise the contribution that legal positivism has made to the impression that positive law is not only valid but is a reason for its obedience. In answer to the question why a person should or should not do a certain act, the answer that it is “the law” is taken as sufficient justification for that action or non-action without further enquiry. Even though positivists may claim that the question of whether a law is just is important but separate from the question of legal validity, if they had hoped to achieve a measure of clarity by maintaining the gulf between those questions they must at least find it perplexing that the world today appears to languish in hopeless confusion of the two. This does not mean, of course, that positivism is the only or sufficient cause of this problem. Doubtless the foundation of governments upon a democratic order has served to disseminate the impression that all rules and edicts that originate from that order are just for that very reason. But it is likely that any attempt to proceed upon a positivist line of thinking without greatly emphasising the importance – nay, the precedence – of the question of which norms are just and which are not will simply cause that question to recede into the background and for the simple facts of institutions, legislatures, judiciaries and legal processes etc. to deliver a feeling of compulsion in the average citizen. It would be naive, even dangerous, for libertarians who sympathise with positivism to not be alert to this aspect.

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1Technically speaking, we should say that a law is a violently enforced norm rather than an enforceable one in order to retain our analysis within the realm of description. If we begin to discuss what is enforceable we could be suggesting either that a norm’s classification as a law depends upon the ability to enforce it or on the legitimacy of doing so. All that we are interested in here, however, is that laws are norms that may, for whatever reason, be violently enforced. Interestingly, much legal philosophy, while recognising the need for “social institutions” such as courts and police to “enforce the law”, do not state or examine explicitly this uniquely violent aspect of law’s enforcement.

2Every political philosophy, whether it advocates anything from a socialist tyranny to individualist anarchy, is ultimately a theory of who may have exclusive rights to physical goods.

3Peter Birks, Unjust Enrichment, Second Edition, Part I.

4Or the contracting party has otherwise made some kind of indication of being bound. Theories of contract have often been based on anything but consent. See Randy E Barnett, A Consent Theory of Contract, Columbia Law Review (March 1986) 269.

5The author is reminded of an anecdote told to him by a colleague. Entertaining a prospective client from Africa, my colleague served her tea and coffee with a selection of biscuits. Expecting his guest to have only one or two biscuits with her drink, to my colleague’s amazement, or at least his surprise, she ate all of the biscuits. It was only after the meeting was concluded that my colleague realised that what would be taken as an indication of greed and rudeness in the UK might be a sign of politeness and courtesy in the culture of his client – that, where she came from, to be served a plate full of food and to not eat all of it would be a grave insult to one’s host. Of course no legal liability was generated in this scenario but it goes to show how the same actions can have different meanings and demonstrate different intentions in different cultures.

6At the very least we might say there is a presumption that an interpretation of objective intention is valid unless it is rebutted by evidence of differing subjective intention, although even this may not always be sufficient.

7See also Robert Murphy, Chaos Theory, pp. 27-9.

8N Stephan Kinsella, Legislation and the Discovery of Law in a Free Society, Journal of Libertarian Studies 11:2 (Summer 1995) 132-181.

9The old adage “ignorance of the law is no defence” was applicable when the law was understood to be restricted to well understood principles that were based on common morality, ignorance of which would indicate such an anti-social and anti-human character on the part of the perpetrator that an acquittal on such grounds would be unthinkable. This clearly does not apply when government writes legislation faster than a person can read and the maxim, these days, is simply touted as a motto of self-justification by the state and its enforcers.

10Practice Statement, [1966] 3 All ER 77.

11Part of the original problem and, indeed, of the dissent to the 1999 Act is a misconception that contracts are binding promises, something we shall explore in part two. See R Stevens, The Contracts (Rights of Third Parties Act 1999) (2004) 120 Law Quarterly Review 292.

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Gun Ownership and the Government

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In the United States, the story is always the same. Some maniac (examples of whom, we might add, will be found in any society regardless of the strength of its gun ownership rights) walks into some public building such as a school or shopping mall, opens fire and kills anything from a handful to tens of individuals. Then comes the usual tirade of arguments from the “gun control” advocates on the one side, crying out for more government control of private gun ownership in response to these heinous crimes, batted back by pro-gun ownership rhetoric from the likes of the NRA and the remainder of the gun lobby.

Many libertarians leap into this issue automatically in favour of the pro-gun lobby and deplore the attempts of government to regulate gun ownership. So far so good, but this does not examine the issue fully from the standpoint of pure political philosophy. Such an examination is, admittedly, often very difficult given that the question of gun ownership rights is enveloped in the history and tradition of the United States, a union born out of a revolution and where the right to bear arms has been enshrined as a constitutional amendment. Many pro-gun Americans who favour gun ownership rights would probably say that not only are these rights sacrosanct but also that it is a good thing for people to be privately armed, preserving one’s right to self-defence and reducing crime, or at least creating some sort of symbolic gesture of being a free individual. People on the gun control side, however, would not only like to see strict, gun regulation but would probably also state that increased gun proliferation, regardless of government intervention, is a bad thing and people should not own guns at all. In other words, not only do they support government gun control (up to the extent of an outright ban on private gun ownership) but they also believe that people should not choose to own guns in the first place and that gun ownership is an inherently bad scourge on the face of society.

In our capacity as libertarians we do not take either of these positions. We do not think that it is a good thing that everyone owns guns, in other words we are not crying aloud in response to gun control advocacy that “everyone should own guns!” We may each believe privately that gun ownership by individuals will create a more peaceful and law-abiding society, but we may just as plausibly detest the idea of individuals possessing firearms and lament the fact that we cannot trust every other human being to live in harmony with us. But the important thing to realise is that whether guns (and people owning them) are good or bad is not a libertarian issue. The only thing that concerns us as libertarians is whether the trade and ownership of firearms should be regulated by government fiat, i.e. by the force of the state. Whether gun ownership should be abundant or not is something that we must reflect upon in our privately held morality. Indeed, as libertarians we are not, therefore, against “gun control”. We are simply against government gun control.

Let us, therefore, restate clearly the libertarian and the statist positions on gun ownership. As libertarians what we will argue here is that any government control of gun ownership is just as unethical as government invasion of any other private property, whether it be a house, a car, your bank account etc. The central tenet of the statist, on the other hand, is that the sale and ownership of guns must be controlled and regulated by government force. We must note that the statist position does not necessarily mean that the entirety of the citizenry be completely disarmed and that guns will be totally banned. While many gun control advocates would prefer this, such rhetoric is usually employed as a straw-man scare tactic by the gun lobby into frightening its supporters into the belief that “government will take all of our guns!”, a notion made popular by catchphrases such as “from my cold dead hands!”. The only argument we will assume on the part of the statist is that government should control gun ownership without necessarily banning it.

Libertarians and Gun Ownership

On a strictly theoretical level, gun ownership is no different from the ownership of any other homesteaded or voluntarily transferred physical good. A gun is simply a piece of matter like a pen or a wristwatch and owning it per se endows nobody with the right to violently interfere with that ownership. People may become very concerned at the possession of a gun by another individual, but in the absence of any reasonably imminent threat of an attack by the gun owner and if he is otherwise a normal and law-abiding individual, the proper response to any subjective fear on the part of anyone else is to arrange one’s own property in such a way as to minimise the damage from any attack. On the bare bones of theoretical ethics, this argument is sufficient to dispose of any argument that suggests an individual should be violently prevented from gun ownership. Nevertheless such an argument would be most unlikely to convince any pro-gun control advocate. If we are to make any headway in promoting libertarian views on this issue we must, rather, tackle the utilitarian issue of minimising the effects of aggressive violence with firearms. What libertarians need to state convincingly, therefore, is that just as the regulation of anything that is dangerous is better left to the voluntary interaction between free individuals in the marketplace, so too is the regulation of firearms, whereas regulation left to government will not only fail to accomplish this to the extent that the free market can but may actually exacerbate the situation and make it much worse.

Indeed the acknowledgment that our common goal is to reduce violence may be a strong card to play in any debate on this topic and libertarians, who are usually so good at stressing their anti-violence credentials, should use them to their full extent in this issue. Not only do we have our commitment to the non-aggression principle but we all hope that our libertarian world will be a peaceful one with minimal crime, and guns do, we have to acknowledge, empower someone with an augmented ability to commit an act of aggression. Emphasising that we have plenty of common ground with government gun controllers might be an important first step in convincing them that we are not advocates of a society of heavily armed warriors. We simply believe that gun violence would be more effectively controlled through voluntary trade and interaction than by government fiat. Indeed, as we shall see, we might even conclude that private gun ownership in a libertarian world may not even be that common.

Before we proceed to demonstrate the truth of our libertarian claim, we must add that we will not be making use of any empirical study, however methodical or thorough, that in some way indicates that lightly regulated private gun ownership reduces the rate of crime. Empirical experiments in the social sciences are, at best, illustrative of a phenomenon rather than the provider of categorical proof and it is impossible, when measuring the effects of government gun control across different parts of the world, to account for differences in time, culture, history, technology, and so on. Furthermore there are as many studies purporting to debunk the claim that light regulation of private gun ownership reduces crime as there are that support it. Drawing any conclusion from this tangle requires one to fall back on investigating the method of each study (or set of studies) and attempting to see where the variables are not held constant rather than looking to the results themselves. For example, a pro-gun control study might observe that gun deaths per capita are higher in the United States, where gun control is loose, than in, say, the United Kingdom, where gun control is strict, and conclude that gun control reduces gun violence. However this fails to account for the fact that Americans simply want to own guns more than the British do and yes, gun violence may well increase if people exercise their voluntary choice in such a way as to make guns more common. If all gun control in the United Kingdom was abolished today it is very unlikely that you would see gun shops springing up in every high street heavily arming the population, simply because gun ownership in the UK has no basis in history, culture, custom or social acceptability, and any relinquishment of gun control may prove to have minimal impact on the rate of gun violence. Such an occurrence would therefore invalidate the theory that gun control diminishes gun violence and the study would be reduced to examining the effects of voluntary choices in regards to guns. But this is irrelevant to the gun control issue as this debate does not concern how people wish to exercise their voluntary choices. Rather, the question we are concerned with is if we take how those choices would be made as a given, would government regulation of those choices make gun violence better or worse? In other words, if, in a country such as the United States, a high number of people wish to own guns, and this causes a higher rate of gun violence compared to foreign countries where people choose not to own guns, does government interference with that choice exacerbate or reduce gun violence? Bearing in mind, therefore, that there are some interesting studies that conclude that light gun regulation reduces crime, let us not make them the focus of our deliberations here but, rather, attempt to draw some more potent conclusions a priori.

Gun Control in a Free Society

In the first place, we can mention some more familiar arguments as to why gun ownership would be better regulated in a free society. First, in a free society all people who commit gun violence are criminally liable for their actions and the penalties flowing from them just as they are in a government-controlled society. Secondly, scattered, heterogenous gun ownership amongst the population would make criminals think twice before committing an act as they do not know whether their opponents are armed. Thirdly, criminals will still get guns if they want to regardless of any law that is passed and the only effect of a gun control law is that the obedient citizenry are left with a reduced capacity for self-defence. Finally we might also say that there is the possibility for tortious liability or for insurance penalties for vendors, manufacturers and owners who trade or otherwise allow their firearms to fall into criminal hands. All of these are fairly common arguments with which readers may be familiar.

There are however, two more fundamental arguments for stating that guns would be better controlled in a free society rather than in one run by a government, arguments that concern the nature of government-controlled societies and free societies rather than the control of guns itself. Furthermore an aspect of many of the more high profile incidents of gun is that perpetrators intend not to come out of the situation alive and so all of the disincentives that may exist are practically useless. The following two considerations will serve to deal with this aspect as well.

The first consideration concerns the dual role of a firearm as a weapon of offence on the one hand and as a weapon of defence on the other, roles that are closely correlated1. Indeed, guns or no guns, we can say in general that people’s need to commit crime and the responsive need by everyone else to protect themselves from that crime will rise and fall together. In a low-crime rate society that is peaceful and law-abiding, crime may be committed only by a bear handful of nutcases in very rare and isolated incidents. The demand by criminals for guns as weapons of offence would therefore be extremely low. But if crime is low then the need to protect oneself from incidents of crime is not likely to be very pressing either. So demand for guns for defensive purposes will also be correspondingly low and, indeed, gun ownership may be relatively scattered and reduced purely to sporting or recreational ends. In a society where crime rates are very high, however, not only are criminals likely to be all the more eager to acquire guns to carry out robberies, assaults and murders, but so too, among everyone else, will the desire to defend oneself become enflamed. Imagine, for example, crime rates being so high that you would not feel safe exiting your house to walk down the street unless you were armed. In short, it is people’s desire and capacity for committing crime and other people responding with their need to defend themselves from that crime which causes gun ownership to become prevalent, both for the purposes of offence and defence respectively. But this trigger of widespread gun ownership – people’s desire to commit crime – does not occur in a vacuum, appearing and disappearing without explanation.

We can say first of all that government’s enforced monopoly of security production and the prevention and detection of crime would necessarily be inferior to that which would be provided by private defence and security provisions. Hence, government inefficiency will incite crime by making it more likely for a criminal venture to be successful and people will feel more of a need to take defensive capabilities into their own hands. More importantly, however, in societies where private property rights are secure, time preferences are low and economic growth is consequentially high, the incentives to commit acts of crime are, all else being equal, low, simply because crime “would not pay” compared to carrying out some kind of legitimate and voluntary activity. In other words, strong, formal constitutional or legal protection given to private property rights in turn furnishes people with the substantive desire to uphold them. When one can go to even a relatively menial job knowing that your pay packet can be kept by you in full and is enough to buy a wealth of economic goods that are selling for a dime a dozen, the incentives to risk criminal sanctions are relatively low. Furthermore, low time preferences mean that the passion for satisfaction now (a distinct characteristic of criminals) is reduced, not only cooling demand for instant gratification but also providing a dampener on feelings of unfulfilment and the consequent negative emotions such as anger, hatred and depression which are the fuel for the flames of much violent crime. Crime rates, therefore, will fall and so too with it will be the demand for the offensive and the defensive use of firearms. Government, however, does everything it can to provoke crime rather than to prevent it. Government confiscates approximately half of all productivity, slashes the incentive for economic growth, raises time preferences, exacerbates poverty, creates permanent and endless unemployment, robs the young of opportunity and ambition through fruitless state-run schools, legislates by the shelf-load every day, and makes it impossible to carry out any long term plan with security. All of this makes crime relatively more attractive. This is before we even consider the effect of the general legitimacy that government confers upon taking what you want from those that have it and murdering those whom you dislike. Government is, after all, a criminal organisation, levying its income from involuntary taxation (i.e. theft) and using the proceeds to line the pockets of its friends and fund its machinery of perpetual war and death. The dismantling of the perceived legitimacy of private property rights serves to dilute the conscience and inoculates people from any incisive moral fervour. Indeed, one of the supreme ironies of the government gun control argument is that the US’s constitutional preservation of the right to bear arms is nothing to do with your ability to shoot at private criminals in self-defence. Rather it is so you had the right to shoot at the government when the government was taken over by tyrants. Government was the original plunderer and pillager against whom people wished to defend themselves, and only government and not private criminals has inspired popular revolutions. It is the government that is the major criminal, not private actors, and yet gun controllers somehow think that this arch crime organisation is the one that should be regulating our gun ownership.

Indeed there is a distinct lack of logic in the government gun control argument. If government is going to control private gun ownership then we are entitled to ask the obvious (but seldom acknowledged) question “how will this control be enforced?” Clearly the police cannot go to offenders, whether they are gun manufacturers, vendors, or owners, sit them down with a cup of tea and have a nice chat, finishing with perhaps a slap on the wrist. If a criminal (the very person whom we do not want to have a gun) wishes to purchase a firearm he is not likely to take government whining as a formidable deterrent and even if he did encounter a run in with government officials he, as the armed party, would have the upper hand. Minus the threat of compulsion the government will simply be ignored, if not laughed at. Rather, gun ownership can only be regulated if the government too is prepared to use force, i.e. guns, in ensuring that its gun control laws are adhered to. No true gun control advocate can deny that if their edicts are to be taken seriously they need to back them up with brute force2. If our gun control proponent accepts this then his argument begins to spring some leaks. On the one hand he says that “people” or “the market” (i.e. people voluntarily interacting) cannot be trusted to self-regulate gun ownership to stop weapons from falling into criminal hands, but on the other hand government can be trusted not only to decide who should and who should not, out of the population at large, own guns, but they also have the sole privilege of whether, how many and what type of guns they themselves (the government) can possess. In other words the government is permitted to regulate us and self-regulate their own gun possession without any oversight. So why, if regulation of gun ownership by the general population causes them to be used dangerously and fall into the wrong hands, do we trust these particular people in the government with the same weapons? Why should they and only they have the privilege of self-regulation? The government consists of humans that are as fallible and frail as the rest of us. What gives them some kind of unique ability to ensure that they will restrict their use of firearms for the “common good”? Of course, our budding gun advocate will simply retort “Ah! But we have democracy! The government won’t use its guns for bad things because they will be voted out of office!” Even if we accept for the moment the dubious argument that the outcome of elections somehow results in government reflecting the “will of people”, our gun control advocate’s argument has now reduced to this: “People cannot be trusted with guns; but they can be trusted to choose the other people who can be trusted with guns, trusted not only to choose who else should be trusted with guns but trusted to ensure that they themselves do not misuse guns”. This argument is not only absurd but it also ends up conceding the vital point that gun control is ultimately subject to the oversight of the people anyway. So if this is true then why can’t we do this through the mechanism of the market, where our choices and preferences are made with far more potency than they are in a once in a blue moon election? The reason, of course, is that governments cherish gun regulation as it is in their advantage to disarm the citizenry and leave the latter impotent against government power. The “democratic oversight” simply means that people stop shooting at each other directly and try to get the government to do so on their behalf, with the politicians promising eagerly to spend, spend, spend and rob others to foot the bill. At least private crime is viewed with brutal honesty and plainly has no right to inflict injury or theft upon your person and property. But by gilding the same acts with the legitimacy of democratically elected government, a government that controls the right of the populace to defend itself, it becomes far easier for the rights to liberty and private property to be eroded, if not completely dismantled. Indeed, there is only ever an outrage in the mainstream media when it is private actors who commit gun violence. When the same is committed by a government actor such as the police (either deliberately or from botched operations where “officer safety” is, for some reason, more important than the safety of innocent civilians) or on government premises such as the shootings at Fort Hood, Texas in 2009 and at the Washington Navy Yard in 2013, there may be one or two words of regret but there is none of the political and media frenzy that accompanies shootings by private citizens.

We can also say that much gun proliferation is caused by the fact that government criminalises voluntary behaviour such as the vending and use of drugs, prostitution and gambling. When these activities are driven underground, the resulting criminal organisations cannot compete openly nor enforce the terms of their trade through any public court or arbitrator, leaving violence and turf wars as the only way in which to settle disputes. Such an environment sucks in youths demoralised by the lack of opportunity created by government strangulation of productivity and its mind numbing education, driving them into gangland violence where they at least feel a part of something significant, however odious it may be.

Finally, we might as well mention the alleged influence that psychiatric drugs have had on some recent perpetrators of gun violence, for example, in the Sandy Hook shooting in 2012, something that, curiously, has not been explored in the mainstream media. This may be either because of the influence of state-connected “Big Pharma” or simply because explanations of gun violence that do not per se concern the prevalence of gun ownership would undermine the gun-grabbing agenda3.

The second reason why guns may be better controlled in a free society than by the government is that the likelihood of the private individual being armed for the purposes of self-defence in a free society is, at worst, debatable and at best, highly unlikely. With a free society comes specialisation and the division of labour and everyone, except for a few recluses, outsources the production of their needs to other people. Hardly anyone, for example, has in their home the ability to produce food or fuel, or to make cleaning products, clothes, and so on. So too is it likely that the needs of private defence would be outsourced to specialists with whom we would contract to provide us with defence services. We may still choose, privately, to own a modest weapon to stave off the most immediate threats and, indeed, if defence services are operated by insurance companies, as suggested by Hans Hermann Hoppe4, they may require ownership of and training in use of a firearm in order reduce one’s security insurance premium. We can, of course, never know the precise outcome of freeing people for voluntary action but judging from how the market provides us all with other goods and services we can be confident that abolition of government gun control and its monopoly over security would not leave everyone to fend for themselves. Rather, they would purchase these services from specialist providers. Government, by enforcing its security monopoly, retards this process and the inevitable failure of government policing to prevent and detect crime drives people towards putting defensive capabilities into their own hands and hence personal gun ownership rises5. In a free society, however, it is quite possible that gun ownership would be restricted to the few who enjoy sporting activities such as shooting and hunting.

Gun Safety

For the sake completion, we can also discuss how gun safety would be handled in a free society. In other words, how would accidents (as opposed to deliberate violence) to oneself and to others be regulated without the government? The issue of safety and protecting people from harm is a prerogative that government often arrogates to itself presumptuously. What is not realised is that safety is always a trade-off between ends just like any other in the marketplace. When we live in a world of scarcity every human faces a choice of which ends he will direct means towards in order to achieve fulfilment and which ends he will discard. The desire to drive may be a valuable end that a person wishes to fulfil, and so also is making sure that it is accomplished safely – we do not wish our car to crash or explode on any of our journeys. Yet safety too comes at the expense of resources that could be used for the furtherance of other ends. Safety is not free and comes at a price just as every other end that must utilise scarce means. Therefore we must choose precisely at which point we are going to stop devoting resources to safety and leave ourselves open to the risk of a bad event. To give an exaggerated example, I might decide that my car should contain brakes, seat belts, air bags and so on and so forth in order to minimise the damage from any crash. But I would probably deem it to be an awful waste of resources to build it like a tank so that it could withstand a blast from a rocket launcher. Such a car would be immensely safe but the resources needed to do so could have been better spent on fulfilling other ends and were, hence, wasted. Not only that but if government was to ban cars altogether in the name of avoiding car accidents we can imagine the obvious loss of utility we would experience from such an act. We always, therefore, face a trade-off between fulfilling our ends on the one hand and doing so safely on the other. Private parties must decide precisely at which level safety is justified and at which level it is starting to encroach on the fulfilment of our other ends, a level at which we would be happy to accept the residual risk of an accident occurring rather than forego a valuable end.

If we consider first of all the danger to oneself from using firearms (as opposed to the dangers to other people), manufacturers will design and build firearms at a level of safety that we are prepared to pay for when the gun is operated as intended and there are no design flaws. Any manufacturer or vendor whose products became associated with accidents caused by a failure to meet this level would quickly lose business to manufacturers who offered safer products. Such a feature might include a trigger locking device to prevent accidental discharge, for example. Where a manufactured gun contains a design flaw resulting in an operation other than that intended (for example if the weapon fails to discharge a round and simply explodes in one’s face) then the manufacturer or vendor would be either contractually or tortiously liable for this damage, in addition to losing custom6.

Exactly the same principles are in operation when we consider the possibility of injury to third parties. Given that, in a libertarian world, every person bears the liability for injuries caused by his/her property, owners of firearms will demand a level of safety from manufacturers and vendors that reduces this risk to a level that they are willing to bear. Indeed, one’s own insurance company may require a certain level of safety precautions to be taken, not only safety features inherent in the product itself, but how it is stored and a specified degree of training for all intended users. The consequences of not following these edicts would be either to pay higher insurance premiums or to find that the insurer would not pay out in the event of an injury, leaving the individual to foot the bill for compensation to the victim of the accident. There are therefore powerful disincentives in a free society to prevent accidents from the use of firearms. Government responses, however, will always be to set levels of safety that are not acceptable to consumers. Governments could, for example, simply ban guns outright (in the same way they could have banned cars to prevent road accidents). Yet people may have decided that the benefit to be gained from gun ownership – either for defensive purposes or for sport – outweighs the risk that one might have to bear responsibility for an accident and government only achieves a less valuable outcome that frustrates consumers.

Conclusion

What we have determined, therefore, is that government gun control is not only as unethical as any other state interference with private property, but that the prevalence of gun violence is primarily caused and exacerbated by the state, for many different reasons. These aspects would not exist in a free society and, indeed, we even concluded that gun ownership is likely to be relatively miniscule in a libertarian world.

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1The offensive and defensive capabilities of firearms, and the relationship between them, is something that is seldom explored in detail in the mainstream gun debate, or at least not by the same author or spokesman. Gun controllers tend to stress only the offensive use of guns, concluding that a rise in gun ownership must necessarily cause a rise in gun violence, whereas the gun lobby concentrates on the defensive use of guns and determines that strong gun ownership rights must reduce crime.

2The use of government force and compulsion is something that proponents of government action, even “lay” people who would not explicitly self-identify as statists, fail to explicitly acknowledge. In proposing that “government should do this” or “there should be a law against that” they lack the conscious awareness of the fact that what they mean is the use of the gun, the prison, and the gallows in order to enforce what they want. When presented with this fact they either have to abandon their edicts if they find this distasteful or concede that they are calling for nothing more than violence against people who refuse to comply with what they want. As Mises puts it: “He who says: There should be a law concerning this matter, means: The armed men of the government should force people to do what they do not want to do, or not to do what they like. He who says: This law should be better enforced, means: the police should force people to obey this law”. Ludwig von Mises, Omnipotent Government, p.49.

3Scott Lazarowitz, Getting it Wrong, Over and Over and Over Again, www.lewrockell.com, May 24th 2013.

4Hans Hermann Hoppe, Government and the Private Production of Defense, Ch. 10 in Hoppe (ed.), The Myth of National Defense.

5As an additional point it is curious how much gun violence always appears to occur in public spaces where people are reliant upon government policing for their defence. Of the twenty-five deadliest shooting incidents in the US, more than half of them took place wholly or partly on government-owned or funded property. See www.CNN.com, 25 Deadliest Mass shootings in US, October 26th 2013. An alarming number of less publicised incidents take place in public schools and universities.

6Indeed, another factor in the gun debate is the level of government-granted exemption from tortious liability enjoyed by gun manufacturers and vendors.

The Choice Illusion

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In the mainstream debate both for and against a free market, one argument that appears continuously is that the free market is predicated upon choice and the ability of the individual to choose. Those in favour will argue that more choice promotes competition and increases the freedom of the individual to meet his ends, and so the increasing of choice and stifling of monopoly wherever it appears is a good thing. Opponents will counter that choice can be wasteful, costly, inefficient and overwhelming particularly when it concerns supply of provisions as basic as water, and, furthermore, that often the appearance of choice is merely an illusion conjured up by private companies that basically operate in a profit-maximising cartel.

Wading into this debate as a libertarian we can see that the basic statements on each side are not incorrect. However they either overlook or misunderstand the true nature of choice in a free society. The kernel of truth in the pro-choice argument is that voluntary behaviour, expressed through choice, leads to market outcomes that provide the most benefit to the consumer. But such an advocacy is formal only – people choose voluntarily not only which suppliers they are willing to patronise, but also the extent of choice itself in a particular industry is the outcome of voluntary action. In some industries, for example, particularly those that are growing and innovative, consumers are willing to support multiple suppliers with a large range of different products and all of these may be viable. We might say that smartphone manufacturing is representative of this kind of industry. In other industries, however, which are perhaps maturing or consolidating and reaching the end of their innovative stage, the benefits to be gained from economies of scale and simple and straightforward products with little differentiation might be what consumers desire. This is particularly true of the supply of commodities where the only differentiation is price and the only benefit to consumer can be reduced costs. This kind of supply naturally lends itself to one or only a bare handful of suppliers and choice in such an environment may be reduced to minor differences in customer service but is otherwise likely to be stressful, wasteful and unnecessary.

However, pro-choice advocates often are not arguing in favour of this formal meaning of choice, but rather they assume and press ahead for a choice that is substantive. In other words, for every single industry there must, necessarily, be several suppliers from which a consumer can choose, however basic the product and however costly the splintered operations. We have already examined the economic fallacies of this belief from the point of view of competition law and the shibboleth that increasing competition is always a boon to the consumer. However, it is also a dangerous ruse that can be used to create nominal or illusive choice while preserving an overarching government monopoly or control that allows government favoured private companies to line their pockets, at the same time allowing all of the blame for the waste and inefficiency to be directed not to the governmental element but to the “free market” vestige of the particular industry. In the UK the privatisation frenzy of the Thatcher and Major governments was often justified by the need to give “choice” and “competition” to the consumer. Britain’s railways for example, are now “privatised” and whenever you board a train there will be a private company’s logo emblazoned on the carriage and you will see front line members of staff wearing uniforms that indicate their representation of these private companies. But the track, stations and signalling are wholly owned by Network Rail, a statutory company that has no shareholders and is under the de facto control of the government. The train operations themselves are not subject to the forces of natural competition but are parcelled out by the government into geographical monopoly franchises to private companies chosen by the government and who, with the government’s blessing, are allowed to operate the franchise for a set number of years before they must retender. This cauldron of public and private activity blended together led to the UK’s railways being judged the worst in Europe from the point of view of cost and efficiency in early 2012. Yet it is “privatisation” and “competition”, those fancy public-facing corporate logos on the timetables and uniforms, that are lumbered with the blame, rather than the government string-pulling. The energy industry is just as bad, if not worse. The electricity infrastructure is owned by National Grid, with six dominant, government-licensed suppliers sending their product through the same wires in what is a ridiculously regulated and cost-heavy sector that is not only seeing rising prices for consumers and talk of fuel poverty but is also on the verge of collapse. Indeed the Soviet-style description of the regulatory framework by Energy UK, the industry’s trade association, only scratches the surface but it is a succinct summary:

The electricity and gas markets are regulated by the Gas and Electricity Markets Authority, operating through the Office of Gas and Electricity Markets (Ofgem). Ofgem’s role is to protect the interest of consumers by promoting competition where appropriate. Ofgem issues companies with licences to carry out activities in the electricity and gas sectors, sets the levels of return which the monopoly networks companies can make, and decides on changes to market rules.1

All of this is before we even go near the odious and destructive high street banking cartel.

Given all of this is, is it any surprise that people lay the blame for poor service, for high costs, for inefficiency, for waste, and for private companies lining their pockets at the door of free marketers’ obsession with choice and competition? Is it any surprise that, not realising that it is the underlying control and forcing of substantive choice to the benefit of its favoured friends in “private” industry, that there are calls for renationalisation of public communications networks and utilities? There is a strong case to be argued, not only from the point of view of its danger to the reputation of the free market but also from that of the level of service offered to consumers, that private companies operating government controlled services is often worse than explicit and outright nationalisation.

As libertarians who cherish the free market our devotion to choice is encapsulated by our commitment to voluntary behaviour and interaction and is only a subset of this wider concept. We do not mean a controlled and enforced, substantive choice in every industry, nor do we mean the illusion of choice created by the government that rips off the consumer and leaves the free market to bear the brunt of their ire. Leave the consumers alone entirely to express their preferences through voluntary action. Leave them alone to determine how much choice they want. Only then will we see industries that are genuinely able to meet the needs of consumers with ranges of products that are suitable to their ends at prices that they are able to afford.

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1http://www.energy-uk.org.uk/energy-industry/the-energy-market.html. Emphasis added.