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Britain and the EU

May 14, 2016

Duncan Whitmore Current Affairs, Economics, Essays, Morality and Ethics Bremain, Brexit, Britain, David Cameron, Democratic Peace Theory, ECHR, Economic Growth, EU, European Convention on Human Rights, European Union, Exports, Free Trade, Human Rights, Imports, Member States, NAFTA, Peace, Regulations, States, Tariffs, Taxes, Trade, TTIP, War 1 Comment

On June 23^rd of this year, Britain will hold a referendum on its membership of the European Union, voting either to remain (“Bremain”) or to leave (“Brexit”). The present author is rooting for a “Brexit”, which is unsurprising for a libertarian who detests any metastasised growth of the state that the EU certainly represents. Unfortunately, in spite of the passionate rhetoric that the issue tends to inspire in the so-called “Brexiteers”, from a libertarian point of view it is difficult to reconcile oneself with, or to endorse, some of the arguments that are emanating from the “Brexit” camp. In other words, it would be a mistake to characterise the debate as a defiant band of liberty lovers seeking to shake off the tyrannous ogre of a bloated, continental tyrant, although that is surely part of the motivation. Rather, many of the “Brexit” arguments, seeking to respond to the “Bremain” side, are couched in the same conventional, statist terms. They therefore lack any incisive bite that would provide a convincing case for withdrawing from the union.

The most prominent issues where this is visible are economic growth and trade. When it comes to the former, both sides fling at each other hypothesised GDP figures that show either a marked gain or reduction in the number. Obviously “Brexiteers” are attempting to show that the figures would be higher outside the EU whereas “Bremainers” are attempting to show the opposite. However, simply adding up flows of monetary expenditure (and then expecting the public to comprehend the methods and assumptions involved in doing so) in order to try and get a bigger, magic number than the other guy tells you very little. If you had a billion pounds yet the only thing to spend it on in the entire world was a loaf of bread then you would be in abject poverty in spite of your nominal wealth. The key to encouraging economic progress is increased investment in capital goods such as factories, machines and tools developed with ever better technology, which permits more consumer goods to be produced per worker, thus lowering prices and making more things affordable for everyone. The kind of economic system that best incentivises this accumulation is one of strong private property rights, minimal regulation and minimal taxation. GDP figures can be high in spite (or even because) of the fact that these things may be absent, as it is buoyed by monetary inflation and government spending. The relevant question, therefore, is whether the EU is likely to either promote or discourage this kind of environment. Instead of arguing over GDP projections the answer that “Brexiteers” should be giving is that the consolidation of states makes it more likely that property rights will be diminished while taxes and regulations rise. Smaller states do not usually possess within their territories all of the resources they need to build a strong economy. In much the same way as a single household or individual needs to go shopping at the grocers, the butchers, the bakers and so on, so too does an individual state need to go “shopping” in other countries, trading what they have for things they do not have. Burdensome regulations simply discourage this trade, while high taxes and insecure private property rights will deter foreign investment, all of which will seek more favourable markets as a result. Moreover, if the state becomes too onerous it is far easier for citizens of even modest means to leave a small state than it is for them to leave a larger state. Large, consolidated states, on the other hand, usually have access to a wide labour market and a greater number of resources, and are better equipped for a degree of autarchy. Moreover, the large state’s sheer, geographical size makes it more difficult for a citizen to emigrate to a similar country which is unaffected by the large state’s diktats. The large state will therefore step up its plundering of the citizenry as it is shorn of any real impetus to cease doing so. What produces trade and economic progress, therefore, is not consolidating states into one giant monopoly, which has a reduced incentive to relax its depredations upon its citizens. Rather, it is allowing states to compete with each other to attract entrepreneurial migrants, investment and trade. In other words, while creating a trading block may give the appearance of vanquishing border controls, tariffs and other trade restrictions it does not stop the trading block from imposing internal taxes and regulations that are more burdensome to trade and prosperity than those between independent states. Indeed, a high rate of internally imposed Value Added Tax (VAT) can be worse than a tariff. And, as the “Bremainers” trumpet, while it is true that within a single market companies no longer have to deal with a myriad of different tax rules, different regulatory codes, and so on, it is likely to prove less costly in the long run to deal with many light and fleeting taxes and regulations than it is to deal with one behemoth. Just to give an idea of how big and bloated the EU bureaucracy is, one source (Brexit: The Movie) lists a whole host of household items one encounters between waking up in the morning and eating breakfast:

There are 109 regulations for pillows, and 50 for duvets and bed sheets;
65 EU laws cover bathrooms;
31 for toothbrushes and 47 for toothpaste;
172 laws for mirrors, for some reason;
91 for showers, 118 for shampoo, and an incredible 454 for towels;
At the breakfast table, there are 1,246 regulations for bread, 52 for toasters, 64 for fridges, 99 for cereal bowls, 201 for spoons, and 625 for coffee;
Far ahead, however, is milk which has been deemed to deserve an incredible 12,653 EU regulations.

None of this is to imply, of course, that a world without the EU would be wholly unregulated. Rather, regulation will come from the market place and it is consumers who will decide whether products should meet certain standards. Moreover, increased quality and better safety comes about through the wealth creating endeavours of free individuals so that these things become more affordable, not through the wealth distributing fiat of faceless bureaucrats in Brussels.

Concerning specifically the issue of trade is the argument over whether Britain would, outside of the EU, be able to negotiate so-called “trade deals” without the backing of the EU. In his final visit to the UK as President of the United States, Barack Obama indicated that Britain would be “at the back of the queue” for trade deals owing to what is presumed to be its diminished influence outside of the EU (although this attitude did not stop him, in the same trip, from preaching to an audience of young gullibles an instruction that they should “reject pessimism and cynicism”). The response of “Brexiteers” has been to try and demonstrate how trade agreements would, in fact, be possible and how Britain would open itself up to being able to deal with other large markets, such as China and India, independently. While the latter is certainly true, all of this is wide of the mark. For trade agreements between states are precisely what we wish to avoid. Trade agreements do not open up trade at all; rather they stifle it. Genuine free trade can be accomplished by adhering to a single principle that can be written in a single, short sentence: no restriction of trade across borders. Trade agreements, however, which frequently masquerade as free trade agreements, are simply government managed trade. The North American Free Trade Agreement (NAFTA), for instance, runs to more than 1,200 pages across two volumes of government imposed rules and regulations, usually in order to grant protectionist privilege to a handful of powerful firms and interests. Indeed, one of the motivations for “Brexit” is for Britain to avoid the Transatlantic Trade and Investment Partnership (TTIP) between the EU and the US, which is seen as giving too much power to overseas corporations and ignoring environmental concerns. However, “Brexiteers” do not augment this rejection of a specific trade agreement to a rejection of trade agreements as a whole. One possible retort to this argument is that, in the absence of any kind of trade agreement, other countries could simply whack enormous tariffs and regulatory burdens on imported British goods, almost like some kind of punishment. In the first place it is, of course, far-fetched to believe that every one, or even most, of the significant markets with which British companies trade would do this. If a state shuts off or otherwise burdens trade from another state it ultimately harms itself as much as it harms the state upon which it has imposed the restriction. For if, prior to the elevated tariffs or increased regulations, certain resources or products were purchased from Britain it is because Britain produced these products at the best value compared to anyone else. Therefore, after the restrictions, the citizens of the other state must now pay more to produce the same goods internally or buy them from an alternative state, or must be content to purchase goods of lesser quality. Moreover, shutting off imports weakens a demand for a state’s exports as ultimately all imports are paid for with exports. It would, therefore, be foolish for states to respond to a “Brexit” in this way. The same argument applies to the EU itself. Another of the arguments from the “Bremainers” is that if Britain left then the EU would still be Britain’s largest trading partners with the power to impose its regulations on trade entering the block, in addition to newly imposed tariffs. Britain would be shorn of any influence whatsoever to change these rules, and would end up in much the same condition as some of the proximate outliers such as Switzerland and Norway are alleged to languish (never mind, of course, that GDP per capita in those countries is markedly higher than in every EU country). In the first place this argument shows just how few clothes the emperor is wearing. On the one hand, the EU is supposed to be committed to promoting trade and commerce yet on the other hand, if you dare to leave it, you will be shut out by tariff walls and have to suffer whatever burdens the EU rains down upon you. Clearly, therefore, the EU is far from being a promoter of peaceful trade and prosperity. Rather, it is really nothing more than a protectionist club, like a gang of bullies in the school yard who look after each other yet terrorise the other kids. That aside, however, Britain’s “influence” does not come from its membership of the EU – rather, it comes from the value that the EU places on its partnership with Britain, which will ultimately boil down to Britain’s economic clout. If trade with Britain is valuable to the EU then Britain will have as much real influence outside of the club as it does inside; you do not stop talking to someone you need simply because you are not in a political union with them. If, on the other hand, Britain was a tiny, unproductive state that produced little then it would be ignored as a member of the EU just as it would be largely ignored as outside. That is why the larger, more prosperous states in the EU, such as France and Germany have most of the influence. Most of the arguments concerning the loss of any “influence” for Britain, both within the EU and on the so-called “world stage”, do not refer to the diminished influence that the average British citizen would have in improving his life and furthering his goals. Rather, it refers to the diminished influence that the British politician will wield following “Brexit”. Being a representative of a large territory such as the EU gives the state’s lackeys a much more prominent position at the table when they jet off, at taxpayers’ expense, to their plush conferences and summits to devise an ever increasing number of predatory ways in which they can burden the real wealth creators. In any case, however, the “loss of influence” argument seems to have received the final nail in its coffin in early May when it was alleged that Germany had a de facto veto over Prime Minister David Cameron’s renegotiation of Britain’s terms of EU membership. However, even if we imagined the worst case scenario where all of the countries of the world, including the EU, imposed punitively high tariffs and onerous regulations on British imports and refused to engage with Britain in any way shape or form, the latter would still benefit from making a universal declaration of free trade – no tariffs on imported goods and little or no regulation. This sudden reduction in cost would then make Britain a highly competitive market, reducing costs of inputs for British businesses, attracting investment, expanding output and lowering prices for British consumers.

Looking more broadly, what are we to make of the argument that the EU was the supposed solution to centuries of war and human rights abuses? Strictly speaking, the human rights obligations of European states depend not so much upon the EU but, rather, upon whether they sign up to the European Convention on Human Rights (ECHR), which dates from 1953. The Convention is used as a convenient short hand for states to demonstrate their commitment to human rights, which is a condition of EU membership, and jurisprudence from the European Court of Human Rights normally plays an important role in determining how member states should implement EU law in accordance with their human rights obligations. Nevertheless, even though, as libertarians, we must be suspicious of any kind of government implemented human rights charter, which simply cherry picks certain pleasantries, subjects them to state regulation, and calls them “rights”, it would be possible for a member state of the EU to leave and still remain a party to the ECHR. Somewhat perversely it is, in fact, prominent “Bremainers”, such as Home Secretary Theresa May, who are campaigning for Britain to withdraw from the ECHR while remaining in the EU. The possibility of war however, is an important issue, with Mr Cameron himself having argued that leaving the EU would increase the risk of Europe descending into war. In the first place we have to wonder why, if the situation was that grave, Mr Cameron’s commitment to the EU was so ambiguous before he achieved his so-called “reform deal”, which renegotiated Britain’s EU obligations in areas such as welfare and immigration. Prior to this he supposedly had no “emotional attachment” to the EU and at least gave the impression that he may campaign to leave if the reforms failed. Mr Cameron was effectively saying that if he was devoid of an “emotional attachment” to the EU he was also devoid of an “emotional attachment” to avoiding war, the latter of which is surely more important than tweaking the conditions of EU membership. That aside, however, we have to wonder what this argument – the possibility of European war – makes of the so-called “democratic peace theory”. This is the idea that democracies are less likely to go to war with each other, and is peddled by pretty much the same people who crow for political unity. Weren’t the continent’s wars started by despotic monarchs and crackpot dictators? Surely now that we all bask in the bliss of democracy we won’t be so eager to fight each other? Why do we need something more? Regardless of this, however, the argument that a diminution of the EU will lead to war is ridiculous – indeed, it is the opposite that is more likely. Wars are started and fought by states; human rights are abused by states; the state, in the twentieth century alone, caused more deaths than private criminals in the whole of human history. Even the greatest efforts of sub-state, politically motivated actors – i.e. “terrorists” – pale in comparison to the carnage and destruction wrought by states. If this is true, it stands to reason that the solution to preventing this is to make states smaller and weaker, not bigger and stronger. The most destructive, and most potentially destructive conflicts we have ever experienced – the two world wars and the Cold War – occurred after the consolidation of smaller states into large territories, namely Germany, Italy and the Soviet Union. The origins of both of the world wars is complex, of course, but a fundamental cause was the drive of the unified Germany towards autarchy. As an industrialised country, Germany relied upon the import of food and the export of manufactured products in order to pay for it. The costs and burdens heaped upon German industry in order to fund the Bismarckian welfare state hampered German production, leading to fewer exports and fewer imports of food. Thus Germany looked to conquer the agrarian lands of Eastern Europe to overcome this self-inflicted handicap. What is clear, however, is that this problem was facilitated by the unified state, which was endowed with the wherewithal to grow the depredations of the state upon its industry and the might to launch invasions. Later, the persistent nuclear terror that was extant during the Cold War was made possible because territories as large and as rich as the United States and the Soviet Union could afford to fund things such as the Manhattan Project. The most aggressive and belligerent state today is the United States, which, together with its fawning collection of NATO allies, is driven by the neoconservative foreign policy agenda that seeks a unipolar world of American dominance. The greatest threat to peace is that such ambitions emanating from a large, rich and powerful state run head first into the ambitions of other large, rich and powerful states – namely, China and Russia, as we are seeing lately with the expansion of NATO to Russia’s border, the demonization of the Russian president and the altercations in the South China Sea. The worst case scenario is that the world will be vaporised in a nuclear holocaust, something which is likely to get worse if the next US President, who will be elected in November of this year, continues down this path. It is clear therefore that the consolidation of states may reduce the number of potential warmongers – but the stakes are far, far bigger. The key to achieving peace and prosperity is free trade in a sound money environment. You do not have to point a gun at your butcher or your baker in order for him to hand over what you want; you simply have to offer him something that he wants and then you both get on with the rest of your day. Exactly the same is true on a global scale; individuals engaging in voluntary exchange without interference across borders will not fight each other. War and conflict result only when states infringe this harmony.

This leads us on to the so-called “democratic deficit” argument – the idea that the EU’s governance and institutions somehow lack democratic legitimacy. It is true that if the EU is perceived as beyond the control of the voters then tolerance for it will dissipate quicker than if they believe they are “having their say”. On the other hand, however, democratic legitimacy is something of a red herring. People possess a de facto control over the state, with or without democracy, the smaller and more local it is. Even if the EU reformed all of its institutions in order to eradicate the “democratic deficit”, the EU would remain as a vast territory in which the individual voter vanishes into an ocean of 500 million others and its institutions would still amount to a vast bureaucracy awash with special interests that speak umpteen foreign languages making it impossible for the voter of any individual country to understand precisely what is going on. This can point can be made without us having to resort to the wider libertarian critique of democracy as an enabler of, rather than a restriction upon the state.

In drawing all of what we have said together, we will conclude with an observation that is likely to resonate with libertarians. When it comes to the big issues such as economic progress, trade, and promoting peace and prosperity, all of the arguments in favour of the EU boil down to the assertion that the EU makes it easier to get rid of state imposed restrictions and to vanquish ills that are created by the state. In other words, the EU is supposed to be good not because it actually achieves a positive accomplishment over the restrictions imposed upon humans by nature (such as a new product or service), but because it clears away artificial roadblocks that states have put in the way. If this is true, perhaps it would be better to address the question of whether we need the state at all, rather than whether we need a giant one such as the EU.

The Nature and Origin of Rights, Part Two

April 30, 2016

Duncan Whitmore Essays, Morality and Ethics Abortion, Adjudication, Aggression, Animal Rights, Children, Choices, Conflicts, Constructivist Rationalist, Courts, Design, Ends, Exploitation Theory, Hayek, Human Action, John Rawls, Jurisprudence, Karl Marx, Language, Laws, Legal Systems, Libertarianism, Means, Methodological Individualism, Non-aggression principle, Obligations, Private Property, Rational Action, Rationality, Rights, Scarcity, Self-ownership, Social Institutions, Social Order, Social Phenomena, Spontaneous Order, Utilitarianism Leave a comment

In part one of this two-part series of essays we explored the difference between treating social phenomena such as rights, obligations, rules, laws and conflicts as products of human interaction on the one hand and as products of explicit human construction on the other. In this second part we will proceed to explore precisely how the constructivist-rationalist approach to social phenomena came about and how devastating it can be to individual liberty when it infiltrates political philosophy. From this we can learn some important lessons when it comes to developing and shaping our own libertarian theory.

Generations after customary legal systems developed through social interaction, philosophers began to reflect upon this phenomenon, a reflection which, for Western purposes, began with the Ancient Greeks. In accordance with our view here, the purpose of this endeavour should not have been for philosophers to treat these matters as a tabula rasa on which to scribe whatever they thought was the most convincing and compelling case for a system of rules. Rather, it was to clarify that which was already occurring and to make explicit a conceptual framework that was already implicit. Indeed, as we stated earlier, this is common among most human endeavours – science, art, mathematics, economics, language and so on all flourished before we stopped to think about what we were actually doing in each of them. The fruit of this reflection was to distil from legal systems common elements such as conflicts, legal personage, property, rights, obligations, malum in se and some kind of understanding of natural justice. Thus, there existed principles that appeared to transcend expediency, self-interest, and the particular time and place, in spite of the fact that individual conceptions or realisations of those concepts differed. In other words, they were principles that were not just fashioned by leaders, intellectuals, or by “society” but spoke from some kind of universal plain. (This point should not be understood as a refutation of legal positivism. Rather, it simply says that the conceptual framework of legal systems – including the nature of a conflict and the rights and obligations that ensued – were not something that were designed and imposed).

However, this process of reflection and elaboration did not occur in a vacuum, and was (and still is) considered alongside a whole host of other philosophical problems such as knowledge, existence, morality, aesthetics, and so on. In the consideration of “the rules of conduct” there was a distinct overlap between what we might call political philosophy (broadly, what a person can be forced to do) and wider morality (that which a person should choose to do), an equivocation which has persisted to the present day. The process of identifying appropriate conduct – anything from morals, etiquette, manners, the attainment of beauty, happiness, and so on – always and necessarily involves elaborations on how rational actors should choose to behave with and towards non-rational beings/objects and towards other rational beings alike. When a proponent of certain moral rights and obligations overlaid these considerations onto the development of the understanding of legal rights (i.e. rights that could be enforced by violence) what resulted were systems of constructed conflicts, constructed rights and constructed obligations which never arose out of any interactions between individual parties.

If libertarians are to ever find the key that unlocks the door to a world of liberty, it is very important for them to understand the extent of the effects of this kind of endeavour and how it has served as the basis of countless numbers of despotic political theories. When someone constructs or proposes a system of rights and obligations and to prescribe legally enforceable rules of conduct, the result was not to engage in the process of “identifying” conflicts that exist between two other beings or objects; rather, it was to identify a conflict between himself and the particular person upon whom he claimed had an obligation. The conflict was a clash between the proponent’s values and the values of another or other individuals. In other words, the proponent sets himself up as the legally aggrieved party and bases the outcome of law and adjudication on some kind of a conflict between himself and somebody else who was behaving in a manner the proponent simply happened not to like.

Let’s say that there are three people Andrew, Bob and Charlie. Andrew and Bob are two people who live and interact in a society. Charlie, on the other hand, is a philosopher who looks upon the condition of A and B and decides for himself that Andrew owes a certain obligation to Bob. Let us say that, in order to create some kind of just and equitable society, Charlie declares that Bob should have the right to £100 of Andrew’s income every month. Andrew is therefore now burdened with an obligation of furnishing money to Bob, who now possesses the right to take this money from Andrew with the full backing of the force of law. However, the real right claimed in this situation is not by Bob. Andrew and Bob may have been perfectly happy before Charlie came along; Bob may have been content with his own income and coveted nothing that Andrew possessed. Rather, the real, substantive right is claimed by Charlie. It is Charlie who does not like the situation that Andrew and Bob are in – it is he who despises the existing property arrangements between the two. What Charlie is therefore claiming through his proposal is his right to go to court every time some action he does not like has occurred and to invoke his right to have this action stopped (or conversely to force an action that has been omitted). This desire of Charlie’s is masked in the language of providing justice and fairness for Bob, whereas Bob, in his own mind, never conflicted with Andrew at all and never had reason to invoke a right. The conflict originates wholly in Charlie’s mind.

This becomes clearer when Bob is not another competent adult but is, rather, an animal or an object. An object – let’s say a tree – as far as we know lacks any appreciation of ends, values and choices, and cannot understand any alternative situation as better, beneficial or valuable. Without being able to perceive value or any preference of ends the crucial element for the source of a conflict with another individual is missing. If there is no conflict then there are no rights and obligations. It is for this reason that we owe rights to rational beings who think, value, choose and act but we do not owe rights to non-rational beings and objects who are utterly devoid of these capacities. If, therefore, Charlie comes along and says “This tree has a right to not be cut down” and that, consequently, Andrew has an obligation to not cut down the tree, it is clear that the real conflict over the state of the tree is not between Andrew and the tree; it is, rather, between Andrew and Charlie. The tree has no capacity to care whether it is remains standing, is cut down, or is burnt to the ground. It has no values, no choices, no ends. Rather, it is clear that the person who values the tree remaining upstanding is Charlie. Charlie is seeking, by declaring a pseudo-right for the tree, a real right for himself to have his values vindicated and for Andrew to yield to these values. In short, Charlie wants to force Andrew to comply with what he, Charlie, simply wants him to do.

Usually, theories such as those of Charlie do not confine themselves to individual cases such as that of Andrew and Bob, or Andrew and some object. Rather, Charlie is normally the proponent of a much wider theory of social behaviour as he perceives a conflict between his values and the values of practically everybody else. In other words, he is claiming his right to force everyone else to conform to his grand vision of society. There can be no greater example of this kind of reconstruction of sociological concepts than that furnished by Karl Marx through his espousal of the so-called exploitation theory. Marx analysed the voluntary capitalist/employer relationship according to the equivalence of its surface phenomena with those of previous non-voluntary relationships such as serfdom, explaining the motivations, mechanics, and outcomes of this relationship with a series of fictions such as the harmony of class interests and distortions of several tenets of classical economics. From this, his labour theory of value leads to the conclusion that employer’s profit is “surplus value” appropriated from the labourers. Marx himself was careful to explain his theory as a scientific, economic theory that must be properly refuted in a scientific manner. However it is clear that he is inviting the specifically ethical conclusion that profit is theft, a conclusion to which his followers so willingly succumbed. The question of whether Marx’s scientific conclusions were the slave of his political preoccupations rather than vice versa is debatable. Either way, however, we can see that the effect of Marx’s de facto reinvention, his deliberate reconstruction, of the concept of theft was to urge the establishment of a property order that he desired – the abolition of the private ownership of the means of production – rather than that desired by everyone else. In short, he invented a conflict between two great swathes of the population that was not in any way perceived by the parties themselves. This theory, this constructivist intrusion into social phenomena, went on to enslave half of the globe for nearly a century and resulted in the deaths of tens of millions of people. This trait or technique of reconstruction was not limited to Marx, however. Indeed, pretty much every significant contribution to socialist theory which denigrated the capitalists and entrepreneurs as thieves and parasites was made by middle class onlookers and observers; the working class themselves did not seek any right to protection from any alleged “theft”. So too did the backlash against the conditions of industrial workers in the nineteenth century receive its main championship from middle class intellectuals such as Charles Dickens, Lord Salisbury and Sidney and Beatrice Webb – busybodies who fought for people’s so-called rights without ever stopping to think whether or not those people wanted them. This is not to say, of course, that workers – the constructed rights holders – would not have willingly championed the apparent invocation of “their” rights. After all if someone comes along saying you can effectively have your cake and eat it you are hardly going to complain. This can be seen clearly today with the advocacy of minimum wages. Employees are lulled into thinking that there can be higher, nominal wages and plenty of jobs to go round whereas economic theory tells us that floors on wage rates are likely to lead to a shortage of available jobs and, hence, unemployment. If, however, you understand the concept of demonstrated preference – an “Austrian” insight that informs us that people’s valuations are revealed by how they act and not what they say – you would realise that their actual valuations were otherwise and they are, in fact, perfectly happy to accept full employment with lower wage rates, or “poor” working conditions. Anything they say otherwise amounts to little more than wishful thinking or whimsical dreaming of an alternative but unrealisable reality.

It is true, of course, that constructivist political theories may be motivated by a genuine concern for and desire to help people. But whether this is true or not any political theorist is rarely honest enough to say that his vision simply imposes his values upon everyone else. Usually this imposition is disguised through a convolution of pseudo-concepts and dogmas, the “exploitation theory” in Marx probably being the most prominent. Other noteworthy examples are the so-called “original position” and “veil of ignorance” in John Rawls. People in the real world do not want the kind of ethics that Rawls espouses so he has to invent a fictional world with fictional situations and fictional motivations in which they do. Indeed Rawls is blatant enough to admit, in A Theory of Justice, that he fashions these pseudo-concepts in such a way as to give him the answer that he wants. Such reconstructions and reinventions are evident, though, in pretty much all collectivist philosophies in which society is deemed to have “failed” to direct its resources in ways demanded by the theory’s proponent. It is evident too in all claims of so-called “market failure” – that the choices of purposefully acting individuals have gravely decided to devote their resources to some feeble end rather than to something “better” and “higher” that exists in the mind of the proponent. Furthermore the imposing party is never starkly identified as being the proponent himself, but, rather, his proxy the state (even if the goal is, like that of Marx, an eventual withering away of the state). It is the state which is tasked with bringing the ends desired by the proponent into being so that what results is that the state itself becomes the true rights holder and everyone else is obliged to succumb to the state’s self-enforcement of its right to bring about the proponent’s vision. Any people who happen to benefit from this, although they may be described as “legal rights holders” (for example those who have a “right” to claim state unemployment and sickness benefits), do not possess any real, fundamental rights at all but are, rather, incidental beneficiaries. In modern democracies, Charlie, the philosopher from our example earlier, is not any one individual but is, rather, the majority, who claim the right to force everyone else to adhere to that which they want (assuming, of course, that democracies really do enact the ends sought by the majority, which is highly doubtful). This majority may have a revolving membership from issue to issue or from election to election but the principle is the same as when that which is desired and imposed upon everyone else originates in the mind of a single person such as Charlie.

Unfortunately, and of more direct relevance to libertarians, none of this changes with libertarian and proto-libertarian theories that are themselves motivated chiefly by the desires of their proponents – that the free market will rapidly increase societal wealth by more than we can imagine; that it makes for an affluent and prosperous society; that humanity will achieve its greatest, hitherto unimaginable endeavours, etc. These theories usually have the benefit, unlike collectivist theories, of actually being able to accomplish their aims. However, their weakness lies in the fact that they accept the same basic premise as all the other theories, which is that the desirable goal is that which is posited by the proponent of the theory. All of these proto-libertarian theories set up the wellbeing of “society” as the ultimate aim; freedom of the individual is only the means of achieving society’s betterment. By defining liberty in this way, no genuine, fundamental rights are conferred upon the individuals and they are flimsily contingent upon their contribution to the goal. In other words, the possibility, however unlikely, is left open that if the goal could be achieved through some way other than the free market then these rights and freedoms could be withdrawn. For example, if we discovered, by magic, a way to make central planning the most conducive method of generating economic progress then any libertarian theory which promoted freedom based on its ability to raise the standard of living would crumble to dust. Yet no doubt most libertarians would say that one possesses a right not to be murdered or stolen from regardless of whether such acts would increase or decrease the number of yachts we can each buy. The more basic problem, however, is why should conflicts be recognised with reference to any goal espoused by the proponent of a theory rather than with reference to all of the millions of goals and purposes that individuals strive to achieve? Man is a social animal, as the well-worn phrase goes, but he only participates in social co-operation to the extent that he feels he derives a benefit from it, whether this is material or simply a desire for companionship and friendly relations. Society, the growth of the division of labour, increasing capital accumulation and a rising standard living are the result of each individual person fulfilling his individual purposes through social co-operation; they are not the initial purpose themselves. Such a point is often countered by the argument that people should promote society if they wish themselves to flourish. Ludwig von Mises, for example, speaks of “rightly understood interests” which, in a footnote, he describes as “interests in the long run”, an ethical goal later adopted by his colleague Henry Hazlitt – interests which can only be fulfilled by preserving social co-operation under the division of labour. Although this is a far cry from imposing upon people their own lofty ends as other philosophies are wont to do, it overlooks the fact that people have a variety of localities and time spans, short and long, in mind for their own individual purposes. A person could be completely and utterly educated about the effects of the free market and totally convinced that these effects would be true. Yet it would not be inconsistent for him to still desire goals that we would regard as evil but would not have a destructive effect upon “society” (killing a single individual, or individuals based upon a common characteristic such as skin colour for instance); nor could anyone stop him from desiring goals that are detrimental to “society” only in the long run, perhaps after the particular individual himself has died; still further, however, he could have goals that confer a benefit in the short term and a detriment in the longer term, even to himself (such as smoking, for example) and he may be perfectly happy with this situation. And finally, he may desire goals even in the short run such as greater equality, and reduced affluence and materialism that are completely contrary to ends created by the free market. At the extreme, ecological fundamentalists pretty much want to decimate the entirety of the human race, including themselves, in order to preserve the sanctity of the natural world. Hence one cannot, in these instances, even invoke the golden rule or dismiss them as cases of special pleading.

None of this should be understood as a denigration of proto-libertarian theories which are often, on their own terms, entirely correct and certainly add moral weight to a case for freedom. They do, however, lack moral decisiveness. They are reduced to confronting collectivist theories with arguments about which purpose is better (or which means for fulfilling an agreed purpose are better), and only, at the very least, give the appearance of recognising that the real problem is, in fact, how to reconcile all of the billions of purposes of individual people.

It is true that if we were to refrain from indulging in any constructivist ideology which create rights and obligations fashioned by their proponent then this would not, in and of itself, be sufficient to generate strictly libertarian rights. One also has to explain why, for example, when a conflict is genuinely perceived by individual people, it must be answered in favour of the original property owner. But ascribing rights only to those who seek the valuable ends that their invocation brings about – a province exclusively of rational actors – considerably narrows the field by revealing competing theories for what they really are – the forced distribution of property according to ends valued by the proponent, together with the subordination of all of the billions of desires and purposes of individual people to the desires and purposes of the proponent.

We can see therefore that the greatest threat to liberty throughout history has been the redefinition and reconstruction of ideas and concepts that had a sociological origin. Concepts such as rights have been twisted and distorted from serving as vindications of the ends sought by individual people to serving as vindications of the ends sought by the authors of grand visions of society, visions which have, when implemented, resulted in poverty, destitution and societal degradation. In some ways this is just a more subtle version of the more explicit redefinition of a host of other concepts. A liberal used to be the equivalent of a libertarian; today, wearing such a badge would declare oneself as a socialist. If one is now a free trader, one is actually in favour of managed trade. Liberty is now social democracy, and so on. Even what is “human” has been redefined, through the exploitation of sub-categories such as races and ethnic or language groups, in order to justify ethnic cleansing or genocide on the grounds that the victims are “sub-human” or “vermin”. All of these are simply starker versions of the same constructivist methodology – the attempt to change the underlying reality of concepts to suit their own purposes. To embrace this kind of constructive rationalism, as Hayek called it, is of the same ilk as empiricism and positivism when applied to the social sciences – gross epistemological errors which vastly expand the scope of plausible social theories and lend credence to all manner of attempts at social engineering.

What can we, then, as libertarians learn from this when attempting to develop our own political theory? The most important lesson is that libertarianism is limited to distilling, from the phenomenon of social rules, basic, formal characteristics of these rules rather than their substantive content when they are concretised into actual legal rules that prevail in society. We might call these conclusions high-level political principles and concepts, an order higher than the actual legal rules that we are required to follow in our everyday lives. Some of the conclusions that we can draw legitimately are as follows:

Social rules arise to resolve conflicts born out of scarcity of means for attaining ends;
That rights and obligations apply to rational actors who possess the qualities of perceiving value, thinking, preferring, deciding, and acting to bring about a more favourable state of affairs;
Non-rational actors do not possess rights and obligations – they possess no ability to display moral choice nor the capacity to consciously prefer an alternative state of affairs; key requirements for rights – a perceived conflict and the ability to choose an alternative state of affairs – are therefore missing.

We are not going to proceed to justify these observations here, something which we have already done in an earlier series of essays on the scope of morality. Our concern here is to emphasise that these observations arise out of a reflective process upon the nature of social rules – we are attempting to describe a reality that is already there and not to construct circumstances that are new. When, having made and reflected upon these observations, we continue to define the uniquely libertarian content to social rules this too must also be stated in purely formal terms:

A rational actor has the right to own the matter that constitutes his body;
A rational actor has the right to own private property;
Consequently, no rational actor may invade, physically, the body or property of another.

Again, we will not attempt to justify these conclusions and will simply assume that, as libertarians, we all hold them to be true. Here, however, comes the crunch. What cannot be done is for pure, libertarian theorising to flesh out these formal rules with substantive content. In other words, we cannot, through theory alone, determine which situations are conflicts that need to be resolved. We cannot, by mere philosophising, identify precisely which beings are rational actors and are subject to rights and obligations, nor do we know precisely which actions are aggressive and which are perfectly peaceful. These questions are and always will be the product of the individual values, desires and the resulting perception of scarcity that arises when the means for fulfilling these values clash with those of someone else, factual situations which cannot be determined a priori. In most cases, the obviousness and typicality of aggressive behaviour answers the question for us. For example, stabbing another person in the heart is almost always an aggressive act whereas sitting motionless in your living room chair is not. It would be a mistake, however, to assume that these conclusions are determined by theorising. It is only because the ends that people seek through scarce, physical means clash when one is stabbed by another, and it is only because they do not clash when you sit quietly by yourself in a chair that we know stabbing someone is aggressive behaviour and that sitting alone is not. Whether there is such a clash of ends can only be determined by real people acting in the real world. If we lived in a bizarre world where stabbing another person was perfectly acceptable and everyone was, in fact, happy to receive a brutal stabbing then this would not be aggressive behaviour.

All of this becomes clearer when we consider borderline cases or cases where a typically aggressive act consists of the same kind of behaviour as an aggressive act. For example, the light from a person’s living room window that shines onto neighbouring properties at night is probably not aggressive behaviour, yet if the person was to illuminate his property like Times Square then it probably is. However, both acts consist of basically the same thing – light beams emanating from one person’s property onto another’s. So why is the first act peaceful whereas the second act is aggressive? How bright do the lights have to get before non-aggressive behaviour becomes aggressive? The answer is because nobody, typically, perceives any interference with their own property when you merely have your living room lights on at night, whereas they probably would perceive such an interference if you were to coat your house in flashing, neon lights. Again, the distinction between one and the other rests on the ability of humans to fulfil their ends with the property in question. If each person can go about his business in the belief that he is not being interfered with by another then there is no aggression, even though we may each be experiencing acts which are of a similar, but diminished nature to aggressive acts. Ethics are the product of human action (or, rather, interaction), and all human values that motivate this action appear in discrete concrete, steps – not infinitely small, indiscrete steps which can only be measured by scientific instruments. For example, if I am thirsty and to resolve this thirst I drink 0.00001% of the water in a small glass it is not very likely that I would feel myself to be 0.00001% less thirsty then I was before. Rather, after having imbibed such a useless and imperceptibly small quantity of water I am still, in my mind, fully thirsty and am in exactly the same position as I was before even though, scientifically speaking, the quantity of water in my body has increased. Given that ethics also depend upon human valuations it is no surprise that ethical distinctions are neither surgically precise nor infinitely small.

Is it the case, then, that libertarians are all at sea when it comes to determining the practical questions of precisely which acts are aggressive and which situations are conflicts that are resolved by libertarian rights? Can a libertarian justice system develop no jurisprudence whatsoever concerning which situations are unlawful and which are not? It is true, as we argued in an earlier series on libertarian legal systems, that courts must look to the actions of the parties in order to determine their values and intentions when judging the particular incident at hand. Actions, however, cannot be judged in a void. Rather, they are always interpreted according to their customary, conventional and social context. Over time, as a legal system develops, we can understand readily that the situations which come before courts or adjudicators again and again will be of the same ilk. In other words, courts will come to realise that certain situations are typically viewed by people as aggressive and other situations are not. It is this that provides for them the key to concretising the political principles we outlined earlier – that is, the right to self-ownership and to private property – into substantive legal rules that prescribe the precise situations that violate these principles. Let us take, for example, the deliberate killing of another individual. Although it is, in a hypothetical world, perfectly possible for everyone to be perfectly happy to be killed, our experience and the experience of the court in the real world informs us that in the vast majority of instances people do not, in fact, wish to be killed. Therefore, killing someone is, at the very least, presumed to be an aggressive act in all instances and (if it has been established beyond a reasonable doubt that the defendant killed the victim) the burden falls on the defendant to adduce otherwise. In other words, the victim of a typically aggressive act does not need to prove to the court that the act in this particular situation was aggressive. Let us take, as a further for example, an alleged theft. People, typically, do not want their things to be stolen. If B asserts that C stole from him an item of property the court will hold that this act was prima facie aggressive if B can establish a prior title. However, if C can produce evidence of a superior title, such as a valid receipt for the goods that he took, then he rebuts the presumption.

It is for this reason that acts which consist of minute but generally innocuous physical invasions upon another individual’s person or property are not considered to be aggressive in all instances, even when one party genuinely feels as though his property has been invaded. Earlier we mentioned the case of light from a lounge lamp emanating from a window onto another person’s property. This happens to all of us; if we look out of our windows at night onto the street we can see dim lights from all the other houses. Most people do not give this a second thought as it does not interfere with their ability to use their own property. If, therefore, someone came before the court and alleged that such an act was aggressive, the court is likely to reject the claim simply because certain types of minor and virtually imperceptible physical invasions are deemed to be socially acceptable. And if the plaintiff has a particular susceptibility to the minor invasion then the burden should fall upon him to protect himself from it, and not upon someone else who is simply going about his daily business.

Other legal rules will be designed to sift out genuine conflicts from mere grievances after the fact. One of the justifications for statutes of limitations is that the elapse of an extended period time before initiation of a lawsuit is evidence of the fact that there was no real conflict. For example, if noise emanates from a neighbour’s property onto my own and I choose not to pursue a case against the neighbour within a certain amount of time stipulated by the court then the court may conclude that this elapse of time is evidence that that the noise was not perceived by me as invasive and I am not entitled to recover damages (such a fact may also be construed as evidence that I have granted an easement right to my neighbour to continue making the noise, so that not only can I not recover damages for the previous noise but that the neighbour can go on being noisy also – but this is a separate issue).

Legal rules begin to lose a degree of steadfastness and certainty where it is difficult for the court to establish objectively the relationship between the parties. One of the most pertinent examples in this regard is the crime of rape. The conflict inherent in rape is the lack of consent to sexual intercourse by the penetrated party. Yet establishing objectively whether such consent was either present or absent is fraught with difficulty because lawful sex and unlawful rape often emerge from similar circumstances and consist of the same physical act. Because of the traumatic and, often, life changing results for both a genuine plaintiff on the one hand and a falsely accused defendant on the other, any evidential rules that are determined are likely to be heavily contentious. Yet it is here where the influence of the shifting sands of the social context are most visible. When society was heavily patriarchal and placed a moral responsibility upon females to uphold their sexual virtue, the burden was upon the victim of an alleged rape to prove to the court that she had not consented to the sexual act. Indeed, at one point the law did not even recognise a forced, sexual act as rape if it took place between husband and wife. Nowadays, however, after women have gained a greater degree of social equality with men, we can see at least a creeping movement that places an increasing amount of the evidential burden on the accused to establish that consent was, in fact, present, rather than on the alleged victim to establish that it was absent. In other words, while the concept of rape as an aggressive act has remained in place, the precise legal rules surrounding it have changed as the social, customary and conventional context has changed.

What we can see from all of this is that courts and legal systems in a libertarian world would at no time design or construct concepts such as conflicts and aggression, nor would they pronounce from on high which acts are aggressive and which situations are conflicts. Rather, their jurisprudence is moulded by (ultimately) centuries of cases that have come before it, cases that are motivated by the real perception of conflicts by real, individual people attempting to fulfil their ends with the scarce means available. Although a latecomer born into a libertarian society after many generations would see only a plethora of rules seemingly dictated to him from a single source, their origin is, in fact, the heterogeneous, and decentralised values held all of the individual people that make up and have made up that society.

In addition to determining the distinctions between aggressive and non-aggressive acts, another area where this line of thinking comes into play is the distinction between beings which have rights and those which do not. As we outlined earlier, a being has rights if it is a rational actor, that is it is able to undertake actions that are motivated by thought, desire and choice as opposed to actions that are motivated wholly by the laws of physics or by instinct. The existence of rights is impossible in a situation where both the desire and ability to bring about alternative outcomes with the scarce means available is absent. With such an absence, the determination of outcomes is solely a product of might and inertia – the stronger force always winning – simply because there is no impetus to bring about any alternative. This is all that strict libertarian theory has to say about the matter. However, the question of precisely which beings are rational beings and thus enjoy rights cannot simply be a product of theory. It may be plainly obvious to see that a fully grown human adult, as a thinking, desiring, choosing and rational being will clearly be a rights holder while a dead plank of wood clearly will not be. But we only know this precisely because, at some point in history, the earliest humans experienced interpersonal scarcity and each consciously recognised certain possessions as belonging to him in order to meet his ends. Indeed, the most likely way in which we each recognised another human being as a rational entity that should possess rights is whether or not that being made an appeal for these rights to be upheld as this, itself, is a rational action to devote means towards ends. At first this was most likely made tacitly or through body language, aided by our empathy from being in exactly the same position as our neighbour. It is from this earliest seed that entire systems of rights and obligations between individual humans grew. No one at any point commanded from on high that “X has rights, Y does not have rights” and so on. Rather, because of our shared quality of acting rationally, our status as rights holders was enforced from the bottom up as we each sought to progress our lives by directing scarce resources to the uses that satisfy us the most. This brings into the foreground the question of marginal cases such as foetuses, children and higher primate animals. Let us take, for example, abortion. Libertarians are often chided for not having an agreed “solution” to the issue of abortion (as if everyone else is blessed by such agreement). Yet, as we have argued here, this disagreement is not one that is inherent in libertarian theory. Libertarian theory tells us only the qualities that a being has in order to enjoy rights. In an earlier essay, which focussed exclusively on the issue of children and abortion the present author suggested that this question must always be answered in the negative in regard to these beings – that it is so obvious that foetuses and very young children are incapable of acting rationally that they would only come to possess rights, probably in a graduated fashion, as they age. Yet whatever support could be mustered for such a position, it is not strictly a conclusion of libertarian theory. In contrast to this initial conclusion we went on to discuss in a second essay an alternative view which could also, in accordance with libertarian theory, grant rights to children. These questions – whether a particular being such as a foetus possesses those qualities – concerns the application of libertarian theory, not the theory itself. This application will also vary according to the social context, just as the precise acts which can be categorised as aggressive are dependent upon this context. A clear example of this is the changing nature of the rights of children. Even if we admonish the statist intervention into the family unit and the ridiculous and irreconcilable one-size-fits-all cut offs for when children can carry out such acts such as having sex, driving or drinking alcohol, it is tempting to say that it is obvious that children must be regarded as independent, human beings who at least have some rights. In other words, the rights of infants are a universal an immutable fact, independent of time and place. However, this could not be further from the truth. In pre-industrial, agrarian societies where the main economic unit was the family, children were regarded as little more than the property of their parents and their chief worth was their economic value, with any rights they had subsumed by the welfare of the family unit. Although research produced by scholars since the 1960s has indicated that child rearing was not brutal and parents did make sacrifices for their children to maximise their welfare such as care during sickness, the general attitude is hardly unsurprising in an epoch of extreme poverty characterised by persistent hunger, malnutrition and an infant mortality rate as high as one third of babies born. Indeed, we can surmise that telling a mother that she may legally kill her child may have been greeted with an acknowledged, if reluctant acceptance if there simply wasn’t enough food to eat and if the consumption of whatever resources were available was prioritised towards the able bodied population. The more familiar view of children as having an independent identity that accorded them certain rights was born during the Renaissance and the Enlightenment, along with the romanticised view of childhood as an “age of innocence”. However, thoughts during this time were far from uniform. On the one hand, there was the nurturance or caretaker view which was, at its earliest, espoused by John Locke, and Thomas Spence’s “The Rights of Infants”, one of the first pamphlets to specifically consider the issue, is subtitled “Imprescriptible Right of MOTHERS to such a Share of the Elements as is sufficient to enable them to suckle and bring up their Young” (emphasis in the original). This work is written as a plea from the mothers of children to the aristocracy. In other words the rights advocated were of the mother to demand from the gentry the wherewithal to nurture her infant from the produce of the land and were not directly held by the child. The alternative view, that children have much more independent rights, became augmented and subsumed by the onset of industrial society (in which children often worked in factories and down mines), and the backlash of the middle class intelligentsia against the “squalid” and “destitute” conditions of industrial workers generally, a backlash that was itself subsumed by the descent into socialism and communism. Of course, what truly abolished child labour was not a call for children’s rights, but the fact that adults could produce enough wealth for a child to survive and flourish without the latter having to work. The right of a child not to labour and, instead to be supported by its parents, are, like any positive obligations, wholly dependent on there being enough wealth to accomplish this. Thus the specific rights, and to whom they applied, were very much a product of the socioeconomic context. For the sake of completion, we might as well mention that the development of children’s rights in the twentieth century has, unsurprisingly, been welded to the growth of the state and all of its catastrophes and calamities. The Declarations of the Rights of the Child, the precursor to the modern UN Convention on the Rights of the Child which is, as of this day, enshrined in international law, was drafted by Eglantyne Jebb, the founder of the charity Save the Children that was set up to alleviate the starvation and poverty of German and Austrian children as a result of the First World War, a war which would not have occurred without imperialism, state militaries, the drive to autarky, central banking, and so on. The creation of the welfare state and the subsequent disintegration of the family it has caused, together with government provision of education, have all served to make the rights and conditions of children a public affair.

It is not, therefore, a matter for theorists to determine from on high whether or not specific beings such as very young children or foetuses should have rights and what these rights, precisely, will be. In other words, libertarian theory does not demand that children and foetuses, nor any other specific being, have rights. Rather these rights, if they exist, will be generated from the bottom up and will depends very much on the customary, conventional and socioeconomic context. We explained in detail how a modern libertarian legal system may approach the question of the rights of children in this manner in our second essay dedicated to the topic and we will not repeat this in detail here. But we can mention briefly that a series of legal presumptions is likely to govern these rights. There is likely to be at least a legal presumption that a child is a rational being when it comes to the right to bodily integrity (so that a child may not be legally killed); further legal presumptions will grant further rights to children (i.e. to enter contracts, to drink, marry, enter employment, etc.) either at ages where the court has previously found children to be generally competent for these acts, or at ages or milestones which are important in the social context, such as the Bar Mitzvah in a Jewish community. One unique aspect of a libertarian legal system, however, is that these milestones need not be concrete or set in stone as the state makes most of them today. It may well be open to the child, or to another individual, to rebut the presumption. If, say, there is a legal presumption that a child cannot enter a contract of employment below the age of thirteen, a child below this age may contest any challenge to a prospective contract if he (or the prospective employer) can demonstrate to the court’s satisfaction that he made this decision in the manner of an adult – i.e. it was a rational choice to better his life. There should be no danger of a perpetual, enforced childhood in state run schools if the child is uniquely mature enough to seek a better life for himself. Conversely, if a child is mentally impaired the rebuttal may work the other way with the parents or guardians establishing before the court that, at a presumed age, the child is still not competent to undertake certain acts in his or her own right. Abortion may be more difficult but we can suggest, for example, that if advances in medical science reduce the amount of time for which a pregnancy has to elapse before the foetus is considered viable then the law may regard the foetus as a whole, legal person much sooner that it previously did. If and when we have the technology and are able to establish communication with some of the higher functioning animals, these too may be regarded as rights holders in at least limited circumstances. To repeat again, however, this discovery of certain animals as rights holders would be made as a result of the recognition of these animals as independent, rationally acting beings. The rights will be dependent upon what these animals want because we discover that they are able to want, to desire, to choose different outcomes and to act accordingly. Contrast this to the current statist enforcement of so-called “animal rights” from the top down. These rights are not really animal rights at all – they are the rights of certain people who claim to care about animals enforcing how they believe other people should act vis-à-vis animals. The benefit gained from a vindication of any of these “rights” exists in their minds, not in the minds of the animals.

This, then, is a suitable concluding note to emphasise from what this series of two, rather long, essays. That these phenomena – rights, obligations, conflicts, aggression and so on – serve to regulate the desires of individual, rationally acting beings, a regulation that is necessary to resolve the perception of scarcity that exists in these people’s minds. The existence and content of rights is driven by this impetus. Rights are not designed or constructed from on high by an intellectual in an ivory tower, nor are those who benefit from them assigned by a politician. Any attempt to design rights is akin to treating to individuals as pieces on a grand chess board – pawns in a game of shaping society according to what the intellectual or politician wants. Our conception of rights here is focussed firmly on vindicating the individual and, while it may appear as a limitation upon libertarian theory to answer certain precise and practical questions, ultimately strengthens it.

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The Nature and Origin of Rights, Part One

March 20, 2016

Duncan Whitmore Essays, Morality and Ethics Conflicts, Constructivist Rationalist, Design, Hayek, Human Action, Language, Laws, Libertarianism, Methodological Individualism, Money, Obligations, Prices, Rationality, Rights, Social Institutions, Social Order, Social Phenomena, Spontaneous Order 1 Comment

There is nothing that highlights more the uphill struggle faced by libertarians than an old joke which is directed at the economics profession in general:

How many economists does it take to change a lightbulb? None – the market will take care of it.

Unlike our statist counterparts, as proponents of the free market we have no precise design for the solutions of particular issues and problems. We do not have an energy plan, a transport plan, a housing plan or a healthcare plan. Rather, we believe that freely acting individuals, endowed with private property rights, will find the solutions that utilise the scarce resources that we have in the most efficient way possible. Indeed, when asked the (almost tiresome) question “who will build the roads?” we don’t, strictly, know that a free market will produce any roads whatsoever. There may, in fact, be some better transport solution that compulsory government road funding prevents us from discovering. This is, in fact, the entire point of the free market – that there is no grand, overarching plan with particular solutions that are imposed upon everyone else from on high. Moreover, any kind of centralised plan or desire for the government control of goods and services has always presupposed the existence of industries and products, such as roads, that were invented by freely acting individuals.

This key aspect of the free market – a complete lack of centralised design of products, services and entire industries – is not limited to the substantive configuration of resources. Rather, as we shall attempt to argue at length in this two-part series of essays, it extends also to the very concepts and institutions that uphold a free market order – in particular, laws, rights, property, non-aggression. Part of the question we wish to explore here, then, is if we, today, had to the opportunity to sweep aside the entire mantra of statist oppression, would the institutions that we put in its place be subject to some kind of design by libertarians or would they also be subject to some kind of decentralised action by freely acting individuals? In other words, would we come along and say “this individual has rights”; “this object is property”; “this act is aggression”? More potently, however, we need to explore whether the nature and origin of concepts such as rights, property, aggression, and conflicts lend themselves to some kind of conscious design or whether they depend upon the behaviour of freely acting individuals in order for their true meaning to be realised. Once we have determined this we will be able to conclude whether it is only by recognising the dependence of these concepts upon freely acting individuals that a genuine libertarian society be built.

Some readers will recognise that we are following here a line of epistemological thinking propounded by F A Hayek, mostly in Law, Legislation and Liberty, as to the appropriate use of rationalism in understanding and framing societal institutions – i.e., is our rationality, our ability to reason and to act purposefully, better suited to constructing and designing social institutions, or rather, are these institutions instead the product of some kind of “spontaneous order”? If the answer is the latter then the focus of our rational endeavours should be to gain comprehension, insight and understanding into elements of human interaction that have already been built and not to recreate these elements anew.

Let us begin with some simple examples in order to illustrate what we mean by this. The first example we shall use is language. Any language that we speak is a complicated thing, with lots of different words and lots of different rules for using those words. However, language itself and the very vast majority of specific languages were not invented explicitly by anyone. Rather, they grew up through millennia as a result of individual people striving to communicate ideas to each other. The meanings of words but also the concepts of sentences and grammar also developed without any centralised plan and before anyone acknowledged consciously the precise forms and structures they were using. For example, if, years ago, one of the first humans said “I will throw this ball”, neither he nor his partners in dialogue would have known explicitly that he was using a subject, a verb and an object to create what we now call a sentence. If he elaborated and said “I will throw this red ball” he would not have known that he just inserted what we now call an adjective. Yet anyone he spoke to would have understood the ideas that he was trying to communicate in the sentence. Moreover, if he tried to say something like “ball thrown I red” those listening to him would probably recognise that he was talking utter nonsense – but they would not necessarily be able to say precisely why this sentence is wrong. Indeed, even the idea behind concepts such and nouns and verbs probably never even entered these people’s minds – in the same way that they do not explicitly enter the minds of the vast majority of people who communicate through language today. It was only after many centuries of languages being used and developed that linguists came along in order to study the phenomenon of language systematically and to develop the rules and concepts of grammar, writing and speech. Yet, crucially, the role of the linguist or grammarian was not to invent or design these rules, or to reconfigure language as a whole. Rather, his role was to gain insight and understanding into a process that already existed – to gain rational comprehension of a phenomenon that was of no single human’s construction. For example, an adjective is a particular concept that concerns the use of words in order to describe nouns. For example, a red ball; a tall boy; an old lady. By calling these words adjectives the linguist did not invent the concept of an adjective. Rather, the concept itself already existed as a phenomenon of human interaction for which the linguist only provided a label for us to identify it and distinguish it from other phenomena. Thus the label “adjective” aids the endeavour of gaining rational insight and understanding into the phenomenon of language and does not amount to the construction of anything that was not already there. If, on the other hand, linguists tried to reinvent these concepts or to attempt to apply them to other phenomena then we can see easily that we would run into all sorts of trouble. Let us imagine that a budding, pioneering linguist comes along with the aim to reinvent the rules of language, to undergo a reconstruction in order make it more coherent and, no doubt, more “rational”. After all, he is a scientist of the human race, a race that has managed to build everything from enormous craft that fly into space all the way down to tiny computers that fit into your hand. Surely he can master the design of something as simple as how we speak to one another? Let us say that he decrees that an adjective should describe not the noun in a sentence but, rather, the verb. So in the sentence “I will throw this red ball” this linguist would claim that the word “red” should actually describe the verb “throw” – so that the quality of throwing is, in some way, red. Or in the sentence “I will drink this hot coffee” the word “hot” describes the act of drinking rather than the condition of the coffee. Clearly such a reinvention would lead to utter nonsense and a complete breakdown of the purpose of language, which is the successful communication of an idea, i.e. making yourself understood by another party. The concepts that the linguist identifies, such as adjectives, are not open to his reconstruction – to him they are phenomena that already exist as a given, much like the fact that the sun rises and water flows down. The only difference is that the phenomena associated with language arose out of the interaction of many millions of human beings across centuries rather than straight out of the natural world. These concepts the linguist identifies describe a strand of reality that are already there for him to identify and to understand; any attempt by him to impose an alternative meaning or definition of these concepts results in something completely different from their original nature.

Whether or not alternative languages can, in fact, be designed, is beside the point. Languages have been designed explicitly, with Esperanto being the most notable, although any designed language has failed to gain any significant use. Our point here, however, is that existing languages are not the product of design or reinvention and that the concepts we use to identify and understand them are also not invented phenomena. Our attempt to engage in such a reinvention must necessarily result in something completely different from that which already exists.

In order to explore this further let us take another example of a social phenomenon such as prices. Indeed, prices are a classic example of a social institution that, unlike language, has been subject to a kind of constructivist reinvention. The phenomenon of prices appeared as a result of millions of private, bilateral transactions millennia before anyone actually stopped to determine what prices actually were and how individual prices are set at the levels they are. Just as the linguist used his capacity for rational analysis to determine the elements of language, so do did the economist approach the concept of prices with the desire to comprehend and gains insights into this reality, not to construct anything new (an endeavour which was only accomplished sufficiently after the realisation of the law of marginal utility). What was learnt was that a price is the exchange ratio between two goods that results from the competing valuations of those who supply a good versus those who demand it with another good (usually money). The specific price is set between the valuations of the marginal buyer and the marginal seller. The effect of a price at this level was that the willing supply and willing demand for a good were equalised.

What happens, however, when we deflect our rational thinking away from gaining comprehension of this phenomenon and embrace, instead, the desire to gain control of and “create” or (as economists usually say) “fix” prices? This false, constructivist approach looked only at surface level phenomena of prices that were manifest in the fact that the act of pricing was largely carried out by entities that were sellers of commodities and buyers of labour – in other words, businesses. This, aided by other confusions such as the paradox of value – the conundrum as to why a diamond costs more than water when the latter is infinitely more useful to mankind – led to the conclusion that prices were simply declared (as opposed to estimated) by sellers and/or were merely the arbitrary and capricious results of unrestrained greed. It would follow from these falsehoods that the price of a good could be manipulated at will or established by decree. Yet it is clear that this conception of prices has entirely different ramifications from the previous one that we outlined. With these new, constructed prices their ultimate influence is not the individual interactions of all of the millions of people attempting to fulfil their purposes but rather the preoccupations of those who decree them (i.e. the state), which are mainly political. Most of the famous cases of price fixing were designed to counteract the effects of rampant inflationism, such as the Emperor Diocletian’s fourth century Edict on Maximum Prices and President Nixon’s price and wage controls in the 1970s. The results of these prices too are markedly – even catastrophically – different. If the decreed price is too high relative to the price that would be set by supply and demand then an unsold surplus of the good would accumulate; if the price was too low then a chronic shortage would ensue. In both cases the quantity demanded and the quantity supplied are shifted out of balance, resulting in economic turmoil – as it was in the 1970s when Nixon’s price controls exacerbated the effects of the OAPEC oil embargo, leading to an acute shortage of gasoline (which, of course, promoted further government intervention in the form of selective government rationing, the 55mph speed limit and the moral degradation that occurs as a result of the destruction of the supplier/customer relationship).

Under both conceptions of prices – the un-designed and the designed – all of the surface phenomena of prices are constant. Price tags are still on the goods (if there are any goods) and money still changes hands. Yet it is clear that the difference between the two concepts is to encapsulate two entirely different strands of reality that each have vastly different origins and motivations, and vastly different consequences. In moving from the first conception to the latter, the concept of price has been changed from meaning the exchange ratio that results from the interaction of supply and demand to basically meaning the exchange ratio that is ordered by the state.

It is clear from this, therefore, that a concept, such and nouns, verbs, prices, which developed as a result of human interaction, cannot simply be changed at will or by agreement without entirely undermining its essence. Indeed with prices not even an explicit agreement amongst all of the consenting citizenry as to what a particular price should be would circumvent this fact because the resulting exchange ratio would still not accord with the reality that the concept of price tries to capture, which is the exchange ratio that results from supply and demand. What we can also begin to see is that any attempt to redesign or reconstruct these phenomena destroys their service for free, individual people and instead places them at the service of the state and is therefore antithetical to liberty. We can see this more clearly in a third example of this type of concept which is money itself. The phenomenon of money – the generally accepted medium exchange – appeared through millions of bilateral exchanges before anyone stopped to think about precisely what they were doing when they handed over, say, lumps of metal like gold or silver in exchange for stuff they could eat or use as shelter. Money was something created as a result of human interaction but nobody designed or invented money. The product of this was a medium of exchange that served reliably as a store of value, as a unit of account and as a major bulwark of sustainable economic progress. All of the monetary issues we experience today – the business cycle, inflation, and a grossly unstable financial system – stem from the attempt to recreate the concept of money as something that is created and enforced by the state, an endeavour that has not only resulted in the catastrophic effects we just outlined but also a tremendous loss of liberty as governments have been able to fund their bloated operations without resort to regular taxation.

Bearing all of this in mind, then, what is the nature of other sociological concepts which form the core of libertarian theory? These are concepts such as property, rights, obligations, laws, conflicts, and aggression. Are these phenomena which appeared gradually over many hundreds of years through social interaction? Or were they the explicitly designed product of, say, a wise and benevolent ruler who sought to create order out of chaos? We shall argue here that concepts such as rights and obligations are indeed of the same ilk as prices – they appeared over millennia as a result of millions of humans attempting to fulfil their individual purposes. The concepts were not the product of explicit, human construction; rather, they were a reality that already existed before anyone consciously thought of the matter. The purpose of our rationality is to reflect upon this reality, understand and comprehend what was occurring, and from this understanding fashion these concepts in order to explain and describe this reality. Any attempt to reconstruct them anew will, as we shall see, destroy their real value to the freely acting individual and instead place them in the service of the state.

Let us recall that the question of rights and property only arise because of conflicts that result from scarcity – the fact that two or more individuals cannot satisfy their ends owing to shortage of means. Rights and obligations over physical matter that is designated as “property” are the solution to these conflicts. In other words, rights and obligations only arose because individual, rationally acting beings, incurred a reciprocal recognition in a particular situation that physical means available were not sufficient to satisfy the ends of each, hence one had to yield and refrain from action and the other could act. The source of a conflict was the fact that one of the parties would have to suffer a loss of *value* – and end worse than the one he sought – if he had to yield to the other party, who, in turn, would have his value realised. These conflicts and their prescribed resolutions are endemic to the situation of humans as social animals. It is highly unlikely that two humans ever interacted without running into some kind of conflict over scarce means, particularly as primitive man suffered from the scarcity of the most basic of needs far more than we do today. Hence social rules are likely to be as old as humans themselves. These conflicts and their resolution through a system of rules began long before anyone actually explicitly enunciated that which was occurring. Indeed the words “rights”, “ownership” and what they were may not even have been known to anyone who sought them, in much as the same way as no one knew what a verb or a noun are until long after people actually began to communicate through language. Nobody at any point woke up one morning and said ‘Gosh, I believe it would be awfully nice if everyone had the right to private property!” as if it was an entirely new creation, nor did anyone ever explicitly “agree” the same thing. The earliest rules were probably acknowledged and understood tacitly with communication through body language. Later, as the earliest civilisations were born, customary legal systems developed through appeals by the conflicting parties for adjudication by a plurality. They made this appeal because, in the long run (and according to their own valuations), ad hoc conciliation is uncertain while resolution by violence is both uncertain and costly and dangerous. Indeed, we might say that although this process requires a degree of reflective ability of the plurality’s members, the legal rules and principles that crystallised depended upon a) their ability to address the situation that identified by the rational actors to which they need to be applied, b) the willingness of the parties to yield to them and thus avoid violence, and c) their ability to serve as a guide to behaviour in order to avoid similar incursions in the future. Crucially, there was no centralised force that had the authority to either decree or enforce the law, such authority, where it existed, resulting from usurpation. Rather, adjudicators had to earn and maintain their reputation in the knowledge that parties could seek justice elsewhere and that they – the adjudicators – might too, one day, be involved a conflict and stand to be judged. To this extent, therefore, the dispensation of impartial and principled justice resulted from self-interest. Indeed, we might say that the whole edifice of consistently and impartially applied legal rules existed solely because, in the long run, these things were the cheapest option for people to fulfil their ends. In other words, that agreeing to resolve conflicts peacefully through a system of rules was, in the long run, the best way for people to maximise their wellbeing. The result of this was, of course, the development of society – the peaceful co-operation between individuals seeking to fulfil their needs and better their lives.

Indeed, it is important to stress that a well ordered and functioning society was the product of customary social rules and was not their precursor – the peaceful resolution and avoidance of conflicts is what permits social co-operation, either primitively or under the division of labour, to flourish, and it only did so because people desired it. “Society” did not come first in order to fashion and enforce the law or to determine what conflicts were and where they existed and how everybody should behave. We are tempted to address this chicken and egg problem differently today because “society” precedes us and so we also think that it precedes our rights and obligations; we were born into an existing social order that seems to grant and impose these things on us from on high. It certainly true that latecomers to a social order, who, like us, were born in succeeding generations or were formerly outsiders, were likely to find themselves bound by previously enunciated rules. However, the origin of those rules was the perception of conflicts by individual, rationally acting people. So when, today, for example, we extrapolate from these past cases and say that a particular right applies to me and to everyone else in the world it is true that these rules and concepts predated anyone who is alive today so that it appears as though somebody else is either granting us these rights or enforcing these obligations upon us. But even today we can see that rights, obligations and conflicts must originate from the minds of the parties to the dispute that the legal rule seeks to solve. Strictly speaking when we say that “I have the right to private property” what I am really saying is that this right would be enjoyed by me in a hypothetical case where I enter a conflict over a particular good. But just as in the pre-historic cases that crystallised the concept of a right, this conflict would have to be perceived by me in order to be a breach of my rights. Someone taking my property is not theft unless I do not want them to take it; if I am perfectly fine with it then my right is not infringed (indeed, in a world where everyone helped themselves to each other’s stuff as they pleased and everyone had no problem with it no one would even know what a right to private property was). Rape is only rape because a woman (or a man, even) does not want to be penetrated; if he/she doe then it is sexual intercourse. One person injuring another is only assault because the latter does not wish the former to injure him; if the injury is the result of a consensual contact sport or an unusual sexual fetish then it isn’t. A person’s free speech is only infringed because he wants to speak. If, on the other hand, he is an uncontrollable blabbermouth who talks before he thinks then he may welcome the occasional physical restraint from speaking. In all of these cases where the physical act is consensual there is a harmony of interests – the scarce, physical matter available is directed an end that is sought by both parties and thus there is no conflict. The question of rights only arises, however, when the two parties are trying to direct physical matter towards different ends (and also, we might add, when the cost of resolving the matter in this manner is less than the cost to the plaintiff of fulfilling his ends with other means; if you steal from me a paperclip it is probably cheaper for me to buy a new one than it is to sue you for it; the history of fencing laws is illustrative of the changing economic dimension of rights and obligations). In short, because it is my right it is my choice to waive it when someone else’s goals with the same, physical matter are identical to mine.

Let us re-emphasise, therefore, that the nature of these concepts – rights, obligations, conflicts and so on – were revealed to us through rational reflection upon social interaction, and the distillation of common elements and their justification according to common principles uncovered – not created – the formulae that we libertarians cherish today, such as the individual’s right to private property.

Let us turn now to a different, constructivist conception of what rights and obligations may be – that is that these concepts were deliberately created or invoked by specific persons such as monarchs, leaders or intellectuals. It is clear that if the origin of a proposed right is not the resolution of a conflict arising from the competing valuations that exist in the minds of the parties, it must, rather, be something else. There are only two possibilities. First, a third party constructs a right according to what he hypothesises is a conflict between the parties over the property in question when there is in fact no such conflict. In other words, rather than being a party to a conflict himself, this third person looks upon the condition of other people and declares that they are in a conflict with each other that needs to be corrected with a system of rights. The second possibility, which is joined at the hip with the first, is that the conflict over property results from the valuations of a third party or of a group (such as intellectuals) who call for the construction of rights and obligations according to their own direction. In other words, these people want to distribute property rights according to what they want rather than what everybody else wants when everyone else may, in fact, be living in perfect accord with one another. In both cases the concept of a right has been changed from the resolution of a conflict over scarce, physical goods as perceived by the parties into being the resolution of a conflict over the same goods perceived by somebody else. Your rights and obligations are no longer determined by what you, as a freely acting individual want and value; rather they are defined by some other person. This is something that is markedly different, something that changes not only the definition of a right itself but also the definition of specific rights.

An exaggerated example of the first type of “right” – one that is simply imposed – is a right of each person to air. Intuitively, a right to air sounds more than plausible – after all, a person will live for barely minutes if he is not able to breathe. Surely, as some pioneering progressive might say, it is a travesty of justice that we do not all have a right to something as basic as air?! Under the state’s self-appointed mantle that it needs to ensure that we all have enough air to breathe, perhaps we can imagine exclusion zones round each other’s bodies which no one else may breach in case they breathe “your” air in the zone. Or, needless to say, we could imagine countless other ridiculous “solutions” to this non-problem. Rights to air do not exist, of course, because nobody (yet) conflicts over particles of air. The supply is more than sufficient to meet each person’s need without anyone ever coveting the air breathed by someone else. Hence rights and obligations in this scenario are superfluous and any invocation of them is an unwarranted affront to people’s perfectly peaceful behaviour. (The contrary case – that of taking away rights when they are, in fact, demanded, such as with rights to own animals that are members of an “endangered” species – is of the same ilk, but we need not deal with that here).

With the second type of constructed rights, let us take the right to private property which protects one against, say, theft. If, in order to “protect” my property, this right is no longer defined according to my valuation as to how I best want my property directed – i.e. my willingness to “exercise” my right – it must be defined by reference to something else. This can only be what the imposing party, or his intellectual advisers, regard as their valuation as to how the property is best directed. The resulting prohibited action is no way a vindication of my right to private property at all – if I am perfectly happy for my property to be taken in a particular incident and this is clearly evident then there is no discord between me and the alleged thief, nothing that the imposition of a right needs to solve. What has in fact been accomplished is the voiding of a transaction that the imposing party disapproves of according to his valuations at the expense of the valuations of me and the person who took my property. The critical element required for a generation of rights and obligations – a competing valuation over scarce, physical goods – is held by the imposing party, not by the constructed “rights” holder (i.e. me). Hence, the de facto right – i.e. the ability to have property directed to ends according to which one desires – is also held by the imposing party, not by the constructed rights holder, for it is really the imposing party’s valuation regarding this particular piece of property that is vindicated. Theft has now been constructively redefined from meaning a conflict between a property owner and a person who takes it, into a conflict between those two parties and the state. This is clearly anti-libertarian as it subsumes the desires of all of individual people and permits the imposing party to direct everyone else’s property to its desired end. The result is practically the same as the government simply outlawing certain types of voluntary trade, such as drugs or prostitution.

What we will proceed to explore in part two of this series of essays is precisely how this state of affairs – the movement from rights as a product of human interaction to being a product of explicit construction – came about and how devastating it can be to individual liberty.

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States and Corporations

February 20, 2016

Duncan Whitmore Essays, Morality and Ethics Border Control, Corporations, Counterfeiting, Democracy, Education, Government, Immigration, Justice, Law and Order, National Defence, Nationalisation, Ponzi Scheme, Printing Money, Regulation, Social Justice, Social Security, State, States, Statism, Taxation, Voting, War, Welfare State Leave a comment

To say that the existence of the state is, in the mainstream, uncontroversial would be something of an understatement. While the precise individuals who form the state and the specific acts that they choose to do with state power often attract controversy, the existence and sustenance of the state itself is deemed to be essential for not only a functioning and orderly society (such as that which could be provided by a so-called “night watchman” state) but also to contribute, or even to cause, the economic and cultural progression of that society. This belief has become even more potent since the state, sometime in the twentieth century, became endowed with so-called “democratic legitimacy”, i.e. it is supposed to be run by representatives chosen by the people for the people.

Let us run through some of the uncontroversial and supposedly necessary aspects of the state that are barely questioned by anyone today.

First, the state possesses a territorial monopoly of the legitimised use of the initiation of force and violence. The state alone is permitted to fund itself not through voluntary exchange but through compulsory levy (i.e. taxation); people are required to pay to the state that which the state says they should pay regardless of the “service” that they receive from the state in return. The state, further, is permitted to confiscate the legitimately earned wealth and property of individuals and to hand it to other individuals in order to achieve so-called “social justice” and a reduced inequality of wealth and income. Further, the state may use this legitimised force to ban certain uses of one’s own property that in no way interferes with the person or property of anyone else. It may also use this force to compel individuals to deal with their property in certain ways specified by the state, usually at one’s own expense – a power of the state that is euphemised by the term “regulation”.

Second, the state alone is tasked with maintaining law and order and the protection of the person and property of individuals from criminals. The possession and trade of goods and services to enable individuals to accomplish this themselves – such as personal firearms – is increasingly restricted by the state to the extent that such possession or trade itself becomes a crime, even if the intent is simply to prevent criminal acts against oneself. You are therefore utterly reliant upon the state for your own protection and, moreover, you are defenceless against the state when its employees aggress against you. Nevertheless this does not prevent the state from requiring private organisations to police the populace on its behalf – such as in the collection of taxes from payrolls and the requirements of banks and other financial institutions to report on the transactions of their customers.

Third, should the state fail to maintain law and order and to protect your property from criminals, it is then the state to whom you must turn if you want a redress. For the state also enjoys over its territory the privilege of being the sole provider of the dispensation of justice in conflicts between parties, including in conflicts which involve itself. This takes place not just in state run court houses refereed by state employed judges but also (when the state or some of its members have been seen to cause an incident that results in public outrage) in so-called “independent public enquiries”. These are undertaken by a different employee (or retired employee) of the state and the funding still flows from state coffers so there is no wonder why these are almost always written off by the general public as a whitewash.

Fourth, the state alone is tasked with providing so-called “national defence” and securing the state’s borders. Although the restriction of civil liberties in the face of either a real or imagined threat against the state’s sovereignty by a foreign invader is not uncontroversial, it is hardly new and is, in fact, a hallmark of every war into which the state drags its people. More commonly, however, the state may prevent foreign visitors from entering the territory of the state even if domestic private property owners have invited them. People who wish to come to the state’s territory to create jobs and wealth, or simply those who wish to work, are forcibly restricted by the state, even if a domestic employer is willing to hire them. The state also controls, by force, the flow of trade across its borders and imposes tariffs and other restrictions on the movement of goods, regardless of whether a domestic individual or entity wishes to conduct peaceful trade with a foreigner.

Fifth, the state alone is permitted to print and issue currency in the form of paper money or electronic credits to the extent that it may create this money and use it to buy goods and services for itself without having worked to create any wealth in the first place. Other people who do this are labelled as “counterfeiters” and are subject to the full brunt of the state’s forceful retaliation. Such a power to create money is bound only by the economic consequences of price inflation and credit expansion but it permits the state to fund and grow its activities without resorting to increased taxation, instead robbing the domestic population of the purchasing power of the existing notes that they hold.

Sixth, the state forcibly maintains a monopoly over transportation networks such as roads, highways, railways and airports. If they are not nationalised outright, the state frequently contracts out the provision of other supposedly “essential” industries such as healthcare and the supply of utilities such as gas, electricity and water under the rubric of “privatisation”, yet it maintains a tight control over these industries to the extent that they are little more than a state dominated oligarchy.

Seventh, the state tasks itself with the “education” of the children who are born and/or raised within the state’s territory, mandating, through the threat of punishment, attendance at certain ages dictated by the state, regardless of what children may prefer to be doing or better at doing. The state employs the teachers, sets the curriculum, determines the standards to be achieved through examination (i.e. sets the grades) and is responsible for inspecting its own schools and institutions. Private education is possible but, apart from being monitored closely by the state, is nearly always prohibitively expensive and thus is seen, with some resentment, as being the preserve of the wealthy and privileged. Thus the majority of people have little choice but to turn to the state to provide the education of their children. Furthermore, the state takes it upon itself to interfere in the general upbringing of children, with state run schools often tasked with policing parents and dispensing lessons such as “citizenship” and “personal, social and health” education in order to make up for supposed parental shortfalls.

Finally, the state is supposed to protect us and to provide for us in our hour of need – such as if we lose our job or when we retire. State provided retirement benefits are little more than a giant Ponzi scheme. Funds confiscated by taxation from the earliest “beneficiaries” to provide for their retirement were not saved and invested by the state; rather, they were consumed in current expenditure. Instead, it is the current tax confiscations of younger generations that pay for the pensions of today’s retirees. The state forcibly prevents private individuals and companies from engaging in such a scheme as it ultimately results in collapse and losses for the later investors, and those that do offer such a service are thrown by the state in jail. The state’s own scheme is, as we are beginning to see today, susceptible to such a fate yet the state exempts itself from having to follow its own rules.

No doubt readers can think of many other “uncontroversial” aspects of the state that are held dear among mainstream views. Each of these aspects could be demolished in separate, longer treatments and many libertarian writers have, of course, done just that. What we wish to do here, however, is to ask our fellow citizens who do not counter these “functions” of the state a very simple question: if you accept with gladness or even celebrate these aspects of the state that we have just listed, can you imagine also permitting a private corporation to do the same things that the state does? Can you imagine a private corporation being able to initiate the use of force and violence against other people? Would a private company be allowed to force you to do what it wants with your own property? If you get into a contractual dispute with AT&T should AT&T be allowed to judge the outcome of the conflict? If American Airlines assaults or kills your family should American Airlines sit both in the dock and on the judge’s throne? Should Microsoft be tasked with national defence and arm itself with nuclear weapons? Should McDonalds be able to tell you which foreigners and which goods and services can cross the border even if you want them to come and visit you? Could we imagine a world in which Google or Walmart can print paper money and force people to accept it in return for goods and services? Or a world in which Facebook builds all of the roads and runs all of our utilities? Would it be possible for, say, Apple to be able to force our children to attend its schools? And finally, should we allow Bank of America or J P Morgan Chase to force investors to participate in Ponzi schemes? Most lay persons are likely to recoil in horror at the thought of any private corporation being able to do all of these things. Yet, bizarrely, they either accept or defend the fact that the state should participate in these activities.

One likely retort to this is that the state is supposed to govern for “the people” whereas companies are interested in making profits for their shareholders. Indeed, the state uses its self-proclaimed subservient and altruistic nature to exempt itself from all of the proper behaviour that is required of private citizens, who are supposed to be interested in only their own gain. While it is true that companies are primarily interested in making a return for their shareholders (why else would the shareholders have invested in the business?), it is also true that companies can only achieve these profits by serving the needs of their customers. It is the customers who decide, through their choices to spend or not to spend money with the corporation, whether those profits are made. In any case, however, we might point out that an odious act does not transform into a good one simply on account of for whom it is done. If I steal your money this act is rightly viewed as wrong, regardless of whether I intend to keep the money for myself or whether I intend to give it to someone else who may, in my opinion, “need” it more than you do. Similarly, therefore, if the state confiscates your money through taxation and distributes it via the welfare state the fact that it goes to “the people” makes this act no more moral than if the bureaucrats kept it all themselves (which, of course, they often do – not only are the administrative costs of the welfare state frequently underestimated but most of the money disappears into the hands of the state’s favoured contractors and suppliers rather than directly into the bank accounts of the poor). Moreover, we don’t even have to go so far as to cite strictly moral or immoral acts to illustrate this point. Monopolies, for example, are viewed as being bad because they tend to reduce quality and raise costs over time; this fact does not change simply because it is the state that runs a monopoly over say, healthcare, rather than a private corporation.

Another likely response to our question is that the state is under the supposed “democratic control” of the people and that if the state uses these powers “illegitimately” or irresponsibly then they will be booted out at the ballot box. Apart from the fact that, again, an illicit act does not become moral simply on account of who controls those who are doing it, a citizen has the right of voting between a bare handful of carefully selected and screened candidates only once every four or five years. Moreover, a person cannot choose with any specificity which policies and manifestos to support. Rather, he has to throw what little weight he has behind a single candidate (or party) and all of that candidate’s stances on a wide spectrum of issues, from whether we should continue funding wars in the Middle East down to whether a person may light up a joint in his own home. And once elected the successful candidate can simply abandon whatever promises he made in return for your vote straight after. As if that wasn’t bad enough, what if your preferred candidate does not get elected? You still have to suffer the implementation of the odious policies of an alternative candidate whom you may utterly despise. With a private corporation, however, you can choose to vote or to not vote for them with your wallet every single minute of every single day. You don’t have to wait for a few years if you want to switch from Tesco to Sainsbury. Moreover these choices are very specific. If you change your grocery supplier you are not also changing your telephone provider. If you ditch Ryanair and start flying EasyJet you can still get your clothes from Debenhams. If a corporation takes your vote, i.e. your money, then breaks its promises it made before you handed it over it is called “breach of contract” and for this the company can be sued. And finally, your choice to shop at Sainsbury’s or Tesco is not dependent upon a majority of other people wishing to do so – both are able to trade regardless of whether they are supported by a majority of consumers.

What we can take from all of this is that if a private corporation possessed every single right and function of the state except the power to tax and demand your patronage, then you would have more control over it than you do over the state. The situation we have produced, therefore, is, on the one hand, a society of corporations over whom each individual has a high degree of control yet which are required to abide by all of the laws and at least a basic code of morality, and on the other hand a state which no one can control yet can, for the most part, do whatever it likes. It seems to me that if we are to suffer the illicit and illegitimate powers of the state at all they would be far safer in the hands of a private corporation rather than the state.

Of course our goal is that nobody should have the right to carry on these acts that we outlined in the first part of this essay – that they should be illegal regardless of who does them and in whose name. No one should have the power to tax, to confiscate the income and wealth of other people; no one should be able to print money; nobody should be able to arm themselves with all manner of horrific weaponry while forcibly disarming everyone else; and no one should be able to run a Ponzi scheme. When you take all of these characteristics of the state and ask yourself what life would be like if anyone else was allowed to do them, you rightly begin to shudder with fear. So why should we ennoble the state with the dubious privilege of being able to do them?

Hopefully what we have outlined here is a useful point with which a libertarian can turn a debate with a statist or state-biased lay person, and to cause that person to reconsider either his active or his tacit support for the state and its actions.

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Altruism, Freedom and Economic Progress

February 6, 2016

Duncan Whitmore Economics, Essays, Morality and Ethics Altruism, Benevolence, Charity, Economic Progress, Libertarianism, Poverty, Redistribution, Self Interest, Selflessness, Wealth, Welfare State Leave a comment

The virtue of altruism is held in immeasurably high esteem in our society today. Selfless benevolence at one’s own expense is regarded as the pinnacle of human endeavours, with societies and cultures often reserving their most coveted honours and elevations for people who have apparently undergone acts of selflessness and generosity. Contrary to mainstream thought (and contrary to the thought of some free market proponents), there is nothing in either libertarianism or free market economics that disputes this view. It is true that, strictly speaking libertarians qua libertarians neither promote nor condone any voluntary act; rather, they simply take the position that such acts should not be countered with violent repressions. Whether such acts are good in and of themselves is another matter. Further, free market economists will note that although voluntary exchanges create net wealth (including gift giving in which the donor never “loses” as such but, rather, gains a psychic profit that, to him, must be worth more than what he gave up), there is no part of their science in and of itself that compels them to promote or encourage giving any more than they are required to promote any other type of exchange (although economists may of course note also that increased wealth creation usually goes hand in hand with increased generosity). Nevertheless, as a private individual, it is possible for libertarians and free market economists to regard such specific, overt acts of kindness and generosity – especially those that cause the donor to incur at least the risk of a great material cost, such as wading into a strong river to save a drowning child – as worthy of praise and adulation and that the congratulation of such individuals is far from being out of place.

On the other hand, mainstream thought has extrapolated, erroneously, from these individual, voluntary acts the conclusion that economic progress, the vanquishing of poverty and the path towards a greater and better society are themselves dependent upon altruism and self-sacrifice to the extent that these virtues can cohere into a social system – a system, that is of course, managed by state fiat, such as the welfare state. This belief is dependent upon a further error which is that, in the free market order, the fundamental interests of each member of society are pitted against each other and that one person’s profit must automatically transform into another person’s loss. In other words, the profit and loss system results in benefits to the few (or, at most, some) at the expense of the many. From this incorrect assumption one naturally leads to the conclusions that the only way to benefit more or the many is if these profits (or the wealth that is possessed by the few) are turned over to the many. It is these conclusions with which libertarians and, in particular, free market economists disagree. If that was not bad enough, however, we shall also see that the implementation of systemic methods of wealth distribution is, in fact, completely antithetical to and destructive of altruism and generosity.

This error is similar in nature to another error encountered in mainstream economics – that of supposed shortages of “demand” on an economy-wide sale. In the particular situation of an individual firm or industry, a withdrawal of demand from the firm’s products will result in a slowdown of business for that firm. If the firm is to recover then it is obvious that a recovery of demand for its goods and services is necessary. However, from this entirely correct conclusion regarding a particular circumstance is extrapolated the utterly false conclusion that increases in demand must benefit the economy as a whole. Or, in other words, that where there is a general economic malaise the effective response is to encourage a general increase in demand for an alleged “glut” of supply. As we know from Say’s Law, however, demand and supply are opposite sides of the same coin – the demand for one product is formed by the supply of another. Therefore, one cannot increase general demand without also increasing general supply, i.e. the production of real products. Simply printing more money or lowering borrowing costs does nothing to increase demand; it simply raises the prices of what is already available and shifts the purchasing power over these existing resources from the last or later recipients of the new money to the first or earlier recipients. The real problem in an economic bust is a relative glut of some products, namely, capital goods that are further up the chain of production, and a relative shortage of other products, namely consumer goods and capital goods lower down the chain of production. So too is a similarly false conclusion drawn with regards to altruism and self-sacrifice – that what may be good in one, specific situation is good for society as a whole; and so good, moreover, that the state should systematically force us all towards altruism and self-sacrifice. Let us now explore the reasons why this is false.

First, with particular, individual acts of kindness or generosity it is possible for a bystander to appreciate and form judgments concerning the variables that are weighed in the consideration of whether someone has performed a virtuous deed; the initial helplessness or the “worthiness” of the recipient; the magnitude of relief that the voluntary act of kindness provides; and the magnitude of at least the material cost to the donor. One can therefore form a personal judgment, based on empathy, of the positions of the particular giving and receiving parties as to whether the act of altruism is a good thing. On an economy-wide scale in a society of tens (may be even hundreds) of millions of people, however, it is not possible to form such judgments with any degree of specificity, and much blunter tools such as “income” are needed in order to judge who should be donors and who should be recipients. But such blunt tools tell us nothing about why, for example, someone’s income is low, whose responsibility it is and who should bear the burden of doing something about it. Moreover, there is no reason to suppose that someone who has a “high” income necessarily has cash to spare and does not have other commitments for those funds which the government wishes to redistribute – commitments which, even to others, may be valued as worthy, such as investing in his children’s education.

Second, in the long run massive transfers of wealth from the class of “haves” to the class of “have nots” does not benefit the latter in the long run. One of the most serious misconceptions concerning the ownership of wealth is that one must own it in order to benefit from it and thus only divesting wealth from those that have it and giving it to those that do not have it can ameliorate the plight of the poor and needy. What benefits the latter, however, is not the turning over of wealth to their hands so that it can be consumed and lost forever. Rather, what really hauls the poor up from the depths of despair is the investment of wealth in capital goods which are then able to produce more and more products and services at increasingly lower prices so that the poor can afford to buy them. We can illustrate this by adapting a well-known proverb: give a man a fish and he will feed himself for a day; invest that fish in a business that will produce fishing tackle that the man can afford and he will feed himself for a lifetime. The man in need never owned that original fish nor the capital goods that were produced from consuming it, yet it is clear that his life benefitted from its investment in a productive enterprise to a far greater extent than if he had ever gotten his hands on it directly.

Third, the very motivation towards altruism is most often dependent upon a close family or friendly relationship between donor and recipient where the welfare of the latter is of great importance to the former. Such a motivation is destroyed when your money disappears into a bureaucrat-run black hole. The result is that, as people lose their ability to spend their money in ways that they want, the motivation to producing wealth in the first place is destroyed. There is therefore less wealth to distribute anyway. Critics may, of course, argue that such a result is owing to the alleged “selfish” and self-centred nature of humans and that surely we – i.e. the state – has a duty to attempt to overcome this? There are at least two responses to this. First, it is part of the natural condition of humans that the primary ends and values that they hold are concerned with their immediate environment – that is, the welfare of themselves, their friends and their family; in other words, people whom they know, care about and have the ability to form empathetic judgments about. It is the stimuli from these sources that most potently determine our desires and choices. Everything else that goes on in the world is, for the most part, out of sight and out of mind, or at least very remote and can be brought to us only electronically through the media. But one does not even need to go that far, as most people are unlikely to even be able to appreciate the conditions, needs and desires of people in another neighbourhood in the same town – or even in the same street. People do, of course, devote themselves to causes that aim to help people far away about whom they may know very little; but these are specific causes towards which one may have a specific motivation. Wealth redistribution, however, aims at ameliorating hundreds, if not thousands of afflictions across many millions of faceless people. It is simply not possible for any human to form empathetic appreciations of all of those individual circumstances and, thus, neither will they be able to appreciate any kind of amelioration of these afflictions if they happen hundreds of miles away (this is before we get into any discussion of whether wealth distribution does, in fact, accomplish such ameliorations). Therefore, it is not possible for the typical human to motivate himself towards striding towards providing for a giant pot that aims to solve these problems, or at least not to the same degree he motivates himself towards providing for ends of his choosing. Moreover, we may ask whether a person with the ruddiest bleeding heart would, if it came to a choice, prefer to work towards contributing to the tax pot ahead of, say, caring for his sick and dying mother. Second, the very fact that wealth redistribution is forced (by the threat of imprisonment) rather than undertaken voluntarily does nothing to promote altruism in any way at all. Indeed, we might say that genuine altruism and selfless behaviour worthy of praise and recognition relies upon the fact that someone could have chosen, freely, to have done something “worthy” with his time and money. When I am forced to hand over my money, however, I have in no way “behaved” altruistically; in fact I haven’t really “behaved” at all – rather the money was simply taken from me. Further, rather encouraging any feelings of generosity the forced appropriation of my property it is likely to make me bitter and resentful and, moreover, to curb any desire to be generous with the remainder of the funds that I have left. To make matters worse, the welfare state does not leave the recipients of welfare spending as kindly and grateful beneficiaries who feel they were lucky to have avoided misfortune. Rather, the welfare state begets a sense of “entitlement” and dissolution of personal responsibility – that it is the state’s responsibility to provide for their needs and that they have a right to the state’s assistance. Ironically, therefore, the welfare state itself increases antagonism and selfishness rather than promoting their antitheses.

The attitude of selfless altruism can also be seen also in the elevation of those who devote themselves to so-called “public service” above those who compete in the allegedly greedy and grubby business of the private marketplace. Although positive views of politicians have soured considerably in the past generation, it is still widely believed that private industry is where people go to make lots of money to keep for themselves, while those who seek public office shun such squalid and base motivations and, with their visions of a “greater” society, can almost single-handedly make everyone better off without a thought of any benefit to themselves. Indeed, to the present author, it beggars belief that people are gullibly hypnotised by the illusion that all of their hopes and dreams are dependent upon a tiny minority, or even (when you witness the almost messianic reverence devoted to presidential candidates) a single person out of a society of millions gaining a job ahead of somebody else. It is in no doubt true, of course, that many people seek to enter politics with the desire, albeit the naïve one, to help people and to improve society. It may also be true that they could have amassed greater private fortunes by seeking employment in the private sector. Nevertheless, all political accomplishments (other than the few and far between measures that seek to roll back the interference of the state) necessarily produce a negative sum result – negative because what is given by government to one set of people must be taken by government from another, minus a cut to pay the salaries of the politicians and bureaucrats. This is before we consider the destruction of the incentives to create wealth that we outlined above. Even if, therefore, we stretched credulity and viewed politicians as truly angelic and selfless they would still not accomplish anything that would produce a net gain to society.

It is not the aim of our discussion here to suggest that a society distinguished by capitalism and free enterprise would suddenly create some kind of utopia where rank selfishness is without any negative consequences. Rather, it is simply to point out that, in the long run, the vanquishing of poverty is achieved by the investment of more capital goods in order to make more products affordable to people with the existing money that they earn themselves; not through giving them more money that is earned by and forcibly confiscated from somebody else. In such a society the high incidence of people needing the help of others would be prevented, not just cured. Nevertheless we might also note that it is a society that is highly prosperous and without a systematic welfare state that encourages rather than obliterates charitable endeavours. Overwhelmingly this is because people simply have more to give – it is no great mystery as to why most of the world’s great charitable foundations and societies originated in the nineteenth century, the era of the relatively most capitalistic progress and the least intervention by a formal welfare state. Ironically, it is the welfare state that has squeezed out private charity and genuine altruism from having any mainstream role in society. Additionally, however, in the absence of a compulsory so-called “social safety net” people rely on maintaining good relationships based on trust, reliability and selflessness with family and friends precisely so that they may be there for each other to cushion the consequences of the occasional unforeseen circumstance. Far from provoking any atomistic and individualistic existence freedom promotes and encourages a strong community and family spirit. If the virtue of altruism is to be nurtured then there cannot be a better place for it than there.

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Voluntary Slavery

January 9, 2016

Duncan Whitmore Essays, Morality and Ethics Contract, Inalienability, Libertarianism, Ownership, Property, Rights, Self-ownership, Slavery, Specific Performance, Voluntary Slavery, Will Leave a comment

The topic of voluntary slavery – that is, the question of whether an individual who is presently a self-owner may voluntarily subject himself to slavery irrevocably – is understandably controversial yet, properly understood, not an overwhelmingly difficult one to comprehend. This essay will attempt to clarify some of the problems and issues surrounding voluntary slavery, together with a discussion of elements that have not been thus far examined in much detail. Although we will not reach anything other than a modest conclusion here, we will attempt to put ourselves in a better position of understanding the main problems.

The first question that must be resolved is precisely what is meant by slavery. Here we must recall the fundamentals of wider political theory and how libertarianism answers the questions that it raises. The ultimate reason why ethics exist is to resolve conflicts over physical matter. Different people desire to devote physical objects to different ends. Hence, property rights are vested in individuals over physical objects in order to determine precisely who, on the one hand, may use that object to fulfil his ends and who, on the other hand, must yield and seek other physical objects for the fulfilment of his ends. The issue of slavery therefore concerns the property rights over the body of an individual person and whether someone may, from a purely legal point of view, voluntarily transfer ownership of the physical matter that constitutes their bodies to another person. In other words, our question here is whether, in accordance with libertarian theory, one’s own body can permissibly constitute physical matter the ownership of which can be transferred to another individual. Or, to put it a further way, whether someone else’s body could, through voluntary arrangement, come to constitute your outright property and be treated however you like. Importantly, though, ownership rights are not the only type of rights that we might consider. A right may simply constitute the legal ability to perform a specific physical act in relation to a specific piece of property, not to dispose of that property in any way the rights holder may deem fit. Easements and leases, for example, confer upon their holder the right to enforce merely a single action, such as the right to walk across a field between the hours of 9am and 5pm. Any other physical actions towards the property in question are not permitted. Therefore these more diluted rights, short of full ownership, must also be considered in relation to the matter that constitutes a living human’s body. This is important because in certain situations people do contract to grant other people the right to come into physical contact with them in ways that are far less than full ownership and this is not believed to be controversial – most notably professional contact sportsmen who have contracted to play on a certain number of occasions. The question of whether preventing the transfer of the full ownership of one’s body i.e. voluntary slavery – would, in turn, prevent the granting of these “lesser” rights over the same is not something that has received sufficient analysis.

It is important also to distinguish the granting of rights from the granting of mere consent. People come into voluntary physical contact with each other’s bodies in a variety of scenarios – sexual intercourse probably being the most frequent. However, such contact is not permitted on the basis of a granting of a right to the other individual. Your partner, for instance, does not have the “right” to have sex with you. Rather the fact of consent in these situations demonstrates that there is an absence of conflict regarding the physical matter in question (i.e. your body); that both parties are in agreement as to how that matter should be directed at that particular point in time. Thus, if a person is accused of raping a woman, his defence will not attempt to argue that he had a “right” to have sex with the woman but, rather, that the fact of consent established a situation of no conflict. If that consent is withdrawn, however, a conflict exists and the physical contact becomes invasive and unlawful.

Before beginning our examination of voluntary slavery we must expunge from our thought all of the connotations and consequences associated with involuntary slavery with which we are acquainted from our historical experience of the practice. Forced subservience, second class citizenry, racism, slave labour camps and extermination in World War II, appalling living conditions and brutal, inhumane punishments are all issues that fall into this camp, some of which are believed to have consequences today. For example, the lower socio-economic position held by black Americans compared to whites is believed, rightly or wrongly, to be a legacy of black slavery. Libertarianism is emphatically and uncompromisingly opposed to any arrangement of involuntary slavery where an individual effectively imprisons another person aggressively and any dealing of other human beings as property in this regard is absolutely and unrelentingly opposed by libertarianism. A discussion of purely voluntary slavery – which would be a peaceful and mutually agreeable arrangement clearly devoid of all of the effects we just listed – cannot commence with the die loaded against its possibility as a result of us confusing it with the wholly different and abominable practice of involuntary slavery. Indeed, it may be ideal for this purpose to denote some term other than “slavery” for voluntary arrangements, reserving “slavery” purely for forced and aggressive relations. However, as a neologism is not yet forthcoming we will continue to talk of “voluntary slavery”. Moreover, and for the avoidance of all possible doubt, nothing concerning whether or not a person may voluntarily subject himself to slavery has any bearing on his prior right to self-ownership, which is firmly and uncompromisingly established in libertarian theory.

Furthermore, we must also suspend from our thought anything to do with the cultural acceptability and the tastefulness of (or the motivations that people may have towards entering) an arrangement of voluntary slavery. In spite of the protestations of the handful of dyed-in-the-wool Marxists that the majority of labourers languish in a state of so-called “wage slavery”, it is clear that no one today properly views other human beings as in any way, shape, or form as “belonging” to anyone else as either a matter of culture or as a matter of strict legality. We do not regard employees as belonging to their employers, nor do we think of a wife as being owned by her husband; rather, in spite of conversational colloquialisms such as “my employees” or “my wife”, these are viewed as mutually agreeable partnerships between humans with equal individuality and dignity. The only exception is children who, on account of their immaturity, are said to “belong” to their parents but this relationship is viewed as one of care and nurturing founded upon love and trust and is a far cry from any sense of ownership in the manner one would own an inanimate object. Any relationship between owner and owned founded on voluntary principles would therefore appear to be initiated by some kind of unusual, fringe motivation, perhaps sexual or sadomasochistic, or simply unconscionably “exploitative” such as in the case where a person demands the slavery of another in return for something the latter desperately needs. These issues are not relevant to our main concern here which is the strict legality of an arrangement of voluntary slavery – that is, regardless of the motivations towards such an arrangement, if a person agrees voluntarily can he become a slave? Libertarians uphold the legality of hundreds of other voluntary practices, taking effect through either mutual consent or contract, which may not happen to have the blessing of mainstream, cultural approval. Drug taking, adultery, prostitution, parsimony, selfishness, or even gambling are all, at least in certain settings, socially unacceptable. Libertarians would uphold the legality of an individual choosing to do these things but he may also, privately, believe that such choices would be unwise or even bad choices and would equally uphold the legal right of other people to disassociate from these practices. Similarly, therefore, with regards to voluntary slavery, the question of whether two people should be legally permitted to enter such a relationship is separate from the question of whether it would be a good idea, founded upon good motivations, for them to do so and we must hold firm this distinction in our mind.

At this juncture of our analysis, we will proceed to dispose of two arguments that are frequently asserted in the debate concerning voluntary slavery – one in favour of arrangements of voluntary slavery and one opposed to them. Indeed, these two arguments practically dominate the issue yet they are, in the view of the present author, not really the issues that cause the topic to be problematic. The argument in favour is the straightforward one that if you own your body then you should be able to do what you like with it. Therefore, if you cannot sell that ownership to another person in order to become a voluntary slave then you do not really own your body at all. Thus, so this argument goes, outlawing voluntary slavery is an attack on the concept of ownership. Stated in this naïve, literal sense, the argument misunderstands this crucial concept. Ownership of an object simply means that you have the right to exclude other people from their physical presence over that object in order for you to be able to fulfil certain ends you may desire from that object to the detriment of ends that other people may desire from it. If I own a cup it means that other people may not invade the physical integrity of that cup without my permission whereas I, on the other hand, may do so without anyone’s permission. Thus, ownership is a sociological concept and concerns the sphere of permissible activity towards physical objects vis-à-vis other people. Once exclusion of all other persons has been achieved it does not mean that I can “do whatever I want” with the cup. I cannot turn it into a car or make it vanish to the other side of the world (although, of course, no one has the right to physically restrain me from attempting to accomplish these things with my own property and we can surmise that, one day, the technology may exist to do so). Nor, to a greater degree of impossibility, can I make it a cup and a plate at the same time, or paint it red all over and blue all over simultaneously. The argument that dismissing the possibility of voluntary slavery dilutes the concept of ownership is clearly rendered false by these examples. The fact that I cannot do any of these things with the cup does not in any way afflict my right to exclude all other people from the physical integrity of that cup. If subjecting oneself to voluntary slavery also founders upon a similar impossibility in nature (which, as we shall see, is the chief argument of those who oppose voluntary slavery) then this impossibility in no way diminishes the concept of ownership. On the other hand, if there is no impossibility in transferring ownership over your body to another person, this fact is not predicated upon the concept of ownership necessitating one’s ability to do whatever one likes with one’s property. Rather, it simply means that the there is no barrier to making the right to physically exclude all others from the physical borders of your body transferrable to another individual. The correct way of approaching the issue is to ask whether any attempt to forcibly prevent any arrangement of voluntary slavery would itself be an unjustified interference with your right to exclude all others from your physical property. Only in this sense can the argument that one should be able to do whatever one wants with that which one owns carry any merit.

The next argument that we will consider, which opposes voluntary slavery, is the doctrine of inalienability. In order for a physical object to be the subject matter of a contract, so this argument goes, it must be alienable, i.e. separate and divisible from that person, and not constitute an integral part of that person himself. The primary fixation in the mind of these authors is the nexus between the body and the mind, or, more accurately, one’s will – that to bind the body by transferring ownership over it is to also bind one’s will, something which supposedly cannot be done. It might be useful, in understanding this argument, to quote its main proponent, Murray N Rothbard:

The only valid transfer of title of ownership in the free society is the case where the property is, in fact and in the nature of man, alienable by man. All physical property owned by a person is alienable, i.e., in natural fact it can be given or transferred to the ownership and control of another party. I can give away or sell to another person my shoes, my house, my car, my money, etc. But there are certain vital things which, in natural fact and in the nature of man, are inalienable, i.e., they cannot in fact be alienated, even voluntarily. Specifically, a person cannot alienate his will, more particularly his control over his own mind and body. Each man has control over his own mind and body. Each man has control over his own will and person, and he is, if you wish, “stuck” with that inherent and inalienable ownership. Since his will and control over his own person are inalienable, then so also are his rights to control that person and will. That is the ground for the famous position of the Declaration of Independence that man’s natural rights are inalienable; that is, they cannot be surrendered, even if the person wishes to do so. Or, as Williamson Evers points out,

“the philosophical defenses of human rights are founded upon the natural fact that each human is the proprietor of his own will. To take rights like those of property and contractual freedom that are based on a foundation of the absolute self-ownership of the will and then to use those derived rights to destroy their own foundation is philosophically invalid.”

Hence, the unenforceability, in libertarian theory, of voluntary slave contracts. Suppose that Smith makes the following agreement with the Jones Corporation: Smith, for the rest of his life, will obey all orders, under whatever conditions, that the Jones Corporation wishes to lay down. Now, in libertarian theory there is nothing to prevent Smith from making this agreement, and from serving the Jones Corporation and from obeying the latter’s orders indefinitely. The problem comes when, at some later date, Smith changes his mind and decides to leave. Shall he be held to his former voluntary promise? Our contention – and one that is fortunately upheld under present law – is that Smith’s promise was not a valid (ie., not an enforceable) contract. There is no transfer of title in Smith’s agreement, because Smith’s control over his own body and will are inalienable. Since that control cannot be alienated, the agreement was not a valid contract, and therefore should not be enforceable. Smith’s agreement was a mere promise, which it might be held he is morally obligated to keep, but which should not be legally obligatory.¹

Walter Block has provided an extensive rebuttal against the doctrine of inalienability as understood by Rothbard and several other scholars which we need not repeat verbatim here². Rather we will shall choose a few salient points and add some observations of our own.

In the first place, we must dispose of the argument that property rights have anything to do, as both Rothbard and Evers argue, with the self-ownership of the will. The question of ownership arises as a result of conflicts over physical matter, not intangible concepts such as the will. Indeed, when we begin to talk of the idea that to transfer ownership of a person’s body is synonymous with repudiating any ability to change one’s mind and thus unconscionably binding one’s “will” we see that we run into all sorts of problems, namely that it proves far too much. For all contracts, which transfer title of property from one person to another, do, in fact, bind a person’s will and restrict the choices he can make in the future. If I transfer a car to another person my will is then irrevocably bound from enjoying the services of that car ever again. I have voluntarily excluded from myself the choice to use that car to serve my ends as opposed to someone else’s. I cannot later change my mind and take the car back again. To apply Rothbard’s argument consistently would require one to invalidate all transfers of title to property. Indeed, the fact of scarcity itself results in a world where one’s will is repeatedly and irrevocably bound by choices that have to be made every minute of every day. We make these choices because we believe that the resulting situation is an improvement for us compared to that which we have discarded. Once I have eaten the proverbial cake my will is bound by that fact and my subsequent desire to have the cake instead is fruitless. This is no less true when those choices involve interpersonal exchange rather than autistic exchange. If I make a decision to trade away some of my possessions my will is eternally bound by a restriction from ever using those possessions again. But the reason why I choose to do so is because I gain something from the exchange that is more valuable – that my will has been restricted in one way yet released in another, more satisfying way.

The transfer of ownership of one’s body may, of course, engender a restriction over one’s will greater than that of transferring ownership of an external object such as a cup. Indeed, the core of Rothbard’s problem seems to be that transferring one’s body absolutely, irrevocably and in all cases subordinates one’s will to someone else’s. However, such a restriction must, in the mind of the individual, be worth the resulting gain. Rothbard the economist was emphatic that valuations are subjective so it is not for him to determine whether a person should value ownership of his body higher than some other end. Moreover, it is not always clear that contracts which transfer rights over one’s body would necessarily bind one’s will in a manner that is more restrictive than contracts that transfer external objects. As we noted earlier, not all rights are outright ownership rights. We can imagine types of transfers of rights over one’s body short of full ownership similar to easements and leases – such as the right to keep a person in a specific location. The only right conferred on the other party is to prevent this person from leaving this location, whereas the latter person still retains the ability to do whatever his “will” desires within that location. A could agree with B to remain on a twenty acre estate with a ten bedroom mansion, a personal chef, a swimming pool, a tennis courts, fields, woods and so on. This contract would be invalid in Rothbard’s view and the individual should be able to change his mind and leave. Yet a contract to transfer one’s entire annual salary to another person for the rest of one’s life would, according to Rothbard, be valid and enforceable. Yet it is clear that the latter binds one’s will in far more ways than the former. Moreover, what are we to make of transfers of full ownership of parts of the body as opposed to the whole? Surely I could sell my leg or my arm or, more realistically, a kidney for organ transplant without binding my “will”? Precisely how much of my body do I have to transfer ownership of to another person before my “will” becomes bound? Once detached, of course, it is possible to consider a particular body part “alienated” and thus saleable; but it is difficult to understand how, under the inalienability doctrine, precisely how one could conclude contracts regarding a particular body part prior to such detachment. So if Rothbard’s argument can be extended to the conclusion that a person cannot transfer any part of his body whatsoever to another person it would mean that surgeons, in spite of the full contractual consent of the patient, would be prevented, by law, from removing a malignant tumour in order to save that patient’s life.

In a rare moment of confusion for this author, Rothbard mixes the factual with the normative in order to lend his argument plausibility (Randy Barnett makes a similar argument³). In the quotation above Rothbard says “Each man has control over his own mind and body. Each man has control over his own will and person, and he is, if you wish, ‘stuck’ with that inherent and inalienable ownership. Since his will and control over his own person are inalienable, then so also are his rights to control that person and will.” In other words because, in nature, the de facto control of a person’s body rests with his mind then so too should the normative power of disposal over that body, i.e. ownership. Now it is absolutely true that in nature a man’s mind and will is always wedded to his own body and this connection would survive any attempted sale of one’s own body to another individual. No legal document can ever confer on me the power, with my will alone, to make another person blink, cough, or move his arm. That individual would still retain the same de facto control over his mind and body just as he was before he sold himself into slavery, and he would still retain his thoughts, feelings, and desires. But these facts have no bearing on the question of ownership, which is who may legitimately determine the ultimate disposal of the matter that constitutes a person’s body. The issue we are interested in is, regardless of whatever the slave’s will desires and the de facto control over his body, can somebody else, through a voluntary arrangement, legitimately intervene with the physical integrity of that body? This de facto control of the voluntary slave to control his own body may have a bearing on how much use and enjoyment an owner could get out of his voluntary slave and, indeed, whether the prospect of ownership is attractive in the first place. A voluntary slave may choose to misbehave, disobey his owner or just be generally lazy and workshy. Other voluntary slaves, though, may be perfectly obedient and accomplish everything their new owner wants. However, this is true of animals too which also retain a de facto control over their muscle movements. Some animals are obedient and need little encouragement to make them do what an owner wants them to do; others are stubborn and need cajoling or physically disciplining. Yet this fact has no bearing on the fact that humans own animals.

In any case, however, it is not immediately clear how any person is “stuck” with his de facto control over his own body. He could, as Block points out, commit suicide and thus permanently and irrevocably sever his will from the physical matter that constitutes his body. Clearly a person does have an option in nature to discontinue his control over his body.

Having disposed of these two powerful arguments – one for and one against voluntary slavery – which have, as was suggested earlier, dominated the topic of voluntary slavery, let us proceed now to discuss what may be a more problematic issue when it comes to voluntary slavery. This issue it that of enforcement of voluntary slavery arrangements – that is, if a voluntary slave runs away, what could or should be done about it? Before we address this, however, let us first discuss, as a brief tangent, how proliferate voluntary slave contracts are likely to be in a libertarian society – are arrangements of voluntary slavery likely to be fringe and marginal or would their legal permission open a Pandora’s Box that would suddenly lead to all manner of “exploitation” of the weak by the strong? The most likely scenario where this would be possible is, clearly, with labour contracts, i.e. contracts of employment. If we allowed voluntary slavery, so a retort would go, wouldn’t that lead to employers demanding arrangements of slavery from their employees? “Hungry? Be my slave!” “Need a home? Be my slave!” “Need money for your children? Be my slave!” And so on. However, such an argument could only be premised upon the Marxist view that the fate of the worker is to sink ever lower and lower and is utterly dependent upon what the capitalists offer him – a view that we know to be false from nearly 200 years of economic progress that the standard of living of even the lowest earning worker has risen significantly. Employers are compelled, through competitive bidding, to offer a real wage rate that is markedly higher than one that provides subsistence. We can surmise that people do not enter contracts of voluntary slavery (or the closely related arrangement of indentured servitude) today not because of legality but because, for the employee, even the lowest free wage is able to offer a position that is far more attractive than an arrangement of voluntary slavery. Indeed, one of the overwhelming reasons why compulsory slavery was gradually abolished was because for the employer or would-be slave owner it was less expensive and more productive to hire free labour than to trade in slaves – and that it is better to risk having an employee quit and to hire another rather than try to “own” the original employee. It is therefore likely that slavery, voluntary or otherwise, would only return in any significant measure if society itself was to revert to primitive economic conditions of low capital accumulation and low productivity per person.

Before leaving this topic we might as well consider the relationship between the trading of one’s body, i.e. voluntary slavery, and contracts of employment. Rothbard offers the following explanation:

A person’s labor service is alienable, but his will is not. It is most fortunate, moreover, for mankind that this is so; for this alienability means (1) that a teacher or physician or whatever can sell his labor services for money; and (2) that workers can sell their labor services in transforming goods to capitalists for money. If this could not be done, the structure of capital required for civilization could not be developed, and no one’s vital labor services could be purchased by his fellow men. The distinction between a man’s alienable labor service and his inalienable will may be further explained: a man can alienate his labor service, but he cannot sell the capitalized future value of that service. In short, he cannot, in nature, sell himself into slavery and have this sale enforced – for this would mean that his future will over his own person was being surrendered in advance. In short, a man can naturally expend his labor currently for someone else’s benefit, but he cannot transfer himself, even if he wished, into another man’s permanent capital good. For he cannot rid himself of his own will, which may change in future years and repudiate the current arrangement.⁴

This explanation is erroneous. The reason why contracts of employment are valid is nothing to do with the “alienability” of the labour service. A service is an intangible thing and cannot be disconnected or alienated from anything as it is not already in the form of any kind of connection or embodiment. Rather, the validity of the contract of employment rests on the fact that the individual employed has agreed to a conditional receipt of money, the condition being that he carry out certain tasks as stipulated by his employer. If those tasks are not completed then title to the money does not pass from the employer to the employee. If they are completed, on the other hand, then title to the money does pass and the employee can enforce this title as a result of having fulfilled the condition. This explanation is in accordance with (and, indeed, is identical to) the title-transfer theory of contract that Rothbard espouses also in The Ethics of Liberty. Contracts of voluntary slavery, however concern the transfer of the title to the person’s physical body. This too may also be made for money. A may agree with B to transfer a sum of money to B’s family if B transfers title of his (B’s) body to A. Moreover, such a transfer may result in the value of B’s ability as a labourer being capitalised, so that B could, if he wished, sell A for that capital value to another person. But a contract of employment and a contract of voluntary slavery, while they have obvious similarities, concern the transfer of different physical entities and are not distinguished by any “alienable” labour service on the one hand nor an “inalienable” will on the other.

Let us therefore proceed now to discuss the issue of the enforcement of voluntary slave contracts or agreements and why it is this topic which is actually the difficult one when comprehending voluntary slavery arrangements. Dealing first of all with the enactment of transfers of ownership over the physical matter that constitutes one’s body, it is not necessary for the voluntary slave to be in receipt of a sum of money from the potential owner – i.e. he does not literally need to sell himself. He could quite easily make a gift of himself to someone else and this is, as we have examined elsewhere, perfectly in accordance with libertarian contract law. However, we can surmise that in many, if not most, cases a sum of money will be transferred in order for the owner to purchase the voluntary slave from himself. One objection concerning this is scenario is the fact that if the sum of money is transferred to the voluntary slave and the contract is therefore concluded, because that sum of money belongs to the voluntary slave and the voluntary slave belongs to the owner then surely the money too belongs to the owner again. Can’t the latter simply take back what he gave? This is certainly possible but it would, as Block points out, simply point to the stupidity of the voluntary slave and not necessarily to any impossibility of concluding the contract in the first place. However, the more likely scenario is that the contract will require the funds to be paid to a third party – most likely the family of the voluntary slave. In this instance the funds would be irretrievable by the owner once the contract is concluded. But even if it the funds were paid to the voluntary slave himself the contract could easily stipulate that the voluntary slave retains title over the funds and that the owner must grant him time to enjoy spending them. Contracts for voluntary slavery-type arrangements need not be an all or nothing thing and the voluntary slave is quite entitled to reserve specific rights to himself that would preclude the transfer of full, outright ownership over his body to another person. Whatever the specific content of a voluntary slavery contract, however, we can surmise with little doubt that courts will require a standard of proof of transfer greater than that required for transfers of ownership of dead objects – such as written documents and witnesses etc. – rather than simple oral declarations and exchanges. Courts are likely to want to be as sure as possible of the intentions of the parties before enforcing such an arrangement.

Second, assuming that a voluntary slavery contract is valid, the problem surrounding any “enforcement” of this contract rests on the fact that the whole concept of contractual rights requires there to be two continually recognised legal parties to the contract. However, when the voluntary slave transfers outright and irrevocable title over his body (and with it all rights and possessions that he owns) to another person, he ceases to be a legal person in any sense of the concept at all. The voluntary slave is now akin to being simply a piece of property akin to an object like a plank of wood. Rights, however, are not enforced against pieces of property but against other legal persons. What the owner of the voluntary slave now possesses is the right to exclude all other legal persons from the body of the slave that now constitutes his property and to seek legal sanction where third parties interfere with this property. In other words, his right is enforceable against other people and not against the voluntary slave who is now not a legal person. Thus, the right of ownership which the owner receives is not, in fact, any kind of right enforceable against the voluntary slave at all.

If, therefore, the voluntary slave runs away from the owner what would be the response of the law? The answer is simply nothing at all. The owner has no legal right of enforcement against the slave at all for the slave is not a legal person and legal enforcement exists only between legal persons. As the voluntary slave is not a legal person and is simply a piece of property he can commit no crime nor any breach of contract by running away. His running away is, rather, simply an extra-legal event akin to losing one’s car keys or having a pet run away. Such a situation may be very unfortunate for you but you would not, in these circumstances, go to court to enforce judgment against the runaway keys or the absconding pet in order for them to be returned to you. Rather you simply have to try and find them yourself. The situation is no business of any court unless and until there is any interference in your property by a third party who is a legal person and it is against this person against whom your title to the property concerned is enforceable.

Does this fact present any obstacle for voluntary slave contracts? Unless one accepts the doctrine of inalienability then clearly it does not. The situation is no different from that where a person is deceased. If you are, say, a family member who comes to own the body of a deceased relative your right over that body is not enforceable against the deceased individual; the right you possess is to exclude anyone else from that body. The only difference is that, with voluntary slavery, a person has extinguished his legal personage while remaining alive after.

It is submitted, however, that the far more likely scenario with voluntary slavery contracts is that the voluntary slave will continue to be recognised as a legal person with a specific legal identity and, most likely, will reserve specific rights should the contract be broken. This is because, in the event of an absconding by the voluntary slave the owner would retain the advantage of being able to resort to legal sanction and, moreover, in the event that transfer of ownership of his body is conditional the voluntary slave can break the contract when the owner fails to fulfil that condition. Let us therefore proceed to examine the enforcement of voluntary slavery contracts as any other contract would be enforced between continuingly recognised legal persons.

Practically all discussions of voluntary slavery make at least the tacit assumption that should a voluntary slave decide to escape from his now owner then the appropriate remedy should be that the voluntary slave is forcibly returned to the owner – so in the lexicon of contract law, the appropriate remedy is specific performance. This is undoubtedly a hangover from considerations of what used to occur with involuntary slavery. The slaves did not wish to be there in the first place; if they ran away their forced return did not alter the situation – they were still unwilling workers and we can surmise that whatever the owner was getting out of them after their return would have been the equivalent of what he was getting out of them before they escaped. However, our topic here is voluntary slave contracts and we can surmise that the voluntary nature of the contract itself does have a bearing upon the benefits of the contract to the voluntary slave owner. We see that in contract law generally, which concerns only voluntary relations, specific performance is often considered to be the least viable remedy, particularly in contracts that involve a personal working relationship such as those between employer and employee or a contract to provide services. This is precisely because the benefits to be gained from services performed under a contract depend, in a large measure, upon the relationship between the contracting parties and their continued willingness to serve each other. To compel specific performance in instances where this relationship has soured or where this willingness has otherwise been lost usually makes a bad situation worse. But even where this is not the case and the contract concerns delivery of physical property rather than a service specific performance is not always available. If the defendant is unable to deliver a specific piece of property it may be because it has been lost or destroyed. But it also may simply be that an alternative form of recovery is easier (i.e. cheaper) than trying to extract the particular piece of property that was the subject matter of the contract. At all times the plaintiff will normally seek, and the court will be prepared to enforce, the option that most ably restores to the plaintiff that which he owns for the lowest possible cost. Very often this will amount to the payment to the plaintiff of a sum of money equivalent in value to the property that cannot be rendered (and in the case of services to permit the plaintiff to seek those services elsewhere from a more willing party). In other words, just because you have contracted to receive something does not mean that the court will grant you receipt of that specific good or service and, moreover, nor are you actually likely to be interested in receiving it if the attempt to do is onerous. We can surmise in the vast majority of cases that the benefit to be gained by a voluntary slave owner from specific performance of a voluntary slave contract where the slave is no longer willing is likely to be greatly diminished compared to the situation where the slave remains willing.

So what is likely to happen, then, in cases where a voluntary slave runs away from his owner and wishes to break the contract? Let us recall that what the slave has done is to abscond with the owner’s property, which in this case is the physical matter that constitutes his own body. He has, in effect, stolen from the owner although we may like to note that outright theft may not appear in all circumstances and, like contracting parties, negotiations to dissolve the contract peacefully may be more frequent. The precise remedy available to the plaintiff may depend upon the precise nature of the contract. The contract itself may, of course, specify remedial title transfers in the event of a breach. Assuming it does not, however, if the contract concerned required the owner to transfer a sum of money in exchange for receiving title to the voluntary slave’s body, the most likely remedy is to compel the runaway slave to pay that sum back to the owner, restoring the latter to his original, pre-contractual position. Where, however, there was no initial payment of money then payment of some other equivalent to the capitalised value of the service that the voluntary slave would have rendered to the owner may be ordered by the court. This may, of course, result in de facto continuing slavery if the voluntary slave is required to turn over the best part of his annual salary while working as a free individual in another occupation. But we must recall here the equivalent situation where gifts of ordinary property are made by one person to another. If A makes a gift to B, A cannot then change his mind and demand the gift back. If he takes it he is required to either return it or pay B a sum of money equivalent to its value. The decision to make the gift, contra Rothbard, binds for all of time A’s will vis-à-vis the title of that property. A does not have a right to change his mind and repudiate his decision without facing consequences. Likewise, therefore, where the property concerned is A’s own body so too will there be consequences if, having gifted that property to B, A attempts to take it back for himself. This may indicate that making a gift of one’s own body is, perhaps, gravely foolish or, at best, necessitates a thorough degree of consideration. But in terms of strict legality there is no reason to suspend the consequences that flow from A repudiating his own, freely made decision – a repudiation that would involve simply shifting a loss from himself to B.

A further element of enforcement of voluntary slave contracts is, of course, whether the voluntary slave could enforce the contract in the event that it is the owner who is the breaching party. Let us say, for example, that A agrees with B that B will pay A’s family a sum of money each month in return for A transferring ownership over his body to B. If B ceases to make these payments then A can either enforce the contract or seek to have it rescinded.

Conclusion

What we can see from all of this, therefore, is that while in terms of strict legality there appears to be no bar in libertarianism towards entering arrangements of voluntary slavery, any institution of voluntary slavery is likely to be markedly different from the institution of involuntary slavery and is fraught with many more issues and complications. Hopefully this essay has outlined and explored some of the main topics for further consideration in voluntary slavery, while revealing something of its nature and the sorts of arrangements that may be entered into (if at all) in a free society.

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¹Murray N Rothbard, The Ethics of Liberty, 134-6 (footnotes omitted).

²Walter Block, Toward a Libertarian Theory of Inalienability: A Critique of Rothbard, Barnett, Smith, Kinsella, Gordon and Epstein, JLS Volume 17, no.2, 29-85.

³Randy E Barnett, Contract Remedies and Inalienable Rights, Social Philosophy & Policy 4, no. 1, pp. 188-90.

⁴Rothbard, pp. 40-41.

Small States – the Key to Liberty?

November 22, 2015

Duncan Whitmore Essays, Method and Strategy Aggression, Anarchism, Free Cities, Imperialism, Libertarianism, Liberty, Militarism, Minarchism, Secession, Socialisation, Socialism, States, Statism, Tax Competition, Tax Havens, The State, Welfare State Leave a comment

Although libertarians share a passion for personal liberty, free enterprise and the primacy of the individual over the collective, they can differ markedly over the precise role and scope of the state. The main division is between so-called minarchists on the one hand, who believe that there is a limited, justifiable role for the state in defining and preserving property rights, providing security and dispensing justice, and between so-called anarchists on the other who believe that the state, however minimal the services it provides, is always an unjustified invasion of individual liberty and that all defence, security and adjudicative services should be provided by the free market just like any other end.

This division is far from being a futile theoretical exercise and is, indeed, important in determining and clarifying the nature of libertarianism. The present author, for example, self-identifies as a Rothbardian anarchist who sees no justification for the state whatsoever and that anything else is antithetical to individual freedom. However, what we shall argue here is that there is another distinction that is likely to be much more important when it comes to the actual achievement of individual liberty in our world today. This distinction is not between how big or how powerful a state is within a given territory, but, rather, the size of that territory in the first place. That actually, a world of liberty will be achieved much more effectively if we concentrate on breaking up existing states into smaller states rather than trying to limit the scope of government within an existing, large state. Moreover, as we shall see, the realisation that smaller states are more conducive to individual liberty goes at least some way to abolishing any practical difference between minarchism and anarchism.

The vast, monolithic state is, in fact, a relatively new phenomenon. Germany and Italy, for example, consisted of much smaller territories and independent cities until the late nineteenth century; the United States was intended to be a union of smaller, independent, sovereign states, and the transformation of the US into a single, large state occurred informally as a result of the civil war and the gradual consolidation of sovereign power in Washington DC. Other large states were born out of independence from conquest with many simply being artificial lines drawn on a map by politicians. The latest experiment is, of course, the European Union which has, since the post war era, attempted to draw an increasing number of powers away from the capital cities of the individual member states and concentrate them in Brussels. This tendency of increasing the size of states has gone hand in hand with the gradual replacement of laissez faire with socialisation, statism, social democracy and increasing belligerence on the part of the resulting behemoth states. All of the vast conflicts of the twentieth century – the two world wars and the cold war – occurred after major consolidations and empires were in place. Today, we are left with the belligerence of the United States and its Western allies as they seek to control the Middle East and to quell the growing ambitions of Russia and China which are, of course, two more states that cover a vast territory.

There are several reasons why larger states erode liberty while smaller states tend to be more conducive towards it. The first and most obvious is that a larger state has access to a vastly greater sum of resources – more natural resources such as oil, gas, farmland etc. and, of course, a larger population to subject to tax slavery. Thus the large state is able to command relatively more wealth than a smaller state. The greatest impact of this is with regards to foreign policy. It is not likely, for example, that a territory the size of Monaco or Liechenstein would have the wherewithal to produce the military hardware of the United States. Even if its tax base could, in some way, pay for all of the necessary resources it would, in the first place, be heavily reliant upon foreigners who would have to supply, manufacture and then store all of the aircraft, tanks and missiles and so on. This conveys to foreign governments the power to restrict the military growth of the small state and with it all of the derivatives that accompany an increasing appetite for warfare such as suspension of civil liberties, freedom of the press, and so on. Indeed, in small states which are reliant upon foreign powers for their military equipment, such as Singapore, it is usually to the benefit of the foreign state to see the smaller state armed. Second, a large state possesses a larger population and thus can benefit from a wider division of labour in its bureaucracy. Hence larger states have no end of specialist agencies, departments and units that are each devoted to a particular area of government which serves to more effectively augment and consolidate the potency of government power. The US federal government, for example, employs approximately £4.1m people across an alphabet soup of abbreviated names and acronyms for hundreds of government departments and agencies. Smaller states will not have this luxury. Liechtenstein, for example, has an entire population of just over 37,000, a bare fraction of the federal government of the US, so many of its government employees must presumably carry out several core functions rather than individual, specialist occupations. Third, consolidation of smaller states into larger states reduces the competition between states. If a small state becomes too burdensome and oppressive in its rate of taxation and regulation then people can simply jump ship. Thus there will be a drain of productivity from the onerous state to the benefit of less domineering states. Indeed, rather than any so-called, internal “separation of powers” between the different organs of an individual state, it is in fact the competition with other states that provides the real check and balance to state power. We can therefore see that the real motivation for the consolidation of smaller states into larger states, the increasing number of trade agreements and treaties between states and, furthermore, the recent hullaballoo about corporate tax avoidance is to restrict choice amongst the taxed population. If such restriction is achieved, people will stay put in their home state and government can subject them to ever increasing restrictions, safe in the knowledge that nowhere else can offer anything better. The logical end – a vast, monolithic world state – would have absolutely no check whatsoever on its expanding powers, short of people’s abilities to escape into outer space. Moreover, sealing the border of a small state is markedly more difficult than sealing the border of a larger state. Smaller states are more reliant upon foreign trade for resources and the migration of intellectuals, entrepreneurs, businessmen and cultural or sporting icons, and so they have to permit a relatively porous border. A larger state, however, has much of these things home grown already and thus is able to invoke more impenetrable border restrictions, safe in the knowledge that it is not providing an overwhelming degree of disruption to its economy. And, of course, in a smaller state people are physically closer to the border so that even relatively impoverished people who wished to escape to a neighbouring state could brave the journey by foot in a few days. It would be much harder, however, for the same type of individual to escape the US to Mexico from, say, Kansas. Fourth, a larger state possesses a greater number of domestic industries compared to a smaller state. This creates both the incentive and the wherewithal to impose a greater number of protective trade restrictions and tariffs. If a smaller state, however, specialises in, say, two or three industries but does not have a steel industry it is clear that any protective tariff imposed on imported steel would be protecting absolutely nothing and everybody within the state is simply having to pay higher prices for steel. Moreover, as we noted, smaller states are more reliant upon foreign trade in the first place and any the effects of any restriction in that regard are likely to be greatly magnified compared to the same in a larger state. Fifth, all else being equal, a larger state comprises a greater proportion of the worldwide economy than a smaller state. Correspondingly, there will be a wider acceptance of its government-issued, paper currency. Larger states therefore have a much greater ability to inflate their currencies to support government spending and, moreover, export this inflation abroad. It is no secret that the status of the US dollar as the world’s reserve currency, where everyone has a willingness to buy and hold dollars, has permitted a perpetual inflation of the dollar for decades, the eventual disastrous effects of which are only just beginning to be felt. A smaller state, however, whose currency has a smaller circle of acceptance and is barely used in international trade, is more likely to simply inflate itself into oblivion and has to enact price controls and capital controls much sooner than the larger state. Thus the chickens come home to roost much quicker in a smaller state, much like we are seeing in present day Argentina. And finally, in smaller states where the population is more homogenous in culture and outlook, it is much more difficult to set up a welfare state and to invoke the attitude that state welfare is permissible. In the first place, the lack of contrasting demographics provides little excuse for racial or cultural differences and, moreover, differences in the level of education to be used as a justification for alleged inequalities that can be somehow ameliorated by state welfare. In a larger state, however, it is possible to drill into the minds of welfare recipients a sense of entitlement resulting from their alleged misfortune while at the same time encouraging a sense of guilt and obligation in the minds of those who happen to be better off. Second, in a large state the disparate groups and populations, some of whom are wholly net tax payers and others wholly net tax receivers, are distant and unfamiliar to each other. The social security cheque of a poor, blue collar, unemployed man in urban Detroit, for example, may well be written by a middle class lawyer residing in Westchester. In other words, if you are a tax payer your money simply vanishes into a pot and you never get to see first-hand the nature and quality of the people who benefit from it, nor do the latter – probably residing on the other side of the continent with different coloured skin, a different language and different social and cultural practices which are entirely alien from yours – ever get to see you. Thus, with such an impersonal and faceless affair, there is little incentive for anyone to care about sponging off anyone else, nor is there much cause for tax payers to become outraged at who is sponging off of them. In a smaller state, however, the person writing your welfare cheque may quite easily be your neighbour, from whom there is nothing much to distinguish you in terms of background and education that should cause you to be any more “disadvantaged” than he is. Therefore, in a smaller state, it becomes much easier to determine which individuals are productive and generating wealth on the one hand, and which individuals are unproductive and acting as a leech upon everyone else on the other. Both the willingness to accept and to fund state welfare is therefore kept firmly in check in a smaller state.

To reiterate, none of this means to say that the theoretical debate between minarchism and anarchism does not matter. However, we can also see how the conduciveness of smaller states towards liberty and larger states towards tyranny goes some way towards eliminating the schism between minarchists and anarchists. The government of a smaller state is closer to the population not only geographically but also in terms of its values and cultural outlook. The result of this is that the crucial issue of the consent of the governed is at least partially, if never perfectly, resolved by a small state. Any government action is likely to be tailored to the specific needs and values of the smaller, local population as opposed to the one-size-fits-all solutions imposed by larger states. A degree of empathy and understanding between the governors and the governed is far more likely in a smaller state as opposed to when the government draws to its so-called “representatives” from distant and unfamiliar lands in a capital city that is hundreds, if not thousands of miles away. There is at least, therefore, a greater chance that the government is working for you and with you, even if you may disagree with some of its policies and have to obey certain edicts which you would prefer to disobey. Moreover, in a smaller state with a smaller population a single vote out of, say, a few hundred thousand people carries more weight than a single, drop-in-the-ocean vote in a population of tens of millions. And if the world as a whole consisted of thousands of small states and free cities with relatively small populations what would be created is a “patchwork quilt” of independent territories, each with their own social, political, cultural, economic, and religious idiosyncrasies, to the extent that everyone would be able to find somewhere that is broadly conducive to his own needs and values. Some states or cities, for example, could be relatively liberal with, for example, legalised drug use, and/or permissibility of homosexuality, whereas others could be conservative and/or religious and permitting the expression of only traditional cultural values. Moreover, although the industry of each state would necessarily have to specialise in what was possible in terms of the geography, climate and access to raw materials, each independent state would seek to pursue excellence in academia, art, culture, and sport on a much more local scale than is possible today in larger states. Therefore, states, and cities in particular, would once again become seats of great learning and culture as opposed to the havens of poverty and crime that many of them are today.

At the heart of all of this is the right to secession – the freedom of territories, cities, districts and the individual property owner, to break away from one state, join another, or even to go it alone entirely (indeed, the possibility of individual property owners seceding is one that Mises entertains in Liberalism, dismissing it only out of impracticality). In the first place it is, of course, the recognition of the right to secede that will shatter the behemoth state into smaller states. The prospects of a move towards this are not at all bad. Secessionist movements are beginning to show signs of success in various parts of the world, notably in Scotland where, in spite of a failed independence referendum last year, voters awarded 56 out of a possible 59 UK parliamentary seats to the Scottish Nationalist Party in May of this year. The US state of Texas passed a bill in June of this year that will see the opening of its own bullion depository in order to provide some kind of independence from the inflationary zest of the Federal Reserve. Indeed, given that the imperialism of the West is founded upon the hegemony of the dollar, seceding from this empire of paper money may be both the most symbolic and practically effective rejection of the large state. Second, however, with the right of secession comes the strongest chance of reconciliation between the theoretical schools of anarchism and minarchism. For if there is a right to secession, states are little more than a collection of property owners coming together voluntarily to provide for a common purpose in a way that suits those particular property owners. If these property owners could leave and take their property with them if they so desired the issue of consent – the preoccupation of anarchists – is overcome. However, in order to prevent secessionist fervour, the state – the group of property owners as a whole – cannot become overly burdensome or invasive towards particular property owners lest they leave. It would also be likely that too much socialisation and the implication of a welfare state would lead to weakening competitiveness with neighbouring states in which fewer areas were socialised. Thus, the scope of the state within a particular territory – the preoccupation of minarchists – is likewise resolved. Moreover, the threat of secession and the competition with other states would cause the government of a particular state to behave more like a business, seeking to attract “customers” to join its territory, so that even if certain services were socialised they would have to be run in a competitive manner because endless tax funding would simply never be a possibility as it is in a large state. There comes a point, therefore, where the distinction between the state as a compulsory, aggressive institution on the one hand, and a purely voluntary and privately endorsed entity on the other begins to dissolve. In short, whichever way you look at it the only way to achieve either the absence of a state desired by anarchists or a small state desired by minarchists is to oppose, resolutely and emphatically, the large, overarching state.

It is clear that this understanding can have important ramifications for the libertarian movement as a whole. While the theoretical debate between minarchism and anarchism will (and, in the opinion of this author) should remain, when it comes to decisive action towards achieving a free world we can see that pressing for the eradication of large states and their dissolution into smaller states may be a unifying way forward. Moreover, although libertarians should, at heart, remain fully radical and uncompromising in their detestation of the state, we can see that the less revolutionary stance proposed here is likely to be more acceptable to a public which still views at least some kind of state as a necessity. Libertarians would be able demonstrate to the public that the large, monolithic state is inimical to their prosperity while at the same time avoiding all of the “who will build the roads” and “who will catch the bad guys?” questions, discussion of which tends to alienate people from the libertarian cause. However, unlike the advocacy of other “half-way” measures to reduce state power (such as so-called tax reform and school vouchers), which simply rearrange the deck chairs on the sinking ship of the state, pressing for the breakup of large states is a positive move towards eliminating the state entirely. There is, therefore, nothing half-hearted about this approach. Once we begin to put the world on the path to breaking up large states, not only will the worst excesses of state oppression be vanquished, but the achievement of restricting the geographical size of states may, in and of itself, also achieve the final libertarian end – either minimal “night watchman states or, a complete, de facto eradication of the state as an aggressive institution.

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